Lead Opinion
Opinion
Real parties in interest Crystal B., Steven G., and Anita G. (hereinafter Minors) have asserted personal injury claims against County of Los Angeles (County) for the physical and psychological abuse they allegedly received while placed in foster care. County denied their application to file late tort claims under the relevant provisions of what is popularly, albeit
County challenges this ruling, contending that even though Minors did not have a guardian ad litem while dependents of the court, the appointed independent counsel (IC), assigned by the juvenile court to act on their behalf by pursuing all potential tort claims against third parties, was the equivalent of a guardian ad litem.
For the reasons discussed below, we conclude that the trial court did not err, and made the appropriate disposition to allow Minors’ civil suit against County to proceed.
Factual and Procedural History
Minors were removed from their parents’ custody and control in 1991, and placed in the licensed foster home of Sandra Rodriguez. In 1996, they were returned to the physical custody of their parents, but their status as dependent minors did not end until January 23, 1998. In May 1997, while living with their parents but still wards of the juvenile court, Minors disclosed to their therapist that between 1991 and 1996, while in foster care, they had been the victims of serious abuse.
On January 7, 1998, pursuant to Welfare and Institutions Code section 317, subdivision (e), the juvenile court appointed IC for the then-still-dependent Minors. The order expressly stated that the IC were appointed
Apparently, the IC never filed any claim or complaint on Minors’ behalf. At some point, Minors obtained new counsel and, over one year later, on January 25, 1999, the new counsel filed an application with County requesting leave to present Minors’ tort claims. The application alleged that, while in the licensed foster home of Sandra Rodriguez from 1991 to October 1996, Minors sustained a number of physical and mental injuries due to alleged abuse and neglect. The claim alleged that County was liable for Minors’ injuries because of DCFS’s negligent supervision and monitoring of the Rodriguez foster home. It also outlined Minors’ history in terms of whose custody and control they had been under during the relevant time periods, and when and to whom Minors first revealed the abuse.
On March 11, 1999, County denied the application to present minors’ tort claims as untimely. Minors petitioned the trial court for relief from the claim-filing requirements on October 5, 1999.
County then filed a petition for writ of mandate with this court to challenge the trial court’s ruling. We issued a stay of all proceedings and an alternative writ of mandate. In response to the alternative writ, the trial court vacated its ruling and denied Minors’ petitions. Nevertheless, because the issue raised by the petition is of general public interest, likely to recur, and also likely to be dispositive of Minors’ claims against other parties to the superior court action, we have retained jurisdiction and decide the issue despite the fact that the trial court vacated its earlier ruling in response to the alternative writ. (See Davies v. Superior Court (1984)
Contentions on Appeal
County contends that the trial court erred in granting the petitions because Minors failed to present their late claim application within one year of the accrual of their causes of action, and takes the position that Minors’ causes of action accrued on January 7, 1998, the date IC was appointed. County further contends that the juvenile court appointed IC specifically to investigate and pursue potential third party personal injury actions and to protect Minors’ interests, and thus the IC were the functional equivalent of a guardian.
Minors, on the other hand, argue that the time within which to present a claim was tolled until their dependency status was terminated on January 23, 1998. They contend that even though they had court-appointed IC to pursue their tort claims against County, it was necessary for the juvenile court also to appoint a guardian ad litem to prosecute any civil proceeding. In other words, according to Minors, the time within which they were required to act was tolled during the time that they had no parent or guardian legally authorized to act on their behalf. Thus, Minors claim that the trial court was correct in granting their application for relief from the claim-filing requirements.
Discussion
1. Time Within Which Claims Must Be Presented
Under the Act (§ 810 et seq.), a person may sue a public entity for damages only if he or she first presents a claim to the public entity within six months of the claim’s accrual, and if the entity has acted upon the claim or the claim is deemed rejected. (§§911.2 & 945.4; Draper v. City of Los Angeles (1990)
2. Minors’ Application to Present Late Claims Was Presented Within One Year of the Accrual of Their Causes of Action, and Thus Was Timely
It would be overly simplistic to conclude, based on the above quoted language of section 911.4, subdivision (c) that, pursuant to section 911.4, subdivision (b), the one-year time period within which to present an application to file a late claim is not tolled simply if the claimant is a minor, without regard to any other consideration, and that it is tolled simply if the claimant is any claimant, regardless of age, so long as the claimant is both mentally incapacitated and without a guardian or conservator. In fact, such is not the case.
It is not a claimant’s minority, per se, nor the legal and practical impairment associated with minority, that affects the tolling. That is because “it is not the knowledge or lack thereof of the minor [as to the basis for a claim], but the knowledge or lack thereof of the minor’s parents which determines the time of accrual of the cause of action.” (Whitfield v. Roth (1974)
In other words, the law regards any minor, mentally incapacitated or not, so long as he or she is in the custody and under the control of his or her parents, as being under the care of a guardian within the meaning of section 911.4, subdivision (c). But what of a minor who, whether or not mentally incapacitated, is not in the custody and under the control of his or her parents? Who then is authorized to act in the minor’s interests in the same way as a parent or guardian?
Here, of course, the viability of County’s position depends upon our conclusion that independent counsel in general, and, in. particular, the IC here, was authorized to act in these Minors’ interests in the same way, and as to the same scope, as a parent or guardian. When the question presented by this petition is reduced to this simple issue, the answer becomes apparent: independent counsel, no more than any other provider of a specialized service, such as a doctor, dentist, or therapist, does not, and cannot, represent a minor’s interests in the same way, and as to the same scope, as either a parent or guardian.
Here, Minors’ parents had no legal right to custody and control of Minors until the dependency case ended on January 23, 1998. Nor, for that matter, did the IC have the legal right to Minor’s custody and control. Officially, as dependent minors, Minors’ legal custody and control was in the hands, metaphorically speaking, of the juvenile court, and, practically speaking, the juvenile court simply cannot personally monitor all the needs of the many dependents under its custody and control. It relies on the County, through the DCFS to discharge that function. It is patently obvious, however, that DCFS, as the department of County responsible for the proper care of Minors, was not a proper agency to oversee the IC appointed to investigate and consider whether to file litigation against such agency. Nor, for that matter, because
A guardian ad litem is an officer of the court appointing him or her (Sarracino v. Superior Court (1974)
County urges that the IC here were, for all intents and purposes, the equivalent of a guardian ad litem. As noted above, the juvenile court appointed IC pursuant to Welfare and Institutions Code section 317, subdivision (e) to represent Minors “in all potential third party personal injury . . . claims and probate matters on minor’s [szc] behalf,” and required IC to “provide reports to both the court and the minors’ dependency court attorney
While it is true that Welfare and Institutions Code section 317, subdivision (e) currently provides, and provided at all relevant times, that appointed counsel “shall investigate the interests of the child beyond the scope of the juvenile proceeding and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings” (italics added), this duty imposed on IC cannot be said to charge IC with the same responsibilities as a guardian ad litem. In fact, in 1998, the Legislature added the following sentence to section 317, subdivision (e): “The attorney representing a child in a dependency proceeding is not required to assume the responsibilities of a social worker and is not expected to provide nonlegal services to the child.” (Assem. Bill No. 2316 (1997-1998 Reg. Sess.), enacted as Stats. 1998, ch. 900, § 2.) In connection with amending section 317 to add this language, Assembly Bill No. 2316 noted that “[ujnder existing law, the attorney appointed to represent a dependent child is required to be given access to all records relevant to the case that are maintained by state or local public agencies, [f] This bill would require all information requested from a child protective agency regarding a child who is in protective custody or from a child’s guardian ad litem, to be provided to the child’s counsel within 30 days of the request.” (Legis. Counsel’s Dig., Assem. Bill No. 2316 (1997-1998 Reg. Sess.) par. (2), italics added.) In other words, the Legislature has always seen counsel appointed under section 317 as being only legal counsel, and not as a replacement for either DCFS or a guardian ad litem.
3. The Trial Court Did Not Abuse Its Discretion by Granting Minors’ Petition to Be Relieved from the Claim-filing Requirement
If a claim is denied, section 946.6 provides that the party may petition the court for an order relieving the party from the claim-filing requirement. Pursuant to section 946.6, subdivision (c), the court must grant the petition if it finds that the application (1) was made within a reasonable time not to exceed that specified in section 911.4, subdivision (b), in other words, one year after the accrual of the cause of action; (2) was denied or deemed denied; and (3) was late for one of the reasons specified in section 911.6, subdivision (b). (Kagy v. Napa State Hospital (1994)
A trial court has broad discretion in ruling on a petition for relief from the claim-filing requirement as long as the issue is whether the late claim was presented within a “reasonable time” not to exceed one year after the accrual of the cause of action. (See Kagy v. Napa State Hospital, supra, 28
Cases that have dealt with the tolling aspects of section 911.4, subdivision (b) suggest that the one-year time period within which to present a late claim will be tolled when the claimant does not have a representative capable of representing his or her interests. In other words, the cases indicate that the purpose of the tolling provisions is to ensure that the claimant is properly represented by one authorized to act on his or her behalf. For example, in Hernandez v. County of Los Angeles, a claim was not timely filed on behalf of a minor suffering profound mental retardation and severe physical handicaps allegedly caused by negligent medical care at a county hospital immediately before, during and after his birth. The minor argued that because he was mentally incapacitated during the entire time period of his injury, the time for presenting a late claim was tolled until his mother was appointed as his guardian ad litem. The court disagreed, concluding, “By explicitly providing that the ‘time during which the person who sustained the alleged injury . . . is a minor shall be counted’ ... for purposes of the late-claim filing period, the Legislature has clearly indicated that it did not intend to authorize the filing of a claim on behalf of a child many years after the accrual of his cause of action. [Citation.] With respect to such an injured child, the Legislature evidently concluded that it was reasonable to expect that a late-claim application would be filed on his behalf by a parent or another adult responsible for the child’s care within one year of the accrual of his cause of action.” (Hernandez v. County of Los Angeles, supra,
Therefore, the Hernandez court concluded that formal appointment of a guardian ad litem is not a prerequisite before a minor’s tort claim under the
The facts in both the Hernandez and the Reyes case are readily distinguishable from the facts here, because Minors here had no parent, or legal parent equivalent such as a guardian, legally capable to act on their behalf. Two other cases, Kagy v. Napa State Hospital, supra,
In the present case, Minors contend that IC appointed by the juvenile court was insufficient or incapable of acting on their behalf without a formally appointed guardian ad litem. As our discussion above reflects, we agree. The IC could act in terms of actually prosecuting an action on Minors’ behalf, but Minors could not appear in court except by and through a guardian ad litem, and section 911.4 presupposes claims must be presented by a parent, guardian or conservator. The IC are not appointed as guardians, guardians ad litem, or conservators, and the role of counsel appointed for a special litigation project on the one hand, and the role of parent, guardian, guardian ad litem, and conservator on the other, are simply not equivalent. In fact, the two roles may present a conflict of interests: parents, guardians,
Here, for example, practically speaking, if IC was knowingly not actually representing Minors’ best interests, IC was not likely to complain about such misconduct to the juvenile court, and if IC was doing so negligently, then presumably the IC would not even be aware of the need to complain. Thus, the juvenile court’s appointment of IC under Welfare and Institutions Code section 317, subdivision (e) did not take the place of appointing a guardian ad litem for purposes of Government Code section 911.4, subdivisions (b) and (c), and the case law construing those subdivisions.
Our holding is not only in keeping with the language of the relevant statues and case law, but also serves the salutary purpose of not penalizing dependent minors in general for the omissions, if any, of their appointed counsel during periods when no parent or guardian is charged with the oversight of appointed counsel’s conduct. This result is also in keeping with the cases that indicate that the Legislature intends to accord special solicitude to the claims of an injured minor by requiring courts to protect minors from the neglect or ignorance of the adults in charge of their legal claims “so long as the application is filed with the entity within one year of the accrual of the cause of action,” and so long as there is actually an adult specifically charged with protecting the minors’ overall interests above all else. (Hernandez v. County of Los Angeles, supra, 42 Cal.3d at pp. 1028-1029; see also Tammen v. County of San Diego (1967)
The alternative writ heretofore issued on March 13, 2000, is discharged. The petition for writ of mandate seeking reversal of the trial court’s original order granting Minors’ petition is denied. However, because the trial court has already responded to our alternative writ by vacating its original order, and has entered a new order denying Minors’ petition, a writ of mandate shall issue directing the trial court to vacate such subsequent order and to reinstate its original order granting Minors’ petition. Minors are entitled to file their civil action despite County’s denial of their application to present a late claim. The stay heretofore issued on March 13, 2000, shall be vacated as of the date the remittitur is filed herein. Costs are awarded to Minors.
Klein, P. J., concurred.
Notes
The California Tort Claims Act is found at division 3.6 of title 1 of the Government Code. All further statutory references are to the Government Code, except as otherwise indicated.
The appointment of counsel for the minors was made by the trial court pursuant to Welfare and Institutions Code section 317, subdivision (e).
The following facts are taken from the clerk’s transcript, and from the allegations of Minors’ tort claim and complaint.
The abuse allegedly included beatings and malnutrition, being forced to Uve in a house infested with cockroaches, and being infected by lice. Minor Crystal further claimed that she attempted suicide by an overdose of pills, was hospitalized, but then was returned to the Rodriguez home where she continued to suffer depression and anxiety. Minor Anita also claimed that Rodriguez’s husband broke her hip when she was three years old, and that the injury required a body cast for eight weeks.
Minors, by and through their mother acting as guardian ad litem, also filed a complaint in the superior court raising the same tort claims against County, Sandra Rodriguez, and numerous County employees, and others.
The parties agree that Minors are not mentally incapacitated, to the extent such term implies mental retardation or some form of mental impairment not simply associated with lack of understanding because of an immature age.
Section 911.4 was amended in October 1999 to add subdivision (d), which provides further tolling of the one year period if the claimant “is detained or adjudged to be a dependent child of the juvenile court” and if certain conditions are met. Minors’ counsel does not dispute that subdivision (d) is inapplicable in this case because it was enacted after Minors had filed their late claim and after County rejected it.
As to the time frame within which a guardian should have been appointed, Code of Civil Procedure section 373, subdivision (a) only provides that a guardian ad litem must be appointed before a summons is issued. The obvious purpose for appointment of a guardian before a summons is issued is to make sure that the guardian is in place to review and oversee counsel’s initial work on behalf of the minor. Therefore, it logically follows that when the filing of a claim is a prerequisite to bringing suit (and hence to the issuance of a summons), a guardian ad litem also must be appointed before any claim must be filed. (Civ. Code, § 3511 [“Where the reason is the same, the rule should be the same”].)
Nor is the case of Akkiko M. v. Superior Court (1985)
The fact that IC, rather than DCFS, controls litigation and represents the litigation-related interests of dependent minors, does not mean that IC actually takes the place of a guardian ad litem to the extent a guardian ad litem is charged with making sure that the IC is vigorously representing the minor’s interests. Counsel, not the client, always controls any litigation. {People v. Masterson (1994)
Dissenting Opinion
I respectfully dissent. I would grant the petition because the facts of this case show the juvenile court’s appointment of independent counsel under Welfare and Institutions Code section 317, subdivision (e) was for the express and specific purpose of pursuing all potential third party personal injury claims on behalf of the dependent minors. Thus, because independent counsel were properly authorized and capable of pursuing the minors’ tort claims, the time to present such claims was not tolled beyond the date counsel were appointed.
1. The Time for Filing a Tort Claim Is Tolled Only When There Is Inadequate Representation.
The County of Los Angeles (County) contends the minors failed to present their late claim within one year of the accrual of their cause of action, i.e., within one year from the appointment of independent counsel on January 7, 1998. The minors, on the other hand, contend that even though they had court-appointed independent counsel to pursue their tort claims, it was necessary for the juvenile court to appoint a guardian ad litem to prosecute such claims.
The central issue in this case is whether the minors’ tort claims against the County were tolled by virtue of the juvenile court’s failure to appoint a guardian ad litem despite the fact that it appointed independent counsel to pursue such claims on their behalf. Cases that have dealt with the tolling provisions of the California Tort Claims Act—Government Code section 911.4, subdivision (b)
For example, in Hernandez v. County of Los Angeles (1986)
Thus, Hernandez found that formal appointment of a guardian ad litem is not necessary to present a governmental tort claim. If a minor has a parent or another adult responsible for the child’s care, that minor may not invoke the tolling provisions because that person can present a claim on the minor’s behalf. Summarizing the Hernandez conclusion, we stated, “[t]he fact that a minor is not permitted to prosecute a claim through the courts without a guardian ad litem does not alter [the result in Hernandez], and the time for filing a late claim is not tolled until the minor’s parent is formally appointed guardian ad litem by a court.” (Reyes v. County of Los Angeles (1988)
In Kagy v. Napa State Hospital, supra,
The minors essentially argue that independent counsel appointed by the juvenile court was not capable of acting on their behalf without a formally appointed guardian ad litem. Thus, the minors contend that their claims accrued on January 23, 1998, when their dependency status terminated. But as the case law indicates, a minor does not need a guardian ad litem in order to file a governmental tort claim, as opposed to a civil action, as long as that minor has a parent or another adult responsible for his or her care who can file a tort claim on his or her behalf. As a result, the significant issue here is whether the juvenile court’s appointment of independent counsel under Welfare and Institutions Code section 317, subdivision (e) is consistent with the purposes of Goverment Code section 911.4, subdivision (b), and the case law construing it.
2. Independent Counsel Were Authorized and Knowledgeable Representatives.
Welfare and Institutions Code section 317 gives the juvenile court authority to appoint counsel to represent “the parent, guardian, or [minor] at the detention hearing and at all subsequent proceedings before the juvenile court.” (Welf. & Inst. Code, § 317, subd. (d).) Subdivisions (c) and (e) provide, however, a much more expansive role of appointed counsel for the minor that extends beyond the dependency proceedings.
If the juvenile court finds that the minor will “benefit from the appointment of counsel,” the court must appoint counsel to represent the minor’s interests. (Welf. & Inst. Code, § 317, subd. (c).) Such counsel cannot represent another party or the county agency whose interests conflict with the minor’s interests. (Ibid.) Subdivision (c) also provides that “[a] primary responsibility of any counsel appointed to represent a [minor] pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the [minor].” Subdivision (e) further provides: “The counsel for the [minor) shall be charged in general with the representation of
In Akkiko M. v. Superior Court (1985)
Therefore, independent counsel appointed under Welfare and Institutions Code section 317, subdivision (e), has broad duties to represent the dependent minor’s best interests, including interests outside the scope of the juvenile proceeding. In addition, the juvenile court has broad authority and responsibility to “take whatever appropriate action is necessary to fully protect the interests of the [minor].” (Ibid.) The broad duties of appointed counsel are, I believe, consistent with and substantially equivalent to the role of a guardian ad litem, at least with respect to filing a governmental tort
In the present case, the juvenile court expressly granted independent counsel the authority and responsibility to investigate and pursue tort claims against third parties. The juvenile court file in this case shows the juvenile court’s order of January 7, 1998, appointing independent counsel for the minors was directly prompted by reports filed with the juvenile court. Those reports indicated that the minors had alleged abuse by their foster mother, Sandra Rodriguez. For example, a July 25, 1997, Judicial Review Report disclosed that in May 1996, “all three minors had disclosed possible abuse by a foster mother alleged to have occurred while they were [sic] foster care.” The report further disclosed that all three minors were interviewed by a social worker from the department of children and family services (DCFS) who agreed that such abuses did occur. As a result of this report, on July 25, 1997, the juvenile court ordered DCFS to investigate the foster home and provide an incident report. Even though the minors already had counsel representing them within the context of the juvenile court proceedings, the juvenile court subsequently appointed independent counsel to protect the minors’ interests with respect to their tort claims.
By ordering appointed counsel to “provide reports to both the court and the minors’ dependency court attorney on the progress of the case on a regular basis,” the juvenile court expected that counsel would take all the appropriate steps necessary to protect the minors’ tort claims against third parties. In the words of the statute, by appointing independent counsel to pursue the minors’ tort claims, the trial court took the “appropriate action . . . necessary to fully protect the interests of the [minor].” (Welf. & Inst. Code, § 317, subd. (e).)
To hold that the appointed counsel in this case were not authorized or adequate to pursue tort claims against the County would not only ignore the broad duties of independent counsel under Welfare and Institutions Code section 317 and the express provisions of the juvenile court’s order appointing such counsel, but would also ignore the policy behind Government Code section 911.4. The purpose behind section 911.4 is to protect a governmental entity from having to respond to a claim many years after the accrual of the action. (Hernandez, supra,
I realize that rejecting the minors’ tolling argument would effectively penalize them because a timely claim was not filed on their behalf. However, while the cases indicate that the Legislature intended to accord special solicitude to the claims of an injured minor so that a court may not attribute to the minor the neglect or ignorance of his or her parents or attorney, such special solicitude is applicable only “so long as the application is filed with the entity within one year of the accrual of the cause of action.” (Hernandez, supra,
3. Conclusion.
In Hernandez, the court held the one-year claims period under section 911.4 is not tolled if a mentally incapacitated minor has parents capable of acting on his or her behalf. In other words, according to our Supreme Court, “a parent or another adult responsible for the child’s care” is expected to file a claim on behalf of a minor within the jurisdictional time constraints of section 911.4. (Hernandez, supra,
Unlike Kagy v. Napa State Hospital, supra, 28 Cal.App.4th at pages 6-7, or Favorite v. County of Los Angeles, supra, 68 Cal.App.4th at pages 840-841,
Petitioner’s petition for review by the Supreme Court was denied November 28, 2001. Chin, J., did not participate therein.
further statutory references are to the Government Code.
The majority distinguish Akkiko M. by concluding that even though independent counsel controls litigation and represents the litigation interests of dependent minors, such counsel does not actually take the place of a guardian ad litem. But neither section 911.4 nor the case law requires a guardian ad litem before a minor can present a tort claim. As already discussed, the case law merely requires an adult responsible for the minor who is authorized and capable of protecting the minor’s interests.