Filed 4/8/13 Gilbert v. Victim Compensation and Government Claims Bd. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

DONALD GILBERT,
                                                                                           F064526
         Plaintiff and Appellant,
                                                                           (Super. Ct. No. 09CECG01362)
                   v.

VICTIM COMPENSATION AND                                                                  OPINION
GOVERNMENT CLAIMS BOARD et al.,

         Defendants and Respondents;


CALIFORNIA ATTORNEY GENERAL,

         Real Party in Interest and Respondent.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Debra J.
Kazanjian, Judge.
         Donald Gilbert, in pro. per., for Plaintiff and Appellant.

*        Before Wiseman, Acting P.J., Gomes, J. and Franson, J.
       Kamala D. Harris, Attorney General, Steven M. Gevercer, Assistant Attorney
General, Alberto L. Gonzalez and Robert L. Collins, Deputy Attorneys General, for
Defendant and Respondent Victim Compensation and Government Claims Board.
       Beeson Terhorst, Jeffrey E. Beeson and Michael A. Terhorst for Defendant and
Respondent California Department of Corrections and Rehabilitation.
                                          -ooOoo-
       Appellant, Donald Gilbert, a state prison inmate, filed a petition for writ of
mandate requesting the trial court to order respondent, the Victim Compensation and
Government Claim Board (Board), to consider his government tort claim as timely filed.
The Board and respondent, California Department of Corrections and Rehabilitation,
demurred to the petition. The trial court sustained the demurrer without leave to amend
finding that appellant did not meet the six-month deadline to file a claim with the Board
and did not timely seek court relief after his claim was denied.
       Appellant challenges this order on the ground that, under the “mailbox rule” for
prison inmates, his tort claim was timely filed. Despite the applicability of the “mailbox
rule,” the trial court found that appellant’s claim was untimely. However, that finding is
not supported by substantial evidence. Moreover, appellant did seek court relief within
six months of his claim being denied. Accordingly, the judgment is reversed.
                                      BACKGROUND
       On February 11, 2008, while performing his assigned duties as a state prisoner,
appellant was injured. According to appellant, his right index finger was severed just
below the fingernail.
       Appellant prepared a government tort claim dated August 3, 2008. Appellant
alleges that he submitted the claim on August 3, 2008, by delivering it to a prison
employee who then placed it in the prison mailbox provided for collection of outgoing
legal mail. However, the prison mail log does not list appellant’s claim as outgoing mail
on August 3 or any date thereafter.

                                             2.
         The Board denied appellant’s claim on September 9, 2008, as untimely. Thus,
although the prison mail log has no record of this claim being sent, it must have been sent
at some point for the Board to receive it before it was denied on September 9.
         Appellant responded to this denial by arguing that his claim was timely because it
was deposited in the prison mail on August 3, 2008, and should have been mailed by
August 4, 2008. Appellant further asserted that, if the claim was mailed late, he was not
at fault.
         The Board construed appellant’s response as an application for leave to file a late
claim. On December 26, 2008, appellant was informed that the Board denied his
application on December 18.
         Appellant filed a petition for writ of mandate on April 2, 2009. However, due to
appellant being unable to make the scheduled court appearances, this petition was
dismissed without prejudice on September 8, 2009. Appellant filed a second petition for
writ of mandate identical to the first petition on August 30, 2010. A third petition, again
identical to the first petition, was filed on January 20, 2011, under the same case number
as the second petition.
         Following a hearing on appellant’s petition, the trial court denied appellant’s
request for relief. In doing so, the trial court made two factual findings. The court
concluded that appellant: (1) did not meet the six-month deadline to file a claim with the
Board; and (2) did not seek court relief within six months after the Board denied his
claim.
                                        DISCUSSION
         Before suing a public entity for personal injuries, the plaintiff must present a
timely written claim for damages to the entity. (Shirk v. Vista Unified School Dist.
(2007) 42 Cal.4th 201, 208.) Such timely claim presentation is a condition precedent to
filing an action against the entity and thus is an element of the plaintiff’s cause of action.
(Id. at p. 209.) Accordingly, failure to timely present such a claim bars a plaintiff from

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maintaining a lawsuit against that entity. (State of California v. Superior Court (Bodde)
(2004) 32 Cal.4th 1234, 1239.)
        A claim relating to a cause of action for personal injury must be presented not later
than six months after the accrual of the cause of action. (Gov. Code, § 911.2.) Since
appellant sustained the injury on February 11, 2008, appellant was required to present his
claim no later than August 11, 2008. The Board did not receive appellant’s claim by that
date.
        Appellant argues that, as a state prisoner, he is entitled to rely on the “prison-
delivery rule,” also known as the “mailbox rule.” This rule provides that a civil
complaint by a pro se prisoner litigant is deemed filed when it is delivered to prison
authorities for forwarding to the superior court. (Moore v. Twomey (2004) 120
Cal.App.4th 910, 918.) This rule places the pro se prisoner litigant on equal footing with
litigants who are not impeded by the practical difficulties encountered by incarcerated
litigants in meeting filing requirements. (Ibid.) Pro se prisoner litigants are forced to rely
on correctional authorities, who may be motivated to delay the filing, and if the pleading
is delayed, the prisoner litigants have no way to determine the cause and possibly obtain
evidence to support a finding of excusable neglect. (Id. at p. 917.)
        Applying this rule here, appellant’s government tort claim should be deemed filed
when it was delivered to prison authorities for forwarding to the Board.
        In support of his petition, appellant submitted a copy of the prison mail log for his
outgoing mail. This log has no record of appellant having delivered his claim to prison
authorities on August 3, 2008, or any time thereafter. However, as noted above, the
claim had to have been mailed at some point to have been received by the Board in time
for the Board to deny the claim on September 9. Appellant argues that the absence of a
record of his delivery of the claim is evidence that the prison officials are lax in the
processing of outgoing prisoner legal mail.



                                               4.
       The trial court considered the evidence before it and made a factual finding that
appellant’s claim was not timely. When the trial court has resolved a disputed factual
issue, if that resolution is supported by substantial evidence, it must be affirmed on
appeal. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
Accordingly, we must resolve all evidentiary conflicts and draw all legitimate inferences
in favor of the trial court’s decision and, where the evidence supports more than one
inference, we may not substitute our deductions for those of the trial court. (Lake v. Reed
(1997) 16 Cal.4th 448, 457.) Nevertheless, while we must accept any reasonable
interpretation of the evidence that supports the trial court’s decision, we may not defer to
that decision entirely. Substantial evidence is not synonymous with any evidence. It
must actually be “substantial” proof of the factual finding. (McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389.)
       It is clear from the record that appellant delivered his government tort claim to
prison officials at some time before September 9, 2008. However, the prison mail log has
no record of this claim having ever been delivered to, and processed by, the prison
officials. Thus, it must be inferred that appellant delivered his claim but, for whatever
reason, the prison officials neglected to record the date they received it. The only
evidence of when appellant delivered this claim was appellant’s declaration that he
delivered it to the mail room on August 3, 2008. Thus, the only evidence of the timing of
the delivery supports a finding that appellant’s government tort claim was timely.
Substantial evidence does not support the trial court’s contrary decision.
       Appellant was informed that his claim had been denied on December 18, 2008.
Thus, appellant had until June 18, 2009, to seek court relief. (Gov. Code, § 946.6.)
       Appellant filed a petition for relief in the trial court on April 2, 2009. This petition
was served on respondents and thus respondents had notice within the six month time
limit. Although the hearings on appellant’s petition were continued repeatedly due to
appellant’s nonappearance and this first petition was ultimately dismissed without

                                              5.
prejudice, appellant’s failures to appear were due to circumstances beyond appellant’s
control, i.e., his status as a pro se prisoner litigant. Appellant attempted to vigorously
pursue his superior court action but was hindered by his status. Nevertheless, appellant
began the process in a timely manner. Accordingly, appellant sought court relief within
six months of the denial of his claim.
                                      DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court for further
proceedings. No costs are awarded. (Cal. Rules of Court, rule 8.278(a)(5).)




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