Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV33042
DAVIS, J.
In this personal injury action against Calaveras County arising from a motorcycle accident, plaintiffs Ricky Shackley and Shirley Hasselbrink (plaintiffs) appeal the trial court’s denial of their petition for relief under Government Code section 946.6 from the public entity claim presentation requirements (i.e., the Tort Claims Act, Gov. Code, § 900 et seq.). Plaintiffs contend the trial court abused its discretion because they met the requirements of section 946.6, and they substantially complied with the claim requirement. We shall affirm.
Hereafter, undesignated section references are to the Government Code.
Background
At approximately 8:30 p.m. on July 2, 2005, Shackley was driving his motorcycle, with Hasselbrink as a passenger, down Murphy’s Grade Road in Calaveras County. As Shackley made a left turn onto Rolleri Bypass, the motorcycle slid and plaintiffs fell off. Both plaintiffs sustained personal injuries as a result of this incident.
On September 8, 2005, plaintiffs each filed a claim with the California Government Claims Board against the state Department of Transportation (CalTrans) and Calaveras County (County). On November 4, 2005, plaintiffs filed a complaint in superior court against CalTrans and County. Plaintiffs served the summons and complaint on County on December 29, 2005.
On January 25, 2006, County filed a demurrer to plaintiffs’ complaint based on plaintiffs’ failure to file a claim directly with the county as required by the Tort Claims Act. The following day, plaintiffs filed a dismissal of the action without prejudice.
On May 31, 2006, plaintiffs filed applications to present a late claim with County. (§ 911.4, subd. (a).) County denied those applications.
Plaintiffs then unsuccessfully petitioned the trial court under section 946.6 for relief from the claim presentation requirement.
Plaintiffs then timely filed an appeal with this court.
Discussion
1. Standard of Review
The grant or denial of a section 946.6 petition for relief from the claim presentation requirement is reviewed for abuse of discretion. (Greene v. State of California (1990) 222 Cal.App.3d 117, 121.) Because section 946.6 is a remedial statute intended to provide relief from technical rules that would otherwise ensnare the “‘unwary claimant,’” an appellate court more rigorously reviews a trial court decision denying relief than one granting relief. (Moore v. State of California (1984) 157 Cal.App.3d 715, 721; Bettencourt v. Los Rios Community College District (1986) 42 Cal.3d 270, 276.) “However, this does not mean that relief in such cases should be granted casually[.]” (Greene, supra, at p. 121.) We therefore carefully review the trial court’s denial of plaintiffs’ petition for abuse of discretion.
2. Plaintiff’s Petition Under Section 946.6
The Tort Claims Act sets out certain requirements that must be met before a plaintiff may file a lawsuit against a public entity. (§ 900 et seq.; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237 (State of California).) One of these requirements is that a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2; State of California, supra, 32 Cal.4th at p. 1237.) Under section 911.2, subdivision (a), “A claim relating to a cause of action [against a public entity] for death or for injury to person or to personal property . . . shall be presented [to the entity] . . . not later than six months after the accrual of the cause of action.” (See also State of California, supra, at p.1239.) Section 945.4 prohibits a lawsuit for money or damages against a public entity on a cause of action for which a claim is required “until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . . .”
When a claim is not presented within the six-month period, a claimant may make a written application to the public entity for leave to present a late claim. (§ 911.4, subd. (a).) Under section 911.4, subdivision (b), an application to present a late claim “shall be presented to the public entity . . . within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.”
Under section 946.6, if the public entity denies an application for leave to present a late claim, the injured party may petition the court for relief from the claim requirements. (§§ 946.6, subd. (a), 945.4; see also Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1777 (Munoz).) A court shall relieve the petitioner from the claim requirement “if the court finds that the application to the [public entity to present a late claim] was made within a reasonable time not to exceed [one year after the accrual of the cause of action] . . . and 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 [claim presentation] requirements . . . .” (§ 946.6, subd. (c)(1).)
A court may only grant relief if the requirements of section 946.6 are met. After reviewing the record, we conclude the trial court did not abuse its discretion in denying plaintiffs’ section 946.6 petition.
A. Plaintiffs did not present their application to County within a reasonable time
Plaintiffs emphasize the fact that they presented their application to file a late claim to County within one year of the accrual of the cause of action. However, they ignore the additional requirement that this application must be presented within a “reasonable time,” not to exceed one year. (§§ 911.4, subd. (b), 946.6, subd. (c), italics added; El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 61-62 (El Dorado).) In other words, a plaintiff must show that he acted with reasonable diligence after discovering his default, or he is not entitled to relief under section 946.6. (Viles v. State of California (1967) 66 Cal.2d 24, 31.)
A review of the record reveals that plaintiffs did not demonstrate that they applied to County to file a late claim within a reasonable period of time. On January 25, 2006, through its demurrer to plaintiffs’ complaint, County notified plaintiffs that they had erred by presenting their claim to the State Board instead of the County. At this point, nearly seven months had elapsed since the accrual date of the cause of action on July 2, 2005. Therefore, it was imperative for plaintiffs to immediately rectify their error. Inexplicably, plaintiffs did not remedy this defect until May 31, 2006, when they filed with County their applications to present a late claim; this was over four months after receiving notice of the claim presentation error, and nearly 11 months after the cause of action had accrued.
Plaintiffs offered no competent evidence to show that the four-month delay regarding the application was reasonable. The only evidence presented to the court was a declaration by plaintiffs’ current attorney, Michael DeKruif (DeKruif), who was not the counsel of record throughout the claim presentation process or during the four-month delay in filing the application to present a late claim with County. A bit of background must be interposed here. About three weeks after the accident, plaintiffs retained legal counsel through the Law Offices of Richard M. Lester. Since that time, that law office has continually represented plaintiffs, including on appeal here. One of the office’s attorneys, Sanford Senen (Senen), was initially in charge of plaintiffs’ case. At some point during the summer of 2006, Senen left the law office, and another attorney from that office, DeKruif, took over plaintiffs’ case.
Attorney De Kruif’s declaration simply states that Senen, plaintiffs’ prior counsel, “acted honestly on behalf of his clients,” and that acting recklessly would be “totally out of character” for Senen. At the hearing on the petition for relief, DeKruif stated that Senen took one month off to study for the New Mexico bar exam in February 2006, but offered no other explanation for the four-month delay in filing the application to present a late claim. DeKruif admitted of Senen’s actions, “I am not sure why he did what he did.” On these facts, the trial court did not abuse its discretion in denying plaintiffs relief under section 946.6, because plaintiffs did not present their late claim application within a reasonable time after discovery of the claim presentation error.
B. Plaintiffs did not establish mistake, inadvertence, surprise or excusable neglect
In addition to meeting the reasonable time requirement for a late claim application in pursuing a section 946.6 petition for relief, a petitioner must demonstrate by a preponderance of the evidence that the failure to present the claim was due to mistake, inadvertence, surprise or excusable neglect. (§ 946.6, subd. (c)(1); El Dorado, supra, 98 Cal.App.3d at p. 62.) “The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.)
Moreover, not every mistake will excuse a default. (Shank v. City of Los Angeles (1983) 139 Cal.App.3d 152, 156-157.) The mistake or inadvertence must be reasonable. (Ibid.) A plaintiff or his attorney “must show more than that they did not discover a fact until too late; they must establish that in the use of reasonable diligence they failed to discover it.” (Ibid.)
Plaintiffs have not established that their failure to file a claim with County within the six-month statutory limit was due to mistake, inadvertence, surprise or excusable neglect. (§ 911.2, subd. (a).) In the applications for leave to present a late claim with County, plaintiffs’ counsel merely stated that he had intended to file a claim with both the State and the County, but “[t]hrough mistake and inadvertence, the form was filed only with the state.” Plaintiffs readily admit, then, that they knew they were required to file a claim with County, but failed to do so. However, plaintiffs presented no evidence that they acted reasonably in this respect.
A timeline of events demonstrates that plaintiffs’ actions bar them from obtaining relief under section 946.6. Plaintiffs filed claims with the State on September 8, 2005. Two months later, plaintiffs filed a complaint in superior court against County. In paragraph nine of the standardized complaint form, plaintiffs must state whether they have complied with the applicable claims statute. Apparently, plaintiffs chose not to verify whether they had in fact complied with the claims presentation requirements at this point. After filing the complaint, plaintiffs were issued an order to show cause regarding whether they complied with the filing requirement. This again should have put plaintiffs on notice that they needed to confirm that the claim had in fact been filed with County. However, plaintiffs did not remedy their defect and file applications to present late claims with County until May 31, 2006, nearly nine months after filing a claim with the State and intending to file a claim with County. In light of these facts, the trial court did not abuse its discretion in denying plaintiffs’ section 946.6 petition.
3. Substantial Compliance with Tort Claims Act Requirements
Plaintiffs argue that they substantially complied with the Tort Claims Act by serving County on December 29, 2005, with their original complaint, summons, and statement of damages. Plaintiffs contend that because their initial complaint was filed with the superior court and served on County before the running of the six-month claim deadline of section 911.2, and the complaint gave complete claim information to County, the requirements of the claims statute should be deemed “‘substantially complied with.’” Plaintiffs’ contentions are erroneous.
The claim presentation requirement of the Tort Claims Act 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 the 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.” (Munoz, supra, 33 Cal.App.4th at p. 1776.)
Where a plaintiff attempts to comply with the claim filing requirements, but his or her claim is defective, courts will employ a test of substantial compliance to determine whether the plaintiff met the filing requirements of the Tort Claims Act. (See Johnson v. San Diego Unified School Dist. (1990) 217 Cal.App.3d 692, 697.) Under this test, “‘the court must ask whether sufficient information is disclosed on the face of the filed claims “to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit.”’” (Johnson, supra, at p. 697.) Courts may give a liberal construction to the claims statute “[s]o long as the purposes of the claims statute are effectuated.” (Ibid.)
In Stromberg, Inc. v. L. A. County Flood etc. Dist. (1969) 270 Cal.App.2d 759, the Court of Appeal rejected a plaintiff’s argument that filing a complaint against the public entity substantially complied with the claim presentation requirement. (Id. at p. 765.) The court reasoned that presenting a claim before filing a lawsuit is necessary to effectuate “the purpose for which the claim statutes were enacted--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.’” (Ibid.) By contrast, receiving a summons and complaint merely notifies the public entity that a lawsuit has been instituted. (Stromberg, supra, at p. 766.) It thrusts the public entity into legal proceedings before being given the opportunity to investigate and settle the action without the burden of litigation. (Ibid.)
By entirely failing to file a claim with County, plaintiffs’ argument that they substantially complied with the Tort Claims Act must fail. Contrary to plaintiffs’ assertion that giving notice to the County of their claims through their complaint sufficiently complied with the Tort Claims Act requirements, the purpose of the claims statutes is not simply to prevent surprise. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455 (City of San Jose).) “Rather, the purpose of these statutes is 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.” (Ibid., italics added.) Moreover, if a complaint were deemed sufficient to constitute a claim, that would be the end of the claim presentation requirement.
That plaintiffs’ complaint may have technically notified the County of their claim before the six-month claim filing period passed is of little legal significance. “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. Such knowledge--standing alone--constitutes neither substantial compliance nor basis for estoppel.” (City of San Jose, supra, 12 Cal.3d at p. 455.)
Plaintiffs also urge this court to take notice that their initial claim with the State Board named County as a responsible party in addition to the state agency, CalTrans. However, California courts have previously rejected the argument that filing a claim with a distinctively unrelated public entity substantially complies with the filing requirement of the Tort Claims Act. (See, e.g., Munoz, supra, 33 Cal.App.4th at p. 1774; see also 1 Cal. Government Tort Liability Practice (Cont.Ed.Bar.4th ed. 2007) § 6.31, pp. 291-292.) We conclude that plaintiffs’ actions did not constitute substantial compliance with the Tort Claims Act.
Disposition
The order denying plaintiffs’ section 946.6 petition for relief is affirmed.
We concur: BLEASE, Acting P.J., HULL, J.