Moore v. State of California

• Citation: 157 Cal.App.3d 715,203 Cal.Rptr. 847
• Decision Date: 25 June 1984
• Docket Number: No. B001666,B001666
• Court: California Court of Appeals Court of Appeals
• Parties: Ruby Gross MOORE, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Page 847

203 Cal.Rptr. 847

157 Cal.App.3d 715

Ruby Gross MOORE, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

No. B001666.

Court of Appeal, Second District, Division 7, California.

June 25, 1984.

Hearing Denied Aug. 22, 1984.

Harney & Moore and George E. Moore, Law Offices of David M. Harney, Greines, Martin, Stein & Richland and Alan G. Martin, Los Angeles, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen., Robert H. Francis and Vera Fisch, Deputy Attys. Gen., for defendant and respondent.

JOHNSON, Associate Justice.

Ruby Gross Moore appeals from the denial of her petition, under Government Code section 946.6, ¹ for relief from the requirements of section 945.4, which makes presentation of a claim a prerequisite to suit against, in this case, the State of California ("the state"). The circumstances of this case are unusual if not unprecedented: Ms. Moore filed a timely claim for damages for her injuries but was required to follow the Government Code's procedures for late claims after the lawsuit based upon her timely, rejected claim was dismissed on the grounds that that claim did not sufficiently embrace the cause of action pled. We have concluded that, given the showing of reasonable mistake below and the state's failure there even to attempt to demonstrate prejudice, Ms. Moore should have been allowed the relief she sought, and we therefore reverse.

I. FACTS AND PROCEEDINGS BELOW

The instant proceeding involves Ms. Moore's efforts to proceed on the merits of a cause of action against the state for negligence in treatment of injuries Ms. Moore suffered while confined at Metropolitan State Hospital. On May 9, 1981, Ms. Moore was assaulted by another patient at that hospital and sustained a fractured jaw. Within 100 days of this occurrence and of attendant treatment for the injury, she filed, through her counsel, a claim with the State Board of Control. ² The claim alleged substantial injuries and damages resulting from negligence by employees of the state; its full text is set out in the margin. ³

While this claim was under consideration by the Board of Control, Ms. Moore was examined by an oral surgeon at the instance of counsel. On September 14, 1981, the physician reported in writing that Ms. Moore's serious complaints, including inability to chew any solid foods, misaligned facial appearance, and numbness of the lower jaw, cheecks, and nose, were attributable to insufficient and improper treatment of the May 9, 1981 fracture. (According to Ms. Moore's account to the physician, her treatment had been limited to little more than an x-ray taken a full week after she was assaulted.) On September 15, 1981, counsel received this report, and this was when he and his client first discovered that medical negligence specifically was implicated. On the same day, the Board of Control summarily denied Ms. Moore's claim. However, notice of that denial, including the statutorily prescribed warning that suit must be filed within six months (see section 913), was not mailed until December 3, 1981.

Ms. Moore and her counsel proceeded to file a superior court action against the state for "medical negligence." The complaint was served upon the Attorney General in May of 1982, and the state responded with a demurrer, which was set for hearing on September 7, 1982. The grounds of the demurrer were that Ms. Moore's timely claim against the state did not sufficiently support or coincide with the cause of action pleaded. (Compare Nelson v. State of California (1982) 139 Cal.App.3d 72, 188 Cal.Rptr. 479 and cases discussed therein.) After the filing of opposition asserting a number of colorable grounds in support of the claim and the complaint, the demurrer was heard and was sustained, with leave to amend.

Having thus suffered an adjudication that her previous claim was not a sufficient predicate to the cause of action she sought to assert, Ms. Moore immediately--i.e., on September 10, 1982, three days after the ruling on the demurrer--filed with the Board of Control an application for leave to present a late claim under section 911.4. The Board failed to act upon this application within 45 days of its filing, and the application was accordingly deemed denied (§ 911.6, subd. (c)). In the interim, the state's demurrer to Ms. Moore's amended complaint was sustained without leave to amend.

Ms. Moore then commenced the present proceeding by filing a petition under section 946.6. This section provides in relevant part that where an application to present a late claim has been denied pursuant to section 911.6 the court shall relieve the claimant of the necessity to file a claim as prerequisite to suit, upon a petition demonstrating the application was made within a reasonable time not in excess of one year from the accrual of the cause of action and "[t]he failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes that it would be prejudiced if the court relieves the petitioner.... " (§ 946.6, subd. (c)(1).) The petition was supported by exhibits and a declaration of Ms. Moore's counsel. In opposition, the state filed a brief memorandum of points and authorities which disputed that Ms. Moore's failure had been "through mistake, etc." but did not assert that the state would be prejudiced by the granting of relief. The petition was heard by the same judge who had heard and sustained the demurrers to the former pleadings, and was denied.

II. DISCUSSION

As noted above, there are two elements a petitioner must establish under section 946.6. First, he must show that an application for leave to present a late claim was filed within a reasonable time not to exceed one year from accrual of the cause of action upon which suit is sought to be brought. Second, the petitioner must establish one of several alternative excuses for the failure to present a timely claim in the first instance; these include minority or mental or physical incapacitation during all of the time specified by section 911.2 for presentation of the claim (subds. (c)(2), (c)(3)); that the person who sustained the injury or loss sought to be redressed died before expiration of the time for claim presentation (subd. (c)(4)); or, as asserted in the present case, that the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect (subd. (c)(1)). If the petition is grounded upon the latter type of excuse and the petitioner establishes it, the statute provides the further qualification that relief shall be granted unless the public entity establishes that it would be prejudiced thereby. (Id.) We proceed to consider these requisites of section 946.6, subdivision (c)(1) as implicated in the present case.

A. The Failure Timely to File a Second Claim and the Correlative Reliance on the Initial Claim Arose from an Excusable Mistake of Law.

In reviewing the trial court's denial of the relief provided for by section 946.6, we are both bound and guided by the Supreme Court's repeated expressions that the statute is to be liberally applied and that particularly close appellate scrutiny should be given to such a denial of relief. The governing rules were most recently restated in Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, 197 Cal.Rptr. 601, 673 P.2d 271, as follows: "Section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary claimant. [Citation.] The remedial policies underlying the statute are 'that wherever possible cases be heard on their merits, and any doubts which may exist should be resolved in favor of the application.' [Citation.] Thus, '[a]n appellate court will be more rigorous in examining the denial of relief than its allowance.' [Citation.]" (Accord, County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 552, 94 Cal.Rptr. 158, 483 P.2d 774; Viles v. State of California (1967) 66 Cal.2d 24, 28-29, 31, 56 Cal.Rptr. 666.)

In applying these rules here, we observe also that the instant case presents particular factual circumstances counseling in favor of allowing Ms. Moore to proceed and against penalizing her by loss of her cause of action. First, Ms. Moore herself is relatively, if indeed not entirely, free of blame: notwithstanding her status as a 63-year-old recent mental patient, she timely retained counsel to pursue her claim and placed the matter in his hands. She thus falls within the class of persons who, "as in previous cases granting relief on the basis of excusable neglect, ... acted diligently to retain legal counsel within the 100-day limitation period." (Ebersol v. Cowan, supra, 35 Cal.3d at p. 437, 197 Cal.Rptr. 601, 673 P.2d 271.) Second, and correlatively, to deny Ms. Moore relief on account of conduct attributable not to her but to her counsel would leave her with the sole remedy of a malpractice claim against that counsel, "[t]he adequacy of [which] remedy ... has been questioned by a number of commentators, and for good reason." (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 906, 187 Cal.Rptr. 592, 654 P.2d 775 (Bird, C.J., dissenting.).) Third and most significantly, this case is unique among those applying section 946.6 in that counsel himself did file a claim against the state well within 100 days of his client's injury. Counsel's own posture thus is distinctly superior to that of counsel in previous cases who failed entirely to invoke the claims procedure timely--and of course in many of those cases relief from that dereliction was afforded upon appellate review. (See, e.g., cases collected and discussed in Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 536-537, 148 Cal.Rptr. 729.)

Quite distinguishable from the foregoing cases or indeed any prior case of which we are aware, the "mistake, inadvertence, surprise or excusable neglect" of counsel...