M. (J.) v. HUNTINGTON BEACH UNION HIGH SCHOOL DISTRICTAppellant’s Petition for ReviewCal.November 10, 2015$230510 In the Supreme Courtof the State of California QURT SUPREME © ger a Bee J.M. Plaintiffand Appellant, NOV EG dts Frank & wicnauireClerk VS. oe aN “Deputy ORC \ Huntington Beach Union High School District,et al., B25¢byi Defendant and Respondent, ae”aae Court of Appeal, Fourth Appellate District, Division 3 No. G049773 Superior court of Orange County, Hon. Kirk Nakamura Case No. 30-2013-00684104 PETITION FOR REVIEW Janet R. Gusdorff, Esq.* Christopher E. Russell, Esq. (SBN: 245176) (SBN: 117356) GUSDORFF LAW,P.C. RUSSELL & LAZARUS APC 4607 Lakeview Canyon Road 1401 Dove Street, Suite 310 Suite 375 Newport Beach, CA 92660 Westlake Village, CA 91361 PH:(949) 851-0222 PH:(818) 877-4515 FAX:(949) 851-2422 EMAIL: Janet@GusdorffLaw.com EMAIL: Chris@LawRussell.com Attorneysfor Plaintiff, Appellant, and Petitioner, J.M. In the Supreme Courtof the State of California J.M. Plaintiffand Appellant, VS. Huntington Beach Union High School District, et al., Defendant and Respondent, Court of Appeal, Fourth Appellate District, Division 3 No. G049773 Superior court of Orange County, Hon. Kirk Nakamura Case No. 30-2013-00684104 PETITION FOR REVIEW Janet R. Gusdorff, Esq.* Christopher E. Russell, Esq. (SBN: 245176) (SBN: 117356) GUSDORFFLAW,P.C. RUSSELL & LAZARUS APC 4607 Lakeview Canyon Road 1401 DoveStreet, Suite 310 Suite 375 Newport Beach, CA 92660 Westlake Village, CA 91361 PH:(949) 851-0222 PH:(818) 877-4515 FAX: (949) 851-2422 EMAIL:Janet@GusdorffLaw.com EMAIL: Chris@LawRussell.com Attorneysfor Plaintiff, Appellant, and Petitioner, J.M. TABLE OF CONTENTS TABLE OF AUTHORITIES 0.00.eeeccccscseseceesseesseseeseeeseseesaeesseneesecseessenseeseaes ili ISSUES PRESENTED FOR REVIEW........ccccecesccecessseseeeseeeeessensesensecssecseeessenaees 4 WHY REVIEW SHOULD BE GRANTED...cecene ceseeeeesteenensceneeensesaes 5 STATEMENT OF SALIENTFACTSuuu...eeccsessessseesseseeseeesssesssesensseassesssenees 8 LEGAL DISCUSSION...ceeecscesscesseeceseceseesssssesssesessassseessessesesseneesssassesenerees 11 I. REVIEW IS NEEDED TO RECONCILE THE INCONSISTENT SUBDIVISIONS(b) AND (c) OF GOVERNMENTCODESECTION911.6... 11 A. Overview of applicable statutes ..0....eeeeeseeecneceeeseessnssssssascseseeseseenees 11 B. Government Codesection 911.6, subdivisions (b)(2) and (c) are irreconcilable concerning the board’s ability to grant or deny a minor’s application to file a late Claim. 0...eeecesesssesessceeceeeseeeesseseesessessnensecneaees 13 C. In the face of Section 911.6’s irreconcilable language, Legislative History and public policy mandate an interpretation of Section 911.6 that does not permit subdivision (c) to render subdivision (b) a nullity...eens 16 1. The Tort Claims Act should be liberally construed.«00.0...eee eeeeeeeee 16 2. The Legislature intentionally treats minors with more leniency than other claimants, and intends the Board to grant minors’ applicationsfor leaveto file late ClAUIMS. ...........ccscceessssseeccesceceeeseeceseseeceseeeeaeeesecesneesssnseeessesutsareraneeteneeseeses 17 3. Public policy supports liberal treatment of minors whofile timely applicationsto file a late claim over technical traps for the unwary.............. 19 D. The Court of Appeal’s interpretation of Section 911.6 nullifies subdivision (D). ceececeeccscessesseeseseeesseseesestesseseeseesecaeeseenssseeeenseseasesesasscsueeesaseneesecnssspecsesaeaseaasaeens 21 II. REVIEW IS NEEDED TO RESOLVE WHETHER THE LEGISLATURE INTENDED TO CREATEA DISTINCTION IN THE CATEGORY OF APPLICANTS ENTITLED TO RECEIVE WRITTEN NOTIFICATION UNDER GOVERNMENT CODESECTION 911.8 OF THE SHORT LIMITATIONS PERIOD.20... eeeececeeeseeeenetesesecsascecscecesseceseseseesssssssessausssscesescnsaneeeeseessessscseeenseseesess 23 Il. REVIEW IS NEEDED TO RESOLVE THE DISTRICT SPLIT IN INTERPRETING GOVERNMENT CODESECTION 946.6, AND SPECIFICALLY, WHETHER SUBDIVISION (b) OPERATES AS AN INFLEXIBLE STATUTEOF LIMTIATIONS........ ccc cceceeseessesseneeneeneeeresseseens 27 A. Introduction. ........ccccccscssccecccceccceccceccesssesssssssscsecscecescevasssersensssnaeeeceeeeseveeseeeeea 27 B. The Second Appellate District found, under certain exceptions, section 946.6 is not a condition precedent for bringing a lawsuit...ceeeeeeeeeeee 28 C. The Fourth Appellate District, Division Three, in this case, disagreed that section 945.4’s claim requirement maybesatisfied by presenting an application for leave to presenta late claim under section 911.6(D)(2).......csccsseeteee 29 D. Review is needed both to secure uniformity of decision andto settle this important issue of law concerning whethersatisfaction ofsection 946.6 is, without exception, always a condition precedent to bringing a lawsuit............ 30 CONCLUSION.........cccccccsessesseceseceeeeeneeeneeseescesecaeeeeseesassseseasseesseessesseseseessessseesaaes 32 CERTIFICATE OF WORD COUNT..........:cececesesetsesesssesesseeesnecneetsnensesseesseeeenees 33 PROOFOF SERVICE.W.0....cccccccceesceeseeseeesececceeseessecseccneeesesseaeesssensesseceeesssseeresenesee 34 ATTACHMENT A (COURT OPINION).........cecesesscecssresessssseesseseessseeeseeseeesees 35 ti TABLE OF AUTHORITIES Cases Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450 ooo. cecseeecceseeceeeeseeesceseseecaceesesceneeteecasesesseesasenees 7, 22, 30 Bettencourt v. Los Rios Community College Dist., (1986) 42 Cal.3d 270 oo. eeceeeenecnsecesceesesetseeseeeseceesaeseseeceseceaeseceeeeseeseenees 19, 25 City ofBurbank v. State Water Resources Control Bd., (2005) 35 Cal.4! 613 ooccecccccccsscsssesssssesscssssssssssscsssssssssessessssssessusssseeseesssesssesecacs 13 E.M. v. Los Angeles Unified School Dist., (2011) 194 Cal.App.4" 736...cccccccccscsscssesssscssesseessesesssessesssseesessessseeseeseeseess passim Hassan v. Mercy American River Hospital, (2003) 31 Cal.4! 709 ovcceccesccssessesseessessesssssssssesssseesseesessecscsseessetsecsseeseeeses 13, 14 Hobbs v. Northeast Sacramento County Sanitation, Dis. (1966) 240 Cal.App.2d 552 oo... eeeeeecseeeesesescssesessescssssesseseeseseeesseteee 17, 30 Kendrick v. City ofLa Mirada, (1969) 272 Cal.App.2d 325.00... .eccccsseeccsseseeeeeeeseeseeeseeceeseessesessesesseseetaeens 21,22 Manufacturers Life Ins. Co. v. Superior Court, (1995) 10 Cal.4°? 257 vecceccsscsssssssscssesesscssessesssessessessesssesssesnesecsessceeesssseeseeseessenees 14 People v. King, (1993) 5 Cal.59 oocccccccsccssessesscssesscssssssssseessesseessssseeseesseessseesecsseeseeseeseeseeseeess 22 People v. Roberge, (2003) 29 Cal.4" 979 vooccccecccscssssssessessssessssssssessessessssseeseesseesseesssssseeseesesseesseenseess 14 Shirk v. Vista Unified SchoolDistrict, (2007) 42 Cal.4201 viccccecccccsssessessssessesssesssecsseesessessseesseseseesecssecssseaesseeseenses 11, 16 Viles v. State ofCalifornia, (1967) 66 Cal.2d 24 ooo eeccccsseesseceeecteesseseceeecessacesesconeessesssessecssereeeneenes passim Whitfield v. Roth, (1974) 10 Cal.3d 874 occceecsscccsseseceseeseseeseeecseeeeeseseeesseessecseesesssesseeeseeseees 18, 24 Statutes Code of Civil Proc. § 1859ceecesccecstccesceseeseessceeesesescesesaeeseseeeseseeeseseeeeeeeaeeeees 15 Gov. Code § 911.2 ecccssecnccnecsnesesetssesseseeseesseessscseesseeessesssevsssaseasesaeesaees passim Gov. Code § 911.4oeeeseseseecesseeseseesseeeeseseseseesseseesesessanesneasessseressesesesens passim Gov. Code § 911.6 wo... cccccscsscsssecsreecsnsesecsseacecessesesecanecseeoseseeesseeseseresseeeaees passim Gov. Code § 911.8 voce cececsceeseecseressseeeesseceesesenseceseaseasessusesecascnsesesesssesseseneoes passim GOV. Code § 945.4 o..ieeececcssessssceseeesseeeseseeeaecreeseesecasesaeesaessesasoesaessesesesonasensese passim GOV. Code § 946.6 ....ccccccecccssecssscssecsseecssecssscseeeesescescaseesaeeeesaesessecsnseaseesaeesees passim Rules Cal. Rules of Court, Rule 8.500(D)....... ee eceeesceceseecereseesesaeseeeseasesseseeasssaseseneoens 27 Cal. Rules of Court, Rule 8.500(D)(1) .....eeeeeeeeeecneersenesesseeeceeceaseeeeseaesesescesneeegs 7 California Rule of Court 8.504(d)(1).......:ceccsescsesscceececeeeeesceeeseeeeceeeeseeeeeeeeeneeeees 33 California Rules of Court, Rule 8.500(b) 0...eeecsneceescesesetenseseereneecnaeeseeeenaes 5 California Rules of Court, Rule 8.504(d)(1)....... cee cesecseeeeeeseeeseseteeteereneeenasensneeens 33 iii ISSUES PRESENTED FOR REVIEW (1) Did the Court of Appeal, in an issue offirst impression, misconstrue the statutory language and Legislative intent behind Government Code section 911.6, subdivision (b) (which requires a public entity to grant relief to a minor whofiles a timely application for leave to file a late tort claim), by holding that subdivision (c)’s catch-all language permits an implicit denial of such application (by the entity’s inaction)? (2) Did the Court of Appeal, in an issue of first impression, misconstrue the statutory language and Legislative intent behind Government Code section 911.8 by concluding the Legislature intended to provide the warning of Section 946.6’s six-month statutory period only to claimants whoseapplications were explicitly denied, but not to claimants whose applications were implicitly denied by the public entity’s inaction? (3) The Court of Appeal recognizedthat its interpretation of Government Codesection 946.6, conflicted with that of the Second Appellate District, Division Three in E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4™ 736. Which,if either, Court ofAppeal correctly interpreted section 946.6? WHY REVIEW SHOULD BE GRANTED The published decision of the Court of Appealin this case, though attempting to clarify important provisions of the Government Tort Claims Act, obfuscated the law, diverging from a decision from the Second Appellate District, and settling upon an interpretation of the law that contradicts explicit statutory language as well as Legislative intent to treat minors with leniency. The Opinion raises more questions than it answers, and unfortunately, results in the very “traps for the unwary litigant” that the Tort Claims Act sought to avoid. Reviewis necessary in this case for three important reasons: (1) to resolve the disparity between the court’s opinion in this case and that of the Second Appellate District in construing Government Code section 946.6 as a condition precedentto filing a lawsuit; (2) to examineandsettle the Legislature’s intent in the interpretation of irreconcilable language of subsections(b) and (c) of Government Code section 911.6; and (3)to re- evaluate the applicability of Government Code section 911.8’s notice provisionsin light of the Court of Appeal’s interpretation of section 911.6. (See California Rules of Court, Rule 8.500(b).) Minorsreceive a unique status of leniency within the Tort Claims Act scheme;a status that the Court of Appeal’s decision eviscerates for the provisions governing a minor’s timely applicationto file a late claim. Subdivision (b) of section 911.6 requires a public entity to grant a minor relief in such a circumstance — evenif it causes prejudice to the public entity. Yet, the Court of Appeal inadvertently created a loophole in which a public entity may deliberately subvert subdivision (b)’s mandate, and accomplish by inaction whatit cannot explicitly do. Worse, the Court of Appeal’s decision deprives such unlucky minors the benefit of written notice of the impending six-month limitations period (under Section 946.6) in which to seek relief from the superior court, despite the fact that such notice would have been mandatory hadthe public entity’s denial been explicit rather than implicit. Such a situation disadvantages the minor two-fold, first by denying his application it was required to be accepted, and second, by depriving him of written notice of the short limitations period. It also benefits the public entity by permitting it to erect additional hurdles to prevent the unwary litigant from pursuing a claim in court. And, the controlis entirely in the hands of the public entity, which chooses whetheror not to act. This situation does not appear to have been foreseen, or intended, by the Legislature. Finally, the Court of Appeal’s decision hascreateda situation in which some lowercourts will treat Government Codesection 946.6 as a condition precedent for filing lawsuits and some lowercourts will not. Litigants require clear guidance for bringing tort claims against public entities, and that guidance should not depend onthe interpretation favored by the specific court in which thelitigant appears. The result of an incorrect interpretation of the law will be fatal for the claimsof anylitigant who followsthe Fourth District’s decision in this case, but not so for those who follow the Second District’s decision in E.M. By granting review,this Court would have the opportunity to determine whether the Legislature meant for Section 911.6 subdivision (c) to apply to minors who otherwise fall within and satisfy subdivision (b)’s requirements, a question that affects significant numberofpotential claimants. (Cal. Rules of Court, Rule 8.500(b)(1).) Additionally, this Court would have the opportunity to resolve the conflict between this case and that of the Second Appellate district before the conflict leads to further legal inconsistencies. (Cal. Rules of Court, Rule 8.500(b)(1).) After all, superior courts in California are not bound by the decision of any one appellate district, and if review is not granted, they may simply “pick and choose between conflicting lines of authority.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) STATEMENT OF SALIENT FACTS On October 27, 2011, plaintiff, appellant, and petitioner, J.M., a 15- year-old student at Fountain Valley High School, suffered head trauma whenhe wastackled during a school-sponsored football game. (Typed Opn.p 3.) He continued to participate in the full-contact football practice, and began to experience headaches, dizziness, and nausea. (Typed Opn.p. 3.) His causes of action for personal injury against the District accrued no later than October 31, 2011, when a doctor diagnosed J.M. with double concussion syndrome. (Typed Opn.pp. 3-4.) After the six-month period following the date of accrual of his causesof action, J.M. retained counsel and, on October 24, 2012, his counsel presented an application for leave to present a late claim pursuant to section 911.4 on the ground that J.M. was a minorfor the entire six- month period following the accrual of his causes of action. (Typed Opn.at p. 4.) The District failed to act upon the application. (Typed Opn.at p. 4.) On October 28, 2013, J.M.filed a petition under section 946.6 to the superior court for an order relieving him from the claim requirement. (Typed Opn.at p. 4.) The superior court denied his petition as untimely because it was filed more than six monthsafter the date on whichhis application to present a late claim was deemed to have been denied by the District’s inaction. (Typed Opn.at p. 4.) J.M. timely appealed. (Typed Opn. at p. 4.) On September30, 2015, the Court of Appeal filed its original Opinionin this case. (A true copy is attached hereto as Appendix A (“Typed Opn.”) The Court of Appeal affirmed the trial court’s order, because it concluded that, under subdivision (c) of Government Code section 911.6, J.M.’s timely application for leave to file a late claim was “deemed denied”onthe 45"dayafter its submission,thus triggering Section 946.6’s six-month limitations period in which to petition the superior court. (Typed Opn.at pp. 3, 9, 12-13.) Additionally, the Court of Appeal concludedthat the written notice provision of Section 911.8 does not apply to applications “deemed denied” by operation of law under Section 911.6, subdivision (c). (Typed Opn.at p. 18-19.) The Court of Appeal additionally concluded that equitable relief was not applicable, and that, notwithstanding public policy, such policy could not warrant construing section 946.6 in favor of granting J.M.relief. (Typed Opn.at pp. 17-18, 19.) J.M.filed a Petition for Rehearing, challenging interalia, the implication of the court’s decision, particularly regarding the inequitable application of Section 911.8’s written notice provision. J.M. explained that the Legislature recognized that Section 946.6’s six-month statute language waslikely to create “snares” or traps for the unwary claimant(asit did in this case), and by including section 911.8, intentionally created redundancy to warn litigants and prevent depriving them of their day in court due to these technicalities. In light of this provision, therefore, J.M. argued that the Legislature never intended to distinguish between claimants whose applications were explicitly denied versus those whose applications were implicitly denied (at no fault or control of their own). In response toplaintiff’s Petition for Rehearing, the Court of Appeal filed an Order Modifying Opinion and Denying Rehearing (with no change in judgment) on October 22, 2015. (See Appendix.) The Modified Opinion added a paragraph, explaining that Section 911.8, subdivision (a) reflects the Legislature’s choice to require written notice only when the government entity acts on an application, and that the six-month periodis easily determined from the date an application is “deemed denied.” (See Appendix.) 10 LEGAL DISCUSSION REVIEW IS NEEDED TO RECONCILE THE INCONSISTENT SUBDIVISIONS(b) AND (c) OF GOVERNMENT CODE SECTION 911.6. A. Overview of applicable statutes Before a plaintiff may sue a public entity, the plaintiff must present the entity with a timely written claim for damages. (Gov. Code § 911.2.) The time for filing such claims is currently within six monthsafter the cause of action accrues. (Gov. Code § 911.2.) In the absence of an exception,failure to timely file a claim barsa plaintiff's lawsuit. (Shirk v. Vista Unified School District (2007) 42 Cal.4" 201, 208-209.) The Tort Claims Act sets forth specific exceptions and relief under delineated circumstances, permitting certain categories of individualsto file late claims. Government Code sections 911.4 and 911.6 govern such procedure. Section 911.4, subdivision (a) permits a party whofails to present its claim within the required six-month period to submit a written application to the public entity for leave to present its claim. (Gov. Code z6 911.4(a).) Subdivision (b) requires this written application to be submitted “within a reasonable time not to exceed one yearafter the accrual of the cause of action.” (Gov. Code § 911.4(b).) 11 GovernmentCode section 911.6 governs how the public entity must handle the written applications for leave to file late claims. Subdivision (a) requires the Board to grant or deny the application within 45 days. It also provides a method by whichthe claimant and public entity may mutually extend such period. Subdivision (b), at issue here, sets forth four categories of circumstancesin which the public entity must grant the claimants application for leave to presentits late claim: “The board shall grant the application where one or more ofthe following is applicable:...(2) The person whosustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim.” (Gov. Code § 911.6(b)(2), emphasis added.) Subdivision (c) complicates the analysis, as this case exemplifies. Notwithstanding subdivision (b)’s requirementthat the public entity shall grant a minor’s timely application for leave to presentits late claim, subdivision (c) provides an avenue by which the Board can seemingly subvert that mandate. Subdivision (c)states, “If the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemedto have been denied on the 45" dayor,ifthe period within which the board is required to act is extended by agreement pursuantto this section, the last day of the period specified in the agreement.” (Gov. Code § 911.6(c).) 12 Government Codesection 945.4 bars a lawsuit for money or damagesagainst a public entity until a written claim hasfirst been presented to the public entity and has been acted uponby the entity, or has been deemed to have been rejected by the public entity. Government Code section 946.6 provides a procedure for petitioning the superior court for relief from the public entity’s denial (explicit or “deemed”) of an application for leave to present a late claim under Section 911.6. Subdivision (b) of Section 946.6 states, “The petition shall be filed within six months after the application to the board is denied or deemedto be denied pursuant to Section 911.6.” (Gov. Code § 946.6(b).) Subdivision (c) requires the court to relieve the petitioner from the requirements of Section 945.4 underspecified conditions(satisfied in this case). B. Government Codesection 911.6, subdivisions (b)(2) and (c) are irreconcilable concerning the board’s ability to grant or deny a minor’s application to file a late claim. Whenconstruing any statute, the Court’s task is to determine the Legislature’s intent when it enacted the statute, “so that [it] may adopt the construction that best effectuates the purpose of the law.” (City ofBurbank v. State Water Resources Control Bd. (2005) 35 Cal.4" 613, 625, quoting Hassan v. Mercy American River Hospital (2003) 31 Cal.4" 709, 715.) The inquiry begins with the statute’s words, which ordinarily are “the most reliable indicator of legislative intent.” (Hassan, supra, 31 Cal.4"at 715.) 13 The words should be giventheir “ordinary and usual meaning and should be construedin their statutory context.” (Jbid.) “These canons generally preclude judicial construction that renders part of the statute “meaningless or inoperative.”” (/d. at 715-716, quoting Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4"" 257, 274.) Additionally, words should be given the same meaning throughout a code unless the Legislature has indicated otherwise. (/d. at 716, citing People v. Roberge (2003) 29 Cal.4" 979, 987.) Applying these principles to subdivisions (b)(2) and (c) of GovernmentCode section 911.6,it is impossible to reconcile the language without rendering one or the other “meaningless or inoperative.” (Hassan, supra, 31 Cal.4" at 715-716.) Subdivision (b)(2) requires the Board to grant a minor’s application to present a late claim underthe circumstances presented in this case, whereas Subdivision (c) considers the Board’s inaction a denial of that application. Both subdivisions use mandatory language “shall.” For instance, Subdivision (b)(2) states, in pertinent part: “The board shall grant the application [to present a late claim] where...the following is applicable: ...(2) The person whosustained the alleged injury, damage or loss was a minorduringall of the time specified in Section 911.2 for the presentation of the claim.” (Gov. Code § 911.6(b)(2), emphasis added.) In stark contrast, however, subdivision (c) mandates the precise opposite result: “If the board 14 fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45" day....” (Gov. Code § 911.6(c), emphasis added.) Attempting to reconcile the two provisions results in an absurdity. To “deem”the Board’s inaction on plaintiffs application a “denial” allows the Board to violate subdivision (b)(2)’s mandate(i.e., to grant the minor’s application). Another canon ofinterpretation may resolve the absurd result. Code of Civil Procedure section 1859 states, in pertinent part: “In the construction of a statute the intention of the Legislature, [...], is to be pursued,ifpossible; and when a general and particular provision are inconsistent, the /atter is paramountto the former. So aparticular intent will control a general onethat is inconsistent withit.” (Emphasis added.) Here, subdivision (b) is extremely specific, defining four unique scenarios in which the Board“shall grant” a timely application for leave to present a late claim. In contrast, subdivision (c) is broadly written, general, and acts as a default procedurethat appliesto all cases in which the Boardfails to act on the application. Because subdivision(c) acts as a default, andits languageis not as specific as subdivision (b)(2)(i.e., applying only to claimants who were minorsduring the time specified in Section 911.2 for the presentation of the claim), Subdivision (b)(2) should trump Subdivision (c). 15 However, evenifthis Court disagrees that this issue can be resolved based on the canonsofstatutory interpretation, the Legislative history and public policy mandate the identical result. C. In the face of Section 911.6’s irreconcilable language, Legislative History and public policy mandate an interpretation of Section 911.6 that does not permit subdivision (c) to render subdivision (b) a nullity. 1. The Tort Claims Act should beliberally construed. Wherestatutory language may reasonably given more than one interpretation, “courts may consider variousextrinsic aids, including the purposeofthe statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassingthestatute.” (Shirkv. Vista Unified School District (2007) 42 Cal.4" 201, 211.) In Viles v. State ofCalifornia (1967) 66 Cal.2d 24, the California Supreme Court discussed the evolution of the modern Government Tort ClaimsAct, including the legislature’s overall goals for the 1963 enactment. Prior to the Act’s enactment, public tort liability statutes “were not only inconsistent but []also provided a technical defense against the determination ofliability on the merits.” (66 Cal.2d at 30.) Although the 1963 Act shortened the time for presentation of claims against the state from twoyears to 100 days,’ it also expanded the situations whererelief might be granted to persons whofailed to comply with the statutory period ' The 100-days was later amendedto the current six-monthperiod. 16 through mistake, inadvertence, surprise or excusable neglect, unless the public entity would be prejudiced. (/bid.) The 1963 Act also added the provision for administrative relief, “whereby the public entity was authorized to permit a late claim to be presented upon the same groundsas the granting of a petition by the court, in the hope that the public entity itself would, in a propercase, grantrelief so that a court proceeding would be unnecessary.” (/bid.) The Court further discussed the legislative intent of the Government Tort Claims Act: The 1963 legislation is remedial and should be /iberally construed. Both the courts and Legislature have recognized that the labyrinth of claimsstatutes previously scattered throughout our statutes were traps for the unwary.(Citations.) An attempt has been madebythe Legislature to remove such snares. Courts should not rebuild them by a too narrow interpretation of the new enactments. (Viles v. State ofCalifornia (1967) 66 Cal.2d 24, 31, quoting Hobbsv. Northeast Sacramento County Sanitation Dis. (1966) 240 Cal.App.2d 552, emphasis added.) 2. The Legislature intentionally treats minors with more leniency than other claimants, and intends the Board to grant minors’ applicationsfor leaveto file late claims. Althoughthe claim provisions (Gov. Code §§ 911.2, 945.4) apply to minors, the Supreme Court has opined “they apply with greater liberality to minors, since underthe provisions of section 911.4 and section 911.6, an 17 application for leave to present a late claim made by a claimant who has been a minorthroughoutthe entire [] claim presentation period Must be granted by the board.” (Whitfield v. Roth (1974) 10 Cal.3d 874, 883-884, italics added, original capitalization.) The contrast of the Legislature’s liberal treatment of minors versus general population is highlighted by another subdivision of Section 911.6(b). Section 911.6, subdivision (b)(1) requires the Board to grant the application where “Thefailure 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 by the failure to present the claim within the time specified in Section 911.2.” Subdivision (b)(2) (applying to minors), does not require the minorto showthatits delay in filing a timely claim prejudicedthe entity. This distinction was deliberate. The Law Revision Commission (Recommendation Relating to Sovereign Immunity 1009-1010) articulated the Commission’s intent to grant minorsflexibility in filing late claims, even at the Board’s detriment: “In cases where the claimant failedto file his claim within the 100-day period because he was a minor,[...], the statute should permit the claim to be presented within one yearafter the cause of action accrued even though the public entity may be prejudiced by the late filing of the claim.” (See 24 Cal. Government Tort Liability 18 (Cont.Ed.Bar 1964) § 8.31, pps. 390-392 ].) The Commission explained why: Although asa general principle the public entity should be entitled to prompt notice in order to have an opportunity to investigate the claim and correct or remedy the condition that gaveriseto it, the Commission has concludedthat, in these rare cases whereit ordinarily would not be reasonable to expect the claimantto file a claim, the interest in requiring promptnotice should not be permitted to deprive the claimant or his personal representative of the cause of action, even thoughthe entity might be prejudiced by thelate filing. (Recommendation on Sovereign Immunity [4 Cal.L.Revision Comm’n Reports (1963) p. 1010]]; see also 24 Cal. GovernmentTort Liability (Cont.Ed.Bar 1964) § 8.31, pps. 390-392 ].).) 3. Public policy supports liberal treatment of minors who file timely applicationsto file a late claim overtechnical traps for the unwary. The consequencesofan individual’s failure to timelyfile a petition for an order pursuant to Government Code section 946.6 are fatal to the claim. However, California has a strong public policy favoringtrial on the merits, over “technical rules that otherwise provide a trap for the unwary claimant.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275-276, quoting Viles, supra, 66 Cal.2d at pp. 32-33.) “The policy favoring trial on the merits is the primary policy underlying section 946.6.” (Bettencourt, supra, 42 Cal.3d at 276, emphasis added.) Here,trial court’s application of Section 911.6, subdivision (c)’s “deemed denial” language over subdivision (b)(2)’s “shall grant” language, 19 triggered the six-monthclock for filing a petition under Section 946.6. Section 946.6 would have no applicability if the court determined the Board’s inaction on plaintiff's timely application wasa de facto delay or extension of time, in whichto fulfill its duty to grant the application and, thus could not be “deemed denied.” This alternative reconciliation between Section 911.6(b), Section 911.6(c), and Section 946.6, comports with the underlying Legislative purpose of Section 911.6(c)’s “deemed denial” language. The “deemed denied” language of Subdivision (c) is automatically triggered after 45 days to protectthe claimant’s ability to sue — not thwart it. The Commission recommended 45-days, and the ability to expand that time, to “provide the parties with a flexible time limit within which to negotiate orsettle claims, yet the claimantwill not be unduly delayed in the commencementofhis action iflitigation becomesnecessary.” (Recommendation on Sovereign Immunity [4 Cal.L.Revision Comm’n Reports (1963) p. 1011]], emphasis added.) Thus, the 45-day limit that commences Section 946.6’s six-month statutory period is to benefit the plaintiff, not the unresponsive public entity. Here, the court’s ruling favored an interpretation that effectively resolved plaintiffs claims on a technicality rather than the merits. This interpretation violated public policy. 20 D. The Court of Appeal’s interpretation of Section 911.6 nullifies subdivision (b). The Court ofAppeal concludedthere is no conflict between subdivisions (b) and (c) of Section 911.6 because the section “anticipates that a board mayact on an application by granting or denyingit, or that a board may do nothingat all.” (Typed Opn.at p. 9.) The court correctly recognizesthat, if the boardacts, it shall grant the minor’s application. (Typed Opn.at p. 9.) However, the court incorrectly concludes that if the board fails to act on a minor’s timely application, section 911.6(c) controls and the application is deemed denied. (Typed Opn.at p. 9.) The court reasonsthat Section 911.6(c) makes no exception for the circumstances presented in subdivision (b). (Typed Opn.at p. 9.) However, subdivision (b) is the limited exception to subdivision (c). Underthose specific conditions, the board has no discretion to deny a claim,either explicitly or implicitly by inaction. The Court of Appeal notes, undersuchaninterpretation, this places a plaintiffs application into limbo. (Typed Opn.at p. 12.) Not so. Pursuant to subdivision (b), the application could be “deemed granted” under such a scenario.” The appellate court also concluded Kendrick v. City ofLa Mirada (1969) 272 Cal.App.2d 325, 329 resolved the issue and supports the 2 Contrary to the court’s implication, a petitioner such as appellant, should not be penalized for pursuing relief from the superior court, in an abundance of caution, under such circumstances, so long as the petitioner files the petition within the statute of limitations for the underlyingtort. 21 C R I T E , EN S Y N E ae = a a proposition that an application for leave to present a late claim may be denied by operation of law notwithstanding the language of section 911.6(b). (Typed Opn.at pp. 10-12.) However, even if Kendrick applied the statute in the manner analyzed by the Court of Appeal in this case, the Kendrick opinion did not purport to address or resolve the inconsistent language of subdivisions (b) and (c). But evenif it did, “Court-made error should not be shielded from correction.” (People v. King (1993) 5 Cal.4” 59, 78.) Kendrick, supra, does not bind this Court (see Auto Equity Sales, supra, 57 Cal.2d at 455) and in fact, Kendrick exemplifies why, in absence of this Court’s intervention, lower courts will continue to apply an interpretation that nullifies the effect of subdivision (b) of the statute. 22 I. REVIEW IS NEEDED TO RESOLVE WHETHERTHE LEGISLATURE INTENDED TO CREATEA DISTINCTIONIN THE CATEGORYOF APPLICANTSENTITLED TO RECEIVE WRITTEN NOTIFICATION UNDER GOVERNMENT CODE SECTION 911.8 OF THE SHORT LIMITATIONS PERIOD. Government Codesection 911.8, subdivision (a) providesthat “Tw]ritten notice of the board’s action upon the application” must be given in the prescribed manner. “If the application is denied,” the notice must include a warning substantially in the form set forth in section 911.8, subdivision (b) (i.e., using bold language to warn the claimant that Government Codesection 946.6’s six-monthstatute of limitations has been triggered). (§ 911.8(b).) The Court of Appeal concludedthat this language meansthe board is required to give written notice on/y when explicitly denying a claimant’s application, but, if the board’s inaction is “deemed” a denial of the claimant’s application(i.e., by failing to act within the time set forth in section 911.6(c)), the board is not required to provide such notice. (Typed Opn.at pp. 7, 18-19.) The Court ofAppeal reasoned the word “action” in subdivision (a) of section 911.8 means that respondent was “not required underthe statutory framework to give written notice ofits inaction upon [appellant’s] application.” (Typed Opn. p. 18.) Thus, under the Court of Appeal’s interpretation and analysis, appellant was not required to receive notice 23 undersection 911.8 because the board denied his claim as a matter of law, by inaction. Such interpretation rewards and incentivizes governmental shirking of its statutorily mandated responsibilities. There is no dispute that, under Section 911.6, subdivision (b), had the board “acted” on appellant’s application, the board wasrequired to grant appellant’s application. (Whitfield v. Roth (1974) 10 Cal.3d 874, 883-884.) And, had the board improperly denied the application, explicitly or implicitly, section 946.6 offers claimants the opportunity to correct the board’s mistaken denial. Butit only does so if the applicant timely petitions the superior court. The innocent claimant whoseapplication the board simply ignores,is materially disadvantagedin his ability to timely petition the superior court, as compared to the innocent claimant upon whose application the board takes action. The latter receives section 911.8’s protection; the former does not. Andthe distinction is entirely up to the board, not the claimant. It is no answerthat both litigants may equally read section 946.6 and learn of the six-monthstatute of limitations. The statutory provisions ofthe Tort Claims Act must be read together, and if the notice afforded by section 946.6’s language had been deemed adequate by the Legislature, the Legislature would have never passed section 911.8. In other words,ifthe notice section 946.6 affords is adequate, why did the Legislature feel the need to offer any litigants notice that their six-month statute of limitations 24 has commenced? Technically speaking, section 911.8 is redundantofthe statute of limitations portion of section 946.6. The answeris not, as the Court of Appeal suggests at page 18 ofits opinion, based on whetherthe claimant has attorney representation.If that werethe case, Section 911.8 would only apply to unrepresented claimants. Butthe section appliesto all claimants — represented and pro per — whose applications have been explicitly denied by the board. The answer mustbe that the Legislature recognized that the Section 946.6’s six-month statute language waslikely to create “snares”or traps for the unwary claimant(asit did in this case), and by including section 911.8, intentionally created redundancy to warn litigants and prevent depriving them of their day in court due to these technicalities. (See e.g., Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275-276; Viles v. State ofCalifornia (1967) 66 Cal.2d 24, 31.) The unansweredquestion for this Court is why did the Legislature distinguish between claimants whose applications were explicitly or implicitly denied (at nofault or control oftheir own)? This Court’s opinion raises additional unanswered questions: ¢ What motivation would the public entity ever have to take any “action” on an application, especially when the public entity’s inaction excusesit from providing notice of the short limitations period? 25 It is the consumer, not the public entity, which benefits from such notice, and the public entity that benefits from the consumer’s lack thereof (because when the consumerfails to timely file the section 946.6 petition, the public entity never has to pay on the underlying claim). ¢ Moreover, why is a minor claimant (whohasspecial standing under the governmentclaim statutory scheme) and whose claim was improperly denied (since the statute is clear that the entity MUSTgrantthe late application of a minor), have any fewerrights to notice of an improperly denied late claim whenthe entity does not act on the claim as opposed to acting on the claim? The statutory scheme,as interpreted by the Court of Appeal, lacks consistency because the public entity has power to control which minor does and which minordoes not obtain explicit notice of an improperly rejected late claim. Unless this Court’s reverses the lower court’s opinion, would notall public entities counsel their employees to NEVERexplicitly act ona minor’s claim? Thatis the only logical conclusion, and perhaps unforeseen practical result, arising from the court’s decision, even as modified. 26 Il. REVIEW IS NEEDED TO RESOLVE THE DISTRICT SPLIT IN INTERPRETING GOVERNMENT CODE SECTION946.6, AND SPECIFICALLY, WHETHER SUBDIVISION (b) OPERATES AS AN INFLEXIBLE STATUTE OF LIMTIATIONS. A. Introduction The Court ofAppeal concluded compliance with Government Code section 946.6, subdivision (b), is a prerequisite to filing suit. (Typed Opn.at p. 15.) That subdivision requires a claimant challenging the denial of an application to file a petition in the superior court “within six monthsafter the application to the board is denied or deemed to be denied pursuant to Section 911.6.” (Gov. Code § 946.6(b).) The court further concluded that Section 946.6 operatesas a statute of limitations, and its six-month limitations period is mandatory, not discretionary. (Typed Opn.at p. 15.) The court acknowledged, however, that its “reading of section 946.6 appears to be contrary to E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4" 736 (“E.M.”). Review is necessary by this Court to resolve the split of interpretation among the Second and Fourth Appellate Districts. (Cal. Rules of Court, Rule 8.500(b) [“The Supreme Court may order review of a Court of Appeal decision: (1) When necessary to secure uniformity of decision orto settle an important question of law’”].) 27 B. The Second Appellate District found, under certain exceptions, section 946.6 is not a condition precedent for bringing a lawsuit. In E.M, supra, 194 Cal.App.4"at 740, the plaintiff presented a timely application for leave to present a late claim on the groundthat she was a minoratall relevant times. Notwithstanding Government Code section 911.6(b)(2), the public entity expressly rejected the minor’s application for leave to present a late claim. (/bid.; Typed Opn.at p. 16.) Five monthslater, the minorfiled a lawsuit. (/d. at p. 741; Typed Opn.at p. 16.) Two monthsafter filing the lawsuit, and seven monthsafter the entity’s denial ofher application to file a late claim, the minorpetitioned the superior court under Government Codesection 946.6, seeking relief from the claim requirement under section 945.4. (/bid.; Typed Opn.at p. 16.) The superior court denied the petition as untimely as not having beenfiled within Section 946.6(b)’s six-month period, and the lawsuit was dismissed. (Ibid.; Typed Opn.at p. 16.) The Court of Appeal, Second Appellate District, Division Three, reversed andreinstated the plaintiff's lawsuit. (E.M., supra, 194 Cal.App.4™ at 749; Typed Opn.at p. 16.) That court determinedthe plaintiff satisfied the claim requirement of section 945.4 simply by presenting an application for leave to present a late claim. (E.M, supra, at p. 748; Typed Opn.at pp. 16-17.) The court reasoned the application for leave to present a late claim satisfied the statutory purpose of providing notice of the claim to the public 28 entity. (/bid., Typed Opn.at p. 17.) Thus,the plaintiffs petition in the superior court under Section 946.6 was unnecessary prior to bringing the lawsuit. (/d. at 747; Typed Opn.at p. 17.) C. The Fourth Appellate District, Division Three, in this case, disagreed that section 945.4’s claim requirement may be satisfied by presenting an application for leave to present a late claim undersection 911.6(b)(2). In this case, the Court ofAppeal disagreed with E.M. “to the extent it stands for the proposition that a plaintiffwho was a minorat the time the injuries were suffered satisfies the claim requirement of section 945.4 simply by presenting an application for leave to present a late claim under section 911.6(b)(2).” (Typed Opn.at p. 17.) The court further noted confusion has arisen from E.M., regarding the procedure minorplaintiffs must follow before filing suit. (Typed Opnat p. 17, citing Van Alstyneet al., Cal. GovernmentTort Liability Practice (Cont.Ed.Bar 2015) § 7.60 [“The holding in £.4. would appearto renderthe filing of a petition under Govt C §946.6 superfluous, at least when the basis for late claim relief is the claimant’s minority”].) Accordingly, the Court of Appeal concluded that E.M. “overlooksthe plain language of sections 911.4, 911.6, 945.4, and 946.6,” and “[b]y holding that an application for leave to present a late claim itself satisfies the claim requirement, even if the application is denied, E.M. nullifies the requirementsoffiling a petition under section 29 946.6 and obtaining court permissionto be relieved of the claim procedure.” (Typed Opn.at p. 17.) D. Review is needed both to secure uniformity of decision and to settle this important issue of law concerning whethersatisfaction of section 946.6 is, without exception, always a condition precedent to bringing a lawsuit. “Where there is more than one appellate court decision, and such appellate decisions are in conflict... the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc., supra, 57 Cal.2d at p. 456.) Such conflicting decisions are especially confusing — and crucial — forlitigants to correctly decipher in Tort Claims Act cases becauseif the litigant incorrectly assumes E.M. applies in his case, but the superior court in whichthe litigant appears choosesto apply /.M., thenthe litigant loseshis rightto a trial. The Tort Claims Act intended to remove“traps for the unwary”litigants, and the inconsistency between E.M. and J.M. has erected a new snare for such litigants. (Viles v. State ofCalifornia (1967) 66 Cal.2d 24, 31, quoting Hobbs v. Northeast Sacramento County Sanitation Dis. (1966) 240 Cal.App.2d 552.) E.M.’s reasoningis logical and should not be easily dismissed by lowercourts facing similar situations. The opinion implicitly recognizes the Legislative intent to treat minors with added leniency, and the fact that a denial of a properly submitted application for leave to file a late claim 30 (whether explicit or implicitly made) is not within the control of the litigant. (E.M., supra, 194 Cal.App.4" at 747-748.) The purpose ofthe claimsprovisionsis to provide timely notice to the public entity, with sufficient information to enable the entity to investigate the claim, and to settle it, if appropriate, without the expenseoflitigation. (/d. at p. 748.) Whetherthe public entity choosesto act on the application is neither within the applicant’s control, nor relevant as to whether the entity received timely notice of the claim. Section 946.6 incorporates the language of Subdivision (c) of Section 911.6, but E.M. presents a clear example of where the rigid application of those statutes would subvert Legislative intent and public policy. This issue is important, unsettled, and needs to be resolved by this Court. 31 CONCLUSION Forall ofthe foregoing reasons, we respectfully urge that this petition for review be granted. Dated: November 9, 2015 Respectfully submitted, RUSSELL & LAZARUS APC Christopher E. Russell, Esq. GUSDORFFLAW,P.C. Janet R. Gusdorff, Esq. fPe R. Gusdorff Attorneys for Appellant, J.M. 32 CERTIFICATE OF WORD COUNT (California Rule of Court 8.504(d)(1).) Pursuant to California Rules of Court, Rule 8.504(d)(1), the text of this Petition for Review, generated using Microsoft Word for Mac 2011, contains 6,104 words, including footnotes. I certify under penalty of perjury that the foregoing is true and correct. Executed this 9" day ofNovember, 2015, at Westlake Village, California. Spoor Janet R. Gusdorff 33 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES lam employedin the County of Los Angeles, State of California. lam overthe age of 18 and am not party to the within action; my business address is 4607 Lakeview Canyon Road,Suite 375, WestlakeVillage, California 91361. On November9, 2015, I caused the foregoing documents describedas: PETITION FOR REVIEW,to be served onthe following entities or individuals: Stephen M.Harber, Esq. Fountain Valley High School Dominic A. Quiller, Esq. 17816 Bushard St. McCune & Harber LLP Fountain Valley, CA 92708 515 S. Figueroa St., Suite 1150 Respondentin pro per Los Angeles, CA 90071 Counselfor Respondent, Huntington Beach Union High SchoolDistrict Hon. Kirk Nakamura, Dept. C15 Clerk, California Court ofAppeal Orange County Superior Court Fourth Appellate District, Division 3 700 Civil Center Drive West 601 West Santa Ana Blvd. Santa Ana, CA 92701 Santa Ana, CA 92701 Trial courtjudge XX_Mail by placing the envelope for collection and mailing on the date and at the place shownin itemsbelow,following our ordinary business procedures. 1 am readily familiar with this business's practice for collecting and processing correspondencefor mailing. On the same daythat correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postagefully prepaid. Clerk, California Supreme Court Clerk, California Court of Appeal, Foruth Appellate District, Division Three XX Electronic Service by using the Supreme Court’s e-submission form onits website. I certify under penalty of perjury underthe lawsofthe State of California that the foregoingis true and correct. Executed November9, 2015 at Westlake Village, California. A ae Janet Gusdorff 34 ATTACHMENT A (Court of Appeal Modification of Opinion, Filed 10/22/15 & Court of Appeal Opinion, Filed 9/30/15) 35 Filed 10/22/15 (unmodified opn.attached) CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE J.M., a Minor,etc., Plaintiff and Appellant, Vv. HUNTINGTON BEACH UNION HIGH SCHOOLDISTRICT, Defendant and Respondent. G049773 (Super. Ct. No. 30-2013-00684104) ORDER MODIFYING OPINION AND DENYINGPETITION FOR REHEARING; NO CHANGEIN JUDGMENT It is ordered that the opinion filed herein on September 30, 2015, be modified as follows: After the fourth paragraph, whichstarts on page 18 and continuesto page 19, beginning “Section 911.8, subdivision (a) requires a board,” add the following new paragraph: In a petition for rehearing, J.M. argues our conclusion “rewards and incentivizes” governmententities for not acting on applications for leave to present a late claim. Section 911.8, subdivision (a) reflects the Legislature’s choice to require written notice only when the governmententity acts on an application for leave to presenta late claim and affirmatively denies it. An application for leave to present a late claim is deemed denied by inaction 45 daysafter the application is presented to the governing board. (§ 911.6(c).) That date can be determinedeasily. If, within that timeframe, the claimant receives no notice of a board’s action, then the claimant can conclude the application was denied by operation of law and can calculate the last day for filing a petition to the superior court under section 946.6. This modification does not effect a change in judgment. Thepetition for rehearing is DENIED. FYBEL,J. WE CONCUR: BEDSWORTH, ACTING P.J. MOORE,J. Filed 9/30/15 (unmodified version) CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE J.M., a Minor,etc., Plaintiff and Appellant, G049773 V. (Super. Ct. No. 30-2013-00684104) HUNTINGTON BEACH UNION HIGH OPINION SCHOOLDISTRICT, Defendant and Respondent. Appeal from an order of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Affirmed. Request for judicial notice. Granted. Gusdorff Law, Janet R. Gusdorff; Russell & Lazarus and Christopher E. Russell for Plaintiff and Appellant. McCune & Harber, Stephen M. Harber and Dominic A. Quiller for Defendant and Respondent. INTRODUCTION The Government Claims Act, foundat section 810 et seq. of the Government Code,’ sets forth procedures and requirements that must be satisfied before filing suit against a public entity for tort relief. Compliance with the Government Claims Act is mandatory, and failure to present a claim “‘“‘is fatal to a cause of action.’” (McMartin v. County ofLos Angeles (1988) 202 Cal.App.3d 848, 858.) Those who seek relief against a public entity are well advised to heed the warning of Justice Oliver Wendell Holmes: “Men must turn square corners whenthey deal with the Government. If it attaches even purely formal conditionsto its consent to be sued those conditions must be complied with.” (Rock Island &c.R. R.v. United States (1920) 254 U.S. 141, 143.) In this case, J.M. did not comply with the conditions of the Government Claims Act. He did not present a claim with the board of the Huntington Beach Union High School District (the District) within six months of the date on which his causes of action accrued, as required by sections 945.4 and 911.2. He retained counsel, who timely presented an application undersection 911.4 to present a late claim on the ground J.M. was a minor. The District did not act on the application, and, as a consequence, under the express languageof section 911.6, subdivision (c) (section 911.6(c)), his application was deemed denied by operation of law. J.M., still represented by counsel, filed a petition in the superior court under section 946.6 for relief from the claim requirement. The superior court denied his petition as untimely becauseit was not filed within six months of the date on which his Title 1, division 3.6, parts 1 through 7 of the Government Code (Gov. Code, § 810 et seq.) is referred to as the Government Claims Act. (City ofStockton v. Superior Court (2007) 42 Cal.4th 730, 742.) Further code references are to the Government Code unless otherwise noted. application to present a late claim was deemed denied by operation of law. J.M. appeals from the superior court’s order denying his petition for relief under section 946.6. Such an order is appealable. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, fn. 8.) The plain, unambiguous languageof sections 911.6 and 946.6 compels us to affirm. J.M.’s application to present a late claim was made undersection 911.6, subdivision (b)(2) on the ground that he was a minorat the time he was required to present a claim. Because the District did not act, under the plain language of section 911.6(c), J.M.’s application was deemeddenied by operation of law on the 45th day after it was presented. Section 911.6(c) states: “Ifthe board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day... .” Whenanapplication is denied by operation of law under section 911.6(c), a claimant can challenge that denial only by petition to the superior court under section 946.6 for relief from the claim requirement. Section 946.6, subdivision (b) (section 946.6(b)) states in unambiguous terms: “The petition shall be filed within six monthsafter the application to the board is denied or deemed to be denied pursuant to Section 911.6.” J.M.filed his petition to the superior court more than six monthsafter his application to present a late claim was deemed denied by operation of law. J.M.’s petition therefore was untimely, and the superior court did not err by denyingit. FACTS AND PROCEDURAL HISTORY On October 27, 2011, J.M., a 15-year-old student at Fountain Valley High School, suffered head trauma when he wastackled during a school-sponsored football game. Hecontinuedto participate in full-contact football practice, and began to experience headaches, dizziness, and nausea. J.M.’s causes of action for personal injury against the District accrued no later than October 31, 2011, when a doctor diagnosed J.M. with double concussion syndrome. (§ 901.) J.M. did not present a claim to the District within six months of the date of accrual of his causesof action, as required by the Government Claims Act. He retained counsel and, on October 24, 2012, his counsel presented an application for leave to present a late claim pursuant to section 911.4 on the ground that J.M. was a minorfor the entire six-month period following the accrual of his causes of action. The District did not act upon the application. On October 28, 2013, J.M., still represented by counsel, filed a petition undersection 946.6 to the superior court for an order relieving him from the claim requirement. The superior court denied J.M.’s petition as untimely becauseit wasfiled more than six months after the date on whichhis application to present a late claim was deemed to have been denied bythe District’s inaction. J.M. timely appealed. DISCUSSION I. Standard of Review andPrinciples of Statutory Interpretation Wereview the denial of a petition for relief from the claim requirement under the abuse of discretion standard. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275; Ebersol v. Cowan, supra, 35 Cal.3d at p. 435.) That discretion is not “unfettered” and “must be exercised in conformity with the spirit of the law.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) Wereview issuesof statutory interpretation de novo. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 (Kavanaugh).) The fundamentaltask of statutory interpretation is to ascertain the Legislature’s intent to effectuate the statute’s purpose. (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) In ascertaining the Legislature’s intent, we first consider the language ofthe statute itself, giving the wordsused their ordinary meaning. (/bid.) If the statutory languageis unambiguous, the plain meaning controls and consideration of extrinsic sources to determine the Legislature’s intent is unnecessary. (Kavanaugh, supra, 29 Cal.4th at p. 919.) Weread the statute as a whole to harmonize andgive effect to all parts. (Ste. Marie v. Riverside County Regional Park & Open-Space Dist. (2009) 46 Cal.4th 282, 289.) II. Relevant Provisions of the Government Claims Act “The [Government Claims] Act establishes a uniform claims procedure, making thefiling of a claim within a brief period of the injury a prerequisite to maintaining a suit for damages.” (Renteria v. Juvenile Justice, Department of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 908.) The Government Claims Act is comprised of “a comprehensive format specifying the parameters of governmental liability, including . . . a detailed procedure for the advancefiling of a claim as a prerequisite to filing suit” and deadlines for “both the filing of claims and the commencementoflitigation.” (Schmidt v. Southern Cal. Rapid Transit Dist. (1993) 14 Cal.App.4th 23, 28, fn. omitted.) Part 3 of division 3.6 oftitle 1 of the Government Code (§§ 900-935.9) sets forth procedures for presenting claims against public entities. Part 4 of the sametitle and division (§ 940 et seq.) sets forth procedures for actions against public entities and public employees. Section 945.4 requires a party to present a written claim to the public entity before the claimant may bring a lawsuit against that public entity. Except as provided in sections 946.4 and 946.6, a timely claim must be acted upon or deemed rejected by the boardofthe public entity before the claimant mayfile a lawsuit. (§ 945.4.) ? Section 900.2, subdivision (a) defines “‘Board’” as the governing bodyof a local public entity. “Compliance with the claimsstatute [(§ 945.4)] is mandatory andfailure to file a claim is fatal to a cause of action.’” (McMartin v. County ofLos Angeles, supra, 202 Cal.App.3d at p. 858). Section 945.6 provides that, once the claim requirementis satisfied, any lawsuit by the claimant must be commenced within six months of receiving written notice or, if no written notice is given, within two years from the accrual of the cause of action. (§ 945.6, subd. (a)(1), (2).) Section 911.2 sets forth the procedure for presenting a personal injury claim against a public entity. The claimant must present a claim to the board of the public entity within six months ofthe accrual of the cause of action. (§ 911.2, subd. (a).) A cause of action accrues for purposes of the Government Claims Act at the same time as a similar action against a nonpublic entity accrues for purposes of applying the relevant statute of limitations. (§ 901; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1078.) Timely claim presentationis “““‘a condition precedent to plaintiff's maintaining an action against defendant.’”’” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.) When a claim required by section 911.2 is untimely, the injured party may present a written application to the board for leave to present a late claim. (§ 911.4, subd. (a).) The application for leave to presenta late claim, including a copy of the proposed claim, must be presented to the board within a reasonable time not to exceed one yearafter the accrual of the cause of action and muststate the reason for the delay in presenting the claim. (§ 911.4, subd. (b).) Section 911.6 recognizes that the board may grant, deny,or fail or refuse to act on, an application for leave to present a late claim. Subdivision (a) of section 911.6 ° A personal injury cause of action caused by negligence accrues on the date of injury, unless the discovery rule delays accrual, in which case the cause of action accrues when the plaintiff suspects or should suspect wrongdoing. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109-1111.) provides: “The board shall grant or deny the application within 45 daysafterit is presented to the board.. . » Section 911.6, subdivision (b) (section 911.6(b)) identifies four circumstances in which the application to present a late claim “shall [be] grant[ed]” by the board. Relevanthereis the second circumstance: “The person whosustained the alleged injury, damageor loss was a minorduringall of the time specified in Section 911.2... .” (§ 911.6(b)(2).) Section 911.6(c) states: “Ifthe board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day... .” Section 911.8, subdivision (a) provides that “[w]ritten notice of the board’s action upon the application” must be given in the prescribed manner. If the board denies the application, the notice must include a warning substantially in the form set forth in section 911.8, subdivision (b). Section 911.8 does not require notice when the board fails or refuses to act on an application. If the board denies a timely application for leave to present a late claim, or if the application is deemed denied under section 911.6(c), the injured party may petition the superior court for an order relieving him or her from the claim requirement of , The claimant and the board may agree to extend the period in which the board is required to act. (§ 911.6, subd.(a).) 5 The four circumstancesare “(1) [t]he failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced inits defense of the claim by the failure to present the claim within the time specified in Section 911.2[,] [{] (2) [t]he person whosustainedthe alleged injury, damage or loss was a minor duringall of the time specified in Section 911.2 for the presentation of the claim[,] [§]] (3) [t]he person whosustainedthe alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation ofthe claim... ,” or “(4) [t]he person whosustainedthe alleged injury, damageorloss died before the expiration of the time specified in Section 911.2 for the presentation of the claim.” (§ 911.6(b)(1)-(4).) section 945.4. (§ 946.6, subds. (a) & (b).)° The injured party mustfile the petition in the superior court “within six months after the application to the board is denied or deemed to be denied pursuantto Section 911.6.” (§ 946.6(b), italics added.) Failure to comply with time limitations set forth in section 946.6 bars an action on the government claim. (See Lineaweaver v. Southern California Rapid Transit Dist. (1983) 139 Cal.App.3d 738, 741 (Lineaweaver) [holding the six-month limitation period during which a person may petition the superior court after the board’s denial of an application to present a late claim is mandatory]; Todd v. County ofLos Angeles (1977) 74 Cal.App.3d 661, 665 [minor’s action was time-barred when the complaint failed to comply with section 946.6, subdivision (f) because it was filed more than 30 days after the superior court granted minor’s petition for relief].) Section 946.6, subdivision (c) (section 946(c)) provides that the superior court “shall relieve the petitioner from the requirements of Section 945.4”if the application for leave to present a late claim “was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4,” the application was denied or deemed denied undersection 911.6, and at least one of four circumstancesis applicable. ° Section 946.6, subdivision (a) states: “If an application for leave to present a claim is denied or deemedto be denied pursuant to Section 911.6, a petition may be madeto the court for an order relieving the petitioner from Section 945.4. The proper court for filing the petition is a superior court that would be a proper court for the trial of an action on the cause of action to which the claim relates. If the petition is filed in a court which is not a proper court for the determination of the matter, the court, on motion of any party, shall transfer the proceeding to a proper court. If an action on the cause of action to which the claim relates would be a limited civil case, a proceeding pursuantto this section is a limited civil case.” Section 946.6(b) states: “The petition shall show each of the following: [9] (1) That application was madeto the board under Section 911.4 and was denied or deemed denied. [| (2) The reason for failure to present the claim within the time limit specified in Section 911.2. [{] (3) The information required by Section 910. [§] The petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.” The four circumstanceslisted in section 946.6(c) are nearly identical to those listed in section 911.6(b). If the superior court grants the petition, the injured party has 30 days in whichto file a lawsuit. (§ 946.6, subd.(f).) Hil. J.M.’s Application for Leave to Present a Late Claim Was Deemed Denied by Operation of Law Whenthe District Did Not Act Within 45 Days. A. Section 911.6(b)(2) and Section 911 .6(c) J.M. contendssection 911.6(b)(2) and section 911.6(c) contradict each other and are irreconcilable because section 91 1.6(b)(2) states the board “shall grant the application” when the applicant was a minor, while section 911.6(c) states the application “shall be deemed to have been denied”if the board fails to act within the prescribed time period. According to J.M., the contradiction should be resolved by concluding section 911.6(b)(2) controls so that his timely application to present a late claim was never deemedto have been denied undersection 911.6(c). Thereis no conflict or contradiction between section 911.6(b)(2) and section 911.6(c). Section 911.6 anticipates that a board may act on an application by granting or denyingit, or that a board may do nothingat all. Section 911.6, subdivision (a) states the board “shall grant or deny” an application for leave to present a late claim within 45 days afterit is presented to the board. Section 911.6(b)(2)states “(t]he board shall grant the application” when the claimant was a minor during the claim period, whichis the situation here. If the board fails or refuses to act within the 45-day period, then section 911.6(c) controls and the application is deemed denied by operation of law. Section 911.6(c) makes no exception whenthe application presents any of the circumstanceslisted in section 911.6(b). In this case, because the District did not act on J.M.’s application to present a late claim, section 911.6(c) controls, and the application is deemed denied by operation of law. J.M. focuses on the words “shall grant” in section 911.6(b)(2) as establishing that a board’s failure to act on an application within 45 days means, contrary to section 911.6(c), that the application is not deemed denied by operation oflaw. Although use of the word “shall” indicates a mandatory act (Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542), it is possible that a board may,albeit incorrectly, deny outright an application brought under section 911.6(b)(2). (§ 911.6, subd. (a); see, e.g., Hernandez v. County ofLos Angeles (1986) 42 Cal.3d 1020, 1022-1023 [defendant public entity denied a minor’s application to presenta late claim, “informing plaintiff that if he wished to challenge the denial he was required to file a petition in court pursuant to section 946.6 within six months”]; Tammen v. County ofSan Diego (1967) 66 Cal.2d 468, 473 [minorplaintiff's application for leave to present a late claim was denied by the public entity and plaintiff thereafter challenged the denial by petitioning the superior court].) When the board takes action and expressly denies an application brought under section 911.6(b)(2), the injured party must bring a petition undersection 946.6 to challenge the board’s decision. In either case—express denial undersection 911.6, subdivision (a) or denial by operation of law under section 911.6(c)—the claimant’s recourseis to bring a petition under section 946.6 to challenge the denial of the application for leave to presenta late claim. The languageof section 911.6(c) therefore anticipates the board may mistakenly or consciously disregard the mandatory provisionsset forth in section 911.6, subdivisions (a) and (b). If the board’s denial, either by action or inaction, is inconsistent with the statutory provisions, it is incumbent upon the claimant to challenge that denial by petition to the superior court under section 946.6. Kendrick v. City ofLa Mirada (1969) 272 Cal.App.2d 325, 329 (Kendrick) supports the proposition that an application for leave to present a late claim may be denied by operation of law notwithstanding the language of section 91 1.6(b). In Kendrick, supra, 272 Cal.App.2d at pages 326-327, the public entity denied the plaintiff's 10 otherwise valid claim as untimely. The plaintiff brought an application for leave to present a late claim under section 911.6(b)(1) on the ground of mistake, inadvertence, surprise, or excusable neglect. (Kendrick, supra, at pp. 327-328.) The application was denied by operation of law whenthe public entity failed to act within the required statutory time period. (/d. at p. 327.) The plaintiff did not petition the superior court for relief from the claim requirement andinstead filed a lawsuit. ([bid.) The Court of Appeal upheld the trial court’s judgment to dismiss the plaintiff's lawsuit. (/d. at pp. 327, 330.) The Court of Appeal concluded the plaintiffwas required by the Government Claims Actto file a petition in the superior court for relief from the claim requirement’ before filing a lawsuit. (Kendrick, supra, at pp. 327-328.) In Kendrick, supra, 272 Cal.App.2d at pages 327-329,the plaintiffs application to present a late claim was deemed denied by operation oflaw, notwithstanding the fact the plaintiff had a valid claim under section 911.6(b)(1) based on mistake, inadvertence, surprise, or excusable neglect. The Court ofAppeal concluded the plaintiff had to obtain relief in the superior court before filing a lawsuit. (Kendrick, supra, at pp. 327, 329.) Although Kendrick dealt with section 911.6(b)(1) rather than section 911.6(b)(2), its reasoning would apply to all subparts under section 911.6(b). Section 911.6(b) states a board “shall grant” an application based on any ofthe four circumstancesin subparts (1) through (4) and makesnodistinction in treatment among them. Here, J.M.’s application to present a late claim was deemed denied by operation of law, notwithstanding the fact he brought his application under section 911.6(b)(2). J.M., like the plaintiff in Kendrick, had to obtain relief in the superior court under section 946.6. J.M. did not obtain relief in the superior court becausehis petition was untimely filed. " Kendrick was decided under formersection 912, which had beenrepealed in 1965 in favor of section 946.6. (Kendrick, supra, 272 Cal.App.2dat p. 326, fn. 1.) 11 J.M. argues the mention by the Kendrick court of the “‘deemed denial’ principle” was not necessary to the decision. We disagree. The Kendrick court concludedthat the plaintiff was required by the Government Claims Actto file a petition in the superior court for relief from the claim requirement before filing a lawsuit. In Kendrick, the board of the public entity did not act onthe plaintiffs application. (Kendrick, supra, 272 Cal.App.2d at p. 326.) Thus, for the Kendrick court to have reached the issue whetherthe plaintiff needed to obtain relief in the superior court before filing a lawsuit, the court would have had to determine the plaintiff's application was deemed denied by operation oflaw. J.M. also contends Kendrick is distinguishable becausethe plaintiff in that case neverfiled a petition for relief in the superior court, let alone an untimely one. The important point in Kendrick, which is fully applicable here, is that a plaintiff must obtain relief from the superior court before filing a lawsuit. (Kendrick, supra, 272 Cal.App.2d at pp. 329-330.) J.M.did not obtain relief from the superior court. J.M. does not explain whatthe status of his application for leave to present a late claim would beif it were not denied by operation of law under section 911.6(c). The application cannot be said to have been granted because the District did not act onit. Inasmuchas J.M.filed a petition under section 946.6, he does not take that position. Yet, J.M.argueshis application was not denied by operation of law. J.M. suggests his application exists in a Government Claims Act limbo, neither granted nor denied, awaiting some future action by the District to save it. Section 911.6 does not permit that situation: When a boardfails to act on an application brought undersection 911.6(b)(2) ; At the time Kendrick was decided, section 911.6, former subdivision (a) read: “‘The board shall grant or deny the application within 35 days after it is presented to the board. If the board does not act upon the application within 35 days after the application is presented, the application shall be deemed to have been denied on the 35th day.’” (Kendrick, supra, 272 Cal.App.2d at p. 328, fn. 4.) 12 within 45 days, then the application is deemed denied by operation of law under section 911.6(c). B. The Language ofSection 946.6 Supports Our Interpretation. J.M.’s interpretation of section 911.6 ignores and would nullify the procedureset forth in section 946.6 when a board fails to act on an application brought undersection 911.6(b). “An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read notin isolation but in the light of the statutory scheme [citation]; and if a statute is amenable to twoalternative interpretations, the one that leads to the more reasonable result will be followed.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) Section 946.6(c) requires the superior court to grant a petition for relief if the application presented undersection 911.6 was timely, denied or deemed denied, and at least one of four circumstances is met. The four circumstancesset forth in section 946.6(c) are nearly identical to those in which an application to present a late claim must be granted by the board undersection 911.6(b). Section 946.6(c)(2) is identical to section 911.6(b)(2)— “[t]he person who sustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim.” (§ 946.6(c)(2), italics added; see § 911.6(b)(2).) Section 946.6(c) thus recognizes a board might deny, either expressly or by operation of law, an application to present a late claim brought on a groundset forth in section 911.6(b) even though section 911.6(b) states such application shall be granted. Section 946.6(c) requires the superior court to grant a timely section 946.6 petition when an application for leave to present a late claim filed by a minor meets the requirements of section 911.6(b)(2) and the application is deemed denied by operation of law undersection 911.6(c). If, as J.M. contends, an application under section 911.6(b)(2) 13 could not be deemed denied by operation of law when a boardfails to act, then section 946.6(c) would serve no purpose. C. Requestfor Judicial Notice J.M. has requested we take judicial notice of documents comprising the legislative history of section 911.6. Judicial notice of these materials is appropriate. (Evid. Code, § 452, subds. (a) & (c); Ennabe v. Manosa (2014) 58 Cal.4th 697, 709, fn. 9; El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 992.) Wegrant the request for judicial notice; however, consideration of extrinsic sources to determine the Legislature’s intent is unnecessary because the Legislature expressedits purposein the unambiguous languageof section 911.6 itself. (See Smith v. Superior Court, supra, 39 Cal.4th at p. 83; Kavanaugh, supra, 29 Cal.4th at p. 919.) Weobservethat the legislative history of section 911.6, if considered,is consistent with our reading of section 911.6. J.M. emphasizes two points from the legislative history. First, the Government Claims Act should be liberally construed. (See Viles v. State of California (1967) 66 Cal.2d 24, 31.) Construction of section 911.6, no matter how liberal, cannot remove the plain language of section 911.6(c) that an application to present a late claim is deemed denied if the board does not act within 45 days. Second, J.M. emphasizes, the Legislature intended to treat minors with more leniency than other claimants. Such intent to treat minors with more leniencyis built into both section 911.6(b)(2) and section 946.6(c)(2). As J.M. argues, section 911.6(b)(2) does not require a minor to show that the public entity would be prejudiced by a late claim. (See Recommendation Relating to Sovereign Immunity (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) p. 1010.) The Legislature also showed leniency to minors when amending the Government Claims Act in 1963 by giving them one year, instead of 100 days, in which to present an application to present a late claim. 14 (Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. at p. 1010.) The Legislature did not otherwise exempt minors from the requirements and time limits of the Government Claims Act. J.M. has identified nothing in the legislative history materials that suggests the Legislature did not intend for section 911.6(c) to apply to applications brought under section 911.6(b)(2). Iv. J.M.’s Petition Is Time-barred Because It Was Not Filed Within the Six-month Limitations Period Set Forth in Section 946.6. A. Compliance with Section 946.6(b) Is a Prerequisite to Filing Suit. To challenge the denial of an application to present a late claim, a claimant mustfile a petition in the superior court “within six monthsafter the application to the board is denied or deemed to be denied pursuant to Section 911.6.” (§ 946.6(b).) A claimant may file a lawsuit only once the superior court grants a section 946.6 petition for relief from the claim requirement. (§ 946.6, subd.(f).) Section 946.6(b) operates as a statute of limitations, and its six-month limitations period “is mandatory, not discretionary.” (D.C. v. Oakdale Joint Unified SchoolDist. (2012) 203 Cal.App.4th 1572, 1582, citing Lineaweaver, supra, 139 Cal.App.3d at p. 739.) In Lineaweaver, the plaintiff failed to present a timely claim and instead presented an application for leave to present a late claim, which was deemed denied by operation of law when the public entity did not act within 45 days. (Lineaweaver, supra, at pp. 739-740.) The plaintiff later filed a complaint and two amended complaints, the last of which the trial court deemedto be a petition for relief from the claims requirement under section 946.6. (Lineaweaver, supra, at p. 740.) The trial court denied the plaintiffs section 946.6 petition as untimely becauseit was notfiled within six months ofthe date on whichthe plaintiff's application to present a late claim 15 was denied or deemed denied. (/bid.) The Court of Appeal affirmed thetrial court’s denial of the petition as untimely and emphasized the six-month limitations period of section 946.6(b) acts as a statute of limitations. (Lineaweaver, supra, at pp. 740-741.) The District did not act on J.M.’s application for leave to present a late claim; therefore, it was deemed denied on December8, 2012, the 45th day after it was presented. J.M.’s counsel filed a petition under section 946.6 on October 28, 2013. The petition under section 946.6 was untimely becauseit was filed more than six months after the application to present a late claim was deemed denied by operation of law. The superior court did not err by denying J.M.’s petition on the ground it was untimely under the applicable six-monthstatute of limitations of section 946.6(b). Ourreading of section 946.6 appears to be contrary to E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736 (E.M.). In that case, the plaintiff presented a timely application for leave to present a late claim on the groundthat she was a minorat all relevant times. (/d. at p. 740.) Despite section 911.6(b)(2), the public entity expressly rejected the minor’s application for leave to present a late claim. (E.M., supra, at p. 740.) Five monthsafter the public entity rejected the application, the minor filed a lawsuit. (/d. at p. 741.) Two monthsafter filing the lawsuit and seven months after her application to present a late claim was denied, the minorfiled a section 946.6 petition with the superior court, seeking relief from the claim requirementof section 945.4. (E.M., supra, at p. 741.) The superior court denied the plaintiffs section 946.6 petition as untimely because it was notfiled within six months of the public entity’s denial of her application to present a late claim. (/bid.) The lawsuit was dismissed. (/bid.) A panel of the Court of Appeal, Second Appellate District, Division Three, reversed andreinstated the plaintiff's lawsuit. (E.M., supra, 194 Cal.App.4th at p. 749.) The Court of Appeal concludedthe plaintiff satisfied the claim requirement of section 945.4 simply by presenting an application for leave to present a late claim. (E.M., 16 c a g e ge R a R E oe P r supra, at p. 748.) The court reasoned the application for leave to present a late claim satisfied the statutory purpose of providing notice of the claim to the public entity. (/bid.) Because the plaintiff satisfied the claim requirement, the Court of Appeal believed it was unnecessary for the plaintiff to bring a petition in the superior court under section 946.6 before filing a lawsuit. (E.M., supra, at p. 747.) Even though the superior court had not granted the petition under section 946.6, the Court ofAppeal concludedthe plaintiff's lawsuit was timely under section 945.6, subdivision (a)(1) because the lawsuit wasfiled within six monthsofthe board’s denial of her application for leave to present a late claim. (E.M., supra, at p. 748.) Wedisagree with E.M.to the extent it stands for the proposition that a plaintiff who was a minorat the time the injuries were suffered satisfies the claim requirementof section 945.4 simply by presenting an application for leave to present a late claim undersection 911.6(b)(2). A treatise has recognized that E'.M. creates confusion regarding the procedure minorplaintiffs must follow before filing suit: “The holding in E.M. would appearto renderthe filing of a petition under Govt C §946.6 superfluous, at least when the basis for late claim relief is the claimant’s minority.” (Van Alstyneet al., Cal. Government Tort Liability Practice (Cont.Ed.Bar 2015) § 7.60.) We agree. We believe the £.M. opinion overlooks the plain language of sections 911.4, 911.6, 945.4, and 946.6. By holding that an application for leave to presenta late claim itself satisfies the claim requirement, even if the application is denied, E.M.nullifies the requirements of filing a petition under section 946.6 and obtaining court permission to be relieved of the claim procedure. B. The Doctrine ofEquitable Tolling Does Not Apply. J.M. argues the doctrine of equitable tolling should apply when a minor’s application for leave to present a late claim is denied by operation of law in contravention of section 911.6(b)(2). This argument is without merit. 17 Equitable tolling of statutes of limitations is a judicially created doctrine designed to suspend or extenda statute of limitations “‘as necessary to ensure fundamentalpracticality and fairness.”” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.) Equitable tolling applies when a claimant has several legal remedies and chooses to pursue one reasonably and in good faith. (/d.at p. 100.) “Thus, it may apply where one action stands to lessen the harm thatis the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in goodfaith, is found to be defective for some reason.” (/bid.) J.M. did not pursue an alternative remedy, such as an administrative remedy or an action in a different forum. It is undisputed the only remedy J.M. sought wasbypetition to the superior court pursuant to section 946.6. He therefore cannot invoke equitabletolling. C. The Board Was Not Required to Provide Written Notice UnderSection 911.8. J.M.asserts the District failed to give him written notice of the denial of his application for leave to present a late claim under section 911.8. Had the District providednotice, J.M. argues, “any prejudice from plaintiff's brief delay petitioning the court would have been eliminated.” He also suggests the failure to give notice operated as an estoppel because he was “lulled into the belief that the Board would, eventually, grant his application, and permit him to file his late claim.” Section 911.8, subdivision (a) requires a board to give written notice only of “the board’s action upon the application.” The District was not required under the statutory framework to give written notice ofits inaction upon his application. J.M. was represented by counsel who could determine the application to presenta late claim had been denied by operation of law under section 911.6(c). J.M. identifies no “calculated conduct,” representation, or concealment of facts on the part of the District or its agents 18 supporting an estoppel to invoke the time limitations of the Government ClaimsAct. (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1044-1045.) D. Public Policy J.M. urges us to look beyond the language of sections 911.6 and 946.6 and consider public policy favoring trial on the merits. The primary purposeofthe Government Claims Act is to provide the public entity with notice of a claim to facilitate investigation and settlement without trial, if appropriate. (City ofStockton v. Superior Court, supra, 42 Cal.4th at pp. 744-745; City ofSan Jose v. Superior Court (1974) 12 Cal.3d 447, 455.) The Legislature effectuated and expressed that purposein the plain language of the Government Claims Act, which includesa detailed procedure for “the advancefiling of a claim as a prerequisite to filing suit” and deadlines for “both the filing of claims and the commencementoflitigation.” (Schmidt v. Southern Cal. Rapid Transit Dist., supra, 14 Cal.App.4th at p. 28.) Although, as J.M. argues, section 946.6 is a remedialstatute, it is to be construedin favor of relief only when that is possible. (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at pp. 275-276, citing Viles v. State of California, supra, 66 Cal.2d at pp. 32-33.) The language of section 946.6 is plain and unambiguous;it cannot be construed in favor of granting J.M.relief. By virtue of the District’s inaction, J.M.’s application for leave to present a late claim was deemed denied by operation of law on December8, 2012, the 45th day after J.M. presented the application to the District. Consequently, J.-M. had six months from December 8, 2012, to petition the superior court for relief from the claim requirementundersection 946.6. (§ 946.6(b).) J.M. did not meet that deadline. “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.) 19 DISPOSITION The order denying J.M.’s petition under section 946.6 is affirmed. In the interest ofjustice, no party may recovercosts incurred on appeal. FYBEL,J. WE CONCUR: BEDSWORTH, ACTINGP.J. MOORE,J. 20
