gno.law

Lutz v. Tri-City Hospital

California Court of Appeal · D002540 · 1986-03-25 · Published · 179 Cal. App. 3d 807 · 224 Cal. Rptr. 787 · 1986 Cal. App. LEXIS 1437

DANIEL LUTZ Et Al., Plaintiffs and Appellants, v. TRI-CITY HOSPITAL, Defendant and Respondent

Proceeding
appeal
Trial court
Superior Court of San Diego County
Trial judge
Sheridan E. Reed
Outcome
other — D002540. Fourth Dist., Div. One.
Area
civil
Panel
Edward T. Butler (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:44Z · confidence high

The trial court denied Lutz's petition for relief from the public entity claim filing requirements, finding no excusable neglect, physical incapacity, or waiver. The Court of Appeal affirmed, holding that Lutz failed to demonstrate excusable neglect or incapacity and that a Code of Civil Procedure section 364 notice does not constitute a claim under Government Code section 910.

Ruling reviewedStandardThe courtThe model
Denial of petition for relief from claim requirements under Government Code section 946.6 based on excusable neglect.
“Lutz has failed to carry his burden of proof to demonstrate surprise, mistake, excusable neglect or inadvertence. The court did not abuse its discretion in denying relief from late filing as to those counts.”
abuse of discretioncorrectagree with court
The appellate court correctly applied the abuse of discretion standard and found that the record, specifically documents clearly identifying Tri-City as a public entity, negated Lutz's claim of mistake or surprise. The reasoning aligns with the requirement that relief under section 946.6 is analogous to Code of Civil Procedure section 473 relief, which requires a showing of excusable neglect that is not present here.
Denial of relief based on physical incapacity under Government Code section 946.6, subdivision (c)(3).
“The court correctly ruled physical incapacity was not the cause of Lutz’ failure to file within the 100-day period.”
abuse of discretioncorrectagree with court
The court correctly noted that Lutz provided no medical evidence of a disability that would prevent him from filing a claim, and his ability to sign documents and retain counsel contradicted the claim of total incapacity. The application of the statute requiring incapacity during the *entire* 100-day period was properly applied to the facts.
Denial of waiver of the claim defense due to Tri-City's failure to respond to the Code of Civil Procedure section 364 notice.
“Lutz’ Code of Civil Procedure section 364 notice does not constitute the filing of a claim, late or otherwise, and Tri-City’s failure to respond does not constitute a waiver of its defense.”
de novocorrectagree with court
The court correctly distinguished between a section 364 notice of intention to sue and a claim presentation under Government Code section 910. Since the notice did not contain the specific matters required by section 910, it did not trigger the waiver provision of section 911.3, which applies only to late claims.

Authorities

  • relied: Viles v. State of California (1967) 66 Cal.2d 24 — The showing necessary for relief under Government Code section 946.6 is the same as required under Code of Civil Procedure section 473 for relieving a party from a default judgment.
  • relied: El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57 — Relief under section 946.6 is directed to the 100-day period of section 911.2 and not to the 'reasonable time not to exceed [1 year]' period of sections 911.4 and 946.6.
  • relied: Rivera v. City of Carson (1981) 117 Cal.App.3d 718 — The granting or denial of a petition for relief under section 946.6 rests within the discretion of the trial court and its determination will not be disturbed on appeal except for abuse of that discretion.
  • relied: Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116 — Physical or mental incapacity must be such as to render the person incapable of attending to the filing of a claim to excuse failure to file within the 100-day period.
  • relied: Lesko v. Superior Court (1982) 127 Cal.App.3d 476 — Failure to comply with Code of Civil Procedure section 364 is not jurisdictional; it simply furnishes a ground for discipline by the state bar.
  • relied: Banfield v. Sierra View Local Dist. Hospital (1981) 124 Cal.App.3d 444 — The Code of Civil Procedure section 364 notice acts to extend and to toll the applicable statute of limitations.
  • relied: Williams v. Horvath (1976) 16 Cal.3d 834 — Submission of a claim to a public entity is a condition precedent to a tort action and the failure to present the claim bars the action.
  • relied: Eaton v. Ventura Port Dist. (1975) 45 Cal.App.3d 862 — The matters required by Government Code section 910 to be enumerated on the face of the claim enable the public entity to investigate and provide an opportunity for settlement, and failure to substantially comply bars the action.

The appellate opinion: sound — The opinion is sound because it correctly distinguishes between the procedural requirements of a section 364 notice and the substantive requirements of a public entity claim under section 910. It properly applies the abuse of discretion standard to the factual findings regarding excusable neglect and incapacity, supported by clear record evidence.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

The trial court denied Daniel and Nancy Lutz's petition under Government Code section 946.6 for relief from the claim-presentation requirements after they failed to present a claim to Tri-City Hospital, a local hospital district, within 100 days of a September 1983 operation and waited until August 1984 to seek leave to file a late claim. The Court of Appeal affirmed, holding the trial court did not abuse its discretion in finding no excusable neglect, that the application was not made within a reasonable time, that no physical incapacity was shown, and that a Code of Civil Procedure section 364 notice of intent to sue was not a claim whose non-response waived the claim defense.

Ruling reviewedStandardThe courtThe model
Denial of section 946.6 relief on the ground of mistake, inadvertence, surprise or excusable neglect (petitioner's belief that Tri-City was a private hospital)
“Lutz has failed to carry his burden of proof to demonstrate surprise, mistake, excusable neglect or inadvertence. The court did not abuse its discretion in denying relief from late filing as to those counts.”
abuse of discretioncorrectagree with court
The opinion correctly equates the section 946.6 showing with the Code of Civil Procedure section 473 standard (Viles) and applies the abuse-of-discretion standard (Rivera). The record showed repeated documents, including the admission agreement, consent forms, billing statements, and 44 pages of medical records sent to counsel, all captioned 'a Local Hospital District,' and the petitioner offered no explanation of any diligence; on that record a finding of no excusable neglect is well supported. The court did not discuss the liberal-construction policy of Ebersol v. Cowan, but the absence of any diligence showing makes the result consistent with that authority.
Finding that the application for leave to present a late claim was not made within a reasonable time under section 946.6, subdivision (c)
“Lutz fails to explain his five-month delay in seeking relief. Considering the circumstances, we conclude the application for relief was not filed within a reasonable time.”
abuse of discretioncorrectagree with court
Section 946.6, subdivision (c) requires that the late-claim application be made within a reasonable time not exceeding one year, and the petitioner bears the burden of explaining the delay. Counsel was retained by March 19, 1984 and possessed records disclosing public-entity status by about March 23, 1984, yet nothing was filed until August 31, 1984, with no explanation. The conclusion is an independent and sufficient basis for affirmance, though the opinion's phrasing ('we conclude') is somewhat loose about whether it is reviewing the trial court's finding or deciding the issue itself.
Rejection of the claim that physical incapacity during the entire 100-day period excused the failure to present a claim (section 946.6, subdivision (c)(3))
“The court correctly ruled physical incapacity was not the cause of Lutz’ failure to file within the 100-day period.”
unclearcorrectagree with court
Subdivision (c)(3) requires incapacity during the entire 100-day period and a causal link to the failure to present a claim. The opinion, citing Bennett v. City of Los Angeles, notes the petitioner presented no medical evidence of paraplegia beyond the operative note of leg immobility and did not explain how the condition prevented him from presenting a claim; he was able to sign documents and engage counsel. The reasoning is adequate, though the court does not expressly state whether it is applying substantial-evidence or abuse-of-discretion review.
Rejection of the argument that Tri-City waived the claim-presentation defense under section 911.3 by failing to respond within 45 days to the Code of Civil Procedure section 364 notice of intention to sue
“Lutz’ Code of Civil Procedure section 364 notice does not constitute the filing of a claim, late or otherwise, and Tri-City’s failure to respond does not constitute a waiver of its defense.”
de novocorrectagree with court
Section 911.3's waiver provision is triggered only by the presentation of a late claim. A section 364 notice serves a different function (tolling and pre-suit notice for medical malpractice actions, Banfield; non-compliance is not jurisdictional, Lesko), while claim presentation is a condition precedent to suit against a public entity (Williams v. Horvath). The opinion also notes the notice lacked the section 910 contents and did not substantially comply with the claim requirements (Eaton). The court did not cite City of San Jose v. Superior Court on the substantial-compliance doctrine, but its analysis is consistent with it.

Authorities

  • relied: Viles v. State of California (1967) 66 Cal.2d 24 — The showing required for relief from the claim statutes through mistake, inadvertence, surprise or excusable neglect is the same as under Code of Civil Procedure section 473.
  • relied: El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57 — The excusable-neglect showing is directed to the 100-day period of section 911.2, not to the reasonable-time-not-to-exceed-one-year period.
  • relied: Rivera v. City of Carson (1981) 117 Cal.App.3d 718 — Granting or denial of a section 946.6 petition rests in the trial court's discretion and is reviewed only for abuse.
  • relied: Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116 — A petitioner must present evidence of physical or mental disability rendering him incapable of attending to the filing of a claim.
  • relied: Lesko v. Superior Court (1982) 127 Cal.App.3d 476 — Failure to comply with Code of Civil Procedure section 364 is not jurisdictional and merely furnishes a ground for State Bar discipline.
  • relied: Banfield v. Sierra View Local Dist. Hospital (1981) 124 Cal.App.3d 444 — A Code of Civil Procedure section 364 notice extends and tolls the applicable statute of limitations.
  • relied: Williams v. Horvath (1976) 16 Cal.3d 834 — Presentation of a claim to a public entity is a condition precedent to a tort action and failure to present it bars the action.
  • relied: Eaton v. Ventura Port Dist. (1975) 45 Cal.App.3d 862 — Section 910 claim contents enable investigation and settlement, and failure substantially to comply bars the action.
  • missed: Ebersol v. Cowan (1983) 35 Cal.3d 427 — Section 946.6 is remedial and to be liberally construed in favor of relief; a claimant's failure to discover a defendant's public-entity status may be excusable where reasonable diligence is shown.
  • missed: City of San Jose v. Superior Court (1974) 12 Cal.3d 447 — A document may satisfy the claim statutes only if it substantially complies with section 910's content requirements; the test is whether it discloses sufficient information to enable the entity to investigate and evaluate the claim.

The appellate opinion: sound with gaps — The opinion applies the correct standards (Viles, Rivera) and the record of repeated written notice of public-entity status, coupled with no showing of diligence or explanation for the five-month delay, supports every conclusion, and its distinction between a section 364 notice and a section 910 claim is legally correct. It does not, however, engage the Supreme Court's liberal-construction policy in Ebersol v. Cowan or the substantial-compliance framework of City of San Jose, and it is imprecise about the standard applied to the incapacity and reasonable-time findings.

How this analysis was made · dispute it

Opinion — Butler

Opinion

BUTLER, J.

Daniel Lutz was injured in an automobile accident and was admitted for treatment September 22, 1983, to Tri-City Hospital, a local hospital district. September 30, 1983, at Tri-City, he was operated on for application of an external fixitor, left femur, and a fusion of two cervical vertebrae. Following the operation, the operative record noted Lutz could move his arms. However, his legs didn’t move. Lutz 1 wants to sue Tri-City for paraplegia said to be the result of his operation.

Tri-City is a public entity. At all relevant times, Tri-City maintained on file with the California Secretary of State and the San Diego County Clerk the statement described in Government Code 2 section 53050 as required by section 946.4. A claim relating to injury to the person is required to be presented to Tri-City within 100 days after the accrual of the cause of action (§§ 945.4, 911.2). As the operation occurred September 30, 1983, Lutz was required to present his claim on or before January 8, 1984. Lutz failed to file any claim. August 31, 1984, some 8 months after the end of the 100-day period, Lutz filed with Tri-City an application to present a late claim which was denied October 25, 1984.

*810 September 26, 1984, Lutz filed with the court his petition for relief from claim requirements under section 946.6 which was denied November 30, 1984. Lutz appeals, contending the court abused its discretion, his physical disability prevented his filing a claim and Tri-City waived its right to require a claim by failing to respond to his notice of intention to commence action for malpractice (Code Civ. Proc., § 364). Lutz’ contentions are meritless.

I

Lutz claims the court abused its discretion in failing to find the failure to file the claim within 100 days was due to excusable neglect. In his August 31, 1984 declaration to support his claim against Tri-City, Lutz states he was “of the erroneous impression that Tri City Hospital was a private hospital and were [sic] surprised to learn that Tri City Hospital is a Hospital District.” The record belies his declaration.

September 25, 1983, Nancy signed on Lutz’ behalf a form of admission agreement at the top of which appears “Tri-City Hospital” in large letters and immediately below, in capital letters “a LOCAL HOSPITAL DISTRICT.”

October 12, 1983, Lutz himself signed two forms of consent to procedures with the same caption. Computerized billing printouts with like captions were mailed to Lutz in October and November 1983.

On March 19, 1984, Lutz signed an authorization for release of medical records to his attorney Donald E. Moses. Smart Corporation, a local copier of such records, copied Tri-City records and mailed them to Moses March 23, 1984. Each of the 44 pages bore the designation in either the lower or upper left corner, “Tri-City Hospital a Local Hospital District.”

The showing necessary for granting a petitioner relief under section 946.6 (former § 912, now § 946.6) through mistake, inadvertence, surprise or excusable neglect is the same as required under Code of Civil Procedure section 473 for relieving a party from a default judgment (Viles v. State of California (1967) 66 Cal.2d 24, 29 [56 Cal.Rptr. 666, 423 P.2d 818]), and is directed to “the 100-day period of section 911.2 and not to the ‘reasonable time not to exceed [1 year]’ period of sections 911.4 and 946.6.” (El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 62, fn. omitted [159 Cal.Rptr. 267].) “The granting or denial of a petition for relief under section 946.6 rests within the discretion of the trial court and *811 its determination will not be disturbed on appeal except for abuse of that discretion. [Citations.]” (Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 725 [173 Cal.Rptr. 4].)

Lutz does not offer any explanation why he was unaware of TriCity’s status as a public entity despite having received documents during and after the 100-day period clearly setting out that status. He offers no explanation why his lawyer failed to discover the status when he received the voluminous medical records, each page of which designated Tri-City as a public entity. Nancy submitted no declaration on her behalf and Lutz makes no reference to or explanation of her failure to discover Tri-City’s status or any efforts on her part so to do. The record does not disclose any efforts of Lutz or his lawyer to ascertain Tri-City’s status and the record is silent as to how that public entity status was discovered on or before August 31, 1984, the date the claim was filed with Tri-City.

Lutz has failed to carry his burden of proof to demonstrate surprise, mistake, excusable neglect or inadvertence. The court did not abuse its discretion in denying relief from late filing as to those counts.

These same comments apply as to Lutz’ failure to seek relief within a reasonable time not to exceed one year. Section 946.6, subdivision (c), requires an explanation for his failure to seek relief within a reasonable time after expiration of the 100 days on January 8, 1984. He did nothing until August 31, 1984, when he filed his claim with Tri-City. He retained Moses on or before March 19, 1984. Moses was in possession of Tri-City records on or shortly after March 23, 1984. Those records clearly show Tri-City’s status. Lutz fails to explain his five-month delay in seeking relief. Considering the circumstances, we conclude the application for relief was not filed within a reasonable time.

II

Lutz asserts his physical incapacity during the 100-day period excuses his failure to present a claim to Tri-City during that time. Section 946.6, subdivision (c)(3), provides for relief from failure to timely file a claim when the person sustaining the injury was physically or mentally incapacitated during the entire 100-day period and by reason thereof failed to present a claim. Lutz has totally failed to present any evidence of physical or mental disability such as to render him incapable of attending to the filing of a claim. (Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116, 121 [90 Cal.Rptr. 479].) Tri-City’s medical records reflect an inability to move his legs. We find no medical evidence with respect to paraplegia and regard his statements and conclusions as to that condition as unsupported. Importantly, Lutz does not suggest how his claimed paraplegia prevented him from *812 attending to his claim within the 100-day time limit. As evidenced by his signature on the medical authorization, he had access to a lawyer and was able to file a claim with Tri-City in August. The court correctly ruled physical incapacity was not the cause of Lutz’ failure to file within the 100-day period.

III

Long after expiration of the 100-day period and on May 30, 1984, Moses filed with Tri-City a notice of intention to commence an action based upon health care provider’s professional negligence (Code Civ. Proc., § 364). The notice names North County Neurosurgical Medical Group, Inc., Robert Andrews, M.D., Tri-City Orthopedic Surgery, James A. Helgager, M.D., and Tri-City Hospital. The notice states theories of liability and the nature of the losses sustained and the injuries suffered, none of which appear to place Tri-City on notice of any instances of misconduct leading to Lutz’ claimed injuries. Lutz argues the failure of Tri-City to respond to that notice within 45 days is a waiver of Tri-City’s defense of failure to present a claim. Section 911.3 provides the failure to give notice within 45 days from the filing of a late claim constitutes the waiver of the defense of untimely filing. The argument meritlessly assumes the filing of the notice constituted the filing of a late claim.

Code of Civil Procedure section 364, subdivision (a), provides no action based on a health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of intention to commence the action. Subdivision (b) does not require a particular form of notice but the notice must set out the legal basis for the claim and the type of loss sustained, “including with specificity the nature of the injuries suffered.”

Failure to comply with Code of Civil Procedure section 364 is not jurisdictional; it simply furnishes a ground for discipline by the state bar. (Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 482 [179 Cal.Rptr. 595].) The Code of Civil Procedure section 364 notice acts to extend and to toll the applicable statute of limitations. (Banfield v. Sierra View Local Dist. Hospital (1981) 124 Cal.App.3d 444, 457 [177 Cal.Rptr. 290].)

On the other hand, submission of a claim to a public entity is a condition precedent to a tort action and the failure to present the claim bars the action. (Williams v. Horvath (1976) 16 Cal.3d 834 [129 Cal.Rptr. 453, 548 P.2d 1125].)

Section 910 mandates the matters that must be shown on the face of the claim filed with the public entity. Lutz’ notice does not include or set forth *813 any of the matters required by section 910 to be enumerated on the face of the claim. These matters enable the public entity to investigate and provide an opportunity for settlement. (Eaton v. Ventura Port Dist. (1975) 45 Cal.App.3d 862, 867 [119 Cal.Rptr. 746].) The failure substantially to comply with these requirements bars the maintenance of the action. (Ibid.)

Lutz’ Code of Civil Procedure section 364 notice does not constitute the filing of a claim, late or otherwise, and Tri-City’s failure to respond does not constitute a waiver of its defense.

Order affirmed.

Kremer, P. J., and Wiener, J., concurred.

1

Lutz’ wife Nancy, who seeks damages for loss of consortium, is included in our references to Lutz, except as otherwise noted.

2

All statutory references are to the Government Code unless otherwise specified.

Cites, in this corpus

Cited by