County of Sacramento v. Superior Court

• Decision Date: 06 May 1980
• Citation: 105 Cal.App.3d 898,164 Cal.Rptr. 724
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF SACRAMENTO, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent, Michael Charles HARDY, Real Party in Interest. Civ. 18931.

Page 724

164 Cal.Rptr. 724

105 Cal.App.3d 898

COUNTY OF SACRAMENTO, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent Michael Charles HARDY, Real Party in Interest.

Civ. 18931.

Court of Appeal, Third District, California.

May 6, 1980.

Bailey, Lea & Brown and David I. Brown, Sacramento, for petitioner.

No appearance for respondent.

Daniel J. Sullivan, Sacramento, for real party in interest.

EVANS, Associate Justice.

Petitioner, County of Sacramento, seeks a writ of mandate to compel the respondent superior court to vacate its order relieving real party in interest (Hardy) from the claim-filing requirements of the California Tort Claims Act. (Gov.Code, § 911.2.) ¹

On March 3, 1978, Hardy was involved in an automobile accident in Sacramento in which he was injured and Cathey Lynn Corrie and her four-month-old daughter were killed. As a result of the accident, felony manslaughter and felony drunk driving charges were filed against Hardy. During the criminal proceedings, Hardy was represented by counsel, and on November 13, 1978, he entered a plea of nolo contendere to the charge of felony drunk driving.

On February 5, 1979, Hardy filed an application for permission to file a late claim against the County of Sacramento which was denied. On April 16, 1979, he filed a petition for judicial relief (Gov.Code, § 946.6, subd. (c)(1)) from the claim-filing requirement which was granted by the respondent court.

Compliance with the governmental claims statutes is mandatory (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454, 115 Cal.Rptr. 797, 525 P.2d 701; Farrell v. County of Placer (1944) 23 Cal.2d 624, 630, 145 P.2d 570); and failure to follow the statutory requirements is fatal to the cause of action against the public entity. (City of San Jose v. Superior Court, supra, 12 Cal.3d at p. 449, 115 Cal.Rptr. 797, 525 P.2d 701.) The claim-filing requirement and the predicates for relief from those requirements were succinctly stated by this court in El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 159 Cal.Rptr. 267.

"Section 911.2 requires that a claim relating to personal injury must be presented to a public entity within 100 days following accrual of the cause of action. When such a claim has not been timely presented, section 911.4 permits written application to the public entity for leave to file a late claim. And if the public entity denies such an application, section 946.6, subdivision (c) (1), authorizes a petition to the superior court for relief from the filing requirement, such relief to be granted 'if the court finds that the application . . . under Section 911.4 was made within a reasonable time not to exceed (one year after the accrual of the cause of action) . . . and that . . . the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect . . . .' (Italics added.) Correlatively, section 911.4, subdivision (b), requires that '(t)he application shall be presented to the public entity . . . within a reasonable time not to exceed one year after the accrual of the cause of action . . . .' (Italics added.)

"Thus a court does not relieve a potential plaintiff of the claim requirements of section 945.4, as a matter of course; he must first demonstrate two essentials by a preponderance of the evidence (Shaddox v. Melcher (1969) 270 Cal.App.2d 598, 601, 76 Cal.Rptr. 80); first, that the section 911.4 application was presented within a reasonable time, and second, that the failure to file a timely claim was due to mistake, inadvertence, surprise or excusable neglect. (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 474, 58 Cal.Rptr. 249, 426 P.2d 753.) The 'mistake, inadvertence, surprise or excusable neglect' concept is expressly directed to the 100-day period of section 911.2 and not to the 'reasonable time not to exceed (one year)' period of sections 911.4 and 946.6. 'The showing required of a petitioner seeking relief under the authority of Government Code, section 946.6 on the grounds of mistake, inadvertence, surprise or excusable neglect is the same as required under section 473 of the Code of Civil Procedure for relieving a party from a default judgment.' (Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 483, 91 Cal.Rptr. 717, 55 A.L.R.3d 925.)" (Fn. omitted. Id., at pp. 61-62, 159 Cal.Rptr., at pp. 269-70.)

The judicial grant of a petition for relief carries an implication that the requirements of section 946.6 were met. We fail to find any evidence presented of a legally cognizable mistake, inadvertence, surprise or excusable neglect in connection with real party in interest's failure to act within 100 days.

The mistake asserted by Hardy is that he was ". . . mistaken in determining exactly what impact filing a claim against the City (sic ) for civil damages would have . . . ." and his attorney's "mistaken" belief that filing the claim might adversely affect his negotiations with the district attorney regarding the criminal charges against him. It has been held that, under certain circumstances, a claimant's mistaken belief as to the existence (Syzemore v. County of Sacramento (1976) 55 Cal.App.3d 517, 127 Cal.Rptr. 741), or applicability of the claims statutes (Viles v. State of California (1967) 66 Cal.2d 24, 56 Cal.Rptr. 666, 423 P.2d 818), or even mere forgetfulness on the part of claimant's attorney (Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 91 Cal.Rptr. 717), may be considered adequate mistakes to justify relief under section 946.6, subdivision (c)(1). However, in those instances, the failure to timely file was not deliberate. Hardy intentionally chose not to file.

A deliberate decision not to comply with the claims statutes cannot be considered "mistake, inadvertence, surprise or excusable neglect." The so-called "mistake" here asserted related to his criminal trial strategy and was not concerned with the claims statutes. Under the circumstances his conduct was beyond the scope of the remedial statute.

"(U)ncontradicted evidence that a mistake was made is not sufficient absent a substantial showing that the true facts could not have been ascertained through the exercise of...