Lincoln Unified School Dist. v. Superior Court

Filed 3/3/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
LINCOLN UNIFIED SCHOOL DISTRICT et al., C088857
Petitioners, (Super. Ct. No.
STKCVUNPI20180005509)
v.
THE SUPERIOR COURT OF SAN JOAQUIN
COUNTY,
Respondent;
SHYNELLE JONES,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Petition granted. Elizabeth Humphreys,
Judge.
Johnson Schachter & Lewis and Jason M. Sherman for Petitioners.
Weintraub Tobin Chediak Coleman Grodin Law Corporation, Brendan J. Begley,
Joshua H. Escovedo, and Zachary S. Thompson for California Association of Joint
Powers Authorities as Amicus Curiae on behalf of Petitioners.
1
No appearance for Respondent.
Law Offices of Kenneth N. Meleyco, Kenneth N. Meleyco, and Floyd W.
Cranmore for Real Party in Interest.
This proceeding arises out of a minor’s collapse during football try-outs at Lincoln
High School in Stockton on August 1, 2017. Respondent Shynelle Jones presented a
timely claim on behalf of her son, Jayden, to the Lincoln Unified School District under
the Government Claims Act (Gov. Code, § 810 et seq.).1 About four months later, Jones
submitted an application to the school district for leave to present a late claim on her own
behalf based on her allegedly newfound realization of the severity of her son’s injuries,
their impact on her own life, and her right to file her own claim. She declared that up
until that point she had been able to attend to her own interests. After the application was
denied, Jones filed a petition for relief from the claim presentation requirement in the
superior court based on the same facts. At the hearing on her petition, her counsel,
Kenneth Meleyco, presented a new explanation for the delay in submitting Jones’s claim.
After the hearing, he filed a declaration explaining that, the day after Jones presented a
claim on her son’s behalf, she retained Meleyco on her own behalf, and an error in the
handling of Meleyco’s dictated memo within his office prevented the earlier preparation
of Jones’s claim. The superior court granted Jones’s petition, despite noting “legitimate
concerns regarding [her] credibility” because it “determined based on the directives
provided in case law, to provide relief from technical rules, that [Jones] has met her
burden of proof to demonstrate that her neglect was excusable.” This original proceeding
followed.
We conclude this ruling was an abuse of the court’s discretion. The reason a
petitioner submits to justify relief from the claim presentation requirement must be the
1 Undesignated statutory references are to the Government Code.
2
same as the reason advanced in the underlying application to the public entity.
Additionally, the general policy favoring trial on the merits cannot justify the approval of
a petition that is not credible and that does not demonstrate a right to relief by a
preponderance of the evidence. We shall issue a writ of mandate compelling the superior
court to vacate its order and enter a new order denying Jones relief from the claim
presentation requirement.
I. BACKGROUND
Jones, as guardian ad litem on behalf of her son, filed a complaint for gross
negligence and negligent misrepresentation against petitioners the Lincoln Unified
School District, its superintendent, the principal of Lincoln High School, and the football
coach of Lincoln High School (collectively, the District). The complaint alleges that, on
August 1, 2017, Jayden collapsed due to extreme exhaustion and dehydration after being
denied water at football try-outs and suffered permanent injuries as a result. The
complaint alleges compliance with the Government Claims Act. On November 8, 2017,
Jones had sent a claim to the school district on her son’s behalf. This proceeding
concerns Jones’s attempt to present a claim on her own behalf.
On March 2, 2018, Jones applied to the school district on her own behalf “for
leave to present a late claim founded on a cause of action for personal injury, which
accrued on or about August 1, 2017, for which a claim was not presented within the six-
month period provided by [] section 911.2[, subdivision ](a).” The application stated: “It
now appears that [Jayden] will have life-long problems. His mother . . . , because of the
affect [sic] that she now realizes this will have on her life, which she did not understand
originally, now requests permission to file a late claim for her injuries as a result of the
incident on August 1, 2017. The other circumstances concerning the reasons for the late
claim are contained in her declaration.” The application attached what it termed a
“proposed claim” that stated Jones “did not file a claim within the prescribed time . . .
because she did not realize the degree of injuries that her son . . . has and will suffer.”
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Jones submitted a declaration explaining: “Initially I did not file a claim because I
believed that [Jayden] would recover from his injuries. I was so upset and concerned
about him I never gave any thought of myself until this time. My life was a whirlpool of
[h]ospitals, [d]octors, issues concerning his health, and the need for me to work to
support us. I moved in with my mother because of all this. As of now he has not [sic]
and has developed physical and mental issues. I believe that he may be permanently
injured, but, of course, I am hoping that he recovers. My time is now spent taking him
from one [d]octor’s office to another and to physical therapy. I am Jayden’s sole
caretaker . . . . Now, when I think back at this time, []from his injury until now I realized
I was not functioning properly in looking out for me as opposed to [Jayden].” Jones
added, “I was unaware of my right to even file a claim until recently because I was so
involved in [Jayden]’s care.” The memorandum of points and authorities submitted in
support of the application made no reference to the factual basis for relief, but briefed the
legal concept of “[m]istake, inadvertence, surprise or excusable neglect.” (§ 911.6, subd.
(b)(l).)
Jones’s application was deemed denied on the 45th day when the school district
did not act on it. (§ 911.6, subd. (c).)
In July 2018, Jones filed a petition for relief from the claim presentation
requirement in superior court based on mistake, inadvertence, surprise, or excusable
neglect. The petition explained “[t]he reason for the late claim was because [Jones] was
unaware of the nature and extent of injuries suffered by her son as a result of the
dehydration until the passage of time when the full extent of the injuries manifested
themselves. These reasons are set forth in the attached Claim and the declaration of
[Jones].” The application Jones submitted to the school district, including her declaration
in support thereof, was attached to the petition.
The District filed an opposition arguing Jones had not established excusable
neglect. The District submitted evidence of a social media post by Jones shortly after the
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incident to support its assertion that Jones had been aware of the extent of her son’s
injuries and its effect on her personal finances. In the post, dated August 3, 2017, Jones
states: “This unexpected tragedy has put a strain on my family emotionally and
financially. I have started a GoFundMe account to help alleviate some of the financial
burden of the medical bills resulting from this one[-]week hospital stay. I have been
unable to work and support my family as I normally do.”
The court issued a tentative ruling denying Jones’s petition on the grounds she had
failed to demonstrate that her neglect was excusable. The court found Jones was aware
that the injuries suffered by her son were causing her financial problems of some
significance shortly after they occurred and that she had been thinking of these problems.
Further, the court explained Jones’s declaration “is undermined by her actions. She hired
an attorney to file a Claim on behalf of her son, started a GoFundMe account, posted on
Facebook about her inability to work and support her family, and gave several television
interviews regarding her son.” The court found “[t]he Petition fail[ed] to reveal any act
of diligence of [Jones] or her attorney to ascertain the full nature and extent of her
injuries. There [was] no mention of the actions taken by [Jones] to ascertain her
injuries.” The court also found “[t]here [was] no showing that . . . counsel was otherwise
diligent in investigating and pursuing [Jones’s] claim.”
After oral argument, the court ordered Jones to file a declaration and additional
briefing. Meleyco submitted a declaration stating he was retained by Jones on August 21,
2017, to file a lawsuit against the District on behalf of her son. He describes his “habitual
custom and practice, to dictate an extensive memo to the file after speaking with a client
which is then transcribed by the legal secretary.” He continued: “In cases involving the
Government [C]laim[s] [A]ct, the memo is utilize[d] to provide a factual background for
the claim. Normally, the assigned secretary or perhaps other staff person, will draft the
claim immediately, return the file to my desk and we send it out immediately. I have
been in private practice for many years representing personal injury [plaintiffs] and I
5
cannot think of one instance where I did not dictate a memo following someone signing a
fee agreement.”
In this case, however, Meleyco wanted to meet Jayden before submitting his
claim: “Accordingly, my staff electronically calendared what I understood to be the last
day to file [Jayden]’s claim for January 29, 2018, based on his injury on August 1, 2017.
[¶] We did not calendar any claim due date for []Jones, because there was no need—I
had not evaluated, at that time, that she had any appreciable injuries of her own or claim
for damages thereon. Nor had she retained me to represent her.”
Meleyco was not able to meet with Jayden until October 12, 2017: “Pursuant to
my practice, I dictated a further memo regarding that interview with him for [the] file.
This memo was transcribed and [the] file returned to me with a draft claim.” The claim
was signed by Meleyco on November 8, 2017.
Meleyco declared that, the next day, Jones called him and then came to see him.
She was distraught because her employment had been terminated. Jayden’s doctors
“were also increasingly indicating to her that he may have permanent disabilities.”
Meleyco “then evaluated, at that point, on November 9, 2017, that []Jones now had an
appreciable claim for injuries of her own. And so, on November 9, 2017, she retained me
to file a claim for her too. As per my habitual custom and practice, I dictated a memo of
my interview with her. In the dictation, I, pursuant to custom and practice, would have
stated that a claim needed to be filed. So, in the dictation to the secretary, there would be
an instruction . . . to return the file to my desk for the preparation of the claim. But, as I
have now learned, the memo from the Nov. 9 meeting was not transcribed[,] or if it was,
it was not placed in the correct file and/or misfiled. In any event, I never received the file
back ‘on my desk’ with that memo which would have then to [sic] triggered my
completion of the preparation for her Government Claims Act claim.”
Meleyco’s office also did not calendar the deadline for submitting Jones’s claim:
“This would have been by the secretary per the memo” that he never received back.
6
Meleyco declared: “At the time[,] my office had two experienced legal secretaries and
one legal assistant in training. One of those secretaries had been with me for many years,
the other was relatively new, replacing another long[-]term secretary. Indeed, I
eventually had to let that ‘new’ secretary go, due to a series of consistent problems. [¶]
At that point, my office had never mis-filed a claim for a client, and typically . . . we file
them early, given my habitual custom and practice . . . .”
Meleyco declared: “I still do not know exactly what happened, but when the date
calendared for the last day to file [Jayden]’s claim rolled around, my staff and I had
apparently forgotten that now we also represented . . . Jones, not just her son. My initial
memo[s] are utilized by the staff to do many things—order medical records, order police
reports, hire experts, calendar statute of limitations, calendar court dates (if the file is
already in litigation), etc. There are countless instructions and the plan for the case is
often included. Instead, through some mistake, inadvertence, or neglect, in some
combination of secretarial error and calendaring error, my office did not follow my
habitual custom and practice, and instead, the claim for []Jones was not submitted.”
Meleyco also said he did not know how this mistake was uncovered: “[S]omeone
in the office then further investigated, I do not recall why if I ever knew, and as a result,
we realized a claim had not been filed immediately for []Jones, as per my habitual custom
and practice.”
Meleyco explained the circumstances that led to his submitting a new theory of
mistake, inadvertence, or excusable neglect: “On October 19, 2018, when meeting at
approximately 8:20 AM before the court hearing on this matter with []Jones, I first
realized that Ms. Jones had retained me on November 9, 2017, . . . because she reminded
me about this. I realized then that it was my and my . . . office’s mistake, inadvertence or
excusable neglect in failing to file the claim on or before January 29, 2018[,] and not Ms.
Jones for retaining me after the date. . . . [¶] . . . I advised the court on October 19,
2018[,] at the hearing and, as a result, this Court allowed this additional declaration and
7
points and authorities relative to attorney mistake, neglect, inadvertence, or excusable
neglect.” Meleyco’s declaration attached a redacted fee agreement showing Jones
retained him on November 9, 2017.
The superior court granted Jones’s petition. The court explained, “While the
[District is] correct that the attorney’s [current] excusable neglect theory was not
presented until after the passage of the one-year statute of limitations, the original
Application was still based upon the claim of excusable neglect and filed within the one-
year deadline. It is clear that the theory presented to the Court for the ‘excusable neglect’
has changed dramatically from the initial moving documents and was not set forth in
[Jones]’s Application for Leave to Present Late Claim that she submitted to the [school
district] as required by [section] 911.4[, subdivision ](b). The parties have not cited to
the court and the court has been unable to locate any legal authority that addresses
directly whether the specific factual grounds for excusable neglect must be stated in a
Petitioner’s Application for Leave to Present Late Claim or whether it is sufficient to
claim ‘excusable neglect.’ [The District] raise[s] legitimate concerns regarding [Jones]’s
credibility given the evolving facts presented to support the claim of excusable neglect.
After reviewing and weighing the evidence presented, the Court has determined based on
the directives provided in case law, to provide relief from technical rules, that [Jones] has
met her burden of proof to demonstrate that her neglect was excusable.”
The District filed a petition for writ of mandate or other appropriate relief in this
court challenging the superior court’s order. We issued an order to show cause.
II. DISCUSSION
A. Government Claim Presentation Requirements
No suit for damages may be maintained against a public entity unless a written
claim has first been presented to it. (§ 945.4.) A claim for personal injury must be
presented “not later than six months after the accrual of the cause of action.” (§ 911.2,
subd. (a).) “When a claim . . . is not presented within that time, a written application may
8
be made to the public entity for leave to present that claim.” (§ 911.4, subd. (a).) “The
application shall be presented to the public entity . . . 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).) “Accrual of the cause of action for
purposes of [these statutes] is the date of accrual that would pertain under the statute of
limitations applicable to a dispute between private litigants.” (Shirk v. Vista Unified
School Dist. (2007) 42 Cal.4th 201, 208-209, superseded by statute as stated in
Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 914; see § 901.)
As relevant to this proceeding, “The board shall grant the application where one or
more of the following is applicable: [¶] (1) The 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 . . . .” (§ 911.6, subd. (b).)
“If an application for leave to present a claim is denied or deemed denied pursuant
to Section 911.6, a petition may be made to the court for an order relieving the petitioner
from Section 945.4.” (§ 946.6, subd. (a).) The petition must show “[t]he reason for
failure to present the claim within the time limit specified in Section 911.2.” (§ 946.6,
subd. (b)(2).) The court must grant a petition for relief from the claim requirement “if the
claimant demonstrates by a preponderance of the evidence the application to the public
entity under . . . section 911.4 was made within a reasonable time not exceeding one year
after the accrual of the cause of action, and one of the other four requirements listed in
. . . section 946.6, subdivision (c) is met.” (Munoz v. State of California (1995) 33
Cal.App.4th 1767, 1777.) One of the requirements is that “[t]he 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 . . . .”2 (§ 946.6,
2 The issue of prejudice has not been raised in these original proceedings.
9
subd. (c)(1).) “Excusable neglect is ‘that neglect which might have been the act of a
reasonably prudent person under the same circumstances.’ ” (Tammen v. County of San
Diego (1967) 66 Cal.2d 468, 476.) “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, supra, at pp. 1777-
1778; see § 946.6, subd. (e).)
B. 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.) “Furthermore, we review de novo, or independently, a trial court’s
decisions on questions of law, such as construction of a statute and whether a claim is
barred by a statute of limitations.” (City of San Diego v. Superior Court (2015) 244
Cal.App.4th 1, 9.) “ ‘In construing any statute, we first look to its language. [Citation.]
“Words used in a statute . . . should be given the meaning they bear in ordinary use.
[Citations.] If the language is clear and unambiguous there is no need for construction,
nor is it necessary to resort to indicia of the intent of the Legislature . . . .” [Citation.] “If
the language permits more than one reasonable interpretation, however, the court looks
‘to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to
be remedied, the legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a part.’ [Citation.]”
[Citation.]’ [Citation.] Also, a statute ‘ “must be given a reasonable and common sense
interpretation consistent with the apparent purpose and intention of the lawmakers,
practical rather than technical in nature, which upon application will result in wise policy
rather than mischief or absurdity.” ’ [Citations.] A court may not, ‘under the guise of
construction, rewrite the law or give the words an effect different from the plain and
10
direct import of the terms used.’ ” (DiCampli-Mintz v. County of Santa Clara (2012) 55
Cal.4th 983, 992.)
C. Accrual
In her return, Jones asserts she submitted a timely claim. While it is possible, as
she notes, to present a claim to a public entity alongside an alternative application for
leave to present a late claim, Jones did not do so here. (E.g., Mandjik v. Eden Township
Hospital Dist. (1992) 4 Cal.App.4th 1488, 1500.) The application Jones submitted for
leave to present a late claim stated that her claim “accrued on or about August 1, 2017,”
and attached what she termed a “proposed claim” that itself stated it was not timely.
Likewise, her petition for relief from the claim presentation explained “[t]he reason for
the late claim.”3 It was not until her reply brief that she first mentioned accrual. The
superior court did not address these points in its ruling. In this original proceeding, Jones
now argues accrual was delayed based on her counsel’s later discovery of an alleged
cover-up by the District of its lack of adherence to best practices for athlete safety. We
conclude the issue is not before us. (See Santee v. Santa Clara County Office of
3 The general rule is that an action accrues on the date of injury. (Jolly v. Eli Lilly & Co.
(1988) 44 Cal.3d 1103, 1109.) Under the discovery rule, “the accrual date of a cause of
action is delayed until the plaintiff is aware of her injury and its negligent cause.” (Ibid.)
Nonetheless, “[a] plaintiff is held to her actual knowledge as well as knowledge that
could reasonably be discovered through investigation of sources open to her.” (Ibid.)
Thus, “the statute of limitations begins to run when the plaintiff suspects or should
suspect that her injury was caused by wrongdoing, that someone has done something
wrong to her.” (Id. at p. 1110.) “Wrong” is not used in a technical sense, “but rather in
accordance with its ‘lay understanding.’ ” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,
397-398.) “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the
claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a
suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to
file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must
go find the facts; she cannot wait for the facts to find her.” (Jolly, supra, at p. 1111.)
Were we to reach the issue, we would conclude that Jones has not established the
discovery rule applies to this action.
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Education (1990) 220 Cal.App.3d 702, 712 [issue of timely filing of claim was before
court of appeal where “appellants raised the issue first in their reconsideration motion,
argued it fully in the trial court, and submitted it to [the appellate court] without
reservation or argument that the issue remains pending below”].) We thus turn to the
issues that were addressed by the superior court.
D. “The Reason” for Presenting Jones’s Late Claim
The District, in its petition, challenges the superior court’s apparent conclusion
that an application for leave to present a late claim to a public entity need not state the
specific factual grounds for relief but may state only “excusable neglect.” We also note
that the petition for relief from the claim presentation requirement in the superior court
shall show “[t]he reason for failure to present the claim within the time limit
specified . . . .” (§ 946.6, subd. (b)(2).) Jones argues “the reason” for the delay in
presenting the claim that must be stated under 911.4, subdivision (b) in an application for
leave to present a late claim and shown under section 946.6, subdivision (b) in a petition
for relief from the claim presentation requirement must be one of the “exclusive, laundry
list of the only legislatively allowed ‘reason[s]’ ” including “mistake, inadvertence,
surprise, or excusable neglect.” (See §§ 911.6, subd. (b)(1), 946.6, subd. (c)(1).) We
disagree. A public entity shall grant an application and the court shall relieve a petitioner
from the claim presentation requirements where, as applicable to these proceedings,
“[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).) Neither set of statutes
states that these are “reasons.” Rather, as we will explain, they are conclusions that the
public entity or court may reach that would then necessitate relief.
Section 911.4 and the requirement that an application to the public entity “state the
reason for the delay in presenting the claim” was enacted in 1963. (Stats. 1963, ch. 1715,
§ 1, p. 3376.) Before then, “[t]he existing procedure under the local public entities claims
statute require[d] a court proceeding to obtain leave to present a claim after the time
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prescribed.” (4 Cal. Law Revision Com. Rep. (1963) p. 1010.) Section 946.6 was
enacted in 1965 and established a procedure for obtaining relief from having to present
any claim at all. (Stats. 1965, ch. 653, § 22, p. 2016.)
We take judicial notice sua sponte of the definitions in place at the time these
statutes were enacted.4 (See Evid. Code, § 451, subd. (e) [judicial notice shall be taken
of “[t]he true signification of all English words and phrases and of all legal
expressions”].) A reason is: “1a: an expression or statement offered as an explanation of
a belief or assertion or as a justification of an act or procedure . . . b: a consideration,
motive, or judgment inducing or confirming a belief, influencing the will, or leading to an
action or course of action: a rational ground or motive . . . c: a sufficient ground of
explanation or of logical defense; esp: a general principle, law, or warranted presumption
that supports a conclusion, explains a fact, or validates a course of conduct . . . d: the
thing that makes some fact intelligible: CAUSE.” (Webster’s 3d New Internat. Dict.
(1961) p. 1891, col. 3.)
We explained the usage of the word “reason” in a different statutory context in
Bryant v. State Personnel Board (1950) 96 Cal.App.2d 423. There, we interpreted
section 19173, which then provided: “Any probationer may be rejected by the appointing
power during the probationary period for reasons relating to the probationer’s
qualifications, the good of the service, or failure to demonstrate merit, efficiency, fitness,
and moral responsibility. [¶] Notice of rejection accompanied by a statement of the
specific reasons therefor, truthful within the knowledge of the appointing power or other
4 The District requested that we take judicial notice of the definition of “reason” taken
from an online version of the Merriam-Webster Dictionary. “ ‘The dictionary is a proper
source to determine the usual and ordinary meaning of words in a statute.’ ” (Siskiyou
County Farm Bureau v. Department of Fish & Wildlife (2015) 237 Cal.App.4th 411,
433.) Nonetheless, we decline the District’s request because “relevant dictionary
definitions are those extant before or at least near in time to the statutory or contractual
usage.” (Id. at p. 434.)
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officer or person in charge of the employee, shall be filed by the appointing power with
the board and a copy served upon the probationer to give effect to the rejection.” (former
§ 19173; see Bryant, supra, at p. 425.) In Bryant, the petitioner had received a notice of
rejection that stated, “ ‘The reasons for the rejection are the good of the service and
failure to demonstrate merit and fitness.’ ” (Bryant, supra, at p. 425.) This court
explained, after setting forth definitions of “reason,” “it is apparent from a reading of the
code section that justification for the rejection of a probationary employee, lies not in the
appointing power’s conclusion, as in the present case, that the action is for ‘the good of
the service and failure to demonstrate merit and fitness’ or that ‘the conduct and actions’
were unbecoming to such an employee. Rather the justification therefor lies in the
factual reasons which support or justify such conclusion by said appointing power that
the rejection of the employee would be for the good of the service. In other words, while
the notice of rejection undoubtedly stated a good cause for removal such a statement is
not an adequate ‘statement of the specific reasons therefor’ as contained in said section.”
(Id. at p. 426, first emphasis added.)
Similarly, in the context of reviewing a ruling on a petition for relief from the
claim presentation requirement, it has been explained that “[t]he mere recital of mistake,
inadvertence, surprise or excusable neglect is not sufficient to warrant relief. Relief on
grounds of mistake, inadvertence, surprise or excusable neglect is available only on a
showing that the claimant’s failure to timely present a claim was reasonable when tested
by the objective ‘reasonably prudent person’ standard. The definition of excusable
neglect is defined as ‘neglect that might have been the act or omission of a reasonably
prudent person under the same or similar circumstances.’ ” (Department of Water &
Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) In other words, the
“reason” for the delay in presenting the claim that must be stated under 911.4,
subdivision (b) in an application for leave to present a late claim to the public entity and
shown under section 946.6, subdivision (b) in a petition for relief from the claim
14
presentation requirement to the court, is the factual basis that would justify the conclusion
that the delay was based on mistake, inadvertence, surprise or excusable neglect.
As set forth above, an application for leave to present a late claim must be
presented to the public entity “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).) Courts have explained that “[f]iling a late-claim application
within one year after the accrual of a cause of action is a jurisdictional prerequisite to a
claim-relief petition. [Citation.] 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 . . . section 946.6.” (Munoz v. State of California, supra,
33 Cal.App.4th at p. 1779.) The District contends the superior court also does not have
jurisdiction to grant relief under section 946.6 based on reasons never stated in the
underlying application. The authorities relied upon by the District do not so hold. This
does not, however, mean that a court may grant relief in such a situation.
Jones relies upon section 946.6, subdivision (e), which provides: “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.” We agree that this
provision allows for the presentation of additional evidence at the hearing. Jones also
argues additional reasons may be presented to the superior court at this time. The plain
language of the statute does not support this reading. Further, the fact that the court’s
determination is independent (or de novo) does not mean there is no relationship between
the reason presented to the court and the reason presented to the public entity. As Jones
acknowledges, the statutes governing applications to the public entity and the statute
governing petitions to the superior court contain parallel and identical language. We now
shift our focus from the meaning of “reason” to the effect of the definite article that
proceeds it.
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Sections 911.4 and 946.6 both include the requirement of the presentation of “the
reason” rather than “a reason.” (§§ 911.4, subd. (b), 946.6, subd. (b)(2).) “Use of the
indefinite articles ‘a’ or ‘an’ signals a general reference, while use of the definite article
‘the’ (or ‘these’ in the instance of plural nouns) refers to a specific person, place, or
thing.” (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1396; see also CD
Investment Co. v. California Ins. Guarantee Assn. (2000) 84 Cal.App.4th 1410, 1421
[“ ‘In construing [a] statute, [the] definite article “the” particularizes the subject which it
precedes and is [a] word of limitation as opposed to [an] indefinite or generalizing force
[such as] “a” or “an” ’ ”].) Thus, the statutes both refer to a specific reason. By doing
so, they refer to the same reason. The language and structure of the statutes thus require
that “the reason” offered to the superior court and to the public entity be the same.
While resort to legislative history is unnecessary to our analysis, we note this
construction is necessary to achieve the legislative purpose of the statutes. While our
Supreme Court has recognized that “ ‘[t]he 1963 legislation is remedial and should be
liberally construed’ ” (Viles v. State (1967) 66 Cal.2d 24, 31), and “[t]he policy favoring
trial on the merits is the primary policy underlying section 946.6” (Bettencourt v. Los
Rios Community College Dist., supra, 42 Cal.3d at p. 276, italics added), the procedures
for presenting an application for leave to file a late claim to the public entity have another
specific purpose. In recommending the original 1963 legislation, the Law Revision
Commission explained court proceedings to obtain leave to present a claim “could be
avoided in many cases by requiring the claimant or his representative to make application
in the first instance to the public entity to present the late claim. The Commission is
hopeful that the public entity will grant this application in the great majority of cases
where the claimant meets the statutory requirements for presenting a late claim. Only if
the public entity denies the application should a court proceeding be required.” (4 Cal.
Law Revision Com. Rep. (1963) p. 1010.) In other words, “[t]he purpose of allowing
applications for leave to file late claims is to give the public entity an opportunity to
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examine petitioners’ reasons for not filing timely claims and to allow the public entity to
grant the applications where the reasons are meritorious, thereby eliminating unnecessary
litigation.” (Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 9.) The public
entity has no opportunity to examine a petitioner’s reasons if they are not provided or if
they are subsequently changed. The use of the phrase “the reason” in this context is
deliberate—it requires that the reason remain the same in both proceedings. We may not
adopt a construction of the statutes that violates their plain language and the specific
purpose of creating a procedure that shifts the burden of deciding whether leave to
present a late claim should be granted to public entities. While additional evidence can
be supplied to support the reason provided, at both stages the question is whether the
reason and the evidence were sufficient to show excusable neglect.
The superior court stated “[i]t is clear that the theory presented to the Court for the
‘excusable neglect’ has changed dramatically from the initial moving documents and was
not set forth in [Jones]’s Application for Leave to Present Late Claim.” As set forth
above, the court framed the question as whether the specific factual grounds for
excusable neglect must be stated in the application for leave to present a late claim or
“whether it is sufficient to claim ‘excusable neglect.’ ” As we have explained, we
disagree with the court’s apparent conclusion that claiming no more than excusable
neglect is sufficient. But the court obscured the true question presented by this
proceeding. Jones did present the same reason in her petition and in her underlying
application. What is unique about this proceeding is that she introduced additional
evidence—which is itself permissible—but that evidence pertained to a reason that was
not contained in—and contradicted—her moving papers in the superior court and her
underlying application to the public entity.
Jones declared under penalty of perjury on February 28, 2018, that she “was
unaware of [her] right to even file a claim until recently because [she] was so involved in
[Jayden]’s care.” (Italics added.) She said, “from his injury until now I realized I was not
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functioning properly in looking out for me as opposed to [Jayden].” (Italics added.)
Meleyco, on the other hand, declared under penalty of perjury that Jones was aware of
her right to file a claim on her own behalf the day after she filed a claim on behalf of her
son—which was almost four months earlier. She came to his office, and he “then
evaluated, at that point, on November 9, 2017, that []Jones now had an appreciable claim
for injuries of her own. And so, on November 9, 2017, she retained [him] to file a claim
for her too.” It was only after the court indicated its intent to reject Jones’s explanation
based on the District’s submission of contradictory evidence that Meleyco offered a
different explanation. And his new explanation requires us to believe he prepared an
application for leave to present a late claim without knowing why it was late or that his
critical memorandum was missing, and it took him almost eight more months (during
which time he prepared more pleadings on the matter) to learn what he now contends was
the truth that was readily discernable from his fee agreement all along.
The superior court found the District had raised “legitimate concerns regarding
[Jones]’s credibility given the evolving facts presented to support the claim of excusable
neglect,” yet it explained, “[a]fter reviewing and weighing the evidence presented, the
Court has determined based on the directives provided in case law, to provide relief from
technical rules, that [Jones] has met her burden of proof to demonstrate that her neglect
was excusable.” The court appears to have not evaluated the evidence because it
believed public policy favored relief. That was an abuse of discretion. “[T]he trial
court’s discretion to grant relief is not ‘unfettered.’ [Citation.] It is ‘ “to be exercised in
conformity with the spirit of the law and in a manner to subserve and not to impede or
defeat the ends of substantial justice.” ’ ” (Bettencourt v. Los Rios Community College
Dist., supra, 42 Cal.3d at p. 275.) “The general policy favoring trial on the merits cannot
be applied indiscriminately so as to render ineffective the statutory time limits.”
(Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1293.)
Nor may the superior court’s exercise of discretion be applied to eliminate the statutory
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requirement that the reason supporting a claim of excusable neglect be submitted to the
public entity or the petitioner’s burden of proof.
Jones may not advance a factual theory of excusable neglect that was entirely
different from the one she previously presented to the public entity, and she did not
demonstrate the truth of her original theory by a preponderance of the evidence. The trial
court’s decision to grant Jones relief from the claim presentation requirement under these
circumstances was error.
III. DISPOSITION
Let a peremptory writ of mandate issue directing the respondent court to vacate its
order granting Shynelle Jones relief from the claim presentation requirement, and to enter
a new order denying relief.
Petitioners shall recover their costs in this original proceeding. (Cal. Rules of
Court, rule 8.493(a)(1)(A).)
/S/
RENNER, J.
We concur:
/S/
RAYE, P.J.
/S/
BUTZ, J.
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