Jovita Braid vs Santa Barbara County Sheriff’s Department et al
Case No: 19CV04311
Hearing Date: Fri Sep 27, 2019 9:30

Nature of Proceedings: Petition: Relief

Tentative Ruling: The court grants petitioner Jovita Braid’s petition for an order relieving her from the filing requirement in Gov’t Code § 945.4

Petition: On August 14, pursuant to Gov’t Code § 946.6, petitioner Jovita Braid filed her petition for relief from the filing requirement in Gov’t Code § 945.4. (Unless otherwise indicated, all statutory references are to the Government Code.) Respondent County of Santa Barbara opposes the petition.

Petitioner’s son, Alex Braid, died while in custody at the Santa Barbara County Jail on July 5, 2018. On January 29, 2019, petitioner presented an application for leave to file a late claim pursuant to § 911.4. County denied that application on February 16, 2019.

Petitioner contends that the cause of action did not accrue until July 3, 2019. Alternatively, she contends that her failure to file a claim earlier was the result of excusable neglect. She bases her petition on the following facts:

Petitioner is an 85 year old woman who suffers from chronic arthritis and Type 2 diabetes (insulin dependent), is in the process of scheduling a hip replacement, and is currently under a physician’s care. On July 5, 2018, Alex Braid was arrested by Sheriff’s deputies outside his home. The deputies had been dispatched to the premises as the result of a 911 telephone call reporting that he was acting aggressively toward another resident in the house. When apprehended in a neighbor’s backyard, Alex appeared clearly to be under the influence of alcohol. A family member who was present told the Grand Jury they had important information about Alex’s mental health history but was not interviewed by the deputies. Left alone in the rear of the vehicle, Alex became increasingly agitated. Although he began loudly to complain that he was thirsty, no one brought him water. As observed on the dashboard camera video, he then became even more agitated and began purposely to strike his head violently against the vehicle’s interior. The deputy drove him to the jail and did not arrange for a mental health evaluation, instead radioing ahead that Alex was combative. Alex had a record of a W&I Code § 5150 hold at the time of a prior arrest in December 2015. At that time, Alex had engaged in “suicidal talk,” which triggered the 5150 hold. There is no evidence that Sheriff’s personnel accessed records of the prior arrest. On July 5, 2018, Alex refused to answer the RN’s questions about his mental state at booking.

On July 5, 2018, at 7:35 p.m., a deputy found Alex hanging by the neck from a t-shirt ligature. He was pronounced dead at 8:02 p.m. On July 6, Detective Esparza of County’s Sheriff’s Department told petitioner that her son committed suicide. On August 2, 2018, petitioner read the coroner’s report which read: “There was no indication of foul play upon the decedent or at the scene. There was nothing suspicious surrounding the circumstances of this death.” Petitioner says that, after reading this, she had no reason to suspect any wrongdoing by County.

On or about January 11, 2019, the County of Santa Barbara County Civil Grand Jury contacted petitioner’s son, Carl Braid, to inform him that there is a grand jury investigation in process to decide if wrongdoing had occurred on County’s part. Carl Braid informed petitioner of this information and informed her that she had only six months from the time of Alex’s death to file a claim. He urged petitioner to file a late claim with County, which she did on January 29, 2019. On or about July 3, 2019, the County of Santa Barbara Civil Grand Jury found that the Sheriff’s Department and Jail were at fault for several violations and might have prevented Alex Braid’s death.

First, petitioner argues that the claim did not accrue until she read the grand jury report. Alternatively, petitioner argues that her failure to file a timely claim was the result of excusable neglect in light of the coroner’s report that indicated there was no foul play and nothing suspicious surrounding the circumstances of Alex’s death. She contends there is no prejudice to County as she presented the application to file a late claim a mere 24 days after the claim deadline.

Analysis: A claim against a public entity relating to death or injury must be presented not later than six months after the accrual of the cause of action. § 911.2(a). If a claim is not made within that time, a person may make an application for leave to present the late claim within a reasonable time not to exceed one year after accrual of the claim. § 911.4(a), (b). A party may not bring suit or damages until filing a timely claim. § 945.4. If an application for leave to file a late claim is denied, a person may petition the court for relief from the requirement of § 945.4. § 946.6(a). The court shall grant that relief if the “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.” § 946.6(c)(1).

“The policy favoring trial on the merits is the primary policy underlying section 946.6. [Citation] In order to implement this policy, any doubts should be resolved in favor of granting relief.” Bettencourt v. Los Rios Cmty. Coll. Dist., 42 Cal.3d 270, 276 (1986).

1. Accrual of Claim: “The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause.” Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1109 (1988). “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” Id. at 1110. “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights.” Id. at 1111.

“The ‘discovery rule’ assumes that all conditions of accrual of the action — including harm — exist, but nevertheless postpones commencement of the limitation period until ‘the plaintiff discovers or should have discovered all facts essential to his cause of action.’” CAMSI IV v. Hunter Technology Corp., 230 Cal.App.3d 1525, 1536 (1991) [citations omitted].

The word discovery as used in the statute is not synonymous with knowledge. And the court must determine, as a matter of law, when, under the facts pleaded, there was a discovery by the plaintiff, in the legal sense of that term. Consequently, an averment of lack of knowledge within the statutory period is not sufficient; a plaintiff must also show that he had no means of knowledge or notice which followed by inquiry would have shown the circumstances upon which the cause of action is founded.

Bainbridge v. Stoner, 16 Cal.2d 423, 430 (1940).

The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have “ ‘ “information of circumstances to put [them] on inquiry” ’ ” or if they have “ ‘ “the opportunity to obtain knowledge from sources open to [their] investigation.” ’ ” [citation] In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.

Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 807-808 (2005). The plaintiffs “must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” Id. at 808.

“[T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof — when, simply put, he at least suspects … that someone has done something wrong to him, ‘wrong’ being used, not in any technical sense, but rather in accordance with its ‘lay understanding.’” Norgart v. Upjohn Co., 21 Cal.4th 383, 397-398 (1999) (internal quotations and citations omitted).

There are no facts suggested here that would have caused petitioner to suspect a factual basis for a claim of negligence on County’s part. Her son with a history of mental and substance abuse problems committed suicide in prison. There was no available evidence of any failure to follow procedures or take precautions on County’s part. This was especially true in light of County’s affirmative representation, through its Coroner, that not only was there “no indication of foul play,” but also “[t]here was nothing suspicious surrounding the circumstances of this death.” Also, the Grand Jury reports great difficulty in getting information from the Sheriff in its investigation of the incident.

Petitioner has made a case for delayed discovery of the cause of action to at least January 11, 2019, when the Grand Jury informed the family that it was investigating County’s wrongdoing with respect to Alex’s death.

2. Excusable Neglect: Even if the accrual of the cause of action was not delayed, the same circumstances warrant a finding of excusable neglect. “Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” Ebersol v. Cowan, 35 Cal.3d 427, 435 (1983).

DeVore v. Dept of California Highway Patrol, 221 Cal.App.4th 454 (2013), is instructive here. In that case, the plaintiffs’ decedent was killed in a multicar accident caused by a driver under the influence of alcohol and drugs. Id. at 457. Plaintiffs were in touch with the prosecutor and followed the criminal proceedings. Id. In March 2011, seven months after the accident, plaintiffs attended a session of the preliminary hearing and learned, for the first time, that a CHP officer had stopped the drunk driver for speeding less than two hours before the incident and only issued a verbal warning against speeding. Id. at 457-458. After that, plaintiffs retained legal counsel who filed an application for leave to file a late claim against CHP, which was denied. Id. Plaintiffs then filed a § 946.6 petition, which the trial court denied, stating: “Petitioners have not shown reasonable diligence in pursuing the claim, since Petitioners did not contact civil counsel until after the expiration of the six-month period. … The facts of this tragic incident suggest civil liability, and[,] if timely retained[,] counsel would have [had] a duty to ‘diligently pursue the pertinent facts of the cause of action to identify possible defendants. [Citation] The cause of action accrued at or near the time of the incident, because even if the delayed discovery rule applies, the Petitioners had reason to discover the earlier traffic stop as part of the investigation into civil liability.” Id. at 458-459.

The court of appeal reversed.

In the present case, … nothing in the accident report or the records of the CHP would have led plaintiffs or an attorney acting with reasonable diligence to discover the earlier traffic stop or the identity of [the CHP officer] (and the audio/video recording from his patrol car). The trial court does not identify what trail plaintiffs or counsel could have followed to lead to these facts within the limitations period, and the record does not explain how the prosecutor made the connection…. Without this information, plaintiffs reasonably did not have any motivation to retain counsel, there being little point in hiring counsel otherwise to pursue a claim against an uninsured motorist facing a lengthy jail term. The mere fact that the accident took place on a public roadway as a consequence of a drunken driver’s loss of control was not a basis for plaintiffs to assume there was potential liability for a public entity…. Id. at 462-463.

Similarly, here there is nothing to indicate that petitioner had access to evidence that Sheriff’s deputies and jail staff did not follow procedures that could have alerted them to the necessity to place a W&I Code § 5150 hold on Alex or more closely monitor him in his jail cell. The Sheriff, whose deputies arrested Alex and who runs the jail, is also the Coroner, who issued the report that there were no suspicious circumstances. Again, given the difficulty the Civil Grand Jury had in getting the Sheriff’s cooperation, there is no reason to assume any private inquiry would have uncovered the information indicating a possible claim for negligence against County.

Assuming the claim accrued on July 5, 2018, the court finds excusable neglect in missing the six month deadline by 24 days.

3. Prejudice: County does not argue prejudice in the event the court grants relief from the requirement of § 945.4. County acknowledges that a claim filed a mere 24 days before the application for leave to file a late claim would have been timely.

4. Order: For the foregoing reasons, the court grants petitioner Jovita Braid’s petition for an order relieving her from the filing requirement in Gov’t Code § 945.4