Opinion
Rehearing Denied Dec. 26, 1962.
For Opinion on Hearing, see 31 Cal.Rptr. 44, 381, P.2d 924.
Walkup & Downing, Bruce Walkup, San Francisco, William B. Boone, Santa Rosa, for appellant.
Harold A. Parichan, Fresno, for respondent.
CONLEY, Presiding Justice.
Appeal from an order of the Superior Court of Fresno County denying the petitioner leave to file a late claim against a public entity. Leonard I. Meyers, Judge. Affirmed.
The petitioner, Millie Thompson, applied to the Superior Court of Fresno
'715. Time for presentation of claim; accrual of cause of action
'A claim relating to a cause of action for * * * physical injury to the person * * * shall be presented as provided in Section 714 not later than the one hundredth day after the accrual of the cause of action. * * *
'For the purpose of computing the time limit prescribed by this section, the date of accrual of a cause of action to which a claim relates is the date upon which the cause of action accrued within the meaning of the applicable statute of limitations.'
'716. Presentation of claim after expiration of time; grounds
'The superior court of the county in which the local public entity has its principal office shall grant leave to present a claim after the expiration of the time specified in Section 715 if the entity against which the claim is made will not be unduly prejudiced thereby, where no claim was presented during such time and where:
'(a) Claimant was a minor during all of such time; or
'(b) Claimant was physically or mentally incapacitated during all of such time and by reason of such disability failed to present a claim during such time; or
'(c) Claimant died before the expiration of such time.
'Application for such leave must be made by verified petition showing the reason for the delay. A copy of the proposed claim shall be attached to the petition. The petition shall be filed within a reasonable time, not to exceed one year, after the time specified in Section 715 has expired. A copy of the petition and the proposed claim and a written notice of the time and place of hearing thereof shall be served on the clerk or secretary or governing body of the local public entity not less than 10 days before such hearing. The application shall be determined upon the basis of the verified petition, any affidavits in support of or in opposition thereto, and any additional evidence received at such hearing.'
The allegations of the petition and the affidavits filed by petitioner may be summarized as follows: Petitioner entered the Fresno County General Hospital about July 11, 1960, with a complaint of neck pain radiating into the left shoulder and arm; she remained there for two days for treatment and diagnostic purposes; she was discharged to her home about July 13, 1960, with a diagnosis of myositis of the cervical musculature. The petitioner was readmitted as a county hospital patient about July 27, 1960, for further treatment and examination; during the second period of hospitalization the county employees advised petitioner that she required surgery to her neck; the surgery was negligently carried out about July 28, 1960, by county employees by means of procedures and instrumentalities unknown to petitioner, and as a result of negligence of county employees Walter C. Loeffler and Robert G. Lippert in performing the operation, petitioner sustained an injury to the spinal cord by reason of which her arms and legs were paralyzed following the surgery on July 28, 1960. Thereafter, on the same date, county employees performed an exploratory operation in the region of the prior surgery, but petitioner's condition was not remedied, and she remained paralyzed. After the exploratory operation petitioner was advised by the county employees that her condition of paralysis had been caused by a stroke suffered immediately following the first surgery. This advice was knowingly false. Petitioner alleged that she was ignorant of medical matters, having had only a grammar school education, and she accepted the There was a stipulation between the parties that the petitioner did go to the county hospital on certain dates from October 7, 1960, to January 25, 1961, that she was taken to the hospital on those occasions by ambulance and on a gurney and that her physical condition has remained substantially the same as it was September 28, 1960, except for some gradual improvement. The County of Fresno did not produce any affidavit or other evidence on the hearing.
The county made no contention at the hearing that it would be prejudiced by the presentation of the claim at this time; the decision of the trial court is not based on that theory. The county did not dispute the fact that the petitioner was and is totally incapacitated.
The trial court in denying the petition stated in writing the rationale of its ruling as follows:
'The Court felt that the physical incapacity of the plaintiff to file a claim was clearly established; that the affidavit of the plaintiff also clearly shows that physical incapacity was not the cause of the failure to file the claim during the one hundred days following July 28, 1960.
'Government Code Section 716 authorizes the Court to grant leave to present a claim after the 100-day period if 'the claimant was physically or mentally incapacitated during all of such time and by reason of such disability 'The plaintiff's petition shows that a claim was presented within one hundred days after discovery of the alleged malpractice. The timeliness of the claim should be determined by the provisions of the Government Code Section 715, which includes the method to be used in computing the time limits involved.'
In this case, if the petition and affidavits are factually correct, the cause of action did not accrue earlier than June 7, 1961. In an action for tort based on malpractice '* * * the statute of limitations does not commence to run until the plaintiff discovers his injury or through the exercise of reasonable diligence should have discovered it.' (Mock v. Santa Monica Hospital, 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555, 560.) (See also Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 806, 327 P.2d 131, 80 A.L.R.2d 360; Stafford v. Shultz, 42 Cal.2d 767, 776, 270 P.2d 1; Trombley v. Kolts, 29 Cal.App.2d 699, 709, 85 P.2d 541.) The claim was filed within 100 days thereafter.
The applicant has specifically stated under oath that she did not discover the facts constituting the alleged malpractice for many months after their alleged occurrence and that she thereupon filed a claim with the governmental entity within the time provided by statute. In view of this sworn testimony and the basic theory of the applicant, it is difficult for us to understand why she should now seek permission to file a claim against the county on a different theory, one which presupposes that she knew or should have known of the alleged malpractice within 100 days of its actuall occurrence. Presumably, the petitioner will proceed to trial on the theory which is backed by her oath.
In denying the relief sought by the petition, the trial judge took into consideration the fact that a claim had already been filed against the county on petitioner's theory that the cause of action did not arise earlier than June 7, 1961. The trial court also took the position that subdivision (b) of section 716 of the Government Code means just what it says when it requires that in order to secure leave to file a late claim a petitioner must not only be physically incapacitated but must show as a fact that she failed to present a claim during the prescribed time 'by reason of such disability.' The trial court found on the evidence before it that the petitioner's failure to file a claim within 100 days after the alleged malpractice was not 'by reason of such disability.' There is ample ground for such a view, for the petitioner herself avers that she did not file her claim earlier because she did not know that any malpractice had taken place. The Legislature has prescribed the conditions precedent to relief under section 716 of the Government Code, as above noted, and the trial court has found on substantial evidence that they do not exist; we can not, under the law, interfere with this finding of the trial court or with the order based thereon. (Berniker v. Berniker, 30 Cal.2d 439, 444, 182 P.2d 557.)
The order denying the petition to file a late claim is accordingly affirmed.
BROWN, J., concurs.
STONE, Justice.
I dissent. Since the county filed no counteraffidavits, we must accept as true the allegations of petitioner that county employees negligently injured her spinal cord in performing an operation; that by reason of said negligence she became a quadriplegic; that since the operation she has been completely unable to move her arms or legs, a bed patient, unable to even sit in a wheelchair. Further, we must accept as true the allegation that employees of the county told her that her complete disability was caused by a stroke suffered immediately following the surgery; that the statement was false; that the employees knew it was false and intended that petitioner should rely upon it. More than 100 days elapsed after the negligent surgery and also before petitioner learned the real cause of her quadriplegic condition. She learned it then only because her sister became suspicious of the explanations given by county employees. Her sister engaged counsel who filed a claim with the county although more than 100 days had elapsed after the operation. The claim, however, was filed within 100 days after discovery of the fraud. To be certain that petitioner's claim was timely filed in compliance with Government Code section 715, her counsel also filed the petition which is now before us, for permission to file a late claim as provided by Government Code section 716.
The pertinent provisions of sections 715 and 716 of the Government Code are set forth in the majority opinion, but it is necessary to repeat the portion which I believe governs here, namely, subdivision (b) of section 716. This subdivision authorizes the court to allow a claim to be filed after 100 days have elapsed provided: 'Claimant was physically or mentally incapacitated during all of such time and by reason of such disability failed to present a claim during such time; * * *' The trial court, by its memorandum opinion, found that the physical incapacity of petitioner to file a claim was clearly established, but held that this incapacity was not the reason petitioner failed to present a claim during the 100-day period.
To me the crucial question is whether this court will recognize mental incapacity that stems from a condition other than mental illness or damage to the brain as being within the purview of section 716. In making this determination the facts must be viewed in their totality. The negligent operation and the fraudulent statement that petitioner's condition resulted from a stroke were all part of one transaction. Petitioner, as a quadriplegic, was unable to move any of her four limbs; she was unable to turn over or even to move in bed; she had to be bathed, fed and clothed. Being unable to sit in a wheelchair, she was, for practical purposes, a basket case with four completely immovable limbs. This physical condition resulted in a mental depression and confusion which interfered with her ability to think, to doubt or question the statements of the county employees, or to analyze her situation and the circumstances which caused it. Upon this mental condition was superimposed the fraudulent statement that her condition was caused by a stroke, a statement which, if true, would completely relieve the county of liability. This false and pernicious representation developed in the mind of the victim, who was already distressed because of her hopeless physical condition, a mental condition of despair which resulted in inaction. Thus petitioner's failure to investigate and failure to file an action did result, in my opinion, from a mental state induced by the acts and statements of the county employees.
Since the facts alleged are without refutation, it appears to me that the petition comes within the purview and intent of Government Code section 716. The statute is clearly remedial and demands a liberal construction.
The majority opinion points out that petitioner filed a claim within 100 days from the date she alleges she discovered the fraud. I do not construe this fact to be determinative, since there may be comparable cases in the future in which no claim is filed within 100 days because of a mental condition. This opinion would be precedent in such future cases for a refusal to recognize a mental condition short of mental illness or brain damage as within the rationale of Government Code section 716.
Equally important is the fact that the majority opinion will permit the county to set up by way of answer the defense that petitioner did not file a claim within 100 days after the operation was negligently performed. Certainly where all of the facts are admitted, as here, and where the failure to file was induced by the actions and statements of county employees, there is no reason why the county should be able to I would reverse the order and permit petitioner to file a late claim against the county.
Rehearing denied; CONLEY, P.J., and STONE, J., dissenting.