Metropolitan News-Enterprise


Tuesday, May 21, 2002


Page 3


Timeliness of Governmental Tort Claim Is Jury Issue, Court of Appeal Rules


By a MetNews Staff Writer


A Kern Superior Court judge erred by denying the plaintiff a jury trial on the issue of when his cause of action accrued for purposes of the Tort Claims Act, the Fifth District Court of Appeal has ruled.

In an opinion that was modified and ordered published this past Friday, Justice Nick Dibiaso said Clayton Jefferson was entitled to a trial on that issue under the state Constitution. Judge Jon E. Steubbe was in error in ruling that because the claims-presentation requirement was enacted after the constitutional provision, the latter did not apply, the justice reasoned.

Clayton, a minor, alleged in his notice of claim—through his mother—that he was treated at a county medical facility between October 1997 and March 1998, but did not discover until June 1998 that he had been the victim of malpractice. His claim was mailed to the county clerk in October 1998.

The county returned the claim as untimely. After Clayton’s attorney presented a request for leave to present a late claim, the county rejected it both as to timeliness and as to the merits.

Suit was filed in March 1999. The county pled that the claim was untimely and moved successfully for a bifurcated trial on the issue.

The trial judge, over the plaintiff’s objection, conducted a one-day bench trial and ruled that the suit was barred because the cause of action accrued more than six months before the claim was presented.

But Dibiaso rejected Steubbe’s reasoning for denying the jury trial.

“If respondents’ argument prevailed, there would be few if any actions against public entities where a jury trial would be permitted, because the Tort Claims Act did not exist in 1850,” the justice noted. The prevailing interpretation of the constitutional provision, he explained, is that the jury right “exists when a current case is of the same ‘class’ or ‘nature’ as one which existed in 1850” when the Constitution was enacted.

Nor, the jurist said, is the trial of an accrual date a “special proceeding” to which the right would not apply.

Dibiaso distinguished Windsor Square Homeowners Assn. v. Citation Homes (1997) 54 Cal.App.4th 547, which held that a res judicata defense was triable solely by the court, even when disputed issues of fact must be resolved.

Dibiaso said that case “ did not involve a disputed issue of fact based upon conflicting evidence but rather a disputed issue of law based upon undisputed facts—in other words, a legal issue of the sort which is traditionally the peculiar province of the court.”

The issue raised by the timeliness defense in Clayton’s case—“when a plaintiff knew or should have known about the existence of possible medical malpractice”—is traditionally decided by juries, the justice said.

The case is Jefferson v. County of Kern, 02 S.O.S. 2414.


Copyright 2002, Metropolitan News Company