Munoz v. State of California

Citation33 Cal.App.4th 1767,39 Cal.Rptr.2d 860
Decision Date21 March 1995
Docket NumberNo. F021620,F021620
CourtCalifornia Court of Appeals
PartiesRhonda MUNOZ, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.
OPINION

MARTIN, Acting Presiding Justice.

Plaintiff appeals from an order denying her permission to file a late tort claim against a governmental entity (Gov.Code, § 946.6). 1

STATEMENT OF THE CASE

On December 8, 1993, plaintiff's counsel prepared a claim for damages to be presented to the State Board of Control (Gov.Code, § 911.2). The claim alleged medical personnel of the California Correctional Institution failed to treat plaintiff's father for cancer in his right lung, that failure led to the death of plaintiff's father on December 14, 1992, and plaintiff incurred damages in the sum of $1 million for the wrongful death of her father.

On the same date, plaintiff's counsel executed an application for permission to present a late claim (Gov.Code, § 911.2). Counsel alleged the claim was not filed on a timely basis because the California Correctional Institution in Tehachapi failed to release medical information relating to plaintiff's father, despite counsel's diligent pursuit of the necessary medical records.

On December 22, 1993, plaintiff's claim and application were presented to the State Board of Control. On January 26, 1994, the board issued a determination letter stating: "[T]he Board has no jurisdiction to accept the claim for consideration [because] [y]our application for leave to present a late claim was filed more than one year from the date of the incident that is the basis of the claim."

On March 1, 1994, plaintiff filed a petition in Kern County Superior Court for order permitting the filing of a late claim against a governmental entity. (Gov.Code, § 946.6.)

In late March 1994, respondent State of California filed written objections and opposition to the petition. Respondent also requested the superior court to take judicial notice of plaintiff's Board of Control claim file (Evid.Code, §§ 452, subd. (d), 453). 2

On March 31, 1994, the court conducted a contested hearing on the petition, heard the arguments of counsel, and took the matter under submission. Thereafter, on April 7, 1994, the court filed a statement of decision which denied plaintiff relief. The statement of decision provided in relevant part:

"The Petition fails to meet the requirements of Government Code sections 946.6(b)(1), (2) and (c)(1), 911.4, and 915(c).

"Delay of Plaintiff and/or her counsel in both filing a claim within the six month period and petitioning to file a late claim is neither reasonable nor excusable.

"The Petition does not demonstrate mistake, surprise, inadvertence or excusable neglect justifying a granting of the Petition.

"Essentially the argument of Plaintiff is that until Plaintiff could acquire the medical records for Plaintiff's deceased father, Plaintiff could not be certain that they were filing a claim in good faith, and pursuit of the medical records, Plaintiff argues, was diligent.

"The law recognizes that the specificity required for the service of a notice in a medical malpractice case, pursuant to Code of Civil Procedure section 364, does not apply to the more general requirements of a claim filing pursuant to Government Code section 911.2 [Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1203, 249 Cal.Rptr. 457].

"Counsel was retained by Plaintiff in January of 1993, one month after the death of her alleged father, and almost five months before the running of the initial six month claims period and eleven months before the running of the one year period within which to seek leave to file a late claim.

"The best that Plaintiff can show is that a few 'boiler plate' letters are sent (one even referring to a pending insurance company settlement for which there is no basis in fact) requesting medical records, some with authorizations signed by a 'Rhonda Munoz' to obtain records 'for her father Curtis Kates.' None of the authorizations were self-authenticating by content or attachment with regard to the relationship between Rhonda Munoz and Curtis Kates. Other than occasional items of correspondence, no other effort is made to obtain records either from the Tehachapi facility, the Department of Corrections or the Kern Medical Center. There is no evidence of any physical effort to call upon any facility or office involved with the State of California, the Department of Corrections, the facility of Tehachapi, nor Kern Medical Center.

"The Petitioner's attorney does not show due diligence in attempting to comply with the claims statute or the requirements for obtaining leave to file late claim.

"The California Correctional Institution at Tehachapi is not a public entity. It is a facility of the State of California Department of Corrections. There is no authority for the position that service on a state facility is substantial compliance with the requirement to serve the state through the State Board of Control. There is no legitimate reason advanced, after [10 to 11] months of legal representation of Plaintiff, to justify an application for leave to file a late claim, in addition to which the application is not received by the State Board of Control until well after the running of the one[-]year period.

"Plaintiff's arguments might be relevant in seeking relief from the requirements of the Code of Civil Procedure section 364 in a lawsuit, but do not excuse failure to timely file a claim or to timely and properly file an application to file a late claim to perfect the right to file a lawsuit against the public entity."

Plaintiff filed a timely notice of appeal.

FACTS

Plaintiff's decedent, Curtis Kates, was a prisoner at the California Correctional Institution in Tehachapi, California, in 1992. Decedent received medical treatment and care from the physicians, medical staff, and other medical personnel at the correctional institution. However, the medical team allegedly failed to diagnose and/or treat decedent for cancer in his right lung. The disease spread and Kates died at Kern Medical Center in Bakersfield on December 12, 1992.

On January 21, 1993, plaintiff retained the law offices of Neil C. Newson & Associates to pursue damages for wrongful death. The six-month period within which to file a claim under the California Tort Claims Act would expire on June 12, 1993.

Plaintiff's counsel requested decedent's medical records from the Department of Corrections by way of form letters dated March 1, 1993, March 8, 1993, July 7, 1993, July 12, 1993, August 10, 1993, and November 17, 1993. Counsel obtained the medical records from the State of California on December 6, 1993. Although no Tort Claims Act claim had, as yet, been filed, counsel maintained he could not file a claim for medical malpractice in good faith without first obtaining and reviewing the necessary medical records to substantiate the claim.

On December 8, 1993, two days after receiving decedent's medical records from the respondent, counsel prepared and transmitted an application for permission to present late claim to the State Board of Control. On January 26, 1994, the Board of Control informed counsel it did not have jurisdiction to consider the application because it was filed more than one year after decedent's death. On March 1, 1994, plaintiff's counsel filed a petition in Kern County Superior Court to obtain permission to file a late claim against the governmental entity. On April 7, 1994, after argument, the lower court denied the petition by minute order.

DISCUSSION

Plaintiff contends the lower court abused its discretion when it denied her petition seeking relief from the claim presentation requirements of Government Code sections 911.4, 915, subdivision (c), and 946.6, subdivisions (b)(1), (2), and (c)(1). Plaintiff argues (1) her attorney substantially complied with the relevant statutes; (2) her attorney's failure to file a claim with the State of California within 100 days after accrual of the cause of action was excusable; (3) public policy favors a trial on the merits; (4) the State of California has not been prejudiced by the late filing of plaintiff's claim; and (5) the State of California should be estopped from asserting noncompliance with claim statutes.

In 1963, the Legislature enacted several interrelated statutory provisions effective September 20, 1963, which have become known as the Tort Claims Act (Gov.Code, §§ 810-996.6). (Cal. Government Tort Liability Practice (Cont.Ed.Bar 3d ed. 1992) § 2.1, pp. 69-70.) The intent of the Tort Claims Act is not to expand the rights of plaintiffs against governmental entities. Rather, the intent of the act is to confine potential governmental liability to rigidly delineated circumstances. (Williams v. Horvath (1976) 16 Cal.3d 834, 838, 129 Cal.Rptr. 453, 548 P.2d 1125.)

The Tort Claims Act requires 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). The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint. (Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 793-794, 5 Cal.Rptr.2d 756.)

Government Code section 911.2 requires the claim relating to a cause of action for death or for injury to person or to personal property be presented not later than six months after the accrual of the cause of action. The claim presentation requirement serves several purposes:...

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