Charlett v. County of Tuolumne, F056612 (Cal. App. 1/27/2010)
| Decision Date | 27 January 2010 |
| Docket Number | F056612. |
| Parties | BRANDI CHARLETT, Plaintiff and Appellant, v. COUNTY OF TUOLUMNE, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Appeal from a judgment of the Superior Court of Tuolumne County, No. CV53842, James Boscoe, Judge.
Law Office of David L. Axelrod and David L. Axelrod, for Plaintiff and Appellant.
Gregory J. Oliver, County Counsel and Christopher Schmidt, Deputy, for Defendant and Respondent.
Not to be Published in the Official Reports
Appellant Brandi Charlett appeals from an order granting respondent County of Tuolumne's demurrer to her wrongful death complaint. She contends that she should have been excused from her statutory requirement to file her complaint within 30 days of being granted relief to file a late claim. Alternatively, she contends that the trial court's order was null and void because the trial judge had been disqualified in a prior proceeding involving the same operative facts. For the following reasons, we affirm.1
Appellant's sister died on February 7, 2006, at respondent's hospital as a result of methamphetamine toxicity after collapsing in the county jail. Under Government Code section 945.4, appellant was required to present any claim relating to her sister's death to respondent before bringing suit against respondent. (Govt. Code, § 945.4.)2 Moreover, under section 911.2, appellant was required to present her "claim relating to a cause of action for death or for injury to person" to respondent within six months of the death of her sister. Appellant, however, did not present her claim to respondent within that time period.
Instead, on February 5, 2007, appellant, through her attorney, submitted to respondent an "Application to the Tuolumne County Board of Supervisors for Leave to Present a Late Claim for Damages." Two days later, respondent received appellant's "Notice of Intention to Commence an Action for Professional Negligence." Respondent subsequently denied appellant's application to present a late claim on February 9, 2007.
On August 8, 2007, appellant filed a "Petition for an Order Relieving Petitioner from Provisions of C.C.P. §945.4 [sic]" in the Tuolumne County Superior Court, Case No. CV53055.3 She filed an amended petition on August 13, 2007. The trial court granted the appellant's petition after a hearing on October 11, 2007. A formal order was prepared by County Counsel after appellant's counsel failed to so, and that order was signed by the judge and filed by the court clerk on November 16, 2007.
Respondent filed a petition for writ of mandate in this court on October 18, 2007. That petition was summarily denied on November 1, 2007. Appellant's subsequent petition for review before the California Supreme Court was denied on December 12, 2007. Neither of respondent's petitions for review requested a stay of the trial court's order.
Plaintiff subsequently filed her wrongful death complaint on July 2, 2008, which is nearly seven months after the court clerk filed the order allowing the filing of a late claim.
Respondent filed a demurrer, dated July 24, 2008, contending that appellant failed to file her complaint within the 30 day limitations period of section 946.6, subdivision (f), which provides that "[i]f the court makes an order relieving 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."
In response, appellant filed an opposition and sought sanctions on the basis that respondent had omitted the material fact that appellant had submitted a claim on December 14, 2007, the denial of which gave appellant six months to file a complaint under section 946.6. (§ 946.6, subd. (a).) In support of this argument, appellant attached a letter from county counsel dated January 3, 2008, rejecting a claim identified as "#C07-18."
Respondent filed a reply contending that section 946.6, subdivision (f), requires that appellant file a court action, not another claim with respondent. Respondent's reply also included evidence rebutting appellant's request for sanctions. Respondent attached claim #C07-18, which shows that claim #C07-18 was in fact totally unrelated to appellant. It was submitted by appellant's counsel on behalf of another person.
Appellant then filed a "response to reply to opposition to demurrer," arguing, based on Ard v. County of Contra Costa (2001) 93 Cal.App.4th 339 (Ard) and similarly applicable law, that she should be granted leave to amend her complaint to allege equitable estoppel because: 1) respondent's reply included evidence extrinsic to pleading, 2) the timing of the rejection letter from county counsel was consistent with appellant's mistaken conclusion that the claim referred to in that letter was appellant's claim, and 3) the rejection letter did not include the name of the claimant or any other facts about the claim, and thus created good and sufficient grounds for equitable estoppel.
On September 3, the trial court granted respondent's demurrer without leave to amend. The trial court held that the Ard case was inapplicable because, in that case, the county had a stipulation with plaintiff that allowed filings beyond the 30 day statutory limitations period, but there was no such stipulation in this case. The trial court subsequently filed an order of dismissal of appellant's wrongful death complaint on September 18, 2008.
Appellant timely filed this appeal.
Appellant contends that the trial court erred in granting respondent's demurrer without leave to amend. We disagree.
In this case, we review the trial court's order under two separate standards of review. First, we review the complaint de novo to determine whether it contains facts sufficient to state a cause of action. Second, we review whether the trial court abused its discretion in sustaining the demurrer without leave to amend. (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279-1280.) (Pena v. Sita World Travel, Inc. (1978) 88 Cal.App.3d 642, 644.)
Here, the complaint did not contain facts sufficient to state a cause of action because the complaint was time-barred. Under section 946.6, subdivision (f), if appellant was granted relief from the requirements of section 945.4, she was required to file suit on the cause of action to which the late claim relates within 30 days. That 30 day period is a statute of limitations. (Tuolumne Air Serv. Inc. v. Turlock Irrigation Dist. (1978) 87 Cal.App.3d 248, 252.) The limitations period begins to run upon the filing of a formal order granting relief under section 946.6. (County of Nevada v. Superior Court (1986) 183 Cal.App.3d 806, 808-809.) This statute of limitations is mandatory, and appellant must strictly comply with the statute. (Smith v. City and County of San Francisco (1977) 68 Cal.App.3d 227, 230.)
Appellant, however, did not strictly comply with the statute of limitations in section 946.6. The formal order granting relief from the requirements of section 945.5 was filed on November 16, 2007. Appellant did not file her wrongful death complaint until July 2, 2008, which is more than six months after that date. Even if the trial court's order had been stayed pending review by the appellate courts, any such stay would have been lifted when the California Supreme Court denied respondent's petition for review on December 12, 2007. Nevertheless, appellant waited almost six months before filing her complaint in the superior court. Thus, appellant's complaint was time-barred and she cannot state a cause of action.
Appellant, however, contends that she should be allowed to amend her wrongful death complaint to plead equitable estoppel. Appellant's basis for the equitable estoppel is that respondent's "unambiguous rejection of Plaintiff's claim" "appears to confirm" that appellant had submitted a claim. Moreover, according to appellant, "[b]y virtue of the County Counsel's letter dated January 3, 2008," respondent is "estopped to deny that it [extended and granted a period of six (6) months] in which to file a court action." In support, appellant cites Ard v. County of Contra Costa, supra. We conclude that the trial court correctly determined that the Ard case was inapposite because, unlike in the Ard case, here, there was no stipulation by respondent that allowed appellant to file a court action after the 30 day limitations period. (Cf. Ard, supra, 93 Cal.App.4th at pp. 342-343.) The language in the County Counsel's letter cannot be interpreted to allow appellant to file after the 30 day limitations period. Rather, that language summarizes and cites section 945.6 which provides that, after a claim is denied by the governmental entity, the plaintiff has six months to file suit in court.
We are also persuaded that the claim referenced in the county counsel's letter belongs to a person other than appellant. Appellant contends that the trial court improperly relied upon hearsay and other extrinsic evidence to reach this conclusion. However, it was appellant who first introduced extrinsic evidence when appellant attached the county counsel's letter to its opposition to the demurrer. Appellant also sought sanctions against respondent. It is only fair to allow respondent to respond to the introduction of that extrinsic evidence and the request for sanctions by submitting relevant evidence.
In any case, there is undisputed evidence in the record on appeal that the County Counsel's letter referred to claim "# C07-18" whereas appellant's late claim was given the claim number "C06-24." Thus, the two claims have...
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