Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C0-601857
Swager, J.
Appellant Katherine De Mingo appeals the trial court’s order denying her petition for relief from the claim-filing requirements of the Government Claims Act. We affirm.
“Because of the broad scope of the claim requirements, a number of Courts of Appeal have followed the suggestion . . . that ‘Government Claims Act’ is a more appropriate short title than the traditional ‘Tort Claims Act.’ [Citations.] We agree that this practice is a useful way to reduce confusion over the application of the claim requirements. Henceforth, we will refer to title 1, division 3.6, parts 1 through 7 of the Government Code (§ 810 et seq.) as the Government Claims Act.” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741–742, fn. omitted.)
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 18, 2005, appellant was hired as a teacher for infants at a Head Start program run by respondent Contra Costa County (County). Two months later, on September 19, 2005, the County terminated her employment.
On December 23, 2005, appellant filed a complaint with the Department of Fair Employment and Housing (Department) alleging that the County had discriminated against her on the basis of her disability. The Department sent appellant a letter on April 5, 2006, notifying her that it had found insufficient evidence to prove a statutory violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA). The letter also served as her right-to-sue notice.
In May 2006, appellant met with her present attorney and learned for the first time of the six-month claim-filing deadline mandated by Government Code section 911.2. Three more months elapsed before she applied to the County for relief from this deadline. Much of the delay resulted from her attorney’s mistaken belief that she first needed to file a claim and have it denied before she could seek leave to file a late claim.
All subsequent statutory references are to the Government Code except where indicated otherwise.
On July 17, 2006, appellant’s attorney filed a claim with the County for “unpaid wages, retaliation for whistle blowing and other acts, defamation, intentional and negligent infliction of emotional distress, and wrongful termination in violation of public policy.” The County notified appellant’s attorney on July 19, 2006, that the claim would be denied because it had been filed beyond the statutory deadline. On August 11, 2006, appellant filed an application with the County’s board of supervisors for leave to file a late claim. The board of supervisors denied her application on September 12, 2006.
On September 18, 2006, appellant filed a complaint against the County in the superior court. The complaint alleged nine causes of action.
The causes of action alleged in the complaint are: 1) failure to prevent discrimination and harassment in violation of the FEHA, 2) discrimination and harassment based on physical disability in violation of the FEHA, 3) retaliation in violation of FEHA, 4) wrongful termination in violation of FEHA, 5) wrongful termination in violation of public policy, 6) defamation, 7) intentional infliction of emotional distress, 8) retaliation for whistle blowing in violation of Labor Code section 1102.5, and 9) failure to pay wages/waiting time penalties.
Appellant filed a petition on December 26, 2006, in the superior court under section 946.6 for relief from the claim-filing requirement. In her accompanying declaration, she stated that even though she had contacted between 10 and 15 attorneys, as well as the County’s affirmative action office, she did not become aware of the claim-filing requirement until after she consulted with her present attorney. On March 9, 2007, the court filed its order denying appellant relief. This appeal followed.
DISCUSSION
I. Law Governing Claims Against Public Entities
Section 905 requires the presentation of “all claims for money or damages against local public entities . . . .” Under section 911.2, subdivision (a), “A claim relating to a cause of action for . . . injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action.” Section 945.4 provides that “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon . . . or has been deemed to have been rejected . . . .” “Thus, under these statutes, failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
“The purpose of the claims statutes is not to prevent surprise, but ‘to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. [Citations.] It is well settled that claims statutes must be satisfied even in face of the public entity’s actual knowledge of the circumstances surrounding the claim.’ [Citation.] The claims statutes also ‘enable the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future.’ [Citations.]” (City of Stockton v. Superior Court, supra, 42 Cal.4th 730, 738.)
Section 911.4, subdivision (b) provides relief for claimants who fail to present a claim within the six-month statutory period by enabling them to file with the public entity “within a reasonable time not to exceed one year after the accrual of the cause of action” an application for leave to present a late claim. The application must state the reason for the delay. (§ 911.4, subds. (a), (b).)
If the public entity denies the application, the claimant can file a petition with superior court for relief from the claim-filing requirement. Section 946.6, subdivision (c), provides, in part: “The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time . . . and was denied . . . and that . . . [t]he 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.” (Italics added.)
II. Standard of Review
On appeal from the denial of a petition for relief from the provisions of section 945.4 the standard of review is abuse of discretion. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275.) 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.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293 (Dept. of Water & Power). 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.)
III. The Trial Court did not Abuse its Discretion in Denying the Petition
In her petition to the trial court, appellant claimed that her failure to present the claim within the six-month period set by section 911.2 was the result of her “excusable neglect.” She stated she had been “unaware of the necessity” of filing a claim, but asserted that she had diligently pursued her case, contacting a number of attorneys as well as the County’s affirmative action office. No one that she spoke with informed her of the need to file a claim with the County.
Acknowledging that case law holds mere ignorance of the claim-filing requirement is insufficient to excuse noncompliance, appellant asserted that she should be excused because she “diligently sought the help of professionals.” She conceded that much of the delay in applying to the board of supervisors for relief was due to her retained counsel’s mistaken belief that a claim had to be denied as untimely before an application for leave to file a late claim could be presented. Her attorney also filed a declaration confirming this error and stating that she informed appellant in May 2006 that the six-month time limit had already expired.
Relying on Tammen v. County of San Diego (1967) 66 Cal.2d 468, 476 (Tammen), the trial court found that appellant had failed to demonstrate excusable neglect. The court also found that she had failed to present her late-claim application within a reasonable time after she learned of the claim-filing requirement. The court did not rule on which of the complaint’s causes of action were barred by section 945.4, concluding that the issue would be more properly decided on motion for summary judgment or judgment on the pleadings.
A. Excusable Neglect
“The showing required of a petitioner seeking relief under the authority of [] section 946.6 on the grounds of mistake, inadvertence, surprise or excusable neglect is the same as required under section 473 of the Code of Civil Procedure for relieving a party from a default judgment.” (Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 483.) Courts have defined “excusable neglect” as “that neglect which might have been the act of a reasonably prudent person under the circumstances. A person seeking relief must show more than just failure to discover a fact until too late; or a simple failure to act. He must show by a preponderance of the evidence that in the use of reasonable diligence, he could not discover the fact or could not act upon it.” (Dept. of Water & Power, supra, 82 Cal.App.4th 1288, 1296.)
Excusable neglect typically involves the failure to discover pertinent facts while exercising reasonable diligence. (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44.) Other kinds of mistakes that are generally considered excusable are those involving factual knowledge of the jurisdiction over the exact location of the subject incident or calendaring errors made by attorneys or their staff. (See, e.g., Lawrence v. State of California (1985) 171 Cal.App.3d 242, 244–246 [mistake as to jurisdiction]; Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529 and cases cited therein.) Whatever the mistake, the party seeking relief must establish that he or she was diligent in investigating and pursuing the claim. (Dept. of Water & Power, supra, 82 Cal.App.4th 1288, 1293.)
In this regard, laypersons are not held to the same standards as attorneys. “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 39, 44–45.)
Citing to Ebersol v. Cowan (1983) 35 Cal.3d 427 (Ebersol), appellant faults the court for denying her petition, arguing that she demonstrated she had made diligent efforts to find counsel before the period expired. The facts of Ebersol, however, are distinguishable.
In Ebersol, the court held that the plaintiff had exercised reasonable diligence because she sought legal advice on the day of her injury and consulted nine attorneys, each of whom told her she had no case, before she found counsel who discovered that she had a potential claim against a county. (Ebersol, supra, 35 Cal.3d 427, 432–433.) The court emphasized that the plaintiff had “acted swiftly to place her case in the hands of an attorney on the very day she was injured. Thereafter, despite repeated rebuffs by the attorneys she contacted, Ms. Ebersol continued to seek legal advice and assistance. Despite her physical pain, the progressive deformity of her left hand, her frequent and prolonged admissions to the hospital, and her frequent outpatient medical treatments, Ms. Ebersol continued her search.” (Id. at p. 437.) The court concluded that the plaintiff’s efforts to obtain counsel during the limitation period “were both tenacious and diligent.” (Ibid.) Significantly, in addition to being unaware of the Government Claims Act, the plaintiff had no way of learning the identity of the public entity that was responsible for her damages. (Ebersol, supra, at p. 439.)
We first observe that while appellant complains none of the attorneys she consulted with advised her of the claim-filing requirement, this result is understandable as that discussion would have entailed the giving of legal advice, which would likely have triggered the attorney-client relationship. “Although the [attorney-client] relationship usually arises from an express contract between the attorney and the client, it may also arise by implication.” (Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 444.) Indeed, it has long been held that an attorney-client relationship may arise from a preliminary consultation by a prospective client who seeks, and receives, legal advice, even though no formal agreement for representation results. (Miller v. Metzinger (1979) 91 Cal.App.3d 31, 39–42; see also Perkins v. West Coast Lumber Co. (1900) 129 Cal. 427, 429 [“When a party seeking legal advice consults an attorney at law and secures that advice, the relation of attorney and client is established prima facie”].)
Appellant’s declaration does not indicate whether the 10 to 15 attorneys appellant spoke with refused to accept her as a client. Assuming that they refused to represent her, the implication of appellant’s position appears to be that her inability to find counsel willing to take her case, by itself, constitutes an adequate excuse or justification for her admitted failure to comply with the government claims statutes. Appellant presents no authority for this argument. Nor does appellant cite us to any cases suggesting that a public entity is required to notify potential litigants about the existence of the claim-filing deadline.
While appellant spoke with several attorneys, she did not retain counsel until June 2006, one month after she learned from counsel of the filing requirement. Her declaration is silent as to why she did not acquire counsel sooner. Appellant’s declaration establishes only that she did not learn of the claims-filing requirement until May 2006. Unlike the plaintiff in Ebersol, appellant did not state in her declaration that she attempted to retain any of the attorneys she spoke with or that any of them told her she had no case. Also, unlike the plaintiff in Ebersol, appellant knew both the identity of the defendant and that the defendant was a public entity. Under the circumstances presented here, we cannot say the trial court abused its discretion in denying the petition.
B. Reasonable Time
Appellant also claims that the court erred in concluding that she unreasonably delayed in filing her application to be relieved from the provisions of section 945.4. We disagree.
The six-month deadline for appellant to have filed her claim with respondent expired on March 19, 2006, six months after the date on which she lost her job. She did not file a claim until July 17, 2006, some four months after the expiration of the six-month deadline and some 10 months after the accrual of her cause of action. She did not apply for leave to file a late claim until August 11, 2006, approximately five weeks before the expiration of the one-year deadline set by section 911.4. That deadline would have expired on September 19, 2006, one year after the accrual of her cause of action.
Even after appellant retained an attorney and learned of the claim-filing requirement, she waited an additional three months before submitting a claim or applying for relief. In our view, a reasonably diligent person, recognizing that the time for filing a claim had already expired, would have immediately sought leave to file a late claim rather than waiting three more months to do so.
It is true that much of the additional delay appears to be attributable to a mistake made by her attorney. However, “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.” (Tammen, supra, 66 Cal.2d 468, 478.)
Relying on Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, appellant claims that, where the facts causing the delay are uncertain, the determinative factor in deciding whether relief should be granted is the amount of prejudice suffered by the public entity. However, the court in Nilsson arrived at its conclusion only after it determined that the delay, which was the result of a calendaring error, was caused by excusable neglect. (Id. at pp. 980–981.) A public entity has no burden of establishing prejudice arising from the failure to file a timely claim until after the party seeking relief has made a prima facie showing of entitlement to relief. (Tammen, supra, 66 Cal.2d 468, 478.) Because appellant failed to show excusable neglect, the County had no obligation to demonstrate prejudice from her proposed late-filed claim.
In sum, we find that the trial court did not abuse its discretion in failing to grant appellant’s petition to be relieved of the claims-filing requirement of section 945.4.
Finally, as the County correctly notes, actions seeking redress for employment discrimination pursuant to the FEHA are not subject to the claim presentation requirements of the Government Claims Act. (Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 863; see also Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, 711.) The rationale for the exemption is that the procedural requirements of the FEHA, which include filing a complaint, an investigation of the claim, and serving the complaint on the employer, “serve a similar function” to that served by presentation of a claim as required by section 945.4. (Snipes, supra, at p. 869.)
Some of the causes of action asserted in appellant’s complaint are derived from the FEHA, and some are not. Like the trial court, we will not determine which of appellant’s causes of action have been precluded as a result of her failure to comply with the Government Claims Act as that issue is not properly before us.
DISPOSITION
The order is affirmed.
We concur: Marchiano, P. J. Stein, J.