Opinion
A166429
01-26-2024
SUSHMA BHANDARI, Plaintiff and Appellant, v. CONTRA COSTA REGIONAL MEDICAL CENTER et al., Defendants and Respondents
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. C19-00656)
STREETER, J.
Plaintiff Sushma Bhandari appeals from a judgment in favor of defendants Contra Costa Regional Medical Center (CCRMC), a part of Contra Costa County (County), and two CCRMC doctors, Dr. Lisa M. Rodelo and Dr. Sweta Das.
Bhandari argues the trial court erred in (1) granting defendants' summary judgment based on her failure to comply with the California Government Claims Act (Gov. Code, § 810 et seq.) (the Claims Act), (2) denying her post-judgment motion for a new trial, and (3) denying her motions to amend the operative complaint and obtain further discovery from CCRMC.
As more fully explained below, we conclude Bhandari failed to timely present a government claim to a statutorily designated representative of the County under the Claims Act, and that her failure to do so barred her action altogether. The trial court properly granted summary judgment in defendants' favor on that basis. We also see no basis to reverse based on the trial court's denial of Bhandari's motion for a new trial or her other motions. We therefore affirm.
I. BACKGROUND
On March 29, 2019, Bhandari filed a complaint in Contra Costa County Superior Court against CCRMC, Dr. Rodelo, and Dr. Das. Litigation followed.
A. Bhandari's Second Amended Complaint
In the operative second amended complaint (SAC), Bhandari alleged five causes of action: for "liability for injuries by employee within the scope of employment" under Government Code section 815.2 against all defendants; medical malpractice against Dr. Rodelo; "liability for failure of public entity to exercise ordinary care in protecting persons in special relationship from harm by not properly supervising, training, or discharging" under Government Code section 815.2 against all defendants; and, in two separate causes of action, exemplary damages against Dr. Rodelo and Dr. Das for "suppression of fact, by one who is bound to disclose it or who gives information or other facts which are likely to mislead for want of communication of that fact."
Statutory references are to the Government Code unless indicated.
Bhandari based these causes of action on the following allegations. CCRMC was a department of Contra Costa County, and Dr. Rodelo and Dr. Das employees of CCRMC or the County. On May 20, 2016, she underwent a bilateral tubal litigation surgery at CCRMC, conducted by Dr. Rodelo. Dr. Rodelo told her the surgery went well. The doctor stated in his operative note that both of Bhandari's fallopian tubes had been incised and that the specimen of the tubes was sent to the pathology lab. Dr. Das indicated the same in his pathology report.
In February 2018, Bhandari had a medical emergency, went to the CCRMC emergency room, and was diagnosed with having an ectopic pregnancy in her right fallopian tube. On February 10, 2018, she underwent surgery, conducted by Dr. Sunthara R. Hay. On February 14, 2018, Dr. Hay told her he had found her right fallopian tube was "intact" when he performed the surgery. Bhandari was not sure whether she understood Dr. Hay properly and whether the word "intact" had some medical meaning she did not know. She could not understand how she could become pregnant if both her tubes had been incised.
She "continued having these doubts" in her mind. In June 2018, she obtained all her medical records from CCRMC and reviewed the notes and pictures contained in them. Dr. Hay stated in his post-surgery report that Bhandari's left tube was interrupted, but that the right tube was" 'without evident of tubal interruption containing ruptured ectopic pregnancy.'" (Italics omitted.)
In the first week of July 2018, Bhandari called Dr. Rodelo to discuss "her concern that her right fallopian tube may not have been incised" during the tubal ligation surgery. Dr. Rodelo told her," 'The tube might have grown after the incision was made.'" When Bhandari told her that Dr. Hay said the right fallopian tube was intact and asked what that meant, Dr. Rodelo answered," 'intact does not mean the tube was not incised,'" and added that Dr. Hay" 'did not use the right word in stating that.' "
Bhandari then consulted a dictionary for the meaning of the word "intact," learned that it meant" 'not damaged, or impaired in any way; complete,'" and understood that Dr. Rodelo was misleading her about the meaning of the word. However, Bhandari had no idea whether her fallopian tube, if incised, could repair itself in the time between her tubal ligation surgery and the ruptured ectopic pregnancy surgery, approximately 22 months.
Bhandari consulted with a cousin who was a physician practicing in Nepal. He told her he was not an expert in the relevant field but that he could consult experts. She sent him her medical records and "kept waiting for a response." On December 9, 2018, he told her that the experts with whom he consulted said her fallopian tube could not grow sufficiently in 22 months to repair itself and that her ectopic pregnancy occurred in the very part that was supposed to have been incised.
Bhandari, now sure that her injuries were caused by negligence and "negligent omission," presented a written claim by mail on January 2, 2019, to the Chief Executive Officer of CCRMC and Health Services (CCRMC CEO), Dr. Rodelo, and Dr. Das, which was received by "CCRMC agents" on January 4, 2019. When she received no response, she filed suit on March 29.
For simplicity's sake, we will refer to Bhandari's separate claims against defendants as a single claim.
B. Defendants' Motion for Summary Judgment
The parties engaged in significant litigation below before defendants moved for summary judgment. This included two demurrers by defendants, which the trial court for the most part overruled, and a petition for writ of mandamus to this court, apparently by defendants regarding one of the trial court's demurrer rulings, which this court summarily rejected. In the trial court, the parties also litigated discovery disputes and Bhandari's efforts to amend her complaint.
Defendants moved for summary judgment on various grounds, among them that undisputed facts showed Bhandari failed to present a government claim within six months of the accrual of her causes of action to a statutorily designated representative of the county, and no such representative actually and timely received her claim; therefore, defendants argued, Bhandari could not maintain an action against them under the Claims Act. Their factual assertions included the following, which were not meaningfully disputed by Bhandari and which are strikingly similar to Bhandari's SAC allegations.
On May 20, 2016, after the birth of her son, Bhandari underwent tubal ligation surgery at CCRMC, performed by Dr. Rodelo. In February 2018, she became very ill and went to the CCRMC. She underwent surgery for a ruptured ectopic pregnancy in her right fallopian tube, this time performed by Dr. Hay. Dr. Hay noted during the surgery that Bhandari's left fallopian tube was interrupted, but that there was no evidence the right fallopian tube was interrupted. He told Bhandari of his findings by February 14, 2018.
In June 2018, Bhandari requested her medical records from CCRMC. In July 2018, she spoke with Dr. Rodelo about her ectopic pregnancy because, at the very least, she was surprised that it could have happened. In late July 2018, she called a cousin who was a physician in Nepal to discuss her ectopic pregnancy and ask how she could have gotten pregnant.
In their separate statement in support of their summary judgment motion, defendants, citing Bhandari's deposition testimony, asserted that she became "curious" about how she became pregnant in February 2018. Bhandari disputed this characterization, contending the word she used at deposition, in the Nepali language and translated by an interpreter, actually meant" 'puzzle'" or" 'surprise.'" As the trial court concluded in granting defendants' summary judgment motion, the legal effect of "curious" and "surprised" is the same for the purposes of determining Bhandari's compliance with the Claims Act.
On or about January 2, 2019, Bhandari sent by mail a "Notice of Intent to File Medical Malpractice Action" under Code of Civil Procedure section 364 (Notice) to the CCRMC CEO, Dr. Rodelo and Dr. Das. CCRMC agents, Dr. Rodelo, and Dr. Das received the Notice.
On March 29, 2019, Bhandari filed her complaint, which as amended, she served on the defendants.
On May 29, 2019, the Clerk of the Contra Costa County Board of Supervisors received a claim under the Claims Act from Bhandari. This claim was returned to her as untimely on June 7, 2019. She applied to file a government claim on July 2, 2019, which application the County board of supervisors denied in August 2019.
In her opposition to defendants' summary judgment motion, Bhandari argued that her Notice should be construed as a government claim properly presented to defendants under Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699 (Phillips) and as a result, the County, by failing to notify Bhandari of the untimeliness of her Notice, had waived its untimeliness defense. Among other things, Bhandari asserted in her responsive separate statement that her Notice, once received by defendants, was forwarded, consistent with hospital policy, to the CCRMC's Healthcare Risk Manager, the Contra Costa County Counsel, the CCRMC's Chief Medical Officer, and the County's General Risk Management Division.
In May 2022, the trial court granted defendants' summary judgment motion. It concluded Bhandari could only proceed with her lawsuit if, as required under the Claims Act, (1) she presented a government claim within six months after the accrual of her causes of action and (2) either she mailed her claim to a person statutorily designated to receive such a claim or that person actually and timely received the claim, and that she failed to meet both requirements.
More specifically, the trial court concluded that Bhandari's causes of action accrued no later than February 14, 2018, when Dr. Hay told her he had found her right fallopian tube uninterrupted when he operated. Therefore, the court reasoned, Bhandari was required to present a government claim no later than August 14, 2018. But she did not present anything that could be construed as a government claim until on or about January 2, 2019, when she mailed her Notice. Also, she did not present her Notice to anyone statutorily designated to receive a government claim, and her Notice was not actually received by such a person. Because Bhandari did not present a government claim to a designated person until May 2019, after she had filed her complaint, her claim was barred by the six-month statute of limitations.
C. Bhandari's Motion for a New Trial
Bhandari filed a motion for reconsideration of the trial court's grant of defendants' summary judgment motion. Shortly thereafter, however, the court entered judgment in defendants' favor. Bhandari then filed a timely notice of intention to file a motion for a new trial, followed by the motion itself. The trial court consolidated Bhandari's motion for reconsideration with her motion for a new trial.
In her consolidated motion for a new trial, Bhandari argued that a new trial was required because of (1) the trial court's errors of law in granting summary judgment, principally its failures to recognize that she had raised triable issues of fact regarding her timely presentation of a government claim, her January 2019 Notice, in light of events that delayed her discovery of it, and that she presented her Notice to a proper party based on Phillips, supra, 49 Cal.3d 699; (2) irregularities in the proceedings in the form of discovery abuses by defendants that prevented her from taking depositions necessary to her summary judgment opposition; and (3) the unfair surprise created by defendants' failure to properly serve to her their summary judgment motion reply papers.
In September 2022, the trial court denied Bhandari's motion for a new trial, concluding none of her arguments had merit. The court rejected Bhandari's delayed discovery claims and reaffirmed its previous conclusion that Bhandari was required to present a government claim no later than August 14, 2018, but failed to do so. It also ruled that Bhandari did not present her January 2019 Notice, if construed as a government claim, to a designated party as required under the Claims Act, relying on DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983 (DiCampli-Mintz).
Bhandari filed a timely notice of appeal from the court's judgment.
Bhandari filed a request for judicial notice on May 31, 2023 regarding certain uncertified demurrer papers by defendant that her counsel attests he found in her case file (exhibits A through C), apparently at a time when Bhandari represented herself; a certified copy of this court's denial of a petition for writ of mandamus in the case, which counsel also found in Bhandari's case file (exhibit D); an uncertified copy of a tentative ruling by the trial court overruling a demurrer by defendants, which Bhandari's counsel attests he printed out from the court's website (exhibit E); and press releases issued by the Contra Costa Superior Court, printed out by counsel from the court's website regarding its operations at different times in 2020, 2021, and 2022 (exhibit F). We grant this request for exhibits D and E under Evidence Code sections 452 and 459 and otherwise deny it for lack of proper authentication and relevance to our resolution of this appeal.
II. DISCUSSION
A. Bhandari's Claim That the Trial Court Erred in Granting Summary Judgment Lacks Merit
As we have discussed, the trial court concluded Bhandari could proceed with her lawsuit only if, as required under the Claims Act, (1) she presented a government claim within six months after the accrual of her causes of action and (2) she either mailed her claim to a person statutorily designated to receive such a claim or that person actually and timely received the claim, and that she failed to meet both requirements. Bhandari argues the trial court erred in both regards. Although her arguments are not entirely clear, she appears to contend that (1) her government claim did not accrue until December 2018, when she learned from her cousin, a physician in Nepal, that Dr. Rodelo's negligent acts in performing the May 2016 tubal ligation surgery caused her ectopic pregnancy; (2) even if her claim accrued no later than February 2018, her discovery of her claim was delayed by Dr. Rodelo's misrepresentations and concealments and her lack of knowledge that CCRMC was a public entity; (3) she presented her January 2019 Notice, which should be construed to be a government claim, to proper representatives of the County; and (4) the County waived any untimeliness defense by its failure to notify her of the untimeliness of her Notice.
1. Relevant Legal Standards
A party seeking summary judgment must state the material facts in a separate statement, and the opposing party is required to respond in the same format. (Code Civ. Proc., § 437c, subd. (b).) The moving and responsive separate statements also must identify the supporting admissible evidence. (Ibid.) "Facts not contained in the separate statement do not exist." (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
To the extent the parties assert facts not contained in their separate statements, we ignore their assertions for this reason.
In ruling on a summary judgment motion, the trial court first determines whether the moving party has made "a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A moving party that satisfies this burden "causes a shift, and the opposing party is then subjected to a burden of production of [its] own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.) The opposing party must present in its responsive separate statement specific facts that demonstrate the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) "Summary judgment is not appropriate unless only one reasonable inference can be drawn from undisputed facts." (Cleveland v. Internet Specialties West, Inc. (2009) 171 Cal.App.4th 24, 33.)
We independently review a grant of summary judgment, "considering all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.) We draw "all reasonable inferences from the evidence in the light most favorable to the party opposing summary judgment. All doubts as to the propriety of granting summary judgment are resolved in favor of the opposing party." (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961.)
The parties do not dispute that, CCRMC being a county hospital, Bhandari's causes of action were against a public entity, the County, and two of its employees, Dr. Rodelo and Dr. Das. The parties also do not dispute that, therefore, Bhandari's action was subject to the requirements of the Claims Act that a person first timely present a claim to the public entity within six months of the claim's accrual, or receive the public entity's permission to file a late claim, before he or she may proceed with a lawsuit. "The purpose of the Act 'is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.'" (McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 619.)
Specifically, under the Claims Act, "[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.) The claim "shall" be presented to a local public entity by one of three ways. If, as was the case here, a claim is mailed, it must be mailed "to the clerk, secretary, auditor, or to the governing body at its principal office." (§ 915, subd. (a)(2).) However, a claim shall be deemed to have been presented in compliance with section 915 even though it is not mailed if it is timely and "actually received by the clerk, secretary, auditor, or board of the local public entity." (§ 915, subd. (e)(1).)
The County is a "local public entity," as indicated in section 900.4.
A person presenting a claim is required to provide certain information, including the address of the claimant, the date, place, and other circumstances of the events that gave rise to the claim asserted, a general description of the injury incurred, and the names of the public employees causing the injury. (§ 910.) Also, the claim must be signed by the claimant or someone on his or her behalf. (§ 910.2.) The claim also may be presented via a form provided by the public entity. (§ 910.4.)
The public entity is required to give written notice to a person regarding deficiencies in, or the untimeliness of, a claim as presented, based on the provisions we have just reviewed, sections 910, 910.2, and 910.4, or the public entity waives defenses regarding them. That is, if, in the opinion of the governing board of the public entity or a person designated by it, "a claim as presented fails to comply substantially with the requirements of Sections 910 and 910.2, or with the requirements of a form provided under Section 910.4 . . ., the board or the person may, at any time within 20 days after the claim is presented, give written notice of its insufficiency" (§ 910.8), or, subject to an exception not applicable here, "[a]ny defense as to the sufficiency of the claim based upon a defect or omission in the claim as presented is waived." (§ 911.)
References in the Claims Act to "the board" are to "the governing body of the local public entity." (§ 900.2, subd. (a).)
Similarly, "[w]hen a claim that is required by Section 911.2 to be presented not later than six months after accrual of the cause of action is presented after such time without the application provided in Section 911.4, the board or other person designated by it may, at any time within 45 days after the claim is presented, give written notice to the person presenting the claim that the claim was not filed timely and that it is being returned without further action." (§ 911.3, subd. (a).) Subject to an exception not applicable here, any defense based on the six-month time limit is waived by failure to give this written notice within 45 days after the claim is presented. (Id., subd. (b).)
To compute when a government claim accrues, we look to the date of the accrual of a relevant action if not brought against a public entity. (§ 901.) In an action such as Bhandari's alleging the professional negligence of a health care provider, the date of accrual is determined under Code of Civil Procedure section 340.5. Section 340.5 provides that an action must be brought as soon as one year "after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury." It further provides that this time can be tolled on account of fraud or intentional concealment, among other things.
Under Code of Civil Procedure section 340.5, a plaintiff "need not be aware of either the specific facts or the actual negligent cause of the injury. [Citation.] If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated." (Brewer v. Remington (2020) 46 Cal.App.5th 14, 24.) In other words, an action accrues "after the date on which the plaintiff comes at least to suspect, or have reason to suspect, a factual basis" for the cause of action. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 405, fn. 5 (Norgart).) The plaintiff is then on inquiry notice. (Jolly v. Eli Lilly &Co. (1988) 44 Cal.3d 1103, 1111; Norgart, at pp. 397-398.) Once on inquiry notice, the plaintiff "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, at p. 1111, quoted approvingly in Norgart, at p. 398.)
Thus, given Code of Civil Procedure section 340.5's terms and the parties' contentions in this case, we must first determine when Bhandari would have first been on inquiry notice of her causes of action, and if defendants committed any fraud or intentional concealment that tolled the time Bhandari had to present her government claim or waived any untimeliness defense.
2. Bhandari's Government Claims Against Defendants Accrued in February 2018, Making Her January 2019 Notice Untimely
The undisputed evidence shows Bhandari was on inquiry notice of her professional negligence causes of action no later than February 14, 2018, when Dr. Hay told her he found her right fallopian tube appeared to be uninterrupted when he operated earlier that month to resolve her ectopic pregnancy. Any reasonable person in Bhandari's position would have reason to suspect at that time that her 2016 tubal ligation surgery was negligently performed. According to Bhandari, in her separate statement in opposition to defendants' summary judgment motion, none of CCRMC's medical staff "ever explained . . . about [the] risk that [the tubal ligation surgery] may fail in future or there would be [a] possibility of having ectopic pregnancy after [the surgery]." Further, Dr. Rodelo, who conducted the tubal ligation surgery, told her she "was not going to have babies" and "never told [her] prior to the surgery that there was a risk of failure of a tubal ligation, or there was a risk of having ectopic pregnancy after [the surgery]." Her election "to have [the surgery] was under the understanding . . . that [she] would not have any more baby [sic] ...." Given Bhandari's account of these previous assurances, Hay's February 2018 report to her would have caused any reasonable person to suspect the negligent performance of the tubal ligation surgery.
Moreover, it is undisputed that Bhandari, as she stated in her separate statement, was at least "surprised" by Dr. Hay's information and did begin investigating her tubal ligation surgery thereafter. She requested her medical records from CCRMC in June 2018, talked with Dr. Rodelo in early July 2018, and in late July 2018 called her cousin, a physician in Nepal to discuss her ectopic pregnancy and inquire how she could have gotten pregnant.
Bhandari makes two different arguments for why there are triable issues of fact regarding the timeliness of her January 2019 Notice. First, she contends there are triable issues of fact regarding whether her causes of action first accrued in December 2018, contending it was only then that she "was able to discover causation, despite her diligent efforts." This contention shows a misunderstanding of when causes of action accrue. Bhandari apparently contends accrual occurs only when a plaintiff definitively learns of the causation of an injury. But as we have discussed, a plaintiff "need not be aware of either the specific facts or the actual negligent cause of the injury. [Citation.] If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated." (Brewer v. Remington, supra, 46 Cal.App.5th at p. 24.) Again, that activation occurred no later than February 14, 2018.
Second, Bhandari argues that, assuming her causes of action did accrue in February 2018, there are triable issues of fact regarding whether the ensuing six-month time period for her to present a government claim was tolled by misrepresentations and concealments of fact by Dr. Rodelo and Dr. Das that required her "to further investigate about the causation of her injury before bringing the action." She specifically cites post-tubal ligation surgery reports by those doctors indicating that both of her fallopian tubes were incised, contrary to Dr. Hay's February 2018 observation that her right fallopian tube was without interruption, and her deposition testimony that Dr. Rodelo told her in July 2018 that her right fallopian tube might have grown after being incised, that there appeared to be a scar on her right fallopian tube in February 2018, that Dr. Hay's statement that her tube was "intact" did not mean it was not incised, and that Dr. Hay did not use the right word in his statement. According to Bhandari, Dr. Rodelo's "misguidance" caused her to take "approximately another 5 months until she knew the cause of her injury was primarily Dr. Rodelo's negligence and the ectopic pregnancy was not possible without negligence by Dr. Rodelo." She also appears to contend that Dr. Rodelo concealed certain facts from her, such as about the method of surgery Dr. Rodelo used and the size of the segment Dr. Rodelo removed from her right fallopian tube.
Bhandari's contentions are again based on her misunderstanding of when accrual occurs, and are otherwise based on speculation and unreasonable inference. She fails to provide any evidence that shows Dr. Rodelo told her anything fraudulent or concealed any facts from her. She presented no evidence showing that Dr. Rodelo lied that her right fallopian tube was incised in 2016 as indicated in the operative notes or could have grown back after the surgery. Bhandari's own medical expert stated in his opposition to defendants' summary judgment motion that he had no reason to suspect any of the 2016 tubal ligation surgery records were altered. He opined that Dr. Rodelo removed some of the fallopian tube, but that it was of insufficient length, which could have increased the risk of failed sterilization. Given these assertions by plaintiff's own expert, we do not think it reasonable to infer either that Dr. Rodelo concealed anything from Bhandrari or that he or Dr. Das altered any medical records.
Further, Bhandari presented no evidence that she was delayed in her investigation by anything Dr. Rodelo told her in July 2018 or anything Dr. Rodelo or Dr. Das did. The undisputed facts show only that Bhandari was intent on investigating what had happened both before she spoke to Dr. Rodelo, when she requested her medical records from CCRMC in June 2018, and after she spoke to Dr. Rodelo, when she contacted her cousin, a physician in Nepal in late July 2018, regarding her ectopic pregnancy and how she could have gotten pregnant.
In short, the undisputed evidence establishes that Bhandari was on inquiry notice of her professional negligence claims no later than February 14, 2018. Yet, she did not attempt to present any claim to defendants until she mailed her January 2019 Notice to them. Accordingly, construing her Notice as a government claim, we conclude it was untimely. We view this as a separate and independent basis to affirm the trial court's grant of defendants' summary judgment motion.
3. Bhandari Failed to Present Her January 2019 Notice to a Statutorily Designated County Representative
Defendants also were entitled to summary judgment because, construing Bhandari's January 2019 Notice as a government claim, the undisputed evidence shows she did not deliver it to a statutorily designated representative of the County and no such representative actually received it. As we have discussed, Bhandari mailed her Notice to the CCRMC CEO, Dr. Rodelo, and Dr. Das on or about January 2, 2019. But she was required under section 915 to mail it to the County by "[m]ailing it to the clerk, secretary, auditor, or to the governing body at its principal office" (§ 915, subd. (a)(2)), or one of those persons had to actually and timely receive it in order for Bhandari to be in compliance with section 915's presentation requirement. Neither requirement was met.
We base our conclusion on our Supreme Court's holding in DiCampli-Mintz, supra, 55 Cal.4th 983, which involved circumstances very similar to those before us. In DiCampli-Mintz, the court considered whether a plaintiff who had undergone surgery at a county hospital-Santa Clara Valley Medical Center-properly presented a government claim under section 915. The plaintiff's counsel personally delivered to a medical center employee a letter addressed to the medical center's risk management department and two doctors that gave them notice of a medical malpractice claim under Code of Civil Procedure section 364, and the county's risk management department actually received the letter a few days later. (Id. at pp. 987-988.) The letter was never sent or delivered to the county clerk or the clerk of the county board of supervisors, even though the plaintiff knew the hospital was part of the county. The plaintiff never received written notice from the county that her claim was untimely or presented to the wrong party, and subsequently sued. (Ibid.)
The Supreme Court declined to determine whether section 915's use of the term "clerk" referred to the county clerk or the clerk of the county board of supervisors because the claim was not mailed, delivered, or received by either clerk. (DiCampli-Mintz, supra, 55 Cal.4th at p. 993, fn. 9.) We also decline to make this determination for the same reason.
The trial court granted the county's summary judgment motion because the plaintiff failed to show her claim was received by a statutorily designated county representative or that waiver or equitable estoppel applied. (DiCampli-Mintz, supra, 55 Cal.4th at p. 989.) The Court of Appeal reversed, finding that the plaintiff" 'substantially complied'" with the Act's presentation requirements. (Ibid.)
The Supreme Court reversed, rejecting the Court of Appeal's application of the "substantial compliance" standard. The Supreme Court first noted that" '[t]he filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.'" (DiCampli-Mintz, supra, 55 Cal.4th at p. 990, original italics.) Also, the intent of the Claims Act is" 'not to expand the rights of plaintiffs against government entities. Rather, the intent . . . is to confine potential governmental liability to rigidly delineated circumstances.' [Citations.] The claimant bears the burden of ensuring that the claim is presented to the appropriate public entity." (Id. at p. 991.)
With this framework in mind, the court held that the plain meaning of section 915 "reflects the Legislature's intent to precisely identify those who may receive claims on behalf of a local public entity. Section 915(e)(1) reflects the Legislature's intent that a misdirected claim will satisfy the presentation requirement if the claim is 'actually received' by a statutorily designated recipient. Thus, compliance with section 915(e)(1) requires actual receipt of the misdirected claim by one of the designated recipients. If an appropriate public employee or board never receives the claim, an undelivered or misdirected claim fails to comply with the statute." (DiCampli-Mintz, supra, 55 Cal.4th at p. 992, italics added.) The court also found this conclusion was consistent with the Legislative history of the Claims Act. (Id. at pp. 993994.)
Bhandari argues that another Supreme Court case, Phillips, supra, 49 Cal.3d 699, that preceded and was not discussed in DiCampli-Mintz, applies here rather than DiCampli-Mintz. In Phillips, the plaintiffs addressed and mailed to a hospital that was itself a public hospital district a notice under Code of Civil Procedure section 364 of their intent to sue the hospital for medical malpractice. (Phillips, at pp. 702-703.) The trial court granted the hospital's demurrer for failure to comply with the Claims Act, the appellate court affirmed, and our Supreme Court granted review and reversed. (Id. at p. 704.)
The Supreme Court addressed whether the plaintiffs' section 364 notice, which did not contain all the information statutorily required and was untimely, triggered the notice and defense-waiver provisions of sections 910.8, 911, and 911.3 of the Claims Act. (Phillips, supra, 49 Cal.3d at p. 705.) We have already discussed these provisions, which address the contents of a notice and its timeliness. The Phillips court explained that these provisions provide "a comprehensive scheme which requires a claimant to notify the appropriate public entity of a claim. This notification in turn allows the public entity an opportunity to determine expeditiously the claim's timeliness and sufficiency. If the notice is untimely or lacks any of the information required by sections 910 and 910.2, the public entity may require the claimant to justify the delay or supply the missing data. If the public entity fails to require the claimant to cure such defects, then it waives certain defenses which are otherwise available to challenge a lawsuit based upon the claim." (Id. at p. 706.)
The Phillips court rejected the hospital's contention that the Act's notice and defense-waiver provisions were not activated unless a claimant filed "a complete and valid 'claim.'" (Phillips, supra, 49 Cal.3d at p. 707.) It concluded the plaintiff's notice, which disclosed the existence of a claim that if not paid or otherwise resolved would result in litigation, should be treated as a" 'claim'" activating these provisions. (Id. at pp. 707-708.)
The court also rejected the hospital's contention that the provisions were not triggered because the plaintiffs, unaware the hospital was a public entity, did not intend their Code of Civil Procedure section 364 notice to function as a claim for the purposes of the Claims Act. (Phillips, supra, 49 Cal.3d at pp. 709-710.) The court concluded that "the relevant inquiry is not into plaintiffs' subjective intent but whether their 364 notice disclosed to the hospital that they had a claim against it which, if not satisfactorily resolved, would result in their filing a lawsuit." (Ibid.) It also rejected the idea that an improperly captioned notice would not trigger the provisions. (Id. at pp. 710-711.)
Based on this analysis, the court held that, "[i]nasmuch as the hospital failed to notify plaintiffs of the insufficiencies in their section 364 notice that rendered it defective to comply substantially with sections 910 and 910.2, the hospital has waived any defenses it may have otherwise asserted based on such insufficiencies. (§ 911.) Further, as it failed to notify plaintiffs of any timeliness defects (§ 911.3, subd. (a)), the hospital has similarly waived any defenses it might have raised on the ground of plaintiffs' asserted failure to present a timely claim (§ 911.3, subd. (b).)" (Phillips, supra, 49 Cal.3d at p. 711.)
As is made plain by our summary of the holding in Phillips, that case does not address the circumstance where a claim notice is not delivered to a statutorily designated person under section 915, the issue of this case and the one that was addressed in DiCampli-Mintz. Rather, its analysis merely indicates that the plaintiffs' Code of Civil Procedure section 364 notice was delivered to the hospital but that its contents were insufficient and its delivery was untimely. In other words, the Phillips court did not challenge that the subject notice was properly delivered to an appropriate representative of the public entity, which, again, was the hospital itself.This is indicated by the court's explanation that the notice and defensewaiver provisions of the Claims Act are triggered only upon notification of "the appropriate public entity," which "in turn allows the public entity an opportunity to determine expeditiously the claim's timeliness and sufficiency." (Phillips, supra, 49 Cal.3d at p. 706.) The Phillips court focused entirely on what triggers the notice and defense-waiver provisions of the Claims Act regarding a notice that is properly delivered.
In reciting the background of its case, the Phillips court noted that the hospital, which, again, was itself a public hospital district, had argued in its demurrer that the notice should have been sent to the hospital's governing board specifically (Phillips, supra, 49 Cal.3d at p. 704), but the Supreme Court did not address this contention.
Here, on the other hand, Bhandari did not deliver her January 2019 Notice to any statutorily designated representative of the appropriate public entity, which was the County rather than the hospital, and she did not present any evidence that such a representative ever actually and timely received her Notice. Thus, the County was never notified as statutorily required of Bhandari's claim. That is exactly the circumstance addressed in DiCampli-Mintz. Therefore, DiCampli-Mintz, not Phillips, controls here.
Bhandari contends there are material similarities between her case and Phillips that differ from the circumstances in DiCampli, but none of her contentions is persuasive. First, she contends that, similar to her case, the notice in Phillips was delivered to the hospital, not its governing board. But again, the place of delivery in Phillips was not challenged by the Supreme Court and had no bearing on its analysis. As a result, Bhandari cannot rely on it to assert she properly delivered her Notice; DiCampli makes clear that she did not.
Bhandari also contends that her Notice, like the one in Phillips, should be treated as a" 'claim as presented'" rather than a" 'claim' ", a difference addressed by the Phillips court regarding delivered notices based on the slightly different language used in different provisions of the Claims Act. (Phillips, supra, 49 Cal.3d at pp. 707-708.) We need not address this contention because, again, Bhandari's Notice was not delivered to the appropriate public entity as required by the Act.
Second, Bhandari points out that, like the Phillips plaintiffs, she sent her Notice under Code of Civil Procedure section 364 at a time when she did not know CCRMC was a part of a public entity. But her lack of knowledge does not matter. The Claims Act makes no exception to its timeliness requirement based on a parties' lack of knowledge, and Bhandari does not cite any legal authority establishing such an exception. In the only case she does cite, Phillips, the court did not rely on the plaintiffs' lack of knowledge in that case other than to reject the hospital's argument that they could not have triggered the notice and defense-waiver provisions of the Claims Act in light of their ignorance, a matter that is not at issue here.
In her reply brief, Bhandari also asserts that the County did not disclose "its true identity as a public entity" to her, but she cites no evidence showing this was the case, other than the County's non-response to her January 2019 Notice. Whether it did or did not, in any event, is immaterial.
Third, Bhandari contends her Notice was properly delivered because it was addressed to CCRMC's CEO and was forwarded, consistent with hospital policy, to the CCRMC's Healthcare Risk Manager, the Contra Costa County Counsel, the CCRMC's Chief Medical Officer, and the County's General Risk Management Division. According to Bhandari, the Notice therefore "reached through the County's own internal channel to the right division of the County to further process the monetary claims against the County." This contention misses the point. None of the persons Bhandari contends received her Notice was statutorily designated to receive it and, therefore, delivery to any of them was ineffective under DiCampli. Contrary to Bhandari's contention, the County was not required to notify her of the untimeliness of her Notice under section 911.3, and did not waive its untimeliness defense under that provision.
In short, DiCampli-Mintz's requirement that a government claims notice must be delivered to or actually received by a statutorily designated representative of the relevant public entity applies here, and it too is fatal to Bhandari's argument that the trial court erred in granting defendants' summary judgment motion.
In her reply brief, Bhandari, in the course of responding to certain arguments made by defendants, argues for the first time on appeal that her January 2019 Notice was sufficient to maintain her action based on her "good faith" attempt to comply with the Claims Act after she learned the "true identity" of "defendants" as a public entity. We disregard this argument because of her failure to make it in her opening brief. (See Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 592 ["These reply arguments are forfeited as tardy, because appellants must give the other side fair notice and an opportunity to respond"].) Also, given our conclusions, we need not discuss whether, as defendants contend, Bhandari was also barred from maintaining her action because she filed a government claim in May 2019, after filing her lawsuit
B. Bhandari Fails to Show a Basis for Reversing the Trial Court's Denial of Her New Trial Motion
Based on the same arguments we have discussed and rejected regarding the trial court's purported legal error in granting defendants summary judgment, Bhandari asserts the trial court should have granted her motion for a new trial. These contentions are equally unpersuasive as a basis for attacking the denial of her new trial motion.
In addition to her recycled summary judgment arguments, Bhandari contends the trial court erred in denying her new trial motion because (1) defendants did not properly serve, and she did not receive, their summary judgment reply papers prior to the trial court's hearing on defendants' summary judgment; and (2) defendants improperly and unilaterally caused a case management conference to be continued to the same day as the hearing on their summary judgment motion, thereby depriving her of the opportunity to inform the superior court before that hearing of her need for further discovery, principally being her need to take certain depositions, in order to complete her opposition to defendants' summary judgment motion
We review a trial court's denial of a new trial motion for an abuse of discretion. (Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 722.) "A ruling based on an error of law constitutes an abuse of discretion, and the existence of legal error is determined by independent review." (The Bakersfield Californian v. Superior Court (2023) 96 Cal.App.5th 1228, 1251.) We may only reverse a trial court's denial of a motion for a new trial if prejudicial error occurred. (Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694; Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.)
Taking the lack of proper service argument first, the trial court concluded that, although defendants contended they served these papers electronically, this would have been improper in the absence of any agreement between the parties or order by the court that this form of service was to be used. Nonetheless, the court concluded that Bhandari was not prejudiced by the irregularity. We agree, if only because we have not found, and Bhandari fails to identify, any new argument in defendants' summary judgment reply papers regarding Bhandari's failure to timely deliver a government claim to a statutorily designated representative of the County.
With respect to Bhandari's second argument, regarding defendants' purportedly unilateral causing of a case management conference to be continued to the same date as the summary judgment motion hearing, the trial court concluded that, although Bhandari had tentatively agreed to this continuance subject to her counsel's review of the defendants' proposed stipulation, defendants' counsel improperly sent a letter to the court requesting the continuance without allowing Bhandari's counsel to first review the letter. Nonetheless, the court again found no prejudice because Bhandari, upon her counsel's discovery of defendants' counsel's letter to the court, could have moved ex parte to keep the case management conference set as originally scheduled. Bhandari fails to address this conclusion of the trial court on appeal, and we see no reason to disagree with it. We therefore conclude this argument also fails for lack of prejudice.
C. Bhandari's Other Appellate Claims
Bhandari challenges three other rulings by the trial court.
First, Bhandari moved for leave to file a third amended complaint below, which motion was heard on the same day as defendants' summary judgment motion. The trial court denied this motion, concluding this third amended complaint would also be barred because of Bhandari's failure to present a timely government claim to a statutorily designated representative of the County under the Claims Act. Bhandari does not offer any arguments for why this motion should have been granted other than those she makes regarding the court's grant of summary judgment, which we have already rejected. Nothing more needs to be said.
Bhandari also challenges the trial court's denials, made in the months before it ruled on defendants' summary judgment motion, of her motions to amend her SAC to add exemplary damages and to compel CCRMC to provide further discovery responses and documents. Bhandari does not show that any of these rulings had a material bearing on the trial court's determination that her action was barred because of her failure to comply with the Claims Act and, given that the trial court properly granted defendants' summary judgment on that basis, we need not further address these appellate claims.
III. DISPOSITION
The judgment is affirmed. Costs on appeal shall be awarded to respondents.
WE CONCUR: BROWN, P. J., SMILEY, J. [*]
[*] Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.