Opinion
C082918
01-09-2018
DIANN MARIE DAVIS, Plaintiff and Appellant, v. CITY OF SACRAMENTO et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2016-00190947-CU-NP-GDS)
Plaintiff and appellant Diann Marie Davis sought to file a claim against defendant and respondent City of Sacramento (the City) based on her contention that she was unlawfully arrested. She failed to file a claim within the six-month period following her arrest, as required by Government Code section 911.2. The City denied her application to file a late claim. She petitioned the trial court for relief pursuant to section 946.6 claiming the delay was due to counsel's mistake of law. On appeal, she contends the trial court abused its discretion when it denied her petition for relief. We disagree and shall affirm.
Undesignated statutory references are to the Government Code.
Because Davis failed to present the argument under a separate heading or subheading, we deem forfeited Davis's incomplete and surreptitious assertion that because the City presented no evidence demonstrating prejudice it is barred from making such a showing here or if this court should reverse the trial court's order. (Cal. Rules of Court, Rule 8.204(a)(1)(B).)
FACTUAL AND PROCEDURAL BACKGROUND
Davis was involved in a parking dispute on December 3, 2014, at Arden Fair Mall in Sacramento. On February 27, 2015, as a courtesy to the Sacramento Police Department, the El Dorado County Sheriff's Department arrested Davis at her home based on criminal charges for felony vandalism filed as a result of the parking dispute. She was released from police custody on bail the following day—February 28, 2015—at which point she concedes any cause of action she has against the City accrued.
Davis ultimately pleaded no contest to a reduced charge of misdemeanor vandalism on February 9, 2016.
On or about March 25, 2015, Davis retained Michael Cardoza as counsel to represent her in both the criminal matter and any civil complaint against the City based on her assertion that she was falsely arrested. Davis claims Sergeant Michael Lange of the Sacramento Police Department acted with malice in pursuing a felony arrest warrant against her because she "refus[ed] to accept responsibility for something she did not do . . . ." She further contends Lange and the Sacramento Police Department are liable for her false arrest and consequent damages.
Thereafter, on August 21, 2015, Cardoza filed a motion to be relieved as counsel without filing a tort claim against the City pursuant to section 911.2 or informing Davis of the deadline for filing such a claim. Davis subsequently retained Philip Carey as counsel on September 8, 2015. She filed an application for leave to file a late claim with the City on February 26, 2016. The City denied the application on April 11, 2016.
On April 21, 2016, Davis filed her petition for relief with the trial court claiming that her application was presented within a reasonable time due to counsel's mistake of law and her reliance on his advice. The trial court denied the petition. Specifically, the trial court found "Ms. Davis failed to file the claim within the [six]-month period as a result of excusable error" but she "[failed] to meet the requirements of diligence in investigating and pursing the claim within a reasonable time."
DISCUSSION
Davis challenges the trial court's order denying her petition for relief on the basis that it was not filed within a reasonable time. First, she contends the City waived any argument that her application to file a late claim was not presented in a reasonable time because the City included "timely" in the heading of its denial of that application. We conclude that the City made no such waiver because "timely" merely referred to the fact that the application was filed within one year. Second, Davis contends that the trial court abused its discretion when it found her late claim application was not filed in a reasonable period of time because she could not have filed her application until her counsel's mistake of law was discovered, making the delay per se reasonable. We conclude the trial court did not err in denying Davis relief because under the circumstances counsel's mistake of law is not a basis for granting relief from the claim filing requirements.
1.0 Legal Background
Section 911.2 requires that a claim for personal injury or wrongful death against a public entity be filed "not later than six months after the accrual of the cause of action." (§ 911.2, subd. (a).) A party that fails to file a claim within that six-month period can apply to the public entity for permission to file a late claim. (§ 911.4, subd. (a).) Such an application to file a late claim must be presented to the public 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 public entity denies such an application, the party may petition the superior court for relief from the filing requirement pursuant to section 946.6, subdivision (c)(1). (El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 61.) The court shall grant relief from failure to timely file if the party establishes that (1) an application to the public entity for leave to file a late claim was filed in a reasonable period of time (not to exceed one year) after the accrual of the cause of action and (2) the failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect. (§ 946.6, subd. (c)(1); DeVore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 459; El Dorado Irrigation Dist., supra, at p. 61.) Although "notions of mistake, inadvertence, surprise, and excusable neglect necessarily affect the question of reasonable time," they are two separate inquiries. (See El Dorado Irrigation Dist., at p. 62, fn. 5.)
"Under section 946.6, determination of the appropriateness of relief from a failure occasioned by a mistake of law involves application of the same standards as applied under Code of Civil Procedure section 473, namely 'that not every mistake of law is excusable [citations] but that an honest mistake is excusable, the determining factor being the reasonableness of the misconception.' " (Moore v. State of California (1984) 157 Cal.App.3d 715, 722-723.) Thus, where the claimed reason for the failure to file the claim is a mistake of law, the reasonableness of the misconception leading to the failure to timely file under section 911.2 determines whether relief will be granted under section 946.6. (DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 864.)
The trial court's determination to grant or deny a petition for relief under section 946.6 will not be disturbed on appeal except for an abuse of discretion. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275; Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) However, a review limited to "abuse of discretion" does not mean the court's ruling will automatically be upheld. Due to the remedial nature of the statute, it shall be construed in favor of relief whenever possible. (Viles v. State of California (1967) 66 Cal.2d 24, 28-29 (Viles); see Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1411.) All the same, a trial court has broad discretion in ruling on a petition for relief from the claim filing requirement as long as the issue is whether the late claim was presented within a "reasonable time" not to exceed one year after the accrual of the cause of action. (County of Los Angeles v. Superior Court (2001) 91 Cal.App.4th 1303, 1313.)
2.0 Waiver
As an initial matter we reject Davis's claim that the City conceded her application to file a late claim was "timely" in its denial of her application, thereby waiving its right to contend her application was not presented within a reasonable time. She bases this contention exclusively on the inclusion of the word "timely" in the heading of the City's letter denying her application. While the City's letter denying Davis's application to file a late claim does bear the heading, "Denial of Timely Application to Present a Late Claim," it makes no reference as to whether the application was filed within a reasonable time in the denial. It states only that "the [a]pplication . . . presented . . . on February 26, 2016, was denied on April 11, 2016," and advises Davis she may petition the court for relief or seek to consult an attorney. When taken in context, inclusion of the word "timely" in the heading of the letter refers to the fact that the application was filed within the maximum statutory time period of one year from accrual of the cause of action pursuant to subdivision (b) of section 911.4. It does not relate to the separate statutory inquiry whether the application was filed "within a reasonable time." (§ 911.4, subd. (b).) Thus, the City did not waive its right to challenge Davis's petition for relief on grounds that it was not filed within a reasonable time.
3.0 Reasonable Time
As noted above, to prevail on her petition for relief pursuant to section 946.6, Davis had to establish (1) that her application for leave to file a late claim was filed "within a reasonable time" and (2) that the failure to present the claim was due to mistake, inadvertence, surprise, or excusable neglect. (§ 946.6, subd. (c)(1).) Here, the trial court found Davis's failure to file the claim within the initial six-month period was a result of excusable error. Davis does not contest this finding. Rather, we address her contention that because the subsequent delay in filing the application was due to counsel's honest mistake of law, the trial court abused its discretion in denying her petition for relief. We conclude counsel's mistake of law was not reasonable under the circumstances, such that the trial court did not err in concluding Davis's application to file a late claim was not filed "within a reasonable time."
As she did below, Davis argues her counsel's erroneous belief that her tort claim was tolled until her criminal case was resolved was a reasonable mistake of law. Davis presented to the trial court a declaration from Attorney Carey, in which he averred his belief that the criminal case had to be completed before Davis could file her claim against the City. He declared that he had researched the applicable law on proceeding against the City, yet completed thorough research only after the criminal trial concluded on February 9, 2016. He explained that "[a]fter the trial ended with a plea by Petitioner of Nolo Contendere, [he] researched the law on proceeding against the alleged victim and the City of Sacramento, Sacramento Police Department and Sergeant Lange where a plea was entered. It was at this time that [he] discovered [his] mistake that the filing of a government claim was not tolled by a criminal prosecution, although a civil filing was so tolled." This was the only explanation for the lapse of five months from Davis's retention of Carey until the application was filed.
A reasonably diligent experienced attorney who knows that his client has a potential claim against a public entity would investigate the claims presentation requirements of the Government Claims Act. (§ 810 et seq.) Straightforward research into those claims filing requirements would lead counsel to section 945.3, which expressly states that the time for filing a government claim based on an alleged false arrest is not tolled while criminal charges are pending. For example, the Witkin treatise on California Procedure, in its explanation of the time to file a complaint or claim against a public entity, states that for false arrest claims, while section 945.3 tolls the statute of limitations for a civil action against a peace officer or the officer's public entity employer and prohibits the filing of such an action while criminal charges are pending, section 945.3 "expressly provides that its prohibition and tolling provisions do not apply to a claim filed under the Government Claims Act." (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 257, pp. 340-341.) Similarly, The Rutter Group's California Practice Guide on Civil Procedure Before Trial, in its discussion of the time limits to present government claims, provides, in a subsection entitled "Claims by person presently charged with crime," that a criminal defendant cannot maintain a civil action relating to pending criminal charges and that the statute of limitations is tolled while charges are pending. (Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶¶ 1:724 to 1:725, p. 1-162.) The Guide goes on to cite section 945.3, however, for the proposition that "the claim-filing requirement is not [tolled]" and that "any claim for personal injury, death or damage to personal property must be presented within [six] months after the cause of action accrues even though the pending criminal charges bar prosecution of the civil remedy." (The Guide, ¶ 1:724, p. 1-162.) Indeed, in its "practice pointer" it clarifies that "[i]f a client claims police brutality or false arrest in connection with pending criminal charges, [counsel ought to] file a notice of claim immediately with the appropriate governmental entity. Do not wait until the criminal charges are disposed of to decide whether to pursue a civil action. It may be too late." (The Guide, ¶ 1:725, p. 1-162.) Thus, a reasonably diligent counsel who conducted even basic research on initiating a tort action against a governmental entity would become aware of section 945.3 and its effect on the filing of government claims. Therefore, we conclude trial counsel's mistake of law was not a reasonable one. Accordingly, we conclude the trial court did not abuse its discretion when it found "petitioner's action fail[ed] to meet the requirements of diligence in investigating and pursuing the claim within a reasonable time" and denied her petition for relief.
Neither are we persuaded by Davis's argument, based on Viles, supra, 66 Cal.2d 24, that the delay in filing is per se reasonable because counsel could only file the application upon discovering his mistake. Viles is inapposite because, contrary to the layperson in Viles who erroneously relied on his insurance company's representatives' advice that he had one year to file an action for wrongful death, Carey is an experienced attorney. (Viles, supra, 66 Cal.2d at p. 27; see Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479 ["[A] mistake of law may be excusable when made by a layman but not when made by an attorney."].) Moreover, contrary to the mistake made in Viles, we do not believe the mistake made here was of the kind the Legislature intended to alleviate. (See Viles, supra, at pp. 27-31.) For, " '[i]t is not the purpose of remedial statutes to grant relief from defaults which are the result of inexcusable neglect of parties or their attorneys in the performance of the latter's obligation to their clients.' " (Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 157.)
DISPOSITION
The order denying the petition is affirmed. The City shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ, J. We concur: ROBIE, Acting P. J. DUARTE, J.