Black v. County of Los Angeles

• Decision Date: 04 November 1970
• Citation: 91 Cal.Rptr. 104,12 Cal.App.3d 670
• Court: California Court of Appeals Court of Appeals
• Parties: Judith BLACK, Petitioner and Appellant, v. COUNTY OF LOS ANGELES, a political subdivision of the State of California, Defendant and Respondent. Civ. 35998.

Page 104

91 Cal.Rptr. 104

12 Cal.App.3d 670

Judith BLACK, Petitioner and Appellant, v. COUNTY OF LOS ANGELES, a political subdivision of the State of California, Defendant and Respondent.

Civ. 35998.

Court of Appeal, Second District, Division 1, California.

Nov. 4, 1970.

Rehearing Denied Nov. 30, 1970.

Hearing Denied Jan. 14, 1971.

Archer Zamloch, Torrance, for appellant.

John D. Maharg, County Counsel, Michael Langs, Deputy County Counsel, for respondent.

LILLIE, Associate Justice.

Judith Black appeals from judgment of the superior court denying her petition for relief from the provisions of section 945.4, Government Code, requiring a written claim be presented to the County of Los Angeles before an action may be brought against it.

On July 27, 1968, appellant's husband, driving two of their four minor children northbound on Fullerton Road near Aguirro Street in an unincorporated area of the County of Los Angeles, was killed when a southbound car driven by Lawrence Sutton crashed head-on into his automobile; the two minors were injured. On that day, within twenty-four hours after the collision, two members of the California Highway Patrol investigated the accident and made a report showing, among other things, measurements and the exact location of the accident. On August 6, 1968, appellant retained Archer Zamloch who immediately sent Earl Thomas, his associate, to interview appellant. Thomas received from her two newspaper accounts of the accident and directed by them went to Fullerton Road where he inspected a portion thereof at a place considerably distant from the actual scene of the accident. Apparently satisfied with this inspection Zamloch, on August 20, 1968, filed suit against Sutton alleging the wrongful death of appellant's husband and personal injuries to the minors. ¹ On May 2, 1969, Zamloch took Sutton's deposition wherein Sutton claimed that the proximate cause of the accident was the condition of Fullerton Road there which caused him to lose control of his vehicle when one of the wheels dropped off the roadway onto the shoulder; he described the drop-off as perpendicular and one in which the shoulder of the road was approximately eight inches lower than the road surface. Immediately after taking Sutton's deposition Zamloch gave Thomas a copy of the California Highway Patrol report which showed the exact location of the accident and requested him to return to and examine the scene of the accident. Thomas' inspection with the aid of the Highway Patrol report for the first time suggested to Zamloch a potential cause of action against the County of Los Angeles. Thus on May 9, 1969, pursuant to section 911.4, Government Code, appellant for herself and on behalf of the four minors made application to the Board of Supervisors for leave to present a late claim for damages for the death of her husband and injuries to the two minors based upon her allegation that the claim was not presented within the 100-day period by reason of mistake, inadvertence, surprise and excusable neglect. The record shows that the application was filed with the Board of Supervisors six months beyond the 100-day period within which to file a claim pursuant to section 911.2 and more than nine months beyond the accrual of her cause of action. Upon denial of the application, appellant on July 8, 1969, filed the within petition; the petition filed on behalf of the four minors was granted but her petition was denied.

The foregoing, contained in the supporting declarations of Archer Zamloch and Earl Thomas was uncontroverted. At the hearing two county employees were called by appellant as adverse witnesses on the issue of prejudice to the county. The trial court made findings of fact among which included one that had inspection of the scene of the accident with the aid of the California Highway Patrol report been made immediately after appellant engaged the services of Zamloch any potential cause of action against the county would have been suggested at that time; and concluded that appellant's application for leave to present a late claim, although made within one year after the accrual of her cause of action, was not made within a reasonable time, and her failure to present a claim not later than the one hundredth day provided by section 911.2, Government Code, was not through mistake, inadvertence, surprise or excusable neglect and does prejudice the County of Los Angeles. ²

Appellant's position is that the uncontradicted evidence shows good cause for relief upon the ground of mistake, inadvertence and excusable neglect; the application for leave to file late claim was made within a reasonable time because she was first alerted to the condition of the road and that the same was a proximate cause of the accident when Sutton testified on deposition (May 2, 1969) and the application was filed a week later (May 9, 1969); and respondent failed to establish it was prejudiced by the delay.

It is well established that the decision whether a petitioner will be relieved of his default lies within the discretion of the trial judge and appellate courts will not interfere except for an abuse of discretion. (Martin v. City of Madera, 265 Cal.App.2d 76, 79, 70 Cal.Rptr. 908.) We are not unaware that this rule, as pointed out in Viles v. State of California, 66 Cal.2d 24, at pages 28--29, 56 Cal.Rptr. 666, at page 669, 423 P.2d 818, at page 821, 'does not preclude reversal of an order denying relief where adequate cause for such relief is shown by uncontradicted evidence or affidavits of the petitioner, nor should it be employed to defeat the liberal policies of remedial statutes designed for that purpose. (Citation.) It has often been said that denials of such relief by the trial court 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, and any doubts which may exist should be resolved in favor of the application. (Citations.)' (Nilsson v. City of Los Angeles, 249 Cal.App.2d 976, 979, 58 Cal.Rptr. 20; Daley v. County of Butte, 227 Cal.App.2d 380, 389, 38 Cal.Rptr. 693.)

Section 946.6(c), Government Code, provides that a trial court shall relieve a petitioner from the need to present a claim to a public entity before bringing suit if it finds that petitioner applied to the Board of Supervisors for leave to present a late claim 'within a reasonable time not to exceed one year after the accrual of the cause of action' And that '(t)he failure to present the claim was through mistake, inadvertence, surprise or excusable neglect.' Thus a person seeking leave to file a late claim must surmount two hurdles. (Tammen v. County of San Diego, 66 Cal.2d 468, 474, 58 Cal.Rptr. 249, 426 P.2d 753; Martin v. City of Madera, 265 Cal.App.2d 76, 80, n. 1, 70 Cal.Rptr. 908.)

We direct our attention first to the issue of mistake, inadvertence or excusable neglect for if there was a mistake and the same was the actual cause of appellant's failure to comply with the 100-day requirement, the delay was reasonable for obviously her application to the board could not have been made until she discovered the mistake. (Viles v. State of California, 66 Cal.2d 24, 32, 56 Cal.Rptr. 666, 423 P.2d 818.) 'The showing required of a petitioner seeking relief because of mistake, inadvertence, surprise or excusable neglect under section 912, subdivision (b)(1), of the Government Code ³ is the same as required under section 473 of the Code of Civil Procedure for relieving a party from a default judgment. (Citation.)' (Viles v. State of California, 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 669, 423 P.2d 818, 821; Tammen v. County of San Diego, 66 Cal.2d 468, 475--476, 58 Cal.Rptr. 249, 426 P.2d 753; Shaddox v. Melcher, 270 Cal.App.2d 598, 600, 76 Cal.Rptr. 80.) An examination of the cases applying section 473 of the Code of Civil Procedure discloses that it is not every mistake that will excuse a default, the determining factor being the reasonableness of the misconception. (Viles v. State of California, 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 423 P.2d 818.) Likewise this applies to excusable neglect. 'It is not the purpose of remedial statutes to grant relief from defaults which are the result of inexcusable neglect of parties or their attorneys in the performance of the latter's obligation to their clients. (Citation.)' (Tammen v. County of San Diego, 66 Cal.2d 468, 478, 58 Cal.Rptr. 249, 255, 426 P.2d 753, 759.) Tammen also defines excusable neglect, citing A & S Air Conditioning v. John J. Moore Co., 184 Cal.App.2d 617, 620, 7 Cal.Rptr. 592, 'Excusable neglect is 'that neglect which might have been the act of a reasonably prudent person under the same circumstances.' (Citation.)' (Tammen v. County of San Diego, 66 Cal.2d 468, 476, 58 Cal.Rptr. 249, 254, 426 P.2d 753, 758.) 'Although the statutes refer, as a requirement for relief, to 'mistake, inadvertence, surprise or excusable neglect,' only 'neglect' is qualified by the adjective 'excusable.' However, it is uniformly held that for relief on any or all of the stated grounds it must be shown that one's misconception was reasonable, or that it might have been the conduct of a reasonably prudent person under similar circumstances. (Citations.)' (Shaddox v. Melcher, 270 Cal.App.2d 598, 601, 76 Cal.Rptr. 80, 82.)

Appellant asserts that the crucial...