Jefferson v. Kern

• Decision Date: 17 May 2002
• Docket Number: F036017,5
• Citation: Jefferson v. Kern (Cal. App. 2002)
• Court: California Court of Appeals
• Parties: CLAYTON L. JEFFERSON, a Minor, etc., Plaintiff and Appellant, v. COUNTY OF KERN et al., Defendants and Respondents. F036017 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT Filed

CLAYTON L. JEFFERSON, a Minor, etc., Plaintiff and Appellant v COUNTY OF KERN et al., Defendants and Respondents

F036017

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Filed 4/19/02

5/17/02

(Super. Ct.No. 238468)

APPEAL from a judgment of the Superior Court of Kern County.Jon E. Stuebbe, Judge.

Cheong, Denove, Rowell, Antablin & Bennett, Mary M. Bennett, John D. Rowell and Alicia S. Curran for Plaintiff and Appellant.

B. C. Barmann, Sr., County Counsel, and Robert D. Woods, Chief Deputy County Counsel, for Defendants and Respondents.

O P I N I O N

Dibiaso, Acting P.J.

Plaintiff and appellantClayton L. Jefferson(Clayton), a minor, by and through his guardian ad litem Darlene Jefferson, appeals from the trial court's judgment in favor of defendants and respondents, County of Kern(County) and Geoffrey M. Miller, M.D.(Dr. Miller)(collectively respondents), entered after a one-day court trial in which the trial court found Clayton had failed to comply with the claim presentation requirements of the California Tort Claims Act(Gov. Code, 810 et seq.).¹The trial court determined, in a bifurcated trial of the special defense at respondents' request under Code of Civil Procedure section 597, that Clayton's medical malpractice and fraud causes of action were barred because they had accrued more than one year prior to his submission to the County of an application for leave to present a late claim.²Clayton's request that the special defense be tried before a jury was denied by the trial court.

DISCUSSION

I.

On October 26, 1998, Clayton's attorney sent the County a notice, on Clayton's behalf, of Clayton's intent to pursue a claim against the County, which the County received on November 2, 1998.The notice stated that the events in question arose during medical treatment provided to Clayton at a County medical facility "for a period beginning on or about July 1997 through and including March 1998," and that Clayton "did not discovery [sic] the injury and its negligent cause until June of 1998."

By letter dated November 5, 1998, the County gave notice that Clayton's claim was being returned as untimely "because it was not presented within six (6) months after the event or occurrence as required by law," and "no action was taken on your claim."The letter listed the date of incident as March 1998.The County's letter further advised Clayton that his "only recourse at this time is to apply without delay to the Clerk of the Kern County Board of Supervisors for leave to file a late claim," and referred him to sections 911.4 to 912.2.

On January 8, 1999, Clayton's attorney submitted an application for leave to present a late claim to the County, which was accompanied by a document providing the information required by section 910 identical to one submitted on October 26, 1998.The application stated that Clayton's "parent did not discovery [sic] the injury and its negligent cause until in or about June 1998," and that if the County contended the claim was untimely, "the failure to present this claim within the six-month period specified by Government Code 911.2 is that claimant was a minor during all of the six month period specified by 9..12 [sic] ...."A declaration by Darlene Jefferson accompanied the application.

By letter dated January 19, 1999, the County advised Clayton's attorney as follows:

"NOTICE IS HEREBY GIVEN that the claim you submitted to the clerk of the Kern County Board of Supervisors on 11-2-98 was not acted upon by the Board.The claim is deemed rejected on its merits.The County reserves the right to reject the claim as late if discovery discloses that the claimant knew or should have known of the alleged occurrence prior to the date of occurrence noted in the claim."

The letter listed the date of incident as June 1998.The County further informed Clayton that he had "only six (6) months from the date this notice was deposited in the mail to file a court action on this claim.(SeeGov. Code 945.6.)"

On March 22, 1999, Clayton filed his complaint in the trial court.

II.

A.

Under the Tort Claims Act, a plaintiff may not maintain an action for damages against a public entity unless a written claim has first been presented to the defendant and rejected.( 905, 945.4.)Claims for personal injuries must be presented within six months after accrual of the cause of action.( 911.2;Christopher P. v. Mojave Unified School Dist.(1993)19 Cal.App.4th 165, 168-169.)If a claim is presented after the statutory time limit has expired, the public entity may give written notice that the claim was late and return it without further action.The notice must also advise the claimant that his or her "only recourse" is to apply for leave to present a late claim.Failure to give such notice waives all untimeliness defenses.( 911.3.)³

An application for leave to present a late claim must be presented within a reasonable time, not to exceed one year after accrual of the cause of action.( 911.4.)The public entity must grant or deny the application within 45 days after it is presented or it is deemed denied.( 911.6.)The application must be granted if it was timely filed and the injured party was a minor during the six-month period set by section 911.2.(Hernandez v. County of Los Angeles(1986)42 Cal.3d 1020, 1030;see alsoChristopher P. v. Mojave Unified School Dist., supra, 19 Cal.App.4th at p. 169;Williams v. Mariposa County Unified Sch. Dist.(1978)82 Cal.App.3d 843, 849.)

If a late claim application is denied, section 946.6 authorizes the claimant to petition the court, within six months, for an order relieving the claimant from the claims presentation requirements.⁴The claimant must be specifically advised of this right by the public entity when it denies the application.( 911.8, 946.6.)⁵

If a late claim application is granted, the claim is deemed to have been presented as of the day of the grant and the public entity must act on the claim by either rejecting it, allowing it in full, allowing it in part and rejecting the balance, compromising it if the liability or amount due is in dispute, or doing nothing and thereby allowing the claim to be denied by operation of law.( 912.2, 912.4, 912.6.)If the claim is denied, written notice must be given which advises the claimanthe or she has six months from the date of the notice to file a court action on the claim.( 913.)⁶

B.

We first resolve, against him, Clayton's contention that respondents waived the right to contest the date of accrual of Clayton's causes of action because, in responding to his application for leave to present a late claim, the County denied the claim itself and failed to notify him of his right to petition the court for an order relieving him from the claim filing requirements.⁷

The authorities Clayton cites-Harvey v. City of Holtville(1967)252 Cal.App.2d 595, Denham v. County of Los Angeles(1968)259 Cal.App.2d 860, andMcLaughlin v. Superior Court(1972)29 Cal.App.3d 35-did not involve the concept of waiver but instead applied the related, but substantially different, concept of estoppel.(El Dorado Irrigation Dist. v. Superior Court(1979)98 Cal.App.3d 57, 60.)In Harvey, in response to the plaintiff's application to present a late claim, the public entity notified the plaintiff that the claim was denied, which the plaintiff contended led her to file a civil lawsuit rather than a petition for leave to present a late claim within the then relevant time period.⁸(Harvey v. City of Holtville, supra, 252 Cal.App.2d at pp. 596-597.)The court found that, while the plaintiff was barred from petitioning the court for relief due to her failure to file the petition within the required time, she should be given the opportunity to plead and prove the elements of estoppel in the civil action, in which the public entity took the position she had not alleged the timely presentation of a claim.(Id. at pp. 596-598.)The court explained:

"In a proper case a public entity may be estopped to assert the failure of a claimant to present a claim, or to present it within time, to avoid liability upon a cause of action conditioned upon the prescribed presentation of a claim.[Citations.]Where a claimant, in reliance upon the representation of an authorized employee of the public entity that his application to file a late claim has been granted and his claim denied, loses his right to petition the court for leave to make a late presentation, the public entity will be estopped to assert it did not grant his application.[Citation.]"(Harvey v. City of Holtville, supra, 252 Cal.App.2d at p. 598.)

In Denham, the County of Los Angeles sent the plaintiff, after the 45-day period to act on the claim had expired, a notice that the claim had been denied.The trial court sustained the county's demurrer to the plaintiff's complaint because the action had been commenced more than six months after the 45-day period had expired.(Denham v. County of Los Angeles, supra, 259 Cal.App.2d at pp. 862-864.)In reversing, the Court of Appeal held that the plaintiff had pled adequate facts to support a conclusion the county was equitably estopped from asserting the plaintiff had not filed suit in time.(Id. at pp. 866-867.)The court reiterated the four elements necessary to prove equitable estoppel against a public entity:

"'(1)the party to be estopped must be apprised of the facts; (2)he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4)he must rely upon the conduct to his injury.'"(Denham v. County of Los Angeles, supra, 259 Cal.App.2d at p. 866.)

The court concluded that all these elements had been established because only the county "knew whether in the application of section 945.6, it would assert reliance upon a rejection of...