Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Super. Ct. No. 149957, Ronald W. Hansen, Judge.
Georgeson and Belardinelli, C. Russell Georgeson and Richard A. Belardinelli for Plaintiff and Appellant.
Weakley, Ratliff, Arendt & McGuire, Benjamin L. Ratliff and Michael R. Linden for Defendant and Respondent.
OPINION
HILL, J.
Appellant, a truck driver, was involved in collision with another truck. He was injured and taken from the scene by ambulance; he did not discover at that time that the other truck was owned by the City of Los Banos and driven by a city employee. After his six-month period for presenting a claim against the city had passed, appellant obtained a copy of the accident report and learned of the city’s involvement. He consulted an attorney, who filed with the city an application for leave to present a late claim. The application was denied. Appellant then petitioned the superior court for relief from the claim presentation requirement. The court denied the petition. Appellant appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 8, 2005, the truck appellant was driving collided with another truck, causing him to lose control and run off the roadway and into a water drainage ditch. Shortly after the collision, appellant was taken to the hospital. He did not speak to the other driver or observe the other truck before he was taken from the scene. The traffic accident report of the incident indicates appellant told an officer that the other truck, which was coming from the opposite direction, drifted into appellant’s lane; appellant did not have time to honk the horn and alert the other driver, and the two trucks collided. The accident report concluded the collision was caused by the other driver drifting into appellant’s lane.
Appellant sustained an injury to his left knee. He underwent surgery on August 17, 2005. A second surgery was performed on May 5, 2006. During the six-month period after the accident, appellant was on temporary total disability and “continually” under medical care. Appellant’s declaration stated he could not drive during the six-month period after the accident, and “had no transportation except from [his] friends who would drive [him] to the store and for medical treatment.” His pain limited the distance he could travel and he spent almost all of his time at home. He also asserted he sustained an injury to the back if his head and neck and experienced memory lapses. The medical records submitted do not indicate he suffered any head injury; the only mention of memory lapses in the medical records is a statement in a February 10, 2006, report that “[h]e states he is also having issues with memory loss and headache since the accident.”
Appellant’s declaration in support of his petition also stated he cannot speak, read or write English, and he attended school in Mexico only until the fifth grade. He was unaware of the need to file a claim with the city and of the procedure for doing so. He asserts he could not obtain access to records necessary to determine the involvement of the city because of his physical condition, his lack of knowledge of what records would be of benefit, and his inability to travel to obtain the records. He received workers’ compensation payments and “believed [he] was being compensated for [his] injuries by the only available means.” He did not obtain a copy of the police report until after the six-month period for claim presentation had passed, and he did not understand it until he had it translated after his surgery in May 2006. He did not know the other driver was a city employee until he had the police report translated; he was then “advised to find a lawyer who undertakes such cases.”
On June 15, 2006, appellant met with his attorney for the first time. The attorney advised him he had grounds to present a claim for personal injuries to the city, but the claim was untimely. On July 31, 2006, appellant, through his attorney, submitted to the city an application for leave to present a late claim, along with a proposed claim. The application was denied on October 18, 2006. On December 21, 2006, appellant filed with the superior court his petition for relief from the claim presentation requirement. On January 23, 2007, the court heard and denied the petition.
DISCUSSION
Under the Government Claims Act (Gov. Code, § 810, et seq.), a person who wishes to sue a public entity for damages based on a cause of action for personal injuries must first present a claim to the entity within six months of the date the cause of action accrued. (§§ 911.2, 945.4.) The claim presentation requirement serves several purposes: “(1) it gives the public entity prompt notice of a claim so it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so it can better prepare for the upcoming fiscal year. [Citations.]” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) “The intent of the Tort Claims Act is not to expand the rights of plaintiffs against governmental entities. Rather, the intent of the act is to confine potential governmental liability to rigidly delineated circumstances. [Citation.]” (Ibid.)
Further statutory references are to the Government Code unless otherwise specified.
If the claim is not timely presented, an application to the public entity for leave to present a late claim may be made within a reasonable time, not to exceed one year after the date the cause of action accrues. (§ 911.4, subds. (a), (b).) If that application is denied, the claimant may petition the trial court for relief from the claim presentation requirement. (§ 946.6, subd. (a).) Relief from the claim presentation requirement must be granted if the court finds the application to the public entity for leave to file a late claim was made within a reasonable time, not to exceed one year after accrual of the cause of action, and was denied or deemed denied, and one of four circumstances justifying the failure to present a timely claim is met. (§ 946.6, subd. (c).) Among the four circumstances are the following:
“(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 in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4. [¶ ] … [¶ ] “(3) The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time.” (§ 946.6, subds. (c)(1), (3).)
On appeal, the trial court's denial of relief under section 946.6 is reviewed for abuse of discretion. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) “Abuse of discretion is shown where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief.” (Ibid.) “Section 946.6 is a remedial statute intended ‘to provide relief from technical rules that otherwise provide a trap for the unwary claimant.’ [Citations.] As such, it is construed in favor of relief whenever possible. [Citation.]” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275.) “In light of the policy considerations underlying section 946.6, a trial court decision denying relief will be scrutinized more carefully than an order granting relief. [Citation.]” (Id. at p. 276.) Nonetheless, “[t]he 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.)
Appellant petitioned for relief from the claim presentation requirement, asserting (1) that he was physically and mentally incapacitated throughout the claim presentation period and, as a result, failed to present a timely claim, and (2) that he failed to present a timely claim through mistake, inadvertence, surprise, or excusable neglect. Appellant asserts the trial court abused its discretion in denying his petition, because he presented uncontradicted evidence establishing both incapacity and mistake as adequate cause for relief.
I. Physical and Mental Incapacity
In Draper v. City of Los Angeles (1990) 52 Cal.3d 502, plaintiff was seriously injured when she was struck by a car while in a crosswalk. She petitioned for relief from the claim presentation requirement, seeking to assert claims against the city and other public entities based on defects in the condition of the intersection where the accident occurred. The doctor who first treated her, for about a month after the accident, declared she was both physically and mentally incapacitated during the entire time he cared for her. The doctor who treated her subsequently, for approximately the next six months, until her discharge from the hospital, declared that appellant “suffered severe head injuries and multiple fractures in the accident, was totally dependent on others, had severe cognitive deficits and difficulty speaking, and was both physically and mentally incapacitated well beyond the 100 days following the accident.” (Id. at p. 504.) The medical records submitted “reveal[ed] that plaintiff was in a coma until the end of July, and for some period of time thereafter could only give ‘yes-no responses’ with ‘lap board communication’ and could ‘identify simple objects’ but could not talk. She was completely dependent on others for her physical needs, such as feeding and grooming, and she was immobile.” (Ibid.)
Prior to 1988, the period for presenting a personal injury claim against a public entity was 100 days. Beginning January 1, 1988, that period was extended to six months. (See Stats. 1987, ch. 1208, § 3.)
The court concluded “that the evidence, viewed in light of the whole record, establishes in this case that plaintiff was incapacitated during the claim-filing period.” (Draper v. City of Los Angeles, supra, 52 Cal.3d at p. 507.) The court rejected the city’s contention that plaintiff’s incapacity did not prevent her from presenting a timely claim, because an attorney (Hecker) had presented a claim on her behalf against a school district during the 100-day period. At the time Hecker presented the claim, it was “undisputed that plaintiff was just emerging from a long coma and that her ability to reason was severely impaired. In such circumstances it is inconceivable that she could have authorized the filing of the claim.” (Id. at p. 508.) Under section 946.6, subdivision (c)(3), the relevant inquiry was whether the injured person was prevented by physical or mental incapacity from presenting a timely claim, not whether someone else was able to do so. (Draper v. City of Los Angeles, supra, 52 Cal.3d at pp. 508-509.)
“The subdivision is designed to assure both that the claimant was disabled during the filing period and that the disability was the reason the claimant could not file timely. A person can be disabled yet be able to file a timely claim. The decisions construing subdivision (c)(3) and its predecessor apply the disability provision in just this way: they analyze the extent of the injured person's disability and determine whether it was so great as to preclude filing a timely claim or authorizing someone to do so.” (Draper v. City of Los Angeles, supra, 52 Cal.3d at p. 509, italics added.)
The court reversed with instructions to grant plaintiff the relief requested. (Draper v. City of Los Angeles, supra, 52 Cal.3d at p. 509.)
Thus, the test under section 946.6, subdivision (c)(3), is not simply whether the claimant was incapacitated or disabled, it is whether the extent of the claimant’s incapacity during the entire claim presentation period was so great as to preclude filing a timely claim or authorizing someone else to do so.
In Tammen v. County of San Diego (1967) 66 Cal.2d 468, decedent died after his vehicle struck two horses on the roadway. Plaintiffs, his wife and child, failed to present a timely claim against the county; their petition for leave to present a late claim was denied. The court found no abuse of discretion in the rejection of the wife’s claim of physical and mental incapacity. Although the petition asserted the wife was physically and mentally incapacitated, there was no evidence to support that assertion. (Id. at p. 474.) A few weeks after decedent’s death, his wife contacted attorneys about probating his will; within a month after, she discussed settlement of her claims with insurance adjusters representing the owner of the horses. (Ibid.) “Therefore, there was ample evidence from which the court could find that Mrs. Tammen was able to attend to her business affairs with the care and diligence expected of persons in average good health and that failure to present her claim was not due to physical or mental incapacity.” (Id. at pp. 474-475.)
In Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, appellant was injured while working on a project involving the county and the state. He failed to present a claim against either entity within the 100-day period, and his petition for relief from the claim presentation requirement was denied. The court stated that appellant’s petition for relief did not explicitly request relief on the ground of physical or mental incapacity, but even if it had, the trial court’s determination that appellant “‘was not incapacitated for a sufficient period so as to be able to rely on this ground’” was amply supported by the evidence. (Id. at pp. 8-9.) Appellant presented evidence that he “was hospitalized three times following the accident and spent the remainder of his recuperation period at home, unable to attend to his business affairs,” and his doctor “forbid his return to work during that period.” (Id. at p. 5.) Respondents submitted evidence that, during the 100-day period, appellant was walking and driving, visited his workplace several times, and worked on a house he was remodeling; two and a half months after appellant’s accident, he spent a week hunting in Idaho. (Ibid.) “[A]ppellant's declaration contained only general averments that he was physically incapacitated during the 100 days following his accident, unsupported by any physicians’ affidavits. The trial court did not abuse its discretion in finding that appellant was able to attend to his business affairs, at least to the extent of contacting an attorney, and that his failure to present a claim was not due to physical incapacity.” (Id. at p. 9.)
In Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, plaintiff resigned her teaching post with the district on April 25, 1983. On August 3, 1983, she filed a complaint with the EEOC, alleging harassment and discrimination by the district. She subsequently filed, then dismissed a federal discrimination action, then refiled in superior court. The district raised as a defense plaintiff’s failure to timely comply with the claim presentation requirement. On April 24, 1984, plaintiff presented her claim to the district, and subsequently applied for leave to file a late claim. She appealed the denial of her petition for relief from the claim presentation requirement.
In support of her petition, plaintiff declared that she failed to present a claim because of emotional illness. She stated she had been under continuous psychiatric care for depression since 1976, and experienced severely disabling episodes during the time period of the alleged discrimination. Because of her emotional condition, “she was unable to deal with, comprehend, or function sufficiently to take up the matter of submitting a claim against the school district and its employees.” (Garcia v. Los Angeles Unified School Dist., supra, 173 Cal.App.3d at p. 707.) Plaintiff also presented the declaration of her treating psychiatrist, which stated in conclusory terms that plaintiff “‘was totally incapacitated from April 25, 1983 to approximately November 1, 1983,’” and “‘[t]hroughout this time, she has been in serious psychological upheaval, which has significantly hampered her ability to function effectively.’” (Id. at pp. 707-708.) The court stated that this evidence was not uncontradicted, because plaintiff also declared that she filed her EEOC complaint on August 3, 1983, the 100th day after the date she asserted her cause of action accrued. (Id. at p. 708.) “Obviously she was able to attend to some of her business affairs with regard to this dispute within the 100-day period. We find no abuse of discretion in the trial court’s conclusion that appellant did not establish that she was incapacitated such that she could not file the claim with the school district.” (Ibid.)
In People ex rel. Dept. of Transportation v. Superior Court (Isenhower) (2003) 105 Cal.App.4th 39, plaintiff and his wife were driving on a state highway on June 1, 2001, when they passed into an area of smoke that obscured their vision. The wife, who was driving, became disoriented, drove onto the shoulder of the road and stopped. Plaintiff got out of the car and was injured when his clothes caught fire. His wife remained in the car and was killed when the car caught fire. Subsequent news accounts indicated the fire may have been started by arsonists.
About seven months later, plaintiff’s barber suggested he should consult an attorney. On January 16, 2002, plaintiff consulted an attorney, who advised him he had a potential claim against the state for failure to maintain the roadside. On January 31, 2002, plaintiff and his children filed an application for leave to file a late claim. Their subsequent petition to the superior court for relief from the claim presentation requirement was granted, on the ground the failure to present a timely claim was due to mistake, inadvertence, surprise or excusable neglect. The state petitioned for a writ of mandate directing the trial court to vacate its order. The appellate court granted the state’s petition.
The court rejected plaintiff’s argument that the emotional effect of the incident should be considered in determining whether there was excusable neglect. It was not made in the trial court, and the evidence did not support it. (People ex rel. Dept. of Transportation v. Superior Court, supra, 105 Cal.App.4th at p. 46.) The only evidence in support was plaintiff’s declaration that he was hospitalized for 17 days and “‘was in a severe state of emotional depression for a significant amount of time thereafter.’” (Ibid.) The court concluded plaintiff’s “hospital stay and self-diagnosed ‘depression’ [were] insufficient to demonstrate excusable neglect, because no evidence was offered that these conditions substantially interfered with his ability to function in daily life, take care of his personal and business affairs, or seek out legal counsel.” (Ibid.) The court observed:
“Significant emotional anguish and depression on the part of those immediately affected may be expected in virtually every major personal injury and wrongful death case. [Citation.] The Legislature obviously did not believe these conditions could provide an escape hatch from the claim-filing requirement, as evidenced by the fact that ‘incapacitation’ is listed as a separate ground for relief, and is available only where the condition exists throughout the entire course of the claim-filing period. [Citation.] Isenhower's relatively short stay in the hospital and cursory allusion to postaccident ‘depression’ do not tip the scales in favor of a finding of relief based on excusable neglect. [Citations.]” (People ex rel. Dept. of Transportation v. Superior Court, supra, 105 Cal.App.4th at p. 46.)
In asserting that he established his incapacity during the six-month claim presentation period, appellant relies on evidence that he injured his leg, experienced pain when walking or traveling by car, had some memory lapses, and was “totally temporarily disabled” for worker’s compensation purposes. The trial court did not abuse its discretion in concluding appellant failed to establish he was physically or mentally incapacitated for purposes of section 946.6, subdivision (c)(3).
The evidence indicates appellant received medical treatment at various times during the six-month period after his accident, but he was not hospitalized. He had some physical limitations on movement, but he was able to go to the store with friends, and make and keep medical appointments. The medical records reflect that appellant walked with a limp, but as of October 27, 2005, was “[o]ut of brace and off of crutches.” The evidence does not establish that appellant was so physically incapacitated as to prevent him from presenting a timely claim or authorizing someone to do so on his behalf.
Plaintiff also asserts he sustained a head injury and has “experienced forgetfulness, often not remembering the names of people or numbers,” and has asked those assisting him to “remind [him] of [his] appointments because [he] would forget the date.” The traffic collision report does not mention any head injury; the only injury to appellant it mentions is a “fractured lower left leg.” The medical records do not reflect any head injury. The “First Report of Occupational Injury,” dated August 8, 2005, states that appellant “denies any head and neck pain” and “[t]here does not appear to be any other injury at this time, specifically, the head, neck and spinal exam are within normal limits.” Appellant does not explain how his asserted memory lapses prevented presentation of a timely claim. He does not contend this asserted forgetfulness ever caused him to forget his injuries or the facts of the accident, including that it was, according to plaintiff’s statement at the time, caused by the other driver crossing the center line and colliding with plaintiff’s truck.
Appellant submitted no evidence he was unable to make phone calls or to consult with an attorney by phone or in person during the claim presentation period. He asserts he could not travel to Los Banos to present a claim, but does not explain why he could not have mailed a claim to the city. To the extent appellant asserts his limited education and inability to speak, read, and write English as components of his claimed mental incapacity, he has cited no authority for defining mental incapacity to include lack of education or language skills. Additionally, he has not shown that either precluded him from presenting a timely claim. He has not explained why he could not communicate with an attorney, for example, by consulting a Spanish-speaking attorney or an attorney who had a Spanish interpreter available. Despite his language and educational limitations, he was able to obtain permanent legal resident status in the United States and to become licensed and employed as a truck driver. Even after the accident, he was apparently able to communicate adequately with his doctors.
This is not a case like Draper, where the claimant was hospitalized, dependent on others for her basic physical needs, and suffering from severe cognitive defects during the entire claim presentation period. The evidence submitted did not demonstrate that appellant’s physical or mental condition substantially interfered with his ability to take care of his personal and business affairs or to seek out legal counsel. The trial court did not abuse its discretion in rejecting appellant’s assertion that his failure to present a timely claim to the city was the result of his physical or mental incapacity during the entire six-month claim period.
II. Mistake, Inadvertence, Surprise or Excusable Neglect
Under section 946.6, subdivision (c)(1), relief from the claim presentation requirement may be granted when the claimant demonstrates by a preponderance of the evidence that the failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect, and the public entity does not establish that it would be prejudiced if relief were granted. (Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 156.) “[T]he showing required for relief under section 946.6 because of mistake, inadvertence, surprise or excusable neglect is the same as required under Code of Civil Procedure section 473 for relieving a party from a default judgment.” (Ebersol v. Cowan, supra, 35 Cal.3d at p. 435.) “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.” (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1293.)
Appellant contends his evidence established mistake, inadvertence, surprise and excusable neglect because (1) he showed that he mistakenly believed workers’ compensation was the only available remedy for his injuries and he was surprised to discover he had another, and (2) he demonstrated that he was unable, because of his physical condition, to investigate the facts, and that he lacked the “intellectual or physical ability to know a governmental entity was involved,” how to make a claim, or that he could make a claim other than for workers’ compensation.
A. Inadvertence, surprise and excusable neglect
“Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. [Citations.] Inadvertence in the abstract is no plea on which to vacate a default. [Citation.]” (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656.) The court must be apprised of the reasons for the inadvertence, to determine whether it was excusable or not. (Shearman v. Jorgensen (1895) 106 Cal. 483, 485.) Appellant has not identified anything he inadvertently did or omitted to do that led to his failure to present a timely claim; he has not cited any portion of the record in which he explained the reasons for any such omission.
“‘Surprise’” is defined as “some condition or situation in which a party is unexpectedly placed to his injury, without any fault of his own, under circumstances which he was not reasonably called upon to anticipate and which ordinary foresight could not have guarded against.” (Tammen v. County of San Diego, supra, 66 Cal.2d at p. 478.) Appellant asserts he was surprised to discover that he had a remedy other than workers’ compensation for his injuries. In Tammen, plaintiff’s decedent died after his vehicle struck two horses that had strayed onto the highway. Five months later, an insurance adjuster suggested to plaintiff that she might have a claim against the city. She discussed this with her attorneys; eleven months after decedent’s death, they filed with the county an application for leave to present a late claim based on the alleged dangerous condition of the road, asserting they did not discover the county’s involvement in maintenance of the highway until December, one month before filing the application. The court concluded it “stretche[d] one’s credulity” to believe plaintiff and her counsel could not have discovered the county’s involvement earlier, in the exercise of reasonable diligence. (Ibid.)
“If counsel was surprised to discover in the month of December that the County of San Diego was in some way responsible for the asserted dangerous and defective condition of the state highway, it is not the kind of surprise that will relieve his client from default…. It is not the purpose of remedial statutes to grant relief from defaults which are the result of inexcusable neglect of parties or their attorneys in the performance of the latter's obligation to their clients. [Citation.] The court therefore did not act arbitrarily in disbelieving that the identity of the public entities responsible for the condition of the state highway could not have been discovered until the indeterminate ‘month of December.’” (Tammen v. County of San Diego, supra, 66 Cal.2d at p. 478.)
“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.]” (Ebersol v. Cowan, supra, 35 Cal.3d at pp. 435.)
“In general, cases granting relief on the basis of excusable neglect involve plaintiffs who acted diligently to retain counsel within the 100-day limitation period. It is usually the neglectful conduct of counsel, or counsel’s staff, imputed to plaintiff, which is determined to be excusable. [¶ ] In contrast, … the cases denying relief under section 946.6 involve situations where the plaintiff failed to take any action whatsoever in pursuit of his or her claim within 100 days after the accrual of the cause of action; cases where the conduct of plaintiff's retained counsel was clearly unreasonable or inexcusably dilatory; and cases in which there was simply no competent evidence before the trial court upon which it could exercise its discretion.” (Ebersol v. Cowan, supra, 35 Cal.3d at pp. 435-437, fns. omitted.)
Excusable neglect “is not shown by the mere failure to discover a fact until it is too late; the party seeking relief must establish that in the exercise of reasonable diligence, he failed to discover it. [Citation.]” (People ex rel. Dept. of Transportation v. Superior Court, supra, 105 Cal.App.4th at p. 44.)
Both surprise and excusable neglect require that a claimant exercise reasonable diligence during the claim presentation period, to retain counsel and to discover the facts relevant to the claim.
“The law neither expects nor requires an unsophisticated claimant to undertake an in-depth investigation into the possible liability of public entities, or to be aware of the peculiar time limitations of the governmental claims statutes. However, California cases are uniformly clear that ‘a petitioner may not successfully argue excusable neglect when he or she fails to take any action in pursuit of the claim within the six-month period. The claimant must, at a minimum, make a diligent effort to obtain legal counsel within six months after the accrual of the cause of action. Once retained, it is the responsibility of legal counsel to diligently pursue the pertinent facts of the cause of action to identify possible defendants.’ [Citations.]” (People ex rel. Dept. of Transportation v. Superior Court, supra, 105 Cal.App.4th at pp. 44-45.)
In People ex rel. Dept. of Transportation v. Superior Court, plaintiff was injured and his wife was killed when their car passed through smoke on a state highway and caught fire. Plaintiff failed to present a claim to the state until more than six months after the incident. The court upheld the denial of plaintiff’s petition for relief from the claim presentation requirement.
Because plaintiff had not consulted an attorney until more than seven months after the incident, the pivotal issue was the diligence exercised by plaintiff during the six-month claim presentation period. “In this respect, the record demonstrates that there was no diligence at all. Isenhower did nothing until his fortuitous conversation with his barber, which took place seven months after the incident.” (People ex rel. Dept. of Transportation v. Superior Court, supra, 105 Cal.App.4th at 44.) Plaintiff argued that, because he believed the fire was set by an arsonist, his failure to discover the state’s involvement (negligent maintenance of weeds and shrubs by the road, which “‘were an attractant to an arsonist’”) was excusable. (Id. at p. 45.) The court rejected the argument, because there was no causal connection between plaintiff’s belief and his failure to consult counsel. (Ibid.)
“While it is true that the theory of liability Isenhower now seeks to raise would not occur to a layperson, this demonstrates why the exercise of reasonable diligence requires a person to make at least some effort to seek out counsel when confronted with a tragedy such as the one at bar.… Isenhower’s argument is equivalent to saying that a person mugged in a city-owned garage may be excused from seeking the advice of counsel in pursuing a claim for dangerous condition of public property because he thought his injuries were solely the fault of the mugger. It is precisely because theories of third party liability are subtle, complex, and often not readily apparent to a layman that due diligence requires at least consultation with legal counsel. [Citation.]” (People ex rel. Dept. of Transportation v. Superior Court, supra, 105 Cal.App.4th at pp. 45-46.)
In Shaddox v. Melcher (1969) 270 Cal.App.2d 598, an automobile accident case, the court found no abuse of discretion in the trial court’s denial of plaintiff’s petition for relief from the claim presentation requirement. Counsel’s supporting declaration merely stated that his client had not given him sufficient facts during the claim presentation period to “‘fully and clearly establish’” that the other driver, Melcher, was a state employee driving a state vehicle. (Id. at p. 599.) In opposition, Melcher declared that, at the time of the accident, he was interviewed by the Highway Patrol and gave them his name and address, as well as the name and address of his employer. The vehicle he was driving also had a sticker on the door on either side identifying the owner of the vehicle. (Id. at p. 600.) There was no declaration from plaintiff stating that she personally was unaware Melcher was a state employee driving a state car. “No reason was given for failure to make a timely, and obviously reasonable, inquiry of the highway patrol for information concerning the employment of the driver Melcher and the ownership of the car he was driving. That such information is available [citation] is commonly known to lawyers and even to laymen…. ‘It stretches one's credulity to believe that this information could not have been ascertained through the exercise of reasonable diligence....’” (Id. at p. 602.)
The evidence indicates that, like the plaintiff in People ex rel. Dept. of Transportation v. Superior Court, appellant did nothing during the claim presentation period. He did not present a timely claim against the city. He did not consult legal counsel to determine whether he had any claim against the other driver or anyone else, although it is common knowledge that, when an automobile accident occurs, an injured driver or passenger may have a claim against the driver at fault. Appellant gave a highway patrol officer a statement indicating his belief the other driver was at fault. Nonetheless, appellant failed to investigate or to consult an attorney to determine whether he had a claim against the other driver or anyone else.
Appellant did not investigate the circumstances of the accident by obtaining a copy of the traffic collision report, even though he gave an officer a statement and, as Shaddox observed, it is “commonly known to lawyers and even to laymen” that relevant information is available from the highway patrol.
Even if appellant had established that he did not, in fact, discover that he had a claim against the city until the claim presentation period had already passed, he did not establish that he failed to discover it “in the exercise of reasonable diligence.” Accordingly, the trial court did not abuse its discretion in refusing to grant relief on the ground of inadvertence, surprise or excusable neglect.
C. Mistake
Appellant asserts he failed to present a timely claim because he mistakenly believed his only remedy was through workers’ compensation. “A mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. [Citation.]” (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel, supra, 189 Cal.App.2d at p. 656.) If appellant’s asserted belief that workers’ compensation was his only remedy was a mistake, it was a mistake of law.
“‘“[A] mistake as to law does not require relief from default as a matter of law. [Citation.] The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law. [Citation.] Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief. [Citations.]”’ [Citation.]” (Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 683-684.
The court in Tammen v. County of San Diego, supra, 66 Cal.2d at p. 476 observed:
“‘There is a somewhat tenuous line between a mistake of law and ignorance of law. The difference is probably only one of degree. In such cases all factors involved must be considered to determine whether relief should be granted or denied. While there is a strong public policy in favor of permitting a trial of a case on its merits, the determination as to whether a particular mistake of law warrants the granting of relief reposes largely in the discretion of the trial court. (Citation.) In the instant case we are not interested in the question as to whether the trial court could have granted relief based on the claimed mistake of law, but, since the trial court denied relief, only in whether such holding was within its discretion.’ [Citation.].”
In Harrison v. County of Del Norte, supra, 168 Cal.App.3d 1, the court rejected plaintiff’s assertion that his ignorance of the existence of a cause of action constituted excusable neglect. Plaintiff asserted he failed to present a timely claim against the county and state because he was an “unsophisticated layman,” was unaware that he had a cause of action against any public entity, and thought his only remedy was workers’ compensation. The court upheld denial of plaintiff’s petition for relief.
“Excusable neglect is neglect which might have been the act or omission of a reasonably prudent person under the same or similar circumstances. [Citation.] Not every mistake of law is excusable. [Citation.] … [¶ ] Generally, the mere ignorance of the time limitation for filing against a public entity is not a sufficient ground for allowing a late claim. [Citation.] Moreover, ignorance of the possible cause of action against the public entity is insufficient to constitute excusable neglect. ‘Failure to discover the alleged basis of the cause of action in time is also not a compelling showing in the absence of reasonable diligence exercised for the purpose of discovering the facts.’ [Citations.]” (Harrison v. County of Del Norte, supra, 168 Cal.App.3d at p. 7.)
The Harrison court concluded:
“In this case, appellant took no steps whatsoever to obtain counsel until after the 100-day period had expired. Even if appellant was unaware of potential causes of action and of the claim presentation requirements, as stated in Tammen v. County of San Diego, supra, 66 Cal.2d at page 478, ‘[It] stretches one's credulity to believe that this information could not have been ascertained through the exercise of reasonable diligence....’ We therefore hold that the trial court did not abuse its discretion in finding that appellant's neglect in failing to timely file claims with the public entities was inexcusable.” (Harrison v. County of Del Norte, supra, 168 Cal.App.3d at p. 8.)
In Ebersol v. Cowan, supra, 35 Cal.3d at p. 435, plaintiff contacted an attorney the day of her injury, and was advised she had no case. She contacted eight other attorneys during and shortly after the 100-day claim presentation period, but none would take her case and none advised her she had a claim against the county. About two weeks after expiration of the claim presentation period, she contacted another law firm and was advised of her potential claim against the county. She retained that firm and filed an application for leave to present a late claim.
Plaintiff contended her ignorance of the existence of a cause of action against the county, combined with her consistent efforts to obtain legal representation, constituted mistake or excusable neglect warranting relief from the claim presentation requirements under section 946.6. The court agreed, and concluded the trial court abused its discretion in denying relief. (Ebersol v. Cowan, supra, 35 Cal.3d at p. 435.) The court noted this was not a case in which plaintiff did nothing during the 100-day period, or counsel was unreasonable or inexcusably dilatory. (Id. at pp. 435-436.) “Rather, as in previous cases granting relief on the basis of excusable neglect, Ms. Ebersol acted diligently to retain legal counsel within the 100-day limitation period.” (Id. at p. 437.)
In the instant case, appellant asserts he was unaware of his remedy and of the claim presentation requirement. Ignorance of a possible cause of action against a public entity and of the claim presentation requirement does not constitute excusable neglect or mistake in the absence of a showing that the claimant exercised reasonable diligence to consult counsel and discover the available remedies during the claim presentation period. Appellant did nothing during the claim presentation period to consult legal counsel or to pursue any claims he might have had other than through workers’ compensation. The trial court’s denial of relief was not an abuse of its discretion.
Appellant cites Powell v. City of Long Beach (1985) 172 Cal.App.3d 105 in support of his claim for relief. In Powell, plaintiff was injured while working as a longshoreman at Long Beach Harbor. There were no signs posted or any other indications that the wharf was owned by the city, and plaintiff believed it was owned by his employer, Crescent Wharf and Warehouse. Plaintiff obtained workers’ compensation benefits; he believed this was his exclusive remedy for his injuries. Plaintiff consulted an attorney approximately 151 days after his injury; five days later, the attorney presented a claim to the city, along with an application for leave to present a late claim. The court reversed the denial of plaintiff’s petition for relief from the claim presentation requirement.
The court noted: “Excusable neglect has not been found when no steps were taken to retain counsel [citation]; when ignorance of the law was the only ground upon which relief was sought [citation]; nor when failure to discover the alleged basis for the cause of action was asserted [citation].” (Powell v. City of Long Beach, supra, 172 Cal.App.3d at p. 109, fn. omitted.) The court concluded that “though a close case, appellant has shown that he did act as a reasonably prudent person would have under the same circumstances.” (Id. at p. 110.) Plaintiff’s belief workers’ compensation was his exclusive remedy was reasonable.
“[T]here is no visible evidence of the true ownership of the workplace. It follows, therefore, that his failure to seek advice of counsel was excusable as this inaction was due to his belief that workers' compensation was his sole remedy. Appellant was not idle; he promptly sought and was granted his workers’ compensation benefits. In so doing he had no reason to seek advice of counsel and, in fact, was acting in just the manner designed by the workers' compensation laws. [Citation.]” (Powell v. City of Long Beach, supra, 172 Cal.App.3d at p. 110.)
In Powell, plaintiff had no reason to believe anyone other than his employer was involved in his injury. The injury occurred on the premises where he worked. He believed his employer owned the premises, and there was nothing on the premises to indicate otherwise. Additionally, he presented his application for leave to present a late claim only about 55 days after expiration of the claim presentation period, well within the one-year period after accrual of the cause of action.
Appellant asserts he, too, believed workers’ compensation was his only remedy. He presented no evidence, however, of a reasonable basis for believing his employer was the only party responsible for his injuries. There was no evidence he believed the other truck involved in the collision was owned or operated by his employer. There was no evidence that would make such a belief reasonable; appellant declared he was taken from the scene by ambulance without seeing the truck that collided with his, and without speaking to its driver. Consequently, he had no basis for believing the truck and driver were connected with his employer.
Appellant asserted he had “no way of knowing” a city employee was involved “until I obtained the police report after the six month period had lapsed, and was informed by others in translating the police report of their involvement.” Appellant knew on the day of the accident, however, that he had been involved in a traffic collision with another vehicle, which he believed was caused by the other driver. He knew he was seriously injured as a result. Regardless of whether he knew a city vehicle and city employee were involved, he knew the facts giving rise to a potential cause of action against the other driver and the owner of the vehicle. He knew enough to cause a reasonable person in the same situation to consult an attorney to determine his legal rights. Yet he did nothing for almost ten months. Additionally, appellant’s application for leave to present a late claim was filed just eight days before the end of the one-year period within which such an application must be filed. (See § 911.4)
This is not a “close case” like Powell. Rather, it is like Harrison, where plaintiff took no steps to pursue his claim or to consult counsel during the claim presentation period, and there was no sufficient showing that he could not, with reasonable diligence, have discovered his cause of action within that period. The trial court did not abuse its discretion in concluding appellant’s evidence did not demonstrate an excusable mistake, but established only ignorance of the law, coupled with a failure to exercise reasonable diligence to consult counsel and discover the relevant facts and available remedies during the claim presentation period.
CONCLUSION
The trial court did not abuse its discretion in denying relief from the claim presentation requirement, based on its conclusion that appellant did not establish that his failure to present a timely claim was due to physical or mental incapacity or to mistake, inadvertence, surprise, or excusable neglect.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: HARRIS, Acting P.J., DAWSON, J.