Filed 3/29/18 Davis v. Contra Costa Community College Dist. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


JUNE ELIZABETH DAVIS,
Plaintiff and Appellant,
v.
CONTRA COSTA COMMUNITY COLLEGE DISTRICT,
Defendant and Respondent.

A146990

(Contra Costa County
Super. Ct. No. MSN15-1505)


Plaintiff June Elizabeth Davis appeals from an order denying her Government Code section 946.6 petition for relief from the claim presentation requirement of section 945.4. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 12, 2014, Davis allegedly suffered a severe injury at the John and Jean Knox Performing Arts Center (the center), located on the campus of Contra Costa College in San Pablo (the college) in Contra Costa County (the county). The college is one of the colleges “belonging to” defendant Contra Costa Community College District (the district). The time to file a timely claim against the district expired on June 12, 2015, within six months of the accrual of the cause of action. (§ 911.2, subd (a).)
In late May 2015, Davis consulted and later retained counsel regarding the filing of a lawsuit. Counsel determined that any possible governmental claim had to be filed by June 12, 2015. He attempted to identify the ownership of the center and identify other potential responsible parties by accessing websites maintained by the center and the college. Counsel also accessed the website of the district because he had determined that the college might “fall under the control of” the district. However, counsel failed to find on the district’s website any information, instructions, or forms concerning the presentation of a governmental claim against the district. Counsel’s assistant, using “the Google on-line search engine,” was directed to a “link referencing” the district’s “ ‘Board Policy 5028’ ” regarding filing claims against the district. He was unable to successfully access the link despite several attempts to do so. Counsel then conducted further computer searches to determine whether the district had filed as a public agency in the Secretary of State’s Roster of Public Agencies, as required in section 53051. Accessing the website maintained by the Secretary of State, counsel found a Roster of Public Officials, also known as the California Roster (hereinafter referred to as Roster of Public Officials). Counsel believed he had found the proper roster to determine whether the district had filed as a public agency as required in section 53051. When counsel did not find the district listed in the Roster of Public Officials, counsel believed the district was not a separate entity for purposes of claim presentation under the Government Code.
On June 10, 2015, two days before the expiration of the statutory period for presenting a timely claim, counsel presented three claims: one claim was presented to the State of California (the state), identifying the district as the responsible party; one claim was presented to the county, identifying the district as the responsible party; and another claim was presented to the county, identifying the county as the responsible party.
Within a week of presenting the claims, counsel received letters from the county and the state, informing him that neither entity was the proper party for service of claims concerning accidents at the center. Counsel attempted and was successful in accessing a computer link to the district’s Board Policy 5028 regarding claim presentation. On June 18, 2015, Davis presented a timely application for permission to serve a late claim on the district. The district timely responded, denying Davis’s application to submit a late claim, without comment.
Thereafter, counsel filed a timely petition in the superior court for relief from the section 945.4 claim presentation requirement. The district opposed the petition. After a hearing, the court denied the petition, finding that “Petitioner failed to establish by a preponderance of the evidence that her failure to timely present a claim was reasonable when tested by the objective ‘reasonably prudent person’ standard. Based on arguments and re-review of the pleadings, the Court is convinced that a reasonably prudent person would, at the very least, have made a telephone call before concluding that since the District was not listed on the ‘California Roster’ that it was a part of Contra Costa County, not a separate public entity. He ‘overlooked’ the Roster of Public Agencies when he went to the California Secretary of State’s website, which also would have answered his question. Moreover, with the word ‘District’ as part of the entity’s name, a reasonably prudent attorney would have been on notice that it was not a part of Contra Costa County. Missing three opportunities to obtain the necessary information to serve the Government Claim on the correct entity does not constitute the excusable neglect or mistake which a reasonably prudent person would make.” Davis filed this timely appeal. (See Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, fn. 8.)
DISCUSSION
The applicable law and standard of review is well settled. “Section 911.2 requires that a claim for personal injury . . . against a public entity be filed ‘not later than six months after the accrual of the cause of action.’ Sections 911.6 and 946.6, subdivision (c)(1) provide relief for late claimants who file their claims against a public entity beyond the six-month filing period, if filed within a reasonable time not to exceed one year after the accrual of the cause of action, ‘where the claimants established by a preponderance of the evidence that failure to present their claim on time was through mistake, inadvertence, surprise or excusable neglect.’ [Citations.]” (People ex. rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 43.) “The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief. Relief on grounds of mistake, inadvertence, surprise or excusable neglect is available only on a showing that the claimant’s failure to timely present a claim was reasonable when tested by the objective ‘reasonably prudent person’ standard. The definition of excusable neglect is defined as ‘neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.’ [Citation.]” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293 (Department of Water & Power).)
“ ‘The granting or denial of the petition for relief under section 946.6 rests within the discretion of the trial court and its determination will not be disturbed on appeal except for abuse of that discretion. [Citations.] It is true that an appellate court more carefully scans the denial than the allowance of such relief to the end that wherever possible cases may be heard on their merits. [Citation.] Nevertheless, we cannot arbitrarily substitute our judgment for that of the trial court. [Citation.] “Unless, ultimately, each case of this nature is to be decided by the Court of Appeal as if no trial court had ever acted on the petition, we must be careful to preserve the area of the superior court’s discretion, and we must do this in fact, as well as in words.” [Citation.]’ [Citations.]” (Greene v. State of California (1990) 222 Cal.App.3d 117, 121 (Greene).)
“Once the potential plaintiff has retained counsel, it is the responsibility of counsel to diligently investigate the facts, identify possible defendants, and timely file the tort claim. [Citation.]” (Department of Water & Power, supra, 82 Cal.App.4th at p. 1294, fn. 3.) In this case, the request for relief is based on counsel’s assertion that he was diligent in investigating potential government entities responsible for plaintiff’s injuries. He claims he delayed in presenting a timely claim to the district because he was unable to gain computer access to information regarding the district’s claim presentation procedure. He also claims he was misled by the website maintained by the Secretary of State, mistakenly believing that the Roster of Public Officials was the proper roster for determining whether a claim was required to be presented to the district. We see no merit to the contentions.
In order to demonstrate entitlement to relief, counsel “ ‘ “must show more than that he did not discover a fact until too late; he must establish that in the use of reasonable diligence he failed to discover it.” [Citation.]’ [Citation.]” (Greene, supra, 222 Cal.App.3d at p. 121.) For example, in Greene, the appellant Greene was injured on a highway that was located in Orange County but owned by the State of California. (Id. at pp. 119, 121–122.) The appellant claimed he had delayed in presenting a timely claim to the state because his counsel had been erroneously informed by an employee in the county clerk’s office that the county owned the roadway on which the accident occurred. (Id. at p. 122.) In finding that the appellant had failed to demonstrate excusable neglect for failing to present a timely claim to the state, the court ruled, in pertinent part: “The contention that appellant’s counsel was erroneously informed the county owned the roadway is simply not supported by the record. . . . An employee with the county clerk’s office advised [counsel’s] secretary ‘the accident location was in Orange County.’ However, the fact that the accident occurred in Orange County was never in dispute. The question was who owned the roadway where the accident occurred. There is no indication the secretary ever asked that question, nor any allegation a public employee affirmatively represented the county owned the roadway. [¶] Even assuming appellant was erroneously advised the county owned the roadway, it is incredible counsel did not immediately file an application and claim with the state to protect her client’s interests. Attorneys representing clients in personal injury matters routinely try to locate as many potential tortfeasors as possible to ensure [their] client[s] receive[] adequate compensation.” (Id. at p. 122.) So, too, in this case, even assuming counsel could not gain computer access to information regarding the district’s claim presentation procedure, it was not credible that counsel would not have thought to either immediately contact the district by telephone, or, alternatively, present a timely claim to the district for the same reason he presented claims to the county and state, to wit, to protect his client’s interests and ensure that his client received adequate compensation. “When there is a readily available source of information from which the potential liability of a government entity may be discovered, a failure to use that source is deemed inexcusable. [Citation.]” (Department of Water & Power, supra, 82 Cal.App.4th at p. 1294.) We are not persuaded by counsel’s argument that he did not telephone or present a timely claim to the district because he failed to find the district listed on the Roster of Public Officials posted on the Secretary of State’s website for both 2014 and 2015. Even assuming counsel could not locate the district on the roster found on the website maintained by the Secretary of State, a reasonably prudent counsel would have contacted the Secretary of State to ensure the information on its website was accurate before deciding it was not necessary to present a claim to the district, especially since counsel had already ascertained the district was a potential tortfeasor and counsel was facing “a statute of limitations . . . .” (Department of Water & Power, supra, 82 Cal.App.4th at p. 1296.)
We therefore find that the trial court appropriately denied relief in circumstances where Davis and her counsel failed to show reasonable diligence during the statutory time for presenting a claim to the district. The record shows that during the statutory time all the information necessary to present a timely claim to the district was either known or readily available to counsel. It was not objectively reasonable, under the circumstances, for counsel to have relied solely on computer searches in deciding not to present a timely claim to the district.
We conclude our discussion by noting that in the trial court Davis sought both a ruling on her request to file a late claim, and, alternatively, a ruling that her claim was otherwise timely because the district was either estopped or had waived its right to assert the time limitation for filing a claim because it failed to register as a public agency in the California Roster of Public Agencies. In opposing the petition in the trial court, the district asked the court not to reach Davis’s estoppel and waiver arguments. In resolving the matter before it, the court acceded to the district’s request, and ruled only on the issue of the request to file a late claim, and not the estoppel and waiver arguments. Accordingly, we do not now address the parties’ contentions regarding those latter arguments. Given the procedural posture of this case, our decision should not be read as a determination of those issues.
DISPOSITION
The order is affirmed. Defendant is awarded costs on appeal.



_________________________
Jenkins, J.


We concur:


_________________________
McGuiness, Acting P.J.*


_________________________
Siggins, J.





















A146990/Davis v. Contra Costa Community College Dist.