Rodriguez v. L.A. County Dept. of Health Services CA2/8 ( 2022 )

Filed 8/25/22 Rodriguez v. L.A. County Dept. of Health Services CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARIA GARCIA RODRIGUEZ,
Petitioner and Appellant,
B314824
v.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF HEALTH Super. Ct. No. 20STCP03980)
SERVICES,
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. 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.
1
Unless otherwise noted, all further statutory references are
to the Government Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
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
3
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.
DISCUSSION
I. 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 (Bettencourt).)2 A court abuses its
2
Rodriguez claims without any citation to precedent that our
review should be “de novo.” Finding no support for this
contention, we reject it.
4
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.)
“Section 946.6 is a remedial statute intended ‘to provide
relief from technical rules that otherwise provide a trap for the
unwary claimant.’ [Citations.] As such, it is construed in favor of
relief whenever possible. [Citation.] [¶] The policy favoring trial
on the merits is the primary policy underlying section 946.6.
[Citation.] In order to implement this policy, any doubts should
be resolved in favor of granting relief. [Citation.] Consequently,
where uncontradicted evidence or affidavits of the petitioner
establish adequate cause for relief, denial of relief constitutes an
abuse of discretion. [Citations.] In light of the policy
considerations underlying section 946.6, a trial court decision
denying relief will be scrutinized more carefully than an order
granting relief. [Citation.]” (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.)
II. Rodriguez’s Brief Does Not Conform to the Rules of
Court Nor to Applicable Precedent
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.
5
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 “the leading California appellate commentary instructs:
‘Before addressing the legal issues, your brief should accurately
and fairly state the critical facts (including the evidence), free of
bias; and likewise as to the applicable law. [Citation.] [¶]
Misstatements, misrepresentations, and/or material omissions of
the relevant facts or law can instantly “undo” an otherwise
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effective brief, . . . may draw sanctions [citation], and may well
cause you to lose the case.’ (Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2021) ¶ 9:27, italics
omitted.).” (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 record for any of her arguments, except for three citations for
her misleading claim that there was no evidence her attorney
was a medical malpractice expert, for which she omits the
evidence that the trial court actually relied upon.
Regardless, Rodriguez’s appeal also fails on the merits, as
discussed below.
III. The Filing Requirements of the Government Claims
Act
The Government Claims Act requires that prior to filing a
suit for monetary damages against a public entity, the party
filing suit must first file a written claim with the public entity,
which will then act upon it or reject it. (§§ 945.4, 950.2, 950.6,
subd. (a); DiCampli-Mintz v. County of Santa Clara (2012) 55
Cal.4th 983, 990.) The claim must be presented to the public
entity within six months of the date that the cause of action
accrued. (§ 911.2.) If the party filing suit fails to file the claim
within this six-month period, then they may apply to the public
entity for permission to file a late claim. (§ 911.4, subd. (a).)
This application must be filed “within a reasonable time not to
exceed one year after the accrual of the cause of action and shall
7
state the reason for the delay in presenting the claim.” (§ 911.4,
subd. (b), italics added.)
If the public entity denies the application to file a late
claim, then the party may file a petition in superior court for
relief from section 945.4’s requirement of timely claim
presentation. (§ 946.6, subd. (a).) That petition must show that
(1) an application was made to a public entity that was denied or
deemed denied, (2) state the reason for failure to present the
claim to the public entity in a timely manner, and (3) provide the
information required by section 910, which sets forth the contents
for the claim notice that was required to be filed with the public
entity before filing suit. (§§ 910, 946.6, subd. (b).)
The superior court may grant relief only if it makes two
findings: First, that the application to the public entity to file a
late claim was made within a “reasonable time” not exceeding one
year after the accrual of the cause of action. (§ 946.6, subd. (c).)
Second, that one of the four circumstances set forth in section
946.6, subdivision (c) is shown by a preponderance of the
evidence. (§ 946.6, subd. (c); Ebersol, supra, 35 Cal.3d at p. 431.)
Only one of these four circumstances is at issue in this case: “The
failure to 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 if the court
relieves the petitioner from the requirements of Section 945.4.”
(§ 946.6, subd. (c)(1).)
In determining whether these two requirements have been
met, the trial court considers “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).)
8
IV. The Trial Court Did Not Abuse Its Discretion in
Concluding That Rodriguez Failed to Establish
Relief Based on Excusable Neglect or Mistake Under
Section 946.6, Subdivision (c)(1)
Rodriguez claims that Counsel’s failure to present her
claim within the six-month filing period was due to Counsel’s
“excusable neglect” and “mistake,” as defined by section 946.6,
subdivision (c)(1). Specifically, she argues that Counsel
“incorrectly assumed” that Harbor-UCLA was operated by the
Regents of the University of California and thus not subject to
the Government Claims Act’s notice requirement.
To establish relief based on “excusable neglect” and
“mistake” under section 946.6, subdivision (c)(1), Rodriguez was
required to establish that her failure to timely present a claim
was reasonable under the objective “reasonably prudent person”
standard, defined as “neglect that might have been the act or
omission of a reasonably prudent person under the same or
similar circumstances.” (Ebersol, supra, 35 Cal.3d at p. 435.)
When the argument is, as here, that the claimant’s counsel
was ignorant of a fact, they “must show more than just failure to
discover a fact until too late; or a simple failure to act. He must
show by a preponderance of the evidence that in the use of
reasonable diligence, he could not discover the fact or could not
act upon it. [Citation.])” (Department of Water & Power v.
Superior Court (2000) 82 Cal.App.4th 1288, 1296 (Dept. of Water
& Power); accord N.G. v. County of San Diego (2020)
59 Cal.App.5th 63, 74.)
Rodriguez presents no such evidence. As the trial court
noted, there is no evidence of when Rodriguez retained Counsel
nor of what effort he made after he was retained to discover
whether Harbor-UCLA was a public entity. Rather, by his own
9
admission, Counsel “incorrectly assumed” that Harbor-UCLA
was part of the Regents of the University of California and only
learned of his mistake after Harbor-UCLA informed him it was
operated by the County. This incorrect assumption was due to
his “prior experience that the facilities operated by the Regents of
the University of California are specifically excluded from the
Government Code claims notice requirements.” Counsel
conceded he did not make any attempt to research Harbor-UCLA
in particular, stating “I already have knowledge about the entity
because that name is similar to the entities I’ve dealt with in the
past. . . There is no googling or searching after that. It’s already
– in my mind, it’s already that entity.”
The trial court concluded that Counsel’s lack of diligence
was not excusable because an online inquiry would have shown
that Harbor-UCLA is a County entity, as evidenced by its
website. The trial court also cited evidence that a search of
published state court opinions would have identified Harbor-
UCLA as a County facility. Finally, the trial court cited evidence
from Counsel’s website identifying himself as “Skilled Medical
Malpractice Attorneys in Los Angeles.” The trial court reasoned
that the mere fact that the facility has the letters “UCLA” in its
name could not justify the attorney’s mistake under the objective
reasonable person standard, particularly when he held himself
out as an expert in medical malpractice in Los Angeles.3
3
Rodriguez spends several pages of her brief arguing that
the trial court erroneously determined Counsel was a “specialist”
in medical negligence because there was no evidence that he met
the requirements to be a specialist certified by the State Bar of
10
The trial court did not abuse its discretion in concluding
that Rodriguez failed to show she was eligible for relief based on
excusable neglect or mistake under section 946.6, subdivision
(c)(1). Rodriguez has failed to show by a preponderance of the
evidence that despite reasonable diligence, her attorney could not
have discovered that Harbor-UCLA was run by the County.
(See Dept. of Water & Power, supra, 82 Cal.App.4th at p. 1293.)
The evidence shows the opposite in that a simple internet or case
law search would have shown it was a public entity. The name
itself indicated that a public entity (UCLA) was likely involved in
running the hospital, and the hyphenated name suggests more
than one entity might be involved. The trial court was entitled to
conclude that Rodriguez failed to show that her attorney acted as
a “reasonably prudent person [would have] under the same or
similar circumstances,” having provided no evidence of any
attempt to find out whether Harbor-UCLA was, in fact, a public
entity, and if so whether it was exempt from the Government
Code claims requirements as Counsel assumed. (Ebersol, supra,
35 Cal.3d at p. 435; Shank v. County of Los Angeles (1983) 139
Cal.App.3d 152, 157 [trial court did not abuse discretion in
concluding that attorney’s failure to learn that hospital was a
county hospital until she wrote a letter to the hospital and
hospital responded it was run by the County was not “use of
reasonable diligence” in order to excuse late filing of claim].)
California. But the trial court did not make this finding; rather,
it held that “[Counsel] advertises himself as an attorney
specializing in medical malpractice. [Citation.] As such a
specialist, [Counsel] must be familiar with the fact that various
large local hospitals . . . are County facilities and therefore
subject to the Claims Act.” (Italics added.)
11
V. The Trial Court Did Not Abuse Its Discretion in
Concluding That Rodriguez Failed to File Her
Application to File a Late Claim Within a
“Reasonable Time” Under Section 946.6,
Subdivision (c)
Rodriguez also claims that her application for leave to file a
late claim was made within a “reasonable time” because it was
4
filed on October 21, 2020, which is just one day after her
attorney learned from Harbor-UCLA that it was operated by the
County. This argument misapplies the applicable law.
The deadline to present a timely claim for damages is six
months from accrual of the claim. (§ 911.2, subd. (a).) A claim
accrues at the time it is complete with all of its elements, or when
a claimant has reason to discover or at least suspect a factual
basis for a claim’s elements. (Norgart v. Upjohn Co. (1999) 21
Cal.4th 383, 397.) Rodriguez’s claim thus accrued in December
2019 when she was injured as a result of the alleged medical
negligence at Harbor-UCLA and had to have a second procedure
to fix the first one. Her application for leave to file a late claim
was filed 10 months later on October 21, 2020. Rodriguez does
not argue that she did not discover her injury until later, nor does
she recognize that her claim accrued well before counsel
recognized his mistake on October 20, 2020.
Rodriguez presented no evidence or argument that this 10-
month delay between December 2019 and October 2020 was
“reasonable” such that her application for late filing should be
granted. (§ 946.6, subd. (c); Ebersol, supra, 35 Cal.3d at p. 431.)
4
Rodriguez’s opening brief states this date as October 21,
2021, but the record shows it as 2020.
12
The trial court was entitled to conclude that the absence of
evidence of any attempt by counsel to determine who operated
the hospital rendered the 10-month delay “unreasonable,”
regardless of how quickly counsel acted after learning the peril of
relying on a mere assumption. Rodriguez also failed to present
any evidence as to the date she retained her attorney and how
long he had the matter before October 21, 2020.5 The trial court
permissibly concluded Rodriguez failed to meet her burden of
establishing that the 10-month delay was reasonable.
Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1411
[appellant has the burden of showing his application for relief
was filed within a “reasonable time”].)
Accordingly, the trial court did not abuse its discretion in
finding Rodriguez failed to show that the delay in filing the
application for a late claim was reasonable.
VI. Counsel’s Error Is Imputed to Plaintiff
Rodriguez also claims that her counsel’s error should not be
imputed to her, citing cases under Code of Civil Procedure 473,
5
In Rodriguez’s opening brief, under the section titled
“statement of the case,” she states that she retained counsel in
February 2020, but she does not provide any citation to the
record for this fact. Instead, the County’s brief points us to the
citation. At the petition hearing, Counsel told the trial court the
date he was retained.
Regardless, Counsel’s offer of proof does not help her claim.
Counsel told the trial court he was retained on February 7, 2020.
Counsel’s wholesale failure to offer evidence or argument as to
why the delay between February 7 and October 21 was
reasonable dooms her claim. His argument that he made a
mistake, without more, is insufficient, as discussed in part IV.,
ante.
13
subdivision (b) and general “public policy” that encourages trial
on the merits. Again, this argument shows a misunderstanding
of controlling precedent and other applicable law.
Rodriguez ignores precedent from our Supreme Court
holding that the conduct of counsel is imputed to plaintiff under
section 946.6. (Ebersol, supra, 35 Cal.3d at pp. 435–436 [“It is
usually the neglectful conduct of counsel, or counsel’s staff,
imputed to plaintiff, which is determined to be excusable” in a
claim for relief under section 946.6] (Italics added.).) Instead,
Rodriguez relies on cases interpreting Code of Civil Procedure
section 473, subdivision (b) rather than Government Code section
946.6. While it is true that the showing required of a party
seeking relief under the discretionary relief portions of Code of
Civil Procedure section 473, subdivision (b) are the same as that
required under Government Code section 946.6, subdivision
(c)(1), (Bettencourt, supra, 42 Cal.3d at p. 275, fn. 5; Tackett v.
City of Huntington Beach (1994) 22 Cal.App.4th 60, 65 (Tackett))
the cases she cites concern the mandatory relief portion of Code of
Civil Procedure section 473, subdivision (b) and are therefore
inapplicable.
Rodriguez conflates the case law interpreting the portion of
Code of Civil Procedure section 473, subdivision (b) that provides
for mandatory relief from default judgment due to counsel’s error
with situations where a plaintiff is not challenging a default or
other judgment and thus the discretionary portion of “Code of
Civil Procedure section 473 still requires that an attorney’s
neglect be excusable before relief can be granted under that
provision. That standard is expressly retained in Government
Code section 946.6.” (Tackett, supra, 22 Cal.App.4th at p. 65.)
Division 3 of this court has expressly followed Tackett for this
proposition, as have numerous other courts. (See Dept. of Water
14
& Power, supra, 82 Cal.App.4th at p. 1294, fn. 3 [citing Tackett,
supra, 22 Cal.App.4th at pp. 64–65, for the proposition that
“[m]istake of counsel is not a basis for granting relief from the
claim filing requirements.”].) Rodriguez is therefore not entitled
to relief simply because her attorney conceded he made a
mistake, as she would be in the case of default judgment due to
his error under Code of Civil Procedure section 473, subdivision
(b). She still had to show that her attorney’s action or inaction
was excusable neglect or mistake under section 946.6, subdivision
(c)(1), and thus show diligence under the objective reasonably
prudent person standard discussed in part IV, ante. (Tackett,
supra, 22 Cal.App.4th at pp. 64–65; Ebersol, supra, 35 Cal.3d at
p. 435.)
The trial court did not abuse its discretion in imputing
counsel’s error to Rodriguez.
DISPOSITION
The judgment is affirmed. Respondent Los Angeles County
Department of Health Services shall recover its costs on appeal.
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J. WILEY, J.
*
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
15