2014-00160908-CU-PT

Liping Shirley Kong vs. Folsom City Police Department

Nature of Proceeding: Petition for Leave to File a Late Government Claim

Filed By: Pereira, Paul A.

Plaintiff’s motion for relief from complying with the Government Tort Claims Act and for
an order allowing filing of a late claim is ruled upon as follows:

This action arises from Plaintiff Liping Shirley Kong’s arrest, by Defendant, Folsom City
Police Department. Plaintiff states that on October 25, 2012, Defendant detained
Plaintiff against her will in a vacant and abandoned fire station for an unspecified
period of time and tricked Plaintiff into making certain statements in the police report.
(Petition, ¶ 2.) Plaintiff was later charged with misdemeanor violations of spousal
battery and corporal injury to a spouse pursuant to Penal Code §243(e)(1) and §273.5
(a). (Declaration of Carrie Frederickson, ¶ 2.) Plaintiff filed her Tort Claim with
Defendant on October 17, 2013.

Govt. Code §946.6 provides that a claimant may, within six months of denial of an
application for leave to file a late claim, petition the superior court for an order relieving him or her from the claim-filing requirements of §945.4.

“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 not to exceed that specified in subdivision (b) of section 911.4 [one
year] and was denied … and that one or more of the following is applicable:
(1) 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 [or] … (3) the person who sustained the alleged injury, damage or
loss was physically and mentally incapacitated during all of the time specified in
Section 911.2 for the presentation of the claim and by reason of that disability failed to
present a claim during that time.” (Gov. Code §946.6(c)(1) and (c)(3).)

In her Petition, Plaintiff cites to Gov. Code §946.6(c) relating to excusable neglect as
the authority for her relief. (Petition, p. 4.) However, Plaintiff’s Exhibits and arguments
speak to relief under Gov. Code §946.6(c)(3) relating to physical and mental
incapacity. (Id., p. 5.) Given that Defendant opposed Plaintiff’s Petition on the
physical and mental incapacity prong (Opposition, p. 3), and the court did not receive
Plaintiff’s Reply disputing the opposition, the court will construe the Petition under
§946.6(c)(3) relating to physical and mental incapacity.

Plaintiff contends that she did not timely file her Tort Claim because she was not of
sufficient mental and physical capacity. (Petition, p. 4.)

In opposition, Defendant argues that Plaintiff does not satisfy the “physically and
mentally incapacitated” standard because Plaintiff: (1) did not make the late claim
application within a reasonable time, and (2) was not “incapacitated during the entire
claims presentation.” (Opposition, p. 4.;) (Gov. Code §946.6(c)(3).)

As a threshold matter, a claimant must, at a minimum, make a diligent effort to obtain
legal counsel within six months after the accrual of the cause of action. (Munoz v.
State of California (1995) 33 Cal.App.4th 1767, 1779.) However, “there is no absolute
rule barring [relief] when the claimant has failed to obtain counsel during the six-month
period. If a claimant can establish that physical and/or mental disability 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 circumstance,” a court will evaluate the claim under §946.6(c). (Id.)

Here, Plaintiff had until April, 25, 2013 to file a claim against Defendant. (Gov. Code
§911.2(a)). Plaintiff did not file a claim until October 17, 2013-nearly a year after the
incident.

Plaintiff has not shown that her physical and/or mental disability limited her ability to
seek counsel within a reasonable time. Plaintiff proffers unsworn letters from her
doctors demonstrating that she received care for rheumatoid arthritis, chronic pain
syndrome and depression between November to December 2012, and had medical
attention for rheumatoid arthritis between March to May 2013. (Petition, Exhibits 1-2.)
However, Plaintiff had access to a lawyer during the claim presentation period.
(Declaration of Carrie Frederickson, ¶ 3; Petition, Exhibit 2.) As evidenced by the
criminal arraignment and the medical affidavits addressed to Plaintiff’s criminal
attorney, Plaintiff had access to a lawyer on October 29, 2012 and between March to
April 2013, at least one month before the claims period. (Id.) Given this record, the
Court finds that Plaintiff did not make the claim application within a reasonable amount
of time.

Furthermore, Plaintiff has not shown that she was “incapacitated during the entire
claims presentation.” (Gov. Code §946.6(c)(3) (emphasis added).) Plaintiff merely
presents an unsworn letter from her doctor and his medical notes. The letter explains
that Plaintiff was treated in the doctor’s office from March 25, 2013 through April 12,
2013 and May 13, 2013 through May 2013 with intravenous therapy for severe
inflammatory rheumatoid arthritis and that she was incapable of ambulating during that
time period. (Petition, Exhibit 1.) The period of time referenced in the doctor’s letter,
however, is not for the entire six month period from October 25, 2012 to April 25, 2012.

Lastly, the claimant’s condition must be in a state where the claimant would not be
able to authorize another to file the claim on his or her behalf. (Draper v. City of Los
Angeles (1990) 52 Cal.3d 502, 508-509.) A claimant will not be considered disabled if
he or she can communicate with an attorney. (See Harrison v. County of Del Norte
(1985) 168 Cal.App.3d, 1, 8.) Given that Plaintiff was able to communicate to a lawyer
during the claims period (See Declaration of Carrie Frederickson, ¶ 3; Petition, Exhibit
2), Plaintiff’s medical condition did not reach a level that prevented her from taking the
necessary steps to file a claim. (See Barragan v. County of Los Angeles (2010) 184
Cal.App.4th 1373, 1385.)

Given the above, the Court agrees with Defendant that Plaintiff does not satisfy the
standard for relief. (Gov. Code §946.6(c).)

Accordingly, the motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.