Sanudo v. City of
Filed 7/13/12 Sanudo v. City
of Long Beach CA2/8
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
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and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ANA SANUDO,
Plaintiff and Appellant,
v.
CITY OF LONG BEACH et
al.,
Defendant and Respondent.
B236584
(Los Angeles
County
Super. Ct.
No. NS023831)
APPEAL
from an order of the Superior Court
of
County. Patrick T.
Madden, Judge. Affirmed.
Law
Offices of Daniel A. Gibalevich, Daniel A. Gibalevich and Gina Akselrud, for
Plaintiff and Appellant.
Houle
& Houle, Gregory Houle and Richard Houle for Defendant and Respondent
County of Los
Angeles.
Robert
E. Shannon, City Attorney and Theodore B. Zinger, Deputy City Attorney, for
Defendant and Respondent City
of Long Beach.
_________________________
Plaintiff
Ana Sanudo was injured after she tripped and fell on a sidewalk in Long
Beach. She
failed to present a timely notice of claim to the appropriate government entity
as required by the Tort Claims Act (TCA; Gov. Code, § 905, et seq.). The County
of Los Angeles (County) and City of
Long Beach (City) denied Sanudo’s
applications for leave to present a late claim.
The trial court subsequently denied Sanudo’s petition for relief. We affirm the trial court order.
Sanudo
alleged that on October 3, 2009,
she was walking on a sidewalk on her way to the entrance of the Long
Beach Comprehensive Health
Center (Health
Center). She tripped on a raised and cracked portion
of the sidewalk. She fell and was
injured. Sanudo was diagnosed with a
“severe tear of the rotator cuff, shoulder dislocation and a possible shoulder
fracture,†as well as a left wrist fracture.
She was also told she would need surgery on her knee. After the fall Sanudo was “immobile†and
depended on her family for help with daily activities. In a declaration submitted to the trial
court, Sanudo declared her husband had to help her get out of bed. He physically lifted her to take her from one
room to another in her house. Once she
was placed on the couch, Sanudo could not move around or get up without
help. She was forced to use a portable
toilet if left home alone. She could not
shower without assistance. In late April
2010, Sanudo regained some mobility. In
late May 2010, she retained an attorney.
According
to Sanudo’s counsel, once Sanudo retained his office, counsel sent a
“preservation of evidence letter†to the Health
Center. On or around September 17, 2010, Sanudo’s counsel was “surprised†to
receive a call from a Los Angeles County
representative. The representative
informed Sanudo’s counsel that the Health
Center was housed in a County
building, and Sanudo would have to present a claim to the County. Counsel further declared: “There were no indicators as to the true
nature of the landowner to point anyone in the direction of the County
of Los Angeles. Once I learned of the County’s involvement,
an application for leave to present a late claim was filed with the County
Board of Supervisors. A similar claim was transmitted to the Clerk
of the City of Long Beach.†The applications were dated September 29, 2010, and were
delivered on October 4, 2010. The applications asserted Sanudo’s claim was
not presented within the required six-month period because she was physically
incapacitated and therefore unable to present a claim, and because of mistake,
inadvertence and inexcusable neglect.
Both applications were denied.
In
April 2011, Sanudo filed a petition in the superior court for an order
relieving her from the provisions of Government Code section 945.4.
I. Applicable
Legal Principles
Under
the TCA, a person seeking to file a
against a public entity must first file a claim with the governmental entity
within six months of the accrual of the cause of action. (§ 911.2, subd. (a); Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776
(Munoz).) If the claimant misses the six-month
deadline, she may apply to the entity for leave to present a late claim. (§ 911.4.)
The application must be presented to the entity “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.†(§ 911.4, subd. (b).) If the entity denies the application, the
claimant may petition the superior court for relief pursuant to section 946.6. (Munoz,
supra, at pp. 1776-1777.)
Under section 946.6, the court shall
grant relief from failure to present a timely claim to the governmental entity
if (1) the court finds the application to present a late claim was made within
a reasonable time not exceeding one year as set forth in section 911.4, and (2)
one or more of four specified circumstances exist. (§ 946.6, subd. (c).) The two circumstances relevant here are
stated in section 946.6, subdivision (c)(1): “The 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 the requirements of Section
945.4â€; and subdivision (c)(3): “The person who sustained the alleged injury,
damage or loss was physically or mentally incapacitated during all of the time
specified in Section 911.2 for the presentation of the claim and by reason of
that disability failed to present a claim during that time.â€
“An order denying a petition for relief from the TCA claim
filing requirements is an appealable order.
[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.’ [Citation.]
Nonetheless, we ‘cannot arbitrarily substitute our judgment for that of
the trial court.’ [Citation.]†(Barragan
v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1382 (
II. The
Trial Court Did Not Abuse its Discretion in Denying Sanudo’s Petition
As explained above, section
946.6 requires that the trial court make two separate findings to grant a
petitioner relief from her failure to present a timely TCA claim to the
relevant public entity. The trial court
must find the petitioner applied for relief from the entity pursuant to section
911.4 within a “reasonable time†not exceeding one year after the cause of
action accrued. (§ 946.6, subd.
(c).) The court must also conclude the petitioner’s
failure to present a claim within the original six-month period was due to one
of the circumstances listed in section 946.6, subdivision (c)(1) to
(c)(4). (DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 864
(DeYoung) [a person seeking leave to
file a late claim must surmount two hurdles].)
Sanudo did not present evidence to support either finding.
Sanudo Did Not Establish She Presented Her Application to File a Late
Claim Within a “Reasonable Time†Under Section 946.6, subdivision (c)
It was not an abuse of
discretion for the trial court to conclude Sanudo did not present her
application to file late claims within a “reasonable time†under section 911.4,
subdivision (b) and section 946.6, subdivision (c). Sanudo fell on a sidewalk in Long Beach on
October 3, 2009. She retained counsel in
May 2010. She did not present her
section 911.4 applications until the very end of the one-year period, in late
September or early October 2010.
name="_ftnref2" title="">[2] Thus, there were two delays that affected the
timing of Sanudo’s section 911.4 applications: Sanudo’s initial delay in
seeking counsel, and counsel’s subsequent delay in realizing a TCA claim was
required. The trial court could
determine that neither delay was reasonable.
Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406 (
the petitioner suffered an injury while swimming in a river. He was rendered a permanent quadriplegic and
was hospitalized for five months. (
accident. (Id. at p. 1409.)
The lawyer advised the petitioner that a claim would have to be
filed against a public entity. The
petitioner then promptly applied for leave to file a late claim. The application was denied. (Id.
at p. 1408.) The trial court concluded the petitioner did not prove his
application was filed within a reasonable time after the accident, even though
it was filed within one year. (
The Court of Appeal found
no abuse of discretion. The court noted
the petitioner had the burden of proving the application was filed within a
reasonable time. (Drummond, supra, at p. 1411.)
The only explanation the petitioner offered for the delay was that
because of his physical disability and mental preoccupation with his condition,
he did not consult a lawyer or think about a possible legal action until “some
time†after he was discharged from the hospital. The court concluded: “Under all of the
evidence, including the testimony about appellant’s mental and emotional
progress and his ability to contact a lawyer while in the hospital, there was
room for the trial court to draw an inference that a reasonable person in
appellant’s position would have consulted an attorney before February 12. Whatever time would have been reasonable for
appellant to consult a lawyer under the particular circumstances confronting
appellant after he left the hospital was a factual determination to be made by
the trial judge which we cannot upset.â€
(Id. at p. 1411.)
Similarly, while there
was evidence in this case that Sanudo’s physical mobility was extremely limited
for several months after the accident, there was no evidence suggesting she
could not use a telephone or a computer to research or contact attorneys, or
was otherwise prevented from consulting counsel. The trial court could infer that a reasonable
person in her position would have consulted an attorney before late May 2010,
seven months after the accident.
Further, the trial court
could conclude the delay occurring after Sanudo retained counsel was not
excusable or reasonable. Although Sanudo
fell on a sidewalk, neither she nor her counsel investigated whether a
government entity might be a possible defendant. Counsel declared that once his office was
retained “an investigation was undertaken and a preservation of evidence letter
was mailed to the Long Beach Comprehensive Health Center.†However, there was no explanation of what, if
anything, Sanudo or her counsel did to advance her claim in the approximately
three and one-half months that followed.
Indeed, it appears that counsel did not follow up on his letter to the
Health Center, and only happened to receive a call from the County alerting him
that a TCA claim would be necessary.
This was not a case in which there was evidence showing counsel
diligently investigated the claims and attempted to discover the proper
defendants. (City of Fresno v. Superior Court (1980) 104 Cal.App.3d 25, 33-34
[attorney’s failure to investigate a claim is not excusable neglect meriting
relief under section 946.6]; cf. Kaslavage
v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 535-536.) Nor is it a case in which counsel or the
injured person had a well-founded mistaken belief about the identity of the
defendant, or in which delay was caused by a calendaring error. (Nilsson
v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Counsel’s inaction is imputed to Sanudo. (Greene
v. State of California (1990) 222 Cal.App.3d 117, 122 (Greene).)
concerned a petitioner’s failure to present a late claim application within a
reasonable time due to counsel’s inaction.
In DeYoung, the petitioner was
injured while attending races sponsored by the Del Mar Thoroughbred Club (the
Club) at a racetrack in August 1981. (
after the accident. The attorney met a
claims adjuster and a lawyer for the Club at the scene of the accident. The attorney asked the claims adjuster “ ‘who
the correct entity at the track who would be responsible was.’ †(Ibid.) The claims adjuster said the Club was “the
entity.†The attorney conducted no
further investigation and filed suit against the Club. In May or June 1982, the attorney learned
that the State of California owned the racetrack and leased the premises to the
Club. (Ibid.) In August 1982, the
petitioner applied for permission to file a late claim. The application was denied. (Ibid.)
The Court of Appeal found
the trial court did not abuse its discretion in denying the petitioner relief,
in part because the petitioner had not shown her section 911.4 application was
made within a reasonable time. The court
first explained it was unreasonable for counsel to interpret the claims
adjuster’s statement that the Club was the responsible entity as an
indication that it was the sole owner of the premises. (De Young,
supra, at p. 864.) The court further noted that while counsel
learned the State might own the racetrack in May or June, the section 911.4 application
was not made until August. The attorney
explained the “time lapse†was due to the Club’s delay in providing him with a
copy of the lease, but he did not explain “why he felt it necessary to delay
the filing until the lease was received,†and his statement that he believed
the lease was vital was “belied by his actions.†(Ibid.) The court indicated that “reliance on an
adversary’s assurances that discovery documents would be ‘forthcoming’ in face
of a tolling statute seems to show inexcusable neglect.†(Id.
at pp. 864-865.)
Likewise,
here the trial court could infer that counsel’s failure to consider or
investigate whether a public entity was involved was not reasonable, and the
resulting delay in the filing of the section 911.4 application was also
unreasonable, even though it fell within the one-year period. Under the circumstances presented in this
case, we cannot find the trial court abused its discretion in concluding Sanudo
did not file her section 911.4 application within a reasonable time. (Greene,
supra, 222 Cal.App.3d at pp. 122-123; Clark
v. City of Compton (1971) 22 Cal.App.3d 522, 528.)
Sanudo Did Not Establish a Basis for Relief Under Section 946.6,
Subdivisions (c)(1) or
(c)(3)
Even if the trial court
had concluded Sanudo presented her application for leave to file a late claim
within a “reasonable time†under section 911.4, the trial court would still
have properly denied Sanudo’s petition because she did not establish that her
failure to file a claim within six months of the accident was due to excusable
neglect, or physical disability.
No evidence of mistake, inadvertence, surprise, or excusable neglect
“Relief
from the failure to timely present a government tort claim is available only if
the petitioner establishes by a preponderance
of the evidence the failure was ‘through mistake, inadvertence, surprise,
or excusable neglect.’ (§ 946.6, subd.
(c)(1); [Citation].) However, ‘[t]he
mere recital of
surprise or excusable neglect is not sufficient to warrant relief. Relief on grounds of mistake, inadvertence,
surprise or excusable neglect is available only on a showing that the
claimant’s failure to timely present a claim was reasonable when tested by the
objective “reasonably prudent person†standard.
The definition of excusable neglect is defined as “neglect that might
have been the act or omission of a reasonably prudent person under the same or
similar circumstances.†’
[Citations.]†(
Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 909-910.)
“Generally,
the mere ignorance of the time limitation for filing against a public entity is
not a sufficient ground for allowing a late claim. [Citation.]
Moreover, ignorance of the possible cause of action against the public
entity is insufficient to constitute excusable neglect. ‘Failure to discover the alleged basis of the
cause of action in time is also not a compelling showing in the absence of
reasonable diligence exercised for the purpose of discovering the facts.’ [Citations.]â€
(Harrison v. County of Del Norte
(1985) 168 Cal.App.3d 1, 7.) “[L]ack of
knowledge alone is not considered a sufficient basis for relief, when the
claimant did not make an effort to obtain counsel . . . . ‘[D]ue diligence requires at least
consultation with legal counsel.’
[Citations.]†(
1383.) “ ‘[A] petitioner may not
successfully argue excusable neglect when he fails to take any action in pursuit of the claim within the [six-month]
period. “[T]he claimant must at a
minimum make a diligent effort to obtain legal counsel within [six months]
after the accrual of the cause of action . . . . The reasonable and prudent
course of conduct under the circumstances of this case was to seek legal
counsel.†[Citation.]’ †(Ibid.,
fn. omitted, quoting Bertorelli v. City
of Tulare (1986) 180 Cal.App.3d 432, 439 and Ebersol v. Cowan (1983) 35 Cal.3d 427, 439.) However, “ ‘even the failure to obtain legal
advice will be excused when a different course of action is reasonably
prudent. . . .’
[Citation.]†(
Sanudo contends she did not consult
with counsel earlier because of her physical limitations following the
accident. In Barragan, the court held that excusable neglect can be the result
of disability. “When a claimant is
disabled, even if not so limited as to satisfy the incapacity basis for relief,
that disability could justify a trial court in concluding that the claimant’s
failure to contact an attorney was itself excusable neglect.†(Barragan,
supra, 184 Cal.App.4th at p.
1384.) But the court also acknowledged
that “every claimant is likely to be suffering from some degree of emotional
upset, and it takes an exceptional showing for a claimant to establish that his
or her disability reasonably prevented the taking of necessary steps. [Citations.]â€
(Id. at p. 1385.)
Sanudo did not make an “exceptional showing†in this
case. Although she offered evidence that
she had shoulder, wrist, and knee injuries, and could not move around freely
without assistance, there was no evidence that she could not use a telephone or
the internet. Searching for an attorney did
not necessarily require that she physically travel from office to office. Likewise, she presented no evidence in the
trial court indicating she was under the influence of medication that affected
her thought processes or consciousness.
(Cf. Barragan, supra, at p.
1385 [excusable neglect where petitioner was depressed, in pain, under the
influence of medication, unable to sit up without assistance, did not leave
bedroom to watch television, and was focused on relearning basic tasks of
everyday life].) Sanudo did not
establish that her failure to consult counsel before the time passed to present
a TCA claim was excusable neglect resulting from her physical disability. “A person seeking relief must show more than
just failure to discover a fact until too late; or a simple failure to
act.†(Department of Water & Power v. Superior Court (2000) 82
Cal.App.4th 1288, 1296.) To the extent
the trial court found Sanudo did not prove she was entitled to relief under
section 946.6, subdivision (c)(1), it did not abuse its discretion.
ii. No evidence of physical
disability as a justification
Sanudo’s argument that her physical disability prevented her
from filing a timely claim was equally flawed.
As explained in Barragan,
“[t]o establish incapacity as a justification for relief from the TCA requirements,
a claimant must establish that he or she ‘was physically or mentally
incapacitated during all of the [six-month period] for the presentation of the
claim and by reason of that disability failed to present a claim during that
time.’ (Gov. Code, § 946.6, subd.
(c)(3).) The inquiry focuses only [on]
the state of the claimant; it is not
relevant if others could have voluntarily filed a claim on the claimant’s
behalf. [Citations.] However, if the claimant’s condition was such
that the claimant could have authorized
another to file the claim on his or her behalf, the claimant was not
incapacitated from filing the claim.
[Citation.] In other words, the
type of disability which justifies relief from the TCA on the grounds of
incapacity is an all-encompassing disability which prevents the claimant from
even authorizing another to file a claim for the claimant.†(Barragan,
supra, 184 Cal.App.4th at p. 1384.)
Sanudo’s evidence established that
her physical mobility was limited, but not that she was mentally or cognitively
impaired in any way, hospitalized, or unable to plan, reason, or communicate
effectively. (Barragan, supra, 184 Cal.App.4th at p. 1384.) Sanudo offered no evidence indicating she
suffered from an all-encompassing disability that prevented her from
authorizing someone else to file a claim for her. She did not show she was entitled to relief
under section 946.6, subdivision (c)(3).
The
order is affirmed. Respondents shall
recover their costs on appeal.
BIGELOW, P. J.
We concur:
RUBIN,
J.
FLIER,
J.
further statutory references are to the Government Code.
the trial court, respondents argued Sanudo did not present the section 911.4
applications within one year of the accrual of the cause of action. At the hearing on the petition, Sanudo argued
that service was complete upon deposit of the applications with the postal
service and, in light of documents indicating the applications were delivered
on Monday, October 4, 2010, it was clear they were deposited before Sunday,
October 3, 2010, the one-year date. The
evidence presented to the trial court included mailing receipts showing the
applications were delivered on October 4.
On appeal, Sanudo again argues the applications were presented within
the one-year period, explicitly relying on section 915.2, which provides that
if mailed in accordance with statutory requisites, an application for leave to
present a late claim is deemed presented at the time of deposit. Although the trial court referred to “section
914.4†in its ruling denying Sanudo’s petition, it did not make an explicit
finding that Sanudo missed the one-year deadline. Because section 911.4 concerns both the
one-year absolute deadline and the “reasonable time†determination, and we
conclude the trial court properly denied Sanudo’s petition because of her
failure to meet the “reasonable time†requirement, we do not consider the
one-year deadline issue.
