California's rules for minors' injury claims and settlements A judge protects your child's settlement.

Two rules govern a child's injury claim in California, both have exceptions, and one exception ends cases within six months. The time to file a lawsuit does not run while your child is under 18, so the usual two year clock generally starts on the 18th birthday. A child also cannot settle a claim alone: a judge approves the settlement, decides the attorney's fee, and decides where the money sits until the child is an adult.

The rules below apply to any kind of accident: a crash, a fall, a school or playground injury, a pool, a bicycle, a dog. How fault is proved in each belongs on the practice pages, and if your child was bitten, our guide to child dog bite injuries covers the medical and liability side of that claim.

The deadline waits for your child

Code of Civil Procedure section 352(a) provides that if the person entitled to bring the action was, when the cause of action accrued, meaning when the injury happened, under the age of majority or lacking the legal capacity to make decisions, the time of that disability is not part of the time limited for commencing the action. Applied to an ordinary injury claim, that means the two year period in section 335.1 starts on the 18th birthday. A child hurt at nine has until 20 to file. Our table of every California injury deadline sets the adult rules out row by row.

Medical malpractice runs on its own track. Section 340.5 states that actions by a minor must be commenced within three years from the alleged wrongful act, and that actions by a minor under the full age of six years must be commenced within three years or before the eighth birthday, whichever is longer. Nothing waits for 18 in a malpractice case.

Your own claim is not your child's claim. The emergency room bill you paid, the copays, the time off work: that is your claim, and your child's age does not pause it. The two are presented together, but only one of them has years of room in it.

Your child needs a guardian ad litem

Code of Civil Procedure section 372 requires that when a minor is a party, the minor appear by a guardian or conservator of the estate or by a guardian ad litem appointed by the court. The same section gives that person the power, with the approval of the court, to compromise the claim, meaning settle it, to agree to the judgment entered for or against the child, and to satisfy a judgment in the child's favor. The words that matter are "with the approval of the court". Nothing the parent signs is final without it.

Section 372 also requires a proposed guardian ad litem to disclose to the court and the parties any known actual or potential conflicts of interest and any familial relationship. A parent with a claim of their own out of the same incident is the ordinary example.

How a judge approves your child's settlement

Which statute applies depends on whether a lawsuit exists. Probate Code section 3500 covers a disputed claim with no action on file, and provides that the compromise is valid only after a superior court approves it on a petition. It lets either parent petition when the parents are not living separate and apart, and the parent with care, custody, or control petition when they are. Where a case is pending, section 372 supplies the same requirement inside that case.

California Rules of Court rule 7.950 sets the standard. The petition must be verified, meaning sworn to, and must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, and except under the expedited rule it goes on form MC-350. A judge reads the medical records, the treating opinion on future care, the available insurance, and the fee agreement before anyone is paid.

Rule 7.950.5 allows a faster path, and its conditions are worth reading before you assume you qualify. Among them: the petitioner is represented by an attorney, the claim is not for wrongful death, no part of the net proceeds goes into a trust, there are no unresolved disputes about liens to be satisfied out of the proceeds, and the recovery, excluding interest and costs, is $50,000 or less, unless full policy limits are being paid and the defendants cannot pay more from other assets. The rule directs the court to decide the expedited petition within 35 days unless it sets a hearing or finds good cause.

Plan on bringing your child. Rule 7.952 requires the person petitioning for approval and the minor to attend the hearing unless the court finds a sufficient reason to excuse the appearance, and it lets the court require the presence and testimony of witnesses, including the attending or examining physician. Judges use that authority. A hearing is short, but it is a hearing.

What comes out of the settlement first

Probate Code section 3601 tells the court to make a further order authorizing and directing that reasonable expenses, medical or otherwise, including reimbursement to a parent, guardian, or conservator, plus costs and attorney's fees, be paid out of the money, as the court approves and allows. That single sentence contains the three disputes that happen in these hearings: what the medical charges should be paid at, what the case costs were, and what the lawyer is worth.

Rule 7.955 governs the last of those. The court must use a reasonable fee standard when approving a fee out of a child's recovery, unless it approved the fee agreement in advance, and it lists the factors it may weigh: the amount involved and the results obtained, the time and labor required, the complexity of the case, the client's informed consent, and, in a contingency case, the risk of loss the attorney carried. A declaration from the attorney addressing the applicable factors goes with the petition. We tell parents what we will ask for, and why, before the settlement is signed.

Where the money sits until 18

Nobody hands the parents a check. Probate Code section 3610 says the remaining balance, after the expenses, costs, and fees the court allowed under section 3601, is paid, delivered, deposited, or invested as the article provides. Section 3611 lists the options, and the usual order is a blocked account or single premium deferred annuity that cannot be drawn on without a court order. The statute also allows a special needs trust under section 3604, a custodian under the Uniform Transfers to Minors Act, a court approved trust, deposit with the county treasurer, and looser handling for amounts under $20,000 and under $5,000. Section 3612 keeps the court's jurisdiction over the money until the child turns 18. Our child dog bite guide sets those options out in a table, and the analysis is the same whatever caused the injury.

When the rules for a child change

• A public entity is involved. Six months to present the claim, no tolling, and the six month clock to sue after a written rejection under Government Code section 945.6. This is the failure that costs children the most.
• The claim is against a health care provider. Section 340.5 sets its own periods for minors, and none of them wait for 18.
• A lien is unresolved. Rule 7.950.5 will not allow the expedited petition while a dispute over liens to be satisfied from the proceeds is open. Health plan and hospital liens get negotiated before the petition, not after.
• The recovery is a wrongful death claim. The expedited rule expressly excludes it, so the full petition applies.
• The child receives public benefits. Section 3611(c) allows a special needs trust under section 3604, and the statute requires notice to the state directors it lists before the court can order it. That conversation belongs at the start of the case.

What to do this month

Answer one question before anything else: could a public entity, such as a school, a bus, a city sidewalk, a county facility, or a state highway, be involved? If the answer is yes or maybe, you are on a six month clock and the calendar comes first. If the answer is clearly no, the right use of the extra time is to let your child's treatment finish before anyone values the case.

Either way, keep the medical records, the photographs, and the receipts you paid out of pocket, and write down what happened while the details are close. When you are ready to talk to someone, our Los Angeles catastrophic injury lawyer page explains how a serious injury claim is built, and our deadline questions cover the rules that apply to the adults in the family. There is no fee unless we recover.