State Dept. of Transportation v. Sup. Ct

Filed 5/31/06 State Dept. of Transportation v. Sup. Ct. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Esmeralda Velasco, plaintiff and real party in interest, obtained relief from the respondent superior court to file a late administrative tort claim against petitioner, State of California (State), regarding dangerous conditions of State Route 126. (Gov. Code, § 946.6.)^[1] The State seeks a writ of mandate from this Court directing the superior court to vacate and set aside its order permitting Velasco to present the late claim. We conclude the trial court abused its discretion by permitting Velasco to file the late claim and grant the State's petition for a writ of mandate.

PROCEDURAL AND FACTUAL BACKGROUND

On the afternoon of December 7, 2004, an employee of Infogenesis drove across the center median of State Route 126 and hit the car being driven by Velasco head-on. This accident resulted in the employee's death and seriously injured Velasco. Plaintiff's counsel, Brian Yorke, examined the police report, the statements of eyewitnesses, and contacted experienced consultants to ascertain whether there might be dangerous conditions of the state roadway where the accident occurred.

Infogenesis filed a timely tort claim with the State. On June 14, 2005, Velasco filed a complaint alleging negligence against Infogenesis and its employee who drove across the median of the state highway. On August 8, 2005, Infogenesis filed a cross-complaint seeking indemnity, apportionment, and declaratory relief against the State and the Department of Transportation (DOT) for the dangerous conditions of its highway. The initial cross complaint contained no factual averments. Yorke unsuccessfully sought to review the claim form submitted by Infogenesis to the State. Yorke also spoke with counsel for Infogenesis who said he had no information supporting the allegation of dangerous conditions.

On October 4, 2005, Yorke sent a tort claim to the State which was rejected because its form was improper. On October 18, 2005, Yorke filed a petition for leave to file a late claim, which the California Victims Compensation and Government Claims Board (Board) denied on November 14, 2005.

On December 1, 2005, Infogenesis filed its second amended cross-complaint. That complaint alleged facts to support its claim that dangerous conditions on State Route 126 either caused or were a substantial factor causing the collision to occur. Infogenesis alleged that State Highway 126 was defectively designed in its orientation, configuration, banking and posted speed limits when the accident occurred. The complaint specifically alleged that the posted speed limits were excessive for existing conditions. Infogenesis also alleged the highway was unsafe because there was no center divider in the location where the accident occurred. Infogenesis averred that the surface of the roadway was dilapidated and damaged where the accident occurred. In addition, Infogenesis alleged the highway was unsafe due to inadequate signage and other warnings. In sum, Infogenesis asserted that the State and the DOT were liable because it was reasonably foreseeable that these dangerous conditions, actually known to cross-defendants, would cause Masters's vehicle to collide with Velasco's.

More than two weeks later, Yorke petitioned the trial court for relief (§ 946.6). He declared he had not discovered any "independent facts" upon which to assert potential liability against the State. Indeed, Yorke declared he was surprised that Infogenesis filed a claim against the State. He did acknowledge that because Infogenesis had submitted a tort claim and filed the above causes of action against the State, there might be facts supporting the claim. But Yorke states he did not file a tort claim against the State "because I did not in good faith believe that there were facts which could have supported a theory of liability." Yorke declared, "I was unable to discover a reasonable basis upon which I could competently allege that the State of California had caused or contributed to the collision . . . . I uncovered no evidence to suggest that the State . . . bore any liability. . . ."

In ruling, the trial court stated "[c]ase law is available on both sides of the question whether this is the sort of mistake that justifies relief. In the event the State is not prejudiced, there is a jurisprudential bias in favor of allowing cases to be heard on the merits . . . . " Accordingly, the court granted relief pursuant to section 946.6, and permitted the filing of the late claim and complaint against the State. State filed this petition for writ of mandate.

DISCUSSION

State contends that Yorke made no "mistake" in concluding there was no legal basis upon which to file a tort claim against it. State opines that Yorke intentionally and repeatedly made the decision not to make a claim against the State. Yorke said he had investigated the situation thoroughly and consciously decided there was no basis for asserting a claim against the State. Nonetheless, Yorke argues he made a mistake and he is entitled to relief.

Before filing any cause of action against the State, in a suit where damages or money is sought for personal injuries or death, one must present a written administrative tort claim with the State that has been acted upon or deemed rejected within six months of the accrual of the claim. (§§ 910, 911.2, 945.4.) If such a claim is not timely presented, written application for relief may be proffered to the public entity involved seeking leave to present the late claim. (§ 911.4 [the application should be presented to the Board].) Such application must be made within a reasonable time, not to exceed one year. (§ 911.4.)

Board shall grant the application for relief where "[t]he failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced . . . ." (§ 911.6, subd. (b)(1).) If Board fails or refuses to act on the application within 45 days, it is deemed denied by operation of law. (§ 911.6, subd. (c).) If the leave application is rejected or deemed denied, one may petition the superior court where the underlying matter would be heard for an order relieving petitioner from the section 945.4 claim requirements. (§ 946.6, subd. (a).)

The court shall provide relief if it finds that the application for leave was timely filed and denied, and the preponderance of the evidence establishes that the failure to timely present the claim "was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced . . . ." (§ 946.6, subd. (c)(1); People ex.rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 43 (DOT); Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293, 1296 (DWP).) The showing required is essentially the same as that for Code of Civil Procedure section 473, which concerns relief from a default judgment. (DOT, supra, at p. 43; Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 683 (Hernandez) [mistake of law]; Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 (Ebersol); Viles v. State of California (1967) 66 Cal.2d 24, 29.)

The superior court makes an independent determination on the application for relief, based upon the petition, declarations, and any additional evidence received at the hearing on the matter. (§ 946.6, subd. (e).) Also, as a rule, the decision whether to grant or deny relief is within the sound discretion of the trial court, provided it is in accord with the spirit of the law. (DWP, supra, 82 Cal.App.4th at p. 1293.) Here our determination is more in the nature of deciding whether the trial court erred as a matter of law. (See People v. Jackson (2000) 128 Cal.App.4th 1009, 1018.)

The policy favoring trial on the merits must be balanced against the policy of enforcing the statutes of limitations for presenting state tort claims. (DOT, supra, 105 Cal.App.4th at p. 44, citing DWP, supra, 82 Cal.App.4th at p. 1293.) This countervailing policy of adhering to the short statutes of limitation for filing claims against public entities exists to assure accurate and feasible risk management of public tax funds. However, doubts should be resolved in favor of granting relief. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276 (Bettencourt).) Orders denying relief are scrutinized more carefully than orders granting relief. (Id. at pp. 275-276; Hernandez, supra, 68 Cal.App.4th at pp. 682-683; Ebersol, supra, 35 Cal.3d at p. 435.)

In addition to other factors, we look to the nature of the "mistake" or "neglect," and determine whether it is excusable. "Excusable neglect" typically involves the failure of counsel to discover pertinent facts while exercising reasonable diligence. (DOT, supra, 105 Cal.App.4th at pp. 44-45; citing Ebersol, supra, 35 Cal.3d at p. 439.) The kinds of "mistakes" that are typically excusable are ones involving knowledge of the jurisdiction over the exact location involved, or calendaring errors made by attorneys or their staff. (See Lawrence v. State of California (1985) 171 Cal.App.3d 242, 244-246 [mistake as to jurisdiction]; Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, and cases cited therein; cf. Torbitt v. State of California (1984) 161 Cal.App.3d 860.)

A mistake of law occurs when one knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. (Hernandez, supra, 68 Cal.App.4th at p. 683.) Whether such mistake is excusable depends on the reasonableness of the misconception and whether the lack of determination of the actual law is justifiable. (Ibid.) Courts also consider whether the late claim would prejudice the State. (Ibid.)

In Mitchell v. Department of Transportation (1985) 163 Cal.App.3d 1016 (Mitchell), plaintiff was rear-ended while driving to a rock concert in bumper-to-bumper traffic. Her attorney quickly told her she had a cause of action against the uninsured driver and possibly the car manufacturer, but not against any public entity. After time to file a tort claim had expired, plaintiff hired a new attorney who prepared a tort claim. This second attorney sought relief to file a late claim which was denied by both Board and the trial court.

The trial court concluded that the plaintiff's first attorney's failure to file a claim was not due to excusable neglect. (Mitchell, supra, 163 Cal.App.3d at p. 1022, citing cases.) Where there is "a conscious failure to file a claim against a governmental entity after making a legal determination no cause of action existed, [it] can hardly be said to be excusable neglect." (Id. at p. 1023.) The Court of Appeal affirmed. There were no facts in Mitchell to indicate that the first attorney was wrong in his assessment that no cause of action existed against public entities for the very slow speed, rear end collision that occurred in that case. (Ibid.) Mitchell also explained that when counsel arrives at a legal premise based on his or her view of the facts, whether correct or not, there is not such positive misconduct as would obliterate the attorney-client relationship, and absolve the client of her attorney's malfeasance. (Ibid.) Positive misconduct exists when counsel demonstrates a "a total failure . . . to represent the client . . . ." (Ibid.)

That did not happen in Mitchell, nor did it happen here. As late as December 19, 2005, Yorke filed a declaration in which he stated that in the past he believed there was no basis to file a claim. He asked for relief based on the allegations Infogenesis made in its second amended complaint. We are compelled to ask, "Where is the mistake?" However this case is ultimately resolved, the allegations of the cross-complaint do not invalidate plaintiff's counsel's initial evaluation.

In support of relief, Velasco cites Bettencourt, supra, 42 Cal.3d 270. It is distinguishable. In Bettencourt, counsel was from out of the area of the drowning mishap, which occurred on a trip sponsored by Sacramento City College. Counsel mistakenly thought the city college employees were employees of the state. He failed to discover this mistake before the claim limitation period expired, but he gave defendant actual and timely notice that it might be sued. He called to request information about the accident and told the college that a claim might be filed against it. (Id. at p. 279.) The late claim was denied and the trial court refused to grant relief.

Our Supreme Court reversed, stating that such a mistake was reasonable because of the "confusing blend of state and local control and funding" of such entities. (Bettencourt, supra, 42 Cal.3d at pp. 276-277) As we noted before, where confusion is likely as to who owns or controls property, relief is frequently granted. (Id., see cases cited at pp. 277-278.) Counsel in Bettencourt made a single mistake of fact concerning who owned the facility. That mistake was entirely understandable under the circumstances, and he sought to remedy his error quickly. (Id. at p. 281) The instant case is similar to Mitchell, not Bettencourt.

It is true that here, the trial court exercised its discretion in favor of granting relief, and orders denying relief are scrutinized more closely than those granting relief. We conclude that the trial court erred by permitting Velasco to file this late claim after Yorke declared his choice not to assert what was later alleged by Infogenesis. One is not entitled to relief from failing to file a tort claim under these circumstances.

DISPOSITION

We grant the State's petition for a writ of mandate. We direct the respondent superior court to vacate its order of January 26, 2006, and issue a new order

denying Velasco leave to present this late tort claim and dismissing plaintiff's cause of action against the State.

Costs are awarded to the State.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Steven Hintz, Judge

Superior Court County of Ventura

______________________________

Bruce A. Behrens, Chief Counsel, Linda Cohen Harrell, Deputy Chief Counsel, and Daniel Mansueto, Deputy Counsel, for Petitioner.

No appearances for Respondent Superior Court.

Law Office of Ball & Yorke, Esther R. Sorkin, for Real Party in Interest.

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^[1] All statutory references are to the Government Code unless otherwise stated.