Opinion
C080484
10-24-2017
RAY STEVENS, Plaintiff and Appellant, v. CITY OF ELK GROVE, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 34-2014-00172853-CU-PT-GDS)
After appellant Ray Stevens presented a late government claim to respondent City of Elk Grove (the City) for personal injuries allegedly sustained from excessive police force used while arresting him for petty theft, the City returned the claim without action as untimely and denied a subsequent application for leave to file a late claim. Stevens then missed the deadline to file a petition in the superior court under Government Code section 946.6 to relieve him of the government claim presentation requirement under section 945.4. The trial court denied the petition as untimely, and also found that Stevens failed to establish his late government claim was the result of mistake, inadvertence, surprise, or excusable neglect.
The City's motion to augment the record on appeal is granted.
Undesignated statutory references are to the Government Code.
On appeal, Stevens challenges the court's latter finding, but does not argue that the court erred in concluding his petition for relief was untimely. We conclude the court properly denied Stevens's petition seeking relief from California's government claims presentation statutes because he missed the mandatory six-month deadline under section 946.6 for filing his petition for relief. Because this issue is dispositive, we do not address his contention that the court erred in finding that his late claim was not due to an excusable mistake of law or fact.
FACTUAL AND PROCEDURAL BACKGROUND
On July 27, 2013, an Elk Grove police officer arrested Stevens for petty theft. He was convicted and jailed. He was released from custody on September 22, 2013.
On February 20, 2014—more than six months after his arrest—Stevens presented a government claim with the City for personal injuries allegedly sustained during the arrest. According to Stevens, the arresting officer used excessive force by handcuffing him too tightly, which injured his right hand and wrist. He also claimed he was left in a hot police car for extended periods of time without proper ventilation.
The City determined that the deadline for presenting Stevens's claim was January 27, 2014, six months after his arrest. Because Stevens missed that deadline by nearly a month, the City returned the claim without action as untimely. The letter returning the claim to Stevens included the following text in boldface type: "WARNING [¶] Subject to certain exceptions, you only have six (6) months from the date this notice was personally delivered or deposited into the mail to file a court action on this claim. (See Government Code Section 945.6.)" It also informed him that he could file an application with the City for leave to present a late claim.
On April 24, 2014, Stevens filed an application with the City for leave to present a late claim based on his mistaken belief that the six-month period to file a personal injury claim was tolled while he was incarcerated. The application was deemed denied by operation of law on June 8, 2014, and the City notified Stevens of the denial two days later. The City's letter informing Stevens of the denial stated, in part: "WARNING [¶] If you wish to file a court action on this matter, you must first petition the appropriate court for an order relieving you from the provisions of Government Code Section 945.4 (claims presentation requirement). See Government Code Section 946.6. Such petition must be filed with the court within six (6) months from the date your application for leave to present a late claim was denied."
On December 12, 2014, Stevens petitioned the Sacramento County Superior Court for an order relieving him from the claim presentation requirement in section 945.4. The petition recites that his declaration is attached as an exhibit, but no declaration was attached. He did not serve a copy of the petition on the City.
In late June 2015, Stevens filed a motion for relief from section 945.4 based on a mistake of fact and a mistake of law, asserting he mistakenly believed that his time to present a personal injury claim to the City was tolled while he was incarcerated. Although the motion recites that it is based on his attached declaration, it does not appear any such declaration was presented to the trial court. The City opposed the motion, arguing Stevens was barred by the statute of limitations, his underlying claim was untimely, and that the City properly denied Stevens's request to file a late claim. Stevens's reply stated that "while incarcerated [he] contacted Attorney through letters and phone calls and the only information he obtain[ed] while incarcerated was the misunderstanding about tolling."
The court issued a tentative ruling denying Stevens's motion and petition for relief. The basis for the court's ruling was twofold. First, the court found that the petition was untimely because under section 946.6, subdivision (b)(3) Stevens was required to file the petition by December 8, 2014, but did not file it until December 12, 2014. Second, the court found that even if the petition were timely Stevens did not show that his failure to present the claim to the City was due to mistake, inadvertence, surprise, or excusable neglect. Stevens presented no evidence that he made any effort to determine the applicable claims presentation requirements, to consult an attorney, or otherwise take reasonable steps to file his claim. Although Stevens's reply stated that he contacted an attorney while incarcerated, the court noted that the statement was not contained in a declaration under penalty of perjury and failed to set forth specific details regarding his attempts to retain legal counsel or to investigate his claim.
After Stevens withdrew his request for a hearing on the motion, the court's tentative ruling became final. Stevens timely appealed.
DISCUSSION
Stevens contends the court erred in denying his petition for relief from section 945.4, which requires that before suing a public entity for damages a claimant must present his claim to the entity within certain specified time periods. Although the court denied the petition on two grounds—(1) because it was untimely under section 946.6, and (2) because he failed to show he presented his claim late because of an excusable mistake of law or fact—Stevens challenges only the court's excusable mistake finding. He claims he filed the petition within the period specified by section 946.6, and, thus, does not address the court's contrary ruling.
A review of the record reveals Stevens did not timely file his petition with the court. We therefore conclude the court did not abuse its discretion in denying the petition on that basis. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275 ["The decision to grant or deny a petition seeking relief under section 946.6 is within the sound discretion of the trial court and will not be disturbed on appeal except for an abuse of discretion."].) Given this conclusion, we need not address Stevens's argument that an excusable mistake of law caused him to present a late claim to the City.
Under the Government Claims Act (§ 810 et seq.), "with some exceptions, a suit for damages may not be brought against a public entity unless a written claim has been presented to the public entity and has been totally or partially denied by that entity's governing board, or has been deemed rejected by the board due to the board's failure to act upon it within a specified time" (D.C. v. Oakdale Joint Unified School Dist. (2012) 203 Cal.App.4th 1572, 1575 (Oakdale), citing § 945.4). Section 945.4 provides in part: "Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . . ."
"A claim must be presented within a statutory deadline, usually within six months of accrual of a cause of action." (Oakdale, supra, 203 Cal.App.4th at p. 1575.) For example, section 911.2 provides that a claim for personal injuries against a public entity must be presented to the entity within six months of when the cause of action accrues. (§ 911.2, subd. (a) ["A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented . . . not later than six months after the accrual of the cause of action."].)
A cause of action accrues for purposes of the Government Claims Act at the same time a similar action against a nonpublic entity accrues for purposes of applying the relevant statutes of limitations. (§ 901.) "As a general rule, the date of accrual is the date the plaintiff incurred injury as a result of the defendant's alleged wrongful act or omission." (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1078.)
If a personal injury claim is not presented within six months of accrual, the claimant may apply for leave to present a late claim under section 911.4. That statute provides, "When 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." (§ 911.4, subd. (a).)
The board shall grant or deny the application for leave to present a late claim within 45 days after it is presented to the board. (§ 911.6, subd. (a).) The board must grant the application under certain circumstances, including where "[t]he failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its defense of the claim by the failure to present the claim within the time specified in Section 911.2." (§ 911.6, subd. (b)(1).) If the board fails or refuses to act on an application within 45 days, "the application shall be deemed to have been denied on the 45th day . . . ." (§ 911.6, subd. (c).) Once an application for leave to present a late claim is denied or deemed denied, a claimant has six months to petition the superior court for an order relieving him of the claim presentation requirement in section 945.4. (§ 946.6, subds. (a), (b).)
The six-month period in section 946.6 "operates as a statute of limitations. It is mandatory, not discretionary." (Oakdale, supra, 203 Cal.App.4th at p. 1582.) " 'The intent of the Tort Claims Act "is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances . . . ." ' " (Ibid.)
The Government Claims Act was formerly known at the Tort Claims Act. (See City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741-742 [to reduce confusion over the application of the claim requirements to tort and contract claims, the Supreme Court declared it would henceforth refer to the Tort Claims Act (§ 810 et seq.) as the Government Claims Act]; see also Stats. 2012, ch. 759, § 5 [amending § 810 to adopt the short title "Government Claims Act"].)
Notably, in interpreting the predecessor statute to section 946.6 (former § 912), the court in Dominquez v. County of Butte (1966) 241 Cal.App.2d 164, 167 (Dominquez), held that the deadline for petitioning the court for relief from the claims presentation requirement was jurisdictional. A court had no jurisdiction to consider any petition made after the prescribed period had expired. (Ibid.) According to Dominquez, "[n]o good reason appears for a determination that the legislative intent in enacting section 912 was that a claimant, dilatory in presenting a claim against a public body and being permitted to apply to that body for relief therefrom, should, when such relief is denied, not be held to a strict compliance with the time requirement for application to the superior court for relief." (Id. at p. 168; see Lineaweaver v. Southern California Rapid Transit Dist. (1983) 139 Cal.App.3d 738, 741 (Lineaweaver) [no distinction in mandatory nature of deadlines in § 946.6 and its predecessor statute, former § 912].)
In this case, the trial court denied Stevens's petition because it was not filed within the six-month period proscribed by section 946.6. The record amply supports the court's finding.
Stevens filed his application for leave to present a late claim to the City on April 24, 2014. After determining that Stevens's reason for presenting a late claim—that he was incarcerated for a portion of the claims period—was insufficient to grant relief, the City did not take any action on the claim and it was deemed denied 45 days later on June 8, 2014. (See Code Civ. Proc., § 352.1, subd. (b) [disability of imprisonment does not apply to an action against a public entity upon a cause of action for which a claim is required to be presented under the Government Claims Act]; Moore v. Twomey (2004) 120 Cal.App.4th 910, 914 ["The statute of limitations for commencing a government tort claim action is not tolled by virtue of a plaintiff's imprisonment."].)
The City notified Stevens in writing two days later that his application had been denied by operation of law on June 8, 2014. As required by statute (§ 911.8), the denial notice warned Stevens that if he wanted to file a court action on the matter, he first had to petition the appropriate court for an order relieving him from the provisions of section 945.4, the claims presentation requirement. The letter further warned that "[s]uch petition must be filed with the court within six (6) months from the date your application for leave to present a late claim was denied."
Stevens's deadline for petitioning the court for relief from section 945.4 was thus December 8, 2014—six months after his application was deemed denied on June 8. Although his opening brief claims he filed his petition "within the six months from the date his application was denied," the record shows otherwise.
The file-stamped copy of his petition is dated December 12, 2014. Thus, rather than timely filing the petition as he contends, Stevens actually filed the petition four days late. The court's conclusion that the petition was untimely was therefore proper. Because the six-month deadline in section 946.6 is mandatory and jurisdictional (Dominquez, supra, 241 Cal.App.2d at p. 167; Lineaweaver, supra, 139 Cal.App.3d at p. 741), the court properly denied the petition.
Having determined that the court lacked jurisdiction over the petition and properly denied it as untimely under section 946.6, we need not address Stevens's argument that the court erred in concluding his mistaken belief that his period of incarceration tolled the deadline for presenting his claim to the City was excusable. We briefly note, however, that the same defect found by the court below—the complete lack of evidence showing Stevens made any effort to obtain legal counsel or otherwise investigate his claim within the six-month period after the cause of action accrued—is repeated on appeal.
Stevens asserts, without appropriate citation to the record, that he contacted an attorney in writing while incarcerated to investigate his potential claim, but the attorney informed him that he was not available to be retained because he did not practice in that area of law. He also asserts that he telephoned five additional attorneys listed in the phone book, but none would take his case. No documents in the record support such contentions, and we denied Stevens's request for judicial notice of materials that were not submitted for the trial court's consideration. --------
DISPOSITION
The order denying Stevens's petition for relief from the claim filing requirements in Government Code section 945.4 is affirmed. In the interests of justice, each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (5).)
BUTZ, J. We concur: ROBIE, Acting P. J. DUARTE, J.