The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER DENYING PLAINTIFFS' PETITION FOR ORDER AND RELIEVING PLAINTIFFS FROM THE PROVISIONS OF CALIFORNIA GOVERNMENT CODE § 945.4 [Document #14]
This action stems from the search of Plaintiffs' residence on or about February 7, 2007, and the seizure of eight computers. Six of the computers contained medical records, which were the property of Plaintiffs Emilia C. Ting, M.D., Inc., and Emilia C. Ting, M.D. The search was conducted pursuant to a warrant that concerned Plaintiff Chester S. Garber's potential possession of child pornography. During the search, Plaintiffs Chester S. Garber and Betty Ting were present and told officers that the computers contained medical records, including the medical records of Plaintiffs Emilia Ting, Betty Ting, and Chester S. Garber, business records of Plaintiffs Chester S. Garber and Betty C. Ting, and photographs and business records of Plaintiffs Garber Services Co., Inc., and Golden Valley Aero, Inc. Five of the computers were returned to Plaintiffs. However, Defendant City of Clovis maintains physical possession of three of Plaintiffs' computers and will not unconditionally turn over all items seized. No criminal charges have been filed against Plaintiff Chester S. Garber or any other Plaintiff.
On February 5, 2009, Plaintiffs filed a complaint. The first cause of action is brought pursuant to 42 U.S.C. § 1983 and alleges a violation of Plaintiffs' Fourth and Fourteenth Amendment rights. The second cause of action is brought pursuant to 42 U.S.C. § 1983 and alleges a constitutional violation by the City of Clovis pursuant to an official policy of the municipality. The third cause of action is brought pursuant to California Civil Code §§ 52 and 52.1 and alleges Defendants deprived Plaintiffs of their rights to be free from unlawful searches and seizures under Article 1, sections 7 and 13 of the California Constitution. The fourth cause of action is brought by Plaintiffs Emilia C. Ting M.D. and Emilia C. Ting, M.D., Inc., pursuant to California Civil Code §§ 56.35 and 56.36 in their capacity as an individual patient whose records have been disclosed to the City of Clovis Police Department and on behalf of the individual patients whose records were in her possession when seized in violation of California law. The fifth cause of action is brought by Plaintiff Chester S. Garber pursuant to California Civil Code §§ 56.35 and 56.36 as an individual patient whose medical records were seized in violation of California law. The sixth cause of action is brought by Plaintiff Betty C. Ting pursuant to California Civil Code §§ 56.35 and 56.36 as an individual patient whose medical records were seized in violation of California law.
On August 20, 2009, Plaintiffs filed a petition for the court to issue an order relieving them from the provisions of California Government Code § 945.4 because Defendants have denied Plaintiffs' claim pursuant to the California Tort Claims Act ("CTCA") as untimely. Plaintiffs request the court excuse any failure to comply with the CTCA pursuant to the court's power under California Government Code § 946.6. Plaintiffs contend that they complied with the CTCA by filing a complaint with the Office of Civil Rights, Department of Health and Human Services ("OCR"). In addition, Plaintiffs contend the time within which they had to file a claim pursuant to the CTCA was tolled during the pendency of the time the complaint was pending with OCR. In the alternative, Plaintiffs contend that their claim is timely because there is a continuing violation. Finally, Plaintiffs contend that any failure to present a claim within the six month time limit should be excused because of mistake, inadvertence, surprise, and excusable neglect.
On September 15, 2009, Defendants filed an opposition to Plaintiffs' petition for relief from complying with the CTCA. Defendants contend Plaintiffs did not file a claim within six months of the date of the search with Defendant City of Clovis, and Plaintiffs have not provided the court with grounds to excuse the late filing.
On October 9, 2009, Plaintiffs filed a reply brief.
In the pending motion Plaintiffs request that the court relieve them from the provisions of California Government Code § 945.4 of the CTCA. Plaintiffs contend the court has jurisdiction to relieve them from the CTCA 's requirements pursuant to California Government Code § 946.6. Section 946.6(a) provides:
If an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4. The proper court for filing the petition is a superior court that would be a proper court for the trial of an action on the cause of action to which the claim relates. If the petition is filed in a court which is not a proper court for the determination of the matter, the court, on motion of any party, shall transfer the proceeding to a proper court. If an action on the cause of action to which the claim relates would be a limited civil case, a proceeding pursuant to this section is a limited civil case.
Cal. Gov. Code § 946.6. The granting of a petition under Section 946.6 allows the petitioner to bypass the claims procedure altogether and does not then require the re-filing of a late claim. Los Angeles City School Dist. v. Superior Court, 9 Cal.App.3d 459, 467-68 (1970).
Under Government Code section 946.6, a court shall relieve the petitioner from Government Code section 945.4 (necessity of written claim acted upon by board or deemed to have been rejected) if the court finds (1) the application to the board under Government Code section 911.4 was made within a reasonable time not to exceed that specified in Government Code section 911.4, subdivision (b) (one year after the accrual of the cause of action); (2) the application was denied or deemed denied pursuant to Government Code section 911.6 (grant or denial of application by board); and (3) the failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes it would be prejudiced in the defense of the claim if the court relieves the petitioner from Government Code section 945.4.
The court decides whether to grant relief pursuant to Section 946.6 on the basis of the petition, declarations, and evidence offered in support of or opposition to the petition. Ovando v. County of Los Angeles, 159 Cal.App.4th 42, 64 (2008); Jefferson v. County of Kern, 98 Cal.App.4th 606, 612 n.16 (2002); County of Sacramento v. Superior Court, 42 Cal.App.3d 135, 139 (1974). "The statute grants the court discretion to determine whether the statutory grounds are satisfied and contemplates factual findings by the court in connection with that exercise of discretion." Ovando,159 Cal.App.4th 42, 65 (2008). The right to trial by jury does not extend to a request for relief under Section 946.6. Santee v. Santa Clara County Office of Education, 220 Cal.App.3d 702, 711 (1990); County of Sacramento, 42 Cal.App.3d at 140. The party seeking relief pursuant to Section 946.6 bears the burden of proof. Munoz v. State of California, 33 Cal.App.4th 1767, 1783 (1995); Santee, 220 Cal.App.3d at 708; Moore v. State of California, 157 Cal.App.3d 715, 727 (1984). The petitioner has the burden to prove by a preponderance of the evidence that his or her failure to timely present a claim to the public entity was due to mistake, inadvertence, surprise or excusable neglect. Rojes v. Riverside General Hospital, 203 Cal.App.3d 1151, 1162 (1988), overruled on another ground in Passavanti v. Williams, 225 Cal.App.3d 1602, 1607 (1990); Shank v. County of Los Angeles, 139 Cal.App.3d 152, 156 (1983).
Plaintiffs contend that this Federal District Court has the ability to make a finding under Section 946.6. Defendant does not dispute this court's jurisdiction to make a ruling pursuant to Section 946.6. There is support for Plaintiffs' position that this court has jurisdiction over Plaintiffs' request. See, e.g., Rahimi v. National R.R. Passenger Corp. (Amtrak), 2009 WL 1883756, *4 (N.D.Cal. Jun 30, 2009) (granting jurisdiction for claims arising under § 946.6); Perez v. Escondido, 165 F.Supp.2d 1111, 1115 (S.D.Cal. 2001) (same). But see, e.g., Hernandez v. McClanahan, 996 F.Supp. 975, 978 (N.D.Cal.1998) (denying jurisdiction for claims under California Gov.Code § 946.6); Luers v. Smith, 941 F.Supp. 105, 108 (C.D.Cal.1996) (same). Because all parties have assumed, without briefing the issue, that this court has jurisdiction and the ability to grant relief from complying with the CTCA and because there is support for such a finding, the court finds it is not precluded from granting the relief Plaintiffs seek through California Government Code § 946.6.
FACTS CONCERNING THE FILING OF A CTCA CLAIM*fn1
On February 7, 2007, officers of the Clovis Police Department served a search warrant at the residence of Plaintiff Chester S. Garber. Eight computers were seized, including six computers that contained medical records.
On March 20, 2007, Roger Nuttall, an attorney representing Chester S. Garber in potential criminal proceedings, filed an ex parte application for the recovery of seized property in the Fresno County Superior Court. On April 10, 2007, Mr. Nuttall entered into a stipulation with the City of Clovis to return five computers. In these filings, Mr. Nuttall represented that he was the attorney for Chester S. Garber. Plaintiffs believe the Clovis Police Department made and has kept copies of the information contained on these five computers.
On or about February 7, 2008, Defendant City of Clovis advised Mr. Nuttall, that it would make copies of all of the business records seized on February 7, 2007, and provide them to Plaintiffs by March 31, 2008. On or about April 25, 2008, Defendant City of Clovis advised Mr. Nuttall that it was having trouble completing that task. To expedite the process, Mr. Nuttall asked that all items seized from the residence on February 7, 2007, be returned. Defendant City of Clovis agreed that this would be a viable option if Plaintiffs agreed that Defendant City of Clovis could delete the files/images that it alleges constitute child pornography. Plaintiffs would not agree to this condition.
On July 18, 2007, Mr. Nuttall sent a complaint to the OCR, alleging multiple violations of the Health Insurance Portability and Accountability Act, ("HIPAA"), Public Law 104-191, Title 42 U.S.C. §1320d-1(a) against the City of Clovis Police Department ("hereinafter OCR complaint"). Mr. Nuttall enclosed complaint forms for each Plaintiff.
On January 10, 2008, the OCR sent Mr. Nuttall a letter at his business address. The letter informed Mr. Nuttall that the OCR was not able to accept the complaint for further investigation because the allegations, even if substantiated, did not violate HIPAA's privacy rules. Mr. Nuttall does not have a ...