County of San Bernardino v. Super. Ct.

Filed 10/9/08 County of San Bernardino v. Super. Ct. CA4/2

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for writ of mandate. Janet M. Frangie, Judge. Petition granted.

Ruth E. Stringer, County Counsel, and Matthew J. Marnell, Deputy County Counsel, for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

In this matter we have reviewed the petition and considered the record. We have invited real party to file an informal response but he has failed to do so. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U. S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

DISCUSSION

Under Government Code section 945.4, a person seeking to sue a public entity for money or damages must generally first file a claim with that entity. This claim must be filed within six months of the accrual of the plaintiffs cause of action, and if it is not timely filed, the plaintiff must then file, under Government Code section 911.4, a request with the public entity for permission to file a late claim. If such request is denied, the plaintiffs next step is to invoke the provisions of Government Code section 946.6 and petition the court for relief from the claim-filing requirements of section 945.4.

Under subdivision (c)(1) of Government Code section 946.6, when a petition for relief is filed with the court, the court shall relieve the petitioner from the claim-filing provisions in section 945.4 if the court finds (1) that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of section 911.4 [one year after accrual of plaintiffs cause of action] and was denied or deemed denied pursuant to Section 911.6, and (2) that [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 in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4.

The trial court in this case found that a basis for relief existed based on a calendaring error. The error was in fact, counsels ignorance of the time limits and procedures for making a claim against a public entity and his failure to research the matter. Mere ignorance of the claims presentation requirement or of a public entitys involvement is not considered an adequate excuse. (See e.g., Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1163, disapproved on other grounds in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605.) Mistake of counsel is not a basis for granting relief from the claim filing requirements. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65.)

The trial court also relied on the fact that the county apparently had knowledge of the potential claim. However, [i]t is well-settled that claims statutes must be satisfied even in face of the public entitys actual knowledge of the circumstances surrounding the claim. Such knowledgestanding aloneconstitutes neither substantial compliance nor basis for estoppel. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455; accord State of California ex rel. Dept. of Transportation v. Superior Court (1984) 159 Cal.App.3d 331, 335.) Thus, the substantial compliance doctrine does not come into play when the claimant makes no attempt to present a claim on time, but later contends that some other document served the same purpose as a claim. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 (Del Real).)

For example in Del Real, a letter sent to a city employee rather than to the public entity did not constitute a claim as presented when it failed to provide basic information such as plaintiffs name and address, identify the public employee, nature of injuries or money amount claimed. Here too, the letter merely referred to serious injuries but certainly did not even attempt to assert a claim or even indicate that litigation would follow if the matter were not resolved. (Del Real, supra, 95 Cal.App.4th at pp. 768-769.)

Finally, the public entity is not required to show prejudice unless the claimant first shows excusable neglect in failing to file a timely claim. (Rojes v. Riverside General Hospital, supra,203 Cal.App.3d at p. 1163.)

The determination of the trial court in granting or denying a petition for relief under Government Code section 946.6 will not be disturbed on appeal except for an abuse of discretion. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 (Ebersol).)

Although the policy favoring trial on the merits is the primary policy underlying Government Code section 946.6, the trial court has to have an evidentiary basis on which to exercise its discretion. (Ebersol, supra, 35 Cal.3d at p. 435.) Here, the undisputed evidence provided no basis for the trial court to exercise its discretion to grant relief to the claimant.

DISPOSITION

Let a writ of mandate issue to the Superior Court of San Bernardino County directing it to set aside its order granting relief from the requirements of Government Code section 945.4and to issue a new order denying relief.

Petitioner is DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

McKINSTER

J.

We concur:

HOLLENHORST

Acting P. J.

GAUT

J.

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