Flores v. Board of Supervisors

• Decision Date: 15 December 1970
• Citation: 91 Cal.Rptr. 717,13 Cal.App.3d 480
• Court: California Court of Appeals Court of Appeals
• Parties: , 55 A.L.R.3d 925 Paula M. FLORES and Ruben Flores, Petitioners and Appellants, v. BOARD OF SUPERVISORS, COUNTY OF LOS ANGELES, Defendant and Respondent. Civ. 36411.

Page 717

91 Cal.Rptr. 717

13 Cal.App.3d 480, 55 A.L.R.3d 925

Paula M. FLORES and Ruben Flores, Petitioners and Appellants, v. BOARD OF SUPERVISORS, COUNTY OF LOS ANGELES, Defendant and Respondent.

Civ. 36411.

Court of Appeal, Second District, Division 2, California.

Dec. 15, 1970.

Arnold, Smith & Schwartz, Terence J. Mix, Jerome Smith, Los Angeles, for petitioners-appellants.

John D. Maharg, County Counsel, Van Hagenbaugh and Michael Thomas, Los Angeles, for defendant-respondent.

ROTH, Presiding Justice.

This is an appeal from an order denying a petition for relief under section 946.6 of the Government Code from the tardy filing of a claim under section 911.2 of that Code.

On March 15, 1969, appellants' child was delivered at the Los Angeles County-University of California Medical Center (Medical Center). Allegedly by reason of medically inappropriate procedures, a depressed skull fracture was occasioned during delivery and as a consequence the child died on the day of its birth.

Government Code, section 911.2 requires that a claim relating to a cause of action for death or for injury to a person be presented to the public entity involved not later than the 100th day after the accrual of the cause of action. At bench, that day would have been June 23, 1969.

On June 5, 1969, appellants contacted the firm of attorneys representing them on this appeal. They were advised of the difficulties inherent in a medical malpractice suit and reminded that only 18 days remained to file a claim against Medical Center. Appellants were uncertain whether they wanted to proceed, but nevertheless signed--by appellant Mr. Flores, only--medical authorization forms in order to 'expedite the matter of obtaining the hospital records.' No retainer agreement was signed and no advance toward costs was deposited by appellants with the law firm.

On June 12, Mr. Flores telephoned the firm and requested the firm to proceed with their claim. No costs were advanced. On June 16, a request having been made therefor, appellants remitted $30.00 to cover the costs of photocopying service for copies of hospital records. On June 23, the last day to file the claim, the law firm assertedly received a telephone call from the copying service to the effect that Medical Center would not allow the record to be copied unless appellants agreed to sign a document granting a lien on their case to the County of Los Angeles.

Thereafter, various documents relating to the hospital records were passed between the copying service, appellants, the law firm and Medical Center until, 123 days having elapsed from the date of the child's death, an Application For Leave to Present a Late Claim was filed pursuant to the provisions of Government Code, section 911.4. The legally salient fact for the purpose of this appeal is the candid admission of appellants' attorneys that the lateness of the claim was due to their failure to open a file which in turn would have reminded them of the 100-day limitation upon the presentation of appellants' claim.

After the critical oversight of appellants' attorneys, compounded by the assserted request for a lien by the hospital and the copying service, appellants' attorneys religiously followed the statutory requirements in pressing appellants' claim. The Los Angeles County Board of Supervisors did not act on appellants' Application to file a late claim. Such inaction amounted to a denial thereof. (Gov.Code, § 911.6(a)). Appellants then filed a petition under the authority of Government Code, section 946.6 in the superior court which is before as for an order relieving them from the requirement of filing a claim. The petition was denied by the trial court on the grounds that the late presentation of the claim was not due to excusable neglect, inadvertence, mistake or surprise.

We think it was improperly denied.

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. (Viles v. State of California, 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 423 P.2d 818.) An order denying relief (under Code of Civil Procedure, § 473) is subject to closer appellate scrutiny than one granting relief and doubt will be resolved in favor of the party attempting to get to trial. (Daley v. County of Butte, 227 Cal.App.2d 380, 389, 38 Cal.Rptr. 693.) Under the facts as they have been presented in the affidavits we conclude that adequate grounds for relief have been presented in the case at bench.

'While not every mistake of an attorney constitutes excusable neglect (see, for example, cases cited in 3 Witkin Cal. Procedure 2108), calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable. (Haviland v. Southern Cal. Edison Co., 172 Cal. 601, 605, 158 P. 328, 330 ('It will hardly be claimed that the inadvertent entry of a wrong date in the book or journal in which defendant's attorneys kept a record of the proceedings to be taken by them could not fairly have been held by the trial court to furnish sufficient ground for relief under the remedial provisions of section 473'); Van Dyke v. MacMillan, supra, 162 Cal.App.2d 594, 328 P.2d 215; Stub v. Harrison, 35 Cal.App.2d 685, 96 P.2d 979 (before expiration of time to plead, son of defendant's attorney seriously injured, accumulation of work and distress caused attorney to forget due date of pleading); Soda v. Marriott, 130 Cal.App. 589, 20 P.2d 758, (attorney appointed to bench, office disbanded, unfinished business handled by one remaining attorney, cost bill filed late); City of Los Angeles v. Board of Supervisors, supra, 105 Cal.App. 199, 287 P. 135 (through oversight of calendar clerk in legal division of city department opening brief on appeal not timely filed); H. G. B. Alexander & Co. v. Martz, 90 Cal.App. 360, 265 P. 881 (calendar clerk employed by attorney for eight...