Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 39200800198668CUMMSTK
HULL, Acting P. J.This case involves the timeliness of a government tort claim for emotional distress. On October 23, 2007, after a complicated labor and delivery, plaintiff Alicia Arriaga gave birth to her son, Luis, at a hospital operated by defendant County of San Joaquin. Luis was born with serious medical problems and remained in the hospital until November 13, 2007. Plaintiff did not file her tort claim until September 2008, and defendant denied it as untimely. The trial court subsequently denied plaintiff’s petition for leave to file a late claim, concluding that plaintiff had not established that her delay was due to excusable neglect. We affirm.
Government Tort Claims Act
Under the California Tort Claims Act (Gov. Code, § 810 et seq.; unspecified section references that follow are to the Government Code), a person wishing to sue a public entity for personal injuries must first submit a claim to the entity within six months of the date the cause of action accrued. (§ 911.2, 945.4.) “The claim presentation requirement serves several purposes: (1) it gives the public entity prompt notice of a claim so it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so it can better prepare for the upcoming fiscal year.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.)
If a claim is not timely presented, the party may file an application for leave to present a late claim within a reasonable time, not to exceed one year of the date of the accrual of the cause of action. (§ 911.4.) If that application is also denied, the claimant may petition the trial court for relief under section 946.6. As relevant to this case, relief is available if “[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 defense of the claim if the court [grants the requested relief].” (§ 946.6, subd. (c)(1).) “Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) “It is not shown by the mere failure to discover a fact until it is too late; the party seeking relief must establish that in the exercise of reasonable diligence, [she] failed to discover it.” (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44 (DOT).)
“We review the trial court’s refusal to grant relief under section 946.6 under an abuse of discretion standard. ‘Abuse of discretion is shown where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief.’ [Citation.] ‘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.]’ [Citations.] Moreover, ‘a trial court decision denying relief will be scrutinized more carefully than an order granting relief. [Citation.]’” (Renteria v. Juvenile Justice, Department of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 910.) That said, “[t]he general policy favoring trial on the merits cannot be applied indiscriminately so as to render ineffective the statutory time limits. [Citation.]” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.)
With these principles in mind, we turn to the facts of this case.
Facts and Proceedings
Plaintiff was significantly past her due date, and she was admitted to defendant’s hospital to induce labor. She sustained a uterine rupture, necessitating an emergency caesarian section. Luis was delivered on October 23, 2007, and required intubation and resuscitation. He had numerous medical problems, including seizures and neurological difficulties such as an inability to nurse, a lack of gag reflex, and hearing problems. The hospital kept Luis in the intensive care nursery for three weeks. He had seizures for the first 72 hours after his birth, required various forms of breathing assistance until November 4, 2007, and had an intravenous catheter line for medications. He also suffered from abnormal muscle tone and control.
Hospital staff and social workers discussed Luis’s condition with plaintiff. She knew that her son had failed a hearing test and was receiving physical therapy. On October 28, 2007, a doctor explained that Luis might not be in good mental condition when the medications wore off.
The hospital staff taught plaintiff how to care for her infant. Plaintiff learned how to give gavage feedings through a nasogastric tube and how to do physical therapy exercises.
Luis was released from the hospital on November 13, 2007.
On February 26, 2008, plaintiff brought her son to the hospital because he was again having seizures. At that point, Luis still had a poor suck reflex and continued to be fed through a nasogastric tube. Plaintiff had taken her son to a gastroenterologist at Stanford a few weeks earlier. Luis had severe gastroesophageal reflux, requiring aspiration precautions to be used during feedings. Defendant’s records from the February 26 visit and later visits refer to Luis as having “spastic cerebral palsy/seizure disorder.”
A nurse came to plaintiff’s home once a week to care for Luis, and Luis also had appointments for massage therapy and physical therapy. He remained under the care of a pediatric neurologist.
On September 22, 2008, plaintiff submitted a written application to defendant to present a late claim for medical negligence based on the medical problems Luis suffered and the emotional distress plaintiff endured. She acknowledged that her claim could have accrued on October 23, 2007, the date Luis was born, and asserted that her failure to file a claim within six months of that date was the result of excusable negligence. She also filed another claim asserting her claim was timely because she did not learn of a definitive diagnosis for Luis until mid-July 2008. (See Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 712, fn. 6 [party may allege timely filing of claim and also file a claim-relief petition if compliance is questionable].) That contention, however, is not reiterated on appeal. The only issue before us is whether the delay between October 23, 2007 (the date of Luis’s birth) and September 22, 2008 (the date of plaintiff’s claim-relief petition) was excusable.
In her claim for relief, plaintiff asserted she had “no medical education or experience, and despite diligently seeking the counsel of medical professionals in order to ascertain the nature and extent of her son’s injuries, it was not until a definitive evaluation of the child performed in mid-July 2008 that she learned the full extent and permanent nature of those injuries; hence, any perceived delay in the discovery of both her and her son’s causes of action is, under the circumstances, eminently excusable.” She argued that defendant was not prejudiced in its ability to defend against her claims, and that her application for relief was filed within a reasonable time not exceeding one year after accrual of the causes of action.
Defendant denied plaintiff’s claim because it was not timely filed and also rejected plaintiff’s application for leave to present a late claim. Plaintiff filed a petition for relief from the government tort filing requirements with the superior court.
The trial court granted the petition as to Luis but denied it as to plaintiff, concluding she was not excused from complying with the tort claim requirements.
Plaintiff appeals from the ensuing order. (See Munoz v. State of California, supra, 33 Cal.App.4th at p. 1772, fn. 1 [order denying petition for relief from claim requirements is appealable].)
Discussion
For purposes of this appeal, plaintiff again assumes that her cause of action accrued upon Luis’s delivery on October 23, 2007. Her petition for relief from the claim-filing requirements was not submitted until September 22, 2008, well after the six-month statutory deadline. (§ 911.2, subd. (a).) The only issue before us is whether the trial court abused its discretion in concluding that plaintiff’s delay from October 2007 to September 2008 was not due to excusable neglect, and we therefore do not address any of the peripheral issues raised by the parties.
As noted, excusable neglect is “neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” (Ebersol v. Cowan, supra, 35 Cal.3d at p. 435.) A party must demonstrate that in the exercise of reasonable diligence, she failed to discover the relevant facts. (DOT, supra, 105 Cal.App.4th at p. 44.)
Plaintiff contends that defendant repeatedly reassured her that Luis was making progress and would most likely outgrow his medical difficulties, but that once she received a definitive diagnosis in July 2008, she acted within a reasonable time in filing her petition for relief from the claims requirements. She asserts that “as a pragmatic matter... some harms, while having matured to a point so as to warrant an award exceeding the merely nominal, might not, in the view of the victim, be perceived as justifying a lawsuit’s time, trouble, expense, and emotional sturm und drang in pursuit of an ‘appreciable’ but relatively meager award.” She adds that “she certainly ought to be forgiven for concluding that her energies were better devoted to the care of her infant rather than the pursuit of what from her perspective at the time promised to be a modest recovery in the crucible of litigation.”
The trial court acted well within its discretion in concluding that plaintiff did not demonstrate excusable neglect.
Again, we emphasize that plaintiff has conceded for purposes of this appeal that her cause of action arose on the day of her child’s birth. (See generally Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076 [“Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother... breaches a duty owed directly to the mother”].) The question is what plaintiff did in the months following the accrual of her claim. We have no doubt that plaintiff’s life during the months following Luis’s birth was difficult and that she devoted much time and energy to the care of her child. Nonetheless, it is equally apparent that plaintiff did nothing to pursue a claim against defendant in a timely manner. That lack of diligence precludes relief.
An earlier decision from this court, DOT, supra, 105 Cal.App.4th 39, is particularly instructive. In DOT, plaintiff and his wife drove their car into a cloud of smoke caused by a fire. (Id. at p. 42.) They stopped on the shoulder of the highway, and plaintiff was able to get out of the car. His wife, however, died when the car caught fire. (Ibid.)
Shortly after the accident, plaintiff learned that the fire had apparently been set by arsonists. (DOT, supra, 105 Cal.App.4th at p. 42.) Plaintiff did not seek legal counsel until nearly seven months later, when his barber recommended that he see another customer who was an attorney specializing in personal injury cases. (Id. at p. 43.) That attorney informed plaintiff that he had a potential claim against the State of California for the negligent maintenance of weeds and high grass along the freeway. (Id. at pp. 43, 44.)
Plaintiff filed a petition for relief from the six-month filing requirement for governmental tort claims, and the trial court granted the petition. The State appealed, and we reversed. (DOT, supra, 105 Cal.App.4th at p. 43.)
We noted that it took plaintiff more than seven months to consult an attorney and that he had done nothing in the intervening months to retain counsel or investigate the potential liability of others. (DOT, supra, 105 Cal.App.4th at p. 44.) “The pivotal issue is the diligence exercised by [plaintiff] during the six-month claim-filing period. In this respect, the record demonstrates that there was no diligence at all. [Plaintiff] did nothing until his fortuitous conversation with his barber, which took place seven months after the incident.
“The law neither expects nor requires an unsophisticated claimant to undertake an in-depth investigation into the possible liability of public entities, or to be aware of the peculiar time limitations of the governmental claims statutes. However, California cases are uniformly clear that ‘a petitioner may not successfully argue excusable neglect when he or she fails to take any action in pursuit of the claim within the six-month period. The claimant, must, at a minimum, make a diligent effort to obtain legal counsel within six months after the accrual of the cause of action. Once retained, it is the responsibility of legal counsel to diligently pursue the pertinent facts of the cause of action to identify possible defendants.” (DOT, supra, 105 Cal.App.4th at pp. 44-45; accord Ebersol v. Cowan, supra, 35 Cal.3d at p. 439; Munoz v. State of California, supra, 33 Cal.App.4th at pp. 1778-1779.)
Here, too, plaintiff did nothing in the six months following the birth of her son. She did not seek an attorney or otherwise pursue her claim. Because plaintiff did not make the required minimum effort to obtain counsel, plaintiff cannot establish excusable neglect.
We note that the recent case of Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373 (Barragan) rejected the idea that DOT established a bright-line rule for excusable neglect. In Barragan, the plaintiff was rendered quadriplegic in a car accident, and she endured a lengthy hospitalization and recovery that extended over 10 months. (Id. at pp. 1376-1379.) She appealed after her petition for leave to file a late claim was denied. (Id. at pp. 1380-1381.)
The Court of Appeal determined that relief should have been granted due to excusable neglect despite the fact that the plaintiff had not contacted an attorney during the six-month period following the accident. In analyzing DOT, the court explained, “The [DOT] court did not state that the claimant’s disability was irrelevant and that his failure to seek counsel ended the inquiry; instead, the court stated that the claimant’s evidence was simply insufficient to establish excusable neglect in failing to seek counsel.” (Barragan, supra, 184 Cal.App.4th at p. 1385.)
Barragan concluded, “[T]here is no absolute rule barring excusable neglect when the claimant has failed to obtain counsel during the six-month period. If a claimant can establish that physical and/or mental disability so limited the claimant’s ability to function and seek out counsel such that the failure to seek counsel could itself be considered the act of a reasonably prudent person under the same or similar circumstances, excusable neglect is established. We recognize, however, that every claimant is likely to be suffering from some degree of emotional upset, and it takes an exceptional showing for a claimant to establish that his or her disability reasonably prevented the taking of necessary steps.” (Barragan, supra, 184 Cal.App.4th at p. 1385.)
Barragan does not aid plaintiff’s case. Plaintiff did not have either a physical or mental disability that prevented her from contacting an attorney. She was able to function in her life and care for her son; she simply did not think she had a case against the hospital. These facts are a far cry from the situation in Barragan.
Plaintiff contends that she was unaware of the precise nature of her son’s medical problems and therefore cannot be faulted for not taking action more rapidly. But plaintiff concedes that her cause of action accrued when her son was born, when she herself encountered serious problems during labor, had a uterine rupture, underwent an emergency caesarean section, and gave birth to a child who suffered from immediately apparent severe medical problems. These problems included seizures, hearing loss, and an inability to suck, requiring feeding through a nasogastric tube for months after his birth. Luis remained under the care of doctors and therapists, and plaintiff was instructed on the special care required for her child. The fact that plaintiff did not know the precise nature of Luis’s condition does not equate to excusable neglect. By conceding that her cause of action accrued on Luis’s birth, plaintiff acknowledges that the six-month period began to run at that time, i.e., that she suffered an actionable injury when Luis was born. The fact that plaintiff might not have understood the full extent of damages does not alter the accrual date. (See Davies v. Krasna (1975) 14 Cal.3d 502, 514.) “It is precisely because theories of third party liability are subtle, complex and often not readily apparent to a layman that due diligence requires at least consultation with legal counsel.” (DOT, supra, 105 Cal.App.4th at p. 46.)
Plaintiff also asserts that her delay was excusable because her focus and energy were spent in caring for Luis, not in pursuing legal remedies. But that is often the fact in a personal injury case, particularly when a child is involved. While we do not discount the amount of time plaintiff devoted to Luis, the fact remains that plaintiff did nothing to pursue a claim against defendant, not even taking the minimal step of consulting an attorney. California courts have reiterated that a plaintiff “‘must at a minimum make a diligent effort to obtain legal counsel’ within the governmental claim filing period.” (DOT, supra, 105 Cal.App.4th at p. 45, quoting Ebersol v. Cowan, supra, 35 Cal.3d at p. 439.) Plaintiff did not do so. While Barragan may offer relief in cases involving physical or mental disability during the filing period (Barragan, supra, 184 Cal.App.4th at p. 1385), those circumstances are not applicable to plaintiff. Given the clear state of the law in California, including pronouncements by the California Supreme Court and this court, plaintiff’s reliance on a New York case, based on a New York statute, is misplaced. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In sum, the trial court acted well within its discretion in concluding that plaintiff did not demonstrate excusable neglect.
Plaintiff also contends that the trial court’s ruling was erroneous because defendant did not introduce any evidence that it was prejudiced by plaintiff’s delay. However, defendant was under no burden to establish prejudice until plaintiff first established that her failure to file a timely claim was due to excusable neglect (Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 726), a burden she did not meet.
Disposition
The order is affirmed. Defendant is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: ROBIE, J. BUTZ, J.