Butler v. Sup. Ct.

Filed 2/22/07  Butler v. Sup. Ct. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

            ORIGINAL PROCEEDING; petition for writ of mandate.  William Barry, Judge.  Petition granted.

            Law Offices of Benjamin P. Wasserman and Benjamin P. Wasserman for Petitioner.

            No appearance for Respondent.

            Pollak, Vida & Fisher, Daniel P. Barer, Hamed Amiri Ghaemmaghami; Maranga Morgenstern, Kenneth A. Maranga and Allison E. Barrett for Real Parties in Interest.

___________________________

            The trial court abused its discretion in denying David Butler's petition for an order relieving him from the provisions of Government Code section 945.4.  Accordingly, we grant the petition for writ of mandate. [1]

FACTUAL AND PROCEDURAL BACKGROUND

            David Butler (Butler) was involved in a motorcycle accident on October 6, 2004.  On October 21, he had surgery at Harbor-UCLA Medical Center.  In November, Butler was readmitted for treatment of an infection in the area of the surgery.

            On August 2, 2005, Butler was admitted to the hospital for an infection.  He underwent remedial surgery on August 3.  During the surgery on August 3, the surgeons removed retained hardware from Butler's elbow.  Butler left the hospital without permission on August 12 but came back to the emergency room and was readmitted to another unit on that same date.  Butler was then discharged to a convalescent hospital on August  25.

            On February 13, 2006, Butler made a claim for damages to the County of Los Angeles (County).  His claim states that hardware was left in his arm/shoulder during surgery at Harbor-UCLA Hospital, and that this hardware caused infection, additional surgery and ulnar nerve palsy.  The claim states that the injury occurred on August 12, 2005.

            On March 13, 2006, the County denied Butler's claim through its liability claims administrator, Octagon Risk Services, Inc. 

            On May 9, Butler's counsel filed an application to file a late claim.  In that document, Butler's counsel states that â€