Duran v. County of San Bernardino CA4/2 (2022) · DecisionDepot
Duran v. County of San Bernardino CA4/2
California Court of Appeal Feb 16, 2022 No. E075647Unpublished
Filed 2/16/22 Duran v. County of San Bernardino CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
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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
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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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the plaintiff's petition for leave to file a late government claim and the denial of his motion to vacate the judgment, finding no abuse of discretion in the trial court's determination that the plaintiff failed to demonstrate excusable neglect.
Issues
Whether the trial court abused its discretion in denying a petition for leave to file a late government claim under Government Code section 946.6.
Whether the trial court properly denied a post-judgment motion for reconsideration and to vacate the judgment under Code of Civil Procedure section 473.
Whether the notice of appeal was sufficient to confer jurisdiction over the underlying judgment.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“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.”
“This tactical decision based on a misunderstanding of the law was not excusable mistake or neglect under section 473 that warranted vacating the judgment.”
“Once the trial court has entered judgment, it is without power to grant reconsideration.”