ROBERTS v. COUNTY OF KERN (1987)

OPINION

Plaintiffs Kris and Gary Roberts appeal a trial court order denying a Government Code 1 section 946.6 petition for relief from the governmental tort claims statute (§ 945.4).   As we will explain, we find plaintiffs' counsel operated under an excusable mistake of law, entitling plaintiffs to relief pursuant to section 946.6.   Accordingly, we will reverse the trial court's order.

The tort claim arose from the following facts:  Plaintiffs were the fost-adopt parents of Jennifer Kay Lilly, born April 23, 1984.   Jennifer, who suffered from Down's syndrome, came to live with plaintiffs shortly after her birth.   The child was hospitalized on December 12, 1984, after having exhibited signs of illness, including vomiting and an elevated temperature. The hospital, Kern Medical Center, was a county facility.   During the child's stay in the hospital, plaintiffs allegedly witnessed a lack of proper medical care for Jennifer as her condition deteriorated.   The child ultimately went into cardiac arrest and died on December 20, 1984.   Plaintiffs also purportedly witnessed these terminal events, causing them severe emotional distress.

On April 19, 1985, 120 days after Jennifer's death, the Roberts through counsel served a claim for damages upon Kern County.   Plaintiffs alleged damages for negligent infliction of emotional distress as a result of the cardiac arrest and eventual death which were due to Depakene toxicity and medical malpractice.   The Roberts later received a “Notice of Disposition of Claim” dated June 3, 1985.   According to the notice:

“[T]he claim you presented ․ is being returned because it was not presented within 100 days after the event or occurrence, as required by law․  [¶] Your only recourse at this time is to apply without delay to the County of Kern for leave to present a late claim․”

On June 14, 1985, plaintiffs presented an “Application for Leave to Present Late Claim,” which was denied by operation of law on July 29, 1985.

On December 18, 1985, counsel on behalf of plaintiffs filed in superior court a “Petition for Relief from Provisions of Government Code 945.4,” as well as a complaint alleging negligent infliction of emotional distress.

In their “Petition for Relief,” plaintiffs alleged their original claim was not late because although they had attempted to secure the chart immediately following the child's death, Jennifer's medical chart was not released to them before February 28, 1985.   In fact, as set forth below, the chart was released earlier.   Nevertheless, plaintiffs claimed their cause of action did not accrue until sometime after February 28, 1985, when they learned medical negligence was the cause of Jennifer's death.   Accordingly, they asserted their claim was timely.

Exhibits attached to the county's opposition to the petition established the following chronology with respect to the records:

The trial court denied the petition pursuant to the following minute order:

“The Court finds that Plaintiff has not shown that there was a mistake, inadvertence, surprise or excusable neglect sufficient to be relieved from a late claim filing.   This Court is not ruling on what seems to be Plaintiff's principle [sic ] contention that the claim was timely filed as a result of estoppel or otherwise. That issue can be resolved after a complaint has been filed alleging a timely filing under the claim statute.  County of Los Angeles v. Superior Court, 169 C.A. 3rd 1095 [215 Cal.Rptr. 699 (1985) ], Toscano v. County of Los Angeles, 92 C.A. 3rd, 775 [155 Cal.Rptr. 146 (1979) ].”

Thereafter, plaintiffs filed a motion for reconsideration, pursuant to Code of Civil Procedure section 1008, alleging a mistake of law.   Attached to the motion was counsel's declaration in which he stated in relevant part:  “[I]t was my belief that the 100–day period began from the date the records were ultimately received and reviewed.”

On reconsideration, the trial court reaffirmed its original decision.

DENIAL OF RELIEF FROM SECTION 945.4

A. Introduction.

 A trial court's order granting or denying a petition under section 946.6 ³ is subject to the same standard of review used in relief from default proceedings. (Viles v. State of California (1967) 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 423 P.2d 818.)

“Where, as here, the trial court denies the motion for relief from default, the strong policy in favor of trial on the merits conflicts with the general rule of deference to the trial court's exercise of discretion.  [Citation.]   Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.  [Citation.] Doubts are resolved in favor of the application for relief from default [citation], and reversal of an order denying relief results [citation].   Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party.  [Citations.]”  (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235, 211 Cal.Rptr. 416, 695 P.2d 713.)

Plaintiffs contend the trial court abused its discretion in denying relief from the 100–day claim requirement of section 911.2. According to plaintiffs, their claim was not late because the cause of action did not accrue until they discovered the county's negligence or, in the alternative, assuming the cause of action accrued earlier and therefore the claim was late, they were entitled to relief from the 100–day claim requirement because their attorney's mistake of law, as to when the cause of action accrued, was a reasonable one.

The county responds first by arguing the trial court did not abuse its discretion because plaintiffs did not raise mistake of law below.   Thus, the trial court correctly ruled:  (1) there was no showing of excuse for relief from the claim requirement;  and (2) the issue of a timely claim should be later resolved under Toscano v. County of Los Angeles (1979) 92 Cal.App.3d 775, 155 Cal.Rptr. 146.

During the hearing on the section 946.6 petition, the court observed counsel's position, when first employed by plaintiffs, was one of being between a rock and a hard place.   Having the benefit of hindsight, with a complete record of the pertinent documents and oral proceedings, we conclude the court's observation was most appropriate.

Plaintiffs' counsel thought his clients had an emotional distress cause of action, but he knew it depended upon a claim of medical malpractice.   He believed there were ethical considerations requiring him to verify there had been negligence in the treatment.   Therefore, he sought the medical records.   Time passed.   He knew a governmental claim had to be filed.   Apparently, his impression was that the medical aspect of the case delayed the running of the 100–day period until he could verify negligence.   He tried to be diligent.   The claim was filed within 50 days of plaintiffs' receipt and review of the medical records.

When the county returned the claim with the notation that no action had been taken because it was filed too late, counsel selected the obvious alternative of seeking to present a late claim.   This was particularly the right choice since the county's claim rejection informed him of as much:  “Your only recourse at this time is to apply ․ for leave to present a late claim.”   In a timely manner, this was done;  when denied, plaintiffs sought relief from the court.

The section 946.6 petition seeking relief asserted the claim was timely and diligence had been exercised to discover the alleged negligence.   Plaintiffs argued the limitations period commenced to run upon the discovery of the malpractice.   Alternatively, relief was sought because the conduct of county officials prevented the claim from being filed within 100 days of the death.

The county's opposition to the petition noted an uncertainty in the plaintiffs' position:  At one point the petition asserted the claim had been timely presented and at another that the court should deem it a “late” claim.   Plaintiffs replied, first arguing the importance of delaying such claims until discovery provided a proper basis for asserting wrongful conduct.   However, if the court disagreed with this point of law, plaintiffs asked the court to treat the issue as one concerning a “late” claim, there having been a continuous effort to be diligent, delay on the part of the county, and no prejudice to the county arising from the minimal delayed notice.

During the hearing on the petition, counsel for plaintiffs again mentioned the claim was only 17 days late.  (The claim was actually 20 days late.)   The county then emphasized “the thrust of our opposition is whether or not there was delayed accrual” and argued that issue was not properly before the court.   Relief should not be given plaintiffs unless they said “we were late.”   Plaintiffs' counsel again asked the court to treat the matter as a late claim, with the “mistake” based upon the circumstances involving their trouble obtaining the records.   These events, prolonging the effort to be diligent, were excuses for a more timely filing.

When denied relief, plaintiffs filed a written motion for reconsideration.   In it plaintiffs admitted their prior arguments had been principally concerned with accrual, but alternatively sought relief as if no claim had been filed.   It was argued counsel's mistake of law, causing a delayed notice of only 17 days, should be excused.   Likewise, the effort by counsel to avoid an unfounded allegation of medical malpractice should be considered.

In its opposition county objected to any reconsideration because there were no new facts.   When the oral proceedings commenced the court asked that plaintiffs state whether they contended the claim was late.   Once again counsel took a twofold position of either being on time, or if not timely, the delay was only 17 days and excusable under the circumstances.   The court asked counsel whether he had read the Toscano case, which the county argued precluded the court from determining whether there was a delayed accrual of a cause of action.   When counsel continued to take a “twofold” position, the court made its “rock and hard place” observation and inquired about the meaning of excusable neglect and whether mistake of law would qualify.

Counsel for the county in turn objected that plaintiffs should be given no reconsideration because their position was unchanged.   We interpret this to mean county thought the plaintiffs had from the start asserted dual reasons for relief.   However, the county urged the sole issue concerned delayed accrual, an issue which should be deferred to the trial court.   The court, however, noted plaintiffs' counsel “is not sure about that.”   Thus, the court accurately noted counsel was indeed in doubt and seeking to protect against an adverse ruling on the law.   Finally, the court repeated the question of accrual would be one for a “trial judge” to determine.   However, the court invited briefs concerning mistake of law as an excuse for failing to file a timely claim.

Plaintiffs filed a brief supporting a mistake of law basis for relief.   However, the county reacted by once more relying on plaintiffs' alternative argument concerning delayed accrual, and contending that issue would be decided later by a trial court.

The court denied the motion for reconsideration.

We find it difficult to fault the court under these circumstances.   However, it is apparent an unjust result took place.   Thus the question:  Was it the fault of counsel?   Again, we find the circumstances do not justify a result which would prevent plaintiffs from having their day in trial court.   As we will explain later, the law concerning the tort in question was uncertain at the time of these proceedings.   Counsel's position relating to ethics was commendable, if not correct.   The effort to obtain confirming information ran into an obstacle because of the fost-adopt status of the parents.   The delay was minimal.   Counsel followed the written advice of county in seeking relief.   When relief was first sought it was under a misconception of the law concerning accrual.   From the beginning, counsel sought relief if he was in error on the law, but the court failed to recognize this alternative position was being urged.

We cannot be sure when the “lack of timely claim filing” position was made clear to the court.   The county consistently, but erroneously, understood plaintiffs to be asserting simply a timely claim, which according to the county, was a matter for another court to resolve.   Therefore, the county could argue to the court, and to us on appeal, that the motion for reconsideration presented no new facts or contentions.

 Because the motion for reconsideration was the first opportunity for the court to really understand plaintiffs were urging mistake of law as an excuse for filing a timely claim, we conclude the issue was properly before the court at that time.   A new fact, as required by Code of Civil Procedure section 1008 ⁴ was offered the court.   In his declaration in support of the motion for reconsideration, plaintiffs' counsel made the point clear:  “[I]t was my belief that the 100–day period began from the date the records were ultimately received and reviewed.”   We will therefore review the order denying reconsideration due to plaintiffs' mistake of law.   First, however, we will consider the trial court's ruling pursuant to County of Los Angeles v. Superior Court (1985) 169 Cal.App.3d 1095, 215 Cal.Rptr. 699, and Toscano v. County of Los Angeles, supra, 92 Cal.App.3d 775, 155 Cal.Rptr. 146, that on a petition for relief under section 946.6, it would not resolve when the cause of action accrued.

B. Forum for Determining Accrual of Cause of Action.

 The Second District, in a series of decisions ⁵ has ruled the hearing on a petition for relief from the 100–day claim requirement is not the proper forum for considering whether a claim was timely presented.

“[T]he sequence of events by which one gets into court with a petition under section 946.6, requires first a failure to file a timely claim;  then an application for leave to present a late claim followed by the denial of that application;  then a petition in superior court for relief from the requirement of filing a claim.  Section 946.6 specifies that the petition must show, inter alia, ‘․ the reason for failure to present the claim within the time limit․’  [A]n argument on appeal that the petition should have been granted because a timely and substantially complete claim was in fact filed, is contradictory.   We conclude that the issue of substantial compliance with the claim filing requirements of section 911.2 and 945.4 was not within the scope of the superior court proceeding, and that therefore no abuse of discretion could be founded upon such an argument․

“․ An argument that one filed a timely claim is inconsistent with a petition for relief under section 946.6, since such petition necessarily follows the denial of an application for leave to file a late claim․

“There is a proper forum for raising the issue of substantial compliance with the claim filing requirements of sections 911.2 and 945.4.   One who has a cause of action against a public entity for personal injury or property damage, and who has filed therewith a timely claim substantially complying with the requirements of section 911.2 and 945.4, should file a complaint against that public entity within the appropriate statutory period and in the appropriate court.   The complaint should allege that a timely claim for damages has been filed with the defendant.   The issue of substantial compliance with the claim filing statutes, if it arises, will do so in the form of a demurrer to the complaint, a motion for summary judgment or nonsuit, a motion for judgment on the pleadings, or a motion to strike.   It is in response to such demurrer or motion that arguments in support of substantial compliance with the claim filing statutes would properly be raised.”  (Toscano v. County of Los Angeles, supra, 92 Cal.App.3d at pp. 782–783, 155 Cal.Rptr. 146, fn. omitted.)

Declaring it “inherently inconsistent”, the Second District challenges an injured party's ability to argue, in a section 946.6 petition for relief, that his or her claim was timely.   We disagree, finding the notion of contradictory positions has no foundation in the statutes and is technical at best. Further, such an interpretation runs contrary to our law permitting the pleading of alternative theories and pursuing alternative remedies.

In Toscano the appellate court outlines a sequence of events which it believes section 946.6 contemplates.   The section “requires first a failure to file a timely claim;  then an application for leave․”  (Ibid., emphasis added.)   Later, as we see in the quotes above, the court finds contradictory, and thus impermissible, any argument of a timely claim in connection with a petition for relief.   This is apparently because such a petition concerns denial of an application to file a late claim.   However, the cases which have followed Toscano, and the trial court in this case, assume the Toscano holding is that section 946.6 relief is inappropriate when a challengeable effort has been made to file a claim within the appropriate time period.   If that rule was intended, we disagree.   The alternative safeguard of seeking section 946.6 relief should not be prohibited merely because an injured party may allege by way of complaint that a timely claim was filed, and in law and motion the court may sustain the sufficiency and timeliness of the claim.

If in fact the first step in a section 946.6 petition for relief is the failure to present a timely claim (see §§ 911.2, 911.4 and 945.4), there must be some determination regarding when the cause of action accrued. Under section 911.2, the claim must be presented not later than the 100th day after the accrual of the cause of action. Thus, implicit in the code is a determination as to when the 100–day period began to run.

While the Second District suggests the court on a section 946.6 petition for relief should not resolve the question of timeliness, it appears to lose sight of the fact section 946.6 relief may only be given upon a showing, in relevant part, that the petition was brought within a reasonable time after the accrual of the cause of action. Therefore, at some point consideration must be given to the probable date the cause of action accrued.

In addition, Toscano, and the other decisions referred to above, offer no explanation as to why an injured party may not contend his or her claim was timely while alternatively seeking relief from the claim requirement under section 946.6.   In the present case, plaintiffs contend they presented a timely claim and in the alternative if their claim was not timely, the error was due to a reasonable mistake of law. Given that California law does not prohibit pleading inconsistent theories (Lambert v. Southern Counties Gas Co. (1959) 52 Cal.2d 647, 652–654, 340 P.2d 608), we see no problem with injured parties, such as the plaintiffs here, seeking section 946.6 relief based on dual contentions of timeliness and mistake of law.

Accordingly, we find the trial court erred in not considering the timeliness question on the section 946.6 petition for relief.

Since the dual issues of timeliness and mistake of law are essentially questions of law, we will consider when plaintiffs' cause of action for negligent infliction of emotional distress accrued.

C. Accrual of plaintiffs' cause of action.

In arguing his clients' cause of action for negligent infliction of emotional distress did not accrue until the hospital records were received and reviewed, counsel relied upon the belated discovery rule in Code of Civil Procedure section 340.5, the statute of limitations for medical malpractice actions. Counsel apparently assumed Code of Civil Procedure section 340.5 applied in this case because his clients' cause was based on alleged medical malpractice.

Interestingly, the county took the same position:

“The proper date of accrual, under [Code of Civil Procedure section] 340.5 is the date the plaintiff discovered, or, through the use of reasonable diligence, should have discovered the injury.”

Thus, to the county, there was no question of law but only a question of fact:

“The disagreement is over a factual issue:  the actual date of accrual.   The actual date which the plaintiff discovered or should have discovered the cause of action is obviously a factual issue.”

We disagree with both counsel.

Notably, neither party cites, nor are we able to find, any supporting case authority to the effect plaintiffs' cause of action accrued pursuant to Code of Civil Procedure section 340.5.   The published decisions on Code of Civil Procedure section 340.5 relate to medical malpractice lawsuits and DES product liability cases, not negligent infliction of emotional distress actions.  (See, for example, Gutierrez v. Mofid (1985) 39 Cal.3d 892, 218 Cal.Rptr. 313, 705 P.2d 886; Kensinger v. Abbott Laboratories (1985) 171 Cal.App.3d 376, 217 Cal.Rptr. 313.)

 At best, the language of Code of Civil Procedure section 340.5 lends some support to counsels' interpretation:

“In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ.Proc., § 340.5.)

In this context, “injury” signifies both the negligent cause and the damaging effect of the alleged wrongful act and not the act itself.  (Larcher v. Wanless (1976) 18 Cal.3d 646, 655–656 & fn. 11, 135 Cal.Rptr. 75, 557 P.2d 507.)

 While on its face, Code of Civil Procedure section 340.5 appears applicable because plaintiffs seek redress for their injuries—emotional distress—from a health care provider, based upon professional negligence, we conclude the statute, including its one-year discovery limitation period, is inapplicable to a cause of action for negligent infliction of emotional distress as plaintiffs have alleged.

The rationale for the belated discovery rule in medical malpractice cases has been described in the following manner:

“Most frequently the rule was said to spring from the fiduciary and confidential relationship created between physician and patient the effect of which both compelled disclosure by the physician, on the one hand, and diminished the degree of diligence expected of the patient, on the other.  (E.g., Stafford v. Shultz [ (1954) 42 Cal.2d 767], supra, at pp. 777–778 [270 P.2d 1].)  Another basis for the rule, originating in workers' compensation cases, has been the further assumption that, apart from the physician's disclosure, the patient had few other methods of discovering the nature of his abnormal condition and determining its negligent origin, if any.  (E.g., Huysman v. Kirsch [ (1936) 6 Cal.2d 302], supra, at p. 312 [57 P.2d 908].)”  (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 96–97, 132 Cal.Rptr. 657, 553 P.2d 1129.)

These purposes are not served in the present case.

To begin, plaintiffs seek recovery for negligent infliction of emotional distress based upon alleged facts similar to those in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1.⁶  In Ochoa, the petitioners' minor son became ill with an apparent cold while he was confined in juvenile hall.   Seeing her son “extremely ill,” the mother repeatedly sought care for her son and expressed her concern that he was not receiving the necessary treatment.  (Id. at p. 163, 216 Cal.Rptr. 661, 703 P.2d 1.)   The boy eventually died while in the county's care.

In ruling the mother had stated a cause of action for negligent infliction of emotional distress, the state Supreme Court explained:

“Mrs. Ochoa was aware of and observed conduct by the defendants which produced injury in her child.   She was aware of the fact that her child was in need of immediate medical attention.   To her knowledge the defendants had failed to provide the necessary care.   As her complaint alleges, she ‘experienced extreme mental and emotional distress and concern for her son and for [sic ] the apparent outrageous neglect of medical care while she was present.’ ․ [S]he was able to perceive, and suffered, shock, from the connection between defendants' conduct and her child's injury․  [¶] We are satisfied that when there is observation of the defendant's conduct and the child's injury and contemporaneous awareness the defendant's conduct or lack thereof is causing harm to the child, recovery is permitted.”  (Id. at pp. 169–170, 216 Cal.Rptr. 661, 703 P.2d 1, emphasis added.)

 Similarly, here plaintiffs have alleged in their complaint ⁷ they were percipient witnesses to Jennifer's deteriorating condition and the county's lack of care and concern for her.⁸  In addition, they allege facts regarding a misdiagnosis and their emotional distress suffered as a result, namely:  (1) they expressed an initial concern that Jennifer's illness was the possible result of a drug reaction;  (2) staff at the hospital and “Doe” doctors failed to ascertain that the child's condition was a direct result of Depakene toxicity;  and (3) they later realized that a cause of the child's death was Depakene toxicity.   Thus, plaintiffs appear to claim they were direct victims of the defendant's negligence and thus entitled to recover for negligent infliction of emotional distress pursuant to Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.

The parents in Ochoa made a similar contention.   However, the state Supreme Court rejected the claim, noting that in Molien the misdiagnosis of syphilis was, by its very nature, directed at both the patient-wife and husband.   By contrast, the defendant's negligence in Ochoa was directed primarily at the decedent.   While the mother was a foreseeable plaintiff to whom the defendants owed a duty of care pursuant to Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the duty was owed to her as a percipient witness, not as a direct victim of negligence. (Ochoa v. Superior Court, supra, 39 Cal.3d at pp. 172–173, 216 Cal.Rptr. 661, 703 P.2d 1.)  Likewise, it appears plaintiffs here may be unable to state a cause of action for negligence on a direct victim theory.  (Compare Newton v. Kaiser Hospital (1986) 184 Cal.App.3d 386, 228 Cal.Rptr. 890;  Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 208 Cal.Rptr. 899;  and Kossel v. Superior Court (1986) 186 Cal.App.3d 1060, 231 Cal.Rptr. 183.)

To date, there is no case law regarding when an Ochoa cause of action for negligent infliction of emotional distress accrues.   Indeed, before Ochoa, many appellate courts held on similar facts that Dillon did not extend relief to a parent who witnessed a child's death resulting from malpractice.  (See, for example, Jansen v. Children's Hospital (1973) 31 Cal.App.3d 22, 24–25, 106 Cal.Rptr. 883.)   While a belated discovery rule applies to the accrual of some torts, it by no means applies to all. (See 3 Witkin, Cal. Procedure (3d ed. 1985) §§ 410–417, pp. 439–449;  Cal. Governmental Tort Liability Practice (Cont.Ed.Bar 1980) pp. 479–481.)   More importantly, however, it appears improper to extend the medical malpractice belated discovery rule to Ochoa percipient witness causes of action.

 The medical records merely confirmed plaintiffs had a reasonable basis to be distressed over the apparent lack of care Jennifer received.   While it may have been good lawyering to obtain the medical records as soon as counsel did, the accrual of the cause of action was not postponed until the records were received and reviewed.   Applied to the circumstances in this case, Ochoa required:  observation of the lack of care and the child's illness;  and contemporary awareness the defendant's conduct is causing harm to the child. (Ochoa, supra, 39 Cal.3d at p. 170, 216 Cal.Rptr. 661, 703 P.2d 1.)   Plaintiffs must have believed the child's health or life was being jeopardized due to a professional failing.   Such awareness must develop as the events unfold, not from a postponed discovery that apparently proper care was in fact negligent.⁹  Under Ochoa, medical provider conduct which appears tortious and causes great distress to the observing parent(s) may prove to be reasonable in which case the Ochoa cause of action is illusory.   However, while the medical truth may confirm or deny the reasonableness of the emotional distress, it does not postpone the accrual of the cause of action.   Thus, it is inconsistent for the parties to contend the belated discovery of negligence under Code of Civil Procedure section 340.5 applies.

 Counsel for plaintiffs also argues he acted cautiously in compliance with the rules of professional conduct by investigating the child's medical chart before alleging negligence.   Presumably, counsel refers to California Rules of Professional Conduct, rule 6–101, regarding an attorney's competence.   However, such caution has little to do with accrual of the cause of action.   The Rules of Professional Conduct do not preach caution with regard only to lawsuits involving health care providers. As to other causes for negligence, where the statute of limitations (Code Civ.Proc., § 340, subd. (3)) runs from the time of injury, counsel often does not have the benefit of early discovery regarding different elements of a cause before filing a claim or lawsuit.   Nevertheless, there is no rule to the effect the statute does not run until counsel has made a preliminary investigation.

In summary, counsel for plaintiffs operated under a mistake of law that the cause of action for negligent infliction of emotional distress accrued pursuant to Code of Civil Procedure section 340.5.

D. Was Counsel's Mistake of Law Excusable?

“[A]n attorney ․ is expected ․ to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.  [Citations.]   If the law on a particular subject is doubtful or debatable, an attorney will not be held responsible for failing to anticipate the manner in which the uncertainty will be resolved.  [Citation.]   But even with respect to an unsettled area of the law, we believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem.”  (Smith v. Lewis (1975) 13 Cal.3d 349, 358–359, 118 Cal.Rptr. 621, 530 P.2d 589.)

 Clearly, the question of accrual of plaintiffs' cause of action for negligent infliction of emotional distress was an unsettled area of the law at the time of the events herein.   Indeed, as set forth above, there is to date no clear statement of law on the subject.   At the time of the events herein, there was only one published decision discussing the accrual of a Dillon cause of action, Aldaco v. Tropic Ice Cream Co. (1980) 110 Cal.App.3d 523, 168 Cal.Rptr. 59.   However, Aldaco, which applied and interpreted pre-Molien law, held a Dillon cause of action accrued when the physical manifestations of the emotional trauma first appeared.¹⁰  In turn, Aldaco would have been of little use to counsel in reaching an informed decision on the issue. Further, Ochoa had not as yet been decided when the events unfolded in the winter of 1984 and spring of 1985.

Given the language of Code of Civil Procedure section 340.5, it appears counsel made at least an informed, although mistaken, decision as to accrual.   It is also notable counsel for respondent was of the same legal opinion.   In addition, because of the close relationship of the parents and the child, and the responsibility of the physician to them (rather than just to the child-patient), it was difficult for counsel to properly determine the precise nature of the alleged tort when informed the medical care seemed to be faulty.   Plaintiffs' counsel must have had justifiable concerns when first employed.   Obviously, there should be an apparent basis for a lawsuit. Also, professional malpractice involves far more than resolving the relative fault of those involved in an accident.   Reputations may be involved.   Early pre-claim discovery is important.   At the same time, the claims statute makes the task more difficult because it forces early action which might prove unfounded upon further discovery.   We conclude this scenario provided a basis for excuse in the form of judicial relief from a strict interpretation of the claims statute.

The order denying the petition for relief from the 100–day claim requirement is reversed.   Plaintiffs are awarded their costs on appeal.

FOOTNOTES

FN1. All statutory references are to the Government Code unless otherwise indicated..  FN1. All statutory references are to the Government Code unless otherwise indicated.

FN2. The adoption was to have been completed January 1985..  FN2. The adoption was to have been completed January 1985.

3.   Section 946.6 provides in relevant part:“(c) The 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:“(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;”

4.   Code of Civil Procedure section 1008 provides in relevant part:“(a) When an application for an order has been made to a judge, or to the court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within ten (10) days after knowledge of the order and based upon an alleged different state of facts may, make application to the same judge who made the order, to reconsider the matter and modify, amend or revoke the prior order.”

5.   Rodriguez v. County of Los Angeles (1985) 171 Cal.App.3d 171, 177, 217 Cal.Rptr. 69;  County of Los Angeles v. Superior Court, supra, 169 Cal.App.3d 1095, 1100, 215 Cal.Rptr. 699;  Gurrola v. County of Los Angeles (1984) 153 Cal.App.3d 145, 150, 200 Cal.Rptr. 157;  Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 158, 188 Cal.Rptr. 644;  and Toscano v. County of Los Angeles, supra, 92 Cal.App.3d 775, 782–783, 155 Cal.Rptr. 146.

6.   We note the state Supreme Court filed its Ochoa opinion in July 1985, after plaintiffs presented their claim to the county, yet before plaintiffs filed the instant petition and complaint for damages.

7.   We also note in evaluating when plaintiffs' cause of action accrued we look to the language of the complaint rather than that of the claim. We do so because a claim need not conform to precise pleading standards so long as the factual basis for recovery is fairly reflected in the written claim.  (See § 910;  Connelly v. State of California (1970) 3 Cal.App.3d 744, 84 Cal.Rptr. 257.)   Here, as previously noted, plaintiffs' alleged emotional distress, their witnessing of the child's demise and the county's malpractice, were fairly reflected in the written claim.

8.   Specifically, plaintiffs alleged in part:“7. At the time of Jennifer's admission, Plaintiffs gave the doctor in charge, Dr. Buchannan, a complete history and expressed their concern that the primary etiology of Jennifer's illness was the possibility of a Depakene reaction or Depakene toxicity.“8. Plaintiffs are informed and believe and thereon allege that between December 7 and December 20, 1984 the day their daughter Jennifer expired, the staff at Kern Medical Center and Doe Doctors 1 through 100, negligently failed to diagnose and/or treat the true nature of Jennifer's condition by failing to ascertain that her condition was a direct result of Depakene toxicity.“9. Prior to and through her hospitalization, Plaintiffs were physically present at various Doe doctors' offices and at the hospital and witnessed the lack of care and concern for their daughter's serious medical condition.   On numerous occasions as Plaintiffs saw that their daugher was progressibely [sic ] deteriorating, they sought out private care from private Doe physicians and physicians at Kern Medical Center to ascertain what was causing their daughter to deteriorate.   Their inquiries, for the most part, went unanswered.“10.  Their uncertainty as to Jennifer's condition and visual deterioration of their daughter compounded by the lack of concern and treatment rendered caused Plaintiffs serious emotional distress.   Ultimately, on December 20, 1984, their daughter, Jennifer, went into cardiac and respiratory arrest and then expired.“11.  As a direct and proximate result of witnessing the lack of medical attention provided by various Doe doctors and Kern Medical Center after Plaintiffs repeatedly asked for same, and thereafter their realization that a cause of their daughter's death was indeed Depakene toxicity, Plaintiffs suffered and will continue to suffer extreme emotional distress due to Defendants and each of their callous and conscious disregard for their daughter's health.”

9.   We note the potential unfairness in a rule which may reward the lay person who lacks trust in the medical provider, becomes emotionally distressed, and has a cause of action when the negligence is substantiated at a later time, and not the trusting lay person who assumes good care is being provided, only to be greatly distressed later upon learning of the medical negligence.   Nevertheless, we believe our high court's “contemporaneously” limitation is a policy one which is not for us to disregard.

10.   Molien eliminated the requirement of physical injury.  (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at pp. 924–931, 167 Cal.Rptr. 831, 616 P.2d 813.)

WOOLPERT, Acting Presiding Justice.

BEST and REID,* JJ., concur.