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Court of Appeal, First District, Division 4, California.

The COUNTY OF SANTA CLARA, Petitioner, v. SUPERIOR COURT of the State of Callfornia, IN AND FOR the COUNTY OF SANTA CLARA, Respondent; Gaston DELEERSNYDER and Germaine Deleersnyder, Real Parties in Interest.

Civ. 26492.

Decided: June 13, 1969

Hoge, Fenton, Jones & Appel, San Jose, for petitioner. Magana, Olney, Levy & Cathcart, Los Angeles, for real parties in interest.

The County of Santa Clara seeks a writ of prohibition to restrain the superior court from taking further proceedings in a wrongful death action brought by Gaston and Germaine Deleersnyder, parents of a boy who died after treatment in the county hospital for injuries received in a traffic accident. The question is whether the superior court abused its discretion in relieving the parents (real parties in interest herein) from the consequences of failing to file a claim with the board of supervisors within the time allowed by the California Tort Claims Act.

The complaint in the principal action alleges that the boy died on February 15, 1967, as the result of personal injuries negligently inflicted on March 4 and 5, 1960, while he was a patient in the Santa Clara County Hospital. An action against the county for personal injuries had already been commenced when the boy died; that action survives as to special damages and is not in question here.

Conceding that they did not present their claim for wrongful death within 100 days of accrual as required by Government Code section 911.2, the parents sought relief from the board of supervisors under section 911.4. The board denied leave to present a late claim; thereupon respondent court was petitioned for such leave under Government Code section 912 (now 946.6), on the grounds of inadvertence and excusable neglect. After a hearing, the court granted relief, finding that the delay in filing the claim was ‘reasonably incurred.’

The county is a public entity (Govt.Code, § 811.2); it is subject to suits for wrongful death only if a claim has been presented as required by the California Tort Claims Act. Section 911.2 requires that a wrongful death claim must be presented not later than the 100th day after the accrual of the cause of action. Section 946.6 empowers a court to relieve a claimant from the consequences of late filing, if certain conditions are met.

Under section 946.6, subdivision (c), the court is to grant relief if it finds that the claim was presented within a reasonable time, not to exceed one year after the accrual of the cause of action, and that the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect, unless the public entity establishes that it would be prejudiced by the late suit. The trial court's determination is not to be disturbed except for an abuse of discretion. (Viles v. State of California (1967) 66 Cal.2d 24, 28, 56 Cal.Rptr. 666, 423 P.2d 818; Martin v. City of Madera (1968) 265 A.C.A. 84, 87, 70 Cal.Rptr. 908.)

In the present case the parents asserted that their failure to present their claim within the 100-day period was through inadvertence and excusable neglect. The only evidence supporting the assertion was a statement in a declaration made by counsel that no claim was filed ‘until it could be determined that the claimants' decedent died of injuries proximately received at the defendant's hand, and further determined whether or not the claimants wished to pursue their claim and cause of action; * * *’ The county did not attempt to show that it was prejudiced. Citing Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 58 Cal.Rptr. 20, the trial judge observed: ‘Here the lateness is less than 30 days, no prejudice is involved and the Court feels that the neglect was reasonably incurred. In other words, under the circumstances of this case, the Court finds that the short delay was not prejudicial and that the petitioners acted reasonably.’

It is true that courts should be liberal in granting relief from the consequences of late filing, so that claims can be disposed of on the merits. But this does not mean that relief can be given when no reason recognized by the Code is offered by the petitioner. In the Nilsson case, the claimant's excuse was that she filed late because of a calendaring error made in her attorney's office. The court accepted the excuse. But compare Garcia v. City etc. of San Francisco (1967) 250 Cal.App.2d 767, 58 Cal.Rptr. 760, where the appellate court upheld the lower court's denial of an application for leave to file a late claim. The plaintiff's excuse in that case was that, after conferring with her attorneys, she moved, leaving no forwarding address, and failed to communicate with her attorneys until after the time for presenting her claim had expired.

The claimants seek to show ‘inadvertence and excusable neglect’ in that they did not become aware of the medical correlation between their son's earlier injuries and his death, until April 21, 1967, the date on which they first saw a death certificate. They state that a ‘medical correlation was obviously suspected; but because of the length of time involved, no determination could be made without the death certificate.’ But the death certificate was filed five days after the date of death. A certified copy could have been obtained at any time and in fact was obtained by counsel for the claimants approximately one month before the expiration of the 100-day period; no explanation is given why a claim was not presented within that month. Moreover, claimants made no substantial showing that they could not have ascertained the cause of death without waiting for a death certificate. There appears to be no reason why the cause of death could not have been ascertained from the physician who was treating the boy at the time of his death.

In Tammen v. County of San Diego (1967) 66 Cal.2d 468, 58 Cal.Rptr. 249, 426 P.2d 753, the trial court's denial of a widow's petition to present a late claim for the wrongful death of her husband was upheld. One of the widow's excuses for her neglect was that ‘certain aspects of said accident, particularly the relationship between the City of Oceanside, the County of San Diego and the State of California, on the safekeeping and maintenance of Highway 78 was not ascertainable and was not discovered until the month of December 1963.’ (66 Cal.2d at p. 477, 58 Cal.Rptr. at p. 255, 426 P.2d at p. 759.) The Supreme Court declared this was an inadequate showing, stating: ‘An inquiry from the governing body of the city or the department of public works as to the responsibility for the maintenance of the highway would have disclosed whether some cooperative agreement existed to which the county was a party. It stretches one's credulity to believe that this information could not have been ascertained through the exercise of reasonable diligence between July 19, 1963, and the ‘month of December.” (Ibid. at pp. 477–478, 58 Cal.Rptr. at p. 255, 426 P.2d at p. 759.) A claimant cannot merely show that he did not discover a fact until too late; he is required to use reasonable diligence in discovering it. (Ibid. at p. 479, 58 Cal.Rptr. 249, 426 P.2d 753.) Similarly in the present case there is no showing that the cause of the son's death could not have been ascertained through the exercise of reasonable diligence within the period allowed by the statute. Counsel's declaration in support of the petition for relief recited that action was delayed until it could be determined ‘whether or not the claimants wished to pursue their claim and cause of action; * * *’ But if a late claim could be allowed simply because the claimants had not earlier determined whether they ‘wished’ to pursue their claim, the requirements of section 946.6 would be vitiated.

There was also an implication in a statement made by counsel at the hearing on the petition that the reason for the delay was the ‘emotional trauma’ suffered by the mother. But no showing was made that she was so incapacitated that she was unable to think of legal matters. It is to be expected that virtually every claimant in a wrongful death or personal injury suit will be emotionally upset to some degree; but an exceptional showing, not attempted here, must be made to come within the terms of the statute. Section 946.6, subdivision (c)(3), creates a specific exception for a claimant who is physically or mentally incapacitated during the 100-day period. Here the only evidence that the mother was so upset that she could not have made the decision to bring the wrongful death action was an oral statement by her attoreny. This is not sufficient. Furthermore, there is not a hint that the father was disabled from acting.

There was no evidence from which the trial court could have determined that the failure of the real parties in interest to present a timely claim was because of ‘inadvertence or excusable neglect.’ The order relieving the claimants from filing a timely claim was therefore ineffective. The court would have power to entertain a suit against the county only if the claims statute had been complied with. Lacking that, the court would be acting in excess of its jurisdiction if it took further proceedings in the wrongful death action.

The claimants have advanced a new theory before us in opposition to the writ. They point out that the period of limitation for a medical malpractice action does not commence until the plaintiff knew or should have known of the alleged malpractice. (1 Witkin, California Procedure, Actions, § 133.) They suggest that by analogy the period for presenting their claim should be held not to have commenced until the death certificate was received. But that contention is not available, where it was withheld from consideration by the board of supervisors; the application to the board contained claimants' representation that they desired to proceed on ‘a cause of action for wrongful death which accrued on February 15, 1967, and for which a claim was not presented within the 100-day period * * *.’ The board properly rejected the insufficient excuse for late filing, and hence was not called upon to file the claim and consider it on the merits.

A writ of prohibition will issue.

CHRISTIAN, Associate Judge.

DEVINE, P. J., and RATTIGAN, J., concur.

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