Filed 3/23/18 Hines v. Davis CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


GARY D. HINES,
Plaintiff and Appellant,
v.
RON DAVIS et al.,
Defendants and Respondents.

A148510

(Marin County
Super. Ct. No. CIV1502751)


Gary Hines appeals from an order denying his petition for relief from the claim presentation requirements of the Government Claims Act. (Gov. Code., §810 et seq. (GCA).) The court’s determination that Hines was not entitled to relief was not an abuse of its discretion, so we affirm.
BACKGROUND
Hines, an inmate in San Quentin State Prison since 1988, suffers from various chronic illnesses and relies on a wheelchair. On June 30, 2015 he sued various prison officials for negligence. His complaint alleged, among other things, that respondents damaged his wheelchair; moved him to a non-ADA compliant cell, resulting in one or more falls; and failed to prevent another inmate from spraying him with various foul liquids.
Claim 241
Before filing suit, Hines submitted the first of his two claims to the Victim Compensation and Government Claims Board (the Board). This claim alleged that on or about October 3, 2014, a correctional officer escorting Hines to a medical appointment damaged his personal wheelchair. Hines dated the claim form March 13, 2015, but it was not marked “received” by the Board until April 23, more than six months after the alleged incident.
Personal injury claims against correctional officers must be presented to the Board no more than six months after the cause of action accrues. (§§ 945.4, 911.2.) Here, the Board determined that Hines’s claim 241 was untimely under these provisions and informed him that his only recourse was to apply to the Board for leave to present a late claim. Hines responded that his claim was timely because he “mailed/presented [it] to this board on March 13, 2015 (See claim date on claim form) . . . within the six-month time period.” The Board construed the letter as an application for leave to present a late claim, and on August 20, 2015, denied the application and rejected the underlying claim.
Claim 683
Hines’s second claim, claim 683, was dated September 1, 2015, and received by the Board on September 8. This claim alleged that on or about November 7, 2014, prison officials negligently moved Hines out of his “ADA disabled cell” to a cell that lacked grab bars and that, as a result, he fell and was injured. Hines admitted the incident occurred more than six months before he filed this claim but asserted that “chronic illnesses” prevented him from “submitting his claim sooner within the six month period. Hines has been confined to a wheelchair unable to walk and suffering [severe] pain in his right leg and lower back” due to his fall . . . .” On November 9, 2015, the Board notified Hines of its intent to deny his application for leave to present the late claim.
The Motion for Relief
On December 10, 2015, Hines moved for relief from the GCA’s timeliness requirement. He asserted his failure to file timely claims should be excused because he was “chronically suffering from an auto immune disease with paralysis on his right side,” having vision problems, confined to a wheelchair and attending various medical appointments, and “constantly very concerned about corrupt prison guards setting-up plaintiff.” Hines admitted he “mislaid the papers to file” and “inadvertently failed to contact his court appointed attorney regarding the papers received by the government Claims Board,” but he attributed his inadvertence to poor health and having been moved between cells during the claims presentation period. “Due to my medical circumstances and confession [sic] through-out all the different cell moves, falling down, and taking weekly injections of medication, I inadvertently filed all those Government Claims Board papers into a box when prison defendants re-housed me several times and did not follow up on those papers until my attorney . . . called them to my attention on or about August 12, 2015. Hines then started diligently and promptly to locate those papers after Hines was re-housed within the cell block unit on three (3) different times within a month period of time.”
The court found this showing was inadequate to excuse the late claims. Its written order states: “Hines failed to present specific evidence to support a showing that his late filing of tort claims with the Victims Compensation & Government Claims Board (Claim Nos. G624241 and G62683) was done either through ‘mistake, inadvertence, surprise, or excusable neglect’; or that he was physically or mentally incapacitated during the entire six-month filing period specified in Section 911.2. (Govt. code § 946.6(c)(1), (3).)” The court found that Hines’s declaration failed to explain how his brief relocation to new cells and the illnesses and injuries he claimed to have suffered “would have prevented ‘a reasonably prudent person under the same or similar circumstances’ from filing his claims within the six-month filing period.” Moreover, Hines failed to establish he was so incapacitated during the six-month limitations period that he could not timely file his government tort claim. The court therefore denied the motion for relief and subsequently granted respondents’ motion for judgment on the pleadings on the ground that Hines failed to satisfy the GCA’s claims filing requirements. Hines filed this timely appeal.
DISCUSSION
I. Legal Principles
Before an inmate may pursue a personal injury claim against the California Department of Corrections and Rehabilitation or its employees, he or she must present a claim to the Board within six months of the date on which the claim accrued. (§§ 911.2, subd.(a), 945.4; Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1034; Castaneda v. Department of Corrections and Rehabilitation (2013) 212 Cal.App.4th 1051, 1061 (Castaneda).) “ ‘Compliance with the claims provisions is mandatory.’ ” (Castaneda, supra, at p. 1061.)
An inmate who misses the six-month claim-presentation deadline may apply to the Board for leave to file a late claim. (§ 911.4.) If the Board denies the application, the inmate may petition the superior court for leave to file a late claim. (§946.6, subds. (a), (c).) The inmate must establish, inter alia, that (1) the failure to present a timely claim was due to “mistake, inadvertence, surprise, or excusable neglect,” unless the Board establishes that it would be prejudiced if the court granted the requested relief; or (2) the inmate “was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time.” (§946.6, subds. (c)(1), (c)(3).) The claimant has the burden of proving these elements by a preponderance of evidence. (Rodriguez v. County of Los Angeles (1985) 171 Cal.App.3d 171, 175.)
We review the trial court’s decision under section 946.6 for abuse of discretion. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) Nonetheless, because section 946.6 is intended to promote the policy favoring trial on the merits and “provide relief from technical rules that otherwise provide a trap for the unwary claimant,” we construe the statute in favor of relief whenever possible, resolve any doubts in the claimant’s favor, and scrutinize a denial more carefully than an order granting relief. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275–276.)
I. Analysis
Hines argues the trial court abused its discretion when it found that he failed to prove excusable neglect (§ 946.6, subd. (c)(1)) or incapacity (§ 946.6, subd.(c)(3)) justifying his failure to submit a timely claim. It did not.
“ ‘Excusable neglect has been defined as neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” [Citation.] It ‘is not shown by the mere failure to discover a fact until it is too late; the party seeking relief must establish that in the exercise of reasonable diligence, he failed to discover it.’ ” (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1382–1383, italics omitted (Barragan).) “Excusable neglect can be the result of disability. [Citation.] When a claimant is disabled, even if not so limited as to satisfy the incapacity basis for relief, that disability could justify a trial court in concluding that the claimant’s failure to contact an attorney was itself excusable neglect.” (Id. at p. 1384.) But a claimant who asserts excusable neglect as a result of disability must demonstrate, by a preponderance of the evidence, that the disability or illness “substantially interfered with his ability to function in daily life, take care of his personal and business affairs, or seek out legal counsel.” (Id. at p. 1385.) “If a claimant can establish that physical and/or mental disability so limited the claimant’s ability to function and seek out counsel such that the failure to seek counsel could itself be considered the act of a reasonably prudent person under the same or similar circumstances, excusable neglect is established.” (Ibid.)
Alternatively, to establish incapacity as a basis for relief from the GCA claim presentation requirements, “a claimant must establish that he or she ‘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.’ (§ 946.6, subd. (c)(3).) . . . [T]he type of disability which justifies relief from the [GCA] on the grounds of incapacity is an all-encompassing disability which prevents the claimant from even authorizing another to file a claim for the claimant.” (Barragan, supra, 184 Cal.App.4th at p. 1384, italics added.)
Here, the court found Hines’s evidence was insufficient to establish either excusable neglect or incapacity. Indeed, Hines himself attributed his lateness at least in part to misplacing his paperwork and “inadvertently fail[ing] to contact his court appointed attorney.” He also attributed his tardiness to a roster of alleged impediments including partial paralysis, reliance on a wheelchair and attendant, “mental issues due to being on San Quentin death row for 30 years,” a heart attack and an unspecified auto-immune disease, injuries from falls, and vision problems. Missing, however, is any evidence that these conditions prevented him from filing timely claims or arranging for his attorney to help him do so. Nor did Hines’s evidence establish how and during what periods of time these conditions prevented him from submitting timely claims. (See People v. ex rel. Dept. of Transportation (2003) 105 Cal.App.4th 39, 46.)
The evidence, in fact, suggests they did not. Between October 2014 and March 2015 Hines (1) actively pursued a separate health care administrative appeal concerning the cost of repairing his personal wheelchair; (2) submitted a health care services request form regarding his move to a non-ADA cell; and (3) filled out claim 241. The fact Hines was able to take these actions despite his alleged illnesses and disabilities is, at best, hard to square with his assertion of excusable neglect and incapacity. The court’s determination that Hines failed to establish either as justification for relief from the GCA’s timeliness requirement was supported by the record and well within its discretion.
Hines also contends the court should have granted relief under the doctrine of substantial compliance. His argument, as we understand it, is that his claims were “timely placed with prison guards to be mailed, but not filed by ‘The Board’ (VCGG) until after the statutory time period of six months had expired.” But his citations to the record do not support his assertion. “The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel [or the litigant if, as here, the litigant chooses to represent himself].” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; see Cal. Rules of Court, rule 8.204(a)(1)(C).) In any event, Hines said something quite different at the hearing in the superior court. Then, he said his claims were filed by “friends of [his]” or “submitted on [his] behalf by representatives, an investigator and by an attorney.” This, too, differed from Hines’s moving papers, where he said that after misplacing and then relocating his claims paperwork “he mailed [it] off to the (the Board) promptly.” Assuming that, as a legal matter, failures to comply with the GCA’s claim-presentation period are subject to the substantial compliance doctrine as articulated in the “prison delivery” or “mailbox rule” (see Moore v. Twomey (2004) 120 Cal.App.4th 910, 918), the trial court could reasonably decline to credit the factual assertions supporting Hines’s substantial compliance argument. Its ruling was well within its discretion.
DISPOSITION
The judgment is affirmed.




_________________________
Siggins. J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.