J.G. v. City of Paso Robles CA2/6 ( 2021 )

Filed 8/3/21 J.G. v. City of Paso Robles CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
J.G., 2d Civ. No. B301035
(Super. Ct. No. 19CVP-0122)
Plaintiff and Appellant, (San Luis Obispo County)
v.
CITY OF PASO ROBLES,
Defendant and Respondent.
J.G. filed a petition for an order relieving her from the
claim presentation requirement in Government Code section
910.1 She alleged she was sexually assaulted, raped, stalked and
harassed by Christopher McGuire, a Sergeant with the City of
Paso Robles Police Department (Department), and sought relief
as a prerequisite to filing an action for damages against the City
of Paso Robles (City).
1 All further statutory references are to the Government
Code.
The trial court denied the petition. It found J.G. had not
demonstrated that her failure to present a timely claim to the
City “was through mistake, inadvertence, surprise, or excusable
neglect.” (§ 946.6, subd. (c)(1).) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
McGuire first assaulted J.G. on December 19, 2017, when
he and several other officers responded to a domestic violence call
she had placed. After arresting J.G.’s boyfriend, McGuire
dismissed the other officers and remained in J.G.’s home for
another four hours.
According to J.G., McGuire instructed her to hug him. She
did so reluctantly. McGuire then grabbed J.G.’s hand and placed
it on his firearm in his hip holster. He placed her other hand on
his erect penis and asked which “gun” she preferred. When she
said the firearm, McGuire asked what she would do to his “big
cock.”
McGuire eventually left J.G.’s home, but he returned
within the hour with another officer to discuss the steps she must
take following the domestic violence call. A few days later,
McGuire appeared at her home in civilian clothes and said he
was conducting a welfare check. McGuire told her he had to
speak with her in the detached garage. She accompanied him to
the garage, where he locked the door, pulled down his pants and
attempted to force J.G. to perform oral sex on him. When she
refused, McGuire pulled down her pants and raped her. McGuire
told her he would be conducting additional patrol checks in her
neighborhood that evening and threatened to harm her or have
her children taken away if she told anyone what had occurred.
2 The facts are taken from the allegations in the petition.
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McGuire appeared at J.G.’s home several times thereafter, all
while on patrol.
In April 2018, McGuire pulled over J.G. while she was
driving with her daughter. McGuire, who was in uniform, was
driving a marked patrol car. He expressed anger that she had
reported the sexual abuse to someone. He then instructed J.G. to
drive to her new residence. McGuire followed her home and
ordered her to go into her bedroom. McGuire followed J.G.,
locked the door, placed his gun on the master bathroom counter,
unzipped his pants and tried to force her to perform oral sex on
him. J.G. alleges she fought back and screamed. McGuire told
her to be quiet because her children were home and instructed
her to escort him out of the house. He again threatened her with
removal of her children and physical harm if she disclosed his
conduct to anyone. He told her to call the Department every
Wednesday and leave him a message. J.G. “was terrified of
McGuire and out of fear for [her] own safety and for [her]
children, did not say anything until [she] felt safe from McGuire.”
In May 2018, the San Luis Obispo County Sheriff's Office
(Sheriff’s Office) began a months-long criminal investigation of
McGuire’s alleged sexual assaults of women. J.G. cooperated
during the investigation and retained a criminal attorney, Ilan
Funke-Bilu, to assist her as a crime victim under Marsy’s Law.
J.G. claims that, prior to the completion of that investigation, she
did not know she had any “legal rights” and never discussed any
potential “civil law rights and/or [other] remedies” with Funke-
Bilu. No one from the City advised J.G. she was entitled to file a
notice of claim with the City.
At the conclusion of the investigation, the Sheriff’s Office
recommended that McGuire be prosecuted for sexual assaults,
but the District Attorney declined to prosecute. McGuire has
since resigned from the Department’s police force.
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After learning of the District Attorney’s decision, J.G.
consulted a civil attorney, who advised her of the claim
presentation requirement for filing an action against the City.
Two months later, in February 2019, the attorney, Brian E.
Claypool, served on the City a notice of claim and request to
present a late claim. In an accompanying letter, Claypool
advised that J.G.’s failure to timely file a claim within six months
of the abuse was due to “inadvertence and excusable neglect”
pursuant to section 911.4. The claim was denied by operation of
law when the City did not respond within the 45-day statutory
period.
In April 2019, J.G. filed the petition for an order relieving
her from the claim presentation requirement. (§ 946.6.) The trial
court issued a tentative decision granting the petition. Following
oral argument, the court took the matter under submission and
ultimately denied the petition. The court noted the alleged facts
are “horrific” and “invoke the utmost sympathy and desire for
justice,” but determined it was “bound to follow the statutory
authority and supporting case law in finding there is no
excusable neglect warranting the grant of the petition.” J.G.
appeals this decision.
In December 2019, J.G. filed a complaint against the City
and McGuire in federal court. The action seeks damages arising
out of the sexual assault and harassment suffered by J.G. The
federal court granted the City’s motion to dismiss as untimely the
state law claims against the City, but the court has allowed other
claims to proceed.
DISCUSSION
Standard of Review
“The decision to grant or deny a petition seeking relief
under section 946.6 is within the sound discretion of the trial
court and will not be disturbed on appeal except for an abuse of
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discretion.” (Bettencourt v. Los Rios Community College Dist.
(1986) 42 Cal.3d 270, 275 (Bettencourt).) “Section 946.6 is a
remedial statute intended ‘to provide relief from technical rules
that otherwise provide a trap for the unwary claimant.’ . . . As
such, it is construed in favor of relief whenever possible. . . . In
order to implement this policy, any doubts should be resolved in
favor of granting relief. . . . In light of the policy considerations
underlying section 946.6, a trial court decision denying relief will
be scrutinized more carefully than an order granting relief.” (Id.
at pp. 275-276, citations omitted; DeVore v. Department of
California Highway Patrol (2013) 221 Cal.App.4th 454, 459.)
Applicable Law
A personal injury claim against a public entity must be
filed within six months after the claim accrues. (§ 911.2, subd.
(a).) The purpose of the claim procedure is to “give the public
entity the opportunity to evaluate the merit and extent of its
liability and determine whether to grant the claim without the
expenses of litigation.” (Crow v. State of California (1990) 222
Cal.App.3d 192, 202, disapproved on another ground by Regents
of University of California v. Superior Court (2018) 4 Cal.5th 607,
634, fn. 7.)
If a claim is not presented within the six-month period, “a
written application may be made to the public entity for leave to
present that claim.” (§ 911.4, subd. (a).) “The application shall
be presented to the public entity . . . within a reasonable time not
to exceed one year after the accrual of the cause of action and
shall state the reason for the delay in presenting the claim.” (Id.,
subd. (b); Munoz v. State of California (1995) 33 Cal.App.4th
1767, 1779 (Munoz).) “Accrual of the cause of action for purposes
of [these statutes] is the date of accrual that would pertain under
the statute of limitations applicable to a dispute between private
litigants.” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th
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201, 208-209, superseded by statute on another ground as stated
in Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 914; see § 901.)
If the application for leave to present a late claim is denied,
either expressly or by operation of law, the claimant’s final
recourse is to obtain a court order granting relief from the
statutory claim presentation requirement. (§ 946.6.) The
petition requesting such relief must be filed within six months
after the public entity’s denial of the late claim application.
(Ibid.) To obtain relief, J.G. must show that an application was
made to the public entity to file a late claim under section 911.4
and was denied or deemed denied and, as relevant to this case,
that the failure to present a timely claim was due to “mistake,
inadvertence, surprise or excusable neglect.” (§ 946.6, subd
(c)(1).) J.G. also must demonstrate that she did not discover facts
until the filing period had expired and that reasonable diligence
was used in pursuing discovery. (Greene v. State of California
(1990) 222 Cal.App.3d 117, 121 (Greene).)
The Trial Court Did Not Abuse Its Discretion by
Denying the Section 946.6 Petition for Relief
Citing our decision in Rason v. Santa Barbara City
Housing Authority (1988) 201 Cal.App.3d 817 (Rason), J.G.
contends a trial court may not determine a claim’s timeliness
through a section 946.6 petition. Rason held that “a claimant
who disputes the [public entity’s] determination of untimeliness
must raise that issue by filing suit rather than a section 911.4
application [to present a late claim].” (Rason, at pp. 822-823; Ngo
v. County of L.A. (1989) 207 Cal.App.3d 946, 948.) The
distinguishing feature here is that the untimeliness of J.G.’s
claim was never disputed. J.G.’s first contact with the City was
through her application for leave to present a late claim. J.G.
appropriately challenged the denial of that application in her
section 946.6 petition. (Greene, supra, 222 Cal.App.3d at p. 121;
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see Toscano v. County of Los Angeles (1979) 92 Cal.App.3d 775,
783 [“An argument that one filed a timely claim is inconsistent
with a petition for relief under section 946.6, since such petition
necessarily follows the denial of an application for leave to file a
late claim”].)
Next, J.G. argues her application to present a late claim
and subsequent section 946.6 petition were “based on excusable
mistake or neglect arising from a confluence of events and
circumstances stemming from the terrifying sexual assault, rape,
and threats of violence and retaliation that she suffered at the
hands of . . . McGuire.” As the City points out, this statement
significantly expands the reasons set forth in her application and
petition.
In Lincoln Unified School Dist. v. Superior Court (2020) 45
Cal.App.5th 1079, the Court of Appeal held that when a court
considers a section 946.6 petition to excuse late filing, the
“reason” for the delay due to mistake, inadvertence, or excusable
neglect that the petitioner asserts before the trial court must be
the same “reason” for mistake, inadvertence, or excusable neglect
presented in the section 911.4 petition to the public entity. (Id. at
pp. 1083-1084.) The court emphasized that because the statutes
use the word “the” rather than “a” before “reason,” “they refer to
the same reason. The language and structure of the statutes
thus require that ‘the reason’ offered to the superior court and to
the public entity be the same.” (Id. at p. 1095.)
J.G.’s request to file a late claim states a claim “was not
timely filed due to inadvertence and excusable neglect by [J.G.]
who was not represented by counsel with knowledge in civil
litigation at the time.” It further avers that “[a]t no time during
that period, did her criminal attorney advise [J.G.] of the six
month statutory period for filing a notice of claim.”
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J.G.’s section 946.6 petition also was based on her
ignorance of the law, but it further claimed J.G. delayed taking
action until she “felt safe” from McGuire’s threats. She allegedly
“felt safe” when the Sheriff’s Office began investigating the
allegations against McGuire.
A layperson's ignorance of the law is not “excusable
neglect.” (Harrison v. County of Del Norte (1985) 168 Cal.App.3d
1, 7; Munoz, supra, 33 Cal.App.4th at p. 1778 [“[M]istake of law
based solely on ignorance of the six-month claim requirement is
not enough”].) An attorney’s failure to advise the client of his or
her rights also is not excusable neglect. The attorney’s
negligence is imputed to the client and is not a ground for
granting relief. (Tammen v. County of San Diego (1967) 66
Cal.2d 468, 476-478; Torbitt v. State of California (1984) 161
Cal.App.3d 860, 866; Clark v. City of Compton (1971) 22
Cal.App.3d 522, 528.)
The record supports the trial court’s finding that “there is
no evidence that Mr. Funke-Bilu’s alleged failure to advise his
client of the claims filing requirement constitutes excusable
neglect. Indeed, Mr. Funke-Bilu does not indicate whether or not
he is aware of the claims filing requirement (contrary to what is
asserted in the petition); rather, he avers that he did not discuss
these requirements with his client. Either way, it is not
excusable neglect. The Legislature has spoken, and as the law
currently stands, any failure on Mr. Funke-Bilu’s behalf is
attributed to his client, [J.G].”
Nor has J.G. established that the trauma she suffered
tolled the time to present an administrative claim. J.G.’s
references to being emotionally triggered are insufficient to
demonstrate excusable neglect. There was no evidence the
trauma “substantially interfered with [her] ability to function in
daily life, take care of [her] personal and business affairs, or seek
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out legal counsel.” (People ex rel. Dept. of Transportation v.
Superior Court (2003) 105 Cal.App.4th 39, 46.) Indeed, J.G. was
able to “seek out legal counsel” to assist her in the criminal
proceeding. (Ibid.) J.G. also failed to provide a declaration from
a medical provider attesting to her mental state. As the trial
court noted, we “cannot simply assume that [p]etitioner suffered
incapacitating trauma even when it may very well be true and
expected.”
Finally, J.G. argues that the denial of her section 946.6
petition, even if affirmed, does not prevent her from pursuing the
defense of equitable estoppel in her federal civil action for
damages. We are not inclined to address an issue pending in
another court and express no opinion as to the argument’s merits.
DISPOSITION
The judgment (order denying the section 946.6 petition for
relief from the claim presentation requirement) is affirmed. The
City shall recover its costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Ginger E. Garrett, Judge
Superior Court County of San Luis Obispo
______________________________
The Claypool Law Firm, Brian E. Claypool and Nathalie
Vallejos; Esner, Chang & Boyer, Holly N. Boyer and Shea S.
Murphy, for Plaintiff and Appellant.
Adamski Moroski Madden Cumberland & Green, Michelle
L. Gearhart and Joshua M. George, for Defendant and
Respondent.
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