LAURA GOTTLIEB, ET AL. VS RICHARD J. GOTTLIEB, ET AL.

Tentative Rulings

Case Number: *******6738    Hearing Date: April 15, 2021    Dept: P

Tentative Ruling

Laura Gottlieb et al. v. Richard J. Gottlieb, Case No. *******6738

Hearing Date April 15, 2021

Defendant Richard Gottlieb, Trustee of the Daniel Gottlieb Trust’s Motion for Reconsideration of Order Appointing Plaintiff Guardian Ad Litem

Plaintiff Laura Gottlieb moved ex parte for an order appointing her guardian ad litem for her father Daniel Gottlieb. The matter was heard in Dept. R and granted by Judge Epstein. Defendant Richard Gottlieb, plaintiff’s brother and trustee of the Daniel Gottlieb Trust, moves for reconsideration, arguing Daniel does not wish Laura to be his GAL, he was not provided notice of the motion, so unable to oppose it, and there was insufficient evidence presented that Daniel requires a GAL.

A motion for reconsideration must be filed within 10 days after service upon the party of written notice of entry of the order. Cal. Code of Civ. Proc. ;1008(a). If no notice of entry of an order is served, the ;1008(a) clock does not begin to run. Novak v. Fay (2015) 236 Cal.App.4th 329, 335-336. A motion for reconsideration may only be granted if it shows “new or different facts, circumstances, or law.” If a GAL is appointed prior to service of process, the appointment is void and the appointee has no power to appear. Weisfeld v. Superior Court (1952) 110 Cal.App.2 148, 152. Further, a GAL may be appointed for an adult only if he consents to the appointment or upon notice and hearing. In re Jessica G. (2001) 93 Cal.App.4th 1180, 1187-1188. Granting GAL status without providing opposing party an opportunity to be heard violates due process. In re Sara D. (2001) 87 Cal.App.4th 661, 672.

Moving party states he was not served with the ex parte application. He argues the motion was supported by insufficient evidence, with only Laura’s claims on information and belief, with no competent, independent evidence of Daniel’s medical or mental state. Laura argues the order granting ex parte relief was served on Daniel, so this motion is untimely and not supported by new or different facts, circumstances or law.

Defendant was not present at the hearing. No facts regarding the alleged rift between Laura and Daniel or evidence of Daniel’s competence were presented; this constitutes new or different evidence sufficient under ;1008. Wolf Decl.¶7, Hamer Decl. ¶10, Susan Decl. ¶3. Additionally, in the interest of a hearing on the merits, the court accepts Daniel’s claim he never received notice of the hearing, so was denied the opportunity to oppose. GRANTED. The motion to appoint Laura as GAL will be scheduled and fully briefed.

DUE TO THE ONGOING COVID-19 PANDEMIC PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR VIA LA COURT CONNECT.