Opinion
B163798.
11-3-2003
FRANCK KATO, Plaintiff and Appellant, v. THE STATE BOARD OF CONTROL, CALIFORNIA VICTIM COMPENSATION GOVERNMENT CLAIMS BOARD, Defendant and Respondent.
Franck Kato, in pro. per., for Plaintiff and Appellant. Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Silvia M. Diaz, Lead Supervising Deputy Attorney General, and Elizabeth Hong, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Petitioner, Franck K., seeks a writ of mandate directing the Victim Compensation and Government Claims Board to authorize payment to him based on a claim he filed in 1976. We affirm the trial courts denial of Francks petition for mandate. Franck has not shown that (1) he is entitled to the relief he seeks; (2) the denial of his claim was an abuse of discretion; or (3) the 25 year delay in pursuing his remedies was justified by his mental illness.
FACTUAL AND PROCEDURAL BACKGROUND
Franck suffers from mental illness and was found disabled by an administrative law judge in July 1976. The administrative law judge concluded that the disability began in 1974.
The record includes an information alleging that Franck was the victim of an assault with a deadly weapon, and a judgment against the same defendant for child molestation. The judgment does not name Franck as the victim, but, for purposes of this appeal, we accept as true Francks representation that he was the victim.
On September 27, 1976, Franck applied to the Victims Compensation Fund. Francks application was denied because he did not return a questionnaire sent by the Board of Control (now named the Victim Compensation and Government Claims Board) on September 29, 1976. On April 27, 1977, the Board of Control sent Franck a letter stating that it would "deny his application for lack of cooperation and information" on June 6, 1977 unless he submitted the questionnaire prior to that date. Franck did not submit the requested questionnaire, and his application was denied by letter sent June 10, 1977.
On June 7, 1978, The Board of Control sent Franck a letter regarding appeal procedures. That letter thanks Franck for his requested information, but Francks letter is not included in the record. The Board of Controls letter directs Francks attention to Government Code section 13969., subdivision (c)(1), which was added in 1977 and provided: "Judicial review of a final decision made pursuant to this article may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure. . . . [¶] [w]here no request for reconsideration is made, within 30 days of personal delivery or within 60 days of the mailing of the boards decision on the application for assistance."
Undesignated statutory citations are to this Code.
On April 16, 2002, almost 25 years after his application was denied, Franck filed a petition for writ of mandate seeking review of the Board of Controls 1977 decision. Francks petition alleges that he "remember[s] filling out an initial form and then the weight of the event, the incident, the paperwork, became too much for me to handle."
In his appellate brief, Franck states that he "does not remember the circumstances of the initial application at all."
The trial court denied Francks application, finding that the Board of Control did not abuse its discretion in denying the application. Franck appealed.
DISCUSSION
Based on the current record, the trial court could not grant the relief requested by Franck — an order directing the Government Claims and Compensation Board to allow his claim. Under the version of section 13959 in effect at the time Franck filed his claim, to be eligible for relief the claimant must have "as the direct result of a crime suffer a pecuniary loss which they are unable to recoup without suffering serious financial hardship." Pecuniary loss was defined as "the amount of medical or medical related expense and loss of income or support that the victim has incurred or will incur as a direct result of an injury or a death to the extent the victim has not been or will not be indemnified from any other source." (Former § 13960, subd. (d).)
For example, if a victim is unable to work and loses wages as a result of the injury, the victim may receive "a cash payment to the victim equal to the pecuniary loss resulting from loss of wages or support directly resulting from the injury . . . ." (Former § 13965, subd. (a)(2).) However, if the victim receives compensation from some other source, such as workers compensation, then he or she is not entitled to compensation from the victims restitution fund. (Burnsed v. State Bd of Control (1987) 189 Cal.App.3d 213, 219.)
There is no evidence in the record that Franck incurred a pecuniary loss as a direct result of the crime for which he was a victim. Thus, although for purposes of this appeal we assume Franck was the victim of two crimes, there is no evidence to support an award to him because there is no evidence he suffered a pecuniary loss. Indeed, in his petition for writ of mandate, Franck alleges that since May 14, 1975, he has been provided with benefits by the social security administration. This allegation suggests that Franck did not suffer a pecuniary loss as a result of the crimes against him.
The trial courts conclusion that the Control Board did not abuse its discretion in denying Francks claim is also correct. When Franck filed his claim, section 13962, subdivision (c) provided that "[t]he victim shall cooperate with the staff of the State Board of Control in the verification of the information contained in the application. Failure so to cooperate shall be reported to the board, which, in its discretion, may reject the application on this ground alone." Franck did not provide the requested information, reflecting a lack of cooperation.
Franck challenges this conclusion, arguing that if the trial court had considered all of the exhibits documenting his mental illness and had correctly applied Favorite v. County of Los Angeles (1998) 68 Cal.App.4th 835 (Favorite) it would have granted him the relief he sought. We now turn to those arguments.
The exhibits relied on by Franck indicate that an administrative law judge found that Franck was disabled. A letter from a psychiatrist, John Simmons, dated February 23, 1976, indicates that Franck had symptoms of a psychotic break-down as early as 1973 and that he exhibited psychotic symptomology and had been given various medications. Dr. Simmons concluded that Franck was not a good candidate for the State Department of Vocational Rehabilitation because "[t]he patient was unable to complete the necessary forms due to his suspiciousness of that these would be used against him." A letter from Dr. Melvin Sigman indicates that Francks disability continued up to the date of that letter — February 14, 2002.
In Favorite, the court considered section 911.4, which concerns claims against public entities. Section 911.4 provides in pertinent part: "In computing the one-year period under subdivision (b), time during which the person who sustained the alleged injury, damage, or loss as a minor shall be counted, but the time during which he or she is mentally incapacitated and does not have a guardian or conservator of his or her person shall not be counted." The court held that under Section 911.4, "the time within which to file a late claim against a governmental entity is tolled if the claimant is mentally incapacitated and does not have a conservator." (Favorite, supra, 68 Cal.App.4th at p. 836.)
Section 911.4 does not govern this case. Even if we were to assume a similar principle applied, Francks showing falls far short of that made in Favorite to support the tolling of the statute of limitations. Favorite provided a declaration that her physician "had prescribed drugs during 1995 to counteract the zombie-like state and lack of control frequently suffered by patients taking the psychotropic drugs prescribed to Favorite." (Favorite, supra, 68 Cal.App.4th at p. 841.) Based on his prior treatment of Favorite, Favorites physician opined that she "`was able to think for herself and make her own decisions during her period of treatment at Compton Mental Health Clinic from February 1995 through August 1995." (Ibid.) Favorites own declaration indicated that she continued taking drugs that made her feel like a zombie until April 1996.
Here, unlike in Favorite, there is no evidence of the dates when Franck took medication or the effect the medication had on him. Franck does state that he became ill in 1986, but this does not explain the period from 1977 when the Board ruled on his claim to 1986. The distinction between this case and Favorite is significant because the Favorite court emphasized the fact that Favorite filed a claim within two months of being taken off her medication. (Favorite, supra, 68 Cal.App.4th at p. 839.) There is no similar evidence of timeliness in this case or of the reason why the "paperwork became too much for [him] to handle." Thus, Francks reliance on Favorite is misplaced.
In short, the record provides no basis to conclude that Francks 25 year delay was justified.
DISPOSTION
The denial of Francks petition for writ of mandate is affirmed.
We concur: RUBIN, J., BOLAND, J.