Peavy v. California Men’s
Colony
Filed 1/22/14 Peavy v. California Men’s Colony CA4/1
OFFICIAL REPORTS
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8.1115(b). This opinion has not been
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GARY L. PEAVY,
Plaintiff and Appellant,
v.
CALIFORNIA MEN'S
COLONY,
Defendant and Respondent.
D063561
(Super. Ct. No.
37-2012-00099159- CU-PT-CTL)
APPEAL
from an order of the Superior Court of San
Diego County, Lisa C. Schall, Judge.
Affirmed.
Gary
L. Peavy, in pro. per., for Plaintiff and Appellant.
Kamala D. Harris,
Assistant Attorney General, Thomas S. Patterson and John P. Walters, Deputy
Attorneys General, for Defendant and Respondent.
Gary
L. Peavy appeals, in propria persona, from an order denying his petition
brought under Government Code section 946.6 for leave to file a late tort claim
against the California Men's Colony.
(Undesignated statutory references are to the Government Code.) We conclude the
in denying the petition because Peavy failed to establish the elements of
section 946.6 relief by any competent evidence.
Accordingly, we affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Peavy
was a prisoner at the California Men's Colony.
He alleges that various prison employees discriminated and retaliated against
him. Specifically, Peavy claims: (1) on
September 10, 2008, he was denied an appropriate prison job after suffering a
work injury; (2) on July 30, 2009, he received a false disciplinary report for
allegedly using an expired medical
card earlier that month; (3) on September 27, 2009, prison staff accused
him of malingering and denied him appropriate medical attention; and (4) in
November 2009, the prison warden ignored his complaint letter.
On
December 20,
2011, Peavy filed a tort claim with the
Victim Compensation and Government Claims Board (the Board). The Board rejected the claim because it was
filed more than one year after the date of the incident that formed the basis
of the claim and it "[was] too late for the Board to consider an
application to present a late claim."
On
June 14, 2012, Peavy filed a petition in the superior court under section 946.6
for relief from the tort claim requirements.
He claimed his delay in filing a claim was due to a failure by prison
officials to respond to his grievances in a timely manner. He also stated that his failure to present
the claim was due to "mistake, inadvertence, surprise or excusable
neglect." The court denied the
petition, finding that "it d[id] not have jurisdiction as the claim was
not filed within one year."
DISCUSSION
I. Request for Judicial Notice
Peavy
requested that we take judicial notice of documents filed in the superior court
and United States District Court for
the Southern District of California. The
documents include a declaration from Peavy and a copy of his tort claim, which
was filed in the superior court. It is
unclear which documents, if any, were filed in the federal court. The Attorney General referenced the documents
in her brief and did not oppose Peavy's request for
requested documents. (Evid. Code, § 452,
subd. (d) [providing that a court may take judicial notice of the "[r]ecords
of . . . any court of this state"].)
II. Tort
Claims Act
Under
the procedure set out in sections 810 et seq. (known as the Government Claims
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 the claim's accrual,
and the entity has rejected the claim or the claim is deemed rejected. (§§ 911.2, 945.4; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776 (Munoz).) If a claimant
misses the six month deadline, he or she may apply to the public entity for
leave to present a late claim.
(§ 911.4, subd. (a).) Such an application must be filed "within
a reasonable time not to exceed one year after the accrual of the cause of
action." (§§ 911.4, subd. (b),
911.6.) If the public entity denies
leave to present a late claim, the claimant can petition the court under
section 946.6 for an order relieving him or her of the claim presentation
requirements.
The court must
relieve the petitioner from the claim presentation requirements if it finds the
claimant's application under section 911.4 was made within a reasonable time,
was denied or deemed denied under section 911.6, and "[t]he failure to
present the claim was through mistake, inadvertence, surprise, or excusable
neglect unless the public entity establishes that it would be prejudiced in the
defense of the claim if the court relieves the petitioner from Section 945.4." (§ 946.6, subd. (c)(1).) In determining whether relief is warranted,
the court will consider the petition, any supporting or opposing affidavits,
and any other evidence presented at the hearing. (§ 946.6, subd. (e); Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275 (
Cal.App.4th at p. 1778.)
"The
determination of the trial court in granting or denying a petition for relief
under . . . section 946.6 will not be disturbed on appeal except for an abuse
of discretion. Abuse of discretion is shown where uncontradicted evidence or
affidavits of the plaintiff establish adequate cause for relief." (Munoz,
supra, 33 Cal.App.4th at p. 1778.)
Here,
Peavy alleged the incidents giving rise to his claims occurred between
September 2008 and November 2009. In
December 2011, he submitted a tort claim to the Board, which was denied because
it was untimely. Thereafter, he sought
relief from the court, claiming his failure to timely present a tort claim was
due to the prison's "[b]ad [f]aith in [r]esponding to CDC Grievances Log
No. CMC-W-09-1542." There is no
evidence in the record before us regarding whether that grievance relates to
Peavy's present claims. Further, there
is no evidence regarding the disposition or status of that grievance. While section 946.6 is remedial and to be
liberally construed in the claimant's favor (Bettencourt, supra, 42
Cal.3d at p. 275), the petitioner must nevertheless demonstrate by a
preponderance of the evidence that relief is warranted. (Munoz,
supra, 33 Cal.App.4th at pp. 1777,
1783.) "[I]t is proper to deny
relief under section 946.6 where there is 'simply no competent evidence before
the trial court upon which it could exercise its discretion.' " (Rodriguez
v. County of Los Angeles (1985) 171 Cal.App.3d 171, 176.) Based on the lack of evidence before the
trial court, it did not abuse its discretion in finding Peavy's claim was
untimely.
Peavy
also failed to demonstrate that his "failure to present the claim was
through mistake, inadvertence, surprise, or excusable neglect." (§ 946.6, subd. (c)(1).) Although he made this allegation in the trial
court, "[t]he mere recital of mistake, inadvertence, surprise or excusable
neglect is not sufficient to warrant relief." (Department of
Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) Peavy did not elaborate on his assertion or
provide any evidence supporting it.
Lastly,
Peavy makes a vague assertion for the first time on appeal that his claims did
not accrue until he was discharged from parole on January 22, 2011, because
that is when he was informed that there "was [nothing] else [he] could do"
regarding his pending prison grievances.
Again, this assertion is not supported by any evidence much less
competent evidence.
Based
on the record before us, we conclude the trial court did not abuse its
discretion in denying Peavy's section 946.6 petition.
DISPOSITION
The
order is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
