Opinion
For Opinion on Hearing, see 54 Cal.Rptr. 313, 419 P.2d 433.
Trippet, Yoakum & Ballantyne and Thomas H. Carver, Los Angeles, for plaintiffs and appellants.
McInnis, Focht & Fitzgerald and William T. Fitzgerald, San Diego, for defendant and respondent.
Assigned by the Chairman of the Judicial Council.
This is an appeal by the widow and the minor child of Dr. Tammen from an order denying their petition to file a late claim for damages against the County of San Diego by reason of his death. The claim was not filed within 100 days after the death of Dr. Tammen, but it was filed within one year.
Dr. Tammen's automobile struck two horses that had strayed onto State Highway 78 in San Diego County on February 17, 1963; he died the following day. An insurance adjuster representing the owner of the horses, talked to Mrs. Tammen about the accident the same day the doctor died. He or other adjusters talked with her again, but it was not until July 19, 1963, five months after the death, that an adjuster suggested to Mrs. Tammen she might have a claim against the City of Oceanside. She contacted her attorneys regarding the possibility of filing a claim, and left the matter in their hands.
On January 8, 1964, on behalf of appellants, a $750,000 claim was filed with the San Diego County Board of Supervisors, who rejected it as not timely filed. On January 22, appellants filed with the board an application for leave to file a late claim; this too, was denied. On March 6, 1964, appellants petitioned the Superior Court of San Diego County for permission to file a late claim.
The county filed no opposition to the petition, although counsel appeared and resisted the motion for permission to file late. One of the attorneys for appellants filed a declaration setting forth the legal complexities and investigatory difficulties encountered in preparing to file the claim. At the request of the court, the widow appeared and testified concerning the circumstances surrounding her failure to file a claim and her request for permission to file a late claim.
A threshold question is raised as to the law applicable, since the cause of action arose after the Legislature, by Civil Code section 22.3, suspended the rule of Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, but before the 1963 legislation became effective. Division 3.6, added to the Government Code (§§ 810-996.6) by the 1963 Legislature to deal comprehensively with the problem of governmental immunity, was made retroactive so far as constitutionally permissible, to September 15, 1961, the effective date of Civil Code section 22.3. Retroactivity was limited by the proviso that:
'Nothing in this act revives or reinstates any cause of action that, on the effective date of this act, is barred either by failure to comply with any applicable statute, charter or ordinance requiring the presentation of a claim or by failure to commence an action thereon within the period prescribed by an applicable statute of limitations.' (Stats.1963, ch. 1681, § 45(b).)
Hence, the retroactive aspect of the Tort Claims Act did not dispense with the necessity for filing tort claims with public entities within the 100 days prescribed by former Government Code sections 714-716, then in effect. (See Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488, 20 Cal.Rptr. 621, 370 P.2d 325; Dias v. Eden Township Hospital Dist., 57 Cal.2d 502, 20 Cal.Rptr. 630, 370 P.2d 334.) However, the application to the board for a late filing, and the petition to the superior court for authorization to file late, were made after the effective date of division 3.6 of the Government Code. Consequently, Government Code sections 911.2-912.2 govern these proceedings. (Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar) p. 711, note 7; Manquero Turning to specific provisions of the 1963 act, Government Code section 911.4 provides that a claimant may petition a public entity for relief from failure to file a claim within 100 days after the accrual of the cause of action, provided the application is presented to the public entity within a reasonable time not to exceed one year after the accrual of the cause of action and the application states the reason for the delay in presenting the claim. Section 911.6 specifies four grounds upon which late filing may be permitted by the public entity, and since these grounds are substantially the same as those upon which a superior court may authorize a late filing (GOV.CODE § 912 ), we shall discuss them in connection with appellants' court proceeding.
Government Code section 912, under which the action was brought, has been repealed and in substance is incorporated in Government Code section 946.6.
The pertinent conditions governing a hearing in the superior court for late filing under former section 912, are:
'(b) The superior court shall grant leave to present a claim after the expiration of the time specified in Section 911.2 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed one year after the accrual of the cause of action and was denied or deemed denied pursuant to Section 911.6 and that:
'(1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity against which the claim is made establishes that it would be prejudiced if leave to present the claim were granted; or
'(2) The claimant was a minor during all of the time specified in Section 911.2 for the presentation of the claim; or
'(3) The claimant 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 such disability failed to present a claim during such time; or
'(4) The claimant died before the expiration of the time specified in Section 911.2 for the presentation of the claim.'
Thus, a claimant who petitions the superior court for permission to file a late claim must clear two hurdles. First, he must show that his failure to file within 100 days after the cause of action accrued comes within one of the four grounds specified in section 912(b). Second, and additionally, he must show that his claim filed after the expiration of 100 days, was filed within a reasonable time not to exceed one year after the accrual of the cause of action.
The trial court found that appellant Marjorie Tammen's failure to file a claim within 100 days was not due to either of the two causes she alleged: mistake, inadvertence, surprise or excusable neglect, under paragraph (1), or her physical or mental incapacity, under paragraph (3). The court also found that appellant Stephan Tammen was a minor during all times specified, but then made a blanket finding that the application of both appellants was not filed within a reasonable time.
We examine the findings in the light of the evidence, noting that a trial court, upon hearing a petition to authorize a late filing, must conduct a hearing de novo in compliance with Government Code section 912(e), requiring the trial court to 'make an independent determination upon the application' (see Van Alstyne, supra, § 8.34, p. 393); and, further, that an appellate court in reviewing a proceeding upon a petition for authorization to file a late claim, is bound by the record and the traditional rules governing appeals.
There is evidence supporting the trial court's finding that Marjorie Tammen was not physically or mentally incapacitated during all of the time specified in section Camp v. Ortega,
'As a general rule, the unimpeached and uncontradicted testimony of a witness, not inherently improbable, cannot be arbitrarily disregarded and should be accepted as true by the trier of fact. [Citations.]'
As far as the record before us is concerned, Mrs. Tammen's failure to file a claim within 100 days was because she knew nothing about such a claim. Clearly, this reason for not filing comes within the ambit of 'mistake, inadvertence, surprise or excusable neglect,' specified in paragraph (1) of section 912(b). The trial court's finding to the contrary has no support in the evidence.
This conclusion, however, gets Mrs. Tammen over just the first hurdle, failure to file within 100 days. Subdivision (b) of section 912 requires her to demonstrate also that her claim was filed within a reasonable time, not to exceed one year after the accrual of the cause of action.
The inquiry shifts to whether the delay from July 19, 1963, to January 8, 1964, was reasonable, and the question immediately arises, How is reasonableness determined? The phrase, 'within a reasonable time,' if considered literally, is so general that it is of little help even when considered in the light of cases construing Code of Civil Procedure section 473. It must be viewed in the context of the statute, and even then its meaning can be gathered only by viewing 'reasonableness' in relation to the object the statute as a whole is meant to accomplish. So, we ask, first, What is the purpose of requiring the filing of a claim under the California Tort Claims Act of 1963? The Supreme Court gave an answer, general in scope but nonetheless applicable here, when it said, in Dias v. Eden Township Hospital Dist., supra, 57 Cal.2d 502, at page 503, 20 Cal.Rptr. 630, at page 631, 370 P.2d 334, at page 335:
'The principal purpose of such statutes is to give a public entity timely notice of the nature of claims against it so that it may investigate and settle those of merit without litigation.'
(See also Cal. Law Revision Commission Recommendations relating to sovereign immunity, p. 1008.)
We must weigh the language, 'within a reasonable time,' against two factors, opportunity to investigate and opportunity to settle without litigation. The statute places the burden as to the issue of prejudice on the public entity. Section 912(b), paragraph (1), provides for granting permission for late filing if the necessary requirements are met, 'unless the public entity against which the claim is made establishes that it would be prejudiced if leave to present the claim were granted.' Respondent here made no showing of prejudice for any reason and the only finding that purports to cover this issue is more of a conclusion of law than a finding of fact; it simply recites that 'the claim was not filed within a reasonable time.'
The other objective of the statute, opportunity to settle meritorious cases without litigation, confronts us with a discovery question. Appellants sought an order requiring respondent to answer interrogatories served after the petition for leave to file late claim was filed. The interrogatories were designed to show that the board of supervisors rejected every claim in excess of $5,000 regardless of the merits of the individual claim. The trial court denied appellants this right to discovery, and we conclude it erred. Code of Civil Procedure Not only were appellants prevented from obtaining evidence on this issue by means of interrogatories, but the purported finding of fact that the claim was not filed within a reasonable time is not supported by any evidence. It is conclusionary, and will not support the conclusion of law that 'The petition for leave to present a claim pursuant to section 912 of the Government Code of the State of California should be denied.'
The claim of the minor presents additional questions, since he seeks permission to file under paragraph (2) of section 912(b), pertaining to minors. Professor Van Alstyne points out in California Government Tort Liability, supra, at page 390, that
'No causal connection between the fact of minority and the failure to present a timely claim need be shown, and lack of prejudice to the entity is not a condition of relief.'
Although Professor Van Alstyne was commenting upon minority during the 100-day period specified in section 911.2, it would appear that if minority continues until a minor seeks permission to file a late claim, the same reasoning is applicable. Van Alstyne frequently refers to Morrill v. City of Santa Monica, 223 Cal.App.2d 703, 35 Cal.Rptr. 924, as a guide in 'applying the analogous provision of former Government Code section 716.' In Morrill there is language which we believe expresses the spirit in which Government Code sections 911.6 and 912 (now § 946.6) should be interpreted insofar as it relates to the claim of a minor:
'The language of the sections referred to [714, 715 and 716] was not enacted to penalize minors or to deprive them of their rights in cases where adults may have slept on their rights--quite to the contrary the statutes are to protect minors.' (P. 708, 35 Cal.Rptr., p. 927.)
The foregoing reasoning is particularly persuasive where the public entity has made no claim of prejudice because of a late filing and the record does not reflect that a late filing will violate the purposes of the Tort Claims Act.
Appellants question the constitutionality of the retroactive application of division 3.6 of the Government Code. This question was laid to rest when the Supreme Court upheld the constitutionality of the act in County of Los Angeles v. Superior Court, 62 Cal.2d 839, 44 Cal.Rptr. 796, 402 P.2d 868. (See also Flournoy v. State of California, 230 Cal.App.2d 520, 41 Cal.Rptr. 190; Heieck and Moran v. City of Modesto, 64 A.C. 238, 240, 49 Cal.Rptr. 377, 411 P.2d 105.)
Appellants assert the statute is unconstitutional for the additional reason that it requires the filing of a claim as a condition precedent to bringing an action against a public entity, while actions against private persons are not so conditioned. This, they contend, violates the due process and equal protection clauses of 'the United States Constitution, Amendment XIV, and the State Constitution, Article V [IV], Section 25, paragraph 19, prohibiting the granting to any corporation, association or individual of any special or exclusive right, privilege, or immunity; and Article I Sections 11 and 21 which provide that all laws of a general nature shall have a uniform operation, and which prohibit the granting The contention is wholly without merit. In Dias v. Eden Township Hospital Dist., supra, at page 504, 20 Cal.Rptr. 630, at page 631, the Supreme Court said:
'Public agencies, generally speaking afford a proper subject for legislative classification.'
In Wadley v. County of Los Angeles, 205 Cal.App.2d 668, 23 Cal.Rptr. 154, the court considered the same constitutional arguments that appellants advance, and rejected them a invalid. (See also County of Los Angeles v. Superior Court, supra, 62 Cal.2d at p. 846, 44 Cal.Rptr. 796; Flournoy v. State of California, supra.)
The order is reversed.
GERALD BROWN, P. J., and COUGHLIN, J., concur.