Ard v. County of Contra Costa, A092381.

CourtCalifornia Court of Appeals
Citation93 Cal.App.4th 339,112 Cal.Rptr.2d 886
Decision Date29 October 2001
Docket NumberNo. A092381.,A092381.
PartiesMichael ARD, Plaintiff and Appellant, v. COUNTY OF CONTRA COSTA, Defendant and Respondent.
112 Cal.Rptr.2d 886
93 Cal.App.4th 339
Michael ARD, Plaintiff and Appellant,
COUNTY OF CONTRA COSTA, Defendant and Respondent.
No. A092381.
Court of Appeal, First District, Division 3.
October 29, 2001.

[112 Cal.Rptr.2d 887]

[93 Cal.App.4th 341]

Michael A. Kelly, Michael J. Recupero, and Khaldoun A. Baghdadi, Walkup, Melodia, Kelly & Echeverria, San Francisco, for Appellant.

Thomas G. Manning, Craddick, Candland & Conti, Danville, for Respondent.


The trial court sustained a demurrer to plaintiffs complaint against the County of Contra Costa (the County) on the ground that the action was time-barred by Government Code section 946.6.1 In opposition to the demurrer, plaintiff claimed he substantially complied with section 946.6 and argued that the County was estopped from disputing timeliness of the action. Although the complaint was filed beyond the time limit of section 946.6, plaintiffs estoppel argument raised a factual issue inappropriate for

93 Cal.App.4th 342

determination on demurrer. We conclude the plaintiff should have had an opportunity to amend his complaint to allege equitable estoppel and accordingly reverse the judgment and remand for further proceedings.


In 1998, plaintiff, who suffers from bipolar disease and manic depression, resided at a substance abuse treatment facility called Diablo Valley Ranch. He received treatment from physicians employed by the County, including a Dr. Champlin. Dr. Champlin discontinued several of the medications that had been prescribed to treat plaintiffs disorders. Shortly thereafter, on August 8, 1998, plaintiff suffered

112 Cal.Rptr.2d 888

severe injuries when he fell from a tree during a psychiatric episode.

On June 24, 1999, plaintiff applied to the County for leave to file a late claim pursuant to section 911.4, based on physical incapacity. The County rejected his application on July 27, 1999. On August 6, 1999, plaintiff simultaneously filed a "Petition for Order Permitting Late Claim Against Government Entity [Government Code § 946.6]" and a complaint against various named defendants plus "Does 1 through 100." The complaint did not name the County as a defendant. After a contested hearing, the court granted plaintiffs petition for relief under section 946.6 on November 23, 1999.

According to a declaration submitted in opposition to the County's demurrer, plaintiffs counsel had a conversation with counsel for the County shortly after plaintiffs petition was granted. She informed the County's attorney that she intended to submit a second Government Code claim to the County, wait for that claim to be rejected, and then file an amended complaint naming the County as a defendant. She wished to follow this procedure in order to plead compliance with the Government Code's claim filing requirements. Counsel for the County voiced no objection but advised plaintiffs counsel to serve the amended complaint directly on the County.

Plaintiff then served the County with a second claim on December 15, 1999, and it was rejected on January 18, 2000. Meanwhile, plaintiff prepared a stipulation for all counsel to sign regarding the filing of an amended complaint. This document stated: "By this stipulation, the-counsel for the parties with full authority of their respective clients, hereby agree to substitute plaintiffs First Amended Complaint for the previous Complaint filed in the above-captioned action. Plaintiffs First Amended Complaint adds Defendant Contra Costa County." Counsel for the County signed this stipulation on January 25, 2000. On February 8, 2000, plaintiff filed the stipulation and an

93 Cal.App.4th 343

amended complaint. The County then demurred, claiming the complaint was untimely because it was filed more than 30 days after the court granted plaintiff relief under section 946.6. The court sustained the County's demurrer without leave to amend, and this appeal followed.


I. Timeliness Of Suit Against County

"The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity (Gov.Code, §§ 910, 912.4, 912.8, 945.4)." (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860.) "Under Government Code section 945.4, presentation of a timely claim is a condition precedent to the commencement of suit against the public entity. 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. (Gov.Code, § 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." (Id. at p. 1777, 39 Cal. Rptr.2d 860, footnote omitted.)

Of particular importance in this case, subdivision (f) of section 946.6 states: "If the court makes an order relieving the petitioner from Section 945.4, suit on the cause of action to which the claim relates shall be filed with the court within 30 days thereafter." One court has reasoned that subdivision (f) creates a limitations period, which courts cannot extend by granting petitioners leave to file a "late claim," to be followed by an even later complaint.

112 Cal.Rptr.2d 889

Thus, the court held "under section 946.6 the trial court has no power to order the filing of a late claim, but only the power to allow a timely filing (within 30 days of the order) of a complaint without the filing of a claim at all. This is the plain meaning of the statute. As our Supreme Court stated in Viles v. State of California (1967) 66 Cal.2d 24, 27, footnote 2 [56 Cal.Rptr. 666, 423 P.2d 818]: `In 1965 section 912 was repealed, and a new procedure for obtaining judicial relief is set forth in section 946.6 of the Government Code. The petition to the superior court, after rejection of the application to the public entity to present a late claim, is now a petition for relief from having to present any claim at all instead of one for leave to present a late claim. If relief is granted, suit must be filed in the granting court within 30 days after the order.' (Italics added.)" (Tuolumne Air Service, Inc. v. Turlock Irrigation Dist. (1978) 87 Cal.App.3d 248, 251-252, 150 Cal.Rptr. 809 (Tuolumne).)

Here, the court signed an order— prepared by plaintiffs counsel—stating that "the petition for an order permitting a late claim against governmental

93 Cal.App.4th 344

entity is GRANTED...." However, as plaintiff apparently now recognizes, the relief he obtained under section 946.6 was not the ability to file a late claim against the County, but the right to file a negligence action against the County without having to satisfy Government Code claim filing requirements. (Tuolumne, supra, 87 Cal.App.3d at pp. 251-252, 150 Cal.Rptr. 809.) Subdivision (f) of section 946.6 required him to file such an action within 30 days after the court granted his petition, i.e., no later than December 23, 1999. Because plaintiff did not file the amended complaint naming the County as a defendant until February 8, 2000, his suit was time-barred. (§ 946.6, subd. (f); Tuolumne, supra, at p. 252, 150 Cal.Rptr. 809.)

As he argued below, plaintiff contends his substantial compliance with the Government Code provisions should excuse the late filing. He maintains that the primary authority relied on by the trial court in sustaining the demurrer, Wilson v. People ex rel. Dept. of Public Works (1969) 271 Cal.App.2d 665, 76 Cal.Rptr. 906 (Wilson), has been disapproved in subsequent cases.

In Wilson, the plaintiff filed a complaint against two defendants and later sought leave to file a late claim against the State of California. (Wilson, supra, 271 Cal. App.2d at p. 667, 76 Cal.Rptr. 906.) When the state denied her request, she obtained relief from the court under section 946.6. The plaintiff did not file suit against the state within 30 days after this court order, but shortly thereafter she served a copy of her original complaint on the state as "Doe I." (Ibid.) The state successfully demurred to the complaint as untimely, and the plaintiff appealed, claiming that service of her complaint on the state as a Doe defendant related back to the time of filing of the original complaint. (Id. at pp. 667-668, 76 Cal.Rptr. 906.) In rejecting this argument, the Court of Appeal observed that the plaintiffs original complaint failed to state a cause of action against the state as a Doe because it failed to allege compliance with Government Code claim filing requirements, which are a statutory prerequisite to any action for damages brought against the...

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