Gilbert v. Victim Compensation and Government Claims Bd. CA5

Filed 4/8/13 Gilbert v. Victim Compensation and Government Claims Bd. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

DONALD GILBERT, F064526 Plaintiff and Appellant, (Super. Ct. No. 09CECG01362) v.

VICTIM COMPENSATION AND OPINION GOVERNMENT CLAIMS BOARD et al.,

Defendants and Respondents;

CALIFORNIA ATTORNEY GENERAL,

Real Party in Interest and Respondent.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Debra J. Kazanjian, Judge. Donald Gilbert, in pro. per., for Plaintiff and Appellant.

* Before Wiseman, Acting P.J., Gomes, J. and Franson, J.

Kamala D. Harris, Attorney General, Steven M. Gevercer, Assistant Attorney General, Alberto L. Gonzalez and Robert L. Collins, Deputy Attorneys General, for Defendant and Respondent Victim Compensation and Government Claims Board. Beeson Terhorst, Jeffrey E. Beeson and Michael A. Terhorst for Defendant and Respondent California Department of Corrections and Rehabilitation. -ooOoo- Appellant, Donald Gilbert, a state prison inmate, filed a petition for writ of mandate requesting the trial court to order respondent, the Victim Compensation and Government Claim Board (Board), to consider his government tort claim as timely filed. The Board and respondent, California Department of Corrections and Rehabilitation, demurred to the petition. The trial court sustained the demurrer without leave to amend finding that appellant did not meet the six-month deadline to file a claim with the Board and did not timely seek court relief after his claim was denied. Appellant challenges this order on the ground that, under the “mailbox rule” for prison inmates, his tort claim was timely filed. Despite the applicability of the “mailbox rule,” the trial court found that appellant’s claim was untimely. However, that finding is not supported by substantial evidence. Moreover, appellant did seek court relief within six months of his claim being denied. Accordingly, the judgment is reversed. BACKGROUND On February 11, 2008, while performing his assigned duties as a state prisoner, appellant was injured. According to appellant, his right index finger was severed just below the fingernail. Appellant prepared a government tort claim dated August 3, 2008. Appellant alleges that he submitted the claim on August 3, 2008, by delivering it to a prison employee who then placed it in the prison mailbox provided for collection of outgoing legal mail. However, the prison mail log does not list appellant’s claim as outgoing mail on August 3 or any date thereafter.