COUNTY OF LOS ANGELES v. Crystal B., a Minor, etc., et al., Real Parties in Interest.

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Court of Appeal, Second District, Division 3, California.

COUNTY OF LOS ANGELES, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Crystal B., a Minor, etc., et al., Real Parties in Interest.

No. B137358.

Decided: November 29, 2000

Collins, Collins, Muir & Traver, John J. Collins, Pasadena, Michael M. Bergfeld, Los Angeles, and Tomas A. Guterres, Pasadena, for Petitioner. No appearance, for Respondent. Pate & Pate and Linda Wallace Pate, for Real Parties in Interest.

INTRODUCTION

In this case we hold that the time period within which a dependent minor must file a claim against a public entity under California's Tort Claims Act begins when a juvenile court appoints independent counsel pursuant to Welfare and Institutions Code section 317, subdivision (e), for the purpose of pursuing the minor's tort claims.

Real parties Crystal B., Steven G., and Anita G. (hereinafter the minors) asserted personal injury claims against the County of Los Angeles (County) for physical and psychological abuse they allegedly received while placed in foster care.   The County denied their application to file late tort claims under the Tort Claims Act (Gov.Code, § 900 et seq., hereinafter the Act).1  The minors then petitioned the trial court for relief from the claim-filing requirements of the Act. They argued that their claims did not accrue while they were dependent minors with no guardians ad litem or parent to protect their interests.   The trial court granted the petitions and allowed the minors to file a complaint against the County.   The County challenges this ruling, contending that even though the dependent minors did not have guardians ad litem, the juvenile court specifically appointed independent counsel to act on their behalf and pursue all potential tort claims against third parties.   Because the minors did not apply to file late claims with the County within one year of the appointment of independent counsel, the County argues that the minors' claims were untimely and thus the trial court erred in allowing the claims.

 An application to present a late claim against a governmental entity must be filed within one year of the accrual of the claim and a claimant's minority does not toll this one-year period.  (Gov.Code, § 911.4, subds. (b) & (c).)   We hold that the juvenile court's appointment of independent counsel under Welfare and Institutions Code section 317, subdivision (e), for the express purpose of pursuing all potential third party personal injury claims on behalf of the dependent minors caused the minors' tort claims against the County to accrue.

FACTUAL AND PROCEDURAL HISTORY

On January 7, 1998, the juvenile court appointed independent counsel for the dependent minors pursuant to Welfare and Institutions Code section 317, subdivision (e).2  The order expressly stated that attorneys Morton Shatzkin and Karen Sue Shatzkin were appointed attorneys of record to represent the minors “in all potential third party personal injury ․ claims and probate matters on minor's [sic] behalf” and were required to “provide reports to both the court and the minors' dependency court attorney on the progress of the case on a regular basis.”   The court also ordered the Department of Children and Family Services (DCFS), County counsel, the minors' dependency court attorney, and the juvenile court clerk to produce all records concerning the minors to the newly-appointed independent counsel.   Thus, the juvenile court appointed independent counsel not to represent the minors in the dependency matter, since they already had such counsel, but for the purpose of acting as their counsel in pursuing their tort claims.   The appointed independent counsel never filed a tort claim on the minors' behalf.3

In January 1999, the minors' mother retained their present counsel and on January 25, 1999 that counsel filed an application with the County requesting leave to present the minors' tort claims.   The application alleged that the minors sustained a number of physical and mental injuries from 1991 to October 1996 due to alleged abuse and neglect while in the licensed foster home of Sandra Rodriguez.   The claim included allegations that the children endured beatings and malnutrition, lived in a house infested with cockroaches, and were all infested with lice.   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.   Anita also claimed that Rodriguez's husband broke her hip at age three and that the injury required a body cast for eight weeks.   The minors claimed that the County was liable for their injuries because of DCFS's negligent supervision and monitoring of the Rodriguez foster home.

The claim presented to the County further stated that the juvenile court removed the minors from foster care and returned them to their parents in October 1996.   In May 1997, the minors told their therapist about the abuse and neglect they experienced while in Rodriguez's care.   The therapist then notified the County of the minors' allegations.   The minors contend, and the County does not dispute, that their status as dependent minors terminated on January 23, 1998.   Thus their parents gained physical custody of the minors about one year and three months before the minors' dependency status terminated.

On March 11, 1999, the County denied the claim as untimely.   The children petitioned the trial court for relief from the claim-filing requirements on October 5, 1999, almost seven months later.   In addition, through their mother acting as guardian ad litem, the minors filed a complaint in the superior court raising the same tort claims against the County, Sandra Rodriguez, and numerous County employees, among others.

The trial court granted the petitions for relief stating that “[p]laintiffs presented their claims within one year of the accrual of their causes of action as required by Cal. Government Code Section 911.4(b).   In computing the one-year period under this subdivision, the time during which the minors were mentally incapacitated and did not have a guardian or a conservator is not counted.”   All parties agree, however, that the minors are not mentally incapacitated.

 The County then filed a petition for writ of mandate with this court challenging 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 the 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 the minors' claims against other parties to the superior court action, we have retained jurisdiction and will decide the issue despite the fact that the trial court has vacated its prior ruling in response to our alternative writ.  (See Davies v. Superior Court (1984) 36 Cal.3d 291, 294, 204 Cal.Rptr. 154, 682 P.2d 349 [reviewing court may exercise jurisdiction to resolve issue of public interest that is likely to recur even after trial court has complied with the alternative writ];  In re William M. (1970) 3 Cal.3d 16, 23-25, 89 Cal.Rptr. 33, 473 P.2d 737 [reviewing court has “inherent jurisdiction” to decide issues of broad public interest even though events occurring during the pendency of the case render the matter moot].)

DISCUSSION

A. The Parties' Contentions.

The County contends that the trial court erred in granting the petitions because the minors failed to present their late claim within one year of the accrual of their cause of action, i.e., the appointment of independent counsel on January 7, 1998.   The County asserts that the juvenile court appointed independent counsel specifically to investigate and pursue potential third party personal injury actions and to protect the minors' interests.

The minors, on the other hand, argue that the time within which they were required 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 independent counsel to pursue their tort claims, it was necessary for the juvenile court to appoint a guardian ad litem to prosecute any civil proceeding.   Thus the minors claim that the trial court correctly granted their application for relief from the claim-filing requirements.

B. A Claim Must Be Presented Within One Year of Its Accrual.

 Under the Act, 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 its accrual and that entity has acted upon the claim or it has been deemed rejected. (§§ 911.2 and 945.4;  Draper v. City of Los Angeles (1990) 52 Cal.3d 502, 505, 276 Cal.Rptr. 864, 802 P.2d 367;  see also Torres v. County of Los Angeles (1989) 209 Cal.App.3d 325, 337, 257 Cal.Rptr. 211 [“[s]ubmission of a timely claim to a public agency is a condition precedent to a tort action”].)   Section 911.4, subdivision (a), provided when the trial court ruled that when a party has not filed a claim within the required six-month period, that party may file an application with the public entity for leave to present a late claim.   Section 911.4 further provided, in relevant part:  “(b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) of this chapter within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.   The proposed claim shall be attached to the application.   In computing the one-year period under this subdivision, time during which the person who sustained the alleged injury, damage, or loss is a minor shall be counted, but the time during which he is mentally incapacitated and does not have a guardian or a conservator of his person shall not be counted.”  (Italics added.) 4  Therefore, pursuant to section 911.4, subdivision (b), the one-year time period is not tolled if the person with the claim is a minor.   If, however, the injured person is mentally incapacitated and does not have a guardian or conservator, the one-year period is tolled.

The public entity must grant the application for leave to file a late claim if that application was timely filed but the claim was late for one of the reasons set forth in section 911.6, subdivision (b).   If the claim is denied, section 946.6, subdivision (a), 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) (i.e., 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) 28 Cal.App.4th 1, 4-5, 33 Cal.Rptr.2d 741.)

 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 Cal.App.4th at pp. 4-5, 33 Cal.Rptr.2d 741;  Favorite v. County of Los Angeles (1998) 68 Cal.App.4th 835, 839, 80 Cal.Rptr.2d 656;  Christopher P. v. Mojave Unified School Dist. (1993) 19 Cal.App.4th 165, 169-170, 23 Cal.Rptr.2d 353.)   When an application to file a late claim is itself not timely filed, however, the court is without jurisdiction to grant relief under section 946.6.  (Kagy v. Napa State Hospital, supra, 28 Cal.App.4th at p. 5, 33 Cal.Rptr.2d 741;  Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 488, 231 Cal.Rptr. 702.)   The reason for the one-year statutory requirement is to “protect[ ] a governmental entity from having to respond to a claim many years after the accrual of the action.”  (Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020, 1030, 232 Cal.Rptr. 519, 728 P.2d 1154 (hereinafter Hernandez);  see also Williams v. Mariposa County Unified Sch. Dist. (1978) 82 Cal.App.3d 843, 850, 147 Cal.Rptr. 452 [the time limit for filing an application with a public entity under the Act is comparable to a statute of limitations].)

C. The Time for Filing a Tort Claim in This Case Was Not Tolled.

 Cases that have dealt with the tolling provisions of section 911.4, subdivision (b), hold 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.   These 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, supra, 42 Cal.3d 1020, 232 Cal.Rptr. 519, 728 P.2d 1154, 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.”  (Id. at p. 1025, 232 Cal.Rptr. 519, 728 P.2d 1154 [italics added and omitted];  see also Kagy v. Napa State Hospital, supra, 28 Cal.App.4th at pp. 5-6, 33 Cal.Rptr.2d 741 [“Section 911.4 ․ recognizes that an injured person may choose not to apply for leave to file a late claim, but contemplates that the choice should be made by someone having the capacity to make an intelligent choice”] .)

 Therefore, Hernandez found that formal appointment of a guardian ad litem is not necessary to present a tort claim under the Act. 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) 197 Cal.App.3d 584, 593, 243 Cal.Rptr. 35.)   Consequently, while appointment of a guardian ad litem is a prerequisite to a minor filing a civil action (Code Civ.Proc., § 372, subd. (a)),5 a guardian ad litem is not necessary in order to file a tort claim under the Act.

 In Kagy v. Napa State Hospital, supra, 28 Cal.App.4th at pages 6-7, 33 Cal.Rptr.2d 741, the court held that the one-year period was tolled because the public guardian appointed for the incapacitated claimant lacked the authority to file a suit on behalf of the claimant and therefore could not adequately represent the claimant's interests.   Likewise, in Favorite v. County of Los Angeles, supra, 68 Cal.App.4th 835, 80 Cal.Rptr.2d 656, the court held the claims statute was tolled where the conservator appointed for the incapacitated claimant was incapable of acting on the claimants' behalf because the claimant could not communicate with the conservator regarding the nature and extent of her injuries.  ( Id. at pp. 840-841, 80 Cal.Rptr.2d 656.)   Consequently, tolling will be allowed if the claimant does not have a representative who is authorized to represent the claimant's interests and capable of doing so.

In the present case, 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 the minors' dependency status terminated.   But we need not reach the issue of whether the minors needed a guardian ad litem in order to file a tort claim on their behalf.   As already discussed, case law indicates that a minor does not need a guardian ad litem in order to file a tort claim under the Act, as opposed to a civil action (see Code Civ.Proc., § 372, subd. (a)), as long as that minor has a parent or another adult responsible for his or her care who can file a tort claim on their 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 section 911 .4, subdivision (b), and the case law construing it.   We hold that it is.

D. The Minors' Claims Accrued on the Date Independent Counsel Was Appointed.

 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 the minor's interests.  ․ In any case in which the minor is four years of age or older, counsel shall interview the minor to determine the minor's wishes and to assess the minor's well being, and shall advise the court of the minor's wishes.   Counsel for the minor shall not advocate for the return of the minor if, to the best of his or her knowledge, that return conflicts with the protection and safety of the minor.   In addition, counsel shall investigate the interests of the minor beyond the scope of the juvenile proceeding and report to the court other interests of the minor that may need to be protected by the institution of other administrative or judicial proceedings ․ The court shall take whatever appropriate action is necessary to fully protect the interests of the minor.”  (Italics added.)

 In Akkiko M. v. Superior Court (1985) 163 Cal.App.3d 525, 209 Cal.Rptr. 568, the court considered a minor's challenge of an order dismissing her counsel appointed under former Welfare and Institutions Code section 318.6  In reviewing the provisions of Welfare and Institutions Code section 318, which are now essentially part of section 317, the court noted as follows:  “It is apparent that many of the responsibilities normally associated with a guardian ad litem have been placed upon counsel.   In light of the duties placed upon counsel by [Welfare and Institutions Code] section 318, we reject the Department's argument that, as guardian ad litem, the Department controls litigation and retention of counsel for an abused or neglected minor.   The Legislature intended that independent counsel, not the Department in its role as guardian ad litem, would control litigation and represent the interests of the abused or neglected child.”   (163 Cal.App.3d at p. 530, 209 Cal.Rptr. 568, italics added;  see also In re Alexis W. (1999) 71 Cal.App.4th 28, 36, 83 Cal.Rptr.2d 488.  [“ ‘The role of counsel for the child [in dependency proceedings] is not merely to act as a mouthpiece for the minor ․’ ”] ) 7

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, we believe, consistent with and substantially equivalent to the role of a guardian ad litem.   As a result, the appointment of independent counsel serves the purposes of section 911.4 and the case law because the minor has a representative that is sufficiently authorized and knowledgeable about his or her interests to pursue tort claims on his or her behalf.

In the present case, the trial court expressly granted independent counsel the authority and responsibility to investigate and pursue tort claims against third parties.   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 the appropriate steps 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 trial court's order appointing such counsel, but would also ignore the policy behind 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, 42 Cal.3d at p. 1030, 232 Cal.Rptr. 519, 728 P.2d 1154.)   The statute, as interpreted by case law, accommodates a claimant by tolling the one-year provision when that claimant's interests are not adequately represented.   If we were to accept the minors' argument that they needed a guardian ad litem in order to present their tort claims against the County, independent counsel appointed for such purpose could idly sit on the minors' rights for many years simply because a guardian ad litem was not appointed.   The purpose of section 911.4 in preventing stale claims against a public entity would not be served by such a result.

 We realize that our holding in this case effectively penalizes the minors for the unexplained omissions of their appointed counsel.   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, 42 Cal.3d at pp. 1028-1029, 232 Cal.Rptr. 519, 728 P.2d 1154;  see also Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479-480, 58 Cal.Rptr. 249, 426 P.2d 753.)   If a minor has an authorized representative with knowledge concerning the claim who fails to present the claim within the one-year limitation period of section 911.4, a public entity, as well as a court, is powerless to grant relief.  (See, e.g., Hom v. Chico Unified Sch. Dist. (1967) 254 Cal.App.2d 335, 339, 61 Cal.Rptr. 920 [concluding that failure of minor's parent to present tort claims to school board within one year of injury rendered board and court powerless to grant relief under the Act];  Carr v. State of California (1976) 58 Cal.App.3d 139, 144-145, 129 Cal.Rptr. 730 [concluding that failure of parent to present tort claims on behalf of mentally incapacitated minor within one year of injury barred claims against state].)

CONCLUSION

In Hernandez, the court held that 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, 42 Cal.3d at p. 1025, 232 Cal.Rptr. 519, 728 P.2d 1154.)   Here, the trial court appointed independent counsel to act on the minors' behalf in filing tort claims against third parties.   Inexplicably, counsel failed to do so.   We see no reason why the independent counsel appointed by the juvenile court in this case occupy a different position from that of the minor's parent in Hernandez.   In both cases, a late claim is barred where the minors have adults who are capable of pursuing claims on their behalf and are authorized to do so.

Unlike Kagy v. Napa State Hospital, supra, 28 Cal.App.4th at pages 6-7, 33 Cal.Rptr.2d 741, or Favorite v. County of Los Angeles, supra, 68 Cal.App.4th at pages 840-841, 80 Cal.Rptr.2d 656, where the courts held that the one-year period was tolled because the conservator or public guardian appointed for the incapacitated claimant lacked the authority or sufficient knowledge of the claim to file a suit on behalf of the claimant, the independent counsel appointed in the present case not only had the statutory obligation to represent the minors' interests beyond the scope of the juvenile proceeding, but they also had the express authority of the juvenile court to present tort claims on the minors' behalf and keep the juvenile court apprised of the case.

We therefore hold in the present case that the trial court erred in granting the minors' application for relief from the claim-filing requirements.   The one-year period under the claim statutes is jurisdictional and a trial court has no discretion to grant relief from the claim-filing requirements where, as here, the claims were presented to the public entity more than one year from their accrual. The trial court appointed independent counsel for the specific purpose and with the express authority of acting on the minors' behalf in the investigation and pursuit of their tort claims.   To hold that a guardian ad litem or full legal custody of the parents were required before the claims began to accrue is to ignore the importance of independent counsel under Welfare and Institutions section 317 and the express order of the juvenile court in this case.

DISPOSITION

Because the trial court has already responded to our alternative writ by vacating its prior order improperly granting relief from the claim-filing requirements, we need not issue a writ of mandate.   The stay of all proceedings previously imposed by this court is lifted.   The parties shall bear their own costs.   The alternative writ is discharged.

FOOTNOTES

1.   All references are to the Government Code unless otherwise indicated.

2.   Welfare and Institutions Code section 317, subdivision (e) provides:  “The counsel for the minor shall be charged in general with the representation of the minor's interests.   To that end, the counsel shall make or cause to have made any further investigations that he or she deems in good faith to be reasonably necessary to ascertain the facts, including the interviewing of witnesses, and he or she shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings.   He or she may also introduce and examine his or her own witnesses, make recommendations to the court concerning the minor's welfare, and participate further in the proceedings to the degree necessary to adequately represent the minor.   In any case in which the minor is four years of age or older, counsel shall interview the minor to determine the minor's wishes and to assess the minor's well-being, and shall advise the court of the minor's wishes.   Counsel for the minor shall not advocate for the return of the minor if, to the best of his or her knowledge, that return conflicts with the protection and safety of the minor.   In addition counsel shall investigate the interests of the minor beyond the scope of the juvenile proceeding and report to the court other interests of the minor that may need to be protected by the institution of other administrative or judicial proceedings.   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.   The court shall take whatever appropriate action is necessary to fully protect the interests of the minor.”

3.   We have reviewed the juvenile court file in this case and have determined that the juvenile court's order of January 7, 1998 appointing independent counsel for the minors was 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 DCFS social worker and 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.

4.   Section 911.4 was amended in October 1999.   The amended wording in subdivisions (a), (b) and (c) is not relevant to our issue.   The Legislature also added 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.   The minors' counsel does not dispute that subdivision (d) is inapplicable in this case because it was enacted after the minors had filed their late claim and after the County rejected it.

5.   Code of Civil Procedure section 372, subdivision (a) provides, in pertinent part:  “When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.”

6.   While Welfare and Institutions Code section 318 has been repealed, many of its provisions have been added to section 317.   Section 318 authorized the juvenile court to appoint counsel in cases where the dependency petition alleged abuse and neglect.

7.   “A guardian ad litem is not a party to the action, but merely a party's representative․ ‘The duties of a guardian ad litem are essentially ministerial.’  [Citation.]  [¶] The guardian ad litem's purpose is to protect the rights of the incompetent person․ [¶] ․ [A] guardian ad litem's role is more than an attorney's but less than a party's.”   (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453-1454, 23 Cal.Rptr.2d 918.)

KITCHING, J.

KLEIN, P.J., and CROSKEY, J., concur.

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