Opinion
A146615
02-09-2018
SERGEI ZHIROV et al., Plaintiffs and Appellants, v. ALAMEDA HEALTH SYSTEM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RG15761222)
Sergei Zhirov and Svetlana Zhirova (the Zhirovs) appeal from the trial court's order denying their petition for relief from the claim presentation requirement of Government Code section 945.4. They contend that the trial court should have granted relief based on an allegedly erroneous notification by Alameda Health System (AHS) as to the cause of their son's death. We affirm.
All further statutory references are to the Government Code unless otherwise indicated. At various points, the Zhirovs and the trial court mistakenly reference section 954.4, a provision that does not exist. In context, it is clear that they intended to reference the claim presentation requirement of section 945.4.
FACTUAL AND PROCEDURAL BACKGROUND
By letter dated July 1, 2014, the Zhirovs' counsel submitted a $2 million wrongful death claim to AHS. The letter set forth the following facts in support of the claim: "Our Clients are the parents of Valeriy Zhirov, who was admitted to your Hospital on or about October 5, 2012, after being diagnosed with cancer. While under the Hospital's care, Valeriy was subjected to unnecessary suffering and death due to the sheer negligence of your Hospital and its staff. On or about October 30, 2012, Valeriy fell and struck his head in your Highland hospital ward and suffered Subdural Hematoma, which led to his untimely death."
By letter to the Zhirovs' counsel dated July 23, 2014, AHS returned the claim as untimely. As required by section 911.3, subdivision (a), the letter included the following notice: "[T]he Claim which you presented to the Clerk of the Hospital Authority, [AHS] on July 1, 2014, is being returned because it was not presented within six months after the event or occurrence, as required by law (see Sections 901 and 911.2 of the Government Code). Because the Claim was not presented within the time allowed by law, no action was taken on the Claim. [¶] Your only recourse at this time is to apply without delay to [AHS] for leave to present a late Claim (see Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government Code). Under some circumstances, leave to present a late Claim will be granted (see Section 911.6 of the Government Code). [¶] You may seek the advice of an attorney of your choice in connection with this matter. If you wish to consult with an attorney, you should do so immediately."
By letter dated August 19, 2014, the Zhirovs' counsel sought leave to present a late claim. The letter to AHS explained: "The failure to present the claim within the statutory period was through mistake. Our Clients were notified by [AHS] that their son died as a result of stomach cancer. At the time of Valeriy Zhirov's death, our Clients were living in Russia, and based on the erroneous and false information given to them by the Hospital, were under the mistaken belief that their son died of cancer. The Hospital concealed material information regarding the cause of death. [¶] Upon relocating to the United States from Russia in February 2014, our Clients requested their son's death certificate from the funeral home in San Francisco. The director of the funeral home sent the death certificate to them by mail. Upon receipt, they were shocked to find out that their son did not die of cancer as they had been told by the Hospital, but rather, he fell and struck his head and died while under the care of the Hospital."
By letter to the Zhirovs' counsel dated October 6, 2014, AHS denied the application for leave to present a late claim. As required by section 911.8, subdivision (b), the letter included the following warning: "If you wish to file a court action in this matter, you must first petition the appropriate court for an order relieving you from the provisions of Government Code Section 945.4 (Claim presentation requirement). Please 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 Late Claim was denied. You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately."
On March 6, 2015, the Zhirovs petitioned the trial court for an order relieving them from the claim presentation requirement of section 945.4. The petition alleged that the Zhirovs had "complied with the statutes and time limits under Government Code Sections 910-913." In support of the allegation that their claim was timely, the Zhirovs each submitted identical declarations explaining, "My claim was brought to the attention of the Hospital in a letter dated July 1, 2014, which was within six (6) months after the discovery of the wrongful death." The declarations alleged the following facts relating to the delayed discovery: "[(1)] I was erroneously notified by the Hospital that my son died as a result of stomach cancer. [¶] [(2)] At [the] time of Valeriy's death, I was living in Russia, and based on the erroneous and false information given to me by the Hospital, I was under the mistaken belief that my son died of cancer. [¶] [(3)] The Hospital concealed material information regarding the real cause of Valeriy's death. My son's death was actually and proximately caused by the Hospital's negligence. [¶] [(4)] Upon relocating to the United States from Russia in February 2014, I requested my son's death certificate from the director of the funeral home in San Francisco. [¶] [(5)] Upon receiving the death certificate, I was shocked to find out that my son did not die of cancer as I had been told by [AHS]. The death certificate indicated that my son died on October 30, 2012, and the cause of death was: he fell and struck his head in his hospital room while under the care of [AHS]." The trial court denied the petition on September 1, 2015, and the Zhirovs have timely appealed.
In a supplemental declaration, Sergei Zhirov later explained that after he and his wife relocated to the United States from Russia on February 23, 2014, Russian acquaintances suggested that he obtain a copy of their son's death certificate. According to Mr. Zhirov, he proceeded to do so and only then learned the cause of his son's death. The death certificate attached to the petition was certified on January 17, 2014, more than a month before the Zhirovs relocated to the United States, and, thus, does not support this timeline.
DISCUSSION
Throughout the proceedings, the Zhirovs have advanced several different theories why they are entitled to relief from the claim presentation requirement, including mistake, excusable neglect, estoppel, and timely compliance. Regardless of label, each theory is premised on the same operative allegations of delayed discovery, as set forth in the Zhirovs' declarations described above. Specifically, the Zhirovs allege that AHS erroneously notified them that their son had died of stomach cancer when, in fact, he had actually died of a fall proximately caused by AHS's negligence, which the Zhirovs did not discover until after they relocated to the United States in February of 2014. Accordingly, we begin our analysis with a review of the interplay between the claim presentation requirement and the doctrine of delayed discovery.
As pertinent here, section 911.2, subdivision (a), provides, "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." "For the purpose of computing the time limits prescribed by Section[] 911.2, . . . the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon." (§ 901.) In a wrongful death action against a health care provider based upon its alleged professional negligence, the statute of limitations commences to run on the date the wrongful death plaintiffs "discovered or should have discovered their 'injury' in the form of the death of their decedent and its negligent cause." (Larcher v. Wanless (1976) 18 Cal.3d 646, 657-658.) With these principles in mind, we turn to the Zhirovs' two arguments on appeal.
"[A]s with other medical malpractice actions, the Legislature sought to limit the length of time for which the discovery rule could perpetuate the possibility of suit by providing an alternative, overall . . . limitation period beginning with the date of [the] 'injury.' " (Larcher v. Wanless, supra, 18 Cal.3d at p. 658.) That overall limitation period is currently set at three years. (Code Civ. Proc., § 340.5.)
The Zhirovs first contend that, based on the erroneous notification it provided as to the cause of their son's death, AHS should be estopped from relying on the six-month limitation period of section 911.2, subdivision (a). We disagree. "[A] plaintiff cannot rely on an estoppel if there is still ample time to take action within the statutory period after the circumstances inducing delay have ceased to operate." (Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 716.) In this case, the Zhirovs have consistently maintained that, under the doctrine of delayed discovery, there was ample time to file a timely claim and that they did, in fact, do so.
Thus, we turn to the Zhirovs' second argument and the crux of their appeal—namely, that their claim was timely because it "was brought to the attention of the Hospital in a letter dated July 1, 2014, which was within six (6) months after the discovery of the wrongful death." At the outset, we note a split in authority as to whether a plaintiff may raise the issue of actual compliance with the claim presentation requirement in a petition seeking relief from that requirement. (Compare Ngo v. County of Los Angeles (1989) 207 Cal.App.3d 946, 951-952 [must be raised in a complaint alleging compliance with the claim presentation requirement] with Santee v. Santa Clara County Office of Education, supra, 220 Cal.App.3d at p. 711 [may be addressed in a petition for relief from the claim presentation requirement].) Because the Zhirovs' petition and supporting declarations affirmatively sought relief based on actual compliance, a request they reiterate in this court, we proceed to address the issue here. (Id. at p. 712.)
As the parties seeking relief from the claim presentation requirement, the Zhirovs have the burden of proving the necessary elements for relief by a preponderance of the evidence. (Rodriguez v. County of Los Angeles (1985) 171 Cal.App.3d 171, 175.) "California law recognizes a general, rebuttable presumption, that plaintiffs have 'knowledge of the wrongful cause of an injury.' " (Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 638.) In order to rebut this presumption, plaintiffs seeking " ' "the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence." ' " (Ibid.) Conclusory allegations are not sufficient. (Ibid.)
The Zhirovs' allegations here are insufficient for the purposes of pleading, much less proof. While the Zhirovs allege generally that they were "erroneously notified" by AHS that their son had died as a result of stomach cancer, they do not provide any specificity as to who provided the notification, when it was provided, and what precisely was said. Indeed, the content of their initial supporting declarations was identical in this regard, even though only Mr. Zhirov made the trip from Russia to the United States at the time of their son's death. The content and context of precisely what each of them was told and by whom is all the more important in a case such as the present one, where the death certificate itself lists metastatic stomach cancer as a significant condition contributing to their son's death. Similarly, the Zhirovs' argument in their appellate briefing that, prior to locating to the United States, "they did not know that it was important to get a copy of their son's death certificate, nor did they even know how to request or obtain a copy," is not supported by any evidence. To the contrary, the death certificate attached to their petition was certified more than a month before they relocated to the United States. On this record, the Zhirovs have not carried their burden of proving their inability to have made earlier discovery despite reasonable diligence.
DISPOSITION
The order denying the petition for relief from the claim presentation requirement of section 945.4 is affirmed with costs to AHS.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------