MANN v. CITY OF SIMI VALLEY

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Court of Appeal, Second District, Division 6, California.

Troy MANN, et al., Plaintiffs and Appellants, v. CITY OF SIMI VALLEY, Defendant and Respondent.

Civ. B023293.

Decided: November 25, 1987

Rehwald, Rameson & Lewis and William Rehwald, Van Nuys, for plaintiffs and appellants. John Torrance, City Atty., Marjorie Baxter, Asst. City Atty., and Brian M. Libow, Deputy City Atty., Hawthorne, for defendant and respondent.

Troy Mann and his parents Sandra and Glenn Mann appeal from the order of the superior court denying their petition to present a late claim against the City of Simi Valley (respondent) pursuant to the Government Code.   The primary issue is whether appellants without reasonable excuse failed to timely discover facts indicating a possible cause of action against respondent.

The trial court's decision appears to be based primarily on the ground that appellants did not seek the advice of a lawyer within the 100–day claim filing period.   In view of the absence of any inexcusable neglect by appellants in the record, the judgment is improper.  (Gov.Code, § 946.6, subd. (c)(1).)   Accordingly, we reverse.

Facts

Appellant Troy Mann, 18 years of age, was injured in an automobile accident on May 7, 1985.   The accident occurred at an intersection within respondent's geographical limits, and was determined to be the fault of Tracy Brown who failed to observe a posted stop sign.   Brown was uninsured.   Troy was hospitalized for several weeks.

Shortly after the accident, appellant Sandra Mann contacted her insurance company, Allstate, for the purpose of making an uninsured motorist claim.   She spoke with claims representative Richard Konigsberg.   Konigsberg advised Sandra on the telephone that appellants had one year in which to file a lawsuit against “the responsible party.”   On June 20, 1985, Konigsberg sent Sandra and Glenn Mann a letter confirming this advice.   Konigsberg further informed appellants about Allstate's advance payment plan and offered to send them funds to cover their out-of-pocket medical expenses.   Sandra refused the advance payments, apparently because these expenses were reimbursed by appellants' medical insurance.

In the meantime, Brown was prosecuted for the accident and pled guilty to felony drunk driving.   He was sentenced on February 20, 1986, nine months after the accident.   Appellants attended his sentencing.   At the hearing, the trial judge stated that he knew the intersection where the accident occurred was dangerous, and, as a result, reduced Brown's sentence.   This was the first time appellants learned that the condition of the intersection may have been a cause of the accident.

Shortly thereafter, appellants sought the advice of an attorney.   On March 6, 1986, appellants' attorney presented to respondent on their behalf a written application for leave to present a late claim pursuant to the Government Code.   Accompanying this application was a declaration by Sandra asserting that appellants had worked closely with the Simi Valley Police Department in its investigation of the accident and prosecution of Brown, and were never told by the police or anyone else about the dangerous nature of the intersection.   Sandra declared that she had obtained a copy of the police report of the accident and it also made no mention of the condition of the intersection.

On April 25, 1986, respondent wrote appellants, rejecting their claim and finding that the basis of their failure to present a timely claim was insufficient.

One month later on May 28, 1986, appellants petitioned the superior court for an order relieving them from respondent's decision.   In opposition to the petition, respondent contended that it would be prejudiced by a ruling in favor of appellants because the police department had already destroyed evidence of its investigation of the accident and respondent would be prevented from conducting its own investigation at a time close to the date of the accident.

The trial court denied appellants' petition, apparently concluding that appellants had not been diligent.   At the hearing on the petition, the trial judge noted that appellants did not consult with an attorney following the accident, and questioned their reliance on Allstate to “take care of everything,” including investigating appellants' uninsured motorist claim to ascertain all possible defendants.

DISCUSSION

 Government Code section 911.2 mandates that a claim against a public entity relating to a cause of action for personal injury be presented to that entity within 100 days after the cause of action has accrued.1  Section 945.4 provides that no suit for damages may be brought against a public entity until a written claim has been presented to and acted upon by the public entity.   When a claim has not been timely presented, section 911.4 permits written application to the public entity for leave to file late claim.   If the public entity denies the application, section 946.6 authorizes a petition to the superior court for relief from the provisions of section 945.4.   Under section 946.6, subdivision (c)(1), the trial court shall grant the petition if the claimant demonstrates:  (1) the application to the public entity under section 911.4 was made within a reasonable time not exceeding one year after the accrual of the cause of action;  (2) the failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect;  and (3) the public entity will not be prejudiced by the granting of the petition.   (Ebersol v. Cowan (1983) 35 Cal.3d 427, 431–432, 197 Cal.Rptr. 601, 673 P.2d 271.)

Here, the first determination under section 946.6 does not appear from the record to have been contested below and it is not raised as an issue on appeal.   The record does, however, contain the basis for finding that appellants met the first criteria.   Their application to respondent was made on March 6, 1986, within one year of May 7, 1985, the date of the accident.   Furthermore, appellants diligently presented respondent with this application within a few weeks after they attended Brown's sentencing.

The issues to be decided are therefore whether the trial court abused its discretion by deciding that appellants acted without diligence in discovering their cause of action against respondent, and whether respondent would be prejudiced by allowing appellants to file a late claim.

 An appellate court will not reverse a trial court in deciding a petition for filing late claim unless the trial court commits an abuse of discretion.  (Viles v. State of California (1967) 66 Cal.2d 24, 28, 56 Cal.Rptr. 666, 423 P.2d 818;  Ebersol v. Cowan, supra, 35 Cal.3d at 435, 197 Cal.Rptr. 601, 673 P.2d 271.)   Nevertheless, this rule does not preclude reversal of an order denying relief where the uncontradicted evidence shows adequate cause for relief.  (Ibid.)  The trial court's discretion is not unfettered and is to be exercised in accordance with the liberal policies of the remedial statutes and in a manner to subserve the ends of substantial justice.  (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275, 228 Cal.Rptr. 190, 721 P.2d 71;  Viles v. State of California, supra, 66 Cal.2d at pp. 28–29, 56 Cal.Rptr. 666, 423 P.2d 818.)   Because of the remedial policy behind section 946.6 to hear cases on their merits, any doubts by trial courts should be resolved in favor of granting relief (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at p. 276, 228 Cal.Rptr. 190, 721 P.2d 71;  Ebersol v. Cowan, supra, 35 Cal.3d at 435, 197 Cal.Rptr. 601, 673 P.2d 271.), and denials of relief are viewed more carefully by appellate courts than cases where relief was granted.  (Viles v. State of California, supra, 66 Cal.2d at p. 29, 56 Cal.Rptr. 666, 423 P.2d 818;  Ebersol v. Cowan, supra.)   Unless inexcusable neglect is explicitly demonstrated, the policy favoring trial on the merits, which underlies section 946.6, prevails.  (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at p. 276, 228 Cal.Rptr. 190, 721 P.2d 71.)

 The dissenting opinion hereto would limit the scope of our review of the judgment to the traditional “abuse of discretion” standard.  (See Cole v. City of Los Angeles (1986) 187 Cal.App.3d 1369, 1377, 232 Cal.Rptr. 624 (dis.).)   However, as the California Supreme Court has emphasized, denials of relief from the claim filing requirement are rigorously reviewed according to the liberal policies behind section 946.6.  (Ebersol v. Cowan, supra, 35 Cal.3d at 435, 197 Cal.Rptr. 601, 673 P.2d 271.)   Thus, the appropriate standard of review is not whether another trial judge would have made the same ruling, but whether the record shows adequate cause for relief.  (Viles v. State of California, supra, 66 Cal.2d at 28, 56 Cal.Rptr. 666, 423 P.2d 818;  Ebersol v. Cowan, supra, 35 Cal.3d at 435, 197 Cal.Rptr. 601, 673 P.2d 271.)   Denials of applications under the statute are warranted only where inexcusable neglect is undeniable.  (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at 276, 228 Cal.Rptr. 190, 721 P.2d 71.)

 The showing required of a petitioner seeking relief because of mistake or neglect under the statute is the same as Code of Civil Procedure section 473 demands.  Section 473 is interpreted to require that an honest mistake or case of neglect is excusable if it is reasonable.  (Viles v. State of California, supra.)   In examining the mistake or neglect, the trial court thus inquires whether the mistake might have been the act or omission of a reasonably prudent person under the same or similar circumstances.  (Ebersol v. Cowan, supra;  Bettencourt v. Los Rios Community College Dist., supra, p. 276, 228 Cal.Rptr. 190, 721 P.2d 71.)   Any doubts as to reasonableness should be resolved in favor of granting the application.  (Ibid.)

Here, it was undisputed in the trial court that appellants were unaware of the alleged dangerous condition of the intersection until Brown's sentencing on February 10, 1986.   What was disputed was the reasonableness of their failure to earlier discover the fact of the alleged condition, and hence their failure to file a timely claim against respondent.

The dissent merely expresses a difference of opinion from the majority as to what constituted reasonable conduct in this case.   Such a position fails to demonstrate that reasonable minds can come to only one conclusion, a necessary resolution in finding the presence of undeniable inexcusable neglect in the record.

Appellants justifiably rely on Viles, supra, in contending that they acted reasonably in discovering the basis for their claim.   In Viles, the plaintiff's wife died from injuries when her automobile collided head-on with another vehicle.   Plaintiff's late claim against the state was based on the alleged dangerous condition of the highway where his wife was killed.   Following the accident, plaintiff was informed by representatives of his insurance company that he had one year in which to file an action for wrongful death.   Relying on this information, plaintiff did not contact an attorney until after the claim period had passed when he first learned of the 100–day time limitation.

The Supreme Court ruled that the mistake made by the plaintiff, his honest belief that he had one year to act, was excusable as it was of the type contemplated by the Legislature.  (66 Cal.2d at 31, 56 Cal.Rptr. 666, 423 P.2d 818.)  “ ‘The 1963 legislation is remedial and should be liberally construed.   Both the courts and Legislature have recognized that the labyrinth of claims statutes previously scattered throughout our statutes were traps for the unwary.  [Citations.]  An attempt has been made by the Legislature to remove such snares.   Courts should not rebuild them by a too narrow interpretation of the new enactments.’ ”  (Ibid., citing Hobbs v. Northeast Sacramento County Sanitation Dist. (1966) 240 Cal.App.2d 552, 556, 49 Cal.Rptr. 606.)

Viles teaches that courts should grant relief where plaintiff did not actually discover his honest mistake until it was technically too late (but, of course, within one year from the accrual of the cause of action).   The court concluded:  “The purpose of the statute requiring presentation of claims is to give the governmental entity notice and an opportunity to investigate and settle meritorious claims without litigation;  the purpose of [the remedial statute] is to relieve persons who are under a disability or excusably neglectful from strict compliance with the notice requirement.   The delay in presenting claims, of course, frustrates the underlying purpose of affording prompt notice, but this is the very combination of circumstances envisioned by the Legislature when it provided both administrative and judicial remedies for noncompliance with the 100–day statute.  [¶]  Where, as here, plaintiff's mistake was the actual cause of his failure to comply with the 100–day requirement, his application to the board could obviously not have been made until he discovered his mistake, and the delay was, therefore reasonable under the circumstances.”  (66 Cal.2d at 32, 56 Cal.Rptr. 666, 423 P.2d 818.)

Respondent argues that Viles is inapposite, stating that the plaintiff there knew the state was a possible defendant and therefore detrimentally relied on the insurance agent's legal representation, whereas here appellants could not have relied on Konigsberg's legal statements because they never entertained any thoughts of proceeding against respondent until they discovered that the intersection was known to be dangerous.

In Viles, it appears that the plaintiff made a mistake of law (in not knowing about the 100–day filing period), rather than a mistake of fact as occurred in the present case (in not knowing about the basis for the claim during the filing period).

The principles of Viles apply here.   According to Viles, the crucial inquiry to be made is whether, under the circumstances, the misconception or mistake (whether one of law or fact) would have been committed by a reasonably prudent person in the same or similar situation.  (66 Cal.2d at 29, 32, 56 Cal.Rptr. 666, 423 P.2d 818.)  (See also Ebersol v. Cowan, supra, 35 Cal.3d at 435, 197 Cal.Rptr. 601, 673 P.2d 271.)   Hence, the relevant determination in this case is whether appellants acted reasonably in discovering the factual basis of their claim against respondent, the alleged dangerous condition of the intersection, beyond the claim filing period.

Respondent insists that appellants failed to act with reasonable diligence.   Respondent first argues that ignorance of a possible cause of action against a public entity is not a reasonable excuse for failure to act, citing Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 154 Cal.Rptr. 135.

We disagree with the approach of the majority opinion in Tsingaris.   In that case, a mother was seriously injured and her son killed when a man entered their home and attacked them with a knife.   It was not until the attacker's murder trial that the mother learned he was a probationer at the time of the killing and respondent State of California knew he had violated the conditions of his probation.   As in the present case, the mother promptly sought advice from an attorney after receiving the in-court information and then within a short time from that submitted her petition to file late claim.   The appellate court ruled that the failure to timely discover the basis of an action against the respondent was not a compelling showing that the petitioner was entitled to relief in the absence of reasonable diligence in discovering the facts.  (91 Cal.App.3d at 314, 154 Cal.Rptr. 135.)   However, the Tsingaris court did not explain why it thought the petitioner was not diligent and therefore not entitled to relief.

The dissent in Tsingaris determined that the petition to file late claim should have been granted.   We agree.   It was shown without dispute that the mother was unaware of the attacker's probationary status until his trial, she received no facts or notice alerting her to suspect this status prior to his trial, and she diligently sought legal advice once she learned of this fact.   (P. 315, 154 Cal.Rptr. 135.)   In addition, the dissent correctly observes that the majority had misapplied Black v. County of Los Angeles (1970) 12 Cal.App.3d 670, 91 Cal.Rptr. 104, in which a specific example of unreasonable neglect occurred (and which was not present in Tsingaris or our case).  (91 Cal.App.3d at p. 316, 154 Cal.Rptr. 135.)   The plaintiff in Black was involved in an automobile accident.   For nine months following the accident, neither the plaintiff or her attorney attempted to obtain a copy of the Highway Patrol report which revealed the possible claim against the respondent public entity.

 Respondent, apparently in the belief that Black is applicable to this case, asserts that appellants knew of the location of the accident but did not bother to make an on-site investigation or to inspect public records about the accident rate at the intersection, despite their knowledge that the accident occurred on a public street in the city and that, as a matter of common knowledge, lawsuits against deep pocket defendants are commonplace in contemporary America.

Black is inapposite.   There, the plaintiff received prior notice of a possible claim against the respondent public entity, the inattention to which constituted inexcusable neglect.   Here, we find that appellants received no clue of any kind which would have put them on alert during the filing period to a potential claim against respondent.2

Appellants specifically indicated in the trial court, without contradiction by respondent, that the police report of the accident made no mention of the condition of the intersection.   Additionally, appellants assisted the police in their investigation, and yet were privy to no information that would have put them on notice of a possible dangerous condition until the defendant driver's sentencing judge so commented.

Moreover, respondent offers no evidence showing how a personal view of the intersection would have provided any visible indication, and therefore notice, of its alleged dangerous condition.   Since there was apparently no visible evidence of a claim against respondent, the alleged condition would not have been realized by an average layperson and appellants' late discovery was therefore excusable.  (See Powell v. City of Long Beach (1985) 172 Cal.App.3d 105, 110, 218 Cal.Rptr. 97.)   Certainly, respondent's contention that appellants should have followed the modern American trend of searching out deep pocket defendants does not assist its position.   We cannot fault appellants for not being “litigation happy.”

 Respondent further argues that appellants were not diligent because they failed to, at the minimum, make an effort to obtain legal counsel within 100 days from Troy's accident, citing Ebersol v. Cowan, supra, 35 Cal.3d 427, 197 Cal.Rptr. 601, 673 P.2d 271.   This issue coincides with the trial court's belief that appellants were not entitled to relief in failing to contact an attorney within the claim filing period.   However, respondent has not shown that appellants' retention of a lawyer within the 100 days would have guaranteed the timely discovery of a claim against it.

Moreover, our concern focuses on the broader issue of the reasonableness of appellants' conduct in discovering their claim.  (See Viles v. State of California, supra, 66 Cal.2d 24, 56 Cal.Rptr. 666, 423 P.2d 818.)   The issue is not therefore narrowly confined to whether appellants should have sought the assistance of a lawyer in investigating the accident instead of relying on their insurance company or the police.   Further, Ebersol does not enunciate the alleged rule suggested by respondent that unreasonable conduct is established solely by the failure to contact an attorney within the claim filing period, no matter what particular circumstances exist.

In Ebersol, the petitioner attempted to hire an attorney immediately after her injury but was not successful in finding a lawyer who would either take her case or advise her about the nature of her claim until after 100 days from her accident.   The Supreme Court agreed with the petitioner that, in view of her diligent search for an attorney throughout the filing period, her ignorance of the existence of a possible cause of action against the public entity constituted excusable neglect.

The Ebersol court began its legal discussion by stating the rule that excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.  (35 Cal.3d at p. 435, 197 Cal.Rptr. 601, 673 P.2d 271.)   The court then proceeded to explain the general types of factual situations which courts have found deserved relief and those which did not.   It observed that cases granting relief under section 946.6 have usually dealt with plaintiffs who diligently retained counsel within 100 days, but their counsel committed acts of neglect which were determined to be excusable.   General situations where relief was denied involved plaintiffs who failed to take any action whatsoever in pursuit of their claim within 100 days after the accrual of the cause of action;  where the conduct of plaintiffs' attorneys was inexcusably dilatory or clearly unreasonable;  and where there was no competent evidence which enabled trial courts to properly exercise discretion.   The court then concluded that the facts of Ebersol were similar to the cases granting relief where plaintiff diligently sought legal advice.  (Pp. 435–437, 197 Cal.Rptr. 601, 673 P.2d 271.)

However, Ebersol by no means formulated a general rule that failure to seek legal advice within the filing period constitutes inexcusable neglect in every case.   The court wrote:  “The reasonable and prudent course of conduct under the circumstances of this case was to seek legal counsel.”  (Emphasis added.)   (P. 439, 197 Cal.Rptr. 601, 673 P.2d 271.)   Rather as illustrated, the court in Ebersol applied the reasonable person standard in determining the existence of excusable neglect.  (See also p. 435, 197 Cal.Rptr. 601, 673 P.2d 271.)   The court agreed with Viles that section 946.6 is a remedial statute which is intended to relieve the unwary claimant from harsh technical rules constituting a trap.  (Ibid.)  Indeed, Ebersol mentioned Viles as an example of an excusable neglect case.  (P. 436, fn. 9, 197 Cal.Rptr. 601, 673 P.2d 271.)   In Viles as in the present case, plaintiff hired counsel after the filing period had expired.

In addition, all of the cases cited by the Ebersol court as examples of situations where plaintiffs were found to have taken no action within 100 days are entirely distinguishable from the instant case because in each the plaintiff(s) made a deliberate decision not to file a timely claim.   In Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 173 Cal.Rptr. 4, the injured plaintiff decided not to comply with the claim requirement because of the pendency of criminal charges against him.   A businessman experienced in handling legal matters was denied relief in Martin v. City of Madera (1968) 265 Cal.App.2d 76, 70 Cal.Rptr. 908 because he did not file a claim until 11 months after his injury due to physical and mental complications caused by the injury.   In the last case, Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116, 90 Cal.Rptr. 479, the plaintiffs claimed they were emotionally unable to tend to their affairs until after the 100–day period.   In all three cases, none of the plaintiffs argued that they were unaware of their litigable claims during the filing period.

No similar facts were presented to the trial court here.   Appellants established that they were unaware during the filing period that they had a litigable claim against respondent.   They made an honest mistake.   Further, it was a reasonable one.   They had absolutely no objective reason to obtain legal advice within the filing period.   Troy's medical bills were paid, his accident was investigated by the police and apparently appellants' own insurance company, and the person in the other vehicle, Mr. Brown, was prosecuted.   We find that a reasonable person in appellants' situation would likewise have found no need to seek legal advice for the purpose of receiving further compensation.

 Despite these circumstances which would have lulled a reasonably prudent person into inaction, appellants remained vigilant by keeping abreast of the court proceedings relating to Brown's prosecution.   It was, in fact, due to their participation in this process that appellants discovered the basis for their cause of action against respondent.   Once making their discovery, appellants diligently sought legal advice.   Thus, under the facts, we cannot say that appellants' failure to retain an attorney within 100 days of the accident demonstrated inexcusable neglect.   Unless inexcusable neglect is explicitly demonstrated, the policy favoring trial on the merits prevails.   (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at 275, 228 Cal.Rptr. 190, 721 P.2d 71.)

We hold, therefore, that the trial court abused its discretion by denying appellants' petition, since the record shows that appellants acted as ordinary prudent people in presenting their claim beyond the 100–day filing period.   (See Viles v. State of California, supra, 66 Cal.2d at 28–29, 32, 56 Cal.Rptr. 666, 423 P.2d 818.)   In finding that appellants were dilatory because they failed to earlier contact a lawyer, the trial court gave insufficient weight to the entirety of the circumstances in the record which demonstrates overall diligence by appellants, particularly in light of there being no objective indication of any dangerous condition of the intersection.   (See id., 42 Cal.3d at p. 278, 228 Cal.Rptr. 190, 721 P.2d 71.)

 Relief is also appropriate because respondent did not allege a sufficient basis for asserting prejudice from the delay.   Respondent's opinion that it will have difficulty in investigating the condition of the intersection as it was on the date of the accident is the same general argument raised by the respondent and rejected by the court in Viles.  (66 Cal.2d at 31, 56 Cal.Rptr. 666, 423 P.2d 818.)   The Viles court may well have reasoned that such generalized basis for asserting prejudice, without more specificity, would likely preclude relief under section 946.6, no matter how warranted.

 Respondent also impliedly concedes that the destruction of the police records pertaining to Brown's criminal investigation was not prejudicial.   In its appeal brief, it states that an investigation in a felony drunk driving case differs substantially from an investigation designed to defend civil charges.   In fact, the few documents that were destroyed were disposed of 12 days after appellants' late claim was filed.

 In conformance with “the well-recognized policy of the law to liberally construe remedial statutes designed to protect persons within their purview, and the modern trend of judicial decisions in favor of granting relief unless absolutely forbidden” (Viles v. State of California, supra, pp. 32–33, 56 Cal.Rptr. 666, 423 P.2d 818), and in view of the lack of sufficient reason presented to the trial court to deny relief, we hold that the trial court's denial of appellants' petition defeated the ends of substantial justice.  (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at 275, 281, 228 Cal.Rptr. 190, 721 P.2d 71.)   Since appellants' honest and reasonable mistake was the actual cause of their failure to comply with the 100–day rule, they are entitled to relief.  (See Viles v. State of California, supra, 66 Cal.2d at p. 32, 56 Cal.Rptr. 666, 423 P.2d 818.)

By penalizing appellants for their failure to hire an attorney during the claim period, the trial court's judgment further sets an impermissible precedent.   Its effect is to burden all prospective claimants with the onerous duty of procuring legal assistance during the filing period merely to protect their right to utilize the remedial legislation in the event late claims are discovered.   Such a precedent not only contravenes statutory and decisional authority, it violates the spirit of the legislation which is designed to assist the public.

The judgment is reversed.   Costs on appeal are awarded to appellants.

I dissent.

While not unmindful of the liberal interpretation to be accorded to Government Code section 946.6, nor unsympathetic to the appellants' plight, I do not agree with my colleagues that the trial court abused its discretion in failing to grant relief.

The trial court found that the “․ parties did not make an investigation.   They did not consult with counsel.   They did not do anything.”   I believe it impossible to construe these multiple findings of failure to act in any manner into a conclusion that the trial court's decision was “primarily” on the ground of a failure to seek advice of an attorney.

The standard of appellate review was recently affirmed by our Supreme Court in Blank v. Kirwin (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58 by quoting with approval from Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193, “․ a reviewing court will not substitute its opinion and thereby divest the trial court of this discretionary power.”   I refuse to second-guess the trial court when, as here, the record does not establish adequate cause for relief.

Appellants in fact did nothing except report the accident to their insurance carrier and kept abreast of the criminal investigation and court proceedings against the responsible party “the felony drunk driver.”   These were not reasonable efforts directed to discovering potential civil causes of action by either consulting an attorney or investigating the circumstances of the accident.   There certainly was no reliance by appellants on any investigation by their insurance company.   The record does not disclose any investigation to determine possible causes of action against anyone other than the other driver.   Shortly after the accident when the appellants found out the “responsible party” was not insured, they had at least some responsibility to determine whether anyone else, such as a mechanic, a manufacturer or a public entity might have some possible involvement.   The trial judge was, well within his discretion in denying relief.

The majority sets forth Sandra Mann's lament that appellants were never told by the police or anyone else about the dangerous nature of the intersection.   There is nothing in the record to demonstrate that anyone, other than the judge who sentenced the felony drunk driver, had an opinion on the nature of the intersection.   Appellants complaint about not being informed by the entity they now want to sue of what may not be a fact, or what it might not have known, is irrelevant.   Petitioners must show more than that they just failed to discover a fact until too late;  they must establish that in the use of reasonable diligence they failed to discover it.  (City of Fresno v. Superior Court (1980) 104 Cal.App.3d 25, 32, 163 Cal.Rptr. 807.)   They did not do this.

Neither ignorance of the existence of possible causes of action against a governmental entity nor of the time limitation for filing a claim are strong enough showings of good cause for relief to allow an override of a discretionary call by the trial court.  (Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 314, 154 Cal.Rptr. 135.)

The majority also reasons that relief is appropriate because respondent city did not allege a sufficient basis for asserting prejudice from the delay.   This is not a factor which should be considered in determining whether petitioners were reasonably diligent in discovering from whom they might recover in a civil action.   The city had no burden to establish prejudice until the petitioners had satisfied the court their failure to file a timely claim was due to mistake, inadvertence, surprise or excusable neglect.   See Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 726, 173 Cal.Rptr. 4.

I would affirm.

FOOTNOTES

1.   All statutory references hereinafter are to the Government Code unless otherwise specified.  Section 911.2 was amended in 1987 to extend the claim filing period from 100 days to 6 months.  (Assem.Bill No. 2616 (1987–1988 Reg.Sess.) § 3.)

2.   We do not imply by so stating that a public entity has any obligation or duty to disclose any patent or latent condition of public property to accident victims.

STONE, Presiding Justice.

GILBERT, J., concurs.

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