Woodard v. City of Menlo Park

Filed 2/25/09 Woodard v. City of Menlo Park CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Appellant, appearing in pro per, appeals from two orders of the San Mateo County Superior Court which, respectively: (1) denied his petition under Government Code section 946.6 to be relieved of the requirements of the Government Tort Claims Act regarding his attempt to sue the City of Menlo Park for personal injuries allegedly suffered while being arrested by that citys police, and (2) although granting reconsideration of its earlier order, again denied appellants section 946.6 motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

At around 9:45 p.m. in the evening of February 3, 2007, two Menlo Park police officers, Ron Venzon and Joseph Hinkston, were on patrol in East Palo Alto as a part of a special task force in which their department was participating, Operation Safe Streets. At that time, Officer Venzon spotted appellant walking south on Bay Road; the officer stopped his vehicle and asked appellant if he could speak with him. Appellant turned away from the police car and began walking north on the same street. As he did so, he dropped a cocaine base pipe on the ground. Officer Venzon immediately spotted the pipe and called out at appellant to stop; appellant, however, began to run away from the officers. Officer Venzon was able to catch appellant, wrapped both his arms around him, and pulled him to the ground. Appellant was handcuffed and then formally arrested for possession of a cocaine base pipe in violation of Health and Safety Code section 11364, possession of drug paraphernalia.

On February 20, 2007, the San Mateo County District Attorney charged appellant with a violation of the above provision and also for resisting arrest. (Pen. Code,  148, subd. (a)(1).

On January 17, 2008,^[1]as part of a plea bargain, appellant pled no contest to the resisting arrest charge and the Health and Safety Code section 11364 charge was dismissed.

Less than a month later, on February 13, appellant, acting in pro per,^[2]filed a general negligence complaint against respondent City of Menlo Park (hereafter City) and five Doe defendants.

On March 4, the City demurred to the complaint on the grounds that it did not contain the necessary allegation that appellant had filed a prior tort claim with the City as required by the Tort Claims Act (Gov. Code,  900 et seq.)^[3] The demurrer also challenged the fact that appellant was, apparently, asserting a general negligence claim against the City, something not authorized by that statute.

On April 2, the superior court granted the demurrer with leave to amend.

On April 8, appellant filed a first amended complaint, alleging, among other things, that he was filing it pursuant to section 815.2, subdivision (a). Again, the City demurrered on the ground that appellant did not allege the required prior filing of a tort claim with the City. According to the Citys supporting memorandum of points and authorities, appellants filings themselves demonstrated as much.

On June 19, the superior court again sustained the Citys demurrer, this time without leave to amend.

On June 24, appellant filed a petition in the superior court seeking relief from the requirement of the presentation of a prior claim to the City; he alleged that such relief was appropriate under section 946.6, subdivision (c)(3). He sought relief on the alleged ground that he suffered from a chronic and intractable mental illness during the relevant prior claim period. Attached to this petition was, among other things, a letter from a psychiatrist reciting that he had been diagnosed with chronic paranoid schizophrenia since 1993.

On July 18, the superior court denied this request for relief on the basis that there was no showing that he was mentally incapacitated during the entire six-month claim period and, as a consequence of that disability, had failed to file the required form.

On July 25, appellant filed a motion to reconsider his petition. He attached to this motion various additional mental health records for the period from February 3 to August 3, 2007, and various criminal court docket sheets.

The City opposed this motion by pleadings filed August 6, to which appellant replied on August 12.

At an August 19 hearing on appellants motion for reconsideration, the court granted appellants motion to reconsider the matter,^[4]but again denied his petition for relief from the statutory provision requiring a prior written claim to the allegedly-wrongdoing governmental agency. The court found there were no grounds upon which to grant the petition on the basis of mental incapacity. A formal order to that effect was filed on September 11.

Appellant filed a timely notice of appeal.

III. DISCUSSION

As appellants notice of appeal and very succinct briefs^[5]make clear, he is appealing only from the superior courts denial of his petition for relief from the requirements of the Government Tort Claims Act on the ground that he was mentally incapacitated during the entire six-month claims period. He is not appealing from the order sustaining the demurrer to his amended complaint without leave to amend.

The law applicable to a situation such as the instant one was aptly summarized as follows by one of our sister courts in Munoz v. State of California (1995) 33 Cal.App.4th 1767 (Munoz): The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity [citations]. The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint. [Citation.] [] Government Code section 911.2 requires the claim relating to a cause of action for death or for injury to person or to personal property be presented not later than six months after the accrual of the cause of action. The claim presentation requirement serves several purposes: (1) it gives the public entity prompt notice of a claim so it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so it can better prepare for the upcoming fiscal year. [Citations.] [] Generally speaking, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented until a written claim has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board. [Citations.] A public entity includes the state, the Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the state. [Citation.] [] Under Government Code section 945.4, presentation of a timely claim is a condition precedent to the commencement of suit against the public entity. However, if the injured party fails to file a timely claim, a written application may be made to the public entity for leave to present such claim. [Citation.] If the public entity denies the application, Government Code section 946.6 authorizes the injured party to petition the court for relief from the claim requirements. [] The court must grant the petition under Government Code section 946.6, subdivision (c) if the claimant demonstrates by a preponderance of the evidence the application to the public entity under Government Code section 911.4 was made within a reasonable time not exceeding one year after the accrual of the cause of action, and one of the other four requirements listed in Government Code section 946.6, subdivision (c) is met. In determining whether relief is warranted, the court will consider the petition, any affidavits submitted in support of or in opposition to the petition, and any other evidence presented at the hearing. [Citations.] [] The determination of the trial court in granting or denying a petition for relief under Government Code 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. [Citation.] [] Government Code section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary. The remedial policy underlying the statute is that wherever possible cases should be heard on their merits. Thus, a denial of such relief by the trial court is examined more rigorously than where relief is granted and any doubts which may exist should be resolved in favor of the application. [Citations.] [] Relief from the six-month limit is granted under the same showing as is required for relief under Code of Civil Procedure section 473. [Citation.] It is the well-recognized policy of the law to liberally construe remedial statutes designed to protect persons within their purview, and the modern trend of judicial decisions favors granting relief unless absolutely forbidden by statute. A public entity in a proper case may be estopped from relying on the defense of noncompliance or late compliance with the statute and substantial compliance is all that is required. The old doctrine of strict and literal compliance, with its attendant harsh and unfair results, has disappeared from California law. [Citation.] [] The foregoing general rules counsel liberal construction of the governmental tort claims statutes. Nevertheless, courts have developed additional rules to deal with specific instances of less than strict compliance. For instance, mistake of law based solely on ignorance of the six-month claim requirement is not enough. Moreover, a petitioner may not successfully argue excusable neglect when he or she fails to take any action in pursuit of the claim within the six-month period. (Munoz, supra, 33 Cal.App.4th at pp. 1776-1779; fn. omitted; see also Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1410-1413.)^[6]

Applying these rules to the record before us, we conclude that the trial court did not abuse its discretion in denying, both originally and after granting rehearing, appellants section 946.6 petition. As that court noted in its original order of denial of July 18, appellant made no showing in his original section 946.6 petition that he was mentally incapacitated during the entire 6-month claims period and, by reason of that disability, he failed to present a timely claim. . . . Petitioners own papers on file with the Court show that he was mistakenly waiting until his criminal case was completed, and that he entered a plea bargain in the criminal case. Both facts, so alleged, show an ability to attend to his affairs, presumably also with the very same help from his family that he asserts he now has, during the tort claims filing period.

As noted above, appellant then filed more medical records regarding his condition as attachments to his July 25 motion for reconsideration. As also noted previously, the superior court granted the motion for reconsideration and heard argument on the underlying section 946.6 motion on August 19. It then observed that nothing submitted had changed its mind regarding the merits of appellants section 946.6 motion. More specifically, it observed that the additional medical records submitted by appellant indicated that, during the critical time period involved, he was treated on an outpatient basis and also there is some indication in the record of his being stable during periods of time when he was under treatment . . . . Theres no showing of Mr. Woodard being mentally incapacitated for the entire six-month period during which the tort claim should have been filed. And also, given the fact that he was being treated on an outpatient basis, and theres clear presence in the records to suggest that, it doesnt appear to me that incapacity was the reason for the failure to timely file a tort [claim]. . . .

We have examined the same record as the trial court did and come to the same conclusions it did. The arrest of appellant, the act which formed the basis for the potential tort claim, occurred on February 3, 2007. Pursuant to the Tort Claims Act, a tort claim against a governmental entity such as the City of Menlo Park must be filed not later than six months after the accrual of the cause of action ( 911.2), i.e., in this case, by August 3, 2007.

Appellants declaration, attached to his July 25 motion for reconsideration, recites three reasons for his failure to file a claim during that period: (1) I was not in good health and . . . was being treated for Chronic Paranoid Schizophrenia during the six months filing period and (2) [m]y unreliable and unpredictable behavior (e.g., failing to appear in court, violating probation, and going to jail in Santa Clara County) combined to cause my brother to be uneasy and uncomfortable to file a claim against the City of Menlo Park, and (3) appellant and his brother concluded that it would have been imprudent to file a claim against the city, especially when it involved a police officer prior to a December 11, 2007, hearing on a motion to suppress in his criminal case and his trial date of Feb. 4, 2008 [which was] hanging over my head. If I had gone to trial and lost, my brother would have been stuck trying to prosecute a claim and lawsuit on his own against the City.

Additionally, and as noted by the trial court at the August 19 hearing, nothing in the approximately 30 pages of medical and court records attached to this motion suggests that appellant was hospitalized or in any sort of confinement or custody during the six months from February 3 to August 3, 2007.

Under these circumstances, we have no difficulty in concluding that the superior court did not abuse its discretion in denying either of appellants section 946.6 motions.

IV. DISPOSITION

The orders appealed from are affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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^[1]Unless otherwise indicated, all subsequent dates noted are in 2008.

^[2]In the course of preparing and filing his pleadings in his suit against the City, appellant was assisted by his brother, one James Fort; however, Fort is also not an attorney.

^[3]All subsequent statutory references are to the Government Code.

^[4]In so doing, the court noted that appellant had made no showing as to why the additional material attached to his motion for reconsideration could not have been submitted with his original (i.e., June 24) section 946.6 petition. However, principally because appellant was appearing in pro per with the aid of just his non-lawyer brother, it granted the motion for reconsideration and reconsidered the matter on the merits.

^[5]Appellants opening brief consists of two pages and his reply brief of four pages.

^[6]Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, 706-712, cited several times in appellants reply brief (albeit not in his opening brief), is not to the contrary; in fact its holding is fully consistent with those of the cases cited above. The Garcia court held that the trial court did not abuse its discretion in denying appellants late section 946.6 claim, in the process noting that she had appropriate claims against the named defendant under several other state statutes.