Filed 4/14/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

A.F.,

Appellant,

v.

JEFFREY F.,

Respondent.

 D079919

 (Super. Ct. No. 21FDV01528N)

APPEAL from an order of the Superior Court of San Diego County, 

Sharon L. Kalemkiarian, Judge. Affirmed in part, reversed in part.

Beatrice L. Snider, John L. Romaker, and Alexandria M. Jones, for 

Appellant.

No appearance for Respondent.

INTRODUCTION

When A.F. was 11 years old, she applied for a domestic violence 

restraining order (DVRO) against her father, Jeffrey F. (Father), who holds 

joint legal custody with her mother, Andrea F. (Mother). Mother was the 

original guardian ad litem (GAL), and she retained attorney Edward Castro 

to represent A.F. Father moved to disqualify Mother as the GAL and Castro 

as A.F.’s counsel and was successful. A.F. appealed the July 16, 2021 order 

disqualifying Castro.
2

While that appeal was pending, A.F. turned 12 years old, and the court 

did not appoint a new GAL. Although A.F. brought the petition on her own 

behalf, the family court in her parents’ dissolution matter, case 

No. DN171362 (the dissolution matter), appointed a “minor’s counsel”1 to 

represent her best interests there, in anticipation of changes to the custody 

and visitation arrangement that could result from the outcome in the present 

case, case No. 21FDV01528N (the DV matter).

A.F., on her own behalf, retained a new attorney, Aaron Smith, to 

represent her in the DV matter. The court reviewed that contract and 

rejected the fee agreement between A.F. and Smith for numerous reasons, 

including that there was a potential conflict of interest from having her 

maternal grandfather (Grandfather) serve as a third-party guarantor. The 

court also interviewed A.F. and determined she was not competent to retain 

counsel independently, and it found that Smith did not meet the 

requirements detailed by the California Rules of Court, rule 5.2422 to serve 

as a “minor’s counsel.” So, the court removed Smith as A.F.’s attorney, 

appointed a “minor’s counsel” in the DV matter, and prohibited Smith from 

replacing the attorney the court appointed as a “minor’s counsel.”

1 We use the term “minor’s counsel” throughout our opinion because that 

is the language the superior court used in its order. “Minor’s counsel” 

references an attorney appointed under chapter 10 of the Family Code who 

“is charged with the representation of the child’s best interests.” (Fam. Code, 

§ 3151, subd. (a); see also id. at § 3150, subd. (a) [explaining the court can 

appoint private counsel to represent the interests of children in custody or 

visitation proceedings].)

2 Further references to “Rule” or “Rules” are to the California Rules of 

Court unless otherwise specified.
3

A.F. appeals, contending that the matter of selecting her attorney 

should have been automatically stayed pending the outcome of the appeal of 

the court’s order disqualifying Castro. She also contends it was error to 

appoint a “minor’s counsel” in the DV matter; it was improper to disqualify 

her attorney based on the rejection of the fee agreement and the lack of 

Smith’s qualifications in compliance with Rule 5.242; and her due process 

rights were violated because the court interviewed her without notice or an 

opportunity to be heard.

We conclude that the court had subject matter jurisdiction to act in the 

DV matter while the first appeal was pending because her original attorney 

substituted out of the case. We reverse the order appointing a “minor’s 

counsel,” which is improper in a DV matter where a minor seeks a 

restraining order under the Domestic Violence Prevention Act (DVPA) (Fam. 

Code,3 § 6200 et seq.). We affirm the court’s order voiding the agreement 

between A.F. and Smith and removing Smith as her attorney on the basis 

that A.F. lacked competency to select her attorney independently. However, 

we reverse the order prohibiting Smith from serving as A.F.’s attorney in the 

matter because it was an abuse of discretion to completely disqualify him on 

the basis that the court rejected the fee agreement or that he failed to meet 

the requirements of Rule 5.242. Finally, while we agree that the court failed 

to provide proper notice to A.F. before interviewing her, we conclude this 

conduct did not prejudice A.F. 

BACKGROUND AND PROCEDURAL FACTS

On April 2, 2021, Mother, as GAL, filed a petition for a domestic 

violence restraining order under the DVPA against Father on behalf of A.F. 

3 Further statutory references are to the Family Code unless otherwise 

specified.
4

Castro, Mother’s former divorce attorney, was hired to represent A.F. in the 

DV matter. The original petition also included a request to modify custody 

orders. 

Father moved to disqualify Castro in both the dissolution and DV 

matters. He also requested reunification therapy, individual therapy, and 

appointment of a “minor’s counsel” for A.F. The court concluded those 

requests were improper for the DV matter and could only be raised in the 

dissolution matter, where Father and Mother were the parties. It vacated 

the custody and visitation order sought in the DVRO petition. 

On July 16, 2021, the court in the DV matter disqualified Castro from 

representing either A.F. in the DV matter or Mother in the dissolution 

matter. It also removed Mother as the GAL, noted the parents had not 

reached an agreement on who would be an appropriate GAL, and invited 

them to set an ex parte hearing to address the conflict. 

On July 21, 2021, A.F. appealed the disqualification of Castro. 

On July 28, 2021, the court called the dissolution matter and the DV 

matter together. The court explained it was contemplating appointing a 

“minor’s counsel” in the dissolution matter to advise the court, to present 

evidence not heard from the minor, and to help determine whether a GAL 

should be appointed. The court appointed attorney Stephanie Mendez to 

serve as A.F.’s “minor’s counsel” in the dissolution matter. 

On August 16, 2021, attorney Smith substituted in for Castro as the 

attorney of record for A.F. 

On August 31, 2021, A.F. filed an ex parte application in the DV matter 

asking the court to enforce an automatic stay based on the appeal challenging 

Castro’s disqualification. 
5

At the trial readiness conference for the DV matter held on 

September 22, 2021, Smith appeared for A.F., who was not present. In part 

because the court viewed the DV matter as essentially a custody and 

visitation issue, it believed it could appoint a “minor’s counsel.” So, the court 

viewed its options as appointing A.F. a GAL or a “minor’s counsel.” The court 

also told the parties that it was obligated to review and approve any contract 

for a minor, and Smith could not represent A.F. as her personal attorney

without its approval. It told Smith he could not meet with A.F. until it 

reviewed (and approved) the fee agreement. 

The court told the parties that at the November 1 hearing, it would 

consider the following issues: A.F.’s claim that there was an automatic stay 

in place, whether it would appoint a “minor’s counsel,” and its authority to 

review and approve the agreement between Smith and A.F. It said there 

would be “[n]o testimony, legal briefing only . . . .” 

At the November 1, 2021 hearing, A.F.’s attorney argued that Castro’s 

disqualification should be stayed, permitting him to serve as co-counsel in the 

DV matter. The court noted that Castro had substituted himself out of the 

matter and was no longer the attorney of record for A.F.; Smith was not 

simply associated in as additional counsel.4 Thus, an automatic stay did not 

apply. It inquired of Smith whether he met the requirements of Rules 5.240, 

5.241, and 5.242, and Smith admitted he did not. The court commented that 

it would create “a very, very dangerous and tumultuous situation in the 

family court if we started to allow minors to retain counsel who did not meet 

the requirements of minor’s counsel appointed by the court.” It said it “would 

not appoint counsel that didn’t meet those requirements . . . . [T]hose 

4 Smith represented to the court that the court clerk would not permit 

him to file anything while Castro was listed as the attorney of record. 
6

requirements are there for a reason, and they’re there to ensure that minor’s 

counsel understands what its job is going to be.” The court agreed to hear 

Smith’s arguments on the matter, but it cautioned that there is “very specific 

training that is required to represent minors in the family court.” 

The court also explained it needed to be satisfied A.F. was competent to 

select counsel and to approve the contract before Smith could move forward 

as her attorney. Thus, it requested A.F.’s physical appearance so it could 

interview her in person that afternoon. The court told Grandfather and 

Mendez that they could tell A.F. that she did not need to be nervous, “[w]e’re 

just going to chat.” The court permitted the attorneys to observe the 

conversation remotely, but no one would be in the courtroom except the judge 

and A.F. 

A.F. appeared that afternoon. The court began by explaining why it 

wanted to see A.F., telling her there would be a trial on the restraining order, 

and A.F. would have an attorney for that. The court asked if A.F. understood 

why the court wanted to meet with her, and A.F. asked the court to explain. 

The court asked A.F. if she remembered what her mom was called when she 

first filed the petition for the DVRO, and A.F. answered, “guardian ad litem.” 

A.F. also remembered the name of her first attorney, Castro, but did not 

remember why the court would not allow Castro to represent her. When 

asked if A.F. understood what the conflict of interest was, A.F. answered that 

Castro represented her mom in the divorce case and then represented A.F., 

but she could not explain why that might create a conflict of interest. A.F.

also could not remember what it meant that Castro appealed that order. 

The court told A.F. it had to decide whether she understood what it 

would mean to have a contract with Smith. The court asked A.F. how she 

found Smith, and A.F. explained that Mother helped her. At first, A.F. said 
7

Mother gave her a couple of different names and asked if there was one she 

liked, and that she thought there was another person she interviewed besides 

Smith, but ultimately she explained Smith was the only person she met. 

The court asked A.F. about the agreement between A.F. and Smith. 

A.F. explained she asked Mother for help understanding some of it. A.F. told 

the court Smith was hired to represent her in the DV matter. A.F. could not 

remember what a retainer was, the meaning of service of process, or what a 

process server does. A.F. remembered that Grandfather signed the 

agreement, too, but she could not remember why. She said Mother and 

Grandfather were going to pay the bill, and she indicated she did not know 

she could be responsible herself for the bill; nor did she have any money to 

pay. The court asked A.F. if she would know what to do if she no longer 

wanted Smith to represent her, and A.F. said she did not know. If they had a 

disagreement over what Smith charged, A.F. also did not know what she 

would do, and she did not know how much he was charging her. 

A.F. told the court she would rather hire her own attorney than have 

the court appoint one so she could choose who was best for her, but she could 

not explain how she would make that choice. 

The court issued its written order on November 8, 2021. It did not 

approve the contract between A.F. and Smith. Instead, it asked Mendez to 

represent A.F. in the DV matter “as part of her duties as minor’s counsel.” 

Although the court found that A.F. had the right to hire her own attorney, it 

found the contract between A.F. and Smith void and concluded he could not 

represent A.F. in the DV matter. It determined that A.F. “did not have the 

capacity to enter the contract with Attorney Smith—she did not understand 

why she was hiring him or the terms of his engagement.” It explained that 
8

while A.F. “understood what she had hired [Smith] to do, she was not aware 

of the most basic information required of a client.” 

The court separately concluded Smith could not represent A.F. in the 

DV matter because he did not meet the requirements of Rule 5.240 et seq., 

outlining the standards that must be met by a “minor’s counsel” appointed by 

the court, and he did not present alternative qualifications. 

Finally, the court explained that “there could be potential problems” in 

permitting A.F.’s maternal grandfather to act as a guarantor of the contract 

with Smith. Specifically, the court noted that Rule 1.8.6 of the Rules of 

Professional Conduct prohibits an attorney from entering an agreement in 

which a third party pays unless the lawyer obtains the client’s informed 

written consent. A.F. had not initialed that paragraph, and the court 

concluded she was not competent to provide the required consent. 

Finally, the order stated that Smith could not “represent [A.F.] in [the]

proceeding” and also prohibited Smith from substituting in for Mendez. 

On November 18, 2021, A.F. appealed the order.

On January 12, 2022, we stayed all orders embraced in the court’s 

July 16, 2021 order disqualifying counsel. Castro appeared on behalf of A.F.

in an ex parte hearing on January 14, 2022, at which the court removed 

Mendez as “minor’s counsel” in the dissolution and DV matters. 

DISCUSSION

I.

Subject Matter Jurisdiction

A.F. contends the court lacked subject matter jurisdiction to address 

issues related to her legal representation because the issue of her first 

attorney’s disqualification was pending appeal. 
9

When the evidence is not in dispute, subject matter jurisdiction is a 

legal issue, which we review de novo. (Dial 800 v. Fesbinder (2004) 118 

Cal.App.4th 32, 42.) The court disqualified A.F.’s first retained attorney, 

Castro, an order which A.F. appealed. At the time of the hearing at which 

the court appointed a “minor’s counsel” in the DV matter, that appeal was 

pending.

Code of Civil Procedure section 916, subdivision (a) explains that the 

perfecting of an appeal stays proceedings in the trial court “upon 

the . . . order appealed from or upon the matters embraced therein or affected 

thereby, including enforcement of the . . . order, but the trial court may 

proceed upon any other matter embraced in the action and not affected by 

the . . . order.” The purpose of the automatic stay provision is to preserve the 

status quo and protect the appellate court’s jurisdiction. (Varian Medical 

Systems Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian).) 

“[A]n appeal does not stay proceedings on ‘ancillary or collateral 

matters which do not affect the judgment [or order] on appeal’ even though 

the proceedings may render the appeal moot. [Citation.]” (Varian, supra, 35 

Cal.4th at p. 191.) Thus, “an appeal from an order denying a motion to 

disqualify counsel does not automatically stay further trial court proceedings 

on the merits because such proceedings would occur regardless of whether 

the reviewing court affirms or reverses the order. [Citation.]” (Ibid.) 

However, an order disqualifying an attorney is treated differently. 

“[A]n appeal of an order disqualifying an attorney automatically stays 

enforcement of the order.” (URS Corp. v. Atkinson/Walsh Joint Venture

(2017) 15 Cal.App.5th 872, 887 (URS).) The remaining trial court 

proceedings are stayed in such a situation if they conflict with the appellate 

court’s jurisdiction over the appeal. (Id. at p. 888.)
10

Here, the question is whether the ongoing proceedings in the DV 

matter conflicted with the appellate court’s jurisdiction over the selection of a 

particular attorney at the outset of litigation. Case law suggests that an

appealed order that disqualifies counsel establishes a mandatory injunction 

because its enforcement changes the positions of the parties and requires 

them to act in accordance with the order. (See URS, supra, 15 Cal.App.5th at 

pp. 884-885.) Thus, an order disqualifying an attorney is automatically 

stayed because doing so prevents mooting the appeal through the 

replacement of counsel. (Id. at p. 886.) 

In light of A.F.’s first appeal, we issued an order staying the 

disqualification of counsel on January 12, 2022. Although the pending appeal 

automatically stayed the order disqualifying Castro, because A.F. retained a

different attorney and substituted Smith for Castro, there was no longer any 

conflict between her chosen representation and the appeal. In other words, 

A.F.’s decision to replace Castro eliminated any need to stay the pending 

litigation, and the court had subject matter jurisdiction to move forward.

II.

Appointment of a “Minor’s Counsel”

A.F. contends that the court’s appointment of a “minor’s counsel” in the 

DV matter was not statutorily authorized.5 

Statutory interpretation is a question of law, subject to de novo review. 

(Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) “ ‘As in any case 

5 A.F. filed a supplemental “Suggestion of Mootness” motion on March 8, 

2023. In it, she indicates no subsequent “minor’s counsel” was appointed, 

thereby making the appropriateness of appointing “minor’s counsel” 

potentially moot. “[T]here are three discretionary exceptions to the rules 

regarding mootness: (1) when the case presents an issue of broad public 

interest that is likely to recur [citation]; (2) when there may be a recurrence 

of the controversy between the parties [citation]; and (3) when a material 
11

involving statutory interpretation, our fundamental task is to determine the 

Legislature’s intent so as to effectuate the law’s purpose.’ ” (People v. Cole

(2006) 38 Cal.4th 964, 974; People v. Murphy (2001) 25 Cal.4th 136, 142.) We 

examine the statutory language and give it a plain and commonsense 

meaning. (Cole, at p. 975.) If the statutory language is unambiguous, then 

the plain meaning controls. (Ibid.) If the language supports more than one 

reasonable construction, we can look to extrinsic aids like legislative history 

and ostensible objectives. (Ibid.; In re Young (2004) 32 Cal.4th 900, 906.) 

The written order asks Mendez to represent A.F. in the DV matter “as 

part of her duties as minor’s counsel,” a role to which she was appointed in 

the dissolution matter. Accordingly, we begin by evaluating the statutes that 

authorize appointment of a “minor’s counsel.” These provisions primarily 

appear in division 8 of the Family Code, addressing child custody.

Section 3150, subdivision (a) authorizes the court to appoint private 

counsel to represent the interests of the child in a custody or visitation 

proceeding if the court determines it would be in the best interest of the child 

to do so, so long as appointed counsel meets the requirements of Rules 5.240, 

5.241, and 5.242. Section 3011 provides a non-exhaustive list of specific 

factors a court must consider when determining the custody and visitation 

arrangement that is in the child’s “best interest.” (In re Marriage of Burgess 

(1996) 13 Cal.4th 25, 31-32; see also §§ 3011 [listing factors to determining 

“bests interest” of child in custody or visitation proceeding]; 3020, subd. (a) 

question remains for the court’s determination [citation].” (Cucamongans 

United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 

Cal.App.4th 473, 479-480.) We apply our discretion in this case because the 

issue of whether the court has authority to appoint a “minor’s counsel” in a 

DV matter is an issue of general public interest. Moreover, A.F.’s status as a 

minor suggests this issue could arise again within the DV matter.
12

[policy is to ensure child’s health, safety, and welfare is court’s primary 

concern in determining “best interest” of child]; 3040, subd. (a) [prioritizing 

preferences according to the child’s “best interest”].)

Section 3151 provides that “[t]he child’s counsel appointed under this 

chapter is charged with representation of the child’s best interests,” and it 

clarifies that the counsel’s role “is to gather evidence that bears on the best 

interests of the child, and present that admissible evidence to the court . . . .” 

Additionally, “[i]f the child so desires, the child’s counsel shall present the 

child’s wishes to the court.” (§ 3151, subd. (a).) 

These statutes make clear that the appointment of a “minor’s counsel”

occurs in the context of a custody or visitation dispute, not in a civil DVRO 

action. Section 3150 specifies that the authority to appoint counsel to 

represent a child occurs “in a custody or visitation proceeding,” and 

section 3152 charges the attorney with representing the child’s “best 

interests,” a custody consideration. (See also §§ 3011; 3020, subd. (a); 3040, 

subd. (a).) Moreover, section 3151 identifies a child’s best interests and a 

child’s wishes as distinct. (See also In re David C. (1984) 152 Cal.App.3d 

1189, 1207-1208 [explaining appointed counsel for child could conclude a 

child’s best interests fall contrary to the stated desires of the child].)

The rules identified in section 3150 further highlight that this 

authority relates to determining the minor’s “best interest” in a custody 

dispute. For example, Rule 5.240 offers eight factors the court should 

consider in determining whether to appoint a “minor’s counsel,” including 

whether the best interest of the child appears to require independent 

representation. (See also In re Marriage of Metzger (2014) 224 Cal.App.4th 

1441, 1446.) Further, Rule 5.242, which governs counsel appointed to 

represent a minor in a custody or visitation proceeding under section 3150, 
13

references the “best interest” standard identified in section 3151. 

(Rule 5.242(a), (i), (j).) The focus on the child’s “best interests” in custody and 

visitation matters underscores that the role a “minor’s counsel” plays is 

distinguishable from that of an attorney who represents a minor in a DVRO 

action. 

We addressed the role of a “minor’s counsel” in our previous opinion, in 

A.F. v. Jeffrey F. (2022) 79 Cal.App.5th 737. There, we contrasted the roles of

a “minor’s counsel” and the minor’s attorney in a DVRO action: “A neutral 

minor’s counsel in a dissolution plays an entirely different role than counsel 

hired in a civil matter. In family court, counsel for a minor has a statutorilyimposed duty to present to the court recommendations based on what the 

attorney believes is in the best interests of the child in addition to the child’s 

wishes. [Citations.] In a civil matter, attorneys representing minors—or any 

other party who has a GAL—are bound by Business and Professions Code 

section 6068 and the State Bar Rules of Professional Conduct and have an 

obligation to zealously represent their clients’ interest within the bounds of 

the law. [Citations.]” (Id. at pp. 751-752.) 

We further noted that because A.F. raised her allegations in a DVRO

petition as permitted by the DVPA, and not in the custody context, she was a 

party to the action itself and therefore entitled to her own attorney, distinct 

from a “minor’s counsel.” (A.F. v. Jeffrey F., supra, 79 Cal.App.5th at p. 752,

citing §§ 6211, subds. (f), 6301, subd.(a), 6301.5.) Thus, we have already, at 

least implicitly, addressed this issue.6

In the matter before us, the court recognized A.F. has a right to hire 

her own attorney, but after finding that A.F. was not competent to select 

6 The court issued the appealed order on January 4, 2022. We filed our 

opinion in A.F. v. Jeffrey F., supra, 79 Cal.App.5th 737 on May 18, 2022. 
14

counsel and that she did not have the capacity to enter a contract with Smith, 

the court appointed the same attorney previously appointed as a “minor’s 

counsel” in the dissolution matter to represent A.F. “as a part of her duties as 

minor’s counsel.” This was error. A.F. is entitled to her own attorney in the 

DV matter.

We observe that even though the DV matter and the dissolution matter 

are distinct, they are related because the outcome of the DVRO request will 

impact custody and visitation. Either the court will issue the restraining 

order, which conflicts with the joint custody order, or it will deny the request, 

at which time Father will seek support in reunifying with A.F. Thus, while 

the custody determinations will happen in the separate dissolution matter, 

we understand the court’s desire to make decisions with the full picture in 

mind. 

We also acknowledge Father’s concern that A.F.’s decision to pursue a 

DVRO with Mother as her GAL initially, instead of Mother separately 

seeking a change in custody order in the dissolution matter, avoided the 

traditional child custody procedures. We understand one consequence of this 

approach has been that Father cannot visit with A.F. pending the outcome of 

the DV matter, in contrast to the options available for ongoing supervised 

contact available through traditional custody and visitation procedures. (See 

§ 3100, subds. (a), (c)). We are sensitive to Father’s concern that these tactics 

are driven by Mother instead of A.F. However, the law is clear. A.F. has the 

right to file a DVRO petition under the DVPA on her own behalf. 

III.

Removal of Smith as Attorney for A.F.

After the court ordered a “minor’s counsel” for A.F. in the DV matter, it 

voided the purported contract between A.F. and Smith, and it effectively 
15

disqualified Smith, explaining that A.F. would “not be permitted by the Court 

to substitute Mr. Smith in for her appointed counsel, Ms. Mendez.” The court 

offered three reasons for its decision. First, it concluded A.F. did not have the 

capacity to enter the contract with Smith. Second, it similarly found that 

A.F. could not understand the possible conflict arising from the third-party 

payment detailed in the contract with Smith and therefore could not waive it. 

Third, it found that Smith did not meet the standards set forth in Rule 5.240, 

which details the requirements of an appointed “minor’s counsel.” We 

address each of the court’s reasons for removing Smith separately. 

A. Standard of Review

We review an attorney’s disqualification for an abuse of discretion 

(In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561; Jessen v. 

Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 705) and “accept[ ] as 

correct all of [the court’s] express or implied findings supported by 

substantial evidence.” (City National Bank v. Adams (2002) 96 Cal.App.4th 

315, 322.) We presume the trial court’s order is correct, and we indulge all 

presumptions to support the order, resolving conflicts in favor of the 

prevailing party and the trial court’s resolution of any factual disputes.

(Zimmerman, at pp. 561-562.) “In exercising discretion, the trial court is 

required to make a reasoned judgment which complies with applicable legal 

principles and policies.” (Id. at p. 561.) “We will reverse the trial court’s 

ruling only where there is no reasonable basis for its action.” (City National 

Bank, at p. 323.)

B. Capacity and Competency to Contract

The court considered whether A.F. had the capacity to hire Smith. It 

opined that its authority to make this inquiry derives from Civil Code 
16

section 1550 and Family Code section 6602, and it found Akkiko M. v. 

Superior Court (1985) 163 Cal.App.3d 525 (Akkiko) instructive. 

Akkiko occurred in the dependency context. (Akkiko, supra, 163 

Cal.App.3d at p. 527.) The primary conflict in Akkiko is not present here. 

There, the court considered the interplay between Welfare and Institutions 

Code sections 317 and 318, which direct a court to appoint counsel, and 

Welfare and Institutions Code section 349, which specifies that a dependent 

minor has the right to select counsel of his or her choosing. The Department 

of Social Services argued that the minor could not appoint counsel of her 

choosing because the litigation had to be managed by a court-appointed GAL. 

(Akkiko, at pp. 527-528.) But the appellate court explained that in the 

dependency context, the role of the GAL was “of a limited nature, designed 

primarily to assure federal assistance” and “many of the responsibilities 

normally associated with a guardian ad litem have been placed upon 

counsel[ ] . . . by [Welfare and Institutions Code] section 318 . . . .” (Akkiko, at 

pp. 529-530.) Thus, in the dependency context, the presence of a GAL did not 

prevent the dependent minor from selecting an attorney. Still, the appellate 

court limited the minor selecting his or her own attorney to a situation in 

which the court was “satisfied that the minor is competent to select counsel” 

and in which “counsel is prepared to meet the obligations imposed by 

section 318.” (Akkiko, at p. 530.)

Unlike statutes in the dependency context, nothing in the DVPA 

expressly authorizes a minor to select an attorney independently. However, 

the court was persuaded that a minor petitioning for a DVRO, like a minor in 

the dependency context, would still need to be competent to retain his or her 

own counsel, and the selected attorney would need to meet certain 

statutorily-based requirements, here Rule 5.242. As we next detail, because 
17

we agree that a minor’s competency is a prerequisite to retaining counsel of 

his or her choosing, and because the court found A.F. lacked competency and 

capacity to contract with Smith, its removal of Smith did not abuse its 

discretion. However, its prohibition on Smith serving as an attorney for A.F.

in the DV matter under any circumstance was error.

To enter a contract with counsel, A.F. must first be capable of 

contracting. (Civ. Code, § 1550.) A person who lacks capacity to make 

decisions must appear by a guardian, conservator, or GAL. (Code Civ. Proc., 

§ 372; see, e.g., Briggs v. Briggs (1958) 160 Cal.App.2d 312, 318 (Briggs)

[defendant incompetent due to insanity could appear only by GAL]; 

Garbutt v. Campbell (1955) 130 Cal.App.2d 167, 168 [general rule is that 

infant must appear by guardian or GAL].) This is consistent with 

section 6601, which permits a minor7 to enforce his or her rights in a civil 

action “in the same manner as an adult, except that a guardian must conduct 

the action or proceedings” (§ 6601, italics added) and with Code of Civil 

Procedure section 372, which requires minors, as well as those who lack legal 

capacity to make decisions, to appear by a guardian or GAL appointed by the 

court in which the proceeding is pending or by a judge in the case. Further, 

even Family Code section 6229 and Code of Civil Procedure section 374, 

which permit minors under age 12 to appear and request restraining orders 

without having an attorney present, still require the presence of a guardian 

ad litem. This is because minors generally lack capacity to sue on their own. 

(See Johns v. County of San Diego (1997) 114 F.3d 874, 877-878.) Thus, it 

was proper to evaluate A.F.’s competency and capacity to independently 

select counsel.

7 The Family Code defines a minor as “an individual who is under 18 

years of age.” (§ 6500.) 
18

The court interviewed A.F. and, based on the interview, it concluded 

A.F. “did not have the capacity to enter the contract” because “she did not 

understand why she was hiring him or the terms of his engagement.” The 

court found that A.F. was “not aware of the most basic information required 

of a client.” A.F. was not aware of what her attorney was charging or the 

definition of “retainer,” could not explain why she selected this particular 

attorney, and did not know how to discharge him if she became dissatisfied. 

A.F. told the court she wanted to hire her own attorney, not have one 

appointed, but she could not explain why.8

A.F. does not challenge these factual findings in her appeal. Instead, 

she contends that the proper consequence of the court’s finding is simply that 

the fee agreement is not enforceable. We agree that the court’s authority to 

reject a fee agreement is not synonymous with the court’s authority to 

disqualify counsel. However, the court did not simply reject the fee 

agreement. It found the contract void because it concluded A.F. was not 

competent to select her own counsel. This finding did not abuse the court’s 

discretion.

C. Third-Party Fee Agreement

A.F. does not challenge the court’s authority to review the agreement; 

she questions the consequences of the court’s failure to approve the 

agreement. Here, the court rejected the fee agreement and voided the 

contract between Smith and A.F. because it included Grandfather as a thirdparty guarantor. 

8 The finding of incompetency suggests the court should have required 

Minor to appear by GAL under these circumstances, not appoint a “minor’s 

counsel.” (Civ. Proc. Code, § 372; see, e.g., Briggs, supra, 160 Cal.App.2d at 

p. 318.)
19

Section 6602 states: “A contract for attorney’s fees for services in 

litigation, made by or on behalf of a minor, is void unless the contract is 

approved, on petition by an interested person, by the court in which the 

litigation is pending . . . . If the contract is not approved and a judgment is 

recovered by or on behalf of the minor, the attorney’s fees chargeable against 

the minor shall be fixed by the court rendering judgment.” California courts 

have interpreted contracts for legal services usually to be a necessary; thus, 

while a contract that is not approved by the court is not enforceable, the 

reasonable value of the attorney fees for legal work conducted on behalf of a 

person unable to make a valid contract remains recoverable. (Leonard v. 

Alexander (1942) 50 Cal.App.2d 385, 387, 388-389; see In re Estate of Doyle 

(1932) 126 Cal.App. 646, 647-648 [person incompetent to enter binding 

contract liable for reasonable value of attorney services rendered in attempt 

to restore person deemed incompetent to capacity]; see also Chiu v. Chiu 

(2022) 86 Cal.App.5th 929, 937, fn. 12 [explaining section 6602 governs 

attorney’s ability to recover fees in a contract with a minor and does not 

preclude a minor from retaining counsel].) A.F. does not directly challenge 

the court’s decision to reject the fee agreement or otherwise claim the court’s 

rationale was misguided. Instead, she simply contends the resulting 

disqualification was an improper consequence. We agree. 

However, as we have already explained, the court did not remove Smith 

simply because it rejected the fee agreement. Its determination that A.F.

lacked capacity to contract and was not competent to select an attorney 

independently impacted A.F.’s ability to enter an agreement that used a 

third-party guarantor as well. Rule 1.8.6 of the Rules of Professional 

Conduct prohibits an attorney from entering an agreement with or accepting 

compensation from a third party to represent a client without obtaining 
20

informed, written consent from the client. Not only did A.F. fail to provide 

informed, written consent by neglecting to initial the language reflecting her 

understanding, but her lack of capacity to enter the agreement separately 

prevented her from providing this consent. 

Further, the court found a potential conflict of interest between 

Grandfather and A.F., noting that Grandfather had previously supported 

Mother in the dissolution matter in which Mother opposed shared custody 

with Father. The court explained that if A.F. were to change her mind about 

seeking the DVRO or visiting with Father, Grandfather might pressure A.F.

to pursue the matter anyway. 

In her appellate brief, A.F. refers to this potential conflict as 

“hypersensitivity to ethical nuances,” but she does not develop her complaint 

or explain why the court’s concerns about the potential for influence or 

conflict of interest are unreasonable; nor does she explain why the court’s 

determination that she lacks the capacity to waive potential conflicts is 

simply a “hypersensitivity.” Although she argues that the court failed to 

consider the substantial continuing effect standard, A.F. does not explain 

how this standard applies to (or is not impacted by) the third-party payment 

concerns the court expressed. Thus, we deem this argument waived. (See 

Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [waiving 

issues not supported by reasoned argument]; Paterno v. State of California 

(1999) 74 Cal.App.4th 68, 106 [appellate court not obligated to examine 

undeveloped claims].) 

Although the court appropriately removed Smith based on A.F.’s 

incapacity to select him herself, disqualifying an attorney as a result of 

rejecting the fee agreement was an abuse of discretion because it incorrectly 

applied the law. 
21

D. Court’s Evaluation of Counsel

A.F. contends that the court did not find that Smith’s service as her 

attorney in the DV matter would prejudice her, and his removal was 

therefore improper. She indicates a court must first consider the “substantial 

continuing effect standard,” which requires “a genuine likelihood that the 

attorney’s misconduct will affect the outcome of the proceedings.” She 

maintains that the court’s determination that Smith lacked specialized 

qualifications does not meet that standard. 

In City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, the 

case upon which A.F. relies for this proposition, we asked whether it was 

appropriate to disqualify the entire city attorney’s office after one of its 

attorneys violated attorney-client privilege and former Rule 2-100 of the 

Rules of Professional Conduct. (City of San Diego, at pp. 469-470.) In that 

context, we explained that “disqualification of counsel is a prophylactic 

remedy designed to mitigate the unfair advantage a party might otherwise 

obtain if the lawyer were allowed to continue representing the client.” (Id. at 

pp. 470-471.) To that end, we considered whether the “ ‘status or misconduct 

which is urged as a ground for disqualification will have a continuing effect 

on the judicial proceedings which are before the court. . . .’ [Citation.]” (Id. at 

p. 471.)

The circumstances of the disqualification here are distinguishable 

because A.F.’s attorney did not achieve an unfair litigation advantage by 

violating any rules. Still, the court here considered Smith’s “status” as a 

ground for effective disqualification. It expressed concern about the 

continuing effect of Smith’s representation on the proceedings, explaining 

that family court has established standards for a “minor’s counsel” that 

Smith did not meet. The court said that it would create “a very, very 
22

dangerous and tumultuous situation in the family court if we started to allow 

minors to retain counsel who did not meet the requirements of minor’s 

counsel appointed by the court.” Its order states that those standards exist 

“to assure the children receive representation from attorneys with knowledge 

base and skill set required to represent a child effectively in a Family Court 

proceeding.” Thus, Smith’s failure to meet them would have a continuing 

effect on the representation. Moreover, although the court agreed to hear 

Smith’s argument for why he was competent to represent a minor in family 

court, it found “[h]e did not present to the Court any alternative 

qualifications, other than the fact that he had been retained.” 

While the court appropriately considered the impact of Smith’s 

continued representation in the matter, we nonetheless conclude that it

abused its discretion by relying on the factors detailed in Rule 5.240 and the 

requirements in Rule 5.242, which “governs counsel appointed to represent 

the best interest of the child in a custody or visitation proceeding under 

Family Code section 3150.” Those standards address appointment of a 

“minor’s counsel,” who, as we detailed ante, serves a different role for a 

different purpose than retained counsel in a DVRO matter. Rules 5.240 and 

5.242 do not control the court’s inquiry in this context. Thus, the reliance on 

Smith’s failure to comply with Rule 5.242 as a basis for his disqualification 

was an abuse of discretion. 

E. A.F.’s Due Process Rights

A.F. contends the court violated her due process rights by disqualifying 

her retained attorney without first providing her with reasonable notice and 

a meaningful opportunity to be heard. 

Due process is a flexible concept that depends on all the circumstances 

of the case and a balancing of various factors. (In re Earl L. (2004) 121 
23

Cal.App.4th 1050, 1053.) It requires notice that is reasonably calculated to 

apprise the interested parties of the pendency of the action and afford them 

an opportunity to object. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418; 

In re Justice P. (2004) 123 Cal.App.4th 181, 188.) 

The court informed the parties regarding the issues it would consider 

at the November 1 hearing: (1) its authority to review and approve the fee 

agreement; (2) its authority to appoint a “minor’s counsel” in the DV matter; 

(3) whether the matter was stayed pending the outcome of the appeal. It 

emphasized that it would be hearing legal arguments and told the parties 

there would be “[n]o testimony, legal briefing only. . . .” 

However, after hearing arguments from counsel, the court commented 

that it had to be satisfied that A.F. was competent to select counsel and had 

capacity contract, and it had to approve the contract. Thus, it needed to 

interview A.F. It asked A.F. to appear that afternoon. 

That afternoon, A.F. appeared, and the court asked what she 

understood about Castro’s disqualification due to conflict of interest. The 

court told A.F. it had to decide if she had “a good enough understanding of 

what a contract with an attorney would mean,” so it was going to ask her 

some questions. It asked how she met her attorney, who else she spoke with, 

whether she met with or interviewed more than one possible attorney, and 

what she understood from reading the contract with Smith. It asked A.F.

what Smith was hired to do, what role A.F. understood Grandfather to play 

in the agreement, and what A.F. would do if she had a disagreement with her 

attorney. 

Because there was no GAL at this point in the proceedings and the 

court expressly prohibited Smith from meeting with A.F. before it ruled on 

the fee agreement, Smith presumably did not meet with A.F. to help her 
24

prepare for the interview. Further, while the court did not expressly prohibit 

Grandfather or Mendez from explaining to A.F. why the court wanted to 

interview her, it instructed them to tell A.F. she did not need to be nervous 

because the court was “just going to chat” with her, without reference to the 

substance of the conversation. When A.F. appeared, the court asked her if 

she had an understanding about why the court wanted to meet with her, 

suggesting the court expected A.F. to know the purpose of the interview. A.F.

was uncertain; she asked the court to explain the reason for their meeting. 

While A.F. knew about the pending hearing and the issues the court planned 

to consider, this series of events suggests A.F. did not have notice that she 

would need to appear personally or of the reason for her appearance.

A.F. and Smith knew the hearing would address her legal 

representation in the DV matter, and Smith argued the merits of her position 

at the hearing. To the extent that A.F.’s position is that she should have 

received notice regarding the interview in advance of the hearing date, it is 

not clear how that would have changed the outcome. She implies that her 

answers to questions could have been different with preparation from Smith, 

but we note the point of the interview was to determine what A.F. knew and 

understood on her own. Further, even if her attorney could have objected to 

the court’s specific questions during the interview, A.F. does not explain how 

those objections would have led the court to a different conclusion. Although 

interviewing A.F. without A.F. knowing the purpose or topic of the interview 

was inappropriate, any due process violation resulting from problems with 

the notice did not prejudice A.F. (See Chapman v. California (1967) 386 U.S. 

18; In re Stacy T. (1997) 52 Cal.App.4th 1415, 1425 [identifying standard for 

evaluating due process violation].)
25

We also do not find persuasive A.F.’s contention that the court’s 

questions had little relevance to her capacity to contract. She does not 

develop this argument, but the court’s questions suggest it considered many 

of the factors raised in Probate Code sections 811 and 812, which address 

capacity to make decisions. In particular, the court’s questioning about her 

understanding of particular legal terms, like “retainer,” as well as her 

understanding of why her first attorney was disqualified relate to her 

information processing skills, including the ability to reason logically and use 

abstract concepts. (See Prob. Code, § 811, subd. (a)(2).) Further, her 

responses regarding how she came to hire Smith, how she would go about 

evaluating whether to hire a particular attorney, and how she would fire an 

attorney relate to whether she can plan, organize, and carry out actions in 

self-interest. (Ibid.) These questions also addressed whether A.F.

understood her rights, duties, and responsibilities under the contract she 

signed, as well as the risks associated with hiring an attorney or alternatives 

to hiring Smith. (Id., § 812, subds. (a), (c).)

F. Appointment of GAL

A.F. offers an additional reason Smith should not have been 

disqualified: the subsequent removal of Mendez as “minor’s counsel” in the 

DV matter and appointment of a GAL. A.F. explains the court’s subsequent 

appointment of a GAL could make the disqualification of Smith moot, 

because a GAL has the authority to waive conflicts of interest on a minor’s 

behalf. However, the appealed order states that Smith “cannot represent 
26

[A.F.] in this proceeding,” and nothing before us indicates that has changed.9 

Further, after the appointed GAL passed away, the court declined to appoint 

a new GAL.10 

We observe that Code of Civil Procedure section 372, 

subdivision (b)(1)(C) permits a 12 year old to appear without a guardian, 

counsel, or GAL to seek a restraining order, but it also grants the court 

discretion to appoint a GAL to assist the minor in obtaining the order. Given 

the court’s findings regarding A.F.’s lack of competency to retain counsel on 

her own behalf, the appointment of a GAL to represent A.F.’s interests seems

prudent if not necessary. As A.F. notes, a GAL oversees litigation-related 

interests: “ ‘In the adversarial context, the guardian ad litem’s function is to 

protect the rights of the [minor], control the litigation, compromise or settle 

the action, control procedural steps incident to the conduct of the litigation, 

and make stipulations or concessions in the [minor] person’s interests. 

[Citation.] In such cases, the guardian ad litem’s role is “more than an 

attorney’s but less than a party’s” [Citation.]’ ” (A.F. v. Jeffrey F., supra, 79 

Cal.App.5th at p. 747, quoting In re Charles T. (2002) 102 Cal.App.4th 869, 

875-876.) Here, where the court concluded A.F. was not competent to select 

her own attorney or to waive any potential conflicts of interest, the court 

9 The minutes stated the court would “appoint another attorney for [A.F.] 

in the dissolution case,” and noted the objection to the appointment of one in 

the DV matter. This information, in addition to the statements made in 

A.F.’s supplemental “Suggestion of Mootness” motion, indicates there is no 

longer a “minor’s counsel” in the DV matter. 

10 We grant A.F.’s motion to augment the record to include the court’s 

order denying the request to appoint her grandmother as GAL after her 

grandfather’s death. The elimination of a GAL places any issues that could 

have been potentially mooted by the GAL’s decision-making authority back in 

controversy.
27

should have appointed a GAL to protect A.F.’s rights and control the 

litigation. The subsequent removal of a GAL seems to contradict the court’s 

earlier conclusion regarding A.F.’s competency without any corresponding 

finding that A.F.’s competency has changed.

DISPOSITION

The portion of the order appointing a “minor’s counsel” in the DV 

matter, case No. 21FDV01528N, is reversed. The portion of the order 

prohibiting Smith from representing A.F. in the DV matter is reversed. In all 

other respects, the order is affirmed. We express no opinion regarding 

whether Smith’s disqualification or removal would be appropriate for some 

other reason. 

HUFFMAN, Acting P. J.

WE CONCUR:

IRION, J.

DO, J.