Rodriguez v. L. A. Cnty. Dep't of Health Servs.
Docket Number | B314824 |
Decision Date | 25 August 2022 |
Parties | MARIA GARCIA RODRIGUEZ, Petitioner and Appellant, v. LOS ANGELES COUNTY DEPARTMENT OF HEALTH SERVICES, Respondent. |
Court | California Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. 20STCP03980 James C. Chalfant, Judge. Affirmed.
National Choice Lawyers and Koorosh K. Shahrokh for Petitioner and Appellant.
Pollack, Vida &Barer, Daniel P. Barer and Anna L Birenbaum for Respondent.
Maria Rodriguez (Rodriguez) underwent a medical procedure to remove her gallbladder at the Harbor-UCLA Medical Center (Harbor-UCLA), which is run by the Los Angeles County Department of Health Services (the County). Due to problems with the first procedure, she underwent a second procedure just days later. Rodriguez subsequently retained counsel to represent her in bringing a medical negligence claim against Harbor-UCLA.
Rodriguez's counsel failed to file a claim notice against the County within six months of Rodriguez's gallbladder procedures which is required prior to filing a suit for monetary damages against a public entity under Government Code sections 945.4 and 911.2, subdivision (a).[1] When counsel realized his error, he filed an application for leave to file a late claim with the County under section 911.4, subdivision (b), which the County denied. Rodriguez sought relief from that denial in Los Angeles Superior Court under section 946.6. The trial court denied her petition. Rodriguez now appeals from that denial.
We agree with the trial court that Rodriguez failed to show by a preponderance of the evidence that her application for leave to file a late claim was made within a reasonable time and was due to mistake or excusable neglect, as she was required to establish under section 946.6, subdivisions (c) and (c)(1) and our Supreme Court's decision in Ebersol v. Cowan (1983) 35 Cal.3d 427, 431 (Ebersol).) Accordingly, we conclude that the trial court did not abuse its discretion and affirm the judgment.
In December 2019, Rodriguez went to Harbor-UCLA for a procedure to remove her gallbladder. According to Rodriguez's claim against Harbor-UCLA, the doctors who performed her procedure were negligent in leaving portions of her gallbladder and surgical clips behind and failing to properly close blood vessels to prevent internal bleeding. As a result, she had a second surgery, also in December 2019, to address these issues.
At some point, Rodriguez retained counsel (Counsel) to represent her in a lawsuit against Harbor-UCLA alleging medical negligence. On its website, Counsel's law firm lists medical malpractice as one of the types of personal injury law it practices. The website has a page titled "Skilled Medical Malpractice Attorneys in Los Angeles" that states that its lawyers are "experienced, knowledgeable and capable of successfully handling very complicated medical malpractice claims ...."
At Counsel's firm, after a call from a potential client comes in, a "general intake" is conducted, and the potential client's "file" is reviewed to identify possible defendants. Counsel declared that when he reviewed the file for Rodriguez, "I noted the name 'Harbor UCLA Medical Center' and incorrectly assumed that the facility was part of the Regents of the University of California," when it is actually operated by the Los Angeles County Department of Health Services. Counsel was aware from "prior experience" that facilities operated by the Regents of the University of California are exempt from Government Code claims notice requirements.
As a result of his mistaken assumption, Counsel did not send notice of Rodriguez's claim to the County within the required six-month period under section 911.2. Instead, on October 5, 2020, he sent a notice of intent to sue under Code of Civil Procedure section 364 to Harbor-UCLA and to the Regents of the University of California.
On October 20, 2020, Counsel received a response from Harbor-UCLA stating that it was not authorized to accept the notice of intent to sue under Code of Civil Procedure section 364 because it was operated by the Los Angeles County Department of Public Services. This was the "first time [Counsel] realized that the Respondent might be a public entity."
The next day, Counsel prepared and served on the County an application for leave to file a late claim. The County denied the application on November 20, 2020.
In December 2020, Rodriguez petitioned the superior court under section 946.6 for relief from the requirement in section 945.4 that a timely claim must be presented to a public entity before filing a suit for damages. Both Rodriguez and the County submitted briefing and evidence.
The trial court held a hearing on the petition on May 13, 2021. After argument from both parties, the court denied the petition. Rodriguez timely appealed.
"The decision to grant or deny a petition seeking relief under section 946.6 is within the sound discretion of the trial court and will not be disturbed on appeal except for an abuse of discretion." (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275 (Bettencourt).)[2] A court abuses its discretion when it exercises it in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice. (People v. Williams (2013) 58 Cal.4th 197, 270-271.) The court does not abuse its discretion "unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
(Bettencourt, supra, 42 Cal.3d at pp. 275-276.) Nevertheless, it is not our role to decide the case de novo. "Unless, ultimately, each case of this nature is to be decided by the Court of Appeal as if no trial court had ever acted on the petition, we must be careful to preserve the area of the superior court's discretion, and we must do this in fact, as well as in words." (Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116, 120.)
As an initial matter, the County urges us to find that Rodriguez has forfeited her appeal. We agree with the County that Rodriguez's brief does not conform to the rules of court.
First, Rodriguez fails to provide a summary of the significant facts supported by citations to the record by volume and page number, as explicitly required by court rules. (Cal. Rules of Court, rules 8.204(a)(1)(C), (a)(2)(C).) Rodriguez's only summary of facts is in the section titled "statement of the case," which is devoid of record citations. Her entire brief contains only three record citations, all of which are embedded within one of her many arguments.
Second, to argue that the trial court's conclusions were not supported by the evidence, as Rodriguez does, she was required to set forth in her brief all of the material evidence and not merely her own evidence, and failure to do so means the claim of error is waived. (Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882 (Foreman &Clark).) In her opening brief Rodriguez failed to cite at least three pieces of material evidence relied upon by the trial court. First, she mischaracterizes the trial court's ruling, arguing it had "no grounds to assume" that Counsel was a specialist in medical malpractice, when the trial court relied on evidence that Counsel "advertises himself" as a specialist in medical malpractice, citing record evidence (printouts from his website) that Rodriguez fails to cite in her brief. Rodriguez also fails to cite evidence that the trial court relied upon that there was published case law stating that the County operates Harbor-UCLA and that a simple internet search of Harbor-UCLA's website showed it was run by the County. As (Pappas v. Chang (2022) 75 Cal.App.5th 975, 985.)
Rodriguez's failure to comply with the basic rules of appellate procedure waives her claims of error on appeal. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 ["If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived."]; Foreman &Clark, supra, 3 Cal.3d at pp. 881-882.) Rodriguez has not cited the...
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