Ebersol v. Cowan

• Citation: 673 P.2d 271,35 Cal.3d 427,197 Cal.Rptr. 601
• Court: California Supreme Court
• Decision Date: 30 December 1983
• Parties: , 673 P.2d 271, 15 Ed. Law Rep. 391 Marian Lee EBERSOL, Plaintiff and Appellant, v. James F. COWAN, as Superintendent, etc., Defendant and Respondent. L.A. 31644.

Page 601

197 Cal.Rptr. 601

35 Cal.3d 427, 673 P.2d 271, 15 Ed. Law Rep. 391

Marian Lee EBERSOL, Plaintiff and Appellant, v. James F. COWAN, as Superintendent, etc., Defendant and Respondent.

L.A. 31644.

Supreme Court of California.

Dec. 30, 1983.

Steven Z. Perren, Allan Ghitterman, George Benz, Ghitterman, Hourigan, Grossman, Finestone & Perren, Ghitterman, Hourigan, Grossman, Finestone & Schumaker, Santa Barbara, Leonard Sacks, Northridge, Victoria J. DeGoff, Berkeley, Wylie A. Aitken, Santa Ana, Harlan Arnold, Beverly Hills, Glen T. Bashore, North Fork, Ray Bourhis, San Francisco, Richard D. Bridgman, Oakland, Edwin Train Caldwell, San Francisco, Robert E. Cartwright, David S. Casey, Jr., San Diego, for plaintiff and appellant.

Ives, Kirwan & Dibble, Martin J. Kirwan and Herbert Jung, Los Angeles, for defendant and respondent.

John K. Van de Kamp, Atty. Gen., Nelson Kempsky, Chief Deputy Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen., Seward L. Andrews and Bruce J. Braverman, Deputy Attys. Gen., Robert F. Carlson, Joseph A. Montoya, Robert L. Meyer and Robert W. Vidor, Los Angeles, as amici curiae, for defendant and respondent.

REYNOSO, Justice.

Marian Lee Ebersol appeals from an order of the Superior Court of Ventura County denying her relief from the claim presentation requirement of Government Code section 945.4. ¹ The sole question before us is whether the trial court abused its discretion in concluding that appellant's failure to timely file a claim against respondent Ventura County Superintendent of Schools was not due to mistake, inadvertence, surprise, or excusable neglect, the statutorily provided bases for relief under section 946.6.

For the reasons discussed below, we conclude that the trial court abused its discretion. We hold that, under the circumstances of this case, Ms. Ebersol's failure to timely identify a possible cause of action against the county superintendent of schools constituted excusable neglect. We remand to the trial court for a determination of whether respondent would be prejudiced by granting relief in this case. ²

Section 911.2 requires that a claim against a public entity relating to a cause of action for personal injury be presented to that entity not later than the 100th day after the accrual of the cause of action. ³ Under section 945.4, presentation and action on, or rejection of, such a claim are conditions precedent to the commencement of suit against the public entity on the cause of action for which the claim is required. ⁴ When a claim has not been timely presented, section 911.4 permits written application to the public entity for leave to file a late claim. ⁵ If, under section 911.6, the public entity denies or fails to act on the application within 45 days, ⁶ section 946.6 ⁷ authorizes a petition to the appropriate court for relief from the provisions of section 945.4.

The court must grant the petition under section 946.6, subdivision (c)(1), if the claimant demonstrates by a preponderance of the evidence (Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 156, 188 Cal.Rptr. 644) that 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. It must also conclude that the failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect. Under section 946.6, subdivision (e), the trial court must make an independent determination upon the petition, relying upon any affidavits in support of, or in opposition to, the petition and any additional evidence received at the hearing on the petition.

The trial court's work is not completed after it determines, if appropriate, that a failure to timely present a claim was through mistake, inadvertence, surprise, or excusable neglect. Under section 946.6, subdivision (c)(1), the court must then determine whether the public entity would be prejudiced by the granting of the petition.

I

The facts are undisputed. On February 17, 1981, while employed as a school bus driver by the Channel Islands Bus System, a private company, Ms. Ebersol was bitten on the left wrist by a mentally retarded teenage boy whom she was transporting to a work training program at the Camarillo Air Base. Unknown to Ms. Ebersol, the work training program was operated under the auspices of the Department of Special Education of the Ventura County Superintendent of Schools (County) which had contracted with the Channel Islands Bus System to provide transportation.

Ms. Ebersol began employment with the Channel Islands Bus System in August 1978. During the three weeks prior to February 17, 1981, she was responsible for picking up mentally retarded teenagers and young adults at their homes in the City of Oxnard and transporting them to the Camarillo Air Base for participation in the work training program.

On February 17, 1981, Ms. Ebersol took Mark Cates from his home in Oxnard to the air base. Enroute, Ms. Ebersol noticed that Mark had rubbed a candy bar on his face and was rocking in his seat. In accordance with the instructions of her supervisor, Ms. Ebersol stopped the bus and walked a few seats back to where Mark was sitting. She tried to calm him. As she spoke, she placed her left hand on Mark's shoulder. Mark turned toward Ms. Ebersol, smiled, and bit her left wrist.

Ms. Ebersol finished the run, returned to the bus yard and informed her supervisor of the incident. Shortly thereafter, she noticed swelling and broken skin where she had been bitten.

Ms. Ebersol went to the Ventura County Hospital at 11:15 that same morning. A doctor wrapped her arm and instructed her not to drive. That afternoon, in response to a call from the hospital, she returned there for the purpose of receiving a tetanus shot.

On that same afternoon, during the time between her hospital visits, Ms. Ebersol telephoned a Santa Paula attorney whom she knew, and explained the incident to him. The attorney informed her that she did not have a case and he was not retained.

The next day, Ms. Ebersol returned to the hospital with a still swollen and painful wrist. She was given an antibiotic. She returned to the hospital again on the following day, and was admitted for three days of intravenous therapy. She was released from the hospital on February 21, 1981. On February 27, she was again admitted to the hospital and received intravenous therapy for 12 days. She was released from the hospital on March 10, 1981, and received outpatient physical therapy for the next seven days.

On March 13, 1981, Ms. Ebersol contacted a Ventura attorney recommended by her father through a Florida attorney. The Ventura attorney also advised that she had no case and was not retained.

Ms. Ebersol was readmitted to the hospital on March 19, and remained there until March 27, 1981. Her condition was finally diagnosed as "Volkmann's contracture." This condition, resulting from the bite, involves tissue degeneration which results, as in Ms. Ebersol's case, with the hand going into a claw position.

Ms. Ebersol underwent surgery and her hand was put into a surgical cast on March 25, 1981. This cast was removed on April 2, and a plaster cast applied. The plaster cast was removed after two weeks and a fiberglass cast was applied. On May 2, the fiberglass cast was removed. On June 9, a new cast was applied. Ms. Ebersol is apparently still undergoing medical treatment.

During the period from March 14 to June 11, 1981, Ms. Ebersol telephoned seven additional attorneys, all of whom she had located in the yellow pages. Not one of these attorneys expressed an interest in her case and none of them advised her regarding the nature of her claim.

Unknown to Ms. Ebersol, on May 28, 1981, the 100-day limitation for filing a claim against the County expired under section 911.2.

On June 11, 1981, Ms. Ebersol went to the Ventura law firm which now represents her and to which she was referred by a former coworker. She initially met with a paralegal employed by the firm. The paralegal advised Ms. Ebersol that she had a workers' compensation claim. Attorney Steve Perren joined the meeting, and indicated that while Ms. Ebersol did have a workers' compensation claim, she did not appear to have any claim for personal injuries on the basis of a "third-party" action.

Later that afternoon, Mr. Perren discussed the case with another partner of the law firm. They determined that if the agency responsible for the work training program kept records on the care and well-being of the youths who participated therein, then a third-party action may lie against that agency. They determined that under the rule set forth in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, if the agency knew or should have known of the dangerous propensities Mark Cates exhibited in the instant case, it might have had a duty to advise persons foreseeably coming in contact with the student.

Mr. Perren contacted Ms. Ebersol that afternoon and set an appointment for the first available date, June 16, 1981. On June 16, Ms. Ebersol and Mr. Perren discussed the facts of the case in more detail. Mr. Perren tried without success to identify by telephone the agency responsible for the work training program. The following day, after many additional telephone calls, Mr. Perren ultimately determined that the program was operated under the auspices of the County. Mr. Perren notified Ms. Ebersol, who retained Mr. Perren to pursue her claim.

On June 26, 1981, 127 days after the accrual of her cause of action, Ms. Ebersol presented to the County a written application for leave to file a late claim pursuant to section 911.4. Attached thereto was a proposed claim against the governmental entity complying with section 910. On July 1, 1981, the application was summarily rejected by a letter signed by the assistant...