Wednesday, May 7, 2014
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Failure to Pay Fee No Bar to Government Claim, C.A. Rules
By KENNETH OFGANG, Staff Writer
A plaintiff whose tort claim was accepted by the claims board despite his inadvertent failure to pay the required fee was not barred from suing on the claim, the Court of Appeal for this district ruled yesterday.
“Failure to follow the requirements of the Government Tort Claims Act often bars a plaintiff from filing an action against a state agency,” Presiding Justice Arthur Gilbert wrote for Div. Six. “But not always. The Act recognizes that in certain cases an inflexible application of its requirements produces an unjust result for which relief is available. The instant case is an example.”
The court reinstated Eric Sykora’s suit against what used to be the state Department of Mental Health, now the Department of State Hospitals.
Mental Disorders
Sykora is a former patient of Atascadero State Hospital, having been diagnosed with multiple mental disorders prior to being treated and discharged in May 2011. About 11 days after his release, his sister reported that he was confused and hearing voices, and the next day he was discovered in a pool of his own blood, having cut off his genitals, which he said the devil told him to do.
In November of that year, his attorney mailed a “government claims form” to the Victim Compensation and Government Claims Board, alleging that the state committed medical malpractice by releasing him without psychotropic medication. After the board did not respond, suit was filed against the department in San Luis Obispo Superior Court.
In April 2013, the department moved for judgment on the pleadings, saying Sykora’s action was barred by the claims act. The motion was accompanied by a declaration in which the board’s custodian of records said the plaintiff did not comply with Government Code §911(b)(2), which requires that each claim presented to the board be accompanied by a $25 fee.
Plaintiff’s Opposition
The plaintiff opposed the motion on several grounds, one of which was that the board never informed him of any deficiency in the filing. His attorney attached a declaration saying he or his staff had inadvertently omitted the check for the fee and was unaware of the omission until he received the motion for judgment on the pleadings.
Judge Martin Tangeman granted the motion, finding that the plaintiff’s “inadvertent failure to include the filing fee” meant that the claim was not “accepted” by the board and that the statutory claims-presentation requirement was not complied with.
Gilbert, however, said the ruling was flawed for a number of reasons.
Whether the board “accepted” the claim, he said, was an issue of fact that could not be resolved on a motion for judgment on the pleadings, which is equivalent to a demurrer. Nor could the trial judge properly take judicial notice of the facts sworn to on “information and belief” by the board’s records custodian or make a factual finding based on those facts, the presiding justice said.
Statute Cited
Gilbert further rejected the state’s assertion that the board had no duty to advise the plaintiff of the deficiency. That argument was contrary to §910.8, which allows the board “at any time within 20 days after the claim is presented” to “give written notice of its insufficiency, stating with particularity the defects or omissions therein,” the jurist wrote, and to §911, which says that a “defense as to the sufficiency of the claim” is waived by failure to give notice under §910.8.
The presiding justice rejected the state’s argument that §§ 910.8 and 911 only apply to deficiencies in the contents of claims. The filing fee “is an integral part of the claim,” Gilbert said, noting that §911.2(b) provides that if a claimant applies for a waiver of the fee and is turned down, he or she must be given 10 days to pay, suggesting the Legislature intended to treat nonpayment as a correctible deficiency.
Gilbert elaborated:
“Assume Sykora or his attorney had gone to the Board in person and filed a timely claim without the filing fee. The Board ‘file stamps’ the claim and assigns it a number. Mission accomplished. Sykora or his attorney leaves with the confidence the claim is timely and exchanges a ‘have a nice day’ with the clerk behind the counter. No reasonable interpretation of the legislative scheme would allow the Board to wait until litigation to raise the absence of the filing fee to defeat the claim. There is no reasonable justification for a different result simply because the claim was sent by mail. This ‘gotcha’ tactic was not contemplated by the Legislature.”
The case is Sykora v. State Department of State Hospitals, 14 S.O.S. 2323.
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