ROCHA v. LODI UNIFIED SCHOOL DISTRICT (1979)

Carmen Rocha appeals from a judgment (order denying relief from failure to file a timely claim (Gov.Code, § 945.4)) entered after the superior court determined that she failed to exercise due diligence in seeking application to present a late claim.

On November 25, 1975, Carmen, a minor at all relevant times, was allegedly injured at the Venice King School of the Lodi Unified School District (school district). No claim was filed with the school district within the 100-day period. On November 24, 1976, Carmen's mother made an application to the school district to present a late claim which was rejected on December 14, 1976. A petition was then filed in the superior court for relief from her failure to file a claim within the 100-day period. The superior court denied relief on December 15, 1977, and notice of appeal was filed on December 20, 1977.

We find that the court erred in denying Carmen her requested relief. Carmen was a minor during all of the time specified in section 911.2 of the Government Code.¹ She therefore falls within that portion of section 911.6, with respect to her application for leave to present a late claim, which provides: “The board shall grant the application where:

“…

(2) The person who sustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim ․” (Emphasis added.)

Section 946.6, subdivision (c), provides that “[t]he court shall relieve the petitioner from the provisions of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that:

“…

“(2) The person who sustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim ․” (Emphasis added.) Therefore, it would appear that the trial court could properly determine whether a claim presented by a minor within one year of the accrual of his or her cause of action was also within a “reasonable time.” (See also Gov.Code, § 911.4.)²

In Tammen v. County of San Diego (1967) 66 Cal.2d 468, 480, 58 Cal.Rptr. 249, 256-57, 426 P.2d 753, 760-61, our Supreme Court stated: “Under the 1963 act, where the claimant is a minor, it is wholly immaterial that the public entity will be prejudiced by the late filing, and the only determination for the court is whether the minor acted diligently in seeking relief from his failure to file within the 100 days.

“In view of the policy of the law toward liberal construction of remedial statutes for the protection of persons within their purview and the modern trend of judicial decisions in favor of granting relief unless absolutely forbidden by statute [citation], we are of the opinion that the court abused its discretion in denying the petition of the minor claimant. As the court said in Morrill v. City of Santa Monica, 223 Cal.App.2d 703, 708, 35 Cal.Rptr. 924 … ‘The language of the sections referred to . . was not enacted to penalize minors or to deprive them of their rights in cases where adults may have slept on their rights—quite to the contrary the statutes are to protect minors.”’

Tammen involved applications to present late claims by both an adult and a minor. The adult had learned of the requirement to file a claim against the public entity some five months after the accrual of the cause of action, discussed the matter with her attorneys, and left it in their hands. (Id. at p. 471, 58 Cal.Rptr. 249, 426 P.2d 753.) It was not until some 11 months after the accident that a claim was presented to the public entity. (Ibid.) The court determined that the adult's mistake in filing a late claim could have been avoided by the exercise of reasonable diligence, and she was not entitled to relief. (Id. at p. 479, 58 Cal.Rptr. 249, 426 P.2d 753.) Yet, as indicated in the above-quoted passage, it found the minor entitled to relief without any discussion of diligence on the minor's part. (See Tammen at pp. 479-480, 58 Cal.Rptr. 249, 426 P.2d 753; also Roberts v. State of California (1974) 39 Cal.App.3d 844, 846-947, 114 Cal.Rptr. 518.)

Recently the Supreme Court, citing Tammen, stated: “These claims provisions apply to minors. [Citations.] Indeed they apply with greater liberality to minors, since under the provisions of section 911.4 and section 911.6, an application for leave to present a late claim made by a claimant who has been a minor throughout the entire 100-day claim presentation period must be granted by the board.” (Whitfield v. Roth (1974) 10 Cal.3d 874, 883-884, 112 Cal.Rptr. 540, 547, 519 P.2d 588, 595, fns. omitted.) The foregoing must be considered dicta since the minor in that case filed a claim with the 100-day period (id. at p. 889, 112 Cal.Rptr. 540, 519 P.2d 588). However, we deem such authority, and the reasoning from which it flows, persuasive. We have discovered no case holding to the contrary. (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, §§ 677-678, pp. 4591-4593.) Essentially, the identical thought was expressed in Carr v. State of California (1976) 58 Cal.App.3d 139, 144-145, 129 Cal.Rptr. 730, 733, when that court stated: “In the instant case, the cause of action against respondents accrued on August 29, 1969 … The last day for filing a late claim would have been August 28, 1970. If the application for a late claim had been presented on or before the latter date, appellants, because of their minority, would have been entitled to relief as a matter of law …”³

We note that Whitfield, supra, 10 Cal.3d at page 884, footnote 16, 112 Cal.Rptr. 540, 519 P.2d 588 cites with approval the case of Hom v. Chico Unified School Dist. (1967) 254 Cal.App.2d 335, 338-339, 61 Cal.Rptr. 920, 922, which reasoned: “Both minors and adults may escape the 100-day limitation by applying to the entity for leave to present a late claim, the application to be made within a reasonable time, not to exceed one year after the accrual of the cause of action. (§ 911.4.) From that point onward, the minor receives more favored statutory treatment. An adult who was not physically or mentally incapacitated during the 100-day period, must show that his failure to act within that period was occasioned by mistake, inadvertence, surprise or excusable neglect and that the public entity was not prejudiced; while the minor need show only that he was a minor during the 100-day claim period. (§ 911.6.) The same distinction in treatment appears in the statute providing for judicial permission for late claim filing. [Citations.]

“In effect, Government Code sections 911.6 and 946.6 grant minors a period of claim filing consisting of 100 days plus a reasonable time, not exceeding one year, for filing an application for relief. If, within the extended period fixed by section 911.4, the minor files an application, relief is mandatory.”

The teaching of the foregoing authorities is that a minor, to be entitled to present a late claim, need only establish his minority for the requisite period, or perhaps make a slight showing of diligence. Such showing of diligence, if required, is less than that required of an adult; it apparently consists of making an application for leave to present a late claim within one year of the accrual of the cause of action. (See Tammen and Roberts, supra.) Therefore, under the circumstances presented in this case the trial court was required to allow Carmen to file a late claim. Carmen's mother did attempt to receive satisfaction from the school district, and, upon learning of that requirement, immediately filed a claim within one year of the accrual of Carmen's cause of action.

In assessing whether Carmen's application for leave to present a late claim was made within a “reasonable time” the state's interests must be balanced against that of the minor's. The purpose of the claims statute is to give the governmental entity notice and an opportunity to investigate and settle meritorious claims without litigation. (Viles v. State of California (1967) 66 Cal.2d 24, 32, 56 Cal.Rptr. 666, 423 P.2d 818.) This interest is subservient to the minor's interest in presenting his or her claim on the merits, unless after becoming aware of the cause of action and the time requirements for filing a claim, the minor or his parents needlessly dawdles. If there is no showing of prejudice to the state, as in this case, the delay in filing an application to present a late claim may be deemed reasonable. (Ibid.; see also State of California v. Superior Court (1978) 86 Cal.App.3d 475, 150 Cal.Rptr. 308.) The court failed to balance the respective interests in this case; therefore, it abused its discretion in finding that Carmen's delay in filing was unreasonable.

Our determination that the trial court erred in denying plaintiff's requested relief renders moot the other contentions raised on appeal.

The judgment (order denying relief from failure to file a timely claim) is reversed and remanded to the trial court with directions to vacate its order of December 15, 1977, and to enter an order granting plaintiff the right to present a late claim with the defendant school district.

I dissent. The majority has for purposes of this case emasculated the remedial statute under which plaintiff seeks relief from denial of her application for leave to file a late claim. The statute provides for judicial relief from such denial where plaintiff was a minor during all of the claim-filing period and applied to the governmental entity for leave to file a late claim “within a reasonable time not to exceed” one year. (Gov.Code, § 946.6.)

The majority's reformulation of the legislative scheme holds that “a minor, to be entitled to present a late claim, need only establish his minority for the requisite period, or perhaps make a slight showing of diligence. Such showing of diligence, if required, is less than that required of an adult; it apparently consists of making an application for leave to present a late claim within one year of the accrual of the cause of action.” (Maj. opn., p. 310)

Stripped of its verbal embellishments, the quoted holding means that a minor's application for leave to file a late claim is within a reasonable time as a matter of law if brought within one year of accrual of the cause of action. Thus the majority takes the position that the statutory language “within a reasonable time not to exceed [one year]” means simply, “within one year.” This astounding proposition defies logic as well as clearly expressed legislative intention.

In justification of its position, the majority relies an decisional law. Yet none of the cases cited supports its holding. Tammen v. City of San Diego (1967) 66 Cal.2d 468, 58 Cal.Rptr. 249, 426 P.2d 753, expressly recognizes diligence as a condition of relief from denial of a minor's application to file late claim. Whitfield v. Roth (1974) 10 Cal.3d 874, 112 Cal.Rptr. 540, 519 P.2d 588, involves a claim timely filed within 100 days of accrual of the cause of action; accordingly, language in the opinion which appears to dispense with the requirement of diligence in a case of a minor's application for leave to file a late claim is dicta. (p. 884, 112 Cal.Rptr. 540, 519 P.2d 588.) The Whitfield dicta is followed by citations to Tammen, supra, and Hom v. Chico Unified School Dist. (1967) 254 Cal.App.2d 335, 61 Cal.Rptr. 920. As discussed above, Tammen does not support the Whitfield dicta, nor is the Hom case authority therefor. Plaintiff Hom appealed from a judgment of dismissal after demurrer to her complaint had been sustained without leave to amend; her application for leave to file a late claim had been presented to the defendant 15 months after accrual of the cause of action. The appellate court affirmed the judgment of dismissal. In upholding the constitutionality of the claim-filing statutes, the court stated: “In effect, Government Code sections 911.6 and 946.6 grant minors a period of claim filing consisting of 100 days plus a reasonable time, not exceeding one year, for filing an application for relief. If, within the extended period fixed by section 911.4, the minor files an application, relief is mandatory.” (Emphasis added; Hom v. Chico Unified School Dist., supra, 254 Cal.App.2d at p. 339, 61 Cal.Rptr. at p. 922.) The “extended period” within which relief is mandatory obviously corresponds to “a reasonable time not exceeding one year.” Thus Hom does not stand for the proposition that an application for leave to file late claim is timely merely because filed within one year of the accrual of the cause of action. Carr v. State of California (1976) 58 Cal.App.3d 139, 129 Cal.Rptr. 730, denied relief to minor plaintiffs whose application for leave to file a late claim was presented two and one-half years after the cause of action had accrued. Language therein purporting to dispense with the requirement of diligence (at pp. 144-145, 129 Cal.Rptr. 730) where the application for leave to file late claim is within one year of the accrual of the cause of action is not authoritative. Roberts v. State of California (1974) 39 Cal.App.3d 844, 114 Cal.Rptr. 518, did not involve a minor's claim.

Having determined that a minor's application is timely if filed within one year of the accrual of the cause of action, the majority shift focus to the lack of a showing of prejudice by the respondent school district. But once again the majority is wide of the mark. “[W]here the claimant is a minor, it is wholly immaterial that the public entity will be prejudiced by the late filing, and the only determination for the court is whether the minor acted diligently in seeking relief from his failure to file within the 100 days.” (Tammen v. City of San Diego, supra, 66 Cal.2d at p. 480, 58 Cal.Rptr. at p. 256, 426 P.2d at p. 760; Hom v. Chico Unified School Dist., supra, at pp. 338-339, 61 Cal.Rptr. 920; compare par. (1) of subd. (c) of Gov.Code, § 946.6, with subd. (c) par. (2).)

What was before the trial court on the issue of diligence? The record shows that the minor allegedly suffered injuries November 25, 1975, in an accident on the premises of one of the respondent's schools. The same day the minor's mother spoke with the school principal and was informed the school would not be responsible for the minor's medical bills and she should look for reimbursement to her own insurer. On several occasions throughout the ensuing year, the mother was in contact with school authorities in an effort to secure reimbursement for medical expenses but received no satisfaction. A claim was not filed within 100 days. Application for leave to file a late claim was not made until November 24, 1976, 365 days after the known accrual of the cause of action. The only justification advanced for the delay was ignorance of the claim filing requirement.

Based on the foregoing, the trial court rendered its written decision giving reasons therefor. Quoting therefrom the court declared: “The cases are ‘clear that ignorance of the time limitations on the filing of claims and requests for leave to file late claims is not a ground for allowing such a late claim.’ (Roberts v. State of California, 39 Cal.App.3d 844, 847, [114 Cal.Rptr. 518]; Martin v. Madera, 265 Cal.App.2d 76, 79, [70 Cal.Rptr. 908.]) If it were, ignorance of the law could always be claimed and the time limitations would cease to exist.

“…

In the face of repeated refusals by the school district to pay, waiting 364 days to present a claim or request leave to file a late claim without any suggested reason at all except ignorance of the law (which is legally not an excuse) was an unreasonable delay.” (Original emphasis.)

“A decision upon a petition to file a late claim rests within the sound discretion of the trial court. Appellate reversal is not warranted except for an abuse of that discretion.” (Roberts v. State of California, supra, 39 Cal.App.3d at p. 847, 114 Cal.Rptr. at p. 520.) No abuse of discretion is shown by this record. I would affirm the order of the trial court.

FOOTNOTES

1.  All section references, unless otherwise noted, are to the Government Code.Section 911.2 provides: “A claim relating to a cause of action for death of for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) of this chapter not later than the 100th day after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) of this chapter not later than one year after the accrual of the cause of action.”

2.  Section 911.4 provides: “(a) When a claim that is required by Section 911.2 to be presented not later than the 100th day after the accrual of the cause of action is not presented within such time, a written application may be made to the public entity for leave to present such claim.“(b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) of this chapter within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application. In computing the one-year period under this subdivision, time during which the person who sustained the alleged injury, damage, or loss is a minor shall be counted, but the time during which he is mentally incapacitated and does not have a guardian or a conservator of his person shall not be counted.”

3.  Again dicta since the claimants filed beyond the one-year period of limitation. (Carr, 58 Cal.App.3d at pp. 147-148, 129 Cal.Rptr. at p. 733.)

REGAN, Associate Justice.

REYNOSO, J., concurs. PUGLIA, Presiding Justice, dissenting.