County of Los Angeles v. Superior Court

• Decision Date: 12 June 1985
• Citation: 215 Cal.Rptr. 699,169 Cal.App.3d 1095
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF LOS ANGELES, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. Isela BORBON, By and Through her Guardian ad Litem, Dolores BORBON, Real Party in Interest. Civ. B009147.

Page 699

215 Cal.Rptr. 699

169 Cal.App.3d 1095

COUNTY OF LOS ANGELES, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Isela BORBON, By and Through her Guardian ad Litem, Dolores BORBON, Real Party in Interest.

Civ. B009147.

Court of Appeal, Second District, Division 5, California.

June 12, 1985.

Golman & von Bolschwing, Sausalito, Bonne, Jones, Bridges, Mueller & O'Keefe, Los Angeles, Greines, Martin, Stein & Richland, Martin Stein and Timothy T. Coates, Beverly Hills, for petitioner.

No appearance for respondent.

Manuel Hidalgo, Robert J. Jagiello and Joanne P. Leggio, Los Angeles, for real party in interest.

EAGLESON, Associate Justice.

The issue raised in this original proceeding is whether a court order denying a plaintiff's petition pursuant to Government Code section 946.6 collaterally estops the plaintiff from alleging in a superior court action that she has filed a timely claim pursuant to Government Code section 911.2. ¹ The court below, denying the motion of petitioner County of Los Angeles for a judgment on the pleadings, held that the doctrine of collateral estoppel did not apply and plaintiff was entitled to a jury trial on the issue of whether her original claim was timely filed. We hold that the trial court erred, and accordingly order issuance of a peremptory writ of mandate.

Plaintiff/real party Isela Borbon was born at County/USC Medical Center on March 28, 1975. On March 14, 1983, real party (by her mother and guardian ad litem, Dolores Borbon) filed a claim against the County of Los Angeles alleging that due to improper use of forceps during delivery, real party suffered "neurologial impairment, psychomotor retardation, Erb's Palsy, mental retardation [and] seizures." Plaintiff alleged that her cause of action accrued January 20, 1983 (two months before the claim was filed), the date on which her attorney obtained the opinion of a medical expert that plaintiff's injuries were caused by the negligence of County doctors.

Plaintiff's mother testified in her deposition that she suspected something might be wrong with plaintiff when she did not talk by age three and could not stand or sit properly. According to Mrs. Borbon's deposition, she was told by doctors in 1978 that she should not worry because children begin to talk at different ages, and that the reason plaintiff could not stand or sit properly was because she was too fat.

As the years went on, Mrs. Borbon realized that plaintiff was having problems but did not know it was the fault of County doctors. However, in February 1982, Mrs. Borbon consulted an attorney, Manuel Martinez regarding an automobile accident and Martinez enlightened her as to the possible cause of her daughter's problem. Since Martinez was not a specialist in medical negligence matters, he referred Mrs. Borbon to another attorney, Manuel Hidalgo.

Beginning in February 1982, Hidalgo attempted to obtain from the County medical records relating to Mrs. Borbon's prenatal care and plaintiff's birth. The County had difficulty locating the information. Hidalgo received plaintiff's records (but not those of her mother) in May 1982. Fetal monitor strips, requested in June 1982, were not received until October 1982, on microfiche. After the microfiche was processed, everything was sent to a medical expert, who unfortunately was having personal problems and failed to render a medical opinion as promptly as Hidalgo had hoped. On January 20, 1983, the expert finally rendered his opinion that plaintiff's problems were due to negligence on the part of County doctors. Plaintiff contends that her cause of action accrued at the time the expert had rendered his opinion because prior to that time she was not aware of the negligence of County doctors.

On March 14, 1983, plaintiff filed her claim against the County pursuant to section 911.2. ² The claim was denied as untimely on April 15, 1983, and on April 21, 1983, plaintiff filed a lawsuit alleging medical negligence matter. On April 22, plaintiff petitioned the County for permission to file a late claim ( § 911.4). This petition was denied.

On June 10, 1983, plaintiff filed a petition in the superior court pursuant to section 946.6. That section provides that if the public entity denies an application for leave to file a late claim, a petition may be made to the superior court asking for relief from the provisions of section 945.4. ³ Section 946.6, subdivision (c) provides that the superior court may grant relief "if the court finds that the application ... under Section 911.4 was made within a reasonable time not to exceed [one year after the accrual of the cause of action] ... and that ... [t]he failure to present the claim was through mistake, inadvertence, surprise or excusable neglect...." The superior court denied plaintiff's petition "on the ground that [petitioner's] late claim application submitted to Respondent County of Los Angeles, pursuant to Government Code section 911.4, was not filed within a reasonable time not to exceed one year after the accrual of her cause of action." Plaintiff appealed this order but later abandoned the appeal.

The County then filed its motion for judgment on the pleadings, the denial of which gave rise to the within petition. Relying substantially on Gurrola v. County of Los Angeles (1984) 153 Cal.App.3d 145, 200 Cal.Rptr. 157, the County argued that the previous superior court order denying plaintiff's petition for relief from the claims requirement collaterally estopped her from asserting in her complaint that she had timely filed a claim. Without the allegation that a claim had been timely filed and rejected, the complaint was fatally defective.

In its order denying the County's motion, the court stated in part:

"1. Scott v. County (1977), 73 Cal.App.3d 476 indicates that by its unilateral determination that a claim was late filed, a governmental entity cannot use the claims procedures to deny to a claimant a right to a jury trial on disputed factual issues.

"2. It is also true under Shank v. County (1983), 139 Cal.App.3d 152, 158 and Toscano v. County (1979), 92 Cal.App.3d 775, 783 , that it is inconsistent to say that a claim was timely filed and still petition for relief under Govt.Code § 946.6 on the ground of failing to file a claim at all.

"3. To resort to the §§ 946.6 and 911.4 procedures, as the Tort Claims Act says a litigant must, in all fairness, should not preclude the litigant from maintaining that the initial claim was timely."

The court acknowledged that the issue of when the cause of action accrued "explicitly was decided against plaintiff in the claim relief proceeding," and that the court was thus "squarely faced with a collateral estoppel question." The court nonetheless took the position that "[e]ven the more rigorous 'bar' aspect of the doctrine of res judicata has not always been strictly applied," and therefore the even more flexible doctrine of collateral estoppel should not be applied here due to "the ends of justice of important considerations of policy."

The court indicated that it was aware of the decision in Gurrola v. County of Los Angeles, supra, but chose not to follow it. This decision was error, as the facts of this case fall squarely within Gurrola.

In Gurrola, appellant filed a claim with the County of Los Angeles which was rejected as untimely. He then filed a petition in the superior court for an order to be relieved from the requirements of section 945.4 and the petition was denied. Appellant alleged in a superior court action that because his claim was timely presented to the County, the petition for leave to file a late claim was unnecessary and therefore the court's denial of the petition had no legal effect. The County, on demurrer, contended that appellant's complaint was barred because the trial court's earlier denial of his petition was res judicata as to the issue of appellant's compliance with the Government Claim Act. The demurrer was sustained without leave to amend and the case was dismissed.

On appeal, appellant argued, as plaintiff does here, ⁴ that because he alleged in his claim and petition that he had timely presented his claim to the County, his petition was unnecessary and therefore its denial was of no effect. He also urged that the presentation of his claim to the County was timely because of the delayed accrual of his cause of action, but that...