Opinion
A149744
09-05-2018
BALWINDER KAUR, et al., Plaintiffs and Appellants, v. CITY OF FREMONT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG16818468)
Amarjit Singh was killed when he was hit by an Amtrak train at a pedestrian crossing in the City of Fremont. Singh's death was ruled a suicide. His family, allegedly in reliance on that conclusion, did not consult an attorney until after the time to file a claim under the Government Claims Act (Gov. Code, § 810 et seq.) expired. After the city denied a request by Singh's wife to file a late claim, his family filed a petition for relief in the superior court, which the court denied. We affirm.
BACKGROUND
Singh was killed on February 20, 2015, around 9:30 a.m., when he was hit by an Amtrak train at a pedestrian crossing. Fremont police responded to the scene and interviewed numerous witnesses. The train engineer and another witness said it appeared that Singh deliberately walked onto the tracks in front of the train, presumably with the intent to commit suicide.
Singh's adult son, who lived with his parents, had filed a missing person report the same day, indicating Singh has been missing since 7:30 a.m.
The next day, a deputy from the Alameda County Coroner's office called Singh's son and told him Singh was the "victim of [a] train collision." The deputy reported that Singh's son "asked him if the police were investigating the death as a suicide or a traffic accident." The deputy asked if "Singh was taking any medications or if he had talked about suicide." His son reported he "only takes eye medication" and had not talked about suicide. According to Singh's son, he was "notified that officials determined the cause of death of my father to be suicide."
In a declaration later prepared and filed by the family's attorney, counsel stated: "I obtained a copy of the Fremont Police Report . . . which related to the accident. . . . The police report stated that the matter was being closed because it was determined the manner of death was by suicide." Counsel further averred: "This is consistent with statements by the family that they [became] aware of representations by City of Fremont officials that the Decedent had committed suicide." However, no declaration by any family member states he or she was told that Fremont officials had determined the cause of death and concluded it was suicide. Indeed, at oral argument, counsel conceded the record did not show that any Fremont official notified the family that the cause of death was suicide, and further agreed "it seemed that it was the [Alameda County] Coroner who most likely called Mr. Singh and said your father committed suicide."
In early November 2015, Singh's wife and son retained an attorney. Singh's three adult daughters, who lived outside the United States, subsequently retained the same attorney.
The following month, the family's attorney filed an application to file a late claim with the City of Fremont. The application was made solely on behalf of Singh's wife, Balwinder Kaur (Kaur). The city denied the application.
Singh's wife and four adult children then filed a petition in the superior court for relief from the claim requirement. They asserted two grounds for relief: (1) that they had relied on Fremont's alleged "misstatement[]" that Singh had committed suicide, and (2) that Singh's wife suffered from a mental disability that prevented her from filing a timely claim. The trial court denied the petition.
DISCUSSION
The Government Claims Act " ' "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. ([Gov. Code,] § 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. . . ." [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." ' " (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1219 (J.J.).)
All further statutory references are to the Government Code.
" 'Claims for personal injury must be presented not later than six months after 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." ' " (J.J., supra, 223 Cal.App.4th at p. 1219.) " 'The failure to timely present a claim to the public entity bars the claimant from filing a lawsuit against that public entity.' " (Ibid.)
However, " 'if the injured party fails to file a timely claim, a written application may be made to the public entity for leave to present such claim. ([] § 911.4, subd. (a).) If the public entity denies the application, [] section 946.6 authorizes the injured party to petition the court for relief from the claim requirements.' " (J.J., supra, 223 Cal.App.4th at p. 1220.)
Section 946.6 provides in pertinent part: "The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time . . . and that one or more of the following is applicable: [¶] (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 945.4. [¶] . . . [¶] (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." (§ 946.6, subd. (c)(1), (3).)
We review the denial of such a petition for abuse of discretion. (J.J., supra, 223 Cal.App.4th at pp. 1220-1221.)
Singh's Adult Children
At oral argument, Fremont's attorney observed that only Singh's wife, Kaur, filed an application with the city for leave to present a late claim. And, indeed, the application filed with the city identifies the claimant solely as Kaur, as does the declaration of attorney David Kleczek filed in support of the application ("I am the attorney for Balwinder Kaur, the claimant in this matter. . . .").
While appellants objected to Fremont's belated observation, appellants do not, and cannot, dispute what the record plainly shows—that Singh's adult children failed to file an application for leave to file a late claim. As a consequence, they were not entitled to seek relief in the superior court. "Filing a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition. [Citation.] When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under [] section 946.6." (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779.)
That this jurisdictional impediment was not brought to the attention of the superior court and, as a result, the court heard and denied their petition on other grounds, is immaterial. Regardless of the reason given by the court, " ' "[a] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." ' " (People v. Zapien (1993) 4 Cal.4th 929, 976.)
Accordingly, as to Singh's adult children, the petition was properly denied on jurisdictional grounds, alone.
Singh's Wife
Excusable Neglect
Singh's wife, Kaur, maintains she failed to timely file a claim due to mistake and surprise. She asserts that she and her children "had certainly been mistaken for believing the City of Fremont when they said Mr. Singh committed suicide," and they were "surprised when they found out that the claims by the City of Fremont were not true."
"The showing required of a petitioner seeking leave to file a late claim on these grounds is the same as that required by Code of Civil Procedure section 473 for relieving a party from default judgment. [Citations.] [¶] . . . [¶] 'Excusable neglect' is defined as the act or omission that might be expected of a prudent person under similar circumstances. [Citation.] It is not shown by the mere failure to discover a fact until it is too late; the party seeking relief must establish that in the exercise of reasonable diligence, he failed to discover it." (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 43-44, italics omitted (Department of Transportation).) "The law neither expects nor requires an unsophisticated claimant to undertake an in-depth investigation into the possible liability of public entities, or to be aware of the peculiar time limitations of the governmental claims statutes. However, California cases are uniformly clear that 'a petitioner may not successfully argue excusable neglect when he or she fails to take any action in pursuit of the claim within the six-month period.' " (Id. at p. 44, italics omitted.)
Department of Transportation states a " 'claimant must, at a minimum, make a diligent effort to obtain legal counsel within six months after the accrual of the cause of action.' " (Department of Transportation, supra, 105 Cal.App.4th at p. 45, italics omitted.) Other cases state the standard slightly differently—"the question is whether 'the failure to seek counsel could itself be considered the act of a reasonably prudent person under the same or similar circumstances.' " (DeVore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 462, italics omitted (DeVore), quoting Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1385.)
"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. 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.' " (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.)
Kaur submitted two declarations in support of her petition for relief—her own and that of her son. Neither recites any attempt to discover facts about the incident during the six-month claim limitations period. Singh's son stated: "On February 20, 2015, my father did not return home from his daily walk. We reported him as a missing person.
On or about February 21, 2015 I was notified that officials determined the cause of death of my father to be suicide. [¶] I relied upon the reports which stated that my father committed suicide in that I did not believe I could pursue any claim on behalf of my father if he did in fact commit suicide. [¶] In reliance on this information, I did not take any action to pursue a claim for father's death until contacting my current counsel in November 2015. I now no longer believe my father committed suicide."
In short, Kaur's excuse for taking no action is that she and her children allegedly mistakenly believed the cause of death determination made by an official her attorney now concedes was not a Fremont officer or official, and most likely was an employee of the Alameda County Coroner's Office. She relies principally on two cases. Both are readily distinguishable.
The first is John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445 (John R.). In that case, a 14 year old boy was allegedly sexually molested by a teacher, and the principal issue before the Supreme Court was whether the school district could be held vicariously liable for the teacher's conduct. (Id. at p. 441.) However, the court initially addressed the "threshold" question of whether the requirements of the Government Claims Act had been met. (Id. at p. 443.) The court concluded the circumstances warranted remand for a factual determination as to whether the district was equitably estopped from raising the statute's limitations period. (Id. at pp. 444-446.) The child claimed he had been encouraged by the teacher to join a student work-experience program assisting teachers with such tasks as correcting papers and for which he would be paid and earn credit. The district allowed the work to be performed at a teacher's home. (Id. at p. 442.) The teacher in question either encouraged or required the boy to come to his apartment, and over time fostered a close relationship. Finally, the teacher started pressuring the boy to engage in sexual acts, threatening to give the child failing grades or to accuse him of seducing the teacher, if the boy did not agree to do so. (Ibid.) Eventually, the child succumbed to the pressure and on one occasion engaged in sexual acts. When the child threatened to tell his parents, the teacher threatened to "retaliate." The child remained silent for 10 months before telling his father. (Ibid.)
As Kaur points out, the Supreme Court did, indeed, observe that "[i]t is well settled that a public entity may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act. [Citations.] Estoppel most commonly results from misleading statements about the need for or advisability of a claim; actual fraud or the intent to mislead is not essential." (John R., supra, 48 Cal.3d at p. 445.) The court went on to state that "[a] fortiori, estoppel may certainly be invoked when there are acts of violence or intimidation that are intended to prevent the filing of a claim." (Ibid., italics omitted.) The court, thus, concluded the time to file a claim was "tolled during the time that the teacher's threats prevented" the plaintiffs from pursuing their claims, and remanded for the trial court to revisit the issue of equitable estoppel and the timeliness of the claims filed with the district. (Id. at p. 146.)
The circumstances in the instant case are not remotely comparable to those in John R. Kaur makes no claim that any Fremont official threatened her or her adult children in any way, or took some affirmative act to prevent or deter them from filing a claim. Singh's son's assertion that he "did not believe [he] could pursue any claim on behalf of [his] father if he did in fact commit suicide" is not close to being enough to either "toll" the claims limitation period or to raise a triable issue as to whether Fremont is estopped from relying on the claims statute.
The second case Kaur relies on is DeVore, supra, 221 Cal.App.4th 454. In that case, a motorcyclist was thrown from his motorcycle while trying to avoid a multi-car accident caused by a driver who was under the influence. (Id. at p. 457.) The motorcyclist died of his injuries, and afterwards, his family was "in contact with the victim liaison in the prosecutor's office over the next few months." (Ibid.) At no time did anyone from the prosecutor's office tell them the intoxicated driver had been stopped by a highway patrol officer earlier in the evening. (Ibid.) They first learned about the stop at the driver's preliminary hearing, and further learned that the officer had stopped the driver for speeding and had issued only a verbal warning, not a citation. (Id. at pp. 457-458.) The officer claimed not to have seen "any indicium of intoxication." (Ibid.) The family immediately contacted the victim liaison and the prosecutor, and sought advice about consulting an attorney about pursuing an action against the California Highway Patrol for failing to prevent the accident. (Ibid.) The prosecutor opined "it would be a hard case to prove," and "it would not be easy to find an attorney to take the case." (Ibid.) Within three months of talking with the prosecutor, but after the claim limitations period had expired, the family retained an attorney who filed a petition for leave to file a late claim, which the court denied. (Ibid.) The Court of Appeal reversed. (Id. at p. 464.)
In concluding that the trial court had abused its discretion in denying the petition, the DeVore court explained "the failure to engage an attorney before learning about the earlier traffic stop (and through that the public entity's potential connection with the accident) was the omission of a reasonably prudent person under similar circumstances." (DeVore, supra, 221 Cal.App.4th at p. 463.) The failure to take any action to investigate during the claims period was excusable because there was no " 'readily available source of information from which the potential liability of [the public] entity [could] be discovered.' " (Id. at p. 461, italics omitted.)
Kaur's attorney claimed at oral argument that DeVore is "on all fours" because "the latent defect here" is "that the family was told [] [it] was suicide." However, Kaur makes no claim that anyone connected with the City of Fremont "hid" or failed to disclose material information. All that happened here is an unidentified public agency, apparently the Alameda County Coroner's Office, reached its own conclusion as to the cause of the accident. Kaur cites no case remotely suggesting that this, alone, was sufficient to excuse her from conducting her own investigation and timely filing a claim. Indeed, nothing prevented Kaur from looking at the train crossing and formulating a claim that Singh's death was an accident resulting from an allegedly dangerous condition of public property.
Disability
Kaur also maintains she suffered from a mental disability which prevented her from timely filing a claim. She stated in her declaration: "After my husband's death through at least October 2015 I was unable to carry out any ordinary duties and was disabled due to my mental health conditions identified by Dr. Bhupinder Bhandari."
Kaur attached to her declaration a United States Citizenship and Immigration Services form entitled "Medical Certification for Disability Exceptions," prepared by Dr. Bhandari. The form states it "is intended for an applicant who seeks an exception to the English and/or civics requirements due to a physical or developmental disability or mental impairment that has lasted, or is expected to last, 12 months or more." The form is dated July 21, 2015, and Bhandari stated therein that Kaur suffered from social phobia, panic disorder, and anxiety disorder, which caused her to have "difficulty retaining new information and thus she is unable to learn a new language like English and also U.S. civics." Bhandari also noted Kaur "recently lost her husband in a car accident five months ago (02/2015) and she is grieving. This has further affected her memory adversely." Bhandari indicated he had "been regularly treating Mrs. Kaur for a variety of ailments," but did not indicate when those treatments, or her underlying health conditions, began.
Bhandari was in error in stating Singh was in a "car" accident; he was walking when he was hit by the train.
Neither Kaur's declaration, nor the immigration form establish that Kaur was "mentally incapacitated during all of the time . . . for the presentation of the claim and by reason of that disability failed to present a claim during that time." (§ 946.6, subd. (c)(3), italics added.) Even overlooking the hearsay problem, Bhandari's statements in the form do not specify when Kaur's claimed mental disabilities began, nor do they remotely suggest these disabilities prevented her from filing a claim. While Bhandari notes Kaur was grieving for her husband, "[s]ignificant emotional anguish and depression on the part of those immediately affected may be expected in virtually every major personal injury and wrongful death case. [Citation.] The Legislature obviously did not believe these conditions could provide an escape hatch from the claim-filing requirement." (Department of Transportation, supra, 105 Cal.App.4th at p. 46.) As in Department of Transportation, "no evidence was offered that these conditions substantially interfered with [her] ability to . . . take care of [her] personal and business affairs, or seek out legal counsel. Moreover, it does not explain the total lack of diligence on the part of decedent's children, who were not involved in or witnesses to the accident." (Ibid.)
Accordingly, there was no abuse of discretion in the denial of Kaur's petition for relief from the claim statute.
DISPOSITION
The order denying the petition for relief from the claims filing requirement is affirmed. Respondent to recover costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.