Case 3:09-cv CRB Document 152 Filed 10/07/16 Page 1 of 5

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1 Case :0-cv-0-CRB Document Filed 0/0/ Page of KENNETH A. BRUNETTI (SB # ) GREGORY A. ROUGEAU (SB # ) BRUNETTI ROUGEAU LLP 00 Montgomery Street, Suite 000 San Francisco, California 0 Phone: () - kbrunetti@brlawsf.com Attorneys for Party-in-Interest, FRANCES R. SHEEHAN UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 0 0 TERESA SHEEHANS vs. Plaintiff, CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation; HEATHER FONG, in her capacity as Chief of Police for the CITY AND COUNTY OF SAN FRANCISCO; KIMBERLY REYNOLDS, individually, and in her capacity as a police officer for the CITY AND COUNTY OF SAN FRANCISCO; KATHERINE HOLDER, individually and in her capacity as a police officer for the CITY AND COUNTY OF SAN FRANCISCO; and, San Francisco police officers DOES - inclusive, Defendants. Case No. C 0 0 CRB PARTY-IN-INTEREST FRANCES R. SHEEHAN S OPPOSITION TO MOTION TO APPOINT GUARDIAN AD LITEM AND APPROVE SETTLEMENT Time: 0:00 a.m. Date: October, 0 Courtroom, th Floor Hon. Charles R. Breyer Party-in-Interest Frances R. Sheehan ( Frances ) hereby submits her opposition ( Opposition ) to the Motion to Appoint Guardian Ad Litem and Approve Settlement (the Motion ) filed by Plaintiff Teresa Sheehan ( Plaintiff ), the sister of Frances. The Opposition is supported by the accompanying Declaration of Frances R. Sheehan in Support of Opposition to Motion to Appoint Guardian Ad Litem and Approve Settlement.

2 Case :0-cv-0-CRB Document Filed 0/0/ Page of 0 0 INTRODUCTION Frances is the sister of Plaintiff Teresa and holds a general power of attorney to act on Teresa s behalf. Frances has been extensively involved from the outset in all aspects of the litigation surrounding this lawsuit and has been the sole vehicle for communications between Teresa and her lawyers, The Law Offices of John L. Burris. Until very recently, the lawyers at the Burris firm have consulted with Frances about all strategic decisions that have been made about this lawsuit. Frances has a general power of attorney to act on Teresa s behalf and make decisions about all aspects of her life. The Burris law firm is well aware of the general power of attorney, as discussed in paragraph of Benjamin Nisenbaum s declaration in support of the Motion. By the Motion, the Burris law firm (not Plaintiff) is seeking to appoint a guardian ad litem to act on Teresa s behalf because they are angry that Frances refused to accept a settlement offer that was made at a mediation held on August. That settlement offer would have allowed the Burris firm to get paid and to move on but Frances did not feel that it was in the best interests of Teresa. The proposed settlement includes a payment of $ million (of which Teresa would receive $, after payment of fees), as well as certain non-monetary terms, which are described in the Motion (although not with complete accuracy as further described in Frances declaration). The reason Frances refused to accept the settlement offer is that Teresa has made it very clear to Frances that she wanted to have her day in court. In 00, Teresa was shot seven times by officers from the San Francisco Police Department. She suffered severe and extensive wounds from the assault, some of which have resulted in permanent disability. Teresa has also suffered from severe emotional distress and depression as a result of the shooting. What Teresa most wanted from this lawsuit was to have her claims against the City and County of San Francisco tried by a jury of her peers. Frances also felt that neither the monetary or non-monetary terms of the final settlement proposal were adequate to protect Teresa s long-term interests.

3 Case :0-cv-0-CRB Document Filed 0/0/ Page of 0 0 ARGUMENT I. Filing of the Motion Did Not Comply with Local Rules The Burris firm filed the Motion on September, 0 and set a hearing date of October, 0. This appears to be in violation of Local Rule -, which requires days notice of a motion and affords a person opposing a motion days to respond. The Burris firm also informed Frances that she must file any opposition by no later than October, 0, which denies Frances the days response period to which she is entitled. The Burris firm never consulted with Frances or Teresa before filing the Motion. At a minimum, Frances requests that the hearing on the Motion be continued in order to give Frances sufficient time to develop a proper evidentiary record upon which the Motion can be decided. II. There is No Evidence to Support the Motion The Burris firm makes the Motion on the grounds that Teresa is incompetent under Federal Rule (c)(), which appears to be the wrong statute on which the Motion should be based. Rule (c)() is for cases in which there as an authorized representative in place. The appropriate section would appear to be Rule (c)() if the Burris firm is making the argument that Plaintiff is not represented by a duly authorized representative. However, the Court cannot appoint a guardian ad litem under Rule (c)() because the court is only authorized to do so to protect a minor or incompetent person who is unrepresented in an action. (Emphasis added.) Here, not only is Teresa represented by Frances, but she is represented by the Burris firm itself. The Rule does not provide for the appointment of a guardian ad litem under these circumstances. In any event, the Burris firm has submitted no evidence whatsoever of Teresa s competence. The Court cannot make a determination as to Plaintiff s competence without any evidence. The Court s obligation to appoint a guardian ad litem or to issue another appropriate order under Rule (c) does not arise until after a determination of incompetence has been made by the court in which the issue is raised. AT&T Mobility, LLC v. Yeager, F.Supp. d 0 (Sec. II, Discussion, no pin cite provided) (E.D. Cal. 0) (citing to Foirte v. Cnty of Merced, 0 WL at * (E.D. Cal. 0). Simply stated, there is no evidence before the Court on the issue of Teresa s competence.

4 Case :0-cv-0-CRB Document Filed 0/0/ Page of 0 0 Finally, the Court should deny the Motion simply for the mere absurdity of the notion that an attorney who does not agree with his client s decision can go out and get a third party to step into a lawsuit and take over decision-making authority of the client in order to benefit the attorney. If allowed, this notion would throw the entire concept of the attorney-client relationship on its head. It is the client that gets to make the ultimate decision, not the attorney. Under the circumstances, there is no basis for appointing a guardian ad litem here. III. The Proposed Guardian Does Not Know What is Plaintiff s Best Interests. By the Motion, the Burris Firm seeks to appoint Herb Thomas as guardian ad litem to accept the settlement agreement and to be in control of the distribution of Teresa s share of the settlement payment. The Burris firm has never communicated with their client, Teresa, about the proposal to appoint Mr. Thomas as guardian ad litem. Moreover, Mr. Thomas has never met with or spoken to Teresa. He knows nothing about her and certainly does not know what is in her best interest. IV. The Settlement Proposal Is Acceptable On The Same Terms Offered At Mediation. To be clear, Frances is willing to enter into a settlement agreement on Teresa s behalf, but only under the exact same terms that were conveyed to Frances at the mediation held on August. The non-monetary terms of that settlement offer are different from the terms described by Benjamin Nisenbaum in support of the Motion. Frances would be willing to enter into a settlement agreement under the terms offered, which are described in Frances accompanying declaration. However, Frances willingness to enter into the settlement agreement is contingent upon the Court rejecting the Burris Firm s request that Herb Thomas be appointed guardian ad litem. Frances respectfully requests that the Court either appoint Frances to be guardian ad litem or continue the hearing in order that a proper evidentiary record can be presented.

5 Case :0-cv-0-CRB Document Filed 0/0/ Page of CONCLUSION For the aforementioned reasons, the Motion should be denied. 0 0 DATED: October, 0 BRUNETTI ROUGEAU LLP /s/ Gregory A. Rougeau Gregory A. Rougeau Attorneys for Francis R. Sheehan