In N.G. v. County of San Diego, published December 28, 2020, the Fourth District Court of Appeal, Division 1 affirmed a trial court decision denying a Government Code section 946.6 petition for relief from failing to present a timely claim. The petitioner alleged that a sheriff's deputy sexually assaulted her in a hotel room bathroom while her young daughter was outside the bathroom. After the assault, the deputy allegedly told her that she could not let anyone know about this, and, "I know where to find you." The petitioner presented a claim and an application for leave to present late claim 81 days after the six-month deadline to present a claim for damages had expired. When her application was denied, the petitioner filed a petition with the court alleging that her failure to present a timely claim was the result of excusable mistake or neglect. She supported the petition with a declaration that because of the incidents and the deputy's comments, she was scared to report him; that she was afraid her daughter would learn of the incident and that this would have a detrimental effect on her; that she was depressed after the incident and decided to not talk about the incident again; and that she thought that no one would believe her if she complained about a law enforcement officer. She declared that she finally decided to contact a lawyer after she saw on the news that criminal charges had been filed against the deputy for allegedly groping other women. The petitioner also presented a declaration from a retired police detective who owned a business called Sexual Assault Training and Consulting. He opined, as an expert, that sexual assault victims commonly delay reports of assaults for the reasons the petitioner gave, and that the petitioner's reasons for delay were reasonable under the circumstances. The trial court denied the petition, on the ground that the petitioner had failed to prove that she had a physical or mental disability that limited her ability to function or seek out counsel; and that under the circumstances a reasonably prudent would have made an effort to obtain counsel within the claim period.
The appellate court ruled that the trial court acted within its discretion in denying the petition. It rejected the argument that the uncontradicted expert declaration that the petitioner had acted reasonably under the circumstances required the trial court to grant the petition. The trial court was not required to rely on the expert's opinion on the ultimate issue presented. It is the finder of fact, not the expert, that determines whether actions are objectively reasonable. The appellate court also rejected the argument that the trial court failed to consider the relevant circumstances in determining whether the petitioner acted like a reasonably prudent person under the circumstances. Had the trial court ignored the expert's declaration, which described some of the applicable circumstances, it would have abused its discretion; but there was no indication the trial court ignored it. Finally, the trial court rejected the argument that the trial court was compelled to conclude that the petitioner's neglect was excusable. The petitioner had the burden to establish extraordinary physical or mental disability that would prevent a reasonably prudent person from contacting counsel within the claim period. The trial court acted within its discretion in concluding the petitioner had not met this burden. To conclude otherwise would entitle any victim of sexual assault by a man in a position of authority to late-claim relief. Any such carve out would have to be made by the legislature.
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