201 Cal. App. 4th 388
Cal. Ct. App.2011Background
- Nicole H. (minor) in Modoc County Dependency case; petition under §300 alleging emotional damage; detention and custody with father/stepmother; trial counsel sought appointment of separate GAL to oversee potential tort claim against county or independent counsel for pro bono/contingency basis; CASA appointed but no explicit GAL role; court denied request; on appeal, court reverses and remands for proper GAL and independent counsel appointment with expeditious timing.
- Briggs, minor’s counsel, sought out-of-county tort attorney on contingency or pro bono basis to investigate/bring claim; relied on San Diego County and County of Los Angeles cases; concerns about conflicts with county contract.
- CASA appointed as “special advocate” but not as guardian ad litem for potential tort action; no written explicit duties or authorization to investigate/prosecute the tort claim.
- Court observed distinctions between guardian ad litem in dependency vs adversarial contexts; CASA can serve as GAL only if expressly appointed for tort action, with duties delineated.
- Statutory and rule framework (Welf. & Inst. Code §§317, 326.5; Gov. Code 911.4; Rules 5.660, 5.662) require explicit GAL appointment for tort action, and independent counsel must be appointed pro bono/contingency; time tolling depends on GAL appointment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must court appoint a separate guardian ad litem for a potential tort claim against the county? | Briggs argued for independent GAL oversight of tort action. | Department raised no dispute; court had discretion. | Yes, a separate GAL must be appointed. |
| Can a CASA serve as guardian ad litem for the tort action if expressly appointed? | CASA could act as GAL if specifically designated for tort matters. | CASA was not expressly directed to oversee tort action. | CASA may serve as GAL only with explicit appointment and duties. |
| Should independent counsel be appointed for the tort action and who selects them? | Independent counsel should be appointed on pro bono/contingency basis to investigate and pursue claim. | Dependency counsel should not be compelled to provide tort representation. | Yes; guardian ad litem may seek counsel or court may appoint counsel; appointment must be expeditious. |
| What about timing and tolling concerns under Government Code 911.4? | Protection for minor’s tort action requires timely GAL appointment; tolling depends on appointment. | Delay could prejudice county; no explicit counter-argument in record. | Appointment must occur promptly to toll or preserve timely action. |
Key Cases Cited
- San Diego County Dept. of Social Services v. Superior Court, 134 Cal.App.4th 761 (Cal. Ct. App. 2005) (held GAL must oversee potential tort action and CASA can be used but must be explicit)
- County of Los Angeles v. Superior Court, 91 Cal.App.4th 1303 (Cal. Ct. App. 2001) (independent counsel cannot substitute for GAL; need GAL to oversee tort action)
- In re Charles T., 102 Cal.App.4th 869 (Cal. Ct. App. 2002) (distinguishes guardian ad litem roles in dependency vs adversarial contexts)