2018-00232107-CU-PT

Phillip Dreger vs. Sacramento County Sheriffs Department

Nature of Proceeding: Petition for Relief from Government Claim Filing Requirements

Filed By: Avetisyan, Narek

Petitioner Phillip Dreger’s petition for relief from Government Claim filing requirements is denied.

Petitioner seeks an order pursuant to Government Code § 946.6(c) allowing him to pursue an action against the County of Sacramento and the Sacramento County Sheriff’s Department in connection with injuries he sustained in February and June 2017 at the Sacramento County Main Jail. According to Petitioner he was arrested on February 8, 2017 after assaulting an off-duty officer who he believed was following and harassing him and was taken to the Jail and was the victim of unnecessary and excessive force. He also claims that on June 27, 2017, Sheriff’s Deputies failed to protect him from a violent gang and that he suffered serious injuries and not given proper treatment and his symptoms worsened. Petitioner claims that failed to bring a timely claim because of his mental incapacity and fear of retaliation from Sheriff’s deputies.

Government Code § 946.6 provides that where “an application for leave to present a claim is denied or deemed denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4.” (Gov’t Code § 946.6(a).) “The court shall relieve the petitioner from the requirements of Section

945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time…and…[t]he failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4.” (Id. (c)(1).)

“Section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary claimant. [citation] The remedial policies underlying the statute are ‘that wherever possible cases be heard on their merits, and any doubts which may exist should be resolved in favor of the application.’ [citation].” (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under same or similar circumstances. (Id.)

“The discretion to grant or deny a petition for relief is within the sound discretion of the Superior Court, but that discretion is not unfettered. It must be exercised in conformity with the spirit of the law. The general policy favoring trial on the merits cannot be applied indiscriminately so as to render ineffective the statutory time limits.” ( Department of Water and Power of the City of Los Angeles (“Dzhibinyan”) 2000) 82 Cal.App.4th 1288, 1293.) “It is not the purpose of the remedial statutes to grant relief from defaults which are the result of inexcusable neglect of parties or their attorneys in the performance of the latter’s obligation to their clients.” (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 478.) “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.” ( Dzhibinyan, supra, 82 Cal.App.4th at 1293.) In analyzing whether relief is available under Gov’t Code § 946.6 on the basis of “mistake, inadvertence, surprise or excusable neglect”, courts will look to cases decided under CCP § 473 as the “showing required of a petitioner seeking leave to file a late claim on these grounds is the same as that required by Code of Civil Procedure section 473 for relieving a party from default judgment.” (People ex rel Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 43-44.)

Here, Petitioner argues that his failure to bring a timely claim is the result of excusable neglect. While Petitioner refers to his mental illness (of which there is no evidence), he argues that excusable neglect exists even without consideration of any mental illness.

Petitioner argues that after he was arrested in February 2017 for assaulting an off-duty police officer, whom he believed was part of a group harassing him, he was taken to the Jail and was subjected to excessive force. He argues that he believed at that point he was the victim of retaliation for a mistaken assault on an off-duty police officer. He argues that about four and a half months later in June 2017, with approximately one and a half months left to file a Government Tort Claim he was severely beaten by known gang members in the presence of Sheriff’s deputies. According to Petitioner his fear of retaliation from the February 2017 incident “solidifies, this time subduing him into absolute silence.” He claims that his fear of retaliation prevented him from filing a claim.

The Court agrees with Respondents that Petitioner has failed to demonstrate the requisite excusable neglect. As set forth above, excusable neglect is neglect that might have been the act or omission of a reasonably prudent under same or similar circumstances. The party seeking to demonstrate excusable neglect must also show that he or she exercised reasonable diligence in failing to act. (People ex re Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th at 44.) Here, Petitioner has not shown that he exercised diligence, much less reasonable diligence. Rather, Petitioner states that his fear of retaliation caused him not to file a timely claim. He states that the second incident in June 2017 where Sheriff’s deputies allegedly failed to protect him from gang members solidified his fear. Yet he fails to set forth any steps he took to investigating filing a claim prior to that time when his fear was not solidified. The Court must also note that Petitioner’s counsel apparently represented Petitioner in his criminal case and there is no showing that Petitioner consulted with counsel regarding filing a potential claim. Further his declaration indicates that he still lives in fear of retaliation if he reports the subject Sheriff’s deputies, yet he is now seeking to proceed with his claims against them. (Dreger Decl. ¶ 5.) This is not a situation where neglect caused Plaintiff not to file a timely claim. Rather, he made a conscious

decision not to do so. “The law neither expects nor requires an unsophisticated claimant to undertake an in-depth investigation into the possible liability of public entities, or to be aware of the peculiar time limitations of the governmental claims statutes. However, California cases are uniformly clear that ‘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. 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.’ [citations omitted]” (People ex rel. DOT v. Superior Court (2003) 105 Cal.App.4th 39, 44-45 [emphasis in original].) Petitioner presents no evidence regarding any attempt to determine the applicable claims presentation requirements, to consult with an attorney, or otherwise take reasonable steps to file his claim. The Court cannot find under these circumstances that Petitioner’s failure to file a timely Government Tort claim was the result of excusable neglect.

Given Petitioner’s failure to demonstrate that his delay in presenting a timely claim was the result of mistake, inadvertence, surprise, or excusable neglect, Respondents were not required to demonstrate prejudice.

As noted above, Petitioner vaguely referred to his mental illness but made no showing with respect to such illness and did not argue that his illness resulted in the failure to timely file a claim. Indeed, “[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. We recognize, however, that every claimant is likely to be suffering from some degree of emotional upset, and it takes an exceptional showing that his or her disability reasonably prevented the taking of necessary steps.” (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1385.) But where the evidence does not establish that any conditions “substantially interfered with [the petitioner’s] ability to function in his daily life, take care of his personal and business affairs, or seek out legal counsel” excusable neglect is not shown. (People ex rel Dep’t of Transp., supra, 105 Cal.App.4th at 46.) Here, not only is there no evidence of any mental incapacity, but no evidence that the unspecified incapacity prevented Petitioner from timely presenting his claim.

To the extent that Petitioner suggests that Respondents should be estopped from asserting a defense of untimeliness, the Court rejects this argument. “A public entity may be estopped from asserting the limitations of the tort claims statutes where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act. The required elements for an equitable estoppel are: (1) the party to be estopped must be apprised of the facts; (2) the party to be estopped must intend his or her conduct shall be acted upon, or must so act that the party asserting estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) the other party must rely upon the conduct to his or her injury.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1785.) Estoppel ordinarily results from “misleading statements about the need for or advisability of a claim; actual fraud or the intent to mislead is not essential.” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445.) Courts generally reject estoppel claims “where the plaintiff cannot show calculated conduct or representations by the public entity or its agents that induced the plaintiff to remain inactive and not to comply with the claims-presentation requirements.” (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1045.) Estoppel may also be “established by acts of

violence that are intended to prevent the filing of a claim.” (K.J. v. Arcadia Unified School District (2009) 172 Cal.App.4th 1229, 1240 [citations omitted].)

The problem for Petitioner is two-fold. First, he did not specifically plead estoppel against the City in his petition and equitable estoppel “must be pleaded and provided as an affirmative bar to a defense of statute of limitations.” (Munoz, supra, 33 Cal.App.4th at 1785.) In any event, he provided no evidence to support such a claim. While Petitioner sets forth the conduct regarding the alleged excessive force he received at the hands of the Sheriff’s deputies and the failure to protect him from gang members, he presents no evidence that any such conduct had anything to do with trying to dissuade him from filing a claim.

The petition is denied.