Silverbrand v. State of California

Filed 2/23/07 Silverbrand v. State of California CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Frank Y. Jackson, Judge. Affirmed in part and reversed in part.

Peter Silverbrand, in pro. per., for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Jim Schiavenza, Assistant Attorney General, Richard J. Rojo and Jung D. Shin, Deputy Attorneys General, for Defendants and Respondents.

* * * * * *

Peter Silverbrand appeals from a summary judgment in favor of respondents, the State of California (State) and its health care provider employees, on the grounds that he failed to file this action within the statute of limitations prescribed by the Government Claims Act (Gov. Code, 900 et seq.), that the statute of limitations was not tolled by his service of a notice of intention to sue for medical negligence and that he failed to exhaust his administrative remedies before filing a claim with the California Victim Compensation and Government Claims Board (Board) and this action. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Appellant, a state prison inmate, filed a complaint naming the California Department of Corrections (sometimes hereinafter Department or State), the County of Los Angeles (county) and their respective health care provider employees as defendants.

1. Allegations of the Complaint

Appellant directed his first two causes of action against the county and its employees (county defendants). Appellant alleged he underwent a hemorrhoidectomy at the countys High Desert Hospital on May 3, 2001. The county defendants negligently performed the procedure and postoperative care. As a result, appellant suffered an anal stricture causing severe and painful constipation. This condition lasted until corrective surgery took place on October 24, 2001. The county defendants negligently inserted a Foley tube catheter into appellants bladder during the corrective surgery, causing lesions and a blood clot resembling a tumor. Appellant consequently was diagnosed with a possible malignant bladder tumor and suffered anxiety until tumor tests came back negative. Following the surgeries, appellant continued to suffer from conditions including irritable bowel syndrome.^[1]

Appellant directed his third, fourth, fifth and sixth causes of action against respondents, the State and its employees.

In the third cause of action, appellant alleged that on June 14, 2001, respondents Brenda Holder, R.N., and Sudhir Bagga, M.D., negligently caused a 112-day delay in the diagnosis and treatment of his anal stricture by failing to take appellant to a scheduled followup appointment at the High Desert Hospital clinic. As a result, his diagnosis was delayed until October 4, 2001.

The fourth cause of action alleged that on and after August 15, 2001, respondent Mallika Attygalla, M.D., negligently failed to submit a referral for appellant to be seen by a surgeon and repeatedly told appellant she had written a referral when she had not. Such failure caused a 41-day delay in the treatment of the anal stricture.

In the fifth cause of action, appellant alleged that on June 6, 2001, respondent Anwan Ntofon, Pharmacist II, negligently failed to refill appellants prescription for milk of magnesia, causing appellant to go without it for eight days.

The sixth cause of action alleged that on June 14, 2001, respondents Holder and Dr. Bagga intentionally failed to take appellant to his scheduled followup appointment at the High Desert Hospital clinic. The missed appointment caused the delay in the diagnosis and treatment of his anal stricture, and appellant claims punitive as well as compensatory damages for the conduct.

2. Motion for Summary Judgment

Respondents moved for summary judgment or, alternatively, for summary adjudication of issues.

Respondents asserted that appellants third, fourth and sixth causes of action were barred because appellant had failed to comply with the Government Claims Act in that appellant failed to file his action within six months of written notice of the rejection of his claim by the Board. Respondents further asserted that appellants fifth cause of action is barred because he failed to exhaust his administrative remedies before filing his claim with the Board and filed this action without the Boards first rejecting his claim.

Specifically, respondents asserted the undisputed facts established: (1) regarding appellants third cause of action for the prison staffs negligently causing a 112-day delay in the treatment of his anal stricture, appellant filed a claim with the Board on January 7, 2002, the Board rejected his claim on May 24, 2002, and written notice of the rejection was mailed to appellant on June 7, 2002; (2) regarding appellants fourth cause of action for the prison staffs negligently causing a 41-day delay in the treatment of his anal stricture, appellant filed a claim with the Board on February 4, 2002, the claim was rejected on March 22, 2002, and the written rejection was mailed to appellant on April 2, 2002; and (3) regarding appellants sixth cause of action for the prison staffs intentionally causing a 112-day delay in the treatment of his anal stricture, appellant filed his claim with the Board on January 7, 2002, the claim was rejected on May 24, 2002, and written notice was mailed to appellant on June 7, 2002.

As to these three causes of action, respondents contended that appellants complaint was not filed until March 27, 2003, which was more than six months after the notice of rejection for each claim was placed in the mail.

With respect to appellants fifth cause of action, respondents asserted the undisputed facts established that appellant failed to exhaust his administrative remedies, as follows. Appellant filed a claim with the Board on January 7, 2002, claiming the prison staff negligently failed to provide him with milk of magnesia over an eight-day period. The Board sent appellant a notice of insufficiency on February 13, 2002, stating that appellant was required to exhaust his administrative remedies. Appellant sent a letter to the Board on April 18, 2002, regarding his difficulty in exhausting administrative remedies. The Board responded by sending appellant another notice of insufficiency on May 17, 2002, and again requested him to exhaust his administrative remedies. Appellant had filed an Inmate/Parolee Appeal Form (form 602) on June 11, 2001. The inmate appeals coordinator responded on June 19, 2001, stating, This investigation reveals that your prescription was filled by the pharmacy on 6-14-01. Instead of going on to the next appeal level, appellant filed another form 602 appeal on the same issue on December 5, 2001. The prison inmate appeals coordinator erroneously responded that the appeal was a duplicate appeal. Appellant then wrote to the inmate appeals coordinator clarifying the error. The coordinator responded on March 22, 2002, stating the December 5, 2001, appeal was untimely.

3. Opposition to Motion for Summary Judgment

Appellant asserted he timely submitted four claims for medical malpractice to the Board; the Board denied three of the claims on the merits and refused to consider the fourth claim based on a failure to exhaust administrative remedies at the Department level.

Appellant further contended the limitations period was tolled for 90 days under Code of Civil Procedure section 364 (section 364), which requires potential medical malpractice plaintiffs to notify health care providers of their intent to sue 90 days before filing a complaint. Respondents were served with notices of intent to sue on September 6, 2002.

Appellant also contended his action was timely because his wife, Betty Ballard, had mailed a complaint and a money order for the full amount of the filing fee to the superior court by express mail on December 6, 2002. Appellant claimed the packet arrived at the court during normal business hours on December 9, 2002, was signed for by a clerk and then disappeared.^[2] According to appellant, he submitted the same complaint again on January 22, 2003, but the clerk rejected the filing because he used obsolete forms. Ballard submitted a personal check for the filing fee to the clerk on March 10, 2003, and appellant resubmitted a complaint using the proper form on March 24, 2003. The complaint was officially filed by the clerk on March 27, 2003.

4. Summary Judgment and Appeal

The court granted respondents motion for summary judgment and entered a judgment of dismissal against appellant. The court determined that appellants third and sixth causes of action, rejected by the Board on June 7, 2002, should have been filed no later than December 7, 2002, and that his fourth cause of action, rejected by the Board on April 2, 2002, should have been filed no later than October 2, 2002. The court concluded that appellant failed to establish his complaint was constructively filed on December 9, 2002. The court considered appellants claim that a court clerk signed for an express mail delivery allegedly containing the complaint and money order for the filing fee. However, even though appellant had attached a copy of the postal service tracking confirmation, the court reasoned: there is no evidence that the Court received the complaint and correct filing fee to prove that the complaint should have been filed as of [that] date. The evidence is that the Complaint was not filed and that the Money Order for the filing fee was never cashed. Pursuant to [Duran v. St. Lukes Hospital (2003) 114 Cal.App.4th 457], the fact that a clerk received the pleadings does not constitute a filing. Even were the court to accept appellants argument that a notice of intention to sue under section 364 served to toll the six-month statute of limitations under the Government Claims Act by 90 days, the court noted it would find appellants complaint still untimely since the complaint was not filed until March 27, 2003. The court further concluded as to the fifth cause of action that appellant had failed to exhaust his administrative remedies before filing his claim.

After unsuccessfully moving for a new trial, appellant timely appealed from the judgment.

STANDARD OF REVIEW

Summary judgment is proper when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) We review the trial courts grant of summary judgment de novo, considering all of the evidence the parties offered in connection with the motion and the uncontradicted inferences reasonably supported by the evidence. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

DISCUSSION

1. There Is a Triable Issue of Fact Whether Appellants Third, Fourth and Sixth Causes of Action Were Timely Filed

Appellant contends he timely filed his action because he had until December 9, 2002, to file his third and sixth causes of action and until December 31, 2002, to file his fourth cause of action. He argues that his complaint was constructively filed when the clerk received his original complaint, together with a money order for the full filing fee, on December 9, 2002. We agree with appellant that there is at least a triable issue of fact whether his third, fourth and sixth causes of action were timely filed. He presented evidence from which it could be inferred as to the third and sixth causes of action that his complaint was constructively filed on December 9, 2002, and that the six-month statute of limitations, as to the fourth cause of action, was tolled to December 31, 2002.

The statute of limitations in actions against a public entity and its employees is governed by the Government Claims Act. Under the act, a plaintiff cannot sue a public entity or public employees unless he or she first presents a written claim for money or damages to the entity and the claim has been acted upon or deemed to have been rejected by the entity. (Gov. Code, 905, 945.4.) A claim based on a cause of action for a personal injury must be filed within six months after the cause of action accrues. (Gov. Code, 911.2; V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 508.) With certain exceptions, an action against a public entity on a cause of action for which a claim must be presented must be commenced not later than six months after a written notice rejecting the claim is personally delivered or deposited in the mail. (Gov. Code, 945.6, subd. (a)(1); County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267-1268.)

A. Appellant Presented Sufficient Evidence Raising a Triable Issue Whether the Complaint Was Constructively Filed on December 9, 2002

Appellant argues his complaint was constructively filed on December 9, 2002, when the court clerk received, but lost, the complaint and money order his wife mailed on December 6, 2002. In the trial court, appellant submitted proof by way of a declaration from his wife attesting that she sent the complaint, together with a money order for the full filing fee, by express mail to the court clerk on December 6, 2002. Appellant also submitted a copy of the postal service customer receipt for the mailing as well as a tracking confirmation showing the mailing was received by the court on December 9, 2002. The complaint was not in fact filed by the court on December 9, 2002, and the money order for the filing fee was never cashed.

The evidence appellant presented, however, indicated he did everything in his power to insure the court clerk timely received his complaint and correct filing fee. Appellant presented sufficient evidence to raise at least a triable issue of fact whether the complaint was constructively filed on December 9, 2002. (See Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1270 [a complaint is filed when it is presented to the clerk for filing in the form required by state law]; United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 918 [it is the filers actions that are scrutinized in determining whether a petition was timely filed].) Moreoever, respondents do not suggest what more steps appellant, a prisoner, could or should have taken to insure the package was not lost by the court once received.

Respondents in fact admit in their brief that [t]he complaint and filing fee money order were delivered to the court on December 9, 2002 and signed for by the clerk of the court. Duran v. St. Lukes Hospital, supra, 114 Cal.App.4th 457, upon which the trial court relied, is distinguishable for that reason. The plaintiff in Duran submitted his complaint to the clerk with an insufficient filing fee. (Id. at pp. 459-460.) Here, there is no dispute that the money order submitted with appellants complaint was for the correct amount of the filing fee.

The trial court erred in concluding there was no constructive filing on December 9, 2002, and in granting summary judgment on that basis.

B. A Triable Issue of Fact Exists Even if Appellant Used an Obsolete Court Form

Respondent argues that even if it is assumed appellants wife mailed a complaint to the clerk on December 6, 2002, appellant admits the complaint was on the same obsolete form as the second attempted mailing submitted on January 22, 2003, which was rejected by the clerk for failure to comply with California Rules of Court, former rules 201 and 201.1.^[3]

The clerks notice indicated the January filing was rejected because the filing [d]oes not conform to CRC, rule 201 and because the [f]orm [n]umber complaint is obsolete.

The clerk could not properly have rejected the form complaint under former rule 201. Former rule 201 specifies the form and format of papers presented for filing to the clerk. Former rule 201(a)(1) defines  [p]apers  as not including Judicial Council . . . forms, and former rule 201(k) specifically provides that this rule does not apply to Judicial Council forms. (Italics added.) Appellants complaint was on an optional Judicial Council form.

Respondents argue the court lawfully could have rejected the form complaint as obsolete under former rule 201.1. Former rule 201.1(c)(1) states, Forms approved by the Judicial Council for optional use . . . may be used by parties and must be accepted for filing by all the courts. (Italics added.) Former rule 201.1(f) lists reasons for which a court must not reject for filing a Judicial Council form. An obsolete form is not one of the listed reasons for which a court must not reject a form for filing under former rule 201.1(f). Respondents argue that former rule 201.1 should be read as providing that the clerk must reject a nonconforming form for filing unless it falls within one of exceptions listed in that rule. We do not read former rule 201.1(f) so narrowly. Nowhere in former rule 201.1 is it stated that only the latest revision of an optional Judicial Council form may be used.

Moreover, as appellant points out, there was only a minor difference between the obsolete form complaint appellant first tendered to the clerk and the form complaint that the clerk ultimately accepted for filing. The newer revision of the Judicial Council personal injury complaint and the earlier revision substantively differed primarily in the prayer for relief. In all his pleading, however, appellant consistently requested damages according to proof. Thus the substance of his pleadings remained the same. Where . . . the defect, if any, is insubstantial, the clerk should file the complaint . . . . (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777.)

Under these facts, the clerk would not have been justified in rejecting the original complaint merely because appellant used an obsolete optional Judicial Council form.

2. The Six-month Limitation Period for the Fourth Cause of Action Was Tolled for 90 Days

The Boards written notice rejecting appellants claim asserted in the fourth cause of action was deposited in the mail on April 2, 2002. Under the Government Claims Act, appellant should have filed his action on that claim no later than October 2, 2002. (Gov. Code, 945.6, subd. (a)(1).) Appellant contends his fourth cause of action was timely filed because the statute of limitations was tolled by 90 days as a result of his service of a notice of intention to sue for medical negligence.

Subdivision (d) of section 364 provides that if the notice of intention to sue is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice. Subdivision (a) of section 364 declares that [n]o action based upon the health care providers professional negligence may be commenced unless the defendant has been given at least 90 days prior notice of the intention to commence the action. The statute thus does not distinguish between private health care provider defendants or governmental health care provider defendants.

Our Supreme Court has held that when such a notice is served within the 90-day period, the applicable statute of limitations is tolled for 90 days. (Woods v. Young (1991) 53 Cal.3d 315, 319, 325 [tolling results in a period of 1 year and 90 days in which to file the lawsuit].) The Supreme Court has also indicated the tolling provision applies to the six-month statute of limitations under Government Code section 945.6. (Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 218 (Reiswig), citing Wurts v. County of Fresno (1996) 44 Cal.App.4th 380, 385 (Wurts), and Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1204-1205 (Anson).) As the Supreme Court explained in Reiswig,   a plain reading of the language of subdivision (d) of Code of Civil Procedure section 364 extends the six-month period by ninety days from service of the notice of intention to institute legal action.   (Reiswig, at p. 218.)

In this case, with respect to his fourth cause of action, appellant timely filed a claim under Government Code section 910, which was rejected on April 2, 2002. Pursuant to Code of Civil Procedure section 364, appellant later served a notice of intention to sue on September 6, 2002, i.e., within 90 days of the expiration of the six-month limitations period after rejection of the claim. Appellants notice specifically stated, This notice is served upon you pursuant to Code of Civil Procedure, section 364, and the notice detailed his claimed injury pursuant to the statute.

Respondents contend that suits against public entities or public employees are governed by the specific statute of limitations provided in the Government Code, rather than the statute of limitations that applies to private defendants. (Martell v. Antelope Valley Hospital Medical Center (1998) 67 Cal.App.4th 978, 981; see also County of Los Angeles v. Superior Court, supra, 127 Cal.App.4th at p. 1267.) However, neither Martell nor County of Los Angeles helps respondents since, in the present case, it is not disputed that the six-month statute of limitations under the Government Claims Act applies to appellants cause of action. The question presented here is whether the 90-day extension under section 364 applies, an issue not present in Martell or County of Los Angeles.

Respondents argue that, the six-month statute of limitations under the Government Claims Act cannot be extended by provisions outside the act. (Anson, supra, 202 Cal.App.3d at p. 1200.) They also argue that, because appellants government claim satisfied section 364 requirements, service of the subsequent notice of intention to sue did not extend the six-month statute of limitations.

There is a crucial difference between the information required for a government claim and the information required for a notice of intention to file suit for medical negligence. Section 364, subdivision (b) requires a plaintiff to provide specific details regarding the claim: [n]o particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. In contrast, a claim made under the Government Claims Act need only contain [a] general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. (Gov. Code, 910.)

Respondents argue that, unlike in Anson, appellants claim here was sufficiently specific to serve as a notice of intention to file suit for medical negligence and therefore appellants September 9, 2002 notice was mere surplusage. We agree that appellants government claim contained all the specifics necessary to satisfy the requirements of a notice of intent to sue for medical negligence. However, as the Fifth District noted in a case subsequent to Anson, [a] claimant who . . . has complied with the letter and spirit of both [Code of Civil Procedure] section 364 and Government Code section 910 is entitled to the full benefit of both statutes, including tolling for 90 days of the 6-month limitations period of Government Code section 945.6. (Wurts, supra, 44 Cal.App.4th at p. 387.) Wurts held that when . . . the pertinent facts do not disclose an intent on the part of the claimant to combine the two, the tort claim cannot be deemed to also constitute a notice [of an intention to sue]. (Id. at p. 388.) As Wurts noted, [h]aving relied upon the section 364 extension to file an action more than six months after the date of mailing of the notice of rejection, the claimant should not be subject to losing his or her lawsuit by a later determination that what was in fact nonessential information in the tort claim constituted the detailed facts about the injury required by section 364. . . . [Citation.] By holding that a tort claim cannot serve as a notice where there is no evidence the claimant intended the tort claim to serve as a notice, we expect that needless uncertainty and potential controversy will be avoided and full disclosure of all available information in a tort claim will be encouraged, thereby promoting the goals of the [Government Claims Act] by facilitating prompt investigation by the agency and possible early settlement of the claim. [Citation.] (Id. at pp. 387-388.)

Appellants government claim contains no reference to section 364, and there is no indication appellant intended the claim to also serve as a notice of intention to file suit. On the other hand, appellants notice of intention to sue specifically refers to section 364 and explicitly gives notice that [i]n 90 or more days, you will be sued by [appellant] for malpractice through negligence. Because appellant served his notice of intent to sue within 90 days of the expiration of the six-month expiration for filing his fourth cause of action, the statute of limitations was tolled from October 2, 2002, to December 31, 2002. If appellants complaint was constructively filed on December 9, 2002, therefore, his fourth cause of action would be timely.

3. Appellants Fifth Cause of Action Is Barred for Failure To Exhaust Administrative Remedies

Appellant contends he timely filed the fifth cause of action because the Board improperly refused to consider his claim and because the available administrative remedy was inadequate in not providing for monetary relief. Because the Board refused to hear his claim on the merits, appellant asserts his deadline to file an action on the claim was June 6, 2003, two years after accrual. (Gov. Code,  945.6, subd. (a)(2).) We conclude the fifth cause of action is barred because appellant was required to, but did not, exhaust his administrative remedies before filing his claim or action.

The federal Prison Litigation Reform Act (PLRA) provides: No action shall be brought with respect to prison conditions under [42 U.S.C.] section 1983 . . . , or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. (42 U.S.C. 1997e(a) (2000 ed.).)

California state law also provides prisoners with an administrative remedy. Under a regulation promulgated by the Department, a prisoner may appeal any departmental decision, action, condition or policy adversely affecting the prisoners welfare. (Wright v. State of California (2004) 122 Cal.App.4th 659, 666; Pen. Code, 5058; Cal. Code Regs., tit. 15,  3084.1, subd. (a) [inmate under Departments jurisdiction may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare].) Under the Department regulations, in order to exhaust administrative remedies, a prisoner must first attempt to informally resolve the problem with the staff [member] involved in the action or decision under issue. (Cal. Code Regs., tit. 15,  3084.5, subd. (a).) If the prisoner is not satisfied, or if informal review is waived by the state, the prisoner may pursue a three-step process. (Id.  3084.5, subds. (a)-(d).) First, the prisoner submits a formal appeal on form 602 to the institutions appeals coordinator or appeals office. (Id.  3084.5, subd. (b).) If the first level is unsuccessful or waived by the state, the prisoner must submit a formal appeal for a second level review conducted by the institution head or designee. (Id.  3084.5, subds. (c) & (e)(1).) If still dissatisfied, the prisoner must obtain a third level review by the director of the Department or the directors designee, which constitutes the directors decision on an appeal. (Id.  3084.5, subd. (e)(2).) In order to utilize the procedure, a prisoner must submit an appeal within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision. (Id.  3084.6, subd. (c).)

As a general rule, under both federal and state law a prisoner must exhaust available administrative remedies before seeking judicial relief. The United States Supreme Court has declared that exhaustion of administrative remedies is mandatory before a prisoner may seek judicial relief (Booth v. Churner (2001) 532 U.S. 731), and exhaustion of available administrative remedies is required for any suit challenging prison conditions. (Woodford v. Ngo (2006) ___ U.S. ___, ___ [126 S.Ct. 2378, 2382-2383]; see Jones v. Bock (2007) ___ U.S. ___ [127 S.Ct. 910, 918-919].) In California,  exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts.  (Rojo v. Kliger (1990) 52 Cal.3d 65, 84-85.)

Inmates are required to exhaust administrative remedies even if the sole relief sought is unavailable in the administrative process. (Booth v. Churner, supra, 532 U.S. at p. 739 [Congress meant to require procedural exhaustion regardless of the fit between a prisoners prayer for relief and the administrative remedies possible]; Wright v. State of California, supra, 122 Cal.App.4th at p. 669 [Allowing prisoners deliberately to avoid the Departments administrative process by asking only for money damages, a remedy unavailable in the administrative process, would weaken the effectiveness of the Department by encouraging inmates to ignore its grievance resolution procedures].)

In the present case, appellant filed his form 602 appeal, alleging prison staff had not refilled his prescription for milk of magnesia, on June 11, 2001. The appeals coordinator responded on June 19, 2001, stating the coordinators investigation reveals that your prescription was filled by the pharmacy on 6-14-01. Appellant filed another form 602 appeal on the same issue on December 5, 2001, to which the coordinator erroneously responded that the appeal was a duplicate appeal. On March 3, 2002, appellant sent a letter to the inmate appeals coordinator clarifying the error. The coordinator responded on March 22, 2002, stating the December 5, 2001, appeal was untimely.

On appeal, appellant admits the Second/Third [form 602] was untimely and that the appeals coordinator had a right to refuse to hear it on its merits because [it was] untimely. Because his administrative appeal was untimely, appellant will not be able to obtain the directors decision and thus cannot cure the defect.

However, in his opening brief appellant urged this court to follow the Ninth Circuits lead in Ngo v. Woodford, which held that a form 602 appeal that was deemed time-barred by a prison appeals coordinator for being submitted beyond the 15-day limitation period must be deemed  exhausted  at that point because no further levels of administrative remedy are  available.  (Ngo v. Woodford (9th Cir. 2005) 403 F.3d 620.) Appellant conceded this court is not obligated to follow the Ninth Circuits decision in Ngo, but argued the Ninth Circuits opinion in Ngo is  persuasive and entitled to great weight. 

After appellant filed his opening brief, the United States Supreme Court reversed the Ninth Circuits decision in Ngo v. Woodford, holding that proper exhaustion of administrative remedies . . . means using all steps that the agency holds out  in compliance with an agencys deadlines and other critical procedural rules. (Woodford v. Ngo, supra, 126 S.Ct. at pp. 2385-2386.) Under Woodford v. Ngo, a prisoner has not exhausted his administrative remedies when his inmate appeal is rejected as untimely. (Id. at p. 2386.)

Implicitly acknowledging that Woodford v. Ngo effectively eviscerated his argument premised on Ngo v. Woodford, in his reply brief appellant argues that federal statute and its interpretative case law is not applicable here. He asserts that [o]nly California law on administrative remedy exhaustion is binding upon this plaintiff and this court. He argues whether the exhaustion doctrine applies should be determined on a qualitative analysis on a case-by-case basis with concentration on whether a paramount need for agency expertise outweighs other factors. (Karlin v. Zalta (1984) 154 Cal.App.3d 953, 981; accord, Rojo v. Kliger, supra, 52 Cal.3d at pp. 87-88; Wright v. State of California, supra, 122 Cal.App.4th at pp. 668-669.) That argument is unavailing. Even under a qualitative analysis, the exhaustion doctrine applies here.

In this case, timely pursuit of the available administrative remedy would have established an administrative record for appellants monetary damage claim even if such damages were unavailable in the administrative process. Moreover, exhausting the administrative process would have allowed the courts to take advantage of the Departments expertise to make findings of fact, apply the law to the facts, and provide a record for the courts to review. (Wright v. State of California, supra, 122 Cal.App.4th at p. 669.)

The trial court properly ruled that appellant had not exhausted his administrative remedies with respect to the fifth cause of action.

DISPOSITION

The judgment is affirmed as to appellants fifth cause of action and reversed as to the third, fourth and sixth causes of action. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

BOLAND, J.

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^[1] The first two causes of action are not part of this appeal. The trial court granted the county defendants a summary judgment on the ground that appellant had failed to file his complaint within six months after the county rejected his government claim. (Gov. Code, 945.6, subd. (a)(1).) Appellant appealed the resulting judgment for the county defendants, but he placed his notice of appeal in the prison mail system on the last day to appeal and the notice of appeal was not timely received or filed by the court. In a prior unpublished opinion, we held that the prison delivery rule does not apply to notices of appeal in civil cases and dismissed appellants appeal as untimely. (Silverbrand v. County of Los Angeles (Apr. 21, 2006, B176239) [nonpub. opn.].) This matter is presently pending before the California Supreme Court upon the issue: Does the prison delivery rule apply to the filing of a notice of appeal in a civil case, and thus make timely a notice of appeal deposited in the prison legal mail system before the expiration of the jurisdictional deadline but not received by the trial court until after that deadline has passed? (Review granted, Aug. 16, 2006, S143929.)

^[2] Ballard declared she called the court clerk on December 9, 2002, and again on December 23, 2002, to verify that the complaint had been received and filed and was told there was no record of it.

^[3] All further rule references are to the California Rules of Court.