McCurdy v. County of Riverside

Filed 11/21/24
                         CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                  DIVISION ONE

                            STATE OF CALIFORNIA


DONALD MCCURDY,                             D083420

       Plaintiff and Appellant,

       v.
                                            (Super. Ct. No. CVRI2305569)
THE COUNTY OF RIVERSIDE,

       Defendant and Respondent.


       APPEAL from an order of the Superior Court of Riverside, Irma Poole
Asberry, Judge. Affirmed.
       Peter Borenstein, for Plaintiff and Appellant.
       Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall for
Defendant and Respondent.
       Donald McCurdy appeals from an order denying his petition for relief
from the notice requirement of the Government Claims Act (Gov. Code § 810

et seq.).1 McCurdy submitted a claim for damages to the County of Riverside
(the County) just over one year after the Court of Appeal granted his petition
for writ of habeas corpus based on a finding that a Riverside County public
defender provided him ineffective assistance of counsel in a probation
revocation hearing. The County denied the claim, finding that it was not



1      Further unspecified statutory references are to the Government Code.
presented within six months of accrual pursuant to section 911.2. McCurdy
applied for leave to file a late claim, which the County also denied.
      McCurdy then filed a petition for relief from the notice requirement in
the trial court. He asserted his claim did not accrue until August 2022, when
remittitur issued on the writ of habeas corpus, and that he had one year from
that date to present a claim under section 911.2 because the claim arose out
of contract as opposed to tort or personal injury. Alternatively, he asserted
three different attorneys advised him the one-year claim period applied, and
any failure to present a claim within six months was therefore the result of
mistake, inadvertence, surprise, or excusable neglect. The trial court rejected
his assertions and denied the petition. McCurdy presents similar arguments
on appeal. We conclude his claim arises in tort and therefore falls under the
six-month claims period in section 911.2 and the trial court did not abuse its
discretion in finding that he did not show mistake, inadvertence, surprise, or
excusable neglect. Accordingly, we affirm the trial court’s order.
           I.   FACTUAL AND PROCEDURAL BACKGROUND
      McCurdy pled guilty to burglary and corporal injury of a spouse in
2018. The trial court sentenced him to five years in prison but suspended the
sentence in favor of probation. The court also issued a criminal protective
order prohibiting McCurdy from contacting the victim, with whom he shares
a child.
      In August 2020, the district attorney alleged McCurdy violated his
probation by leaving the county without permission and giving the victim a
Mother’s Day card that the child had made with him during a supervised
visit. McCurdy claimed that he left the county to attend a court hearing in
San Diego, that he had his probation officer’s permission to do so, and that he
believed the social worker supervising the visit gave the victim the card. He


                                       2
tried to reach a public defender by phone in the weeks leading up to the
hearing but was unable to do so.
      McCurdy finally met with a public defender approximately one hour
before the probation revocation hearing, which occurred in October 2020. He
told the attorney that he left the county to attend a family court hearing, and
that the hearing should be reflected in the court’s online records. He also
said that he had not given the victim the card and believed the social worker
had given it to the child’s mother. The public defender told McCurdy that she
sought a continuance in a chambers conference before the hearing but the
judge said he would not grant it. McCurdy said that he wanted to proceed
with the hearing without any further time waiver because he believed “if he
just told the court what happened, he would prevail.”
      McCurdy did not prevail. For reasons that are unclear, the public
defender stopped McCurdy’s testimony before he was able to tell the full story
of what happened with the Mother’s Day card and did not present any
evidence verifying the family law court hearing. The trial court found
McCurdy violated his probation and explained, “It’s clear to this Court, by
preponderance of the evidence, that on April 6th and May 6th of 2020, he was
given reasonable directives not to leave Riverside County without permission
and not to send a Mother’s Day card to the victim. It’s clear to this Court he
violated both those conditions based on testimony of [the probation officer] as
well as the defendant’s own admission in this court today.” The court noted
that proof of the family court hearing would have been “compelling evidence
in Mr. McCurdy’s defense.” The court revoked McCurdy’s probation and
imposed the previously stayed five-year prison sentence.
      McCurdy filed a direct appeal. His appointed appellate counsel filed a
brief in accordance with People v. Wende (1979) 25 Cal.3d 436 stating they


                                       3
had not identified any errors. In a supplemental brief, McCurdy asserted the
trial judge erred by relying on unproven allegations and preventing him from
presenting evidence in his defense, and the public defender provided
ineffective assistance of counsel by failing to obtain or present exonerating
evidence. In April 2021, the Court of Appeal affirmed the judgment, but
noted the record on appeal did not contain sufficient evidence as to what
evidence was not presented, or what tactical reason the public defender may
have had for decisions she made about how to present his case. (People v.
McCurdy (Apr. 19, 2021, E076031) [nonpub. opn.].)
      Around the same time, in March 2021, McCurdy petitioned the Court of
Appeal for a writ of habeas corpus “on the ground he was denied effective
assistance of counsel during his probation violation hearing because the
Riverside County Public Defender’s office failed to investigate his factual
defenses.” As is permitted in a petition for writ of habeas corpus, McCurdy
provided additional support for his claim by attaching declarations from
himself, the social worker that supervised the visit with his child, and the
public defender that represented him at the probation revocation hearing.
      The social worker stated in her declaration that she texted a photo of
the card to the child’s mother and asked whether it was okay for the child to
bring the card home. The mother initially expressed some hesitation, but
later asked the social worker to have it sent home to her. The social worker
confirmed that McCurdy did not ask her to contact the mother about the card
and was not the one that delivered the card. The public defender confirmed
that McCurdy told her before the hearing that he did not believe he needed
permission to attend the family law hearing but had called his probation
officer afterwards out of an abundance of caution, and that he was not the
one that gave the mother the card. She also confirmed that McCurdy wanted


                                       4
to go forward with the hearing on the belief that he would prevail if he just
told the court what happened.
      On June 16, 2022, the Court of Appeal granted the habeas petition. It
found that McCurdy had been denied effective assistance of counsel and
directed the trial court “to vacate the order finding petitioner violated the
terms of his probation and placing petitioner in custody and enter a new
order finding petitioner did not violate the terms of his probation and
reinstating probation.” Remittitur issued on the writ of habeas corpus on
August 17, 2022.
      On June 30, 2023, McCurdy presented a claim for damages to person or

property to the County of Riverside.2 He stated therein that the damage or
injury occurred on August 17, 2022. He explained that he received ineffective
assistance of counsel from a public defender at the probation revocation
hearing in August 2020, that the Court of Appeal granted his petition for writ
of habeas corpus finding the same on June 16, 2022, and that he had been
wrongfully imprisoned for 600 days.
      The County responded by written letter on July 10, 2023. The letter
listed the date of loss as “08/17/2022” and stated the claim was not presented
within six months after the event or occurrence as required by section 911.2.
The letter informed McCurdy that his only recourse was to apply for leave to
present a late claim.
      McCurdy presented his application to present a late claim
approximately one week later, on July 18, 2023. He asserted he had one


2      The County deemed the claim received on July 5, 2023. While the date
of claim presentation is critical to our analysis, the difference between June
30 and July 5 is not. Both are more than one year from June 16, 2022, and
less than one year from August 17, 2022.

                                        5
year, and not six months, from August 17, 2022, to present his claim under
section 911.2 because the asserted cause of action was not for death, injury to

person or to personal property, or growing crops.3 He also stated, somewhat
summarily, that he “would have presented his claim earlier but was
prevented from doing so because of the difficulty he experienced finding and
retaining an attorney to pursue [the] government claim.” The County denied
the application, stating that it did not satisfy the criteria for leave to present

a late claim listed in section 911.6, subdivision (b).4
      In October 2023, McCurdy filed a petition for an order of relief from the
Government Claims Act with the trial court. He asserted the County
mistakenly applied the six-month limitation period and, to the extent the six-
month period did apply, he “should be relieved from the requirements of the
claim statute for reasons of mistake, inadvertence, surprise, or excusable
neglect as described in the [declaration of his attorney].”
      The attorney declaration stated in relevant part, “Petitioner was
advised on three separate occasions by three different attorneys, including
myself, that the one-year limitation period applied to his claim for


3     Section 911.2, subdivision (a) states: “A claim relating to a cause of
action for death or for injury to person or to personal property or growing
crops shall be presented as provided in Article 2 (commencing with Section
915) not later than six months after the accrual of the cause of action. A
claim relating to any other cause of action shall be presented as provided in
Article 2 (commencing with Section 915) not later than one year after the
accrual of the cause of action.”

4     As relevant here, section 911.6, subdivision (b)(1) permits a late claim if
“The 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.”

                                         6
professional negligence against the County and its employee. [¶] Despite his
best efforts, Petitioner was only able to retain me on June 12, 2023. I
subsequently presented his government claim to the County on July 5, 2023.
[¶] To the extent that the Court finds that the six-month limitation period
applies, Petitioner should be relieved from the claim statute for reasonably
relying on legal opinions by three different attorneys, leading him to
mistakenly believe he had one year in which to present his claim to the
Board.”
      In opposition, the County asserted the underlying claim accrued when
the trial court revoked McCurdy’s probation and, thus, his claim was time-
barred regardless of whether it was governed by the six-month or one-year
limitation period under section 911.2. The County asserted, further, that
McCurdy had not met his burden to prove mistake, inadvertence, surprise or
neglect as required to pursue a late claim under section 946.6, subdivision (c),
noting that “he did not even search for an attorney until August 2022” and
did not file his late claim until July 5, 2023. McCurdy did not file a reply.
      The trial court held a hearing, but the transcript is not included in the
record on appeal. After hearing oral argument, the trial court found that
McCurdy’s claim accrued when the previous court revoked his probation and
was therefore untimely under either the six-month or one-year period. The
court found McCurdy’s application to file a late claim was likewise time-
barred as it was filed well over one year from the accrual of his claim and,
regardless, McCurdy failed to show that he was entitled to relief under
section 946.6.
      McCurdy filed a timely notice of appeal.




                                        7
                             II.    DISCUSSION
      McCurdy maintains that he had one year from accrual of the cause of
action to present his claim under section 911.2. He asserts the trial court
erred by finding his claim accrued when the trial court revoked his probation,
and instead relies on Code of Civil Procedure section 340.6—addressing the
statute of limitations for claims related to attorney negligence—to assert his
claim did not accrue until August 17, 2022, when remittitur issued on the
writ of habeas corpus. The County maintains that McCurdy had six months
to present his claim under section 911.2. The County asserts McCurdy
waived any arguments under Code of Civil Procedure section 340.6 and,
regardless, did not present his claim within six months of August 17, 2022, as
required by section 911.2. In addition, the County points out that McCurdy
does not challenge the trial court’s finding that he did not establish mistake,
inadvertence, surprise or excusable neglect in his briefing on appeal.
      A.    Legal Principles and Standard of Review
      Section 905 of the Government Claims Act requires that “all claims for
money or damages against local public entities,” subject to certain
enumerated exceptions not applicable here, “be presented in accordance with
Chapter 1 (commencing with Section 900) and Chapter 2 (commencing
with Section 910).” Section 900.4 defines “ ‘local public entity’ ” and expressly
included counties. Section 910 describes the information that a claim must
contain.
      Section 911.2, subdivision (a) sets for the time for bringing such claims
and specifies that any claim “relating to a cause of action for death or for
injury to person or to personal property or growing crops shall be
presented . . . not later than six months after the accrual of the cause of
action. A claim relating to any other cause of action shall be presented . . .


                                        8
not later than one year after the accrual of the cause of action.” “When a
claim that is required by Section 911.2 to be presented not later than six
months after the accrual of the cause of action is not presented within that
time, a written application may be made to the public entity for leave to
present that claim.” (§ 911.4, subd. (a).) However, “[t]he application shall be
presented to the public entity . . . within a reasonable time not to exceed one
year after the accrual of the cause of action and shall state the reason for the
delay in presenting the claim.” (§ 911.4, subd. (b).)
      The California Supreme Court has explained, “ ‘[t]he requisite timely
claim presentation before commencing a lawsuit . . . permits the public entity
to investigate while tangible evidence is still available, memories are fresh,
and witnesses can be located. [Citations.] Fresh notice of a claim permits
early assessment by the public entity, allows its governing board to settle
meritorious disputes without incurring the added cost of litigation, and gives
it time to engage in appropriate budgetary planning. [Citations.] The notice
requirement under the government claims statute thus is based on a
recognition of the special status of public entities, according them greater
protections than nonpublic entity defendants, because unlike nonpublic
defendants, public entities whose acts or omissions are alleged to have caused
harm will incur costs that must ultimately be borne by the taxpayers.’ ”
(Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 908 (Rubenstein).) In essence,
the notice requirements allow public entities to engage in fiscal planning to
cover potential liabilities already incurred, while also avoiding the incursion
of additional liabilities for the same reasons, minimizing the overall burden
to taxpayers. (Ibid.)
      Nonetheless, “[s]ection 946.6 provides a procedure for relieving a party
from the condition precedent of presenting a timely claim to a public entity


                                        9
before commencing an action against the public entity on the cause of action
contained in the claim.” (DeVore v. Department of California Highway Patrol
(2013) 221 Cal.App.4th 454, 459 (DeVore).) “In order to obtain relief, the
party must establish that an application to the public entity for leave to file a
late claim (§ 911.4) was filed in a reasonable period of time (not to exceed one
year) after the accrual of the cause of action for reasons of inadvertence,
mistake, surprise, or excusable neglect akin to the showing necessary for
relief from default.” (DeVore, at p. 459.)
      We review the trial court’s denial of a petition for relief pursuant to
section 946.6 for an abuse of discretion. (Barragan v. County of Los Angeles
(2010) 184 Cal.App.4th 1373, 1382 (Barragan).) However, the interpretation
of the relevant underlying statutes is a matter of law that we review de novo.
(United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th
1082, 1089.) Moreover, we are not constrained by the trial court’s reasoning
and may affirm the result on any ground supported by the record. (Apex
Solutions, Inc. v. Falls Lake Ins. Management Co., Inc. (2024) 100
Cal.App.5th 1249, 1257.)
      B.    McCurdy Did Not Present a Claim Within the Time
            Limitations Set Forth in Section 911.2
      We begin our analysis by considering McCurdy’s assertion, based on
Code of Civil Procedure section 340.6, that his claim did not accrue and the
time limitation under section 911.2 did not begin to run until August 17,




                                       10
2022, when remittitur issued on the writ of habeas corpus directing the trial

court to reinstate his probation.5
      Section 901 provides, in relevant part, “ ‘[f]or the purpose of computing
the time limits prescribed by [ ] Sections 911.2, 911.4, 945.6, and 946.6, the
date of the accrual of a cause of action to which a claim relates is the date
upon which the cause of action would be deemed to have accrued within the
meaning of the statute of limitations which would be applicable thereto if
there were no requirement that a claim be presented to and be acted upon by
the public entity before an action could be commenced thereon.’ ”
(Rubenstein, supra, 3 Cal.5th at p. 910.) Thus, “ ‘[a]ccrual of the cause of
action for purposes of the government claims statute is the date of accrual
that would pertain under the statute of limitations applicable to a dispute
between private litigants.’ ” (Id. at p. 906.)
      McCurdy asserts Code of Civil Procedure section 340.6 sets forth the
relevant statute of limitations for a claim, like his, based on attorney
negligence. He contends, the “first sentence of Section 340.6 provides a
general limitation period for professional negligence claims of one year ‘after
the plaintiff discovers, or through the use of reasonable diligence should have
discovered, the facts constituting the wrongful act or omission, or four years
from the date of the wrongful act or omission, whichever occurs first.’ The


5      The County asserts McCurdy waived this contention because he did not
assert it in his application for leave to present a late claim or in his petition
for relief in the trial court. McCurdy has always asserted his claim accrued
on August 17, 2022, and we note that the County listed “8/17/2022” as the
date of loss in its first two communications to McCurdy. The County did not
assert the claim instead accrued in 2018 until its opposition to McCurdy’s
petition for relief to the trial court. Before that, McCurdy had no need to
defend his apparently undisputed assertion that his claim accrued in August
2022. We therefore decline to decide the issue based on waiver.

                                        11
second sentence (later added by Stats. 2009, ch. 432 (A.B. 316), § 2) provides
a specific limitation period of two years ‘after the plaintiff achieves
postconviction exoneration in the form of a final judicial disposition of the
criminal case,’ but only in cases where the plaintiff must establish his factual
innocence as an element of the claim.” (See Code Civ. Pro. § 340.6, subd. (a).)
      The County acknowledges this language, but nevertheless relies on
Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia) to assert the
claim accrues when the client discovers or should have discovered the facts
essential to the claim, which is, in most cases, the date the attorney
committed an act or omission amounting to professional negligence. (Id. at
pp. 1209–1210.) In this case, the County asserts McCurdy’s claim accrued in
2020, when the public defender allegedly provided ineffective assistance of
counsel, resulting in the revocation of McCurdy’s probation. However, as the
court in Coscia recognized, accrual at the time of the alleged negligence
creates a disconnect in criminal malpractice cases, where actual innocence is
an element of the underlying malpractice claim. (Id. at pp. 1201, 1204.)
Accordingly, the court went on to consider “the effect of the foregoing
requirement of exoneration by postconviction relief upon the application of
the relevant statute of limitations for legal malpractice actions arising from
criminal proceedings.” (Id. at 1206.)
      When the court issued its opinion in Coscia in 2001, Code of Civil
Procedure section 340.6 did not have a provision addressing postconviction
exoneration. (Coscia, supra, 25 Cal.4th at p. 1206.) The Coscia court
acknowledged a split across other jurisdictions, some of which tolled the
limitations period until the plaintiff obtained postconviction relief and some
of which did not. (Id. at pp. 1206–1210.) Considering the language of Code of
Civil Procedure section 340.6 when the court decided Coscia, the court


                                        12
concluded the statute of limitations in California began to run on the date the
attorney committed the act or omission amounting to negligence, and the
solution in criminal cases was for the trial court to stay the malpractice case
while the plaintiff attempted to obtain postconviction exoneration. (Id. at pp.
1210–1211; see also Ovando v. County of Los Angeles (2008) 159 Cal.App.4th
42, 62–70 (Ovando) [discussing Coscia and accrual of action for malpractice
in a criminal case prior to the amendments to Code of Civil Procedure section
340.6]; Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1186–1187
(Khodayari) [applying Coscia and concluding appellant alleging legal
malpractice against private defense attorney had to show actual innocence of
the probation violations allegedly resulting from the attorney’s negligence].)
      In 2009, the Legislature amended Code of Civil Procedure section 340.6
to add the second sentence upon which McCurdy now relies, addressing the
impact of postconviction exoneration. Code of Civil Procedure section 340.6
now reads, “If the plaintiff is required to establish the plaintiff’s factual
innocence for an underlying criminal charge as an element of the plaintiff’s
claim, the action shall be commenced within two years after the plaintiff
achieves postconviction exoneration in the form of a final judicial disposition
of the criminal case.” The language suggests that this change was in direct
response to the issue addressed in Coscia.
      However, this leaves open a question, potentially relevant in this case,
as to whether “final disposition” means the date on which the court issues a
writ, opinion, or other decision establishing actual innocence, or, as McCurdy

alleges, the date that remittitur issues.6 In Coscia, the court concluded, “a


6    McCurdy submitted his claim to the County on June 30 or July 5, 2023,
more than one year after the Court of Appeal issued the relevant writ of
habeas corpus, but less than one year after remitter issued.

                                        13
plaintiff must obtain postconviction relief in the form of a final disposition of
the underlying criminal case—for example, by acquittal after retrial, reversal
on appeal with directions to dismiss the charges, reversal followed by the
People’s refusal to continue the prosecution, or a grant of habeas corpus
relief—as a prerequisite to proving actual innocence in a malpractice action
against former criminal defense counsel.” (Coscia, supra, 25 Cal.4th at
p. 1205, italics added.) But the question of when such a decision becomes
final was not before the court and, thus, the court did not elaborate further.
Here, neither party provides, nor are we aware of, any published case
conclusively deciding the issue.
      On the one hand, as we have explained, the 2009 amendment to Code
of Civil Procedure section 340.6 appears to derive from the California
Supreme Court’s decision in Coscia, in which the court at least suggested
that a grant of habeas corpus relief is a final disposition demonstrating
actual innocence. (Coscia, supra, 25 Cal.4th at p. 1205.) On the other hand,
in the context of retroactivity of statutory amendments, where this issue has
been frequently addressed in recent years, final disposition is generally
considered to be the time at which the courts no longer have jurisdiction to
modify or reverse the relevant decision, i.e., as McCurdy asserts, when
remittitur issues. (See, e.g., People v. McKenzie (2020) 9 Cal.5th 40, 46–49
[explaining that criminal disposition becomes final when final court
authorized to review it loses jurisdiction].)
      However, we need not, and expressly do not, decide the issue here.
Even if we accept McCurdy’s position that the disposition was not final and
his claim did not accrue until the remittitur issued on the writ of habeas
corpus directing the trial court to reinstate his probation, he still did not
present his claim for another 11 months. The County asserts, as it has all


                                        14
along, that a claim for legal malpractice is necessarily a claim for personal
injury and is therefore subject to the six-month limitation in section 911.2.
Thus, even assuming the claim did not accrue until August 17, 2022,
McCurdy still did not comply with the time requirement in Section 911.2.
      McCurdy asserts, as he did in the trial court, that his claim sounds, at
least in part, in contract. Thus, he contends his claim is not one for “injury to
person or personal property” and is instead subject to the one-year time
limitation for “any other cause of action” in Section 911.2. McCurdy relies on
two cases to support this contention, but neither is persuasive.
      In Jackson v. Rogers & Wells (1989) 210 Cal.App.3d 336, the court
noted, in the context of a civil suit against a privately retained attorney, that
“legal malpractice constitutes both a tort and a breach of contract.” (Id. at
p. 349.) The case did not address a government claim and the court went on
to conclude that the claim was barred in that case regardless (for reasons
other than the limitations period) and thus had no occasion to discuss the
impact on the relevant statutes of limitation or the time to file a claim under
section 911.2. (Id. at pp. 349–350.)
      In Voth v. Wasco Public Util. Dist. (1976) 56 Cal.App.3d 353, the court
considered whether, under a former version of section 911.2, “a lessee’s claim
for damages against a public entity-lessor for breach of an implied promise of
fitness of water for use on growing crops sounds in tort,” or contract. (Id. at
p. 355.) The court explained, “If the breach is both contractual and tortious,
we must ascertain which duty is the quintessence of the action. If it is
unclear, courts generally will consider the action to be in contract rather than
in tort.” (Id. at pp. 356–357.) “However, if the action is predicated on a duty
independent of the contract, it will be deemed to be in tort regardless of the
contractual relation of the parties.” (Id. at p. 357.)


                                        15
      As an initial matter, it is not apparent that there was ever a contract
that could have been breached in the first instance. McCurdy’s claim arises
from alleged legal malpractice of his appointed Riverside County public
defender. McCurdy alleged in his petition for relief in the trial court that his
claim was “founded upon causes of action for professional negligence, breach
of fiduciary duty, and breach of contract.” In the associated declaration, his
attorney alleged that McCurdy’s “claim arises from the contract he had with
his public defender to represent him in a probation violation hearing.” But
this alleged contract is not attached to the declaration and does not appear
anywhere in the record.
      Rather, McCurdy’s attorney cites generally to Neel v. Magna, Olney,
Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, another case involved a claim
against a private attorney, in which the court explained that legal
malpractice typically gives rise to an action in tort, “in the usual case, the
attorney undertakes to perform his duties pursuant to a contract with the
client,” and thus there may also be a breach of that contract. (Id. at p. 181,
italics added.) McCurdy fails to acknowledge, though, that in the usual case
involving a public defender, the court makes the appointment, and there is no
underlying contract with the defendant. McCurdy presents no case in which
a public defender was subject to a contract claim for negligent representation.
Moreover, even if there was a contract, these cases do not stand for the
proposition that a claim for breach of contract somehow precludes a
simultaneous claim for personal injury or tort.
      Here, the result of the alleged legal malpractice was that McCurdy was
wrongfully incarcerated, and he sought non-economic damages for what can
only be described as personal injuries deriving therefrom. Thus, we agree
that the weight of authority supports the County’s contention that his


                                        16
primary claim is based in personal injury and is subject to the six-month
notice requirement set forth in section 911.2. (See Khodayari, supra, 200
Cal.App.4th at pp. 1190–1191 [where primary right at issue is right to
competent legal representation, claims arise from tort theory of negligence];
Ovando, supra, 159 Cal.App.4th at p. 73 [“In a criminal case, however, the
primary interest at stake in the defendant’s legal representation is the
defendant’s liberty. An emotional injury resulting from the incarceration
of an innocent defendant is plainly foreseeable.”]; Kracht v. Perrin, Gartland
& Doyle (1990) 219 Cal.App.3d 1019, 1023 [“a claim for legal malpractice is
more akin to those types of claims which are not assignable, i.e., claims for
personal injury, wrongs of a purely personal nature”]; Holliday v. Jones
(1989) 215 Cal.App.3d 102, 115 [in criminal context, “emotional distress
damages necessarily result from the loss of that liberty due to no other
reason than lawyer malpractice”].)
      Accordingly, we conclude that, even if McCurdy’s claim did not accrue
until remittitur issued in August of 2022, section 911.2 still required
McCurdy to present it within six months. McCurdy did not present his claim
to the County until June 30, 2023 at the earliest, more than six months after
August 2022, and the claim was therefore untimely.
      C.   McCurdy Does Not Establish an Abuse of Discretion
      As a final matter, we must conclude that McCurdy has not established
that the trial court abused its discretion by concluding that he did not
establish mistake, inadvertence, surprise or excusable neglect necessary to
establish a right to relief under section 946.6. We acknowledge that section
946.6 “ ‘is a remedial statute intended to provide relief from technical rules
which otherwise provide a trap for the unwary,’ ” and “ ‘that wherever
possible cases should be heard on their merits.’ ” (Barragan, supra, 184


                                       17
Cal.App.4th at p. 1382.) “ ‘Thus, a denial of such relief by the trial court is
examined more rigorously than where relief is granted and any doubts which
may exist should be resolved in favor of the application.’ ” (Ibid.)
      Here, although we are sympathetic to McCurdy’s plight, we cannot
conclude that the trial court abused its discretion. McCurdy presented only a
rough outline of his claim of mistake, inadvertence, surprise or excusable
neglect in the trial court. He relied exclusively on a declaration from his
current attorney to assert both that he had trouble finding an attorney that
would represent him and that all three attorneys he consulted informed him
that the one-year claims presentation period applied under section 911.2.
McCurdy provides no details or evidentiary support regarding his own
attempts to obtain an attorney in the 11 months after his release, nor does he
identify the two other attorneys he allegedly consulted, when those
consultations occurred, the basis upon which they allegedly concluded that
the one-year claim presentation period applied, or why, despite apparently
having some familiarity with the Government Claims Act, these other two
attorneys were unwilling or unable to present at least a basic claim to the
County in a timely manner. (See Devore, supra, 221 Cal.App.4th at p. 459
[“the preference for a trial on the merits does not warrant relief if based on a
perfunctory recital of diligence in support of excusable neglect”].) As we have
explained, the weight of authority suggests that attorney negligence,
particularly in the context of a public defender, is primarily a cause of action
for personal injury. At a minimum, the attorneys should have been aware
that the six-month period might apply and therefore should have presented a
protective claim within that period.
      Regardless, as the County points out, on appeal, McCurdy does not
even assert, let alone present a cogent legal argument, that the trial court


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abused its discretion in concluding that this minimal showing was not
sufficient to establish mistake, inadvertence, surprise or excusable neglect in
his briefing on appeal. He focuses his argument solely on the underlying
legal issues regarding the timeliness of his initial claim, and, as we have
explained, we conclude he did not present his claim within the time
limitations of section 911.2.
                                III.   DISPOSITION
      The order is affirmed. The parties to bear their own costs on appeal.



                                                                   KELETY, J.

WE CONCUR:



HUFFMAN, Acting P. J.



RUBIN, J.




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