MOTION – OTHER: FOR AN ORDER TO DISCHARGE GUARDIAN AD LITEM
Rebecca Guyette’s motion to be discharged as guardian ad litem is granted.
Procedural Background
Plaintiffs Christopher J. Emge and Kimberly Emge (the “Emges”) allege that they own real property adjoining the property at 421 The Alameda (the “Property”) owned by the Mary F. Bundschu Revocable Trust, dated March 21, 1989 (the “Trust”). Defendant Ellen B. McKnight (“Ellen”) has been the Trustee of the Trust for at least some of the relevant time period. Ellen’s brother, Defendant Philip Bundschu II (“Phil”), resides at the Property. The Emges allege that since Phil moved onto the Property in 2003, he has had outbursts that communicate violence, aggressiveness, hostility and anger, often when facing the Emges’ property. The Emges assert causes of action for private nuisance, public nuisance, and nuisance per se.
On April 8, 2025, the Court appointed Rebecca Guyette as guardian ad litem for Phil.
The Emges filed an Amendment to their Complaint on June 26, 2025.
On January 8, 2026, Ellen’s daughter filed a declaration advising that the Trustee was not competent and that a successor trustee would be appointed through the probate process. The status of that process as of the date of this ruling is unclear.
On November 19, 2025, Ms. Guyette filed a motion to recover attorney’s fees under Probate Code Section 1003(c). Ms. Guyette argued among other things that payment of her fees should be split equally between the Trust, which authorizes expenditures for Phil’s benefit, and by the Emges because they were the parties who asked for the appointment of a guardian ad litem. Both the Trust and the Emges opposed the motion. On March 2, 2026, the Court entered
an Order denying Ms. Guyette’s motion on the ground that there was no authority for the Court to award the requested fees.
On May 14, 2026, Ms. Guyette filed an ex parte application to be discharged as guardian ad litem. On June 24, 2026, the Court continued the matter for a hearing on July 15, 2026.
The Emges have filed an Opposition to Ms. Guyette’s request. The Trustee has not filed any response.
On July 2, 2026, Ms. Guyette filed a proof of service showing that copies of her moving papers were posted on Phil’s property on June 28, 2026. Another proof of service shows that copies were also mailed to Phil at the property on June 24, 2026.
Request for Judicial Notice
Ms. Guyette’s request for judicial notice of the Emges’ opposition to her motion for payment of fees (Exhibit A), the Emge’s ex parte application for appointment of guardian ad litem (Exhibit B), and Ms. Guyette’s declaration in support of the ex parte application (Exhibit C) is granted. (
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Discussion
Ms. Guyette seeks to be discharged as guardian ad litem because otherwise she will be forced to continue to provide services for free, without payment for her own time or for her attorney’s time. She argues that it was the Emges who requested her appointment, and the declaration the Emges submitted to support their request – a request which was not opposed by the Trustee – stated her hourly rates for her services. As a result, the parties were aware of an expectation of compensation. Ms. Guyette also argues that there does not appear to be any presently available source of payment for Phil’s ongoing legal representation as Phil does not actually own the property (but rather is authorized to live there under the Trust) and is not entitled to receive sale proceeds from the property.
Further, the Trustee has expressly refused to use Trust assets to compensate Ms. Guyette or her counsel and has indicated that she does not intend to seek court authorization to terminate Phil’s life estate, sell the property, reform the Trust, or otherwise pursue probate court relief that could allow for the use of Trust-related assets to pay Phil’s legal expenses. The Emges have also refused to contribute to payment for Ms. Guyette’s fees.
The Emges argue that the Court should deny Ms. Guyette’s motion because if Ms. Guyette is allowed to withdraw, Phil would be left without representation only months before trial. The Emges also argue that the Trust or the property insurer should pay Ms. Guyette’s fees and her attorneys’ fees so that Ms. Guyette can continue to act as guardian ad litem.
Ms. Guyette’s motion is granted. The Court will not require Ms. Guyette to serve as guardian ad litem without any compensation for her services. The Emges were the parties requesting the appointment of Ms. Guyette as guardian ad litem and submitted a declaration from her in which she stated the hourly rates for her services. The Emges cannot, therefore, express in good faith any surprise that Ms. Guyette would seek to be paid for her services, or frustration
with Ms. Guyette for not providing services in a complicated case free of charge. As the party seeking the appointment, the Emges could have avoided this situation by clarifying the terms of the appointment with Ms. Guyette before filing their motion. Further, while the Emges argue that the Trust should pay for Ms. Guyette’s services, the Trustee has opposed this request and the Court already denied Ms. Guyette’s request that the Trust pay for those services. The Court will also not require the property insurer to pay for these services as the insurer is not a party in this case and has had no opportunity to respond to this proposal.
The Court declines to condition Ms. Guyette’s discharge on the appointment of a successor guardian ad litem, without an agreement in place first as to payment for the successor, as this would simply result in the same situation that currently exists.
The Court understands the unusual circumstances present in this case and sympathizes with all parties involved, but it will not compel Ms. Guyette to continue providing her services without compensation. The Court urges the parties to meet and confer to see if they can come to some kind of solution regarding a representative for Phil in this action and payment for that representative’s services.
All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.
The Zoom appearance information for July, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1
Meeting ID: 161 548 7764 Passcode: 502070
If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov