Chavis v. San Joaquin General Hospital CA3 ( 2021 )

Filed 12/13/21 Chavis v. San Joaquin General Hospital CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
REGINALD CHAVIS, C089028
Plaintiff and Appellant, (Super. Ct. No.
STKCVUMM20180006197)
v.
SAN JOAQUIN GENERAL HOSPITAL et al.,
Defendants and Respondents.
SUMMARY OF APPEAL
Plaintiff and Appellant Reginald Chavis appeals from a judgment and order in
which the trial court denied his petition (the Petition) to proceed with an action against
San Joaquin General Hospital (the Hospital), a government entity, and Dr. Nikolaj
Wolfson after Chavis’s application to present a late Government Claims Act (Gov. Code,
§ 810 et seq.; statutory section citations that follow are to the Government Code unless
otherwise stated) claim to collect damages from the Hospital was rejected (see § 946.6).
Chavis’s cause of action against Wolfson and the Hospital stems from a knee
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replacement correction surgery performed by Wolfson. Wolfson operated on Chavis
more than four years before Chavis presented his application to file a late claim, and
Chavis alleges he discovered Wolfson had been negligent approximately 10 months
before he filed the application to submit a late claim. We affirm the trial court’s decision.
FACTS AND HISTORY OF THE PROCEEDINGS
Except as otherwise stated, the facts stated here are as alleged in documents filed
by Chavis in the trial court.
Facts Preceding Alleged Discovery of Wolfson’s Purported Negligence
On March 10, 2014, Chavis, who was an inmate and remained incarcerated at the
time he filed this action, underwent knee replacement surgery at the Hospital. Dr.
Carmelino Galang performed this first surgery. Chavis alleges Galang did not properly
place his knee replacement in the first surgery, resulting in Chavis suffering severe pain
and necessitating a second surgery on June 3, 2014. Wolfson performed the second
surgery. After the second surgery, Chavis alleges he continued to suffer difficulties and
pain in his knee.
Beginning on February 16, 2015, Chavis unsuccessfully attempted to serve the
necessary public entities with a claim for damages due to personal injuries suffered as a
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result of the negligent acts of Galang as an employee of the Hospital. The claim Chavis
presented in February 2015 did not identify Wolfson or the June 2014 operation as
contributing to Chavis’s injury or continued suffering.
Chavis filed an action against the Hospital and Galang on May 31, 2017. Like the
claim he attempted to submit to the Hospital, the initial complaint alleges negligence in
1 It appears Chavis served the wrong public entity with the claim. It also appears he
never presented an application to submit a late claim with respect to the Galang surgery,
though he first tried to submit the claim more than six months after he met with Wolfson
and learned about the alleged errors in the first surgery.
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the performance of and harm associated with the Galang surgery. Wolfson was not
named as a defendant in the action, and the initial complaint does not allege Chavis was
harmed in the June 2014 surgery.
October 2017 Alleged Discovery of Wolfson’s Negligence
In October 2017, a third doctor, Dr. Casey, examined Chavis. At that time, Chavis
discovered Wolfson had not used “replacement parts during the second procedure like he
should have.” Chavis alleges that Wolfson’s negligence in not using replacement parts in
the second surgery contributed to Chavis’s suffering and problems with his knee.
Attempts to Seek Damages for Wolfson’s Actions Beginning in June 2018
On June 15, 2018, more than four years after Wolfson performed the second
surgery and approximately eight months after meeting with Casey—and without first
filing a claim with the County or hospital under the Government Claims Act—Chavis
filed a First Amended Complaint in the action in which he named Wolfson as an
additional defendant for the first time.
In August 2018, approximately 10 months after meeting with Casey, Chavis
submitted an application for permission to present a late claim for damages (the
Application) from the Hospital as a result of Wolfson’s alleged negligence in his
performance of the June 2014 surgery. In the Application, Chavis states the “failure to
file a timely claim was the result of claimant’s attorney’s mistake. Counsel for claimant
erroneously believed that, since there was already an existing action against” the Hospital
and Galang “regarding injuries suffered due to negligent total knee replacement, Dr.
Wolfson could be added as a party without further notice to the county.” In the
declaration in support of the Application, Chavis’s counsel states that, upon discovering
Wolfson’s negligence may have contributed to Chavis’s injury, he “simply amended the
Complaint to add Dr. Wolfson.” Neither the Application nor the supporting declaration
suggest Wolfson intentionally or fraudulently concealed from Chavis that he did not use
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replacement parts in the second surgery, instead negligently re-using the existing parts.
Chavis’s Application was denied on August 27, 2018.
On October 4, 2018, Chavis filed the Petition. In the Petition, Chavis alleged an
“incident of medical negligence” occurred at the Hospital on June 3, 2014. Chavis
alleges he did not timely file a claim due to the mistake, inadvertence, or excusable
neglect of his attorney, and he reiterates that his attorney was under the mistaken belief
that he did not need to file a new claim regarding Wolfson because there was already an
action pending against the Hospital and Galang. He does not allege that his ability to file
a claim was delayed by intentional concealment or fraud by Wolfson.
On October 9, 2018, following the sustaining of a demurrer to the First Amended
Complaint, which did not address the action against Wolfson, Chavis filed the Second
Amended Complaint. The Second Amended Complaint continues to allege negligence
by Wolfson in failing to use replacement parts in the corrective surgery.
In addition to opposing the Petition, the Hospital, Wolfson, and Galang demurred
to the Second Amended Complaint. The trial court sustained the demurrer and denied the
Petition as moot “based on [the] concurrent demurrer being sustained without leave to
amend.” In the order after hearing sustaining the demurrer, the court stated, “Plaintiff’s
causes of action accrued in June 2014. His original defective claim was filed February 2,
2015, 8 months later. [¶] His attempt to serve the claim on San Joaquin County Health
Services was defective. [¶] It does not appear that Plaintiff can amend his complaint to
allege compliance with the Tort Claims Act.” The trial court then entered a judgment of
dismissal in favor of all the defendants, including Wolfson.
Chavis filed a motion for reconsideration, which the trial court denied.
Defendants served Chavis with a notice of entry of judgment of dismissal and a notice of
entry of order after hearing denying Chavis’s motion for reconsideration on March 4,
2019.
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Appeal and Supplemental Briefing
On March 8, 2019, Chavis filed a notice of appeal of judgment of dismissal after
an order sustaining a demurrer. However, in his opening brief, Chavis identifies the
relief requested as a ruling that would “set aside the order of the [trial court] dismissing
Appellant’s Petition for Relief from California Government Code, and further seeks leave
to pursue a civil action against San Joaquin General Hospital.” (Original italics.) Thus, it
appears Chavis’s appeal is more accurately described as an appeal of the trial court’s
denial of the Petition.
In the initial briefing, despite the fact that the Wolfson surgery was performed
more than four years before Chavis made any effort to make a claim or file an action
regarding Wolfson’s actions, the parties did not address the applicability of Code of Civil
Procedure section 340.5, which establishes a three-year outer limit on when a lawsuit can
be filed against a public health care provider absent certain exceptions. (See Roberts v.
County of Los Angeles (2009) 175 Cal.App.4th 474, 481.) Also, the parties did not make
arguments or factual statements suggesting that intentional concealment or fraud by
Wolfson delayed Chavis’s discovery of Wolfson’s alleged negligence. As such, we
requested supplemental briefing from the parties as to whether Chavis’s action against
Wolfson is time barred.
In his supplemental briefing, Chavis takes the position that the three-year cap on
when he could bring an action against Wolfson was tolled due to the intentional
concealment and/or fraud by Wolfson, which are grounds identified in the statute that
will toll the three-year cap. Though he made no such allegations of intentional
concealment or fraud in the trial court, he argues we ought to allow him to amend his
complaint against Wolfson to include such allegations.
In response, defendants argue Chavis was aware or ought to have been aware of
Wolfson’s alleged contribution to his injury for more than a year before he filed his
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complaint, and, therefore, other statutory limits contained in the Government Claims Act
bar the action. Assuming the statute of limitations contained in Code of Civil Procedure
section 340.5 was tolled, we will address the merits of whether the Petition was correctly
denied.
DISCUSSION
I
Government Claims Act Process
Under the Government Claims Act (tit. 1, div. 3.6), with certain exceptions not
applicable here, a person who purports to have a cause of action for “money or damages
against [a] local public entit[y]” (§ 905) must present a claim to that entity, and the claim
must be “acted upon by the board, or . . . deemed to have been rejected by the board”
(§ 945.4) before the claimant can file a complaint in court against that public entity. “A
claim relating to a cause of action . . . for injury to [a] person . . . shall be presented . . .
not later than six months after the accrual of the cause of action.” (§ 911.2, subd. (a).)
An action for injury against a health care provider based upon the professional
negligence accrues when the “plaintiff discovers, or through the use of reasonable
diligence should have discovered, the injury.” (Code Civ. Proc., § 340.5; see also Gov.
Code, § 901 [“the date of the accrual of a cause of action to which a claim relates is the
date upon which the cause of action would be deemed to have accrued within the
meaning of the statute of limitations which would be applicable thereto if there were no
requirement that a claim be presented to and be acted upon by the public entity before an
action could be commenced thereon”].)
Chavis argues the time he had to file a claim was tolled by the “discovery rule,”
which dictates “the accrual date of a cause of action is delayed until the plaintiff is aware
of her injury and its negligent cause.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103,
1109.)
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This is only partially correct. Under Code of Civil Procedure with respect to
medical malpractice actions, “[i]n no event shall the time for commencement of legal
action exceed three years unless tolled for any of the following: (1) upon proof of fraud,
(2) intentional concealment, or (3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of the injured person.” (Code
Civ. Proc., § 340.5, italics added.) “A plain reading of the language of [Code of Civil
Procedure] section 340.5 compels the conclusion that the judicially declared ‘discovery
rule’ previously applied to actions for medical malpractice under the former statute of
limitations is now subject to the outer time limitation imposed on substantive liability by
that section.” (Blake v. Wernette (1976) 57 Cal.App.3d 656, 660.)
When a person fails to present their claim arising out of an injury to the applicable
public entity within six months of claim accrual, they may make an application to the
public entity for leave to present a late claim. (§ 911.4, subd. (a).) With exceptions not
applicable here, the application for leave to file a late claim must be filed, “within a
reasonable time not to exceed one year after the accrual of the cause of action and shall
state the reason for the delay in presenting the claim.” (§ 911.4, subd. (b).) The
governing board of the local entity then has 45 days to grant or deny the application.
(§ 911.6, subd. (a).) If “[t]he failure to present the claim was through mistake,
inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its
defense of the claim by the failure to present the claim within the time specified” the
governing board of the local entity “shall grant the application.” (§ 911.6, subd. (b)(1).)
If the board denies the application for leave to submit a late claim to the public
entity, “a petition may be made to the court for an order relieving the petitioner from” the
requirement to present a claim to the entity before bringing an action in court. (§ 946.6.)
The petition must be filed within six months of the public entity denying the application
for leave to file a late claim and include certain information regarding the alleged injury
and the efforts to file a claim with the public entity. (§ 946.6, subd. (b).) If the “failure
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to present the claim was through mistake, inadvertence, surprise, or excusable neglect,”
and “the court finds that the application” to make a late claim “was made within a
reasonable time not to exceed” one year, then the “court shall relieve the petitioner from
the requirements” to present the claim to the public entity, “unless the public entity
establishes that it would be prejudiced in the defense of the claim if the court relieves the
petitioner from the” requirement to present the claim to the public entity before filing an
action. (§ 946.6, subd. (c)(1).) “The court shall make an independent determination
upon the petition. The determination shall be made upon the basis of the petition, any
affidavits in support of or in opposition to the petition, and any additional evidence
received at the hearing on the petition.” (§ 946.6, subd. (e).)
Under section 950.2, “a cause of action against a public employee or former public
employee for injury resulting from an act or omission in the scope of his employment as a
public employee is barred if an action against the employing public entity for such injury
is barred under Part 3 (commencing with Section 900) of [the Government Claims Act]
or under Chapter 2 (commencing with Section 945) of Part 4 of [the Government Claims
Act].” Thus, the claim presentment requirements of the Government Claims Act are “a
condition precedent to a tort action against either the employee or the public entity.”
(Williams v. Horvath (1976) 16 Cal.3d 834, 838.)
II
Standard of Review
“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.) “This rule, however, does not preclude reversal of an order denying
relief where adequate cause for such relief is shown by uncontradicted evidence or
affidavits of the petitioner, nor should it be employed to defeat the liberal policies of
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remedial statutes designed for that purpose. [Citation.] It has often been said that denials
of such relief by the trial court are scanned more carefully than cases where the court
granted the relief, to the end that wherever possible cases may be heard on their merits,
and any doubts which may exist should be resolved in favor of the application.” (Viles v.
State (1967) 66 Cal.2d 24, 28-29.)
III
Chavis Cannot Show the Trial Court Abused Its Discretion in Denying the Petition
Even if we were to agree that the three-year cap for Chavis to bring an action
alleging Wolfson’s negligence was tolled due to fraud and/or intentional concealment by
the Hospital and Wolfson, we still could not find that the trial court abused its discretion
when it denied the Petition. Chavis has failed to demonstrate by a preponderance of the
evidence that he filed the Application more than six months after he discovered
Wolfson’s alleged negligence as a result of “mistake, inadvertence, surprise or excusable
neglect” as contemplated by the Government Claims Act. (§§ 911.6, subd. (b)(1); 946.6,
subd. (c)(1).)
As a preliminary matter, some of Chavis’s arguments as to why we should grant
him relief from the trial court’s denial of the Petition appear to be predicated on
statements allegedly made by the trial court during oral arguments in that court.
However, Chavis does not provide us with a record of this oral proceeding. Under
California Rules of Court, rule 8.120(b), “[i]f an appellant intends to raise any issue that
requires consideration of the oral proceedings in the superior court, the record on appeal
must include a record of these oral proceedings in the form of one of the following: [¶]
(1) A reporter’s transcript under rule 8.130; [¶] (2) An agreed statement under rule
8.134; or [¶] (3) A settled statement under rule 8.137.” “Although in certain instances a
reporter’s transcript may not be necessary, including if an appeal involves a legal issue
requiring de novo review [citation], on issues such as the instant one involving the abuse
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of discretion standard of review, a reporter's transcript or an agreed or settled statement of
the proceedings is indispensable.” (Hood v. Gonzales (2019) 43 Cal.App.5th 57, 79.)
Chavis takes the position that he filed the Application more than six months after
he learned Wolfson did not use replacement parts due to an attorney error of law, and
application for leave to file a late claim, “when grounded in attorney error, shall be
granted.” This position rests on an oversimplification of the statutory standards a
claimant must meet before either an agency must grant leave to file a late claim pursuant
to section 911.6, subdivision (b)(1); or a court must grant a petition relieving the claimant
from the Government Claims Act requirement pursuant to section 946.6, subdivision
(c)(1).
In order to obtain relief from either the local agency under section 911.6,
subdivision (b)(1), or the court under section 946.6, subdivision (c)(1), the claimant must
demonstrate both (1) that the application to file a late claim was presented to the agency
“within a reasonable time not to exceed one year after the accrual of the cause of action”
(§ 911.4, subd. (b); see also § 946.6, subd. (c)); and (2) that “[t]he failure to present the
claim was through mistake, inadvertence, surprise or excusable neglect” (§§ 911.6, subd.
(b)(1); 946.6, subd. (c)(1)). To succeed on a section 946.6, subdivision (c)(1), petition,
the petitioner “must . . . demonstrate [these] two essentials by a preponderance of the
evidence.” (City of Fresno v. Superior Court (1980) 104 Cal.App.3d 25, 32.) “In
determining whether relief is warranted, the court will consider the petition, any
affidavits submitted in support of or in opposition to the petition, and any other evidence
presented at the hearing.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767,
1777-1778; see also § 946.6, subd. (e).) Here, even assuming Chavis’s action did not
accrue until he met with Casey, Chavis has failed to satisfy the second prong.
“The showing required of a petitioner seeking relief because of mistake,
inadvertence, surprise or excusable neglect” under the Government Claims Act “is the
same as required under section 473 of the Code of Civil Procedure for relieving a party
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from a default judgment. [Citation.] [¶] An examination of the cases applying section
473 of the Code of Civil Procedure discloses that not every mistake of law is excusable
[citations] but that an honest mistake is excusable, the determining factor being the
reasonableness of the misconception [citations].” (Viles v. State, supra, 66 Cal.2d at
p. 29.)
In both his Application and the Petition, the only “mistake” Chavis identified
which caused him to file his Application more than six months after he allegedly learned
of Wolfson’s role in his injury was a mistake of law on the part of his attorney, who
Chavis claims erroneously believed the filing requirements of the Government Claims
Act mimicked those of notice requirements governing medical malpractice actions. Yet,
“ ‘[m]ere ignorance of the law, at least where coupled with negligence in failing to look it
up, is not sufficient cause to allow a petitioner to file a late claim against a public entity
[citations].’ (Martin v. City of Madera (1968) 265 Cal.App.2d 76, 79.)” (Bertorelli v.
City of Tulare (1986) 180 Cal.App.3d 432, 439; see also Tammen v. County of San Diego
(1967) 66 Cal.2d 468, 476 [noting that, “[i]n cases construing section 473 of the Code of
Civil Procedure, it has been held that ‘Ignorance of the law, at least where coupled with
negligence in failing to look it up, will not justify a trial court in granting relief [citations]
and such facts will certainly sustain a finding denying relief. [Citations.]’ ”].)
Chavis and his counsel cannot escape the requirements of the Government Claims
Act simply by claiming they failed to look into the specific requirements of the act.
Indeed, the record shows that by the time Chavis met with Casey, he and his counsel had
2
already become familiar with the existence of the Government Claims Act. On this
basis, particularly in light of the fact that we do not know what was said by the court
2 In his Second Amended Complaint, Chavis detailed the efforts he made, beginning
in February 2015, to notify the Hospital about his potential claim.
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during the hearing in the trial court, we find that Chavis cannot show the trial court
abused its discretion in dismissing his Petition.
DISPOSITION
The judgment and order denying the Petition are affirmed.
HULL, Acting P. J.
We concur:
DUARTE, J.
HOCH, J.
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