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Court of Appeal:
No Equitable Tolling Based on Lawyer’s Blunder
By a MetNews Staff Writer
A party’s delay in filing a petition for a writ of administrative mandamus is not “reasonable” simply because its attorney was confused as to the deadline, Div. One of the First District Court of Appeal held yesterday, rejecting the claim that the period for seeking relief was equitably tolled.
Presiding Justice James M. Humes wrote the opinion which affirms a San Mateo Superior Court judgment dismissing a petition filed by Saint Francis Memorial Hospital seeking to overturn a $50,000 fine imposed on it by the California Department of Public Health based on a sponge being left in a patient during surgery. The petition was not filed within the 30-day period provided by Government Code §11523.
Humes wrote an opinion filed May 23, 2018 Affirming the judgment, but the California Supreme Court granted review. It issued its opinion on June 29, 2020, authored by Justice Mariano-Florentino Cuéllar.
Third Element
Cuéllar said the first two elements of equitable tolling—timely notice of an intent to file a writ petition and lack of prejudice—were met, but pointed to a third element: “the reasonable and good faith conduct of the party invoking it.” He declared:
“[W]e cannot from this record glean, nor has the Court of Appeal thoroughly addressed, whether Saint Francis satisfies that element. So we vacate the judgment and remand for the Court of Appeal to determine whether the third element of equitable tolling is satisfied.”
Humes said that the Department of Public Health acknowledges good faith on the part of the hospital, observing “that the only question we must decide is whether Saint Francis’s actions were objectively reasonable.” He declared:
“We conclude that they were not, because it is not objectively reasonable for an attorney to miss a deadline to file a petition due to a failure to appreciate easily ascertainable legal principles. Thus, although we sympathize with Saint Francis’s counsel and recognize it is easy to make such mistakes, we must again affirm the trial court’s judgment.”
Reconsideration Sought
After the department’s decision was made, the attorney representing the hospital, Cyrus A. Tabari, requested reconsideration, assuming the 30-day period for seeking writ relief would commence upon a denial of that request. However, the opinion had declared: “This Final Decision is signed on 12/15/15, and shall be effective immediately.”
By virtue being effective immediately, Humes noted, reconsideration was barred.
The fact that staff counsel also initially assumed that reconsideration would lie does not aid the hospital, the jurist said, explaining:
“[F]iguring out the correct deadline was a relatively simple matter of reading the decision and the applicable statutes: and the fact that two attorneys failed to pay close attention does not seem to us to make the mistake any more reasonable. This is especially true because Saint Francis had far more incentive to be careful than did the Department’s staff counsel as incorrectly calculating the deadline could negatively impact only Saint Francis’s rights.”
He added that “the Department’s failure to correct” the hospital lawyer’s misconception “did not render the mistake objectively reasonable.” Humes remarked that if the error does not constitute a “garden variety” instance of excusable neglect, which would not give rise to equitable tolling, “we do not know what would.”
The case is Saint Francis Memorial Hospital v. State Dept. of Public Health, 2021 S.O.S. 173.
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