Opinion
D057970 Super. Ct. No. 37-2009-00104340-CU-PT-CTL
10-18-2011
STEVE KASSAB, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Affirmed.
Steve Kassab appeals from an order denying his petition under Government Code section 946.6 in which he sought relief from the section 945.4 claims filing requirements so as to file an action against the County of San Diego (County). As we understand his arguments, he contends that under Code of Civil Procedure section 583.340, his action was timely filed as a result of a stay order and/or because the action was impossible, impracticable or futile for a period of time, and thus the trial court abused its discretion in denying him relief. We hold Code of Civil Procedure section 583.340 does not govern the timeliness of Kassab's government claim, and Kassab's failure to file a late claim application with County prevents Government Code section 946.6 relief. We further conclude Kassab has not demonstrated either delayed discovery of his cause of action, or surprise, inadvertence or excusable neglect warranting such relief. Accordingly, we affirm the order.
All statutory references are to the Government Code unless otherwise indicated.
Kassab's notice of appeal identifies only the trial court's August 6, 2010 order denying his section 946.6 petition. However, Kassab also makes arguments in his opening brief challenging an order staying discovery in a different action — Kassab v. Leff (Super. Ct. S.D. County, 2008, No. 37-2008-00067025-CU-NP-EC) — which he asserts deprived him of facts allowing him to identify County as the proper defendant. We are without appellate jurisdiction to address the discovery orders because they are not identified in the notice of appeal. (Cal. Rules of Ct., rule 8.100(a)(2); see Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.) Even if they were, they are only appealable from the final judgment in the action in which they were made. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5; Southern Pacific Co. v. Oppenheimer (1960) 54 Cal.2d 784, 785-786.) We note Kassab maintains that the Leff action is related to the present case. However, Kassab did not identify that matter as related in either his civil case cover sheet accompanying his petition in the superior court, or the civil case information statement filed in this court. He cites no authority for the proposition that we may pass on the propriety of discovery orders made in a separate action, even if related to the present case.
FACTUAL AND PROCEDURAL BACKGROUND
Kassab filed a claim "for damages to persons or personal property" (capitalization omitted) with County's claims division on July 20, 2009. He listed June 16, 2008, as the date from which his claim arose. When asked to specify the "particular occurrence, event, act or omission" he claimed caused his injury or damage, Kassab described how his attorney, Brown, represented him in a matter regarding his alleged sale of drug paraphernalia from his smoke shop. He claimed Brown "did not exercise the care required of the fiduciary relationship and breached such duty in that [] in preparation for a jury trial [he] failed to disclose that [he] was not going to call, interview or subpoena any witnesses on [Kassab's] behalf although such witness [sic] existed." He alleged Brown further breached his duty of trust when he "informed the court that [Kassab] was making 'terrorist threats' . . . ." According to Kassab, he was as a result incarcerated for three days and on January 15, 2009, charged with violation of California Penal Code section 422. Kassab alleged that this charge was later dismissed.
Kassab asserted in points and authorities below that June 15, 2008, was the date his private conflicts counsel Lloyd Lee Brown, Jr. (Brown) was appointed to him for another matter. Unsworn assertions in points and authorities, however, are not evidence. (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 454; South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 668, fn. 14.) Nothing in the record corroborates his assertion.
When asked to "[s]tate how or wherein the County of San Diego or its employees were at fault," Kassab alleged "defendants' intentional misrepresentation, deceit, and concealment of material facts known to the defendants with the intention on [their] part . . . of thereby depriving the plaintiff of property and legal rights and have caused sever [sic] injury to plaintiffs." Kassab also alleged "negligence on the part of the public defender's office and violations of his Sixth Amendment right to effective legal counsel." He described his injury in terms of the "racially degrading epithets and commenting to the effect of 'He's a terrorist threat' and that [his family] were Iraqi 'terrorists.' " He also stated he "was booked and spent the night in an excessively cold jail cell before being released the next morning." He claimed Brown's "intentional fabrication of evidence result[ed] in a loss of liberty."
County sent Kassab a notice of returned claims (the notice) on July 22, 2009. It took no action on Kassab's claim on grounds it was "not presented within six (6) months after the events as required by law." On the notice, however, County stated the dates of the relevant incidents were January 15, 2008 and June 16, 2008. The notice also included the following warning: "Since your claims were not presented within one year, you may not apply to the Board of Supervisors for leave to present a late claim under Government Code Section 911.4. Late claim applications must be submitted to the Board of Supervisors no later than one year after the accrual of your claim. . . . Your only recourse at this time is to file a petition to the appropriate court for an order relieving you from the provisions of Government Code Section 945.4 (claims presenting requirement). . . . NOTE: You must file your petition within six months of the date of this notice. Under some circumstances the court may grant relief from the claims presentation requirements."
Kassab filed a petition for relief with the superior court on December 22, 2009. In supporting points and authorities, Kassab characterized his action as one for false imprisonment. He argued his failure to timely file a claim constituted excusable neglect, as it resulted from his inability to learn that Brown was employed by County until after the relevant expiration of the time limit for filing his claim. He asserted that once that fact was discovered, he expeditiously filed a claim against County.
Kassab's petition was heard in August 2010. On the day of the hearing, Kassab sought to file supplemental points and authorities in which he argued that by reason of delayed discovery, his cause of action did not accrue until July 18, 2009. He maintained he could not discover his cause of action because he did not know of County's involvement, and it was not until he amended his complaint that he learned of that circumstance. At the hearing, Kassab argued, among other things, the court's interference with his discovery precluded him from learning of County's involvement with his arrest. He claimed "[his] hands were tied because [the court] took away [his] tools to get the discovery." According to Kassab, County had committed "fraudulent practices" by giving him a license but then allowing the City to arrest him for the sale of drug paraphernalia. During Kassab's arguments, the court observed that Kassab had assumed private conflicts counsel was an actual employee of County; the court remarked that they were independent contractors. It stated it considered the fact that "the independent contractor status of private conflict counsel is not an employment relationship."
At the conclusion of the hearing, the court said to Kassab: "I've tried to make sure that your rights are protected . . . what I have done is, I have not jumped to a conclusion. I have gone through the steps so that perhaps you could show me that something was viable. I had a pretty good idea about how some of these things were going to come out, but I wasn't just going to say that and bar you from filing your complaint, or what have you. I wanted you to have the opportunity to make that point to me. I looked at it, and as in this case, you have not convinced me that you are entitled to it."
The court denied Kassab's petition, reasoning: "Kassab did not submit a late claim application (or any claim) to the County within one year after accrual of the cause of action. [Citations.] Kassab indicates the date of incidents were January 15, 2008[,] and June 16, 2008. Kassab's claim against the County was submitted on July 20, 2009. Moreover, Kassab fails to provide sufficient evidence that his failure to present a timely claim was through mistake, inadvertence, surprise, or excusable neglect. [Citation.] He knew who [Brown] and Craig Leff were and of his claims against them and could have discovered if they were employed by the County well before [the] time lapsed for him to submit a claim."
DISCUSSION
I. Government Claims Presentation Requirements and Procedure
"The Government Claims Act (§ 810 et seq.) 'establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. (§ 945.4.)' [Citation.] '[T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action. . . . The failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity.' [Citation.] 'The policy underlying the claims presentation requirements is to afford prompt notice to public entities. This permits early investigation and evaluation of the claim and informed fiscal planning in light of prospective liabilities.' [Citation.] [¶] 'Claims for personal injury must be presented not later than six months after the accrual of the cause of action, and claims relating to any other cause of action must be filed within one year of the accrual of the cause of action. (§ 911.2, subd. (a).) Timely claim presentation is not merely a procedural requirement, but is a condition precedent to the claimant's ability to maintain an action against the public entity.' [Citation.] 'Only after the public entity's board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against the public entity.' " (California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591.)
"The failure to timely present a claim to the public entity bars the claimant from filing a lawsuit against that public entity. [Citation.] Moreover, because the purpose of the claims is not 'to prevent surprise [but rather] is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation . . . [citations][,] . . . [i]t is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge — standing alone — constitutes neither substantial compliance nor basis for estoppel.' " (California Restaurant Management Systems v. City of San Diego, supra, 195 Cal.App.4th at p. 1591.)
If a claim is not timely presented, the claimant has two potential remedies. First, under section 911.4, "(a) [w]hen a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim. [¶] (b) The application shall 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." And second, "[i]f an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6[],"the claimant may petition the superior court, within six months after denial, "for the trial of an action on the cause of action to which the claim relates. . . . [¶] The petition shall show each of the following: [¶] (1) That application was made to the board under Section 911.4 and was denied or deemed denied. [¶] (2) The reason for failure to present the claim within the time limit specified in Section 911.2. [¶] (3) The information required by Section 910[]." (§ 946.6.)
Section 911.6 states in part: "(a) The board shall grant or deny the application within 45 days after it is presented to the board. . . . [¶] . . . (c) If the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day or, if the period within which the board is required to act is extended by agreement pursuant to this section, the last day of the period specified in the agreement." As defined in section 900.2(a) " '[b]oard' " means "[i]n the case of a local public entity, the governing body of the local public entity."
Section 910 sets forth the required contents of the claim: "(a) The name and post office address of the claimant. [¶] (b) The post office address to which the person presenting the claim desires notices to be sent. [¶] (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. [¶] (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. [¶] (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. [¶] (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case."
As relevant here, section 946.6 provides that the petitioner must establish that "[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 petition from the requirements of Section 945.4." (§ 946.6, subd. (c)(1).) " 'The mere recital of mistake, inadvertence, 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.' . . . [¶] Once it has been shown that an application for leave to file a late claim was made within a reasonable time and that the failure to present a timely claim was through mistake, inadvertence, surprise or excusable neglect, the burden shifts to the public entity to establish by a preponderance of the evidence that it would be prejudiced if the court relieves the petitioner from the six-month claim presentation requirements." (Renteria v. Juvenile Justice, Department of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 909-910.)
II. Standard of Review
We review the trial court's refusal to grant relief under section 946.6 for abuse of discretion. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275; see also Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 64.) "Section 946.6 is a remedial statute intended 'to provide relief from technical rules that otherwise provide a trap for the unwary claimant.' [Citations.] As such, it is construed in favor of relief whenever possible. [Citation.] [¶] The policy favoring trial on the merits is the primary policy underlying section 946.6. [Citation.] In order to implement this policy, any doubts should be resolved in favor of granting relief. [Citation.] Consequently, where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief, denial of relief constitutes an abuse of discretion. [Citations.] In light of the policy considerations underlying section 946.6, a trial court decision denying relief will be scrutinized more carefully than an order granting relief." (Bettencourt v. Los Rios Community College Dist., at pp. 275-276; Ovando v. County of Los Angeles, at p. 64.) Nonetheless, the trial court's discretion is not " 'unfettered' " . . . but is to be" ' "exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.(Bettencourt, at p. 275.) We " 'cannot arbitrarily substitute our judgment for that of the trial court.' " (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1382.)
III. Nature of Kassab's Claims
Because the record was inconsistent, we asked the parties to brief several questions, including (1) whether Kassab's claims as described in his July 20, 2009 claim form were claims "relating to a cause of action for . . . injury to person or to personal property" within the meaning of section 911.2 and (2) whether the relevant date of incident was January 15, 2008, or January 15, 2009.
County responds that Kassab described a breach of fiduciary duty resulting in unlawful incarceration, and also personal injury and personal property damage. Citing State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239, and Toscano v. County of Los Angeles Sheriff's Department (1979) 92 Cal.App.3d 775, it argues claims for negligent and intentional torts, as well as wrongful arrest, are governed by the six-month presentation deadline. County attaches a San Diego Sheriff's Department inmate detail report showing that Kassab was arrested and booked for his Penal Code section 422 offense on January 15, 2008.
For his part, Kassab states each cause of action asserted in his government claim falls within the meaning of "injury to person or personal property" under section 911.2. He concedes his claims were required to have been filed within the six-month presentation deadline. Further, asserting his imprisonment tolled the statutory limitation period, Kassab contends his claim "accrued" on January 17, 2008, when he was released from jail.
Section 810.8 defines "injury" to include "death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person." The six-month period therefore "applies to claims relating to causes of action for personal injury, including not only physical injury but also emotional injury and injury to reputation." (Ovando v. County of Los Angeles, supra, 159 Cal.App.4th at p. 63, fn. 7.) That period has been applied to professional medical negligence claims, as well as claims for intentional infliction of emotional distress. (State v. Superior Court (Bodde), supra, 32 Cal.4th 1234.) Kassab's claims sounding in breach of fiduciary duty, professional negligence, and false imprisonment fall within section 810.8's definition of injury. Were we to conclude otherwise — that his claims were governed by the one-year claims presentation period — Kassab's government claim would still have been filed too late, and further, he would not be entitled to late claim relief, which applies only to causes of action governed by the six-month claims presentation period. (See § 911.4, subd. (a).)
IV. Analysis
"The date of accrual for purposes of the claim presentation requirement is the same date on which the cause of action would accrue for purposes of the statute of limitations in an action against a private party." (Ovando v. County of Los Angeles, supra, 159 Cal.App.4th 42, citing section 901 & Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208-209.) Here, County's records show that Kassab was arrested on January 15, 2008, and released on January 17, 2008. Accepting Kassab's concession that his claim "accrued" on January 17, 2008, he must have filed his claim with County on or before July 17, 2008, for it to have been timely.
On appeal, Kassab contends that his claim was in fact timely because in calculating the six-month period, the trial court was required to exclude the time periods of Code of Civil Procedure section 583.340. That section provides: "In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed: [¶] (a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile." Kassab contends all three of these circumstances existed: that first, "the jurisdiction of the court was suspended during the period of time in which Mr. Kassab filed a claim against the City of San Diego instead of the County of San Diego. Second, Judge Oberholtzer stayed discovery in the related action which debilitated Mr. Kassab from discovering the true identity of the Defendant, County of San Diego. Third, it was impossible, impracticable, and futile to bring an action against the County of San Diego as its involvement was unknown."
Kassab's contention is unavailing. Even assuming a government claim constitutes an "action commenced by cross-complaint or other pleading" within the meaning of Code of Civil Procedure section 583.340 (see Code Civ. Proc., § 583.110), by the statute's own terms, the tolling periods of section Code of Civil Procedure section 583.340 only apply to "the time within which an action must be brought to trial pursuant to this article . . . ." (Code Civ. Proc., § 583.340, italics added.) " ' "A 'trial' within the meaning of [Code of Civil Procedure] section 583 is the determina[tion] of an issue of law or fact which brings the action to the stage where final disposition can be made." [Citation.]' [Citation.] A case is brought to trial if it has been assigned to a department for trial, it is called for trial, the attorneys have answered that they are ready for trial, and proceedings begin, even if the proceeding is a motion for judgment on the pleadings." (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723.) As a matter of law, Code of Civil Procedure section 583.340 does not govern the timeliness of a statutory Government Code claim, which is a prerequisite to the filing of a lawsuit seeking money or damages from a public entity. (Gov. Code, § 945.4.) The procedural posture of Kassab's matter was preliminary to commencement of any lawsuit against County.
Kassab provides no authority compelling us to conclude otherwise. He relies on Ocean Services Corp. v. Ventura Port District (1993) 15 Cal.App.4th 1762, a case discussing the operation of Code of Civil Procedure section 583.340 to toll the five-year period of Code of Civil Procedure section 583.310 ["An action shall be brought to trial within five years after the action is commenced against the defendant"].) In Ocean Services, the court held that the public entity had waived the claims presentations requirements of the claims act and was estopped to assert that a second claim, or an amended claim, was untimely. (Ocean Services, 15 Cal.App.4th at pp. 1776-1777.) Ocean Services did not apply the tolling provisions of Code of Civil Procedure section 583.340 to determine the timeliness of a government claim.
We observe that even were we to apply those tolling provisions to the Government Claims Act deadlines, it would not assist Kassab. His main theory is that the trial court's stay on discovery prevented him from learning that Brown was a County employee, and that the periods of that stay may not be counted toward the six-month deadline. But the California Supreme Court has recently held that a partial stay of that nature will not toll a matter for purposes of Code of Civil Procedure section 583.340; that it must be a stay encompassing all proceedings in the action. (Bruns v. E-Commerce Exchange, Inc., supra, 51 Cal.4th at p. 722.)
Rather, Kassab's appellate arguments sound in a theory of delayed discovery: that by virtue of the court's actions in staying discovery, he was unable to discover the identity of the true defendant — County — and that it was thus impossible, impracticable, and futile to bring an action against it. But the discovery rule does not delay accrual when a claimant cannot identify a defendant; as long as the claimant has a "suspicion of wrongdoing," even if he or she has no reason to know who caused it, the cause of action accrues. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) Kassab's injury as a result of his attorney's alleged negligence was wrongful imprisonment, and he could appreciate the fact of wrongdoing at the time of his January 15, 2008 arrest and incarceration. Accordingly, the delayed discovery rule cannot assist him.
In denying Kassab's motion, the trial court observed that Kassab had submitted neither a timely claim, nor a timely late claim application, to County. Kassab's failure to file a timely late claim application (i.e., within one year of the date his cause of action accrued) was sufficient in itself to deny his motion for section 946.6 relief. Kassab's motion was required to demonstrate that such an application was made to the board under section 911.4 and was denied or deemed denied. (§ 946.6.) He did not do so. Consequently, we have no basis to conclude the trial court abused its discretion in denying Kassab relief. (See Williams v. Mariposa County Unified Sch. Dist. (1978) 82 Cal.App.3d 843, 848 ["The relief provided in section 946.6 is available only if an application for leave to present a late claim is filed with the public entity and is denied or deemed denied"]; Ridley v. City and County of San Francisco (1969) 272 Cal.App.2d 290, 292 ["Without a proper filing [of a late claim application], and rejection of the claims, no right accrues to seek relief in the courts"]; see also Los Angeles City Sch. Dist. v. Superior Court (1970) 9 Cal.App.3d 459, 465 [noting Ridley's holding].)
County points out that even if that were not the case, Kassab does not demonstrate the sort of excusable neglect, inadvertence, mistake or surprise required to obtain relief. We agree relief is not warranted because Kassab has not even attempted any such showing here. (Accord, Ridley v. City and County of San Francisco, supra, 272 Cal.App.2d at p. 292.)
V. Motion to Augment Record/Request for Judicial Notice
Kassab moved to augment the record to include 14 exhibits, including an order allowing an amendment to Kassab's complaint in another matter, another order dismissing a criminal case against Joandark Kassab, various photographs, an ordinance, a State Bar decision, emails, notes, and other pleadings. He alternatively asks us to take judicial notice of these items. We deny Kassab's motion to augment the record on grounds he had not shown any of the items were before the trial court when it considered his petition. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) We likewise deny Kassab's request for judicial notice as he has not demonstrated the relevance of any of these documents to his petition for section 946.6 relief. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)
DISPOSITION
The order is affirmed.
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O'ROURKE, J.
WE CONCUR:
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McCONNELL, P. J.
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HALLER, J.