County of San Joaquin v. Superior Court

Filed 11/29/05 County of San Joaquin v. Superior Court CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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COUNTY OF SAN JOAQUIN, Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; ANABEL BARRIOS et al., Real Parties in Interest.

C049722 (Super. Ct. No. CV025549)

Petitioner, County of San Joaquin (defendant), seeks a writ of mandate to compel respondent Superior Court of San Joaquin County to vacate its order relieving real parties in interest Anabel and Moises Barrios (plaintiffs) from the claim filing requirement of Government Code section 945.4.^[1] Defendant argues respondent court abused its discretion in granting the requested relief as plaintiffs presented no legally sufficient evidence to excuse their noncompliance. We agree and shall grant the requested relief.

This potential wrongful death action arises from a charge of medical malpractice asserted by plaintiffs against defendant, a public entity. The charged malpractice occurred on September 4, 2003, when plaintiffs’ baby was delivered stillborn at San Joaquin General Hospital, a facility owned and operated by defendant.

Under the applicable Government Code provisions, plaintiffs had until March 4, 2004, i.e., six months from the date their cause of action accrued, to present a claim to defendant. (§ 911.2) Plaintiffs failed to present a timely claim and did not file their application for leave to present a late claim (§ 911.4) until August 13, 2004, almost one year after the alleged negligence took place. The application was rejected by defendant in October 2004.

In January 2005, plaintiffs filed in respondent court their petition seeking relief from the claim-filing requirement. (§ 946.6.) Plaintiffs asserted their failure to file a timely claim was the result of both mistake and excusable neglect. Specifically, following the stillbirth of their daughter, plaintiffs were: mentally and emotionally distraught for several months; unaware defendant might share responsibility for the damages caused; unaware defendant owned and operated San Joaquin County Hospital; and unaware they had only six months in which to file their claim. Plaintiffs claimed they learned the hospital was a facility owned by defendant in June 2004 after consulting with their attorney, Mark S. Nelson.

Defendant opposed the petition, asserting the reasons given for plaintiffs’ claims of excusable neglect and mistake were legally insufficient. Additionally, defendant argued plaintiffs’ stated reasons were disingenuous, given that in October 2003, one month after the delivery of their stillborn baby, plaintiff Anabel Barrios signed an authorization and request for records directed to San Joaquin General Hospital seeking the release of medical records relating to the alleged negligence. Moreover, the request for records was submitted under the letterhead of “Bruce G. Fagel and Associates,” a prominent law firm that specializes in medical malpractice cases and that had in the past prosecuted such actions against defendant.

At the hearing on the petition, defendant argued the fact that plaintiffs retained counsel within one month of the alleged negligence, and, more importantly, because counsel’s knowledge and conduct are imputed to his clients, plaintiffs’ assertions of mistake and excusable neglect were meaningless. In response, attorney Theressa Y. Toledo of the Law Offices of Mark S. Nelson, stated, simply, that while she had not yet spoken to her clients personally, she was unaware her clients had consulted with another attorney before retaining her services.

In an order dated April 4, 2005, respondent court, without comment, granted the petition relieving plaintiffs of the claim filing requirement.

DISCUSSION

Section 911.2 requires a claim for personal injury be presented to the public entity within six months following accrual of the cause of action. When a claim has not been timely presented, section 911.4 allows for written application to the public entity for leave to file a late claim. If the public entity denies that application, section 946.6 permits the claimant to file a petition with the superior court for relief from the claim-filing requirement. The superior court is authorized to grant such petition if, and only if, the claimant satisfies two conditions: first, the application to file a late claim was submitted to the public entity within a reasonable time not to exceed one year from the accrual of the cause of action (§ 946.6, subd. (c)); and, second, the failure to present a timely claim was through mistake, inadvertence, surprise or excusable neglect. (Id. subd. (c)(1).)

Respondent court’s ruling granting the petition carries with it the implied finding that both requirements of section 946.6 were met. (El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 62 (El Dorado).) Yet, on the record before respondent court, there was nothing presented to establish a finding of either requirement.

Taking first the “reasonable time” requirement, plaintiffs declared it was not until June 8, 2004, when they consulted with attorney Nelson, that they were able to identify San Joaquin General Hospital as a facility owned and operated by defendant. Yet, noticeably absent from plaintiffs’ moving papers is any indication why, when their claim was already tardy, they waited more than two additional months, i.e., until August 13, 2004, before seeking leave to file a late claim.

In Dunston v. State of California (1984) 161 Cal.App.3d 79, an unexplained delay of one and one-half months from the discovery of governmental negligence to the filing of an application for leave to present a late claim was deemed unreasonable. (Id. at p. 84.) So too here, plaintiffs’ failure to explain the delay in seeking leave to file a late claim is fatal to their request for relief from the claim-filing requirement.

Plaintiffs likewise fail the “mistake, excusable neglect” prong, inasmuch as plaintiffs did not present any legally sufficient explanation for their failure to file a timely claim. Plaintiffs’ assertion that they were ignorant of the claim-filing requirements is unavailing (El Dorado, supra, 98 Cal.App.3d at p. 62), as is their claim they believed they had one year in which to file a claim. (Ibid.) Likewise unavailing is plaintiffs’ claim, sans any explanation as to any investigation they conducted, they did not know San Joaquin General Hospital is a county-owned facility. (Rojes v. Riverside Gen. Hospital (1988) 203 Cal.App.3d 1151, 1163, disapproved on other grounds in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605.)

More importantly, and especially fatal to plaintiffs’ petition to be relieved of the claim-filing requirement, is their failure to make any mention whatsoever of their knowledge, imputed if not actual, of defendant’s ownership of the hospital and of the claim-filing requirement. In response to the petition for relief, defendant presented evidence showing that plaintiffs, one month after the stillborn delivery of their baby, presented a request for hospital records from San Joaquin General Hospital. The request was submitted under the letterhead of attorneyhttp://www.fearnotlaw.com/ Bruce Fagel, an attorney who specializes in medical malpractice actions and whose firm has prosecuted such actions against defendant based on injuries sustained at San Joaquin General Hospital.

In short, the undisputed evidence before respondent court demonstrated that attorney Fagel was aware that San Joaquin General Hospital is a county-owned facility and that timely compliance with the claims presentation statutes was required. Inasmuch as the law is clear an attorney’s knowledge is imputed to his clients (Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 390-391, fn. 3, criticized on other grounds in Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 104-105), plaintiffs’ failure to explain their association with counsel shortly after the accrual of their cause of action is fatal to any claim of mistake or excusable neglect.

Given the state of the record before it, respondent court abused its discretion in granting the petition for relief from the claim filing requirement. (Mitchell v. Department of Transportation (1985) 163 Cal.App.3d 1016, 1021.)

DISPOSITION

We have complied with the procedural prerequisites to the issuance of a peremptory writ of mandate in the first instance, as described in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171. Let a peremptory writ of mandate issue directing respondent superior court to vacate its order granting plaintiffs’ petition to be relieved of the claim-filing requirement and to enter a new and different order denying such petition. The parties shall bear their own costs. (Cal. Rules of Court, rule 56(l)(2).)

SIMS , Acting P.J.

We concur:

DAVIS , J.

ROBIE , J.

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^[1] Undesignated section references are to the Government Code.