Tuesday, September 17, 2013

Institutionalizing Yourself Is a Suboptimal Strategy in a Custody Fight

McClintock v. West, No. G046483 (D4d3 Sept. 9, 2013) 

During his divorce proceedings, McClintock (a lawyer) checked himself into a mental institution. Finding him incompetent, the court appointed West to act as McClintock’s guardian ad litem. West proceeded to settle the divorce case in a manner that did not meet McClintock’s approval. McClintock then sued West for breach of contract and various torts in connection with her guardian ad litem duties and a fee application West filed with the court seeking approval of her guardian fees. The trial court sustained West’s demurrer, which the court of appeal affirmed, on the grounds that (a) any causes of action arising from acts undertaken as a guardian ad litem are barred under the absolute quasi-judicial immunity; (b) liability for filing the fee petition was barred by the Civil Code § 47(b) litigation privilege; and (c) because West was acting as a guardian and not as McClintock’s attorney, she could not be held liable for professional malpractice.


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