Filed 9/19/22 Solarzano v. Zweig CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PATRICIA SOLARZANO et al., B309953
Plaintiffs and Appellants, Los Angeles County
v. Super. Ct. No.
19AVCV00910
STEPHAN ZWEIG et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Brian C. Yep, Judge. Affirmed.
Law Offices of Ashton Watkins and Ashton R. Watkins for
Plaintiffs and Appellants.
Schuler & Brown, Jack Schuler; Pollak, Vida & Barer,
Daniel P. Barer, and Hamed Amiri Ghaemmaghami for
Defendant and Respondent County of Los Angeles.
_______________________________________
INTRODUCTION
Patricia Solarzano and Mike Kelly (collectively, plaintiffs)
appeal from the order denying their petition under Government
Code1 section 946.6, in which they sought relief from the
requirement that they timely file claims with the County of Los
Angeles (County) prior to bringing a suit for damages. We
conclude that the trial court did not abuse its discretion in
denying the petition and affirm the order.
BACKGROUND
In October 2018, Solarzano consulted with Dr. Stephan
Zweig at a County facility, High Desert Regional Health Center,
about a hernia procedure. Zweig is or was a County employee. On
December 19, 2018, Zweig performed Solarzano’s hernia surgery
at High Desert Regional Health Center; there are no notes of any
complications. The following day, Zweig performed post-surgical
care for Solarzano and did not indicate any complications during
or after the procedure. On December 28, 2018, however,
Solarzano was rushed to Antelope Valley Hospital for emergency
treatment and she has been in and out of the hospital ever since.
Solarzano and Kelly are married to each other “and enjoyed
consortium and conjugal rights” before December 2018.
In October 2019, plaintiffs filed separate government tort
claims with the County for damages alleging injuries arising out
of Solarzano’s hernia surgery. Specifically, plaintiffs alleged that
Zweig breached the standard of care in providing medical
services to Solarzano and her resulting injuries have negatively
affected her relationship with Kelly. Because the claims were
1 All undesignated statutory references are to the Government Code.
2
“not presented within six months after the event or occurrence as
required by law[,]” the County denied the claims on November 6,
2019.
On December 18, 2019, plaintiffs sued Zweig and High
Desert Regional Health Center for negligence and loss of
consortium.2 A few days later, plaintiffs separately applied to the
County for leave to present late claims under section 911.4.
Plaintiffs alleged “[t]he reason for the delay in presenting the
amended [sic] claim is due to mistake, surprise, inadvertence,
and/or excusable neglect.” They explained that they “did not
initially suspect malpractice or wrongdoing.” Further, plaintiffs
alleged that “Solorzano was also physically incapacitated during
most of the period when the claim should have been investigated
and presented.” Solarzano and Kelly each retained an attorney in
August 2019 when they “first began to suspect malpractice or
wrongdoing. Patricia Solorzano discovered that she would need
additional medical care to fix the problems caused by High Desert
Regional Health [Center] and Dr. Stephan Zweig.” The County
denied the applications to present late claims on January 17,
2020.
On July 17, 2020, plaintiffs petitioned the trial court for an
order under section 946.6 relieving them of the requirement of
presenting a timely government claim. In the petition, they
asserted they were entitled to relief based on mistake,
inadvertence, surprise, or excusable neglect because they did not
suspect and had no reason to suspect malpractice during the first
2The County asserted it was erroneously sued as High Desert Regional
Health Center. Plaintiffs did not dispute that assertion. Zweig is not a
party to this appeal.
3
nine months following Solarzano’s hernia procedure. In addition,
they asserted their “failure to present the claim was also through
[Solarzano’s] physical incapacity.” Plaintiffs contended
“Solorzano has been in and out of the hospital dealing with the
complications arising from this procedure for nineteen months.
She was in no condition to appreciate the gravity of her situation
or whether Defendants had committed malpractice. She was
physically incapacitated.” The petition did not allege that Kelly
was also incapacitated. In support of the petition, plaintiffs filed
their declarations and the declaration of their attorney, Ashton
Watkins. They did not, however, submit a physician’s
declaration, medical records, or any other evidence to corroborate
plaintiffs’ contention that Solarzano was physically incapacitated
or had been in and out the hospital for nineteen months.
The County opposed plaintiffs’ petition. Among other
things, it argued that plaintiffs submitted no medical
declarations and did not explain how Solarzano’s purported
incapacity prevented them from pursuing the matter or from
retaining an attorney.
After holding a hearing on October 20, 2020,3 and taking
the matter under submission, the court issued a minute order
denying the petition. On November 25, 2020, the court signed an
order denying the petition. The court’s order noted that the
County was erroneously sued as High Desert Regional Health
Center.
3 Plaintiffs’ trial counsel did not appear at the hearing.
4
Plaintiffs timely appeal from the order denying their
petition.4
DISCUSSION
1. The Government Claims Act and Relief from the Claim
Presentation Requirement
The Government Claims Act (§ 810, et seq.) provides that
no person may sue a public entity for money damages based on
personal injury “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 Dist. (2010) 184 Cal.App.4th 712, 717; §§
911.2, 945.4.) A person who fails to file a timely claim must apply
to the public entity for leave to present a late claim within one
year after the accrual of the cause of action. (§ 911.4, subds. (a)–
(b).) If the public entity denies the application to present a late
claim (or it is deemed denied) (§ 911.6), the claimant may within
six months of that denial petition the superior court for relief
4 An order denying a petition under section 946.6 is appealable.
(Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, fn. 8.) Here, plaintiffs
filed their notice of appeal from the court’s November 19, 2020 minute
order denying their petition and directing defendants to submit an
order. We treat plaintiffs’ premature notice of appeal as timely filed
immediately after entry of the signed November 25, 2020 order
denying the petition. (Cal. Rules of Court, rule 8.104(d).) To the extent
plaintiffs also challenge the court’s subsequent dismissal of the
lawsuit, they forfeited that challenge by failing to provide us with an
adequate record and any legal authority or cogent argument
explaining why the court erred.
5
from the claim presentation requirement altogether under
section 946.6, subdivisions (a) and (b).
Under section 946.6, subdivision (c), the court shall relieve
the petitioner from the claim presentation requirement if the
application for leave to present a late claim was filed with the
public entity no later than one year after the cause of action
accrued, and at least one of four further conditions is
satisfied.5 As relevant here, two of those conditions are that (1)
the injured person was physically or mentally incapacitated
during the six-month claim presentation period “and by reason of
that disability failed to present a claim during that time”
(§ 946.6, subd. (c)(3)), and (2) “[t]he failure to present the claim
was through mistake, inadvertence, surprise, or excusable
neglect” (§ 946.6, subd. (c)(1)). (Lincoln Unified School Dist. v.
Superior Court (2020) 45 Cal.App.5th 1079, 1089 (Lincoln).)
“Before a court may relieve a claimant from the statutory
tort claim filing requirements, the claimant must demonstrate by
a preponderance of the evidence both that the application to the
public entity for leave to file a late claim was presented within a
reasonable time and that the failure to file a timely claim was
due to mistake, inadvertence, surprise or excusable neglect.”
(Department of Water & Power v. Superior Court (2000) 82
Cal.App.4th 1288, 1293 (DWP); Tammen v. County of San Diego
County (1967) 66 Cal.2d 468, 474 (Tammen).)
5 In 2021, after plaintiffs filed the notice of appeal, section 946.6 was
amended to add additional grounds for relief, and to redesignate
former subdivision (c)(3) as subdivision (c)(4), and redesignate former
subdivision (c)(4) as subdivision (c)(6). The parties do not contend that
the amendment affects this appeal. For convenience, we refer to the
former subdivision numbers throughout this opinion.
6
We review the denial of a petition for relief under
section 946.6 for abuse of discretion. (Lincoln, supra, 45
Cal.App.5th at p. 1089.) “Abuse of discretion is shown where
uncontradicted evidence or affidavits of the plaintiff establish
adequate cause for relief.” (Munoz v. State of California (1995) 33
Cal.App.4th 1767, 1778.)
The underlying principle of section 946.6 is that whenever
possible cases be heard on their merits, and any doubts which
may exist should be resolved in favor of the application. (Ebersol
v. Cowan, supra, 35 Cal.3d at p. 435.) We therefore review an
order denying a petition under section 946.6 more rigorously than
an order granting such a petition. (Ibid.)
2. Basis for Relief
Plaintiffs contend that the court abused its discretion by
denying their petition because they demonstrated by a
preponderance of the evidence that the failure to present a timely
claim was the result of mistake, inadvertence, surprise, or
excusable neglect and Solarzano’s physical incapacity.
To obtain relief under section 946.6, subdivision (c)(1),
“[t]he mere recital of mistake, inadvertence, surprise or excusable
neglect is not sufficient to warrant relief. Relief on grounds of
mistake, inadvertence, surprise or excusable neglect is available
only on a showing that the claimant’s failure to timely present a
claim was reasonable when tested by the objective ‘reasonably
prudent person’ standard.” (DWP, supra, 82 Cal.App.4th at p.
1293.) Under the reasonably prudent person standard,
“[e]xcusable neglect is that neglect which might have been the act
of a reasonably prudent person under the circumstances.” (Id. at
p. 1296.) When relief is sought based on mistake, because of the
reasonably prudent person standard “it is not every mistake that
7
will excuse a default, the determining factor being the
reasonableness of the misconception.” (Shank v. County of Los
Angeles (1983) 139 Cal.App.3d 152, 157, italics added.)
A showing of reasonable diligence is required to establish
that the petitioner acted as a reasonably prudent person. When
excusable neglect is claimed based on ignorance of a fact or
failure to act on it, “[a] person seeking relief must show more
than just failure to discover a fact until too late; or a simple
failure to act. He [or she] must show by a preponderance of the
evidence that in the use of reasonable diligence, he [or she] could
not discover the fact or could not act upon it.” (DWP, supra, 82
Cal.App.4th at p. 1296.) Similarly, when mistake is claimed,
“[t]he party seeking relief based on a claim of mistake must
establish he [or she] was diligent in investigating and pursuing
the claim … .” (Id. at p. 1293.) Under this standard, “ ‘[f]ailure to
discover the alleged basis of the cause of action in time is … not a
compelling showing in the absence of reasonable diligence
exercised for the purpose of discovering the facts.’ ” (Harrison v.
County of Del Norte (1985) 168 Cal.App.3d 1, 7 (Harrison).)
Further, “the mere ignorance of the time limitation for filing
against a public entity is not a sufficient ground for allowing a
late claim.” (Ibid.)
In most cases, a petitioner 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, including trying
to retain counsel. (People ex rel. Dept. of Transportation v.
Superior Court (2003) 105 Cal.App.4th 39, 44 (Dept. of
Transportation).) In certain exceptional cases, however, excusable
neglect may be found based on extreme instances of physical or
mental disability, or on debilitating emotional trauma, even if the
8
petitioner failed to take any action whatsoever in the initial six-
month period. (See, e.g., Barragan v. County of Los Angeles
(2010) 184 Cal.App.4th 1373, 1385–1386 (Barragan) [trial court
did not abuse its discretion in excusing late claim by petitioner
who became quadriplegic from a car accident, and who for six
months had to relearn life skills, could not sit up without
assistance, and did not leave her bedroom]; County of Santa
Clara v. Superior Court (1971) 4 Cal.3d 545, 552 [affirming trial
court ruling excusing late claim by parents who were emotionally
traumatized by their son’s death in the middle of his own trial
seeking damages for severe injuries suffered in a car accident].)
Under this line of cases, “[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, supra, 184 Cal.App.4th at p.
1385.) However, because “every claimant is likely to be suffering
from some degree of emotional upset, … it takes an exceptional
showing for a claimant to establish that his or her disability
reasonably prevented the taking of necessary steps.” (Ibid., italics
added.) A petitioner makes an exceptional showing by
establishing that the disability has “substantially interfered with
his [or her] ability to function in daily life, take care of his [or her]
personal and business affairs, or seek out legal counsel.” (Dept. of
Transportation, supra, 105 Cal.App.4th at p. 46.) “The
Legislature obviously did not believe these conditions could
provide an escape hatch from the claim-filing requirement, as
evidenced by the fact that ‘incapacitation’ is listed as a separate
ground for relief, and is available only where the condition exists
9
throughout the entire course of the claim-filing period. (§ 946.6,
subd. (c)(3).)” (Ibid.)
3. The trial court did not abuse its discretion in denying
the petition.
As a preliminary matter, none of the cases cited by
plaintiffs to support their contention that they failed to present
timely claims due to surprise, inadvertence, or mistake of fact,
involves section 946.6. And the only section 946.6 case cited by
plaintiffs to support their excusable neglect claim, Kaslavage v.
West Kern County Water Dist. (1978) 84 Cal.App.3d 529, is easily
distinguishable. Kaslavage was injured when he dove from a pipe
into a canal. An investigator began an investigation and learned
that the canal was managed and controlled by the Buena Vista
Water District. A claim was filed against the Buena Vista Water
District. Kaslavage learned shortly after the claim period expired
that the pipe was owned by a different public entity than the
entity which owned the canal. The appellate court found the
failure to identify the second public entity which owned the pipe
was excusable because Kaslavage made a substantial
investigation. (Id. at p. 536.) Indeed, the investigator spent “part
of two days in investigation, including an on-site inspection and a
check of the official records of the assessor’s office. He also
questioned four different public agencies in an attempt to obtain
information.” (Id. at p. 535.) Here, we find nothing in the record
to suggest that plaintiffs or their counsel made any investigation
whatsoever during the required six-month claims filing period.
And while section 946.6 is remedial and to be liberally
construed in the claimant’s favor (Bettencourt v. Los Rios
Community College Dist. (1986) 42 Cal.3d 270, 275), the
petitioner must nevertheless demonstrate the elements of such
10
relief by a preponderance of the evidence. (Rodriguez v. County of
Los Angeles (1985) 171 Cal. App. 3d 171, 175.) Thus, a court will
not abuse its discretion in denying a petition supported only by
conclusory declarations or declarations by counsel who are not
qualified to give expert opinions. (See id. at pp.174–175 [it is
proper to deny relief under section 946.6 where there is no
competent evidence before the trial court].) In this case, plaintiffs’
declarations are conclusory and do little more than parrot the
language of the statute by stating, for example, “The reason for
the delay in presenting the claim is due to mistake, surprise,
inadvertence, and/or excusable neglect.” We also note that
claimants who have missed the claim filing deadline often assert,
as plaintiffs do here, that as lay individuals, they simply did not
know that they had a potential cause of action against a public
entity or that they needed to file a government claim against the
entity. “However, lack of knowledge alone is not considered a
sufficient basis for relief, when the claimant did not make an
effort to obtain counsel.” (Barragan, supra, 184 Cal.App.4th at p.
1383.)
As for the declaration made by plaintiffs’ counsel, there is
no showing that counsel had any percipient knowledge of any of
the underlying facts, or that counsel was qualified to give an
opinion as an expert witness concerning Solarzano’s purported
incapacity. Counsel also conceded that plaintiffs’ cause of action
“accrued” on December 28, 2018 and that plaintiffs did not file
their initial government claims until more than nine months
later, October 18, 2019.6
6Plaintiffs’ counsel also asserted, inconsistently, that “the cause of
action accrued and the deadline to file papers began on or after”
December 28, 2018, and that the time to file papers “was extended due
11
In short, when tested by the reasonably prudent person
standard (DWP, supra, 82 Cal.App.4th at p. 1293), the court
could properly conclude that plaintiffs did not meet their burden
of showing entitlement to relief under section 946.6, subdivision
(c)(1) for mistake, inadvertence, surprise, or excusable neglect.
Plaintiffs also maintain that the court abused its discretion
by failing to grant the petition because Solarzano was
incapacitated during the six-month claim presentation period.
The court did not expressly rule on the incapacity claim or, for
that matter, any other claim.7 In the absence of express findings,
we presume under the doctrine of implied findings that “the trial
court impliedly made every factual finding necessary to support
its decision.” (Fladeboe v. American Isuzu Motors, Inc. (2007) 150
Cal.App.4th 42, 48.)
Section 946.6 provides that a petitioner is relieved from the
claim presentation requirement (assuming all other statutory
conditions are met) if the injured person was physically or
mentally incapacitated during the six-month claim presentation
period “and by reason of that disability failed to present a claim
to the delayed discovery rule.” If plaintiffs are suggesting the court
could, in a section 946.6 proceeding, find that their claims for damages
were timely under the delayed discovery doctrine, they are mistaken.
(See, e.g., Rason v. Santa Barbara City Housing Authority (1988) 201
Cal.App.3d 817, 822 [“The petition was the improper vehicle to argue
that the claim was timely.”].)
7 Although plaintiffs contend that the court erred by failing to explain
its reasons for denying the petition, they do not cite any legal authority
supporting that contention.
12
during that time.” (§ 946.6, subd. (c)(3), italics added; Draper v.
City of Los Angeles (1990) 52 Cal.3d 502, 509 [“The subdivision is
designed to assure both that the claimant was disabled during
the filing period and that the disability was the reason the
claimant could not file timely”].) That is, “[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, at p. 509.)
Here, the court did not abuse its discretion by implicitly
finding that plaintiffs’ failure to file a timely claim did not result
from Solarzano’s physical incapacity during the six-month claim
presentation period.
First, as noted, plaintiffs did not submit any medical
evidence corroborating Solarzano’s physical incapacity allegation.
(See Harrison, supra, 168 Cal.App.3d at p. 9 [trial court properly
denied petition for relief based on allegation of physical
incapacity when “appellant’s declaration contained only general
averments that he was physically incapacitated during the 100
days following his accident, unsupported by any physicians’
affidavits”].) Second, Solarzano’s declaration states that she was
physically incapacitated during “most of the period when the
claim should have been investigated and presented.” (Italics
added.) And section 946.6, subdivision (c)(3) permits a petitioner
relief from the claim filing requirements only upon a finding by
the court that the petitioner 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 such disability
13
failed to present a claim during such time[.]’ ” (Harrison, supra,
168 Cal.App.3d at p. 8.) Third, plaintiffs presented no evidence
that Solarzano was so incapacitated that Kelly would have been
unable to present a claim on her behalf. Finally, notwithstanding
her purported incapacity, Solarzano was able to make a
declaration in support of plaintiffs’ section 946.6 petition while in
the hospital.
In sum, the court did not abuse its discretion by concluding
plaintiffs did not demonstrate that their failure to comply with
the claim presentation requirement was the result of mistake,
inadvertence, surprise, or excusable neglect, and/or Solarzano’s
physical incapacity. Because the court’s ruling on those
requirements was not an abuse of discretion, we need not and do
not address whether the County failed to carry its burden of
demonstrating that it would be prejudiced by a late filing. (See
Tammen, supra, 66 Cal.2d at p. 478.)
14
DISPOSITION
The order is affirmed. Respondent County of Los Angeles
shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
15