Bennett v. City of Los Angeles

• Decision Date: 20 October 1970
• Citation: 90 Cal.Rptr. 479,12 Cal.App.3d 116
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth BENNETT and Alberta Bennett, Plaintiffs and Appellants, v. The CITY OF LOS ANGELES, a municipal corporation, City of Los Angeles Department of Airports, Defendants and Respondents. Civ. 35923.

Page 479

90 Cal.Rptr. 479

12 Cal.App.3d 116

Kenneth BENNETT and Alberta Bennett, Plaintiffs and Appellants, v. The CITY OF LOS ANGELES, a municipal corporation, City of Los Angeles Department of Airports, Defendants and Respondents.

Civ. 35923.

Court of Appeal, Second District, Division 5, California.

Oct. 20, 1970.

Edelberg, Miller & Rothenberg, Los Angeles, for plaintiffs and appellants.

Roger Arnebergh, City Atty., Joseph F. Rank and Ralph C. Curren, Los Angeles, for defendants and respondents.

KAUS, Presiding Justice.

This is an appeal from an order denominated judgment, denying relief from the late filing of a claim. (Gov.Code § 946.6.)

In their petitions, Mr. and Mrs. Bennett recite that their minor son, Brian died on October 21, 1968, when he was buried under a cement wall that had been left in a hazardous condition by the respondent city. No claim was filed with the city within the 100 day period prescribed by section 911.2 of the Government Code. A claim was eventually filed on February 18, 1969, 19 days late. The reason for the late filing of the claim was petitioners' 'inadvertence and neglect, excusable in view of the fact that no attorney had been consulted until after the 100-day period had elapsed and due to the emotional state of mind of the claimants following the loss of their minor son' which disabled them from tending to their affairs 'as they normally would.' The respondent city was fully informed of the accident by the president of its city council, by news media and by a complaint lodged through a property owners' association on October 23, 1968. On the day before, October 22, 1968, the general manager of the city's department of airports had addressed the following letter to petitioners: 'I realize that at such a time no words or actions can ease the sorrow of the loss of Brian. Speaking for the Commissioners and the staff of the Department of Airports, and personally as a parent, I can only express our heartfelt condolences.' This letter, according to the pleading, '* * * implied * * * that 'actions' would be taken by Respondent to 'ease the sorrow of the loss of Brian (their son)', thereby instilling in petitioners a false sense of security and misleading them to believe that the Respondent would voluntarily reimburse them for their loss.'

The petition, by appropriate reference, incorporates petitioners' application to the city for leave to present a late claim. It is copied in the footnote. ¹ This application had been accompanied by a claim which appears correct as to form and content.

The 946.6 petition was opposed by the city. The matter was submitted on August 11, 1969. Three days later the court made the following minute order: 'The only showing why the plaintiffs did not file a claim within 100 days is that they did not know a claim was required until they consulted an attorney on the 119th day after the accrual of the claimed cause of action. The letter expressing a condolence does not estop the city or the Department of Airports. Petition denied. Counsel for the city and the department will present a proposed judgment as to those two defendants.'

Before the court signed a formal judgment, petitioners made a 'Motion To Vacate Order Denying Petition For Relief From Requirement Of Filing Claim And Application For Leave To Renew Said Petition (C.C.P. § 1008) * * *' This motion was accompanied by a new declaration signed by the petitioner Kenneth Bennett which realleges certain matters alleged in the original petition--which had been verified by petitioners' counsel--states that all the publicity surrounding the death of their son led petitioners 'to believe that the City would have a representative contact (them) to adjust any claims (they) might have for the death of (their) son' and alleges finally, that until late August petitioners were unaware of the fact that certain security guards on duty in the area where the accident occurred were city employees. The motion was argued and submitted on September 19. A minute order denying it was made October 8, on which day findings of fact and conclusions of law were filed, together with the formal denial of the petition. Pertinent findings are to the effect that the application under section 911.4 was made within a reasonable time; that the city would not have been prejudiced had leave to present a late claim been granted, but that '* * * it is not true that the failure to so file was due to inadvertence or surprise or excusable neglect or the emotional state of either plaintiff * * *.' The court further found that the city had been fully informed of the accident, that it was not estopped to rely on the claims statute, and had not waived its provisions.

On appeal petitioners first urge that they never were under an obligation to file a claim in the first place, because the uncontradicted evidence shows that at no time, during the 100 day period, were they aware that the injury had been caused by a public employee. For this proposition petitioners rely on section 950.4 of the Government Code.

Petitioners mistake the purpose of section 950.4. It merely provides an exception to the requirement of section 950.2 that in order to perfect an action against a public employee, as distinguished from an entity, a claim must be filed against the entity. (Gov.Code § 950.2.)

Next, relying on Viles v. State of California, 66 Cal.2d 24, 56 Cal.Rptr. 666, 423 P.2d 818, petitioners claim that the denial of their petition was an abuse of the trial court's discretion. In discussing this claim we must be constantly aware of the different functions performed by the superior court and ourselves. Unless, ultimately each case of this nature is to be decided by the court of appeal as if no trial court had ever acted on the petition, we must be careful to preserve the area of the superior court's discretion and we must do this in fact, as well as in words. It is easy enough to give the appearance that the respective functions of the two courts are being preserved: all we need do is label as an 'abuse of discretion' any ruling with which we happen to disagree. Admittedly, in this area, denials of relief 'are scanned more carefully than cases where the court granted the relief, to the end that wherever possible cases may be heard on their merits * * *.' (Viles v. State of California, 66 Cal.2d at 29, 56 Cal.Rptr. at 669, 423 P.2d at 821.) Yet we cannot arbitrarily substitute our judgment for that of the trial court. This is demonstrated by Martin v. City of Madera, 265 Cal.App.2d 76, 70 Cal.Rptr. 908. There, in a case which in some respects was similar to our own, the court affirmed a denial of relief, although it conceded that had relief been granted 'it is unlikely that we would have disturbed the trial judge's discretion * * *.' (Martin v. City of Madera, 265...