A California appeals court has affirmed the denial of a plaintiff’s petition for extra time to file a claim against a school district related to a concussion the plaintiff suffered in a high school football game.
The incident in question occurred on October 27, 2011 when Johnny McWhorter (J.M.), a 15-year-old student at Fountain Valley High School, suffered a concussion when he was tackled during a school-sponsored football game. The hit left “plaintiff unable to get up off the ground due to the head trauma he sustained as a result of the contact,” according to the complaint. He allegedly participated in full-contact football practice “several days later without being cleared to do so by a medical doctor.” He began to experience headaches, dizziness, and nausea, according to the court.
J.M.’s causes of action for negligence and personal injury against the district accrued no later than October 31, 2011, when a doctor diagnosed J.M. with “double concussion syndrome.” J.M. did not present a claim to the court within six months of the date of accrual of his causes of action, as required by the Government Claims Act (GCA). He retained counsel and, on October 24, 2012, his counsel presented an application for leave to present a late claim pursuant to the GCA on the ground that J.M. was a minor for 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 under section 946.6 of the GCA to the superior court for an order relieving him from the claim requirement. The superior court denied J.M.’s petition as untimely because it was filed more than six months after the date on which his application to present a late claim was deemed to have been denied by the district’s inaction. J.M. appealed.
In its analysis, the appeals court focused on the relevant provisions of the GCA. The Act establishes a uniform claims procedure, making the filing of a claim within a brief period of the injury a prerequisite to maintaining a suit for damages. Further, it sets forth the procedure for presenting a personal injury claim against a public entity, and the fact that the claimant must present a claim to the board of the public entity within six months of the accrual of the cause of action.
There is a process under the GCA by which an injured party may present a written application for leave to present a late claim. (§ 911.4, subd. (a).) The application for leave to present a late claim, including a copy of the proposed claim, must be presented to the board within a reasonable time not to exceed one year after the accrual of the cause of action and must state the reason for the delay in presenting the claim. (§ 911.4, subd. (b).)
The plaintiff relief on E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736 [125 Cal. Rptr. 3d 200 in its appeal. In that case, the plaintiff presented a timely application for leave to present a late claim on the ground that she was a minor at all relevant times. (Id. at p. 740.) Ultimately, the litigation percolated up to the state appeals court, which “concluded the 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.) 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. (Ibid.) Because the plaintiff satisfied the claim requirement, the appeals court 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 appeals court concluded the plaintiff’s lawsuit was timely under section 945.6, subdivision (a)(1) because the lawsuit was filed within six months of the board’s denial of her application for leave to present a late claim. (E.M., supra, at p. 748.)
“We disagree with E.M. to the extent it stands for the proposition that a plaintiff who was a minor at 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),” wrote the appeals court in the instant case. … “We believe the E.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 present a 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.”
Among the other relevant portions of the opinion was one centering on the plaintiff’s argument that the court “look beyond the language of sections 911.6 and 946.6 and consider public policy favoring trial on the merits,” according to the appeals court.
“The primary purpose of the GCA is to provide the public entity with notice of a claim to facilitate investigation and settlement without trial, if appropriate. (City of Stockton v. Superior Court, supra, 42 Cal.4th at pp. 744—745; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455 [115 Cal. Rptr. 797, 525 P.2d 701].) The Legislature effectuated and expressed that purpose in the plain language of the GCA, which includes a detailed procedure for ‘the advance filing of a claim as a prerequisite to filing suit’ and deadlines for ‘both the filing of claims and the commencement of litigation.’ (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 remedial statute, it is to be construed in 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 December 8, 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 requirement under section 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.)”
J.M., a Minor, etc. v. Huntington Beach Union High School District; Ct. App. Calif., 4th App. Dist., G049773; 9/30/15
Attorneys of Record: (for Plaintiff and Appellant) Gusdorff Law, Janet R. Gusdorff; Russell & Lazarus and Christopher E. Russell. (for Defendant and Respondent) McCune & Harber, Stephen M. Harber and Dominic A. Quiller.
