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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: April 22, 1966

John R. Saldine, Sacramento, for appellant. Harry S. Fenton, Chief Counsel, Robert F. Carlson, Asst. Chief Counsel, Kenneth G. Nellis and Marc Sandstrom, Attys., Dept. of Public Works, Sacramento, for respondent.

This appeal is taken from an order denying appellant's petition for leave to present a claim against the State of California after the statutory period of 100 days had expired, but before the expiration of one year from the accrual of the cause of action. Although Clifford R. Viles was appointed guardian of Jack D. Viles, the claimant, during the pendency of this appeal, and substituted as plaintiff-appellant, there is no contention that Jack D. Viles was not competent for the entire period of one year after the accrual of the cause of action.

Claimant's wife, Lula Nadine Viles, died from injuries suffered in an automobile accident September 12, 1963, on U.S. Highway 50, a California State Highway, near Sacramento. The accident occurred when an automobile operated by Charles E. Sinkey, traveling westerly, collided head-on with Mrs. Viles' automobile, traveling easterly. 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.

On June 16, 1964, some 9 months after the happening of the accident, appellant and his minor son filed an application with the Board of Control of the State of California for leave to file late claims, the minor for personal injuries suffered by him, and appellant for wrongful death of his wife, and for property damage. On July 21, 1964, the Board of Control granted the application of appellant's minor son for permission to file a late claim, but denied appellant's application. Subsequently, the board denied the claim of the minor, who then filed suit, and the action is now pending.

Appellant filed a petition in the superior court for leave to present a late claim pursuant to Government Code, section 912,* that provides, in pertinent part:

‘(b) The superior court shall grant leave to present a cliam after the expiration of the time 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; * * *.’

Appellant's petition in the superior court alleged mistake, inadvertence, surprise or excusable neglect predicated upon his reliance upon the advice of an insurance adjuster or adjusters who told him he had one year within which to file an action for personal injuries and wrongful death. However, there is no contention by appellant that any representative of respondent State of California so advised him or misled him. Appellant relates that he consulted his attorney June 2, 1964, and learned that the filing of a claim is a condition precedent to filing an action against a public entity, and that on June 16, 1964, his attorney filed his late claim.

Respondent, pursuant to its burden to establish prejudice if leave to present the claim were granted (Gov.Code, § 912(b)(1)), filed a declaration alleging that no employee or representative of the state misled appellant, and that because of the late filing it will be more difficult to establish the condition of the highway on the date of the accident. The board 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 a counter-declaration made by 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 scene before the vehicles were removed from the highway, that he arranged for an engineering investigation of the site, and that he obtained statements from witnesses and made an extensive search for additional witnesses. He alleged also that independent investigations were carried on by automobile insurance carriers insuring Mrs. Viles with respect to her medical pay coverage and collision coverage, and a Mr. Purdy, and a Mr. Bemis, apparently the owners of the other cars involved in the collision. He concluded his declaration 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.’

Appellant asserts it was anomalous for respondent to deny his claim upon the ground of difficulty of investigation, since by allowing his minor son to file a claim respondent subjected itself to an action in the superior court, an action 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.

The parties argue the facts, the weight to be given the various declarations, and whether the court did or did not abuse its discretion in denying appellant's right to file a claim, but we are in no position to review the trial court's determination of these factual matters because no findings of fact were made.

In the absence of findings, we have no way of knowing whether the trial court found that respondent's failure to file within 100 days was or was not due to ‘mistake, inadvertence, surprise or excusable neglect’ (under § 912(b) (1)); or if having found the delay was due to these reasons, whether the court determined respondent carried the burden of showing prejudice as required by that same section; or whether the court found for appellant as to both issues raised by paragraph (1) of section 912(b), but nevertheless found that the claim was not filed within a reasonable time as required by section 912 (b) viewed in the rationale of cases construing Code of Civil Procedure, section 473. (Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar) § 8.32, p. 392.)

The question remains whether findings of fact are required in a hearing under Government Code section 912 (now § 946.6). Professor Van Alstyne points out in his work, supra, section 8.34, page 393:

‘Section 912 explicitly rejects the notion that the court will simply review the entity's determination on the record, like an appellate tribunal. Instead, the court is required 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.’ Gov.Code § 912(e).'

Additionally, at page 720, note 3, Van Alstyne tells us that:

‘Under section 912(e), the court is required to make ‘an independent determination’ supported by its own findings of fact (§ 912(b)).'

Van Alstyne's exegesis of section 912 accords with Code of Civil Procedure, section 632, which provides that unless findings are waived (the record reflects no waiver here),

‘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 within 30 days after the cause is submitted for decision. In giving the decision, the facts found and the conclusions of law must be separately stated. The statement of facts found shall fairly disclose the court's determination of all issues of fact in the case.’

Even though all of the evidence presented in a case is documentary, here it consisted of the petition and declarations, it is not the function of an appellate court to make a de novo determination of the factual issues. In Griffith Co. v. San Diego Col. for Women, 45 Cal.2d 501, at page 508, 289 P.2d 476, at page 480, 47 A.L.R.2d 1349, the court said,

“* * * In the consideration of an order made on affidavits involving the decision of a question of fact, the appellate court is bound by the same rule as where oral testimony is presented for review.”

(See also Luz v. Lopes, 55 Cal.2d 54, 62, 10 Cal.Rptr. 161, 358 P.2d 289.)

For failure to make findings of fact and conclusions of law, the order is reversed.


FOOTNOTE.  Government Code, section 912, under which the action was brought, has been repealed and in substance is incorporated in Government Code, section 946.6.

STONE, Justice.

CONLEY, P. J., concurs.