Ngo v. County of Los Angeles, No. B029858

• Court: California Court of Appeals
• Writing for the Court: COMPTON; ROTH, P.J., and GATES
• Citation: 207 Cal.App.3d 946,255 Cal.Rptr. 140
• Parties: In the Matter of the Claim of James Michael NGO, a minor, individually and By and Through his Guardian Nora Ngo; Nora Ngo, individually; and Mario Ngo, individually, Petitioners and Appellants, v. COUNTY OF LOS ANGELES, et al., Respondents.
• Decision Date: 02 February 1989
• Docket Number: No. B029858

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255 Cal.Rptr. 140 207 Cal.App.3d 946 In the Matter of the Claim of James Michael NGO, a minor, individually and By and Through his Guardian Nora Ngo; Nora Ngo, individually; and Mario Ngo, individually, Petitioners and Appellants,
v.
COUNTY OF LOS ANGELES, et al., Respondents. No. B029858. Court of Appeal, Second District, Division 2, California. Feb. 2, 1989.
Review Denied April 26, 1989.

[207 Cal.App.3d 947]

Page 141

S.K. Khalsa, Woodland Hills, and Lawrence C. Bragg, Hacienda Hts., for petitioners and appellants.

Bonne, Jones, Bridges, Mueller, O'Keefe & Hunt and Peter R. Osinoff, Los Angeles, Greines, Martin, Stein & Richland and Martin Stein, Beverly Hills, for respondents.

[207 Cal.App.3d 948] COMPTON, Associate Justice.

In this case we again deal with the recurring problem of the procedure to be followed under the California Tort Claims Act (Gov.Code, §§ 810, et seq.) ¹ in actions where there exists a factual dispute between the claimant and the governmental entity as to whether a timely claim was filed as required by the Act.

James Michael Ngo was born March 5, 1985, at the Martin Luther King Hospital, a medical facility operated by the County of Los Angeles (County). On November 24, 1986, his parents (petitioners), on his behalf and on behalf of themselves individually, filed a claim with the County alleging that medical malpractice on the part of County personnel at the time of his birth had resulted in permanent brain damage.

The filing of such claim was a condition precedent to instituting an action for damages against the County since section 911.2 as it read at the time provided, in part: "A claim relating to a cause of action for death or for injury to person ... shall be presented as provided in Article 2 (commencing with Section 915) of this chapter not later than the 100th day after the accrual of the cause of action ...." ² (Emphasis added.)

Section 901 directs that the date of accrual of a cause of action shall be determined by the statute of limitations which would be applicable thereto absent the claim filing requirement.

By virtue of Code of Civil Procedure section 340.5, an adult's cause of action against a health care provider accrues on the date of the injury or on the date when the injury reasonably should have been discovered. The statute of limitations is three years from the injury or one year from the discovery, whichever is the shorter period.

As to minors, that same statute provides, in part, that an action shall be commenced within three years from the date of the alleged wrongful act or, if the minor is under the full age of six years, prior to his eighth birthday, whichever provides the longest period.

The parties here are in agreement that as to the petitioner's individual actions, the cause of action accrued on the date that the injury to the child and its cause should have reasonably been discovered by the parents. As to the minor's action, the parties also agree, in spite of the fixed period [207 Cal.App.3d 949] prescribed in Code of Civil Procedure section 340.5 and the use of the term "unlawful act", that insofar as the claims statute is concerned, the time limitations began to run on the same date the parents' individual causes of action accrued. (Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020, 232 Cal.Rptr. 519, 728 P.2d 1154; Young v. Haines (1986) 41 Cal.3d 883, 226 Cal.Rptr. 547, 718 P.2d 909.)

Petitioners claim that even though the negligence occurred at the birth on March 5, 1985, they did not discover the true nature of the infant's problem or its cause until just a day before they filed their original claim with the County. Thus, petitioners contend that in accord with Code of

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Civil Procedure section 340.5 and section 901, the original claim was timely filed.

Since more than 100 days had elapsed between the birth of the child and the filing of the claim, County, in order to preserve the issue of timeliness, rejected the claim as untimely and provided petitioners with the notice required by section 911.3 as follows: "Your only recourse at this time is to apply without delay to the Los Angeles County Board of Supervisors for leave to present a late claim. See Sections 911.4 to 912.2, inclusive, and section 946.6 of the Government Code. Under some circumstances, leave to present a late claim will be granted." ³

Petitioners applied to the County for leave to file a late claim; and when the County denied that application, they filed a petition in the Superior...