In Coble v. Ventura County Health Care Agency, published December 29, 2021, the Second District Court of Appeal, Division 6 affirmed a trial court order denying a petition for relief from the claim requirements under Government Code section 946.6. The petitioner’s claim against the county for alleged medical malpractice accrued on August 2, 2019. The six month period for her to present a timely claim for damages expired on February 2, 2020. She did not present a claim by that deadline. On March 21, 2020, the Governor of California issued Executive Order N-35-20, dealing with the COVID-19 Pandemic. Paragraph 11 of N-35-20 provides, “The time for presenting a claim pursuant to Government Code section 911, et seq., is hereby extended by 60 days.” By Executive Order N-71-20, issued June 20, 2020, the Governor extended these times by an additional 60 days. Thus, the total extension is 120 days. According to Executive Order N-08-21, the 120-day extension applies to claims that accrued before June 30, 2021. On September 15, 2021–more than a year after her claim accrued—the petitioner presented an application to the county for leave to present a late claim. The county denied the application. The petitioner then petitioned the trial court for relief from the claim requirements. The trial court denied the petition on the ground that the petitioner had failed to present a late-claim application to the county within a year of her cause of action’s accrual. The court rejected the petitioner’s argument that Executive Order N-35-20 had extended the deadline to present applications for leave to present late claims.
The appellate court agreed with the trial court’s interpretation of N-35-20. Statutory rules of construction apply to executive orders. The plain language of the order applies the order to the deadline to present claims—not the deadline to apply for leave to present a late claim. Further, the executive order must be interpreted in the context of the overall statutory scheme. The Government Claims Act statutory scheme clearly differentiates between “claims” and “applications.” The two are not synonymous. Had the Governor intended to extend the one-year deadline for presenting late-claim applications, he would have said so in the order. Code of Civil Procedure section 1858 bars courts from redrafting statutes, or executive orders, to add in omitted language. Further, the Governor’s inclusion of an extension of time only for claims implies the exclusion of other extensions of deadlines, such as applications. Finally, interpreting the order to apply to claims but not to applications would not lead to absurd results. A claimant who misses the claim deadline can apply for relief. By contrast, the deadline for the late-claim application is jurisdictional, and missing it puts the claimant out of court.
The appellate court further ruled that the petitioner had waived her challenge to the trial court judge (on the ground that the judge had previously been with county counsel) because at the beginning of the hearing the judge announced that fact, and the attorney representing the petitioner did not object either at that time or before the judge adopted her tentative ruling as final.
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