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Barragan v. County of Los Angeles

May 25, 2010

VERONICA BARRAGAN, PLAINTIFF AND APPELLANT,
v.
COUNTY OF LOS ANGELES, DEFENDANT AND RESPONDENT.



APPEAL from an order of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. MS006356).

The opinion of the court was delivered by: Croskey, J.

CERTIFIED FOR PUBLICATION

Petitioner and appellant Veronica Barragan was rendered quadriplegic in a single-car rollover accident. She was hospitalized for three months following the accident, and virtually bedridden for the next seven months. Thereafter, she consulted an attorney, who determined that she may have a claim against respondent County of Los Angeles (County) for dangerous condition of the road where the accident occurred. Under the Tort Claims Act (Gov. Code, § 905, et seq., TCA), an individual claiming personal injury must file a claim with the relevant governmental entity within six months. (Gov. Code, § 911.2.) As Barragan missed that deadline, she filed an application for leave to present a late claim, which was denied. She then filed, with the trial court, a petition for relief from the TCA filing requirements, arguing: (1) excusable neglect; and (2) physical and mental incapacity. The trial court denied the petition on the second ground, concluding that while Barragan was disabled, Barragan had not proven that her disability was the cause of her failure to file a timely claim. As to the first ground, the trial court indicated that it would have found that Barragan established excusable neglect, but for case authority which appears to establish a strict rule that neglect cannot be excusable if the injured party made no effort to obtain counsel within six months. Barragan appeals. We conclude that the rule mandating an injured party attempt to obtain counsel within six months in order to establish excusable neglect is not absolute, and may, instead, be overcome by evidence of disability. We therefore reverse.

FACTUAL AND PROCEDURAL BACKGROUND

At 9:00 p.m. on April 12, 2007, Barragan, a 33-year-old engaged mother of two, was in a single-car accident on Palmdale Boulevard, a rural roadway with one lane in each direction. Barragan's car went off the road, onto a dirt shoulder and up a rock and dirt embankment, where it rolled over repeatedly, coming to rest on the dirt shoulder. Barragan has no memory of the accident. The CHP report of the accident indicates that, at the scene, Barragan admitted drinking alcohol earlier. However, the laboratory was unable to analyze her blood sample, so a supplement to the CHP report indicates that there is not enough evidence to establish that Barragan was driving under the influence.*fn1 Barragan's vehicle was towed to a yard. At some point, Barragan's fiancé went to the yard and took photographs of the car. On August 16, 2007, the manager of the towing yard had the car dismantled and sold for scrap.*fn2

After the accident, Barragan was immediately taken to the hospital. She had difficulty breathing and was intubated. A tracheostomy was performed. Barragan was paralyzed from the neck down, although she had slight motion of her upper extremities. Imaging showed significant spinal cord injury. Barragan was diagnosed with quadriplegia. Surgery was performed to stabilize her spine. By May 9, 2007, Barragan had undergone several surgical procedures, including the insertion of a gastrostomy tube for feeding. By this point, she had "some significant return of upper extremity function although she does remain quite compromised." She was transferred to a rehabilitation facility at a different hospital.

A few hours after her arrival at the rehabilitation facility, Barragan, who still had the tracheostomy tube in place, experienced respiratory distress. She was transferred to the intensive care unit and placed on a ventilator. Nonetheless, she was evaluated by a physiatrist, regarding a rehabilitation plan. Thomas Nasser, D.O., anticipated a minimum rehabilitation stay of four to six weeks, but more realistically, one of eight to twelve weeks. His consultation report indicated twelve areas of short-term concern, ranging from having Barragan's position in bed turned every two hours to avoid pressure wounds, to occupational therapy to regain some functions of daily living and self-care. Barragan was still taking 75% of her nutrition through the gastrostomy tube; the plan was to increase her oral intake until the tube was unnecessary. Barragan's bladder was being drained by a catheter; the plan was to discontinue the catheter and replace it with timed voids and intermittent catheterization, with the ultimate, "very difficult," goal of Barragan being able to catheterize herself independently, with the use of a pincher grasp tool. It was also planned that Barragan would begin bowel training, including "the usage of medications, manual evacuation, and timed bowel movements." Barragan was ultimately to be given a tenodesis splint "for functional usage of the upper extremities," and would eventually need a power wheelchair. Dr. Nasser indicated that, once Barragan was in the rehabilitation unit, she would require "extensive nursing care for family training, hygiene, self-care, and patient education with regards to medications."

The records are unclear as to when Barragan's respiratory problem was resolved and she was able to begin rehabilitation. She remained at the hospital until July 2, 2007. The discharge summary indicates some significant improvement in several areas. Both the tracheostomy tube and the gastrostomy tube had been removed, and Barragan was able to "feed orally at a near independent level." She could use tenodesis splints. She could not, however, transfer independently to her wheelchair and needed the use of a lift, which she was supplied for her use at home. She was also given a reacher, bedside commode, and power chair. In summary, the discharge notes stated that Barragan's "rehabilitative prognosis is somewhat poor for functional improvement although admission and discharge examinations did show that she did advance by approximately one level." She was noted to have "multiple social issues and require[] social support with home health and home therapies."

Once home, Barragan did not leave her bed for the first few months. In a declaration, Barragan described her condition upon returning home as "like a newborn baby." She could not do anything on her own, and could not even support herself to sit up. She required pillows to be wedged around her so that she would not fall over. She could not feed herself and, for the first weeks, had to be fed. Eventually, she learned how to use an elastic aid to help her hold a fork or spoon. By early 2008, Barragan could hold a toothbrush, using both hands, although she required assistance in putting the toothpaste on the brush. By May 2008, Barragan was able to dial a telephone, with difficulty, as she often pushes more than one button at once. She usually asks someone to help her dial the telephone.

Having others stretch her fingers to open her hands was, and continues to be, painful. Having her body manipulated to get her dressed or taken to the car is also painful. For her pain, Barragan was prescribed Tylenol with codeine and Valium. The medications make it difficult for her to think clearly. Barragan experiences spasms at night, and has been prescribed a sleep aid, which often makes her groggy in the mornings. During the last half of 2007, Barragan was often depressed and would sometimes cry all day long.

There is no television in Barragan's bedroom. In February 2008, her fiancé helped her, for the first time, sit in a chair in another room and watch television. At that point, she saw a commercial for attorneys. She decided that she should contact an attorney with regard to her accident. Her fiancé helped her dial the telephone. As a result of that call, Barragan obtained counsel on February 12, 2008. According to Barragan, she did not decide to speak to an attorney until after she had "regained some of [her] strength after [her] long hospital stay and [her] rest period at home." Barragan did not then think that she might have a claim against the County; her only thought was perhaps pursuing the business that had sold her the car.*fn3

Barragan's attorney sought the CHP report of the accident; he did not receive it until April 4, 2008. Upon its receipt, Barragan's counsel learned of the rock and dirt embankment at the accident site, and immediately recommended filing an application for leave to file a late claim against the County. Counsel also retained an accident expert, and obtained a collision history of the accident site.

On April 9, 2008, slightly less than one year after the accident, Barragan filed with the County both an application for leave to present a late claim and the late claim itself. On April 16, 2008, the County returned the claim itself with no action taken, on the basis that it was untimely. That same day, the County deemed the application for leave to file a late claim denied as a matter of law.

On July 17, 2008, Barragan filed, in superior court, a petition for relief from the TCA filing requirements.*fn4 Under Government Code section 946.6, relief may be granted when the petitioner establishes that one of several itemized circumstances applies.*fn5 Two of these circumstances are at issue in this case: (1) "[t]he failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from [the claim filing requirements]" (Gov. Code, § 946.6, subd. (c)(1)); and (2) "[t]he person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the [six-month period] for the presentation of the claim and by reason of that disability failed to present a claim during that time." (Gov. Code, §§ 946.6, subd. (c)(3), 911.2, subd. (a).) We refer to these grounds for relief as "excusable neglect" and "incapacity," ...


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