Lutz v. Tri-City Hospital

• Decision Date: 25 March 1986
• Docket Number: TRI-CITY
• Citation: 224 Cal.Rptr. 787,179 Cal.App.3d 807
• Court: California Court of Appeals Court of Appeals
• Parties: Daniel LUTZ, et al., Plaintiffs and Appellants, v.HOSPITAL, Defendant and Respondent. D002540.

Page 787

224 Cal.Rptr. 787

179 Cal.App.3d 807

Daniel LUTZ, et al., Plaintiffs and Appellants, v. TRI-CITY HOSPITAL, Defendant and Respondent.

D002540.

Court of Appeal, Fourth District, Division 1, California.

March 25, 1986.

Donald E. Moses, San Diego, for plaintiffs and appellants.

Thompson & Colegate, Sharon J. Waters, Riverside, Carlo Coppo & Associates and Robert A. Cosgrove, Del Mar, for defendant and respondent.

BUTLER, Associate Justice.

Daniel Lutz was injured in an automobile accident and was admitted for treatment September 22, 1983, to Tri-City Hospital, a local hospital district. September 30, 1983, at Tri-City, he was operated on for application of an external fixitor, left femur, and a fusion of two cervical vertebrae. Following the operation, the operative record noted Lutz could move his arms. However, his legs didn't move. Lutz ¹ wants to sue Tri-City for paraplegia said to be the result of his operation.

Tri-City is a public entity. At all relevant times, Tri-City maintained on file with the California Secretary of State and the San Diego County Clerk the statement described in GOVERNMENT CODE SECTION 53050² as required by section 946.4. A claim relating to injury to the person is required to be presented to Tri-City within 100 days after the accrual of the cause of action ( §§ 945.4, 911.2). As the operation occurred September 30, 1983, Lutz was required to present his claim on or before January 8, 1984. Lutz failed to file any claim. August 31, 1984, some eight months after the end of the 100-day period, Lutz filed with Tri-City an application to present a late claim which was denied October 25, 1984.

September 26, 1984, Lutz filed with the court his petition for relief from claim requirements under section 946.6 which was denied November 30, 1984. Lutz appeals, contending the court abused its discretion, his physical disability prevented his filing a claim and Tri-City waived its right to require a claim by failing to respond to his notice of intention to commence action for malpractice (Code Civ.Proc., § 364). Lutz' contentions are meritless.

I

Lutz claims the court abused its discretion in failing to find the failure to file the claim within 100 days was due to excusable neglect. In his August 31, 1984 declaration to support his claim against Tri-City, Lutz states he was "of the erroneous impression that Tri City Hospital was a private hospital and were [sic] surprised to learn that Tri City Hospital is a Hospital District." The record belies his declaration.

September 25, 1983, Nancy signed on Lutz' behalf a form of admission agreement at the top of which appears "TRI-CITY HOSPITAL" in large letters and immediately below, in capital letters "A LOCAL HOSPITAL DISTRICT."

October 12, 1983, Lutz himself signed two forms of consent to procedures with the same caption. Computerized billing printouts with like captions were mailed to Lutz in October and November 1983.

On March 19, 1984, Lutz signed an authorization for release of medical records to his attorney Donald E. Moses. Smart Corporation, a local copier of such records, copied Tri-City records and mailed them to Moses March 23, 1984. Each of the 44 pages bore the designation in either the lower or upper left corner, "TRI-CITY HOSPITAL A LOCAL HOSPITAL DISTRICT."

The showing necessary for granting a petitioner relief under section 946.6 (former § 912, now § 946.6) through mistake, inadvertence, surprise or excusable neglect is the same as required under Code of Civil Procedure section 473 for relieving a party from a default judgment (Viles v. State of California (1967) 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 423 P.2d 818), and is directed to "the 100-day period of section 911.2 and not to the 'reasonable time not to exceed [one year]' period of sections 911.4 and 946.6." (El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 62, 159 Cal.Rptr. 267, fn. omitted.) "The granting or denial of a petition for relief under section 946.6 rests within the discretion of the trial court and its determination will not be disturbed on appeal except for abuse of that discretion. [Citations.]" (Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 725, 173 Cal.Rptr. 4.)

Lutz does not offer any explanation why he was unaware of Tri-City's status as a public entity despite having received documents during and after the 100-day period clearly setting out that status. He offers no explanation why his lawyer failed to discover the status when he received the voluminous medical records, each page of which designated Tri-City as a public entity. Nancy submitted no declaration on her behalf and Lutz makes no reference to or explanation of her failure to discover Tri-City's status or any efforts on her part so to do. The record does not disclose any efforts of Lutz or his lawyer to ascertain Tri-City's status and the record is silent as to how that public entity status was discovered on or before August 31, 1984, the date the claim was filed with Tri-City.

Lutz has failed to carry his burden of proof to demonstrate surprise, mistake, excusable neglect or inadvertence. The court did not abuse its discretion in denying relief from late filing as to those counts.

These same comments apply as to Lutz' failure to seek relief within a reasonable time not to exceed one year. Section 946.6, subdivision (c), requires an explanation for his failure to seek relief within a reasonable time after expiration of the 100 days on January 8, 1984. He did nothing until August 31, 1984, when he filed his claim with Tri-City. He retained Moses on or before March 19, 1984. Moses was in possession of Tri-City records on or shortly after March 23, 1984. Those records clearly show Tri-City's status. Lutz fails to explain his five-month delay in seeking relief. Considering the circumstances, we conclude the application for relief was not filed within a reasonable time.

II

Lutz asserts his physical incapacity during the 100-day period excuses his failure to present a claim to Tri-City during that time. Section 946.6, subdivision (c)(3), provides for relief from failure to timely file a claim when the person sustaining the injury was physically or mentally incapacitated during the entire 100-day period and by reason thereof failed to present a claim. Lutz has totally failed to present any evidence of physical or mental disability such as to render him incapable of attending to the filing of a claim. (Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116, 121, 90 Cal.Rptr. 479.) Tri-City's medical records reflect an inability to move his legs. We find no medical evidence with respect to paraplegia and regard his statements and conclusions as to that condition as unsupported. Importantly, Lutz does not suggest how his claimed paraplegia prevented him from attending to his claim within the 100-day time limit. As evidenced by his signature on the medical authorization, he had access to a lawyer and was...