Drummond v. County of Fresno

• Decision Date: 31 July 1987
• Citation: 193 Cal.App.3d 1406,238 Cal.Rptr. 613
• Court: California Court of Appeals Court of Appeals
• Parties: Douglas L. DRUMMOND, Plaintiff and Appellant, v. COUNTY OF FRESNO et al., Defendants and Respondents. F006667.

Page 613

238 Cal.Rptr. 613

193 Cal.App.3d 1406

Douglas L. DRUMMOND, Plaintiff and Appellant, v. COUNTY OF FRESNO et al., Defendants and Respondents.

F006667.

Court of Appeal, Fifth District, California.

July 31, 1987.

Review Denied Oct. 14, 1987.

Hinton & Pashkowski, Jay S. Linderman, Tanya Pashkowski and Paul D. Fogel, Walnut Creek, for plaintiff and appellant

Stammer, McKnight, Barnum & Bailey, Galen McKnight, Eldridge, Anderson & Weakley, James D. Weakley, Fresno, for defendants and respondents.

OPINION

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

Appellant, Douglas L. Drummond, was severely injured in a swimming accident June 3, 1984, when he was 22 years old. In his complaint, appellant alleges that respondents, Fresno County and Kings County, are responsible for his injuries. However, a claim against respondents was not filed within 100 days of the accident as required by Government Code section 911.2. ¹

Appellant applied to respondents for leave to file a late claim under section 911.4 on February 15, 1985. Fresno County denied the application. Kings County did not respond to the application; thus, it was denied by operation of law. (§ 911.6, subd. (c).)

Appellant petitioned the superior court for an order relieving him from the claim filing requirements as authorized by section 946.6. The court concluded that appellant had shown that he was mentally and physically disabled during the entire 100-day period to an extent sufficient to constitute excusable neglect under section 946.6, subdivision (c)(1) and that he was also physically and mentally disabled during this period within the meaning of section 946.6, subdivision (c)(3). But the court then found appellant had not proved that his application to respondents for relief under section 911.4 was made within a reasonable time after the accrual of the cause of action and denied the petition.

STATEMENT OF FACTS

On June 3, 1984, appellant was swimming in the Kings River at Laton-Kingston Park when he struck his head on the river bottom and broke his neck. This accident rendered appellant a permanent quadriplegic.

Appellant was hospitalized continuously until November 10, 1984. In July 1984, appellant underwent major surgery when a cervical spinal fusion was performed.

Dr. John Edwards, appellant's treating physician, testified in deposition that when appellant came under his care on June 7, 1984, appellant was able to carry on a rational conversation and had the capacity to request a lawyer. At the end of the third month, appellant was physically able During the first month of his hospitalization, appellant was depressed and fairly emotional but did not withdraw or refuse therapy. Initially, he saw his close family and watched television. Appellant was able to read if someone held the book for him but tired easily. He was also able to use the phone with assistance and talked with family members and "concerned citizens." Sometime during the first three months, a speaker was installed in his phone so he could use it more easily.

to have a call placed to an attorney. While in the hospital, appellant's business affairs concerning insurance and financial matters were handled by his mother because appellant could not write. However, appellant was able to make plans for his home disposition.

In July, appellant began daily workouts at the gym, and his spirits improved. At the end of July he began using a device to enable him to write. He also went to a friend's home for the weekend.

By September, appellant was actively involved with his therapists. He was participating in all in-house recreational activities and going on social outings.

Appellant admitted in deposition that while he was in the hospital he could have had someone contact a lawyer for him if he had wanted to do so. However, he was preoccupied completely with his injuries and paralysis and the drastic and sudden changes which they caused in his life. Appellant explained his state of mind in his declaration:

"I was depressed, frightened and extremely worried both about my injuries and physical limitations and about my future with those disabilities. It was critically important for me, as far as I was concerned, to concentrate all of my energies on recuperation and rehabilitation therapy during the entire period of my hospitalization. There was virtually nothing else on my mind during the entire period I was in the hospital."

Appellant further declared that during the entire period of his hospitalization, he was unaware of any potential cause of action against a public entity or the 100-day claim filing period. He first learned that a claim had to be filed against a public entity when he talked with an attorney on February 12, 1985.

With respect to an explanation for the delay between being released from the hospital on November 10, 1984, and contacting a lawyer on February 12, 1985, appellant stated:

"Because of my paralysis and physical disabilities and my mental preoccupation with them, I did not talk to a lawyer or even think about a possible lawsuit related to my swimming accident until some time after I got out of the hospital." (Emphasis added.)

No other evidence concerning this period was presented.

DISCUSSION

I. We cannot find the trial court abused its discretion when it held that appellant's application for leave to file a late claim was not made within a reasonable time.

Section 911.2 requires that a claim relating to a cause of action for personal injury be presented to the public entity within 100 days of the accrual of the cause of action. Under section 945.4 presentation of such a claim is a condition precedent to the commencement of suit against the public entity. 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 requirements.

The court must grant the petition under section 946.6, subdivision (c) if the claimant demonstrates by a preponderance of the evidence that (1) the application to the public entity under section 911.4 was made within a reasonable time not exceeding one year after the accrual of the cause of action and (2) one of the other four requirements listed in section 946.6, subdivision (c) was met. The two requirements pertinent here are that (1) the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes it would be prejudiced if relief were granted (§ 946.6, subd. (c)(1)) or (2) the person who sustained the alleged injury was physically or mentally incapacitated during the entire 100 days and by reason of such disability failed to present a claim during such time. (§ 946.6, subd. (c)(3).)

"The determination of the trial court in granting or denying a petition for relief under section 946.6 will not be disturbed on appeal except for an abuse of discretion. [Citation.] Abuse of discretion is shown where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief." (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, 197 Cal.Rptr. 601, 673 P.2d 271, fn. omitted.) "However, the trial court's discretion to grant relief is not 'unfettered.' [Citation.] 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." ' " (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275, 228 Cal.Rptr. 190, 721 P.2d 71.)

"Section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary...." (Ebersol v. Cowan, supra, 35 Cal.3d 427, 435, 197 Cal.Rptr. 601, 673 P.2d 271.) The remedial policy underlying the statute is that wherever possible cases should be heard on their merits. (Ibid.) Thus, a denial of such relief by the trial court is examined more rigorously than where relief is granted and any doubts which may exist should be resolved in favor of the application. (Viles v. State of California (1967) 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 423 P.2d 818.)

Here, the trial court found that appellant had proved by a preponderance of the evidence that he was disabled during the initial 100-day period and further that his disability constituted excusable neglect. However, the court then concluded that appellant had not proved that his application to respondents was filed within a reasonable time of the accident although it was filed within one year. Over eight months had elapsed between the accident and the filing of the application. Over three months had elapsed between appellant's...