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District Court of Appeal, Fifth District, California.

Jack D. VILES, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Civ. 630.

Decided: July 28, 1966

John R. Saldine, Sacramento, for appellant. Harry S. Fenton, Robert F. Carlson, Kenneth G. Nellis and Marc Sandstrom, Sacramento, for respondent.

Appeal from an order of the Superior Court of Sacramento County denying petition for leave to present a late claim for damages against the state. William M. Gallagher, Judge. Reversed.

John R. Saldine for Plaintiff and Appellant.

Harry S. Fenton, Robert F. Carlson, Kenneth G. Nellis and Marc Sandstrom for Defendant and Respondent.

This appeal is from an order denying petition for leave to present a late claim pursuant to the provisions of the Claims Against Public Entities Act. Appellant's wife, Lula Nadine Viles, died from injuries suffered September 12, 1963, on U. S. Highway 50, a California state highway near Sacramento, when her automobile collided head-on with one operated by Charles E. Sinkey. Following the original impact, two other automobiles were involved in the accident.

Appellant asserts a claim against the State of California, alleging that Highway 50 was constructed and maintained in a defective and dangerous condition, which contributed to the cause of the accident. Until he consulted his attorney on June 2, 1964, appellant was unaware that filing a claim within 100 days is a condition precedent to an action against a public entity. On June 16, 1964, nine months after the accident, appellant filed an application with the Board of Control of the State of California for leave to file a late claim (Gov.Code § 911.4) for personal injuries suffered by his minor son, and on his own behalf for wrongful death of his wife and for property damage. On July 21, 1964, the Board of Control granted the minor permission to file a late claim, but denied permission to appellant (Gov.Code § 911.6). Subsequently, the board denied the claim of the minor, who then filed an action which is now pending.

Appellant filed a petition in the superior court for leave to present a late claim pursuant to Government Code section 912,1 which provided, in pertinent part:

‘(b) The superior court shall grant leave to present a claim after the expiration of the specified in Section 911.2 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed one year after the accrual of the cause of action and was denied or deemed denied pursuant to Section 911.6 and that:

‘(1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity against which the claim is made establishes that it would be prejudiced if leave to present the claim were granted; * * *’

The petition alleged mistake, inadvertence, surprise or excusable neglect stemming from appellant's reliance upon the advice of an insurance adjuster or adjusters that he had one year within which to file an action for personal injuries and wrongful death.

Respondent opposed the petition and filed a declaration contending it would be prejudiced in its investigation if late filing were permitted. (Gov.Code § 912, subd. (b)(1).) The declaration alleged that no employee or representative of the state misled appellant, and that due to the delay it will be much more difficult to establish the condition of the highway on the date of the accident. Respondent also alleged that the claim of the minor child was allowed because it ‘felt that a minor child should not be penalized because of the inaction of his guardian.’

Appellant filed the counterdeclaration of John Hartney, a professional ‘investigator and negotiator of claims,’ who asserted that he investigated the accident, that he took photographs and purchased additional photographs of the scene of the collision, some of which were taken at the site before the vehicles were removed; that he arranged for an engineering investigation of the site; that he obtained statements from witnesses and made an extensive search for additional witnesses; and that independent investigation were carried on by automobile insurance carriers insuring Mrs. Viles with respect to her medical pay coverage and collision coverage, and by investigators on behalf of a Mr. Purdy and a Mr. Bemis, apparently the owners of the other cars involved in the accident. The declaration concluded with the assertion that ‘The undersigned has since the filing of the within motion, revisited the site of the collision and the roadway remains unchanged since the time of the subject collision.’

We granted a rehearing in this case to reconsider our decision that findings are necessary to determine whether the trial court denied the petition because (a) the trial judge found that appellant had not met the burden of proving that his failure to file within 100 days was ‘through mistake, inadvertence, surprise or excusable neglect’ as the representations that misled appellant were made by third-party insurance adjusters and not by representatives of the state, or (b) the court found that the failure to file within 100 days did result from mistake, inadvertence, surprise or excusable neglect, but nevertheless the filing was not within a reasonable time, or (c) the court found that despite investigation of the accident by the highway patrol and by insurance investigators the state would be prejudiced by a late filing, or (d) the court did not believe the declarations of the investigator that the accident had been promptly investigated by several insurance company investigators and that photographs taken immediately after the accident were available.

Originally, we looked upon a resolution of these questions as the trial of a question of fact, indeed, of several questions of fact, within the purview of Code of Civil Procedure section 632, which requires:

‘In superior courts and municipal courts, upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk * * *.’

Findings would seem to follow the Claims Act itself, in that section 912, subdivision (e), requires the trial court to ‘make an independent determination upon the application * * * upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.’

However, respondent has convinced us that a petition to file a late claim under Government Code section 912 is not an action as such, but a prelude to an action against a public entity, even though the complaint is sometimes filed in the same proceeding when the petition for late filing is granted.

In a 1937 case, Carpenter v. Pacific Mutual Life Ins. Co., 10 Cal.2d 307, 74 P.2d 761, the Supreme Court pointed out that Code of Civil Procedure section 632, which requires findings of fact in superior courts and municipal courts upon the trial of a question of fact, is found ‘in part 2 of that Code which deals with ‘Civil Actions.” (P. 328, 74 P.2d p. 774.) The court noted that section 22 of the Code of Civil Procedure, also found in part II, defines an ‘action’ as ‘an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wring, or the punishment of a public offense,’ while section 23 provides that ‘[e]very other remedy is a special proceeding.’ Therefore, concluded the court, findings are required only in actions within the ambit of section 22 unless otherwise provided by statute.

This seems a circuitous path to follow in finding a legislative intent to restrict the clear, general and inclusive language of section 632, which makes no reference to section 22. Furthermore, such syllogistic logic results in findings being required according to the label attached to a proceeding, rather than because an adversary fact finding process is involved. By categorizing, the reasons for requiring findings in the trial of a question of fact are by-passed, considerations impressively summarized in Herman v. Glasscock, 68 Cal.App.2d 98, at pages 100–102, 155 P.2d 912, 913–914, as follows:

‘The finding is the ascertainment of the fact by the judge. [Citation.] It is the court's decision upon the facts. [Citation.] It is the court's best judgment of what the entire evidence establishes. [Citation.] Its purpose is to make the case easily reviewable ‘by exhibiting the exact grounds upon which the judgment rests.’ [Citation.] Under our system it is mandatory that the superior court make and file its finding of the ultimate fact on each material issue created by the pleadings. [Citation.] It follows that the function of the finding is paramount, in presenting a fact in the case.'

It has been argued, with some persuasion, that findings should never be required and that an order of the trial court for judgment should be treated just as the jury verdict is now treated. This may or may not be a valid appraisal of the utility of findings but, regardless of this, there seems to be no valid reason for requiring findings in some trials of questions of fact and not in others.

In any event, no findings are required here, under the authority of Carpenter v. Pacific Mutual Life Ins. Co., supra, and the sole question is whether the court abused the discretion vested in it by Government Code section 912 in denying appellant permission to file a late claim. Analogous cases discuss the exercise of discretion in proceedings for relief from default pursuant to Code of Civil Procedure section 473. Our research discloses that in a review of an exercise of discretion two well established juridical principles are in conflict. It is a time honored rule that where the record discloses any substantial evidence to support a fact found by the trial court, the finding will not be disturbed on appeal; on the other hand, equally well established is the policy of the law to bring about a trial on the merits wherever possible. In cases where the two policies have been in conflict and the court has been called upon to make a choice, usually the directive of the Supreme Court in Brill v. Fox, 211 Cal. 739, 297 P. 25, has been followed. The court said, at page 743, 297 P. at page 26:

‘* * * any doubts which may exist should be resolved in favor of the application, to the end of securing a trial upon the merits.’

(See also Waite v. Southern Pac. Co., 192 Cal. 467, 470, 221 P. 204; Beckley v. Reclamation Board, 48 Cal.2d 710, 718, 312 P.2d 1098; Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523, 190 P.2d 593.)

Reversing an order of the trial court refusing to set aside a default in Brill v. Fox, supra, the Supreme Court expanded upon the application of section 473, 211 Cal. at pages 743–744, 297 P. at page 26, as follows:

‘* * * denials of such relief by the trial court are scanned more carefully than cases where the trial court has granted the relief, to the end that wherever possible cases may be heard on their merits.’

There is really little reason for the rule that an appellate court will not overturn a determination of fact by the trial court when all of the evidence before the lower court is documentary, as here. There is no demeanor of witnesses to be observed and no question of credibility other than appears on the face of the documents; the value and weight of the evidence must be gleaned entirely from the printed word. (Cf. Parsons v. Bristol Development Co., 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839.)

Respondent points out that it must maintain thousands of miles of highway throughout the state, so that notice is essential for adequate investigation of a particular claim. This is a persuasive factor and in the absence of other sources of information lack of notice might overcome the policy of encouraging a trial on the merits. However, in this case the accident was not completely uninvestigated because of lack of notice. The California Highway Patrol, a state agency, made an investigation; at least three insurance carriers made independent investigations of the accident; investigator Hartney declared that he 'arranged for the taking of photographs and purchased additional photographs of the scene of the collision, some of which said photographs were taken at the scene of the collision before the vehicles were moved from the highway; * * * also arranged for an engineering investigation of the site, obtained statements from witnesses, and made an extensive search for additional witnesses.'

Furthermore, by allowing appellant's minor son to file a claim, respondent subjected itself to an action, now pending in the superior court, that requires respondent to defend against the same issues raised by appellant's claim except as to damages, an issue that would seem to be unaffected by delayed filing.

Government Code section 912 is parallel to, if not patterned after, Code of Civil Procedure section 473. We have heretofore cited cases directing a liberal construction of Code of Civil Procedure section 473; the same principles apply to the application of Government Code section 912. In reversing an order denying a motion to vacate a judgment pursuant to section 473, Presiding Justice Barnard said, in Gore v. Witt, 149 Cal.App.2d 681, at page 685, 308 P.2d 770, at page 772:

‘* * * it is the policy of the law that every case should be heard on its merits, and section 473 is a remedial provision to be liberally construed to the end that cases be disposed of upon their merits; that for these reasons a reviewing court listens more readily to an appeal for an order denying relief than one granting relief; and that where there is any doubt as to whether a default should be set aside such doubt should be resolved in favor of the application.’

The order is reversed.


1.  Government Code section 912 has been repealed and in substance is incorporated in Government Code section 946.6.

STONE, Justice.

CONLEY, P. J., and McMURRAY, J. pro tem.,* concur.