Scott v. County of Los Angeles

• Court: California Court of Appeals
• Writing for the Court: COMPTON; FLEMING, Acting P.J., and BEACH
• Citation: 73 Cal.App.3d 476,140 Cal.Rptr. 785
• Parties: Kenneth Howard SCOTT, a minor, by Joyce Marie Scott, his guardian ad litem, Petitioner and Appellant, v. COUNTY OF LOS ANGELES, Respondent. Civ. 50578.
• Decision Date: 20 September 1977

Page 785

140 Cal.Rptr. 785 73 Cal.App.3d 476 Kenneth Howard SCOTT, a minor, by Joyce Marie Scott, his guardian ad litem, Petitioner and Appellant,
v.
COUNTY OF LOS ANGELES, Respondent. Civ. 50578. Court of Appeal, Second District, Division 2, California. Sept. 20, 1977.

[73 Cal.App.3d 478]

Page 786

I. Alfred Breckler, Encino and Gerald Goldfarb, Beverly Hills, for petitioner and appellant.

John H. Larson, County Counsel, Gregory Houle, Deputy County Counsel, Los Angeles, for respondent.

[73 Cal.App.3d 479] COMPTON, Associate Justice.

On or about July 14, 1975, Joyce Scott the mother of Kenneth Scott, a minor (hereinafter petitioner) filed a claim as required by Government Code section 945.4 with the County of Los Angeles (County) alleging that the negligence of personnel at the Los Angeles County General Hospital, in failing to properly administer oxygen to Kenneth at the time of his birth in 1960, resulted in his being severely and incurably retarded.

The claim was denied by operation of law ¹ effective approximately August 29, 1975. Petitioner was notified of the fact by his letter dated September 2, 1975, and signed by an investigator in the office of the Los Angeles County Counsel. This letter did not contain the warning required by Government Code section 913, subdivision (b). ²

For some unexplained reason petitioner, instead of filing her complaint in the superior court, filed a 'new' claim on March 5, 1976. This claim alleged that the negligence of the County consisted of a failure to administer Vitamin K to the newborn infant and that failure was the result of Kenneth's retardation.

The County treated this 'new' claim as an application to file a late claim pursuant to Government Code section 911.4, ³ and rejected it. The [73 Cal.App.3d 480] notice of rejection carried the warning required by Government Code section 911.8 ⁴ describing the procedures to be followed in seeking permission to file a late claim.

The petitioner then sought relief in the superior court pursuant to Government Code section 946.6 by filing a petition on

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May 10, 1976. That petition was denied on July 20, 1976. Petitioner filed her complaint for damages on October 27, 1976. This appeal is from the order denying the petition for relief under Government Code section 946.6.

We conclude that the procedure under consideration, i.e., the petition for permission to file a late claim, was a redundancy and that the way is now and has been open to petitioner to pursue her complaint filed on October 27, 1976. However, because of the possibility that the trial court would treat the order under appeal as a bar to further action, we deem it necessary to discuss the issues raised in order to guide the trial court in future proceedings.

A claim for personal injury against a governmental entity must be filed within 100 days after the accrual of the cause of action. (Gov.Code, § 911.2.) The cause of action for these purposes is deemed to have accrued according to the applicable statute of limitations. (Gov.Code, § 901.)

This being a claim for medical malpractice the statute of limitations is to be found in Code of Civil Procedure section 340.5. As enacted in 1970, that statute provided a limitation period of four years from the date of injury or one year after the discovery thereof. It was amended effective September 24, 1975, to reduce the time to three years or one year from discovery and to provide that 'In no event shall the time . . . exceed three years unless tolled . . .' by certain enumerated circumstances.

Here the date of the alleged tort was sometime in the year 1960 shortly after Kenneth's birth. The parties, however, agree that the date of [73 Cal.App.3d 481] discovery of the injury and its alleged negligent cause was not until sometime later. It appears to us that the latest date which petitioner can claim is July 14, 1975 when she filed her first claim.

The letter which notified plaintiff that her July 14, 1975 claim had been denied by operation of law contained a paragraph to the effect that the office of the county counsel considered the claim to have been untimely. By that statement the county counsel was purporting to declare that the cause of action accrued more than 100 days prior to July 14, 1975.

Under the unique circumstances of this case the issue of when the cause of action accrued and whether the statute of limitations was tolled is critical to both compliance with the claims statute and plaintiff's ultimate success on her complaint for malpractice.

The claims statutes contain a provision for judicial relief from the governmental entities' rejection of a claimant's application to file a late claim, i.e., one filed more than 100 days after the cause of action accrued. (Gov.Code, § 946.6) Obtaining that judicial relief is a condition precedent to maintaining an action against the governmental entity.

If in this case, the county's unilateral determination that the cause of action accrued prior to the 100 day limit is given effect, the result is that plaintiff is forced into a proceeding in which the court in a pretrial proceeding will make a binding determination of the critical issues of when the cause of action accrued and whether the statute of limitations was tolled--issues which are normally factual questions for a jury. (Blake v. Wernette, 57 Cal.App.3d 656, 129 Cal.Rptr. 426; Baker v. Beech Aircraft Corp., 39 Cal.App.3d 315, 114 Cal.Rptr. 171.)

The purpose of the claims statutes is to provide the public entity with notice of the proposed action so as to permit investigation and settlement, if appropriate,...