Gilbert v. Victim Compensation and
Government Claims Bd.
Filed 4/8/13
Gilbert v. Victim Compensation and Government Claims Bd. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
DONALD GILBERT,
Plaintiff and
Appellant,
v.
VICTIM COMPENSATION AND
GOVERNMENT CLAIMS BOARD et al.,
Defendants and
Respondents;
F064526
(Super.
Ct. No. 09CECG01362)
CALIFORNIA ATTORNEY GENERAL,
Real Party in
Interest and Respondent.
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Debra J. Kazanjian, Judge.
Donald
Gilbert, in pro. per., for Plaintiff and Appellant.
Kamala D.
Harris, Attorney General, Steven M. Gevercer, Assistant Attorney General,
Alberto L. Gonzalez and Robert L. Collins, Deputy Attorneys General, for
Defendant and Respondent Victim Compensation and Government Claims Board.
Beeson
Terhorst, Jeffrey E. Beeson and Michael A. Terhorst for Defendant and
Respondent California Department of Corrections and Rehabilitation.
-ooOoo-
Appellant,
Donald Gilbert, a state prison
inmate, filed a petition for writ of mandate requesting the trial court to
order respondent, the Victim Compensation and Government Claim Board (Board),
to consider his government tort claim as timely filed. The Board and respondent, California
Department of Corrections and Rehabilitation, demurred to the petition. The trial court sustained the demurrer
without leave to amend finding that appellant did not meet the six-month
deadline to file a claim with the Board and did not timely seek court relief
after his claim was denied.
Appellant
challenges this order on the ground that, under the “mailbox rule†for prison
inmates, his tort claim was timely filed.
Despite the applicability of the “mailbox rule,†the trial court found
that appellant’s claim was untimely.
However, that finding is not supported by
within six months of his claim being denied.
Accordingly, the judgment is reversed.
BACKGROUND
On February
11, 2008, while performing his assigned duties as a state prisoner, appellant
was injured. According to appellant, his
right index finger was severed just below the fingernail.
Appellant
prepared a government tort claim dated August 3, 2008. Appellant alleges that he submitted the claim
on August 3, 2008, by delivering it to a prison employee who then placed it in
the prison mailbox provided for collection of outgoing legal mail. However, the prison mail log does not list
appellant’s claim as outgoing mail on August 3 or any date thereafter.
The Board
denied appellant’s claim on September 9, 2008, as untimely. Thus, although the prison mail log has no
record of this claim being sent, it must have been sent at some point for the
Board to receive it before it was denied on September 9.
Appellant
responded to this denial by arguing that his claim was timely because it was
deposited in the prison mail on August 3, 2008, and should have been mailed by
August 4, 2008. Appellant further
asserted that, if the claim was mailed late, he was not at fault.
The Board
construed appellant’s response as an application for leave to file a late
claim. On December 26, 2008, appellant
was informed that the Board denied his application on December 18.
Appellant
filed a petition for writ of mandate on April 2, 2009. However, due to appellant being unable to
make the scheduled court appearances, this petition was dismissed without
prejudice on September 8, 2009.
Appellant filed a second petition for writ of mandate identical to the
first petition on August 30, 2010. A
third petition, again identical to the first petition, was filed on January 20,
2011, under the same case number as the second petition.
Following a
hearing on appellant’s petition, the trial court denied appellant’s request for
relief. In doing so, the trial court
made two factual findings. The court
concluded that appellant: (1) did not meet the six-month deadline to file a
claim with the Board; and (2) did not seek court relief within six months after
the Board denied his claim.
DISCUSSION
Before
suing a public entity for personal
injuries, the plaintiff must present a timely written claim for damages to
the entity. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201,
208.) Such timely claim presentation is
a condition precedent to filing an action against the entity and thus is an
element of the plaintiff’s cause of action.
(Id. at p. 209.) Accordingly, failure to timely present such a
claim bars a plaintiff from maintaining a lawsuit against that entity. (State
of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.)
A claim
relating to a cause of action for personal injury must be presented not later
than six months after the accrual of the cause of action. (Gov. Code, § 911.2.) Since appellant sustained the injury on
February 11, 2008, appellant was required to present his claim no later than
August 11, 2008. The Board did not
receive appellant’s claim by that date.
Appellant
argues that, as a state prisoner, he is entitled to rely on the
“prison-delivery rule,†also known as the “mailbox rule.†This rule provides that a civil complaint by
a pro se prisoner litigant is deemed filed when it is delivered to prison
authorities for forwarding to the superior court. (Moore
v. Twomey (2004) 120 Cal.App.4th 910, 918.)
This rule places the pro se prisoner litigant on equal footing with
litigants who are not impeded by the practical difficulties encountered by
incarcerated litigants in meeting filing requirements. (Ibid.) Pro se prisoner litigants are forced to rely
on correctional authorities, who may be motivated to delay the filing, and if
the pleading is delayed, the prisoner litigants have no way to determine the
cause and possibly obtain evidence to support a finding of excusable
neglect. (Id. at p. 917.)
Applying this rule here,
appellant’s government tort claim should be deemed filed when it was delivered
to prison authorities for forwarding to the Board.
In support of his petition,
appellant submitted a copy of the prison mail log for his outgoing mail. This log has no record of appellant having
delivered his claim to prison authorities on August 3, 2008, or any time thereafter. However, as noted above, the claim had to
have been mailed at some point to have been received by the Board in time for
the Board to deny the claim on September 9.
Appellant argues that the absence of a record of his delivery of the
claim is evidence that the prison officials are lax in the processing of
outgoing prisoner legal mail.
The trial court considered the
evidence before it and made a factual finding that appellant’s claim was not
timely. When the trial court has
resolved a disputed factual issue, if that resolution is supported by
substantial evidence, it must be affirmed on appeal. (Winograd
v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Accordingly, we must resolve all evidentiary
conflicts and draw all legitimate inferences in favor of the trial court’s
decision and, where the evidence supports more than one inference, we may not
substitute our deductions for those of the trial court. (Lake
v. Reed (1997) 16 Cal.4th 448, 457.)
Nevertheless, while we must accept any reasonable interpretation of the
evidence that supports the trial court’s decision, we may not defer to that
decision entirely. Substantial evidence
is not synonymous with any
evidence. It must actually be
“substantial†proof of the factual finding. (McRae
v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th
377, 389.)
It is clear from the record that
appellant delivered his government tort claim to prison officials at some time
before September 9, 2008. However, the
prison mail log has no record of this claim having ever been delivered to, and
processed by, the prison officials.
Thus, it must be inferred that appellant delivered his claim but, for
whatever reason, the prison officials neglected to record the date they
received it. The only evidence of when
appellant delivered this claim was appellant’s declaration that he delivered it
to the mail room on August 3, 2008.
Thus, the only evidence of the timing of the delivery supports a finding
that appellant’s government tort claim was timely. Substantial evidence does not support the
trial court’s contrary decision.
Appellant was informed that his
claim had been denied on December 18, 2008.
Thus, appellant had until June 18, 2009, to seek court relief. (Gov. Code, § 946.6.)
Appellant filed a petition for
relief in the trial court on April 2, 2009.
This petition was served on respondents and thus respondents had notice
within the six month time limit.
Although the hearings on appellant’s petition were continued repeatedly
due to appellant’s nonappearance and this first petition was ultimately
dismissed without prejudice, appellant’s failures to appear were due to
circumstances beyond appellant’s control, i.e., his status as a pro se prisoner
litigant. Appellant attempted to vigorously
pursue his superior court action but was hindered by his status. Nevertheless, appellant began the process in
a timely manner. Accordingly, appellant
sought court relief within six months of the denial of his claim.
DISPOSITION
The
judgment is reversed and the matter is remanded to the trial court for further
proceedings. No costs are awarded. (Cal. Rules of Court, rule 8.278(a)(5).)
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Gomes, J. and Franson, J.
