TUCKER v. COUNTY OF STANISLAUS (1980)

OPINION ON REHEARING

This appeal is from an order denying appellant's petition under Government Code section 946.6 ¹ for leave to sue the respondent County of Stanislaus for personal injury damages despite the fact that she failed to present a claim to the county within 100 days after her cause of action accrued.   Appellant's application to the county for leave to present a late claim pursuant to Government Code section 911.4 was filed 124 days after her accident, and it was denied.   For the reasons to be explained, we conclude that appellant's neglect in failing to present her claim to the county in a timely fashion was excusable;  hence, she is entitled to relief from the late filing.

Appellant's petition to the trial judge alleged she was injured on July 3, 1977, in a car accident at a county road intersection;  a proximate cause of the accident was the absence of proper signs or a guardrail at the location;  appellant consulted a local attorney shortly after the accident;  the attorney did not inform her of the claim filing statute;  on October 27, 1977, she first consulted her present counsel Mr. Semmens who did inform her of the statute;  she immediately retained Mr. Semmens and instructed him to file a late claim application, which he did on November 4, 1977.

The sole and uncontradicted evidence before the trial court consisted of two declarations, one by appellant in support of her petition for relief from the claim filing requirement and another by her attorney filed with the late claim application to the county.   Appellant's declaration stated as follows:

“I, BRENDA TUCKER, declare:

“That I was injured in an automobile accident in Stanislaus County on July 3, 1977.   That the accident occurred on a county road, to wit, the corner of Quince and Lemon Roads in Patterson, California.   That I believe my injuries were contributed to by the failure of Stanislaus County to adequately mark said intersection or to provide guard rails.

“That shortly after the accident I consulted Attorney H. DENSMORE of Newman, California.   That MR. DENSMORE did not inform me of the Statute of Limitations set forth in Government Code Section 945.4.

“That on October 27, 1977, I first consulted MICHAEL P. SEMMENS who informed me of the Statute of Limitations.   That October 27, 1977, was One Hundred Sixteen (116) days after accrual of my cause of action.

“That I immediately retained MR. SEMMENS to represent me and instructed him to file an application to file a late claim.   This he did on November 4, 1977.”

Mr. Semmens' declaration included the following assertions:

“That shortly after receiving said injuries MISS TUCKER consulted a local attorney who informed her that it would not be wise to file a claim or lawsuit until after May of 1978.   That as a result of said interview MISS TUCKER did not consult me until October 27, 1977.  ․ ․ ․   That had MISS TUCKER been adequately informed she would have filed a claim within the 100-day period.”   (Emphasis added.)

“That the failure to file the claim within the 100-day period was the result of improper legal advice and not MISS TUCKER'S neglect.”

DISCUSSION

 An appellate court will not reverse the trial court's order denying relief from failure to file a timely claim against a public entity except for an abuse of discretion;  however, this rule does not preclude reversal where adequate cause for such relief is shown by uncontradicted evidence or affidavits of the petitioner.   Nor should the rule of limited review be employed to defeat the liberal policies of remedial statutes designed for that purpose (Viles v. State of California (1967) 66 Cal.2d 24, 28–29, 56 Cal.Rptr. 666, 423 P.2d 818).   In furtherance of these principles, a denial of relief by the trial court is scanned more carefully than an order granting relief “to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.”  (Id., at p. 29, 56 Cal.Rptr. at p. 669, 423 P.2d at p. 821, emphasis added.) ²

 The showing required of a petitioner seeking relief in filing a late claim against a public entity because of mistake, inadvertence, surprise or excusable neglect is the same as required under Code of Civil Procedure section 473 for relieving a party from a default judgment.   (Ibid.)  The cases construing Code of Civil Procedure section 473 disclose that mere ignorance of the law is not excusable;  hence, the fact that appellant was unaware of the claim filing requirement does not alone justify relief under Government Code section 946.6 (Martin v. City of Madera (1968) 265 Cal.App.2d 76, 79–80, 70 Cal.Rptr. 908).   On the other hand, a mistake of law and particularly an “honest mistake” is excusable, the determining factor being “the reasonableness of the misconception.”  (Viles v. State of California, supra, 66 Cal.2d at p. 29, 56 Cal.Rptr. 666, 423 P.2d 818.)

 When all reasonable inferences are drawn in appellant's favor from the two declarations before the trial court, it is clear that appellant has shown grounds for relief under Government Code section 946.6.   Appellant consulted Attorney Densmore about her accident within the 100-day period.   She described to him the relevant facts of the accident as she understood them.   Mr. Densmore did not inform appellant of the claim filing requirements;  indeed, he told her that “it would not be wise to file a claim or lawsuit until after May of 1978.”   This was not a mere omission to advise appellant of the claim filing requirements but constituted a positive misstatement of the law regarding the need for filing a claim within the 100-day period.

A reasonable lay person in appellant's shoes would have relied on Mr. Densmore's advice.   Furthermore, a rational inference arises that appellant did rely on the attorney's advice since she did not then retain the attorney to file a claim within the 100-day period.   Thus, appellant has shown a reasonable excuse for her failure to file a timely claim.

Respondent's contention that appellant is bound by Attorney Densmore's negligence misconceives the law.   First, appellant did not retain Mr. Densmore after he had advised her that she should wait to file a claim or lawsuit until after May of 1978;  hence, no client-attorney relationship arose between appellant and Densmore after the initial conference (cf. Leake v. Wu (1976) 64 Cal.App.3d 668, 134 Cal.Rptr. 616;  Black v. County of Los Angeles (1970) 12 Cal.App.3d 670, 675, 91 Cal.Rptr. 104;  Tammen v. County of San Diego (1967) 66 Cal.2d 468, 478, 58 Cal.Rptr. 249, 426 P.2d 753).   By consulting Mr. Semmens on October 27, 1977, which was only 116 days after the accident, appellant showed quite remarkable diligence in pursuing her rights in the face of the erroneous advice previously given to her by Mr. Densmore.

Second, although the general rule in cases involving the setting aside of default judgments under Code of Civil Procedure section 473 is that a client is chargeable with the omissions of his attorney, the rule is not an absolute one in cases involving applications for relief under Government Code section 946.6.   For example, in Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 58 Cal.Rptr. 20, a claim was not filed within the statutory time because of a calendaring error in the attorney's office.   The record was devoid of any evidence of how the error occurred or of any established procedure for avoiding such mistakes.   Nevertheless, the trial court's denial of the petition for leave to file a late claim was reversed as an abuse of discretion.

A similar error arose in Segal v. Southern California Rapid Transit Dist. (1970) 12 Cal.App.3d 509, 90 Cal.Rptr. 720.   The attorney performed a routine arithmetical calculation incorrectly and filed on the 101st day believing that he had filed on the 100th day.   The trial court's denial of the petition was reversed.

In Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 91 Cal.Rptr. 717, the appellant's attorneys admitted that the lateness of the claim was due to their failure to open a file which would have reminded them of the 100-day limitation upon the presentation of appellant's claim;  nonetheless, an order denying a petition for relief was reversed.

 Where the person seeking relief is relatively free from negligence and the attorney's negligence is extreme, amounting to positive misconduct, the attorney's actions have been held to obliterate the lawyer-client relation, and his negligence is not imputed to the client.  (See Clark v. City of Compton (1971) 22 Cal.App.3d 522, 528–529, 99 Cal.Rptr. 613.)   As we have noted, Mr. Densmore definitely misadvised appellant as to the claim filing requirements, and appellant's own conduct was reasonable.

The attorney's statement to appellant in the present case is similar to the statements made to the plaintiff in Viles v. State of California, supra, 66 Cal.2d 24, 56 Cal.Rptr. 666, 423 P.2d 818.   There, the plaintiff was contacted by representatives of the insurance companies insuring his vehicle and that of the other vehicle involved in the accident.   He was informed by one or both of the insurance representatives that he had one year in which to file his action for the wrongful death of his wife.   Relying on this information, plaintiff did not consult an attorney until nine months after the accident when he first learned about the 100-day claim filing requirement (id., at p. 27, 56 Cal.Rptr. 666, 423 P.2d 818).   The Supreme Court granted plaintiff relief by holding that his mistake as to the law “was of the type foreseen by the Legislature and that his neglect to present his claim within 100 days because of his honest belief that he had a year to act was excusable.”  (Id., at p. 31, 56 Cal.Rptr. at p. 671, 423 P.2d at p. 823.)  Viles teaches that relief may be warranted when a mistake as to the time to act is induced by statements of persons on whom the claimant could reasonably rely (id., at pp. 29–39, 56 Cal.Rptr. 666, 423 P.2d 818;  see also Cal.Tort Guide, 2d ed. (Cont.Ed.Bar 1979) § 8.28, pp. 133–134).   Just as the claimant in Viles was entitled to rely on the information received from the insurance adjusters that he had a year in which to bring an action, the appellant in the present case was entitled to rely on the statement of Attorney Densmore that she should wait until after May 1978 to file her claim.   In neither instance can it be said that the misconception which arose in the plaintiff's mind from these statements was “one that the average prudent man in the conduct of important business affairs would not have formed.”  (66 Cal.2d at pp. 29–30, 56 Cal.Rptr. at p. 671, 423 P.2d at p. 822.)

 In weighing a motion for relief from the requirements of the claim statute, the absence of prejudice to the public entity should also be considered (Flores v. Board of Supervisors, supra, 13 Cal.App.3d at p. 485, 91 Cal.Rptr. 717;  Segal v. Southern California Rapid Transit Dist., supra, 12 Cal.App.3d at p. 512, 90 Cal.Rptr. 720).   There is no showing of prejudice to respondent in the present case.   Also, as stated in Flores, supra, a short delay in failing the claim after the statutory period had expired (23 days) “deserves special emphasis.”  (13 Cal.App.3d at p. 485, 91 Cal.Rptr. 717.)   In the present case, the delay was 24 days.

Respondent cites Black v. County of Los Angeles, supra, 12 Cal.App.3d 670, 91 Cal.Rptr. 104;  Clark v. City of Compton, supra, 22 Cal.App.3d 522, 99 Cal.Rptr. 613, and Leake v. Wu, supra, 64 Cal.App.3d 668, 134 Cal.Rptr. 616, in support of the trial court's order.   These cases, however, are distinguishable on their facts.   In Black, the attorney's negligence consisted of his failure to ascertain the existence of a highway patrol report relating to the accident from which he could have learned the true location of the accident and the possible existence of a claim against the county (12 Cal.App.3d at pp. 675–677, 91 Cal.Rptr. 104).   His error was one of omission which bound his client rather than one of positive misadvice on the law, as in the instant case.   In Leake, the attorney's negligence consisted of a failure to conduct an investigation to determine whether the doctor defendants working at a county hospital might have been county employees;  the attorney relied solely on his understanding that doctors are independent contractors.   Again, there was no misrepresentation by the attorney to his client (64 Cal.App.3d at pp. 673–674, 134 Cal.Rptr. 616).

In Clark, the attorney whom plaintiffs had retained within a week of the accident failed to file a claim with the city within the prescribed 100-day period, and when, 11 months after the accident, application was made by their new attorney to file a late claim, it was rejected.   Plaintiffs then sought judicial relief, alleging that during the 100-day period they had been incapacitated by their injuries.   The trial court's denial of relief was affirmed by the Court of Appeal which observed there was a conflict in the affidavits as to the extent of plaintiffs' injuries and their incapacity during the 100-day period (22 Cal.App.3d at p. 527, 99 Cal.Rptr. 613).   The court also noted there had been no showing that the plaintiffs' first attorney had been guilty of any positive misconduct towards the plaintiffs such as making any misrepresentations to them.   Moreover, the trial court had impliedly found the plaintiffs had not acted with due diligence in seeking to discover their attorney's neglect and moving for relief thereafter.   From all of this, the Clark court observed that plaintiffs' 11 month delay in seeking leave to file a late claim could not be held reasonable as a matter of law.  (22 Cal.App.3d at pp. 527–529, 99 Cal.Rptr. 613;  see also Tammen v. County of San Diego, supra, 66 Cal.2d 468, 58 Cal.Rptr. 249, 426 P.2d 753;  Martin v. City of Madera, supra, 265 Cal.App.2d 76, 70 Cal.Rptr. 908.)   In the present case, appellant consulted her second attorney 116 days after her accident and filed her claim eight days thereafter.

 We respond to the respondent's anticipated clangorous argument that we are substituting our opinion for the trial court on a question of fact by emphasizing that our conclusion that appellant's failure to file a timely claim was excusable is based on rational inferences to be drawn from the uncontradicted declarations which were before the trial court.   In exercising the liberal discretion called for by Government Code section 946.6, the trial court was required to draw all reasonable inferences in favor of appellant's application for relief.   To do otherwise would be to thwart the strong public policy that wherever possible cases should be tried on their merits and any doubts which may exist concerning a petitioner's right to relief should be resolved in favor of petitioner.  (See Viles v. State of California, supra, 66 Cal.2d at p. 29, 56 Cal.Rptr. 666, 423 P.2d 818.)

The order is reversed.

FOOTNOTES

1.   Key provisions of Government Code section 946.6 are as follows:“(c) The court shall relieve the petitioner from the provisions of Section 945.4 [requiring that a claim be presented before suit may be filed] if the court finds that the application to the board [to file a late claim] was made within a reasonable time not to exceed [in the case of a personal injury claim for damages one year] 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 establishes that it would be prejudiced if the court relieves the petitioner from the provisions of section 945.4;  ․ ․ ․“ ․ ․ ․“(e) The court shall make an independent determination upon the petition.   The determination shall be made 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.”

2.   As forcefully noted in Viles at pages 30–31, 56 Cal.Rptr. at pages 670–671, 423 P.2d at pages 822–823:  “No doubt influenced by the Law Revision Commission's warning that the inflexible time limits of the claim statutes provided ‘a trap for the unwary and ignorant claimant’  ․ ․ ․  the Legislature intended to alleviate the harshness of strict compliance with the claims presentation period by  ․ ․ ․  those who were excusably neglectful.”   As a consequence, “Under the well-recognized policy of the law to liberally construe remedial statutes designed to protect persons within their purview,  ․ ․ ․  the modern trend of judicial decisions [favors] granting relief unless absolutely forbidden by statute  ․ ․ ․ ” (id., at pp. 32–33, 56 Cal.Rptr. at p. 672, 423 P.2d at p. 824).

FRANSON, Acting Presiding Justice.

HOPPER and ZENOVICH, JJ., concur.