Clark v. City of Compton

• Decision Date: 29 December 1971
• Court: California Court of Appeals Court of Appeals
• Parties: Sheryl CLARK and Andrew Harris, Plaintiffs and Appellants, v. CITY OF COMPTON, a municipal corporation, Defendant and Respondent. Civ. 38557.

Page 613

99 Cal.Rptr. 613

22 Cal.App.3d 522

Sheryl CLARK and Andrew Harris, Plaintiffs and Appellants, v. CITY OF COMPTON, a municipal corporation, Defendant and Respondent.

Civ. 38557.

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

Dec. 29, 1971.

Mink & Neiman, Los Angeles, and Harry H. Kahn, Culver City, for plaintiffs and appellants.

Buck & Smith and Richard E. Smith, Long Beach, for defendant and respondent.

LILLIE, Associate Justice.

Plaintiffs appeal from order denying their petition for relief from filing their claim against defendant municipality. (Gov.Code, § 946.6.) Plaintiffs, while operator and passenger (respectively) of a Chevrolet automobile, were injured when the vehicle was struck by a Southern Pacific railroad train at a certain intersection within the limits of defendant city; although Southern Pacific was named as a defendant, plaintiffs also sought to hold defendant municipality because it allegedly failed, contrary to certain Vehicle Code sections, to post proper railroad signs and devices warning motorists of oncoming trains.

The accident occurred on January 9, 1970, but the complaint for personal injuries was not filed until December 28 of that year. Previous to such filing, on December 17, plaintiffs through present counsel made application to present their claim to defendant city more than 100 days after the accrual of the cause of action. (Gov.Code, § 911.4.) Supporting this application was declaration of attorney Neiman to the effect that within one week after the accident claimants (plaintiffs) had retained attorney Lester Berman to represent them in all matters pertaining thereto; that at said time both claimants were hospitalized and totally incapable of processing their cases, remaining 'incapacitated and ill for a period exceeding 100 days after the accident'; that thereafter claimants cooperated fully with Berman, giving him all the information they possibly could and on numerous occasions attempted to contact Berman, but he was either out of his office or 'too busy to talk to them'; that on December 11 claimants requested him (Neiman) to represent them, and on December 14 he secured the file from Berman's office; and on such latter date he discovered, through a phone call to Berman's office, that no claim had been filed against the municipality. By letter dated January 18, 1971, Neiman was notified that the above application was rejected, and on February 3 the instant petition for relief was filed.

Supporting the petition was the declaration of Mr. Neiman repeating substantially that contained in his prior declaration, and the declaration of plaintiffs. In pertinent part it was stated by plaintiffs that they received serious injuries and were hospitalized after the accident; they retained attorney Berman within one week thereafter, at which time he represented to them that he was an 'expert' in 'these types of cases and that he was thoroughly familiar with the procedures and law relative to train collision cases'; they gave him all the information they had and felt that he would properly protect their interests; they had no knowledge or experience relative to accident cases and claims against public entities, and relied upon Berman's representation that he would 'take care of everything'; thereafter they continuously attempted to contact Berman, but on almost every occasion were told he was either out of the officer ot too busy to talk to them; although they left their number, he never returned their calls; on one occasion, an investigator for Berman told plaintiffs that they had nothing to worry about, that the firm had great experience in railroad cases and that 'everything was being taken care of.' Reference is then made in their declaration to retaining Mr. Neiman and to the matters mentioned in his declaration. Finally, plaintiffs declared that defendant municipality would not be prejudiced by the relief therein sought since its police department had investigated the accident and prepared a complete accident report.

Both sides agree that the showing required under the governing statute (Gov.Code, § 946.6) is the same as that where relief is sought under section 473, Code of Civil Procedure. (Viles v. State, 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 423 P.2d 818; Tammen v. County of San Diego, 66 Cal.2d 468, 475, 58 Cal.Rptr. 249, 426 P.2d 753.) Thus, section 946.6 expressly provides that a petitioner shall be relieved from the requirement of filing a claim at all if the court finds that a previous application to file a late claim was made within a reasonable time (not to exceed one year) after the cause of action accrued, and thereafter denied, and that the failure to present such claim sooner was due to mistake, inadvertence, surprise or excusable neglect, unless the public entity establishes that it would be prejudiced by the granting of the motion. Tammen declares that a person seeking the relief here sought must show 'both (1) that the application (to file a late claim) . . . was made within a reasonable time not to exceed one year after the accrual of the cause of action And (2) that he falls within one of the four alternative situations set forth in subdivision (b).' ¹ (P. 474, 58 Cal.Rptr. p. 253, 426 P.2d p. 757.) Of those four 'situations,' two only are here applicable: the failure (to file sooner) was due to mistake, inadvertence, etc., or the claimant was physically or mentally incapacitated during the statutory 100 days and by reason thereof failed to present his claim. As shown in Tammen, as well as Viles, it is also the rule that the determination as to whether a person will be relieved of his default lies within the discretion of the trial court, and appellate courts will not reverse except for an abuse of such discretion. Viles, however, declares that this latter rule '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.' (Supra, 66 Cal.2d at pp. 28--29, 56 Cal.Rptr. at p. 669, 423 P.2d at p. 821.)

In the present case the trial court made no findings, nor did it otherwise indicate in writing the reasons for the denial of the petition; in such circumstances, therefore, it does not appear whether the trial court felt that petitioner failed to surmount one or both of the two hurdles mentioned above in Tammen. However, a reporter's transcript of the hearing on the petition has been made part of the record; such transcript discloses that defendant municipality argued the applicability of Black v. County of Los Angeles, 12 Cal.App.3d 670, 91 Cal.Rptr. 104, decided by this court, and upon denial of the petition the trial court stated, 'I think that the Black case is probably controlling.' This statement becomes significantly important since Black discusses all the decisions bearing upon the instant problem, including Martin v. City of Madera, 265 Cal.App.2d 76, 70 Cal.Rptr. 908.

In Martin v. City of Madera, 265 Cal.App.2d 76, 70 Cal.Rptr. 908, the trial court expressly found that neither of the two Tammen hurdles was overcome, and the reviewing court affirmed. There, as here (as well as in Tammen), the petitioner delayed some 11 months before applying for leave to file a late claim. After observing that 'even if we should disagree with the trial judge's decision . . . we would be reluctant to hold that he abused his discretion.' (P. 80, 70 Cal.Rptr. p. 912.) The reviewing court concluded that 'in no event can we hold that plaintiff's more than 11-month delay was reasonable as a matter of law.' (P. 80, 70 Cal.Rptr. p. 912.) In support of the foregoing...