Judge Mary H. Strobel, Case 21STCP03889 2022-07-28 Tentative Ruling

Petitioners Dorothy Cleveland and Nathaniel Golden, as successors in interest and heirs, and on behalf of, Nathaniel Golden, Jr., Deceased (“Petitioners”) petition for leave to present a late claim against Respondents Antelope Valley Healthcare District and Antelope Valley Hospital (“Respondents”) for damages arising from the care and treatment of Nathaniel Golden, Jr. in 2020.

Petitioners Dorothy Cleveland and Nathaniel Golden are the surviving widow and son of Nathaniel Golden, Jr., who died March 17, 2021. Petitioners represent that they are the sole surviving heirs of Golden, Jr. (Pet. ¶ 1; Van Allen Decl. ¶ 2.)

Medical records show that Golden Jr. was admitted to Respondent Antelope Valley Hospital (“AVH”) on multiple separate occasions in 2020. A stage 1 pressure ulcer was first noted upon Golden Jr.’s admission to AVH on or about June 18, 2020. (Van Allen Decl. ¶ 12.h and Exh. 15.) Ulcers were also referenced as a medical condition of Golden Jr. on medical records for subsequent admissions to AVH. (Id. ¶ 12h-m, Exh. 15-20.)

Golden Jr. was admitted to Adventist Health Tehachapi from October 9 to 14, 2020 and to Palmdale Regional Medical Center from November 20 to 23, 2020. He was under the care of Traditions Hospice from November 23, 2020, to his death on March 17, 2021. His causes of death include cardiorespiratory arrest; cerebrovascular accident; end stage renal disease; and hypertension. Other significant conditions contributing to death but not resulting in the underlying cause were malnutrition and sacral decubitus ulcer. (Id. ¶ 15, Exh. 27-29.)

On March 17, 2021, Petitioners’ counsel presented a government tort claim on behalf of Golden Jr. to the County of Los Angeles. County denied the claim on the grounds that AVH is not owned or operated by County. (Id. Exh. 1-2.)

On March 26, 2021, Petitioners’ counsel presented a government tort claim to the Antelope Valley Healthcare District on behalf of Golden Jr. The claim states that the occurrence that gave rise to the claim occurred in June 2020 at AVH. The claim further stated inter alia:

Nathaniel Golden was a patient at Antelope Valley Hospital in June 2020. There Nathaniel Golden developed severe pressure ulcers that caused him tremendous pain and suffering and caused him to incur medical expenses for the treatment of those ulcers that he continues to incur to date.

Due to effects of a stroke, Mr. Golden did not and still does not have mental capacity to understand the nature of these injuries, their cause or whether they were due to the wrongdoing of others, including staff and doctors at Antelope Valley Hospital….

In these failures and others, agents of the Antelope Valley Hospital neglected and abused Mr. Golden and are liable to him for monetary damages under negligence, willful conduct, and dependent adult neglect/abuse causes of action. (Id. Exh. 3.)

On April 29, 2021, AVH denied the claim “because it was not presented within six (6) months after the event or occurrence as required by law.” (Id. Exh. 4.)

On May 4, 2021, Petitioners’ counsel filed an application for leave to file late claim with AVH. The application was denied on or about May 27, 2021. (Id. Exh. 5-6.)

On November 24, 2021, Petitioners filed this petition for order relieving Petitioners from Government Code section 945.4. On May 26, 2022, Petitioners filed their opening brief and supporting evidence. The court has received Respondents’ opposition and Petitioners’ reply.

Government Code section 911.2(a) states that “a claim relating to a cause of action for death or for injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action.” If written notice of the board’s action or inaction (which amounts to a rejection) on the claim is tendered pursuant to section 913, the claimant has six months from the time the written notice is personally delivered or deposited in the mail to file suit against the public entity. (Gov. Code § 945.6(a)(1).)

If a claimant fails to make a claim within six months pursuant to Government Code section 911.2, the claimant may make a written application to the board of the public entity for permission to present a late claim within a reasonable time but not to exceed one year from the accrual of the cause of action. (Gov. Code § 911.4(a)-(b).) If, pursuant to the provisions of Government Code section 911.6, the board denies the application to present a late claim, the claimant may petition the Court for relief from the requirements of Government Code section 945.4. (Gov. Code § 946.6(a).)

Government Code section 946.6(b) requires that the petition to the court must show each of the following: (1) that the late claim application made to the board was denied or deemed denied; (2) the reason for failure to present the claim within six months of the accrual of the cause of action; and (3) the contents of the claim as required by Government Code section 910. The petition must be filed within six months after the application to present a late claim to the board was denied or deemed to be denied. (Ibid.)

The petitioner bears the burden of proving by a preponderance of the evidence that the late-claim application was made within a reasonable time and that one of the statutory requirements under Government Code section 946.6(c) was met. (Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1410.) Under section 946.4(e), the trial court must make its determination upon the petition, “relying upon any affidavits in support of, or in opposition to, the petition and any additional evidence received at hearing on the petition.” (Ebersol v. Cowan (1983) 35 Cal.3d 427, 431.)

“Section 946.6 is a remedial statue intended to provide relief from technical rules which otherwise provide a trap for the unwary claimant.” (Id. at 435.) “[D]oubts will be resolved in favor of the party attempting to get to trial to the end that wherever possible, cases may be heard on their merits.” (Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 537.)

Petitioners state that their “causes of action are for negligence, abuse and neglect pursuant to the Elder Abuse and Dependent Adult Protection Act, wrongful death and other claims” that “survive the death of Nathaniel Jr.” (Opening Brief (“OB”) 1-2.) Respondents contend that Petitioners, in their capacity as heirs, do not have standing to pursue this petition with respect to a wrongful death action. (Oppo. 13-14.)

Government Code section 910 states, in pertinent part: “A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: (a) The name and post office address of the claimant…. (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.”

The government claim was filed on behalf of Golden Jr., the patient that allegedly suffered injuries from care and treatment at AVH. The claim alleges that AVH “neglected and abused Mr. Golden and are liable to him for monetary damages under negligence, willful conduct, and dependent adult neglect/abuse causes of action.” (Van Allen Decl. Exh. 3 [bold italics added].)

The government claim did not state or imply that Petitioners Cleveland and Golden, as heirs, were pursuing damages for wrongful death against Respondents. “A cause of action for wrongful death is thus a statutory claim. (Code Civ. Proc., §§ 377.60–377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) ““The damages recoverable in [wrongful death] are expressly limited to those not recoverable in a survival action under Code of Civil Procedure section 377.34.” (Id. at 1264.)

In reply, Petitioners contend that they substantially complied with the government claim requirement. However, Petitioners do not explain how they substantially complied with respect to a wrongful death action and they cite no authority that supports their position. (Reply 9.) A wrongful death action is distinct from a survivor action for negligence or dependent adult abuse or neglect. “In numerous cases, appellate courts have held that when, as here, an injured party timely files a claim with a government entity and another party also injured by the same transaction seeks to pursue a suit against the government entity without filing a separate claim, the second injured party may not rely on the claim filed by the original claimant if the injury suffered by the second injured party was separate and distinct.” (Nguyen v. Los Angeles County Harbor/UCLA Med. Ctr. (1992) 8 Cal.App.4th 729, 734.) Accordingly, Petitioners Cleveland and Golden, as heirs, cannot rely on the tort claim asserting damages to Golden Jr. The issue is not one of substantial compliance where Petitioners, as heirs, did not file any government claim for a cause of action for wrongful death.

Because Petitioners Cleveland and Golden, as heirs, did not file a government claim for wrongful death, the court has no occasion to grant relief from the government claim requirement for an untimely government claim for wrongful death. The court’s ruling on this petition is limited to the causes of action for damages to Golden Jr., including any survivor action of Petitioners, alleged or otherwise fairly included in the government claim.

“For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon.” (Gov. Code § 901; see Donabedian v. Manzer (1986) 187 Cal.App.3d 1021, 1028.)

“As a general rule, a statute of limitations accrues when the act occurs which gives rise to the claim . . . that is, when ‘the plaintiff sustains actual and appreciable harm.’ Any ‘manifest and palpable’ injury will commence the statutory period.” (Costa Serena Owners Coalition v. Costa Serena Architectural Committee (2009) 175 Cal.App.4th 1175, 1195-96.) Under the discovery rule, the accrual date is delayed until the petitioners are aware of their injury and its negligent cause. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) Nonetheless, “[a] plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” (Ibid.) Thus, “the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Id. at p. 1110.)

Some published appellate decisions hold that a court deciding a section 946.6 petition lacks jurisdiction to determine the timeliness of the petitioner’s claim, but may only determine whether an excuse from the claim filing requirement has been shown. (See Ngo v. County of Los Angeles (1989) 207 Cal.App.3d 946, 950-951; Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817, 827-828; but see Santee v. Santa Clara County Office of Ed. (1990) 220 Cal.App.3d 702, 711 [reaching opposite conclusion].) The court finds the Ngo analysis persuasive.

“The court in a proceeding under section 946.6 lacks the power to determine questions that should properly be left to a jury…. The procedure set forth in section 946.6 is simply an avenue of relief similar to Code of Civil Procedure section 473 in providing relief from default …, and is not designed to resolve the issue of actual compliance with the claim filing requirements.” (Ngo, supra, 207 Cal.App.3d at 951.) “A trial court's granting of relief under section 946.6 is not a determination of compliance but one of excusing compliance. Similarly, a trial court's denial of relief is not a determination of lack of compliance but only that compliance will not be excused.” (Ibid.)

Petitioners argue that the government claim was timely presented to Respondents because Golden Jr. could not have, with reasonable diligence, discovered that Respondents caused his decubitus ulcers until after October 9, 2020, within six months of the filing of the government claim. (OB 3-6.) For a cause of action accruing in October 2020, Petitioners’ government claim filed March 26, 2021, was timely. (Gov. Code § 911.2(a).) The court does not grant relief under section 946.6 for a claim that is timely.

Petitioners’ government claim would be untimely if their causes of action accrued prior to September 26, 2020. Respondents determined that the claim was untimely and thus presumably found that the causes of action accrued before September 26, 2020. The court analyzes below whether Petitioners have shown an excuse from the claim requirement based on accrual prior to September 26, 2020.

Government Code section 911.2(a) states that “a claim relating to a cause of action for death or for injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action.” If a claimant fails to make a claim within six months pursuant to Gov. Code § 911.2, the claimant may make a written application to the board of the public entity for permission to present a late claim within a reasonable time but not to exceed one year from the accrual of the cause of action. (Gov. Code § 911.4(a)-(b).)

“Filing a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition . . . [and] [w]hen the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under Government Code section 946.6.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779.)

Based on an accrual date prior to September 26, 2020, Petitioner’s government claim was not presented within six months after accrual and was untimely.

On May 4, 2021, Petitioners’ counsel filed an application for leave to file late claim with AVH. (Van Allen Decl. Exh. 5-6.) The government claim alleges damages related to “severe pressure ulcers.” (Id. Exh. 3.) A stage 1 pressure ulcer was first noted upon Golden Jr.’s admission to AVH on or about June 18, 2020. (Van Allen Decl. ¶ 12.h and Exh. 15; compare Exh. 9-14 [“no open wounds or ulcers”].) The court has not found, and Respondents have not cited, evidence that Golden Jr. knew or had reason to know that AVH caused him to suffer pressure ulcers prior to June 18, 2020. Accordingly, Golden Jr.’s claim accrued, at the earliest, on June 18, 2020. The late-claim application was filed within one year of that accrual date. The application was made within a reasonable time, including, but not limited to, because of Golden Jr.’s ongoing health issues discussed below.

Gov. Code § 946.6(b) requires that the petition to the Court show each of the following: (1) that the late claim application made to the board was denied or deemed denied; (2) the reason for failure to present the claim within six months of the accrual of the cause of action; and (3) the contents of the claim as required by Gov. Code § 910.

Petitioner bears the burden of proving by a preponderance of the evidence that one of the statutory requirements under Government Code section 946.6(c) was met. (Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1410.) Government Code section 946.6(c) provides:

The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable:

(1) The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4.

….(4) The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time.

…. (6) The person who sustained the alleged injury, damage, or loss died before the expiration of the time specified in Section 911.2 for the presentation of the claim.

As discussed above, the late-claim application was presented within one year of alleged accrual of Petitioners’ cause of action and within a reasonable time.

Petitioners argue that, “[a]s more fully set forth in the declaration of Brian Van Allen, he was incapacitated from June 18, 2020 through his death on March 17, 2021.” (OB 8; see Van Allen Decl. ¶ 15.)

To obtain relief under section 946.6(c)(3), Petitioners must show that he “was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time.” (emphasis added.)

“A person can be disabled yet be able to file a timely claim. The decisions construing subdivision (c)(3) and its predecessor apply the disability provision in just this way: they analyze the extent of the injured person's disability and determine whether it was so great as to preclude filing a timely claim or authorizing someone to do so.” (Draper v. City of Los Angeles (1990) 52 Cal.3d 502, 509; see also Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1384 [“the type of disability which justifies relief … on the grounds of incapacity is an all-encompassing disability”]; Lutz v. Tri-County Hospital (1986) 179 Cal.App.3d 807, 811 [suggesting medical evidence is required to establish incapacity].)

Petitioners submit medical records suggesting that Golden Jr. was physically incapacitated and mentally incapacitated for much of the period of June 18, 2020, through his death. Illustrative examples include the following:

· June 25, 2020, discharge summary: “patient Is a 60-year-old male with medical history notable for chronic kidney disease, hypertension, CVA with right residual deficits status post J-tube placement and erosive esophagitis who was admitted to the hospital for altered mental status associated with bleeding from the J-tube site.” (Van Allen Decl. Exh. 21.) The form states that Golden Jr. was “unable to sign” the discharge instructions. (Ibid.)

· July 29, 2020, discharge summary: “This unfortunate 60 years old African-American male was admitted for sepsis due to UTI. He Is bedbound secondary to prior right sided stroke. He has also multiple decubitus ulcers, POA, some unstageable….” (Id. Exh. 23.)

· August 29, 2020, discharge summary: “Patient is a 60 YO African American male with prior right sided stroke; bed ridden at baseline with chronic indwelling Foley catheter. The patient came to the hospital with weakness; he is non verbal. The patient was found to be dehydrated, renal failure, UTI…. The patient is a poor historian.” (Id. Exh. 24.) The discharge instructions included “Home Health” arranged by the family. (Ibid.)

As argued in opposition, some of these same medical records suggest that Golden Jr. was not mentally incapacitated during all of the period from June 18, 2020, through September 26, 2020.[1] (Oppo. 5-9.) The June 25, 2020, discharge summary states that Golden Jr. was “doing well on day of discharge,” he discussed a discharge plan with the doctor, and he “verbalized full understanding and agreement with the discharge plan.” (Macrill Decl. Exh. A at 154.) On July 13, 2020, Golden Jr. had “no acute distress” and was “in understanding of discharge instructions… and agreement with discharge plans.” (Id. Exh. B at 822.) On July 29, 2020, Golden Jr. was “alert and oriented” and of normal psychiatric affect. He “endorsed understanding” of the discharge plan. (Id. Exh. C at 980.) The August 29 and September 24, 2020, discharge summaries similarly stated that Golden Jr. was alert and was “in understanding … and agreement with” discharge plan. (Id. Exh. D, E.)

While the medical records show that Golden Jr. suffered serious medical conditions during this period, and that he sometimes suffered an “altered mental state,” they also show periods of alertness and sufficient mental ability to discuss certain matters (discharge plan) with his physicians. Petitioners have not submitted a physician declaration or other non-medical evidence corroborating their claim that Golden Jr. was mentally incapacitated during the entire time period at issue.

However, Petitioners also contend that Golden Jr. was physically incapacitated during the claim filing period and “physically unable to type out a claim for damages form and sign it himself.” (Van Allen Decl. ¶ 17; Reply 5-8.) The medical records, summarized above, indeed support that Golden Jr. was bedridden, could not walk during this entire period, and was dependent on the care of other persons. (Van Allen Decl. Exh. 21-26.) In opposition, Respondents highlight medical records suggesting that Golden Jr. was, at times, mentally alert and not in “acute distress.” Respondents do not dispute that Golden Jr. suffered a stroke, severe ulcers, urinary track infection, renal failure, and other severe medical conditions that left him bedridden and physically dependent on his family and medical professionals for his care. (Oppo. 7-9; Macrill Decl. Exh. A-E.) Nor do Respondents show that Golden Jr. could have reasonably been expected to pursue a legal claim despite his physical incapacity. (Ibid.)

Since Golden Jr. was sometimes alert and able to discuss matters with his family and physician, Respondents imply that he could have authorized a representative to take legal action, even if he could not “physically travel down to a lawyer’s office.” (Van Allen Decl. ¶ 17.) The court is not persuaded by Respondents’ argument and record citations. Based on the court’s review, the medical records sufficiently show that Golden Jr.’s mental and physical condition from June 18, 2020, through his death was dire; that he was dependent on other persons for his care during the entire period; that he was physically incapacitated during that entire period; that he was mentally incapacitated for parts of the period; and that, if his government claim was untimely, it was untimely “by reason” of his incapacity.

The showing required of a petitioner seeking relief because of mistake, inadvertence, surprise, or excusable neglect is the same as required by CCP section 473(b). (Viles v. State (1967) 66 Cal.2d 24, 29.) “Although the statutes refer, as a requirement for relief, to 'mistake, inadvertence, surprise or excusable neglect,' only 'neglect' is qualified by the adjective 'excusable.' However, it is uniformly held that for relief on any or all of the stated grounds it must be shown that one's misconception was reasonable, or that it might have been the conduct of a reasonably prudent person under similar circumstances." (Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 539 n.1, quoting Shaddox v. Melcher (1969) 270 Cal.App.2d 598, 601).

“Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the circumstances. A person seeking relief must show more than just failure to discover a fact until too late; or a simple failure to act. He must show by a preponderance of the evidence that in the use of reasonable diligence, he could not discover the fact or could not act upon it.” (Department of Water & Power v. Sup.Ct. (2000) 82 Cal.App.4th 1288, 1296.) While policy favors trial on the merits, that policy cannot be applied indiscriminately to render statutory time limits ineffective. (Id. at 1293.)

“If a claimant can establish that physical and/or mental disability so limited the claimant's ability to function and seek out counsel such that the failure to seek counsel could itself be considered the act of a reasonably prudent person under the same or similar circumstances, excusable neglect is established. We recognize, however, that every claimant is likely to be suffering from some degree of emotional upset, and it takes an exceptional showing for a claimant to establish that his or her disability reasonably prevented the taking of necessary steps.” (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1385 [finding excusable neglect where petitioner “spent the first three months in the hospital, and the remainder of the six-month period confined to her bed at home” and “was unable to even sit up without assistance, and did not so much as leave her bedroom to watch television”].)

For the same reasons discussed above, the medical records sufficiently show that Golden Jr.’s mental and physical condition from June 18, 2020, through his death was dire and that he was dependent on other persons for his care during the entire period. Even if it could be concluded that Golden Jr. was not physically and/or mentally incapacitated during the entire period prior his death, his condition was sufficiently severe that a reasonable person in his circumstance could have neglected to file a timely government claim. The court finds that the alleged failure of Petitioners to present a timely government claim was through mistake, inadvertence, surprise, or excusable neglect.

Whether Respondent would be Prejudiced in the Defense of the Claim if the Court Relieves the Petitioner from the Requirements of Section 945.4

The burden of proof is on Respondents to show that it would be prejudiced in the defense of the claim if the court relieves Petitioners from the requirements of section 945.5. (See CCP § 946.6(c)(1); Moore v. State of Calif. (1984) 157 Cal.App.3d 715, 726-727.) Respondents make no argument and present no evidence of prejudice. Accordingly, Respondents fail to meet their burden of proof on that issue.

An untimely government claim may be excused if “[t]he person who sustained the alleged injury, damage, or loss died before the expiration of the time specified in Section 911.2 for the presentation of the claim.” (§ 946.6(c).) Golden Jr. denied on March 17, 2021. The government claim was filed March 26, 2021. If Petitioners’ causes of action accrued sometime between September 17 and 26, 2020, Petitioners were excused from the government claim requirement for the additional reason that Golden Jr. died before the expiration of the time specified in Section 911.2 for the presentation of the claim

The petition is GRANTED IN PART. Petitioners are not precluded from arguing in an action for damages that their government claim was timely filed. The court does not grant relief under section 946.6 for a claim that is timely. To the extent the government claim was untimely filed, Petitioners are excused from the claim filing requirement for the causes of action for damages to Golden Jr. alleged in the government claim. The court’s ruling does not apply to a wrongful death cause of action belonging to Golden Jr.’s heirs, including Petitioners Cleveland and Golden.

[1] As discussed, if Petitioners’ claim accrued on or after September 26, 2020, it would be timely. Thus, incapacity after that date is not relevant for this petition.