Filed 1/9/20 Upton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DAVID UPTON,

Plaintiff and Appellant,

v.

COUNTY OF SAN BERNARDINO et al.,

Defendants and Respondents.

E071790

(Super.Ct.No. CIVDS1822649)

OPINION

APPEAL from the Superior Court of San Bernardino County. Janet M. Frangie, Judge. Affirmed.

David Upton, in pro. per., for Plaintiff and Appellant.

Michelle D. Blakemore, County Counsel, Mitchell L. Norton and Blakney A. Boggs, Deputy County Counsel, for Defendants and Respondents.

Under the Government Claims Act (Gov. Code, § 810 et seq.), before a party may sue a public entity for money or damages, they must first present the entity with a timely claim for damages. (§ 945.4.) The purpose of this claims presentation requirement is to give the public entity an opportunity to investigate and settle the claim without the expense of litigation. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 705.) The Act establishes deadlines for presenting a claim based on the accrual of the underlying cause of action (§ 911.2), but also provides an avenue for excusing late claims (§ 946.6). Section 946.6 sets out specific grounds for justifying a late claim, which include “mistake, inadvertence, surprise, or excusable neglect.” (§ 946.6, subd. (c)(1).)

In this case, David Upton presented the County of San Bernardino and its sheriff’s department with a claim for damages resulting from his arrest in 2016. When the County returned his claim as untimely, he filed a section 946.6 petition in the trial court, arguing his claim was not in fact late. Based on Upton’s claim of timeliness, the trial court denied the petition. Upton now appeals that ruling, reiterating his point that his claim was not late. We affirm. Section 946.6 provides a mechanism for excusing admittedly late claims, not for litigating whether a claim was timely.

I

FACTS

Upton was arrested in April 2016 for driving under the influence, and in March 2018, a jury acquitted him of the charge. In June 2018, Upton presented the County with a claim that sought his vehicle impound fees, plus the attorney fees incurred in defending against the charge. The County returned his claim as untimely because he had not submitted it within six months of “the event or occurrence” (which, according to the County, was his arraignment on June 28, 2016), as required by sections 901 and 911.2.

In August 2018, Upton filed a section 946.6 petition in the trial court. He argued his claim had not been late because, contrary to what the County maintained, his “cause of action” accrued when he was acquitted, not when he was arraigned. In November 2018, the trial court denied Upton’s petition based on its conclusion he had “fail[ed] to demonstrate that he filed a late claim based on mistake, inadvertence, surprise, or excusable neglect or any of the other grounds for relief listed in Government Code section 946.6(c).” The trial court explained that a lawsuit, not a section 946.6 petition, was the proper venue to determine whether his claim was timely.

II

ANALYSIS

In arguing the trial court erred by denying his petition, Upton reiterates the arguments in his petition. He asserts that because his claim was never late in the first place, he is entitled to relief from the claims presentation timing requirements. The error in this logic should be obvious. Section 946.6 provides an avenue for excusing late claims. It follows that admitting one’s claim was late is a requirement to obtaining such relief. (See § 946.6, subd. (b)(2) [all petitions must include “[t]he reason for failure to present the claim within the [applicable] time limit”]; see also Ngo v. County of Los Angeles (1989) 207 Cal.App.3d 946, 950-951 (Ngo) [because “[the] granting of relief under section 946.6 is not a determination of compliance but one of excusing compliance . . . [a]n argument that one filed a timely claim is inconsistent with a petition for relief under section 946.6”].)

Upton argues the court should have granted his petition because “a court order relieving a litigant from the provisions of § 945.4 is a prerequisite to filing suit where a [claim] is rejected by a public entity.” (Italics added.) But relief from the timing requirement is only a prerequisite to filing suit when the claim was late. No relief is necessary where, as here, the claimant does not agree their claim was untimely. “The procedure set forth in section 946.6 is simply an avenue of relief similar to Code of Civil Procedure section 473 in providing relief from default (Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152), and is not designed to resolve the issue of actual compliance with the claim filing requirements.” (Ngo, supra, 207 Cal.App.3d at p. 951.)

Because Upton is not attempting to justify a late claim, but to contest whether it was late at all, the trial court did precisely the correct thing by denying his petition. The issue of timeliness will be determined in Upton’s future lawsuit, should he decide to file one. (See Ngo, supra, 207 Cal.App.3d at p. 952 [parties in Upton’s position are “free to proceed on a complaint which properly pleads compliance with the claims statute”].) A section 946.6 petition is an “improper vehicle to argue that the claim was timely,”—that issue “can only be raised in the complaint for damages.” (Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817, 822.)

III

DISPOSITION

We affirm the order denying Upton’s petition. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

McKINSTER

Acting P. J.

MENETREZ

J.