Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Alan S. Rosenfield, Judge. Los Angeles County Super. Ct. No. MS005766
Zinder & Koch, Jeffrey E. Zinder and Audrey Lynn Priolo for Plaintiffs and Appellants.
Davis, Grass, Goldstein & Housouer and Jeffrey W. Grass for Defendant and Respondent.
MANELLA, J.
INTRODUCTION
Appellants, heirs seeking to bring a wrongful death action against a public hospital, appeal from the dismissal of their petition to file a late government claim. The trial court held that it lacked subject matter jurisdiction pursuant to Government Code section 911.4, subdivision (b), because appellants’ application for leave to present a late claim had been filed with the public entity more than one year after the cause of action accrued. Appellants contend that section 911.4 is a statute of limitations subject to tolling or estoppel. We hold that section 911.4 is not a statute of limitations, but a statute defining the court’s jurisdiction. We thus affirm the judgment of dismissal.
All further statutory references are to the Government Code, unless otherwise indicated.
BACKGROUND
On July 20, 2007, appellants filed a petition for leave to present a late government claim to respondent Antelope Valley Hospital, a public entity, in order to allow them to pursue their wrongful death action against the hospital and several physicians. The petition alleged that the decedent, Roxana Beltran, died May 19, 2006, three days after treatment in the hospital’s emergency room. The petition alleged that on June 15, 2007, appellants applied to respondent for leave to present a late claim, and respondent denied the request June 29, 2007.
The petition alleged that appellants were unaware that the hospital was a public hospital, because the hospital never revealed that information to appellants, and hospital employees represented that the hospital was a private entity. The petition asked that respondent be estopped from rejecting a late claim due to its having misled appellants as to its status.
In support of the petition, appellants submitted the declaration of Carlos Flores, an employee of the law firm representing appellants in the proceedings. Flores stated that in December 2006, he telephoned Antelope Valley Hospital and asked the operator whether the hospital was a government hospital. The operator replied that it was a private hospital. Flores stated that on June 14, 2007, his employer received a letter from the hospital, stating that it was a government agency. He claimed he made two telephone calls to the hospital that day. In the first call, the operator again said the hospital was private, but in the second call, the operator said the hospital was public, but not government.
Respondent opposed the petition on the ground that appellants’ claimed excuse for late presentation was not supported by substantial evidence. Respondent also moved to dismiss the petition, on the ground that appellants had failed to apply for leave to present a late claim within one year of the date their cause of action accrued.
See section 911.4, subdivision (b).
In reply, appellants submitted the declaration of their attorney, Audrey L. Priolo. Priolo stated that she sent a letter to the defendant doctors May 10, 2007, providing the notice required by Code of Civil Procedure section 364 (CCP 364). A copy of the notice and proofs of service are attached to her declaration. Also attached are copies of the decedent’s medical records, as well as a page from the Secretary of State’s Web site showing the address and agent for service of process for “Antelope Valley Hospital Auxiliary,” as of August 3, 2007. Priolo summarized the facts stated in Flores’s declaration, and stated that one of the claimants was a minor.
Code of Civil Procedure section 364, subdivision (a), requires a plaintiff to give medical providers at least 90 days’ prior notice of an intention to file an action for professional negligence.
On August 13, 2007, the day before the hearing on the petition, respondent submitted the hospital’s information form, which it had filed in the Secretary of State’s roster of public agencies December 26, 2000, pursuant to Government Code section 53051. The court granted respondent’s request that it take judicial notice of the form. The form shows the public agency as “Antelope Valley Healthcare District [also known as] Antelope Valley Hospital,” and names the members of the governing board, with their addresses. Respondent also submitted a copy of the update filed January 11, 2007.
The petition was submitted on the documentary evidence and arguments of counsel. The court held that it did not have jurisdiction to entertain the petition, because the application to the public agency for leave to present a late claim had not been filed within one year of the accrual of the cause of action. The petition was dismissed October 15, 2007. Appellants timely filed a notice of appeal October 25, 2007.
DISCUSSION
Before bringing an action against a state or local governmental entity, an injured party must first submit a claim to the entity in the form required by section 910. (§ 945.4.) “A claim relating to a cause of action for death or for injury to person . . . shall 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 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).) “If an application for leave to present a claim is denied or deemed to be denied . . ., a petition may be made to the court for an order relieving the petitioner from Section 945.4. . . .” (§ 946.6, subd. (a).) “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.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779, citing Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 488; see also Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713,)
Appellants concede that their application for leave to present a late claim was filed with the public entity some 13 months after the accrual of the cause of action. They contend, however, that the one-year period within which an application under section 911.4 must be filed with the public entity was tolled for 90 days after they served the notice required by CCP 364.
CCP 364, subdivision (a), provides: “No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” Subdivision (d) of that section provides: “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” The California Supreme Court has construed CCP 364, subdivision (d), as a provision tolling the statute of limitations for medical malpractice. (Woods v. Young (1991) 53 Cal.3d 315, 318.) In Woods, the court held that when the notice required by CCP 364 is given within 90 days of the end of the applicable limitations period, the 90 days shall be added to the time remaining in the statutory period. (Id. at p. 322.) The court gave the following example: “A plaintiff serves the 90-day notice of intent to sue required by [CCR] 364[, subdivision] (a) 50 days before expiration of the 1-year statute of limitations. Because [CCR] 364[, subdivision] (d) would in that case extend the 1-year limitations period by 90 days, calculated from the date of service of the 90-day notice, the plaintiff has 1 year and 40 days in which to file the action.” (Id. at p. 321.)
Code of Civil Procedure section 340.5 provides for a statute of limitations of three years from the date of injury or one year from the date the injury should have been discovered with reasonable diligence, whichever occurs first.
Appellants cite Anson v. County of Merced (1988) 202 Cal.App.3d 1195, in which the appellate court held that section 945.6 -- providing that a claimant must file a lawsuit no later than six months after the public entity’s denial of a timely presented claim -- was the “applicable statute of limitations” for purpose of the 90-day tolling provision of CCP 364, subdivision (d). (See Anson, at p. 1205; § 945.6.) While the Anson court had no need to address section 911.4, subdivision (b), appellant urges us to construe that section as a statute of limitations, and to find that the filing of a CCP 364 notice extends the one-year period in which to file an application to present an untimely claim.
We decline to do so. First, we note that Anson involved a claimant who had filed a CCP 364 notice within the applicable six-month period following rejection of her government claim. Here, appellants presented neither a timely claim nor a CCP 364 notice within the six-month period.
Moreover, we disagree with appellants’ contention that section 911.4, subdivision (b) is a statute of limitations. Section 911.4, subdivision (b), delimits the court’s jurisdiction: “Filing 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 Government Code section 946.6.” (Munoz v. State of California, supra, 33 Cal.App.4th at p.1779.) “It is well established that subject matter jurisdiction, as distinct from jurisdiction of the parties, cannot be conferred by consent, waiver, or estoppel.” (Estate of Buckley (1982) 132 Cal.App.3d 434, 451; see also Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307, fn. 9, citing Summers v. Superior Court (1959) 53 Cal.2d 295, 298.) Conversely, “[i]n civil cases, the statute of limitations is not jurisdictional but merely serves a procedural function and constitutes an affirmative defense that is waived unless pleaded and proved. [Citations.]” (People v. Williams (1999) 77 Cal.App.4th 436, 457-458.)
Relying on Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353 (Fredrichsen), appellants contend that section 911.4 is at least analogous to a statute of limitations, and thus may be excused by estoppel. Fredrichsen is inapplicable. There, the California Supreme Court held that section 911.2 -- the six-month period within which a claim must be presented to the public entity -- was analogous to a statute of limitations, but did not discuss section 911.4. (Fredrichsen, at pp. 356-357.)
We conclude that the trial court lacked jurisdiction to proceed under section 911.4. Thus, the court correctly dismissed appellants’ petition for lack of subject matter jurisdiction.
Assuming, arguendo, that the trial court had jurisdiction to consider appellants’ petition to allow a late claim, appellants have failed to show they would be entitled to relief. There was no allegation or proof that the hospital did anything to cause appellants to fail to present a timely claim. Because appellants’ cause of action accrued May 19, 2006, they were required to present their claim no later than November 19, 2006. (§ 911.2, subd. (a).) Appellants did not allege, and presented no evidence that prior to November 19, 2006, they made any inquiry regarding the status of the hospital. A claimant must use reasonable diligence to ascertain the status of the entity; mere ignorance does not excuse a late claim. (Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 156.) Appellants suggest that their letters requesting medical records showed diligence, and that the records should have indicated that the hospital was a public entity. We disagree. A public hospital must identify its public status on letterhead, but is not required to do so in medical records. (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1165; see § 7530.)
DISPOSITION
The judgment is affirmed. Respondent shall have its costs on appeal.
We concur: EPSTEIN, P. J., SUZUKAWA, J.