Viles v. State

• Decision Date: 24 February 1967
• Citation: 66 Cal.2d 24,423 P.2d 818,56 Cal.Rptr. 666
• Court: California Supreme Court
• Parties: , 423 P.2d 818 Jack D. VILES, an Incompetent Person, etc., Plaintiff and Appellant, v. STATE of California, Defendant and Respondent. Sac. 7771. In Bank

Page 666

56 Cal.Rptr. 666

66 Cal.2d 24, 423 P.2d 818

Jack D. VILES, an Incompetent Person, etc., Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Sac. 7771.

Supreme Court of California,

In Bank.

Feb. 24, 1967.

Rehearing Denied March 22, 1967.

John R. Saldine, Sacramento, for plaintiff and appellant.

Harry S. Fenton, Robert F. Carlson, Kenneth G. Nellis and Marc Sandstrom, Sacramento, for defendant and respondent.

McCOMB, Justice.

Plaintiff appeals from a minute order denying his petition for leave to present a claim against the State Board of Control (hereinafter called the 'board') after the statutory period of 100 days had expired but before the expiration of one year from the date of the accrual of the cause of action, pursuant to section 912 of the Government Code. ¹

Facts: Plaintiff's wife, Lula Nadine Viles, died from injuries sustained September 12, 1963, on U.S. Highway 50, a California state highway near Sacramento, when her automobile collided headon with one operated by Charles E. Sinkey. Following the original impact, two other automobiles were involved in the accident. Plaintiff's minor son was also severely injured in the collision.

Plaintiff's claim for the wrongful death of his wife and for property damage to his automobile is based on the asserted dangerous and defective condition of the highway, in that there was a difference in the elevation between the eastbound and westbound lanes of travel, and, because the center dividing stripe was not consistent with the difference in color of the light concrete eastbound lanes and the dark macadam westbound lanes, some traffic followed the joinder mark between the light and dark pavement while other traffic followed the center dividing line.

Following the collision, plaintiff was contacted by representatives of the insurance companies insuring his vehicle and that of Mr. Sinkey. He was informed by one or both of the insurance representatives that he had one year in which to file an action for wrongful death and, relying on this information, he did not consult an attorney until June 2, 1964, when he first learned that a claim had to be presented not later than the 100th day after the accrual of the cause of action (Gov.Code, § 911.2).

On June 16, 1964, plaintiff and his minor son applied to the board for leave to file a late claim pursuant to section 911.4 of the Government Code. On July 21, the board granted the minor's application (Gov.Code, § 911.6) but denied plaintiff's application. He then filed a petition in the superior court to present a late claim pursuant to section 912, which, at the time this proceeding was instituted, provided in pertinent part: '(b) The superior court shall grant leave (to file a late claim) if the court finds that the application to the board (to file late) was made within a reasonable time not to exceed one year after the accrual of the cause of action and was denied * * * and that:

'(1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity * * * establishes that it would be prejudiced if leave to present the claim were granted;* * *

'* * *

'(e) The court shall make an independent determination upon the application. The determination shall be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.' ²

In opposition to the petition, an attorney for the state filed a declaration asserting that the state would be prejudiced in its investigation if late filing were permitted; that no employee or representative of the state misled plaintiff; and that due to the delay it will be much more difficult to establish the condition of the highway on the date of the accident.

Plaintiff filed a counterdeclaration of John Hartney, a professional 'investigator and negotiator of claims,' who asserted that he investigated the accident; that he arranged for the taking of photographs and purchased additional photographs of the scene of the collision, some of which were taken at the scene before the vehicles were removed; that he arranged for an engineering investigation of the site; that he obtained statements from witnesses and made an extensive search for additional witnesses; that independent investigations were carried on by automobile insurance carriers insuring Mrs. Viles with respect to her medical pay coverage and collision coverage, and by investigators on behalf of Mr. Purdy and Mr. Beamis, the owners of the other cars involved in the accident; and that after the filing of plaintiff's petition he revisited the site and the roadway remained unchanged since the time of the collision.

The petition was denied and, since no written findings were made, we do not know whether the trial judge found (a) that plaintiff had not met the burden of proving that his failure to present his claim to the board within 100 days was through mistake, inadvertence, surprise or excusable neglect, or (b) that his failure did result from mistake but nevertheless the application to the board for permission to file a late claim was not made within a reasonable time not to exceed one year from the date of the accrual of the cause of action, or (c) that the failure to file on time was due to mistake but that the state established that it would be prejudiced by the late filing. ³

The sole question for us to determine is whether the trial court abused its discretion in denying the petition.

There is a well-established rule that appellate courts will not reverse the trial court except for abuse of discretion. This rule, however, does not preclude reversal of an order denying relief where adequate cause for such relief is shown by uncontradicted evidence or affidavits of the petitioner, nor should it be employed to defeat the liberal policies of remedial statutes designed for that purpose. (Cf. Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 379(18), 15 Cal.Rptr. 90, 364 P.2d 266.) It has often been said that denials of such relief by the trial court are scanned more carefully than cases where the court granted the relief, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application. (Beckley v. Reclamation Board, 48 Cal.2d 710, 716--718(4), 312 P.2d 1098; Brill v. Fox, 211 Cal. 739, 743--744(3), 297 P. 25; Waite v. Southern Pacific Co., 192 Cal. 467, 470(2), 221 P. 204; Gore v. Witt, 149 Cal.App.2d 681, 685(2), 308 P.2d 770.)

The showing required of a petitioner seeking relief because of mistake, inadvertence, surprise or excusable neglect under section 912, subdivision (b) (1), of the Government Code is the same as required under section 473 of the Code of Civil Procedure for relieving a party from a default judgment. (See Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar) § 8.29, pp. 388--389; n. 4, p. 711.)

An examination of the cases applying section 473 of the Code of Civil Procedure discloses that not every mistake of law is excusable (A & S Air Conditioning v. John J. Moore Co., 184 Cal.App.2d 617, 620(7, 9), 7 Cal.Rptr. 592; Fidelity Fed. Sav. & Loan Assn. v. Long, 175 Cal.App.2d 149, 154(5), 345 P.2d 568; Security Truck Line v. City of Monterey, 117 Cal.App.2d 441, 445(2), 256 P.2d 366, 257 P.2d 755) but that an honest mistake is excusable, the determining factor being the reasonableness of the misconception (Waite v. Southern Pacific Co., supra, 192 Cal. 467, 470--471, 221 P. 204; Beard v. Beard, 16 Cal.2d 645, 648(2), 107 P.2d 385; Svistunoff v. Svistunoff, 108 Cal.App.2d 638, 645--646(7), 239 P.2d 650; Fickeisen v. Peebler, 77 Cal.App.2d 148, 151--152(1), 174 P.2d 883; Roehl v. The Texas Co., 107 Cal.App. 708, 714(3)), 291 P. 262.

It is uncontradicted that plaintiff was not aware until June 2, 1964, that he was required to present a claim to the board. Based on information received from insurance adjusters experienced in claims work that he had a year in which to bring an action, plaintiff erroneously concluded that an action against the state could be brought in the same manner and within the same time limits as one against a private person, and we cannot say that this was an unreasonable misconception nor one that the average prudent man in the conduct of important business affairs would not have formed. (See Elms v. Elms, 72 Cal.App.2d 508, 513(2--5), 164 P.2d 936.)

A review of the public tort liability statutes and the changes made in 1963 demonstrates an awareness by the Legislature that the various claims statutes were not only inconsistent but that they also provided a technical defense against determination of liability on the merits. At the time of the accident on September 12, 1963, claims against the state for death or physical injury could be presented up to two years, except for certain claims arising out of the operation of motor vehicles by state personnel, which were required to be presented within one year. Claims against local public entities were required to be presented within 100 days in some cases and within one year in others. A complaint could be filed against a local public entity at the same time the claim was presented, while presentation of a claim was a prerequisite to bringing an action against the state. Because the different claims presentation procedures then existing might confuse claimants, and possibly attorneys, the Law Revision Commission recommended (see 4 Cal.Law Revision Com.Rep. (1963) pp. 1008--1009), and the Legislature in 1963 adopted, a uniform procedure (with certain exceptions) for claims for money or damages against both the state and local public entities, requiring them to be presented within 100 days. (Gov.Code, §§ 905, 905.2, 911.2.)

Prior to September 20, 1963, the effective date of the 1963 act, where claims were required to be presented within 100 days (claims...