Filed 10/22/15 (unmodified opn. attached)




                               CERTIFIED FOR PUBLICATION


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FOURTH APPELLATE DISTRICT

                                            DIVISION THREE


J.M., a Minor, etc.,

    Plaintiff and Appellant,                            G049773

        v.                                              (Super. Ct. No. 30-2013-00684104)

HUNTINGTON BEACH UNION HIGH                             ORDER MODIFYING OPINION
SCHOOL DISTRICT,                                        AND DENYING PETITION FOR
                                                        REHEARING; NO CHANGE IN
    Defendant and Respondent.                           JUDGMENT



                 It is ordered that the opinion filed herein on September 30, 2015, be
modified as follows:
                 After the fourth paragraph, which starts on page 18 and continues to
page 19, beginning “Section 911.8, subdivision (a) requires a board,” add the following
new paragraph:
                    In a petition for rehearing, J.M. argues our conclusion “rewards
             and incentivizes” government entities for not acting on applications
             for leave to present a late claim. Section 911.8, subdivision (a)
             reflects the Legislature’s choice to require written notice only when
             the government entity acts on an application for leave to present a late
        claim and affirmatively denies it. An application for leave to present
        a late claim is deemed denied by inaction 45 days after the application
        is presented to the governing board. (§ 911.6(c).) That date can be
        determined easily. If, within that timeframe, the claimant receives no
        notice of a board’s action, then the claimant can conclude the
        application was denied by operation of law and can calculate the last
        day for filing a petition to the superior court under section 946.6.

            This modification does not effect a change in judgment. The petition for
rehearing is DENIED.




                                                FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




                                            2
Filed 9/30/15 (unmodified version)




                                CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


J.M., a Minor, etc.,

    Plaintiff and Appellant,                         G049773

        v.                                           (Super. Ct. No. 30-2013-00684104)

HUNTINGTON BEACH UNION HIGH                          OPINION
SCHOOL DISTRICT,

    Defendant and Respondent.



                 Appeal from an order of the Superior Court of Orange County,
Kirk H. Nakamura, Judge. Affirmed. Request for judicial notice. Granted.
                 Gusdorff Law, Janet R. Gusdorff; Russell & Lazarus and Christopher E.
Russell for Plaintiff and Appellant.
                 McCune & Harber, Stephen M. Harber and Dominic A. Quiller for
Defendant and Respondent.
                                    INTRODUCTION
              The Government Claims Act, found at section 810 et seq. of the
                   1
Government Code, sets forth procedures and requirements that must be satisfied before
filing suit against a public entity for tort relief. Compliance with the Government Claims
Act is mandatory, and failure to present a claim “‘is fatal to a cause of action.’”
(McMartin v. County of Los Angeles (1988) 202 Cal.App.3d 848, 858.) Those who seek
relief against a public entity are well advised to heed the warning of Justice Oliver
Wendell Holmes: “Men must turn square corners when they deal with the Government.
If it attaches even purely formal conditions to its consent to be sued those conditions
must be complied with.” (Rock Island &c. R. R. v. United States (1920) 254 U.S. 141,
143.)
              In this case, J.M. did not comply with the conditions of the Government
Claims Act. He did not present a claim with the board of the Huntington Beach Union
High School District (the District) within six months of the date on which his causes of
action accrued, as required by sections 945.4 and 911.2. He retained counsel, who timely
presented an application under section 911.4 to present a late claim on the ground J.M.
was a minor. The District did not act on the application, and, as a consequence, under the
express language of section 911.6, subdivision (c) (section 911.6(c)), his application was
deemed denied by operation of law.
              J.M., still represented by counsel, filed a petition in the superior court under
section 946.6 for relief from the claim requirement. The superior court denied his
petition as untimely because it was not filed within six months of the date on which his


 1
    Title 1, division 3.6, parts 1 through 7 of the Government Code (Gov. Code, § 810
et seq.) is referred to as the Government Claims Act. (City of Stockton v. Superior Court
(2007) 42 Cal.4th 730, 742.) Further code references are to the Government Code unless
otherwise noted.

                                              2
application to present a late claim was deemed denied by operation of law. J.M. appeals
from the superior court’s order denying his petition for relief under section 946.6. Such
an order is appealable. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, fn. 8.)
              The plain, unambiguous language of sections 911.6 and 946.6 compels us
to affirm. J.M.’s application to present a late claim was made under section 911.6,
subdivision (b)(2) on the ground that he was a minor at the time he was required to
present a claim. Because the District did not act, under the plain language of
section 911.6(c), J.M.’s application was deemed denied by operation of law on the 45th
day after it was presented. Section 911.6(c) states: “If the board fails or refuses to act on
an application within the time prescribed by this section, the application shall be deemed
to have been denied on the 45th day . . . .”
              When an application is denied by operation of law under section 911.6(c), a
claimant can challenge that denial only by petition to the superior court under
section 946.6 for relief from the claim requirement. Section 946.6, subdivision (b)
(section 946.6(b)) states in unambiguous terms: “The petition shall be filed within six
months after the application to the board is denied or deemed to be denied pursuant to
Section 911.6.” J.M. filed his petition to the superior court more than six months after his
application to present a late claim was deemed denied by operation of law. J.M.’s
petition therefore was untimely, and the superior court did not err by denying it.


                       FACTS AND PROCEDURAL HISTORY
              On October 27, 2011, J.M., a 15-year-old student at Fountain Valley High
School, suffered head trauma when he was tackled during a school-sponsored football
game. He continued to participate in full-contact football practice, and began to
experience headaches, dizziness, and nausea.
              J.M.’s causes of action for personal injury against the District accrued no
later than October 31, 2011, when a doctor diagnosed J.M. with double concussion

                                               3
syndrome. (§ 901.) J.M. did not present a claim to the District within six months of the
date of accrual of his causes of action, as required by the Government Claims Act. He
retained counsel and, on October 24, 2012, his counsel presented an application for leave
to present a late claim pursuant to section 911.4 on the ground that J.M. was a minor for
the entire six-month period following the accrual of his causes of action. The District did
not act upon the application.
              On October 28, 2013, J.M., still represented by counsel, filed a petition
under section 946.6 to the superior court for an order relieving him from the claim
requirement. The superior court denied J.M.’s petition as untimely because it was filed
more than six months after the date on which his application to present a late claim was
deemed to have been denied by the District’s inaction. J.M. timely appealed.


                                       DISCUSSION

                                               I.

                          Standard of Review and Principles of
                                Statutory Interpretation
              We review the denial of a petition for relief from the claim requirement
under the abuse of discretion standard. (Bettencourt v. Los Rios Community College Dist.
(1986) 42 Cal.3d 270, 275; Ebersol v. Cowan, supra, 35 Cal.3d at p. 435.) That
discretion is not “unfettered” and “must be exercised in conformity with the spirit of the
law.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288,
1293.)
              We review issues of statutory interpretation de novo. (Kavanaugh v. West
Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 (Kavanaugh).) The
fundamental task of statutory interpretation is to ascertain the Legislature’s intent to
effectuate the statute’s purpose. (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) In
ascertaining the Legislature’s intent, we first consider the language of the statute itself,

                                               4
giving the words used their ordinary meaning. (Ibid.) If the statutory language is
unambiguous, the plain meaning controls and consideration of extrinsic sources to
determine the Legislature’s intent is unnecessary. (Kavanaugh, supra, 29 Cal.4th at
p. 919.) We read the statute as a whole to harmonize and give effect to all parts.
(Ste. Marie v. Riverside County Regional Park & Open-Space Dist. (2009) 46 Cal.4th
282, 289.)
                                             II.
                  Relevant Provisions of the Government Claims Act
              “The [Government Claims] Act establishes a uniform claims procedure,
making the filing of a claim within a brief period of the injury a prerequisite to
maintaining a suit for damages.” (Renteria v. Juvenile Justice, Department of
Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 908.) The Government
Claims Act is comprised of “a comprehensive format specifying the parameters of
governmental liability, including . . . a detailed procedure for the advance filing of a
claim as a prerequisite to filing suit” and deadlines for “both the filing of claims and the
commencement of litigation.” (Schmidt v. Southern Cal. Rapid Transit Dist. (1993) 14
Cal.App.4th 23, 28, fn. omitted.)
              Part 3 of division 3.6 of title 1 of the Government Code (§§ 900-935.9) sets
forth procedures for presenting claims against public entities. Part 4 of the same title and
division (§ 940 et seq.) sets forth procedures for actions against public entities and public
employees.
              Section 945.4 requires a party to present a written claim to the public entity
before the claimant may bring a lawsuit against that public entity. Except as provided in
sections 946.4 and 946.6, a timely claim must be acted upon or deemed rejected by the
     2
board of the public entity before the claimant may file a lawsuit. (§ 945.4.)
 2
   Section 900.2, subdivision (a) defines “‘Board’” as the governing body of a local
public entity.

                                              5
“‘Compliance with the claims statute [(§ 945.4)] is mandatory and failure to file a claim
is fatal to a cause of action.’” (McMartin v. County of Los Angeles, supra, 202
Cal.App.3d at p. 858). Section 945.6 provides that, once the claim requirement is
satisfied, any lawsuit by the claimant must be commenced within six months of receiving
written notice or, if no written notice is given, within two years from the accrual of the
cause of action. (§ 945.6, subd. (a)(1), (2).)
              Section 911.2 sets forth the procedure for presenting a personal injury claim
against a public entity. The claimant must present a claim to the board of the public
entity within six months of the accrual of the cause of action. (§ 911.2, subd. (a).) A
cause of action accrues for purposes of the Government Claims Act at the same time as a
similar action against a nonpublic entity accrues for purposes of applying the relevant
                      3
statute of limitations. (§ 901; Loehr v. Ventura County Community College Dist. (1983)
147 Cal.App.3d 1071, 1078.) Timely claim presentation is “‘“‘a condition precedent to
plaintiff’s maintaining an action against defendant.’”’” (Shirk v. Vista Unified School
Dist. (2007) 42 Cal.4th 201, 209.)
              When a claim required by section 911.2 is untimely, the injured party may
present a written application to the board for leave to present a late claim. (§ 911.4,
subd. (a).) The application for leave to present a late claim, including a copy of the
proposed claim, must be presented to the board within a reasonable time not to exceed
one year after the accrual of the cause of action and must state the reason for the delay in
presenting the claim. (§ 911.4, subd. (b).)
              Section 911.6 recognizes that the board may grant, deny, or fail or refuse to
act on, an application for leave to present a late claim. Subdivision (a) of section 911.6


 3
   A personal injury cause of action caused by negligence accrues on the date of injury,
unless the discovery rule delays accrual, in which case the cause of action accrues when
the plaintiff suspects or should suspect wrongdoing. (Jolly v. Eli Lilly & Co. (1988) 44
Cal.3d 1103, 1109-1111.)

                                                 6
provides: “The board shall grant or deny the application within 45 days after it is
                             4
presented to the board. . . .” Section 911.6, subdivision (b) (section 911.6(b)) identifies
four circumstances in which the application to present a late claim “shall [be] grant[ed]”
             5
by the board. Relevant here is the second circumstance: “The person who sustained the
alleged injury, damage or loss was a minor during all of the time specified in
Section 911.2 . . . .” (§ 911.6(b)(2).)
              Section 911.6(c) states: “If the board fails or refuses to act on an
application within the time prescribed by this section, the application shall be deemed to
have been denied on the 45th day . . . .”
              Section 911.8, subdivision (a) provides that “[w]ritten notice of the board’s
action upon the application” must be given in the prescribed manner. If the board denies
the application, the notice must include a warning substantially in the form set forth in
section 911.8, subdivision (b). Section 911.8 does not require notice when the board fails
or refuses to act on an application.
              If the board denies a timely application for leave to present a late claim, or
if the application is deemed denied under section 911.6(c), the injured party may petition
the superior court for an order relieving him or her from the claim requirement of



 4
    The claimant and the board may agree to extend the period in which the board is
required to act. (§ 911.6, subd. (a).)
 5
    The four circumstances are “(1) [t]he failure to present the claim was through mistake,
inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its
defense of the claim by the failure to present the claim within the time specified in
Section 911.2[,] [¶] (2) [t]he person who sustained the alleged injury, damage or loss was
a minor during all of the time specified in Section 911.2 for the presentation of the
claim[,] [¶] (3) [t]he person who sustained the alleged injury, damage or loss was
physically or mentally incapacitated during all of the time specified in Section 911.2 for
the presentation of the claim . . . ,” or “(4) [t]he person who sustained the alleged injury,
damage or loss died before the expiration of the time specified in Section 911.2 for the
presentation of the claim.” (§ 911.6(b)(1)-(4).)

                                             7
                                            6
section 945.4. (§ 946.6, subds. (a) & (b).) The injured party must file the petition in the
superior court “within six months after the application to the board is denied or deemed
to be denied pursuant to Section 911.6.” (§ 946.6(b), italics added.) Failure to comply
with time limitations set forth in section 946.6 bars an action on the government claim.
(See Lineaweaver v. Southern California Rapid Transit Dist. (1983) 139 Cal.App.3d 738,
741 (Lineaweaver) [holding the six-month limitation period during which a person may
petition the superior court after the board’s denial of an application to present a late claim
is mandatory]; Todd v. County of Los Angeles (1977) 74 Cal.App.3d 661, 665 [minor’s
action was time-barred when the complaint failed to comply with section 946.6,
subdivision (f) because it was filed more than 30 days after the superior court granted
minor’s petition for relief].)
              Section 946.6, subdivision (c) (section 946(c)) provides that the superior
court “shall relieve the petitioner from the requirements of Section 945.4” if the
application for leave to present a late claim “was made within a reasonable time not to
exceed that specified in subdivision (b) of Section 911.4,” the application was denied or
deemed denied under section 911.6, and at least one of four circumstances is applicable.


 6
    Section 946.6, subdivision (a) states: “If an application for leave to present a claim is
denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the
court for an order relieving the petitioner from Section 945.4. The proper court for filing
the petition is a superior court that would be a proper court for the trial of an action on the
cause of action to which the claim relates. If the petition is filed in a court which is not a
proper court for the determination of the matter, the court, on motion of any party, shall
transfer the proceeding to a proper court. If an action on the cause of action to which the
claim relates would be a limited civil case, a proceeding pursuant to this section is a
limited civil case.”
   Section 946.6(b) states: “The petition shall show each of the following: [¶] (1) That
application was made to the board under Section 911.4 and was denied or deemed denied.
[¶] (2) The reason for failure to present the claim within the time limit specified in
Section 911.2. [¶] (3) The information required by Section 910. [¶] The petition shall
be filed within six months after the application to the board is denied or deemed to be
denied pursuant to Section 911.6.”

                                                8
The four circumstances listed in section 946.6(c) are nearly identical to those listed in
section 911.6(b). If the superior court grants the petition, the injured party has 30 days in
which to file a lawsuit. (§ 946.6, subd. (f).)

                                             III.

              J.M.’s Application for Leave to Present a Late Claim Was
               Deemed Denied by Operation of Law When the District
                            Did Not Act Within 45 Days.
                       A. Section 911.6(b)(2) and Section 911.6(c)
              J.M. contends section 911.6(b)(2) and section 911.6(c) contradict each
other and are irreconcilable because section 911.6(b)(2) states the board “shall grant the
application” when the applicant was a minor, while section 911.6(c) states the application
“shall be deemed to have been denied” if the board fails to act within the prescribed time
period. According to J.M., the contradiction should be resolved by concluding
section 911.6(b)(2) controls so that his timely application to present a late claim was
never deemed to have been denied under section 911.6(c).
              There is no conflict or contradiction between section 911.6(b)(2) and
section 911.6(c). Section 911.6 anticipates that a board may act on an application by
granting or denying it, or that a board may do nothing at all. Section 911.6,
subdivision (a) states the board “shall grant or deny” an application for leave to present a
late claim within 45 days after it is presented to the board. Section 911.6(b)(2) states
“[t]he board shall grant the application” when the claimant was a minor during the claim
period, which is the situation here. If the board fails or refuses to act within the 45-day
period, then section 911.6(c) controls and the application is deemed denied by operation
of law. Section 911.6(c) makes no exception when the application presents any of the
circumstances listed in section 911.6(b). In this case, because the District did not act on
J.M.’s application to present a late claim, section 911.6(c) controls, and the application is
deemed denied by operation of law.

                                                 9
              J.M. focuses on the words “shall grant” in section 911.6(b)(2) as
establishing that a board’s failure to act on an application within 45 days means, contrary
to section 911.6(c), that the application is not deemed denied by operation of law.
Although use of the word “shall” indicates a mandatory act (Tarrant Bell Property, LLC
v. Superior Court (2011) 51 Cal.4th 538, 542), it is possible that a board may, albeit
incorrectly, deny outright an application brought under section 911.6(b)(2). (§ 911.6,
subd. (a); see, e.g., Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020,
1022-1023 [defendant public entity denied a minor’s application to present a late claim,
“informing plaintiff that if he wished to challenge the denial he was required to file a
petition in court pursuant to section 946.6 within six months”]; Tammen v. County of San
Diego (1967) 66 Cal.2d 468, 473 [minor plaintiff’s application for leave to present a late
claim was denied by the public entity and plaintiff thereafter challenged the denial by
petitioning the superior court].) When the board takes action and expressly denies an
application brought under section 911.6(b)(2), the injured party must bring a petition
under section 946.6 to challenge the board’s decision.
              In either case—express denial under section 911.6, subdivision (a) or denial
by operation of law under section 911.6(c)—the claimant’s recourse is to bring a petition
under section 946.6 to challenge the denial of the application for leave to present a late
claim. The language of section 911.6(c) therefore anticipates the board may mistakenly
or consciously disregard the mandatory provisions set forth in section 911.6,
subdivisions (a) and (b). If the board’s denial, either by action or inaction, is inconsistent
with the statutory provisions, it is incumbent upon the claimant to challenge that denial
by petition to the superior court under section 946.6.
              Kendrick v. City of La Mirada (1969) 272 Cal.App.2d 325, 329 (Kendrick)
supports the proposition that an application for leave to present a late claim may be
denied by operation of law notwithstanding the language of section 911.6(b). In
Kendrick, supra, 272 Cal.App.2d at pages 326-327, the public entity denied the plaintiff’s

                                              10
otherwise valid claim as untimely. The plaintiff brought an application for leave to
present a late claim under section 911.6(b)(1) on the ground of mistake, inadvertence,
surprise, or excusable neglect. (Kendrick, supra, at pp. 327-328.) The application was
denied by operation of law when the public entity failed to act within the required
statutory time period. (Id. at p. 327.) The plaintiff did not petition the superior court for
relief from the claim requirement and instead filed a lawsuit. (Ibid.) The Court of
Appeal upheld the trial court’s judgment to dismiss the plaintiff’s lawsuit. (Id. at pp. 327,
330.) The Court of Appeal concluded the plaintiff was required by the Government
                                                                                            7
Claims Act to file a petition in the superior court for relief from the claim requirement
before filing a lawsuit. (Kendrick, supra, at pp. 327-328.)
              In Kendrick, supra, 272 Cal.App.2d at pages 327-329, the plaintiff’s
application to present a late claim was deemed denied by operation of law,
notwithstanding the fact the plaintiff had a valid claim under section 911.6(b)(1) based on
mistake, inadvertence, surprise, or excusable neglect. The Court of Appeal concluded the
plaintiff had to obtain relief in the superior court before filing a lawsuit. (Kendrick,
supra, at pp. 327, 329.)
              Although Kendrick dealt with section 911.6(b)(1) rather than
section 911.6(b)(2), its reasoning would apply to all subparts under section 911.6(b).
Section 911.6(b) states a board “shall grant” an application based on any of the four
circumstances in subparts (1) through (4) and makes no distinction in treatment among
them. Here, J.M.’s application to present a late claim was deemed denied by operation of
law, notwithstanding the fact he brought his application under section 911.6(b)(2). J.M.,
like the plaintiff in Kendrick, had to obtain relief in the superior court under
section 946.6. J.M. did not obtain relief in the superior court because his petition was
untimely filed.
 7
   Kendrick was decided under former section 912, which had been repealed in 1965 in
favor of section 946.6. (Kendrick, supra, 272 Cal.App.2d at p. 326, fn. 1.)

                                              11
              J.M. argues the mention by the Kendrick court of the “‘deemed denial’
principle” was not necessary to the decision. We disagree. The Kendrick court
concluded that the plaintiff was required by the Government Claims Act to file a petition
in the superior court for relief from the claim requirement before filing a lawsuit. In
                                                                                       8
Kendrick, the board of the public entity did not act on the plaintiff’s application.
(Kendrick, supra, 272 Cal.App.2d at p. 326.) Thus, for the Kendrick court to have
reached the issue whether the plaintiff needed to obtain relief in the superior court before
filing a lawsuit, the court would have had to determine the plaintiff’s application was
deemed denied by operation of law.
              J.M. also contends Kendrick is distinguishable because the plaintiff in that
case never filed a petition for relief in the superior court, let alone an untimely one. The
important point in Kendrick, which is fully applicable here, is that a plaintiff must obtain
relief from the superior court before filing a lawsuit. (Kendrick, supra, 272 Cal.App.2d
at pp. 329-330.) J.M. did not obtain relief from the superior court.
              J.M. does not explain what the status of his application for leave to present
a late claim would be if it were not denied by operation of law under section 911.6(c).
The application cannot be said to have been granted because the District did not act on it.
Inasmuch as J.M. filed a petition under section 946.6, he does not take that position. Yet,
J.M. argues his application was not denied by operation of law. J.M. suggests his
application exists in a Government Claims Act limbo, neither granted nor denied,
awaiting some future action by the District to save it. Section 911.6 does not permit that
situation: When a board fails to act on an application brought under section 911.6(b)(2)


 8
    At the time Kendrick was decided, section 911.6, former subdivision (a) read: “‘The
board shall grant or deny the application within 35 days after it is presented to the board.
If the board does not act upon the application within 35 days after the application is
presented, the application shall be deemed to have been denied on the 35th day.’”
(Kendrick, supra, 272 Cal.App.2d at p. 328, fn. 4.)

                                             12
within 45 days, then the application is deemed denied by operation of law under
section 911.6(c).

                     B. The Language of Section 946.6 Supports Our
                                   Interpretation.
              J.M.’s interpretation of section 911.6 ignores and would nullify the
procedure set forth in section 946.6 when a board fails to act on an application brought
under section 911.6(b). “An interpretation that renders related provisions nugatory must
be avoided [citation]; each sentence must be read not in isolation but in the light of the
statutory scheme [citation]; and if a statute is amenable to two alternative interpretations,
the one that leads to the more reasonable result will be followed.” (Lungren v.
Deukmejian (1988) 45 Cal.3d 727, 735.)
              Section 946.6(c) requires the superior court to grant a petition for relief if
the application presented under section 911.6 was timely, denied or deemed denied, and
at least one of four circumstances is met. The four circumstances set forth in
section 946.6(c) are nearly identical to those in which an application to present a late
claim must be granted by the board under section 911.6(b). Section 946.6(c)(2) is
identical to section 911.6(b)(2)—“[t]he person who sustained the alleged injury, damage
or loss was a minor during all of the time specified in Section 911.2 for the presentation
of the claim.” (§ 946.6(c)(2), italics added; see § 911.6(b)(2).) Section 946.6(c) thus
recognizes a board might deny, either expressly or by operation of law, an application to
present a late claim brought on a ground set forth in section 911.6(b) even though
section 911.6(b) states such application shall be granted.
              Section 946.6(c) requires the superior court to grant a timely section 946.6
petition when an application for leave to present a late claim filed by a minor meets the
requirements of section 911.6(b)(2) and the application is deemed denied by operation of
law under section 911.6(c). If, as J.M. contends, an application under section 911.6(b)(2)



                                             13
could not be deemed denied by operation of law when a board fails to act, then
section 946.6(c) would serve no purpose.

                              C. Request for Judicial Notice
              J.M. has requested we take judicial notice of documents comprising the
legislative history of section 911.6. Judicial notice of these materials is appropriate.
(Evid. Code, § 452, subds. (a) & (c); Ennabe v. Manosa (2014) 58 Cal.4th 697, 709,
fn. 9; El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 992.)
We grant the request for judicial notice; however, consideration of extrinsic sources to
determine the Legislature’s intent is unnecessary because the Legislature expressed its
purpose in the unambiguous language of section 911.6 itself. (See Smith v. Superior
Court, supra, 39 Cal.4th at p. 83; Kavanaugh, supra, 29 Cal.4th at p. 919.)
              We observe that the legislative history of section 911.6, if considered, is
consistent with our reading of section 911.6. J.M. emphasizes two points from the
legislative history. First, the Government Claims Act should be liberally construed. (See
Viles v. State of California (1967) 66 Cal.2d 24, 31.) Construction of section 911.6, no
matter how liberal, cannot remove the plain language of section 911.6(c) that an
application to present a late claim is deemed denied if the board does not act within 45
days.
              Second, J.M. emphasizes, the Legislature intended to treat minors with
more leniency than other claimants. Such intent to treat minors with more leniency is
built into both section 911.6(b)(2) and section 946.6(c)(2). As J.M. argues,
section 911.6(b)(2) does not require a minor to show that the public entity would be
prejudiced by a late claim. (See Recommendation Relating to Sovereign Immunity (Jan.
1963) 4 Cal. Law Revision Com. Rep. (1963) p. 1010.) The Legislature also showed
leniency to minors when amending the Government Claims Act in 1963 by giving them
one year, instead of 100 days, in which to present an application to present a late claim.


                                             14
(Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com.
Rep. at p. 1010.) The Legislature did not otherwise exempt minors from the
requirements and time limits of the Government Claims Act. J.M. has identified nothing
in the legislative history materials that suggests the Legislature did not intend for
section 911.6(c) to apply to applications brought under section 911.6(b)(2).

                                             IV.

                J.M.’s Petition Is Time-barred Because It Was Not Filed
                        Within the Six-month Limitations Period
                                Set Forth in Section 946.6.

                          A. Compliance with Section 946.6(b) Is
                              a Prerequisite to Filing Suit.
              To challenge the denial of an application to present a late claim, a claimant
must file a petition in the superior court “within six months after the application to the
board is denied or deemed to be denied pursuant to Section 911.6.” (§ 946.6(b).) A
claimant may file a lawsuit only once the superior court grants a section 946.6 petition for
relief from the claim requirement. (§ 946.6, subd. (f).)
              Section 946.6(b) operates as a statute of limitations, and its six-month
limitations period “is mandatory, not discretionary.” (D.C. v. Oakdale Joint Unified
School Dist. (2012) 203 Cal.App.4th 1572, 1582, citing Lineaweaver, supra, 139
Cal.App.3d at p. 739.) In Lineaweaver, the plaintiff failed to present a timely claim and
instead presented an application for leave to present a late claim, which was deemed
denied by operation of law when the public entity did not act within 45 days.
(Lineaweaver, supra, at pp. 739-740.) The plaintiff later filed a complaint and two
amended complaints, the last of which the trial court deemed to be a petition for relief
from the claims requirement under section 946.6. (Lineaweaver, supra, at p. 740.) The
trial court denied the plaintiff’s section 946.6 petition as untimely because it was not filed
within six months of the date on which the plaintiff’s application to present a late claim



                                             15
was denied or deemed denied. (Ibid.) The Court of Appeal affirmed the trial court’s
denial of the petition as untimely and emphasized the six-month limitations period of
section 946.6(b) acts as a statute of limitations. (Lineaweaver, supra, at pp. 740-741.)
              The District did not act on J.M.’s application for leave to present a late
claim; therefore, it was deemed denied on December 8, 2012, the 45th day after it was
presented. J.M.’s counsel filed a petition under section 946.6 on October 28, 2013. The
petition under section 946.6 was untimely because it was filed more than six months after
the application to present a late claim was deemed denied by operation of law. The
superior court did not err by denying J.M.’s petition on the ground it was untimely under
the applicable six-month statute of limitations of section 946.6(b).
              Our reading of section 946.6 appears to be contrary to E.M. v. Los Angeles
Unified School Dist. (2011) 194 Cal.App.4th 736 (E.M.). In that case, the plaintiff
presented a timely application for leave to present a late claim on the ground that she was
a minor at all relevant times. (Id. at p. 740.) Despite section 911.6(b)(2), the public
entity expressly rejected the minor’s application for leave to present a late claim. (E.M.,
supra, at p. 740.) Five months after the public entity rejected the application, the minor
filed a lawsuit. (Id. at p. 741.) Two months after filing the lawsuit and seven months
after her application to present a late claim was denied, the minor filed a section 946.6
petition with the superior court, seeking relief from the claim requirement of
section 945.4. (E.M., supra, at p. 741.) The superior court denied the plaintiff’s
section 946.6 petition as untimely because it was not filed within six months of the public
entity’s denial of her application to present a late claim. (Ibid.) The lawsuit was
dismissed. (Ibid.)
              A panel of the Court of Appeal, Second Appellate District, Division Three,
reversed and reinstated the plaintiff’s lawsuit. (E.M., supra, 194 Cal.App.4th at p. 749.)
The Court of Appeal concluded the plaintiff satisfied the claim requirement of
section 945.4 simply by presenting an application for leave to present a late claim. (E.M.,

                                             16
supra, at p. 748.) The court reasoned the application for leave to present a late claim
satisfied the statutory purpose of providing notice of the claim to the public entity. (Ibid.)
Because the plaintiff satisfied the claim requirement, the Court of Appeal believed it was
unnecessary for the plaintiff to bring a petition in the superior court under section 946.6
before filing a lawsuit. (E.M., supra, at p. 747.) Even though the superior court had not
granted the petition under section 946.6, the Court of Appeal concluded the plaintiff’s
lawsuit was timely under section 945.6, subdivision (a)(1) because the lawsuit was filed
within six months of the board’s denial of her application for leave to present a late
claim. (E.M., supra, at p. 748.)
              We disagree with E.M. to the extent it stands for the proposition that a
plaintiff who was a minor at the time the injuries were suffered satisfies the claim
requirement of section 945.4 simply by presenting an application for leave to present a
late claim under section 911.6(b)(2). A treatise has recognized that E.M. creates
confusion regarding the procedure minor plaintiffs must follow before filing suit: “The
holding in E.M. would appear to render the filing of a petition under Govt C §946.6
superfluous, at least when the basis for late claim relief is the claimant’s minority.” (Van
Alstyne et al., Cal. Government Tort Liability Practice (Cont.Ed.Bar 2015) § 7.60.) We
agree. We believe the E.M. opinion overlooks the plain language of sections 911.4,
911.6, 945.4, and 946.6. By holding that an application for leave to present a late claim
itself satisfies the claim requirement, even if the application is denied, E.M. nullifies the
requirements of filing a petition under section 946.6 and obtaining court permission to be
relieved of the claim procedure.

                  B. The Doctrine of Equitable Tolling Does Not Apply.
              J.M. argues the doctrine of equitable tolling should apply when a minor’s
application for leave to present a late claim is denied by operation of law in contravention
of section 911.6(b)(2). This argument is without merit.


                                              17
              Equitable tolling of statutes of limitations is a judicially created doctrine
designed to suspend or extend a statute of limitations “‘as necessary to ensure
fundamental practicality and fairness.’” (McDonald v. Antelope Valley Community
College Dist. (2008) 45 Cal.4th 88, 99.) Equitable tolling applies when a claimant has
several legal remedies and chooses to pursue one reasonably and in good faith. (Id. at
p. 100.) “Thus, it may apply where one action stands to lessen the harm that is the
subject of a potential second action; where administrative remedies must be exhausted
before a second action can proceed; or where a first action, embarked upon in good faith,
is found to be defective for some reason.” (Ibid.)
              J.M. did not pursue an alternative remedy, such as an administrative
remedy or an action in a different forum. It is undisputed the only remedy J.M. sought
was by petition to the superior court pursuant to section 946.6. He therefore cannot
invoke equitable tolling.

               C. The Board Was Not Required to Provide Written Notice
                               Under Section 911.8.
              J.M. asserts the District failed to give him written notice of the denial of his
application for leave to present a late claim under section 911.8. Had the District
provided notice, J.M. argues, “any prejudice from plaintiff’s brief delay petitioning the
court would have been eliminated.” He also suggests the failure to give notice operated
as an estoppel because he was “lulled into the belief that the Board would, eventually,
grant his application, and permit him to file his late claim.”
              Section 911.8, subdivision (a) requires a board to give written notice only
of “the board’s action upon the application.” The District was not required under the
statutory framework to give written notice of its inaction upon his application. J.M. was
represented by counsel who could determine the application to present a late claim had
been denied by operation of law under section 911.6(c). J.M. identifies no “calculated
conduct,” representation, or concealment of facts on the part of the District or its agents

                                             18
supporting an estoppel to invoke the time limitations of the Government Claims Act.
(Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1044-1045.)

                                      D. Public Policy
              J.M. urges us to look beyond the language of sections 911.6 and 946.6 and
consider public policy favoring trial on the merits. The primary purpose of the
Government Claims Act is to provide the public entity with notice of a claim to facilitate
investigation and settlement without trial, if appropriate. (City of Stockton v. Superior
Court, supra, 42 Cal.4th at pp. 744-745; City of San Jose v. Superior Court (1974) 12
Cal.3d 447, 455.) The Legislature effectuated and expressed that purpose in the plain
language of the Government Claims Act, which includes a detailed procedure for “the
advance filing of a claim as a prerequisite to filing suit” and deadlines for “both the filing
of claims and the commencement of litigation.” (Schmidt v. Southern Cal. Rapid Transit
Dist., supra, 14 Cal.App.4th at p. 28.)
              Although, as J.M. argues, section 946.6 is a remedial statute, it is to be
construed in favor of relief only when that is possible. (Bettencourt v. Los Rios
Community College Dist., supra, 42 Cal.3d at pp. 275-276, citing Viles v. State of
California, supra, 66 Cal.2d at pp. 32-33.) The language of section 946.6 is plain and
unambiguous; it cannot be construed in favor of granting J.M. relief. By virtue of the
District’s inaction, J.M.’s application for leave to present a late claim was deemed denied
by operation of law on December 8, 2012, the 45th day after J.M. presented the
application to the District. Consequently, J.M. had six months from December 8, 2012,
to petition the superior court for relief from the claim requirement under section 946.6.
(§ 946.6(b).) J.M. did not meet that deadline. “The general policy favoring trial on the
merits cannot be applied indiscriminately so as to render ineffective the statutory time
limits.” (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at
p. 1293.)


                                              19
                                     DISPOSITION
              The order denying J.M.’s petition under section 946.6 is affirmed. In the
interest of justice, no party may recover costs incurred on appeal.




                                                 FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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