Opinion
E050244 Super.Ct.No. RIC525842
09-15-2011
COLONY NATIONAL INSURANCE COMPANY, Plaintiff and Appellant, v. CITY OF CORONA, Defendant and Respondent.
Gordon & Rees, Stephen E. Ronk, Mollie Burks-Thomas, Donald Choi and Don Willenburg for Plaintiff and Appellant. Best Best & Krieger, John D. Higginbotham, G. Ross Trindle, III, and Kira L. Klatchko for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.
Gordon & Rees, Stephen E. Ronk, Mollie Burks-Thomas, Donald Choi and Don Willenburg for Plaintiff and Appellant.
Best Best & Krieger, John D. Higginbotham, G. Ross Trindle, III, and Kira L. Klatchko for Defendant and Respondent.
I
INTRODUCTION
This appeal involves two related appeals, Colony National Insurance Company v. City of Corona, E050244, and Colony National Insurance Company v. City of Norco, E050687. The cases have not been consolidated but our opinions refer to the appellate records submitted in both cases. We grant appellant's requests for judicial notice dated September 10, 2010, and December 20, 2010. We also grant Corona's request for judicial notice dated December 22, 2010. (Evid. Code, § 452, subd. (d).)
Paul Carlos Sanchez was killed in a collision involving his Suzuki motorcycle and a Ford Ranger, occurring on Hidden Valley Parkway, on the border between the Cities of Corona and Norco. Sanchez's heirs filed a wrongful death action against the driver, James Michael Coffman, and his employer and the owner of the Ford Ranger.
The Gonzales case, Gonzales v. Henry Brothers Electronics, Inc. et al., No. 30-2007-00100096.
Appellant Colony National Insurance Company (Colony National) was an excess insurer for the Gonzales defendants. Colony National paid $2.715 million as part of the Gonzales settlement. In two separate superior court proceedings, Colony National, filed petitions seeking leave to file actions for indemnity against respondents, the City of Corona and the City of Norco. (Gov. Code, § 946.6.)
All statutory references are to the Government Code unless stated otherwise.
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The superior court denied both petitions. Colony National appeals from the orders denying its petitions. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, fn. 8.) We hold that, because Colony National did not make the requisite showing of mistake, inadvertence, surprise, or excusable neglect, the trial court did not abuse its discretion in denying the petitions. (§ 946.6, subd. (c)(1).)
We affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The subject appeals arise from the Gonzales lawsuit for the wrongful death of Paul Carlos Sanchez (Sanchez). On July 2, 2007, Sanchez was killed after his Suzuki motorcycle was hit by a Ford Ranger, driven by James Michael Coffman (Coffman), at the intersection of Hidden Valley Parkway and Via Blairo. According to the Corona police report, Coffman, driving eastbound on Hidden Valley Parkway, tried to effect a U-turn to go westbound on Hidden Valley Parkway. Coffman struck Sanchez, who was traveling eastbound. Colony National contends the traffic sensor at Via Blairo, in Corona, and the traffic signal at Hidden Valley Parkway and Corona Avenue, in Norco, may have been malfunctioning and contributed to the accident.
Sanchez's family, the Gonzales plaintiffs, sued Coffman and his employer in 2007. In August 2008, the Gonzales plaintiffs also separately sued Norco for dangerous condition of public property. (Gonzales v. City of Norco, No. 30-2008-00111274.) In December 2008, the Gonzales plaintiffs obtained a settlement of $3.6 million from Colony National and another insurer, with Colony National contributing $2.715 million.
In February and October 2009, after the settlement of the underlying Gonzales case, Colony National filed petitions for leave to file an indemnity action against Corona. ("Corona petition," Colony National Insurance Company v. City of Corona, case No. RIC525842.) In October 2009, Colony National filed a similar petition for leave to file an indemnity action against Norco. ("Norco petition," Colony National Insurance Company v. City of Norco, case No. RIC537014.) In the Corona and Norco petitions, Colony National alleged that it was prevented from knowing about Corona or Norco's potential liability because the 51-page Corona police report did not identify the malfunctioning traffic signal at Hidden Valley Parkway in Norco or the traffic sensor at Via Blairo in Corona.
Colony National also alleged the Gonzales plaintiffs did not disclose Corona and Norco's potential liability to Colony National and did not file notice of related cases in the wrongful death case and the dangerous-conditions case against Norco. Additionally, Colony National was not informed about tolling agreements between the Gonzales plaintiffs and Norco and Corona. Therefore, Colony National did not discover Norco and Corona's potential liability based on the traffic signal or sensor until December 19, 2008 "[t]hrough unsolicited contact by previously unidentified third-party witnesses who just recently came forward."
In separate hearings on the Corona and Norco petitions, Judges John D. Molloy and Sharon J. Waters, respectively, determined that Colony National had not established mistake, inadvertence, surprise or excusable neglect, justifying relief under section 946.6.
III
DISCUSSION
Before a party may file a suit for money or damages against a public entity, section 945.4 requires that a timely written claim must be presented to the public entity within six months after the cause of action accrues. (§ 911.2.) Colony National sought relief from that requirement under section 946.6. The pertinent requirement of section 946.6 is as follows:
"(c) The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that . . . one or more of the following is applicable:
"(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."
Colony National argues that the trial court abused its discretion in refusing to grant relief in this case and denying the Corona petition: "The determination of the trial court in granting or denying a petition for relief under section 946.6 will not be disturbed on appeal except for an abuse of discretion. [Fn. omitted.] (Viles v. State of California (1967) 66 Cal.2d 24, 28.) 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 which otherwise provide a trap for the unwary claimant. (Viles, supra, at pp. 30-31.) The remedial policies underlying the statute are 'that wherever possible cases be heard on their merits, and any doubts which may exist should be resolved in favor of the application.' (Id., at p. 29.) Thus, '[a]n appellate court will be more rigorous in examining the denial of such relief than its allowance.' (County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 552.)
"We have said that the 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 (see, e.g., County of Santa Clara, supra, at p. 550, fn. 1; Viles, supra, 66 Cal.2d 24, 29.)" (Ebersol v. Cowan, supra, 35 Cal.3d at p. 435; Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 273-274.)
Colony National maintains that it has shown mistake, surprise, or excusable neglect. "In deciding whether counsel's error is excusable, this court looks to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. [Citations.] In examining the mistake or neglect, the court inquires whether 'a reasonably prudent person under the same or similar circumstances' might have made the same error. [Citation.] In addition, '[unless] inexcusable neglect is clear, the policy favoring trial on the merits prevails.' (Elston [v. City of Turlock (1985) 38 Cal.3d 227,] 235.)" (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at p. 276.) In three leading cases—Viles, Ebersol, and Santa Clara—the parties demonstrated relief was justified. In Viles, plaintiff had received incorrect information about filing deadlines. In Santa Clara, plaintiffs' delay was caused by the trauma of their son's death and their efforts to discover its cause. In Ebersol, a plaintiff was delayed by her unsuccessful efforts to obtain counsel.
Colony National, an insurer and a sophisticated litigant, asserts that its failure to present a timely indemnity claim to the cities was excused because the misleading police report "misrepresented the true state of affairs" and prevented Colony National from discovering the "inoperative traffic devices." Colony National focuses particularly on the accident scene photographs taken by the Corona police which show that the traffic signal was not "covered or 'screened,'" indicating it was nonoperational, and the box checked on the collision report, indicating that traffic control devices were "functioning." Colony National claims that a reasonable person would have relied on the official Corona police report, which misrepresented that the traffic controls were functioning at the time of the accident. Additionally, Colony National blames the Gonzales plaintiffs for "hiding" key facts related to the potential liability of Corona and Norco. Colony National also contends there was no demonstrable prejudice to the cities if Colony National was allowed to pursue its indemnity claims.
Colony National's arguments fail for a number of reasons. Most importantly, Colony National, not the cities, was required to investigate the accident if it suspected injury or wrongdoing: "A plaintiff has reason to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements.'" (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) A limitations period begins to run once a reasonable person should have become suspicious. (Nogart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398.) In order to obtain relief from the mandatory claims period, Colony National had to show it did not know or have reason to know the cities were involved. (Leake v. Wu (1976) 64 Cal.App.3d 668, 673; City of Fresno v. Superior Court (1980) 104 Cal.App.3d 25, 32.) It was not incumbent on the Gonzales plaintiffs, Norco, or Corona to inform Colony National about potential liability for Norco or Corona. (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1295-1296 & fn. 6.)
Instead, Colony National ignores the obvious fact that the accident occurred on a public street in Corona, putting any reasonable insurer on notice that Corona was potentially liable. Had Colony National acted diligently and conducted an investigation, it could have easily discovered that the Gonzales plaintiffs had filed governmental claims against Corona and Norco, sued Norco for dangerous condition of public property, and executed tolling agreements with both cities. Apparently Colony National undertook a belated independent investigation only after it received "unsolicited contact by previously unidentified third-party witnesses who just recently came forward on December 19, 2008." Colony National should have conducted its own investigation of the accident site after the accident occurred in July 2007. At minimum, it should have filed a Public Records Act (§ 6250 et seq.)request to obtain the disclosure of public documents bearing on the accident. Colony National cannot blame its dilatory conduct on the Gonzales plaintiffs, Corona or Norco, or the Corona police report.
Furthermore, as Corona persuasively argues, the Corona police report does not misrepresent the condition of the Via Blairo traffic sensor or the Norco traffic signal. As Corona explains, the police report rejects Coffman's version of the accident in which he describes pulling into the entrance to Via Blairo before turning the opposite direction on Hidden Valley Parkway. Instead, the police report concludes that Coffman made an illegal U-turn in the middle of Hidden Valley Parkway without entering Via Blairo. Therefore, the traffic sensor and the traffic signal were not involved in the collision. Whether the traffic sensor or the signal was operative was not a factor in the accident or an issue in the police report.
Even if Colony National had successfully demonstrated mistake, surprise, or excusable neglect it could not refute the prejudice to Corona. Under sections 946.6, subdivision (c), and section 911.4, a late claim must be made within a reasonable time, not to exceed one year after accrual of a cause of action. Colony National presented its late claim to Corona on January 9, 2009, more than a year and a half after the accident on July 2, 2007, and nearly one year after being served with the Gonzales complaint on January 16, 2008. As such, the presentation of the late claim was not made within a reasonable time. Corona was undeniably prejudiced by Colony National's delay because it was prevented from participating in the settlement negotiations or the ultimate settlement of the Gonzales case for which Colony National now seeks indemnity for payment of $2.715 million.
IV
DISPOSITION
Colony National did not demonstrate mistake, inadvertence, surprise, or excusable neglect, justifying relief under section 946.6, subdivision (c)(1). The prejudice to Corona was not refuted. The trial court did not abuse its discretion in denying Colony National's petition.
We affirm the judgment and order Corona as the prevailing party to recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur: McKinster
Acting P.J.
King
J.