Filed 2/16/22 Duran v. County of San Bernardino CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JESUS DURAN,
Plaintiff and Appellant, E075647
v. (Super .Ct. No. CIVDS1934955)
COUNTY OF SAN BERNARDINO, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Rafael A. Arreola*
and Brian S. McCarville, Judges. Affirmed.
National Choice Lawyers and Koorosh K Shahrokh, for Plaintiff and Appellant.
Michelle D. Blakemore, County Counsel, and Laura L. Crane, Deputy
County Counsel, for Defendant and Respondent.
*Retired Judge of the San Diego Superior Court assigned by the Chief Justice pursuant to
art. VI, section 6 of the California Constitution.
1
I.
INTRODUCTION
After a car accident, Jesus Duran received medical care at Arrowhead Regional
Medical Center (Arrowhead), a hospital run by the County of San Bernardino (the
County). During a physical therapy session at Arrowhead, Duran fell and broke his
femur. Duran missed the six-month deadline to file a claim with Arrowhead, and
Arrowhead denied his request to file a late claim. He then petitioned the trial court for
leave to file a late claim. The trial court denied his petition and entered judgment against
him on January 31, 2019. The trial court then denied Duran’s motion to vacate the
judgment, and he timely appealed. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Duran was in a car accident at some point before September 2018. On September
12, 2018, he was receiving physical therapy at Arrowhead when the therapist dropped
him on the floor. Duran learned a few days later that he fractured his femur when he fell.
He had surgery the following day to treat the fracture and spent about a month and a half
recovering at Arrowhead. He then spent about five weeks at another hospital before
going home, where he was bedridden for about three months.
Duran “contacted about seven attorneys in the months after [his] injury” to discuss
bringing a claim against Arrowhead, but “[m]ost of the attorneys took a long time to get
back to [him], so that delayed [his] search.” One attorney told him that he “had to file a
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claim within six months, but the six-month period had already passed by then” and that
“it was too late to file a claim.”
In mid-August 2019, Duran contacted and retained attorney Koorosh Shahrokh.
Because by then Duran had missed the six-month deadline to file a claim against
Arrowhead (see Gov. Code, §§ 911.2, 945.4), Shahrokh filed an application to file a late
claim with Arrowhead on Duran’s behalf on September 6, 2019. Arrowhead denied the
application.
Duran petitioned the trial court for leave to file a late claim against Arrowhead
(see Gov. Code, § 946.6). Duran argued that he was unaware of the six-month deadline
and reasonably tried to retain a lawyer before it expired, but he could not do so because
of the attorneys’ “slow response times.”
The Honorable Brian S. McCarville denied the petition and entered judgment for
the County on January 31, 2020. Judge McCarville reasoned that Duran “had plenty of
notice to talk to lawyers” and did not “see any excusable neglect on the part of [Duran],
especially since he was talking to lawyer after lawyer.”
About three weeks later, Duran filed a “Motion to Set Aside Judgment/Order
Denying Petition for Relief.” In the notice of motion, Duran stated he was moving under
Code of Civil Procedure section 1008 (section 1008) “to reconsider the court’s decision,
made on or about January 21, 2020.” In the argument section of his motion, however,
Duran did not mention section 1008, but instead moved to set aside the judgment under
Civil Code section 473 (section 473) based on Shahrokh’s mistake or excusable neglect.
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To support the motion, Duran provided evidence he did not submit with his
petition, including his phone records, to show that he contacted multiple attorneys within
six months of his fall at Arrowhead. Shahrokh filed a declaration with the motion in
which he stated that he did not submit that evidence because he did not believe Duran had
to prove that he contacted an attorney within six months of his injury and that the trial
court had misunderstood controlling precedent. Duran thus argued that he did not
provide evidence with his petition to prove that he contacted attorneys during that
timeframe because of Shahrokh’s mistake or excusable neglect.
The Honorable Rafael S. Arreola denied Duran’s motion for reconsideration
because he did not provide “new facts, law, or circumstances to warrant consideration,”
and the court lacked jurisdiction to consider the motion because judgment had already
entered. Judge Arreola denied Duran’s motion to vacate because there was no excusable
neglect. In Judge Arreola’s view, Shahrokh made a “decision to proceed without
mentioning” that Duran had contacted several attorneys before the six-month deadline.
Judge Arreola noted that Shahrokh thought case law “did not require any contact with an
attorney” and so his failure to provide evidence of Duran’s calls with attorneys was a
tactical decision, not excusable mistake or neglect. Duran timely appealed.
III.
DISCUSSION
Duran argues the trial court erred in denying his petition and his motion to vacate
and for reconsideration. We disagree.
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A. Jurisdiction
We first address the County’s argument that we lack jurisdiction over Duran’s
appeal of the judgment because his notice of appeal was insufficient. On the first page of
Duran’s notice of appeal, he checked the box stating he appeals “[a]n order after
judgment,” but does not check any other box. The County thus argues his notice of
appeal is deficient because it is unclear whether he appeals the judgment.
In general, a notice of appeal that omits reference to the judgment or order
challenged on appeal is insufficient to confer jurisdiction on this court. (Norman I. Krug
Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.) However,
“‘notices of appeal are to be liberally construed so as to protect the right of appeal if it is
reasonably clear what appellant was trying to appeal from, and where the respondent
could not possibly have been misled or prejudiced.’” (D’Avola v. Anderson (1996) 47
Cal.App.4th 358, 361.) The County notes that this rule may not apply when there are
several appealable judgments and/or orders and the notice of appeal does not expressly
identify each order appealed from. (See e.g., Filbin v. Fitzgerald (2012) 211 Cal.App.4th
154, 173.) The County thus argues that Duran’s notice of appeal is deficient because it
states only that he is appealing an order after judgment entered on August 11, 2020 (the
order denying his motion to vacate), but does not mention the judgment that he
challenges on appeal.
We disagree. Duran’s motion to vacate challenged the judgment as legally
incorrect and unsupported by the evidence. By appealing the trial court’s order denying
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his motion to vacate, Duran necessarily challenges the judgment itself. The judgment
was embraced by the order denying the motion to vacate. The County does not contend
that it was misled or prejudiced by any errors or ambiguities in Duran’s notice of appeal.
(See Luz v. Lopes (1960) 55 Cal.2d 54, 59-60.) We therefore construe Duran’s notice of
appeal as appealing the judgment as well as the order denying his motion to vacate the
judgment. (Cf. Don v. Cruz (1982) 131 Cal.App.3d 695, 699-700 [construing notice of
appeal from order denying motion to vacate default judgment as appealing the judgment];
cf. Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21, 30 [construing notice of appeal from
order confirming arbitration award and denying petition to vacate the award as appealing
the judgment].)
B. Motion to Vacate and For Reconsideration
In his opening brief, Duran does not mention that his post-judgment motion was in
part a motion to vacate under section 473. In fact, he does not cite that statute anywhere
in his opening brief. Instead, he argues only that it was a motion for reconsideration
under section 1008. We therefore need not discuss the motion insofar as it was brought
under section 473 and need only address the motion insofar as it was a motion for
reconsideration.
At oral argument, Duran’s counsel requested that we construe the motion as a
motion to vacate under section 473(b) as well. We need not do so because “[w]e do not
consider arguments that are raised for the first time at oral argument.” (Haight Ashbury
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Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554, fn.
9.) Duran forfeited the argument by failing to raise it in his opening brief. (Ibid.)
Even if Duran had not forfeited his argument that the trial court erred by denying
his motion under section 473, we reject it on the merits. Duran argued that the judgment
should be set aside under section 473 due to Shahrokh’s failure to include information in
his petition about when Duran contacted attorneys after his injury. Duran claimed that
this constituted excusable attorney mistake under section 473 justifying relief.
We disagree. In his declaration in support of the section 473 motion, Shahrokh
stated that he did not submit evidence of Duran’s phone calls in support of the petition
because of his understanding of controlling precedent. Shahrokh did not think such
evidence was necessary, so he intentionally did not include any in support of the petition.
This tactical decision based on a misunderstanding of the law was not excusable mistake
or neglect under section 473 that warranted vacating the judgment. (See Licudine v.
Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 929 [section 473 relief not
warranted based on attorney’s “strategic and tactical” decision]; Huh v. Wang (2007) 158
Cal.App.4th 1406, 1423-1424 [“Discretionary relief need not be granted for ‘errors by
[counsel]. . . in failing to calendar and appear’ at a hearing.”]; Garcia v. Hejmadi (1997)
58 Cal.App.4th 674, 681 [“Conduct falling below the professional standard of care, such
as failure to timely object or to properly advance an argument, is not therefore excusable.
To hold otherwise would be to eliminate the express statutory requirement of excusability
7
and effectively eviscerate the concept of attorney malpractice.”].) The trial court
therefore properly denied Duran’s section 437 motion.
Duran suggests that Judge McCarville had to decide the reconsideration motion,
Judge Arreola had to continue it so that Judge McCarville could decide it, and that Judge
Arreola did not have the authority to decide it himself. Duran did not make these
arguments in the trial court, so they are forfeited. (366-386 Geary St., L.P. v. Superior
Court (1990) 219 Cal.App.3d 1186, 1199 [“[R]eal parties failed to adequately raise this
issue in the superior court, and it may not be raised for the first time on appeal.”].)
Durant next argues that Judge Arreola incorrectly found that he did not have
jurisdiction to decide the motion for reconsideration. We disagree. “Once the trial court
has entered judgment, it is without power to grant reconsideration.” (APRI Ins. Co. v.
Superior Court (1999) 76 Cal.App.4th 176, 182; see also Farmers Insurance Exchange v.
Superior Court (2013) 218 Cal.App.4th 96, 98 [noting general 10-day deadline for
motion for reconsideration].) The trial court entered judgment nearly a month before
Duran filed his motion for reconsideration. Because the trial court lacked jurisdiction to
consider a motion for reconsideration after judgment was entered, Judge Arreola properly
denied Duran’s motion for reconsideration for lack of jurisdiction. We therefore need not
address the parties’ remaining arguments about the motion.
C. Petition to File Late Claim
Duran contends Judge McCarville erroneously denied his petition to file a late
claim against Arrowhead. We find no abuse of discretion.
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Under the Government Claims Act (§ 810, et seq.), a claimant may not file a
personal injury suit for money damages against a public entity like Arrowhead “unless he
or she first presents a written claim to the entity within six months of the time [his or] her
cause of action accrues, and the entity then denies the claim.” (S.M. v. Los Angeles
Unified School District (2010) 184 Cal.App.4th 712, 717.) If the claimant fails to file a
timely claim, the claimant must apply to the public entity for leave to present a late claim
within one year after the accrual of the cause of action. (Gov. Code, § 911.4, subds. (a)-
(b).) If the public entity denies the application to file a late claim, the claimant may
petition the superior court for leave to file a late claim. (Gov. Code, § 946.6, subds. (c)-
(d).) The petition must be filed no later than six months after the public entity denies the
claimant’s application to file a late claim. (S.M., supra, at p. 717.)
Under Government Code section 946.6, subdivision (c), the trial court must grant
a petition for relief from the claim requirement “if the claimant demonstrates by a
preponderance of the evidence the application to the public entity . . . was made within a
reasonable time not exceeding one year after the accrual of the cause of action, and one
of the other four requirements listed in Government Code section 946.6, subdivision (c)
is met.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1777.)
“The decision to grant or deny a petition seeking relief under [Government Code]
section 946.6 is within the sound discretion of the trial court and will not be disturbed on
appeal except for an abuse of discretion.” (Bettencourt v. Los Rios Community College
Dist. (1986) 42 Cal.3d 270, 275.) However, we “will be more rigorous in examining the
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denial of such relief than its allowance.” (County of Santa Clara v. Superior Court
(1971) 4 Cal.3d 545, 552.)
Duran argues his “failure to present the claim was through . . . excusable neglect.”
(Gov. Code, § 946.6, subd. (c)(1).) In particular, he argues that, as a layperson, he was
unaware of the six-month deadline to file a claim against Arrowhead and “did not know
how to file any court documents to pursue [his] claim.”
A claimant “may not successfully argue excusable neglect when he or she fails to
take any action in pursuit of the claim within the six-month period. The claimant must, at
a minimum, make a diligent effort to obtain legal counsel within six months after the
accrual of the cause of action.” (Munoz v. State of California, supra, 33 Cal.App.4th at
pp. 1778-1779, italics added.)
For instance, in People ex rel. Dept. of Transportation v. Superior Court (2003)
105 Cal.App.4th 39, the claimant was not entitled to relief from the six-month deadline to
file a claim because he made no effort to retain an attorney for over seven months after
his injury. By contrast, the claimant in Ebersol v. Cowan (1983) 35 Cal.3d 427 sought
legal advice on the day of her injury and spoke with nine attorneys before the six-month
deadline to file a claim expired, yet they all told her that she had no claim. (Ebersol v.
Cowman, supra, 35 Cal.3d at p. 439.) The claimant persisted until she found an attorney
who recognized she had a valid claim. (Ibid.) Our Supreme Court held the claimant was
entitled to file a late claim because she diligently tried to retain counsel within six months
of her injury. (Ibid.)
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In his declaration in support of his petition, Duran stated that he contacted seven
attorneys, but one of them told him he had missed the six-month deadline. As for the
other six attorneys, Duran did not identify when he contacted them. He only stated that
1
he contacted them “in the months after [his] injury.” Duran also did not say that he
spoke with an attorney about the substance of his claim. Instead, he only “contacted” the
attorneys, but “[m]ost of the attorneys took a long time to get back to [him].”
In short, Duran tried to obtain counsel after his injury, but we do not know
whether he did so before the six-month deadline expired. We also do not know what his
efforts entailed beyond “contacting” several attorneys and learning from one of them that
he had missed the deadline. (See Ebersol v. Cowman, supra, 35 Cal.3d at pp. 435-436
[plaintiff excused from claim-filing deadline in part because multiple attorneys told her
she had no case].) On this record, the trial court did not abuse its discretion in denying
Duran’s petition to file a late claim against Arrowhead.
Duran suggests that even if he did not diligently try to retain an attorney within six
months of his injury, he may still bring a late claim against Arrowhead under Barragan v.
County of Los Angeles (2010) 184 Cal.App.4th 1373 and DeVore v. Department of
California Highway Patrol (2013) 221 Cal.App.4th 454 (DeVore). We disagree.
1
At oral argument, Duran’s counsel argued that Duran stated in his declaration in
support of his petition that he contacted an attorney 25 days after his injury. Counsel is
incorrect. Duran did not state anywhere in that declaration that he contact an attorney
within 25 days of his injury, but instead stated only that he “contacted about seven
attorneys in the months after my injury.”
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Barragan held that “[i]f 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.” (Barragan v.
County of Los Angeles, supra, 184 Cal.App.4th at p. 1385.) Duran does not contend that
his injuries precluded him from seeking out counsel, so Barragan does not apply here.
In DeVore, the claimants’ decedent was killed by a drunk driver, who was charged
with vehicular manslaughter. (DeVore, supra, 221 Cal.App.4th at p. 457.) About ten
months later, the claimants learned during the driver’s preliminary hearing that a
California Highway Patrol (CHP) Officer Justin Sherwood had pulled the driver over
about two hours before he struck and killed the decedent. (Id. at pp. 457-458.) The
DeVore court held the claimants were excused from the six-month deadline to file a claim
against CHP because “nothing in the accident report or the records of the CHP would
have led [the claimants] or an attorney acting with reasonable diligence to discover the
earlier traffic stop or the identity of defendant Sherwood (and the audio/video recording
from his patrol car).” (Id. at p. 462.) DeVore does not apply here because Duran does
not dispute he was aware he had a potential claim against Arrowhead after his fall.
Because Duran did not diligently try to retain counsel within six months after his
fall, the trial court did not abuse its discretion in denying his petition.
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IV.
DISPOSITION
The judgment and the order denying Duran’s motion to vacate the judgment and
for reconsideration are affirmed. The County may recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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Duran v. County of San Bernardino CA4/2
Combined Opinion