Bettencourt v. Los Rios Community College Dist.

• Decision Date: 31 July 1986
• Docket Number: S.F. 24861
• Citation: 228 Cal.Rptr. 190,721 P.2d 71,42 Cal.3d 270
• Court: California Supreme Court
• Parties: , 721 P.2d 71, 33 Ed. Law Rep. 872 ., Plaintiffs and Appellants, v. LOS RIOS COMMUNITY COLLEGE DISTRICT et al., Defendants and Respondents. Supreme Court of California, In Bank

Page 190

228 Cal.Rptr. 190

42 Cal.3d 270, 721 P.2d 71, 33 Ed. Law Rep. 872

Bernice BETTENCOURT et al., Plaintiffs and Appellants, v. LOS RIOS COMMUNITY COLLEGE DISTRICT et al., Defendants and Respondents.

S.F. 24861.

Supreme Court of California, In Bank.

July 31, 1986.

O'Brien & Sullivan and Rory D. Jensen, Walnut Creek, for plaintiffs and appellants.

James K. Mirabell and Porter, Scott, Weiberg & Delehant, Sacramento, for defendants and respondents.

BIRD, Chief Justice.

Did the trial court abuse its discretion when it denied plaintiffs' petition seeking relief from the claim presentation requirement of Government Code section 945.4 ¹ on the ground of excusable neglect?

I.

The facts in this case are uncontroverted. On November 29, 1982, Vincent Braby, plaintiffs' 22-year-old son, drowned while on a biology field trip to Bodega Bay. The trip was sponsored and organized by Sacramento City College, where Braby was a student.

On February 11, 1983, 74 days after the accident, plaintiffs retained counsel to represent them. Counsel immediately hired an investigator and commenced an investigation of the case. He then telephoned John Bukey, defendant's general counsel and director of legal services, to obtain more information about the accident. Counsel informed Bukey that he might file a wrongful death action on behalf of Braby's parents. Bukey was investigating the accident for the college, and he promised to send counsel all relevant materials.

On February 15, 1983, four days after he was retained, counsel for plaintiffs filed a tort claim with the State Board of Control under the mistaken belief that the employees of Sacramento City College were employees of the State of California. Counsel discovered his error on March 25, 1983, when he learned that Sacramento City College employees were employees of the Los Rios Community College District. Counsel immediately telephoned Bukey informing him of the mistake and telling him that a petition for leave to present a late claim would be filed.

Three days later and 119 days after accrual of the cause of action, counsel for plaintiffs filed an application for leave to present a late claim under section 911.4. ² Defendant denied the application. Counsel then filed a petition in the superior court, pursuant to section 946.6, ³ seeking relief from the claim presentation requirement of section 945.4. The trial court denied the petition, citing Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 188 Cal.Rptr. 644. This appeal followed.

II.

Section 911.2 requires that a claim relating to a cause of action for death or personal injury be presented to the public entity within 100 days after accrual of the cause of action. When the injured party fails to file a timely claim, "a written application may be made to the public entity for leave to present such claim." ( § 911.4.) If the public entity denies the application, section 946.6 authorizes the injured party to petition the court for relief from the claim presentation requirement of section 945.4.

The trial court shall grant relief under section 946.6 when: (1) the application to the public entity seeking relief from the 100-day limit was made within a reasonable time; (2) failure to timely present the claim was caused by mistake, inadvertence, surprise or excusable neglect; and (3) the public entity does not demonstrate that it will be prejudiced if relief is granted. (See § 946.6, subd. (c).) ⁴ In determining whether relief is warranted, the court will consider the petition, any affidavits submitted in support or in opposition to the petition, and any other evidence presented at the hearing. ( § 946.6, subd. (e).) ⁵

The decision to grant or deny a petition seeking relief under section 946.6 is within the sound discretion of the trial court and will not be disturbed on appeal except for an abuse of discretion. (See Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, 197 Cal.Rptr. 601, 673 P.2d 271.) However, the trial court's discretion to grant relief is not "unfettered." (Martin v. Cook (1977) 68 Cal.App.3d 799, 807, 137 Cal.Rptr. 434.) It is " 'to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.' " (Ibid.)

Section 946.6 is a remedial statute intended "to provide relief from technical rules that otherwise provide a trap for the unwary claimant." (Ebersol, supra, 35 Cal.3d at p. 435, 197 Cal.Rptr. 601, 673 P.2d 271; Viles v. State of California, supra, 66 Cal.2d 24, 30-31, 56 Cal.Rptr. 666, 423 P.2d 818.) As such, it is construed in favor of relief whenever possible. (Viles, supra, 66 Cal.2d at pp. 32-33, 56 Cal.Rptr. 666, 423 P.2d 818.)

The policy favoring trial on the merits is the primary policy underlying section 946.6. (Ebersol, supra, 35 Cal.3d at p. 435, 197 Cal.Rptr. 601, 673 P.2d 671.) In order to implement this policy, any doubts should be resolved in favor of granting relief. (Ibid.) Consequently, where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief, denial of relief constitutes an abuse of discretion. (Ibid.; see also Viles, supra, 66 Cal.2d at p. 28, 56 Cal.Rptr. 666, 423 P.2d 818, Elston v. City of Turlock (1985) 38 Cal.3d 227, 235, 211 Cal.Rptr. 416, 695 P.2d 713.) In light of the policy considerations underlying section 946.6, a trial court decision denying relief will be scrutinized more carefully than an order granting relief. (See Ebersol, supra, 35 Cal.3d at p. 435, 197 Cal.Rptr. 601, 673 P.2d 271.)

Plaintiffs argue that the trial court abused its discretion in refusing to grant relief in this case. They maintain that: (1) their counsel's uncontroverted declaration showed adequate cause for relief; (2) they were prompt in applying for relief; and (3) defendant was not prejudiced by their delay in filing the claim.

First, plaintiffs argue that their attorney's failure to file a claim with the correct public entity constituted excusable neglect. In deciding whether counsel's error is excusable, this court looks to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. (See Ebersol, supra, 35 Cal.3d 427, 197 Cal.Rptr. 601, 673 P.2d 271; Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 148 Cal.Rptr. 729; Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 91 Cal.Rptr. 717.) In examining the mistake or neglect, the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error. (Ebersol, supra, 35 Cal.3d at p. 435, 197 Cal.Rptr. 601, 673 P.2d 271, citing Tammen v. County of San Diego (1967) 66 Cal.2d 468, 476, 58 Cal.Rptr. 249, 426 P.2d 753.) In addition, "[u]nless inexcusable neglect is clear, the policy favoring trial on the merits prevails." (Elston, supra, 38 Cal.3d at p. 235, 211 Cal.Rptr. 416, 695 P.2d 713.)

Here, plaintiffs' attorney made the erroneous assumption that employees of Sacramento City College were state employees. He failed to discover or remedy this error within the 100-day limitation period.

Counsel practiced law in Walnut Creek, which is approximately 75 miles from Sacramento. He has never lived in Sacramento County, nor has he practiced law there. He was not familiar with the Los Rios Community College District or Sacramento City College. Moreover, public higher education in California represents a sometimes confusing blend of state and local control and funding. For example, the Los Rios Community College District, like all community college districts, is overseen by the state Community College Board of Governors, whose members are appointed by the Governor. (Ed. Code § 71000.) Accordingly, it would not have been unreasonable for counsel to assume that Sacramento City College was part of the statewide higher education system.

Defendant disagrees and argues that counsel's neglect was clearly unreasonable, especially since he had the opportunity to discover his error within the 100-day limitation period and did not do so. Specifically, defendant notes that it sent counsel a letter whose letterhead indicated that Sacramento City College was part of the Los Rios Community College District.

The letter to which defendant refers was a cover letter accompanying the materials Bukey sent counsel on February 15th. It listed the materials enclosed and apologized for the delay in responding to counsel's request for information. Under these circumstances, a reasonable person, after skimming the body of the cover letter, would have focused his primary attention on the enclosures. It would not be unusual for the reader to devote little, if any, attention to the letterhead. The body of the cover letter said nothing about the Los Rios Community College District. Also, following his signature, Bukey was identified only as "Director of Legal Services and General Counsel."

Counsel received the letter after he had filed his claim with the State Board of Control. Once an attorney has decided whom to sue, his attention understandably focuses on other aspects of the case. Correspondence from the opposing party discussing the merits of the case would not necessarily prompt him to reevaluate his choice of defendants.

A review of the cases in this area supports the conclusion that counsel's conduct was reasonable under the circumstances. Appellate courts have consistently reversed trial court decisions denying relief under section 946.6 in situations where the attorney's neglect was comparable to, or even more serious than counsel's neglect here.

The case that most closely parallels counsel's mistake is Kaslavage v. West Kern County Water Dist., supra, 84 Cal.App.3d 529, 148 Cal.Rptr. 729. In Kaslavage, the attorney hired an investigator to obtain information about an accident that occurred when plaintiff dove from a pipe into a canal. Apparently, both the investigator and the attorney...