Coble v. Ventura County Health Care Agency ( 2021 )

Filed 12/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AUBREY JESSICA COBLE, 2d Civil No. B311670
(Super. Ct. No. 56-2020-
Plaintiff and Appellant, 00545919-CU-PT-VTA)
(Ventura County)
v.
VENTURA COUNTY HEALTH
CARE AGENCY et al.,
Defendants and Respondents.
Before a suit for money or damages may be brought against
a public entity, the plaintiff must timely present a written claim
to the public entity. (Gov. Code, § 945.4.)1 Appellant failed to
timely present her personal injury claim to Ventura County
(County) within the six-month statutory period. (§ 911.2, subd.
(a).) She also failed to timely apply for leave to present a late
claim within the one-year statutory period. (§ 911.4, subd. (b).)
Pursuant to section 946.6, she petitioned for relief from the claim
presentation time constraints. She appeals from the order
denying her petition.
Unless otherwise stated, all statutory references are to
1
the Government Code.
As we shall explain in detail, appellant forfeited her
contention that the trial judge should have disqualified herself.
Appellant’s other contention involves an issue of first impression
concerning the meaning of Executive Order N-35-20, issued by
Governor Newsom on March 21, 2020. Because of the Covid-19
pandemic, the Governor extended by 60 days the time for
presenting a claim to a public entity. The issue here is whether
the extension applies only to the six-month statutory period for
presenting a timely claim, or whether it also applies to the one-
year statutory period for filing an application for leave to present
a late claim. The plain meaning of the unambiguous executive
order requires us to hold that the extension applies only to the
six-month period for presenting a timely claim. Because
appellant did not timely apply for leave to present a late claim
within the unextended one-year statutory period, the trial court
did not err by denying her petition for relief.
Government Claim Presentation Rules
“‘The Government Claims Act (§ 810 et seq.) “establishes
certain conditions precedent to the filing of a lawsuit against a
public entity. . . . [A] plaintiff must timely [present] a claim for
money or damages [to] the public entity. (§ 911.2.) The failure to
do so bars the plaintiff from bringing suit against that entity. (§
945.4.)” [Citation.] . . . [¶] ‘Claims for personal injury must be
presented not later than six months after the accrual of the cause
of action . . . . (§ 911.2, subd. (a).) . . . [¶] . . .’ [¶] . . . However, ‘if
the injured party fails to [present] a timely claim, a written
application may be made to the public entity for leave to present
[a late] claim. (Gov. Code, § 911.4, subd. (a).) . . .’” (J.J. v. County
of San Diego (2014) 223 Cal.App.4th 1214, 1219-1220 (J.J.).) The
application must be presented to the public entity no later than
2
one year after the accrual of the cause of action. (§ 911.4, subd.
(b).) Unless the one-year period is tolled (see § 911.4, subd. (c)),
the public entity is “powerless to grant relief” if an application for
leave to file a late claim was presented after the one-year
deadline. (Hom v. Chico Unified School Dist. (1967) 254
Cal.App.2d 335, 339.)
“‘If the public entity denies the application [for leave to
present a late claim], Government Code section 946.6 authorizes
the injured party to petition the court for relief from the claim
requirements.’” (J.J., supra, 223 Cal.App.4th at p. 1220.) “The
court shall relieve the petitioner from the [claim]
requirements . . . if the court finds that the application to the
[public entity for leave to present a late claim] under Section
911.4 was made within a reasonable time not to exceed [one year
after the accrual of the cause of action] . . . and that one or more
[of four criteria] is applicable . . . .” (§ 946.6, subd. (c).) One of
the criteria is that “[t]he failure to [timely] present the claim was
through mistake, inadvertence, surprise or excusable neglect
unless the public entity establishes that it would be prejudiced in
the defense of the claim . . . .” (Id., subd. (c)(1).)
Governor’s Extension of Statutory
Deadline for Presenting a “Claim”
Paragraph 11 of Executive Order N-35-20 provides: “The
time for presenting a claim pursuant to Government Code section
911, et seq., is hereby extended by 60 days. The time within
which the Department of General Services may act upon such
claim [i.e., the presented claim,] is extended by 60 days.”2
2 Section 912.4, subdivision (a), provides, “The board shall
act on a claim . . . within 45 days after the claim has been
presented.” “‘Board’ means: [¶] (a) In the case of a local public
3
(Governor’s Exec. Order No. N-35-20 (March 21, 2020), p. 4, ¶ 11.)
By Executive Order N-71-20, the Governor extended these times
by an additional 60 days. (Governor’s Exec. Order No. N-71-20
(June 30, 2020), p. 2, ¶ 6 [“The timeframes set forth in Executive
Order N-35-20, Paragraph 11, are extended by an additional 60
days”].) Thus, the total extension is 120 days. Pursuant to
Executive Order N-08-21, the 120-day extension applies to claims
that accrued before June 30, 2021. (Governor’s Exec. Order No.
N-08-21 (June 11, 2021), p. 3, ¶ 7e [“Claims accruing before June
30, 2021 will remain subject to the 120-day extension”].)
Factual and Procedural Background
Appellant’s claim against County accrued on August 2,
2019. On that date she suffered burns to her chest during a
magnetic resonance imaging (MRI) scan conducted at Ventura
County Medical Center. An electrocardiogram (EKG) test
preceded the MRI scan. The burns allegedly were caused by the
MRI technician’s failure “to ensure [that] all of the leads for
[appellant’s prior] EKG test had been removed” from her chest.
The six-month statutory period for presenting appellant’s
claim expired on February 2, 2020, more than one month before
the Governor issued Executive Order N-35-20. (§ 911.2, subd.
entity, the governing body of the local public entity. [¶] (b) In
the case of the state, . . . the Department of General Services.”
(§ 900.2, subds. (a) & (b).) The first sentence of paragraph 11 of
Executive Order N-35-20 apparently grants a 60-day extension
for presenting a claim irrespective of whether the claim is
presented to a local public entity or the state. In contrast, the
second sentence apparently grants only to the state Department
of General Services a 60-day extension to act upon a presented
claim.
4
(a).) Appellant did not timely present her claim to County. On
September 15, 2020, more than one year after the accrual of her
claim on August 2, 2019, she presented to County’s Board of
Supervisors (Board) an application for leave to present a late
claim. (§ 911.4, subd. (a).) The application was denied.
Appellant petitioned the trial court for relief from the claim
presentation time constraints. (§ 946.6.) Attached to the petition
was a proposed complaint for damages. The complaint consisted
of a single cause of action for negligence.
The trial court denied the petition because appellant’s prior
application to the Board for leave to present a late claim had not
been filed within the one-year statute of limitations of section
911.4, subdivision (b). “[F]iling a late-claim application within
one year [after the accrual of the cause of action] is a
jurisdictional prerequisite to a claim-relief petition.” (Santee v.
Santa Clara County Office of Education (1990) 220 Cal.App.3d
702, 713 (Santee).) The trial court rejected appellant’s argument
“that Executive Order [N-]35-20 extended by 60 days the
deadline to file her application for leave” to present a late claim.
The trial court explained, “By its plain language, Executive Order
[N-]35-20 extends the deadline for presenting a claim. By
contrast, [section] 911.4 involves only the deadline for filing an
application for leave to present a [late] claim. These are two
separate types of filings. Executive Order [N-]35-20 does not
extend the deadline under [section] 911.4, and as a result, the
Court is without jurisdiction to grant the petition.”
5
Appellant Forfeited Claim that the Trial
Judge Should Have Disqualified Herself
Appellant claims that the trial judge should have
disqualified herself because she had “been employed by
Respondent Ventura County less than three years prior” to the
hearing on the petition and “she had specifically been employed
to provide legal advice to county counsel for the very same county
healthcare agency that is the principle [sic] respondent in this
case.” In her motion for reconsideration of the trial judge’s denial
of her petition, appellant alleged: “In 2014 [the trial court judge]
became an assistant county counsel and senior civil attorney for
the Ventura County Counsel’s office. She remained in that
position until she was appointed a judge for the Ventura Superior
Court on July 20, 2018.”
The disqualification claim is forfeited because appellant did
not object when the trial judge disclosed her prior employment at
the beginning of the hearing on the petition. The trial court said:
“[T]he court is going to make a disclosure . . . that prior to being
appointed to the bench I did work for County Counsel’s office, and
in that line of work I did have occasion to provide counsel to the
healthcare system, but I have . . . nothing that disqualifies me
from hearing this matter.”
This court considered a similar situation in Las Canoas Co.,
Inc. v. Kramer (2013) 216 Cal.App.4th 96, 101 (Las Canoas). We
reasoned: “Las Canoas forfeited its contention that the trial
judge was disqualified . . . . The trial judge disclosed the facts to
counsel before it ruled on the demurrer and asked if counsel had
any comment. Las Canoas’s counsel replied, ‘Not at this time,
Your Honor. Thank you though.’ Las Canoas may not now
6
challenge the judge’s qualification. ‘It is incumbent upon
litigants seeking to disqualify a judge . . . to make their challenge
. . . at the earliest practical opportunity after their appearance in
the action and discovery of the facts constituting the grounds of
disqualification.’” (Id. at p. 101.)
“The purpose of the requirement that alleged grounds for
disqualification be asserted at the earliest practicable
opportunity is that ‘“‘[i]t would seem ... intolerable to permit a
party to play fast and loose with the administration of justice by
deliberately standing by without making an objection of which he
is aware and thereby permitting the proceedings to go to a
conclusion which he may acquiesce in, if favorable, and which he
may avoid, if not.’”’ [Citation.] In other words, ‘[a] party should
not be allowed to gamble on a favorable decision and then raise
such an objection in the event he is disappointed in the result.’”
(Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th
1332, 1337-1338.)
At the hearing on appellant’s motion for reconsideration,
the trial judge declared: “I issued a tentative ruling against
[appellant]. I disclosed my connection to the County at the
beginning of the hearing. [Appellant’s] counsel heard my
disclosure and proceeded to argue the case. I took the matter
under submission, and it was not until after my final ruling was
mailed out that I was accused of bias or the appearance of bias.”3
3The reporter’s transcript of the hearing on the motion for
reconsideration is not included in the record on appeal. County
moved to augment the record to include the reporter’s transcript
and other documents filed below. Appellant has not filed
opposition to the motion. The motion to augment is granted.
(Cal. Rules of Court, rule 8.155(a).)
7
We reject appellant’s claim that, unlike the trial judge in
Las Canoas, the trial judge here “did not inquire with the parties
regarding their stance, leaving the Appellant with no opportunity
to challenge the court.” Appellant was represented by counsel
who should have known that he did not need the court’s
permission or invitation to object.4 Appellant, therefore, had an
opportunity at the hearing to challenge the trial judge’s assertion
that “nothing . . . disqualifie[d]” her from hearing the matter.
After the trial judge took the matter under submission at
the hearing and before she issued her written ruling, appellant
still could have requested that the judge disqualify herself.
Appellant cannot be permitted to delay her request until after the
judge rendered an adverse ruling.
In any event, appellant could not have been prejudiced by
the trial judge’s determination that she was not disqualified. As
we explain in the next part of this opinion, the trial judge
correctly concluded that she lacked jurisdiction to grant
appellant’s petition. The substantive issue is a straightforward
question of law which we review de novo.
Executive Order N-35-20 Did Not Extend the Time for
Filing an Application for Leave to Present a Late Claim
Appellant argues that Executive Order N-35-20 “is
sufficiently broad to include an extension . . . for the presentation
of claims by way of an Application [to a public entity] for Leave to
4 At the hearing on appellant’s motion for reconsideration,
appellant’s counsel told the trial court: “[Y]ou never actually
gave counsel a chance to comment on whether or not they
thought you should be recused or not. You just simply proceeded
into your decision on this case with argument. And therefore, I
felt like I had no choice but to present my arguments . . . .”
8
Present a Late Claim” pursuant to section 911.4. “The
construction of an executive order presents an issue akin to an
issue of statutory interpretation—one that presumably presents a
question of law for our independent review on appeal.
[Citations.] . . . [W]e read the words of the executive order to
determine its purpose. We seek to interpret it in a manner that
promotes wise policy, not absurdity. We avoid an interpretation
that would render terms surplusage, but seek to give every word
some significance, leaving no part useless or devoid of meaning.”
(City of Morgan Hill v. Bay Area Air Quality Management Dist.
(2004) 118 Cal.App.4th 861, 877; see also Bassidji v. Goe (9th Cir.
2005) 413 F.3d 928, 934 [“As is true of interpretation of statutes,
the interpretation of an Executive Order begins with its text”].)
A fundamental principle of statutory construction is that,
“[i]f there is no ambiguity in the language of the statute, ‘then the
Legislature is presumed to have meant what it said, and the
plain meaning of the language governs.’ [Citation.] ‘Where the
statute is clear, courts will not “interpret away clear language in
favor of an ambiguity that does not exist.” . . .’” (Lennane v.
Franchise Tax Board (1994) 9 Cal.4th 263, 268; see also Soap &
Detergent Ass’n v. Natural Resources Comm. (1982) 415 Mich.
728, 756-757 [ 330 N.W.2d 346, 359] [“The executive intends the
meaning that is clearly expressed; an unambiguous executive
order does not need interpretation”].)
There is no ambiguity in the relevant portion of Executive
Order N-35-20. The 60-day extension applies to “[t]he time for
presenting a claim pursuant to Government Code section 911, et
seq.” (Governor’s Exec. Order N-35-20, p. 4, ¶ 11, italics added.)
It does not apply to the time for presenting an “application” to a
9
public entity “for leave to present [a late] claim.” (§ 911.4, subd.
(a).)
Another principle of statutory construction is apposite.
Statutory “‘language must be construed “in the context of the
statute as a whole and the overall statutory scheme . . . .”
[Citation.] In other words, “‘we do not construe statutes in
isolation, but rather read every statute “with reference to the
entire scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness.” . . .’”’” (Estate of Garrett
(2008) 159 Cal.App.4th 831, 836.)
The statutory scheme here clearly distinguishes between a
“claim” and an “application.” The terms are not synonymous.
“Claim,” is a word of art. Section 910 sets forth the information
that must be included in a claim. The claim must be presented
on a form provided by the board to assure that the “claim is
deemed in conformity with Section[] 910 . . . .” (§ 910.4.) Section
911.4, subdivision (a) provides, “When a claim that is required by
Section 911.2 to be presented not later than six months after the
accrual of the cause of action is not presented within that time, a
written application may be made to the public entity for leave to
present that claim.” (Italics added.) “The application . . . shall
state the reason for the delay in presenting the claim. The
proposed claim shall be attached to the application.” (§ 911.4,
subd. (b), italics added.) Section 912.2 provides, “If an
application for leave to present a [late] claim is granted by the
board pursuant to Section 911.6, the claim shall be deemed to
have been presented to the board upon the day that leave to
present the [late] claim is granted.” (Italics added.)
Had the Governor intended to extend not only the six-
month statutory period for presenting a timely claim but also the
10
one-year statutory period for filing an application for leave to
present a late claim, he would have said so in Executive Order N-
35-20. The order would have provided, “The time for presenting a
claim or application for leave to present a late claim pursuant to
Government Code section 911, et seq., is hereby extended by 60
days.” (Italicized language added.)
We cannot redraft the executive order to include the
omitted language, “or application for leave to present a late
claim.” “‘[I]nsert[ing]’ additional language into a statute
‘violate[s] the cardinal rule of statutory construction that courts
must not add provisions to statutes. [Citations.] This rule has
been codified in California as [Code of Civil Procedure] section
1858, which provides that a court must not “insert what has been
omitted” from a statute.’”5 (People v. Guzman (2005) 35 Cal.4th
577, 587; see also People v. Garcia (1999) 21 Cal.4th 1, 15 [“The
Attorney General was unable to cite, nor has our research
disclosed, any case in which this court has cured an asserted
drafting error by grafting an entire substantive clause onto a
statute”].) Moreover, “[u]nder governing principles of statutory
construction, ‘the expression of one thing in a statute ordinarily
implies the exclusion of other things. [Citation.]’ [Citation.]
Thus, the [executive order’s] express inclusion only of [an
extension of time for presenting a claim] implies the [Governor’s]
intent to exclude [an extension of time for applying for leave to
present a late claim].” (Guzman, supra, at p. 588.)
5Code of Civil Procedure section 1858 provides, “In the
construction of a statute or instrument, the office of the Judge is
simply to ascertain and declare what is in terms or in substance
contained therein, not to insert what has been omitted, or to omit
what has been inserted . . . .”
11
“‘[J]udicial construction of unambiguous statutes is
appropriate only when literal interpretation would yield absurd
results.’” (People v. Albillar (2010) 51 Cal.4th 47, 55.) There is
nothing absurd in construing Executive Order N-35-20 as not
extending the time for applying for leave to present a late claim.
Reasonable grounds support treating the six-month statutory
period for presenting a claim differently from the one-year period
for applying for leave to present a late claim. As previously
discussed, the one-year period is jurisdictional. (Santee, supra,
220 Cal.App.3d at p. 713; Munoz v. State of California (1995) 33
Cal.App.4th 1767, 1779 [“When the underlying application to file
a late claim is filed more than one year after the accrual of the
cause of action, the court is without jurisdiction to grant relief
under Government Code section 946.6”].) Thus, the effect of
missing the one-year deadline is to put the claimant out of court.
No remedy is available. In contrast, the six-month statutory
period for presenting a claim is not jurisdictional. Pursuant to
section 911.4, the claimant may apply for leave to present a late
claim provided that the application is filed within the one-year
statute of limitations of section 911.4, subdivision (b).
Disposition
The order denying appellant’s petition is affirmed. County
shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
YEGAN, J.
We concur:
GILBERT, P. J. TANGEMAN, J.
12
Ronda McKaig, Judge
Superior Court County of Ventura
______________________________
Koorosh K. Shahrokh, for Plaintiff and Appellant.
Clinkenbeard, Ramsey, Spackman & Clark, Hugh S.
Spackman and Cathy Anderson, for Defendants and
Respondents.