Brady v. County of Imperial

Filed 6/13/06 Brady v. County of Imperial CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed.

Tommy and Kimberly Brady (together the Bradys) petitioned the trial court for relief from the claims filing requirement of Government Code section 945.4,^[1] asserting failure to timely file a claim against County of Imperial and other public entities was the result of mistake or excusable neglect. The court denied the Bradys' petition, and they appeal, arguing the order was an abuse of discretion.

I

FACTUAL AND PROCEDURAL BACKGROUND^[2]

A. The Accident

Sometime between sunset on March 24, 2004, and sunrise on March 25, 2004, Mr. Brady was driving eastbound on Cruickshank Road, an unpaved road not illuminated by artificial lights. Mr. Brady's car struck a pile of asphalt placed in the eastbound half of Cruickshank Road, causing him serious injury.

Cruickshank Road is a public road owned and maintained by Imperial County (County). Cruickshank Road intersects with Dogwood Road, which is also owned and maintained by County. Caltrans was using Cruickshank Road to store piles of asphalt it was using as part of its project to expand State Route 111. At the time of the accident, a "Road Construction Ahead" sign was posted by County to the west of the asphalt piles warning eastbound drivers of the construction work. The warning sign was removed when the asphalt was removed.

There is a County signpost at the intersection of Cruickshank Road and Dogwood Road bearing the road names of Cruickshank and Dogwood. Below the street names is a large standardized stop sign facing westbound traffic on Cruickshank Road.^[3] Those signs, which were in place at the time of the accident, are posted by County only on County-owned roads.

B. The Investigation

On April 26, 2004, the Bradys hired attorney Urquhart to handle their claim. Urquhart immediately visited the accident scene but, by that time, the asphalt had been removed. Urquhart assumed the road was a private farm road. On May 4, the Bradys hired Mr. Junger, a private investigator and former California Highway Patrol officer, to determine the source of the asphalt piles. Although Junger provided an August 12, 2004 preliminary report, Urquhart still did not know at that time whether the road was privately or publicly owned.

In November 2004 Junger was at the accident scene, trying to ascertain who had placed the asphalt on the road, when he observed a school bus driving on Cruickshank Road. He thereafter checked the public records and verified the road was owned and maintained by County.

C. The Procedural History

The Bradys promptly filed a claim against County, which was immediately denied. They also applied for leave to file a late claim, which was also denied.^[4] The Bradys then filed the present action seeking an order, pursuant to section 946.6, relieving them of the requirements of section 945.4 et seq. In support of the petition, the Bradys asserted the claim was presented within a reasonable time and County had suffered no prejudice. They argued the failure to discover the identity of the road owner was the result of mistake, inadvertence, surprise or excusable neglect because the road was unpaved, bordered by an irrigation ditch and active farmlands, and there was nothing to suggest it was not a privately owned road. County opposed the petition, arguing that neglect was not excusable because there was no explanation for the delay of the attorney and the investigator in determining the owner of the road and, had they investigated the identity of the owner, County's ownership of the road would have been easily ascertainable from readily obtained public records.^[5]

The court noted there was no evidence that any steps were taken to learn the identity of the owner of the road as the defendant in a personal injury lawsuit, even though there were facts to suggest a governmental entity would be involved (as owner either of the road and/or of the asphalt) as a defendant.^[6] The court concluded that, although County was not prejudiced by the late-filed claim, the neglect in determining the identity of the road owner was not excusable. Accordingly, the court denied the Bradys' petition, and this appeal followed.

II

ANALYSIS

A. Applicable Standards

Section 911.2 requires that a claim for personal injury or wrongful death 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 claimants who file their claims against a public entity after the six-month filing period "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." (Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 6.) The showing required of a petitioner seeking leave to file a late claim on these grounds is the same as that required by Code of Civil Procedure section 473 for relieving a party from default judgment. (Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432, 438.)

Whether to grant a petition for relief under section 946.6 is vested in the discretion of the trial court, and on appeal we review the trial court's ruling for abuse of discretion. We will not reverse merely because we would have ruled differently in the first instance. (Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116, 120.) Although the remedial purposes of section 946.6 suggest that a trial court should guide its discretionary ruling by resolving doubts in favor of granting relief, the court's discretion "must [also] be exercised in conformity with the spirit of the law. [Citation.] The general policy favoring trial on the merits cannot be applied indiscriminately so as to render ineffective the statutory time limits. [Citation.]" (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.)

The courts have defined excusable neglect as an act or omission that might be expected of a prudent person under similar circumstances. (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1294.) It is not shown by the mere failure to discover a fact until it is too late; instead, the party seeking relief must establish, by a preponderance of the evidence, that in the exercise of reasonable diligence he or she did not discover it. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1783; Greene v. State of California (1990) 222 Cal.App.3d 117, 121.) The court should consider "the attorney's overall diligence or lack thereof" (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 278) when assessing reasonable diligence.

B. Analysis

We conclude the court did not abuse its discretion by denying the Bradys' petition. The issue is whether their counsel, with reasonable diligence, did not discover the ownership of the road. It is undisputed the public ownership of the road was discoverable with minimal effort, and there is substantial evidence to support the conclusion the Bradys' counsel did not exercise reasonable diligence to identify the owner of the road. Although counsel promptly visited the accident scene after being retained on April 26, 2004, and hired a private investigator eight days later to determine the source of the asphalt piles, there was no evidence that (during the next six months) either the attorney or the investigator made any effort to determine the identity of the road owner who maintained the dangerous condition.^[7] Moreover, the trial court could conclude the absence of investigation, which was based solely on the assumption by the Bradys' counsel that an unpaved road without lighting and frequent signage is a privately owned road, was additionally unreasonable because of various contra-indicators suggesting the road might be a publicly owned road: the police report identified the location of the accident scene using formally named roads; maps depicting the area show the road was formally named; there were County-posted road signs at either end of Cruickshank; and the road was much wider than would be expected for a privately owned farm road. Finally, the presence of the asphalt piles, at a site otherwise devoid of paving activity and in an area where paving work is (as the trial court noted) "commonly undertaken by public entities and rarely undertaken by private entities," suggested at a minimum that a public entity may have been responsible for the asphalt piles, but almost no effort was devoted to determining the source or disposition of the asphalt.

Under these circumstances, there is substantial evidence from which a trial court could conclude the Bradys did not exercise reasonable diligence to establish they were ignorant of the identity of the road owner. (See, e.g., Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 157 ["a petitioner or his [or her] attorney must show more than that they did not discover a fact until too late; they must establish that in the use of reasonable diligence they failed to discover it. [Citations.] There is a total absence of evidence that petitioner or her attorney exercised reasonable diligence (or any diligence) in an effort to ascertain the public status of [the defendant]"; accord, City of Fresno v. Superior Court, supra, 104 Cal.App.3d at p. 33 [where identity of public entity's ownership of garage was readily ascertainable with minimal investigation but attorney simply assumed parking garage was privately owned, excusable neglect not shown because attorney "did nothing to ascertain the possible defendants that should be joined in his client's suit"].) The Bradys assert the trial court abused its discretion because the uncontradicted evidence shows the mistaken assumption of private ownership was honest, reasonable under the circumstances, and served to excuse the absence of timely pursuit of further investigative activity. However, the only uncontradicted evidence supporting the Bradys' mistaken assumption was that the accident occurred on an unpaved road that lacked lighting and had no County-posted street signs adjacent to the accident site. The other evidence cited by the Bradys^[8]--that the road was unmarked by any traffic signs at any intersections--was contradicted by County's evidence. Moreover, the trial court concluded it was not a reasonable assumption under all of the circumstances, and did not excuse the complete absence of any effort "to ascertain the possible defendants that should be joined in his client's suit." (City of Fresno v. Superior Court, supra, 104 Cal.App.3d at p. 33.)

The Bradys' reliance on Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th 1288 and Powell v. City of Long Beach (1985) 172 Cal.App.3d 105 is unhelpful.^[9] In Department of Water & Power the court noted that excusable neglect is an act of a reasonably prudent person under similar circumstances, and requires the court look both at the nature of the mistake and whether counsel was otherwise diligent in investigating and pursuing the claim. (Department of Water & Power, at p. 1294.) In this case, the court applied that test, concluding the nature of the mistaken assumption was not reasonable under all of the circumstances and counsel was not otherwise diligent in investigating and pursuing the claim against any potential defendant, and those conclusions are supported by substantial evidence. In Powell, a worker was injured on a dock at Long Beach Harbor. He believed the dock was owned by his employer, there being no visible signs indicating the dock was publicly owned, and therefore promptly pursued his claim by applying for workers' compensation benefits. The court concluded the plaintiff acted as would have a reasonably prudent person under like circumstances because he was not idle (he promptly pursued workers' compensation benefits) and there were not observable indicia suggesting public ownership of the dock. (Powell v. City of Long Beach, supra, 172 Cal.App.3d at p. 110.) In contrast, the Bradys' counsel was largely idle for six months (making no effort to pursue the identity of the assumed private owner), and there were observable indicia of public ownership of the road.

DISPOSITION

The order is affirmed. Defendants are entitled to costs on appeal.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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

^[2] We recite the facts most favorably to the prevailing party. (Cf. Salazar v. Steelman (1937) 22 Cal.App.2d 402, 409 [review of order under Code Civ. Proc., § 473]; City of Fresno v. Superior Court (1980 104 Cal.App.3d 25, 32 [showing required as to mistake, inadvertence, surprise or excusable neglect in proceedings to file a late claim against a governmental agency is the same as required under Code Civ. Proc., § 473].)

^[3] There is also a street sign at the intersection of Cruickshank Road and Highway 111, approximately one-half mile east of the accident site. However, there is apparently no street sign at the intersection of Cruickshank Road and another unpaved road (Cooley Road) that intersects Cruickshank east of Dogwood.

^[4] The Bradys also filed an application for leave to file a late claim with the State of California, based on their information that Caltrans had placed the asphalt on the road. When no action was taken, the application was deemed denied by operation of law.

^[5] In reply to County's opposition, the Bradys presented a supplemental declaration of Urquhart claiming there were no street signs and that it "never occurred to [Urquhart] that the road was anything other than a private farm road." Attorney Smerdon, a long-time resident of Imperial County, averred he had recently visited the accident site and did not see a street sign suggesting the road was County-owned. However, Smerdon arrived at the site by a route that may have differed from the route traversed by Mr. Brady (i.e. by traveling along Dogwood and turning east onto Cruickshank), and there were street signs where Cruickshank intersected both Dogwood and State Route 111.

^[6] The court noted that, in addition to the street signs, the road was a 27-foot wide, graded (albeit unpaved) road, unusually wide for a private "farm access" road; the police report described the intersection using formal street names; and the piled asphalt suggested paving work performed by public entities but rarely undertaken by private parties. The court concluded these facts would have made a reasonable person suspect a public entity, against which timely claims must be filed, was involved in the accident.

^[7] The only reference to any activity between May 4, 2004 (the date the investigator was hired) and November 1 (the date the investigator visited the site and observed the school bus) was an August 12 preliminary report by the investigator. The content of that report, or the activities undertaken to generate that report, or any other activities by the investigator during the six-month period, is conspicuously absent. Moreover, apart from a single visit to the site shortly after being retained, it appears the Bradys' counsel did nothing to investigate or pursue the case.

^[8] The Bradys on appeal also assert their attorney saw no signs of routine maintenance, but the pictures taken by their attorney show a wide, relatively smooth surface free of weed encroachment. They also assert on appeal the road was deeply rutted and had weeds encroaching on the road, but these conditions were based on observations made some time after the Bradys had already determined the road was County owned.

^[9] The Bradys' reply brief quotes extensively from Bettencourt v. Los Rios Community College District, supra, 42 Cal.3d 270, to demonstrate this case involved excusable neglect because both the nature of the mistake and the overall diligence employed is similar to that found excusable in Bettencourt. In Bettencourt, a student drowned while on a field trip sponsored by a community college. Less than four weeks before the claims statute was to expire, the attorney was hired. On being hired, he immediately investigated the accident, retained an investigator, and contacted the community college. Within four days of being hired, the attorney filed a claim with the state under the mistaken impression the employees of the community college were state employees. Six weeks later, after the claims statute had expired, the attorney learned the employees of the community college were employed by a different governmental entity, and within three days, he sought leave to file a late claim. The Bettencourt court concluded the mistaken assumption was one a reasonably prudent person would have made because of the "confusing blend of state and local control and funding" for community colleges, and the attorney had otherwise shown diligent pursuit of the action. (Id. at pp. 276-278.) Here, the mistaken assumption was based on a de minimus initial investigation, there was no timely filing of a claim, and the attorney was largely idle for over six months. For these reasons, Bettencourt is distinguishable.