Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate, L.A. Super. Ct. No. KS013406. R. Bruce Minto, Judge.
Ronald W. Beals, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, Jerald M. Montoya, Assistant Chief Counsel, Paul R. Brown, Alexander D. DeVorkin, Carol Quan, William H. Rittenburg and Alexander Prieto, Deputy Attorneys, for Petitioner.
Robinson, Calcagnie & Robinson, Lamar Bevan Brown and Michelle M. West for Real Parties in Interest.
No appearance for Respondent.
KRIEGLER, J.
Real parties in interest Kimberley Fairfax, Valerie Harris, and Joe Harris, individually and on behalf of their mother’s estate (collectively plaintiffs) were involved in or affected by a traffic collision that occurred on a freeway located in the State of California. They filed claims for damages against the California Department of Transportation (Caltrans) under the California Tort Claims Act, Government Code section 810 et seq., more than six months after the incident. Their claims were denied by Caltrans as untimely, but the respondent court excused the late filing and granted plaintiffs permission to file a lawsuit against Caltrans. Caltrans petitioned for an extraordinary writ of mandate directing the respondent court to vacate its order. We grant the petition.
The California Tort Claims Act requires parties asserting a public entity is liable for their injuries to file a claim with the public entity before a lawsuit may be maintained. (Gov. Code, § 945.4.) Such claims are due within six months of the cause of action accruing. (Gov. Code, § 911.2, subd. (a).)
FACTS AND PROCEDURAL HISTORY
On January 4, 2008, Kimberley Fairfax was driving her car along the 605 Freeway near the City of Irwindale, California. Her mother, Cynthia Ann Marquez, and her sister, Valerie Harris, were also riding in the car. Ms. Fairfax lost control of the vehicle, due to what plaintiffs allege were dangerous roadway conditions. The car skidded from the number one lane of the freeway to the opposite shoulder. Though plaintiffs allege the shoulder was required to be kept clear, a semi-trailer truck was parked there. Ms. Fairfax’s car collided with the truck. Ms. Marquez was killed. Ms. Fairfax suffered a collapsed right lung, three rib fractures, a clavicle joint separation, and a right hip injury. According to her brother, Joe Harris, Ms. Harris suffered facial fractures, a collapsed lung, loss of vision in her right eye, and a head injury causing memory and speech difficulties. Ms. Fairfax was hospitalized for six days and was on bed rest for another month, returning to the hospital for an unspecified amount of time in February 2008. She also saw a lung specialist until April 15, 2008. Ms. Harris was hospitalized for ten days and had to monitor the health of her unborn child for months thereafter. Mr. Harris took care of funeral arrangements for their mother and thereafter helped care for his sisters, all while continuing to run a business.
Ms. Harris did not submit a declaration or any other evidence supporting her request for relief from the filing requirements of section 945.4. All information regarding her condition is drawn from her brother’s declaration, which includes statements as to her situation. She did, however, sign a verification of the petition for leave to file a late claim, which subscribed to her brother’s explanation for the failure to timely file.
Ms. Fairfax and Mr. Harris, also speaking for Ms. Harris, stated that they were unable to research and retain an attorney during the six months following the collision. Ms. Fairfax stated she was unable to do so because of her injuries and her overwhelming grief at losing her mother. Mr. Harris explained, on behalf of his sisters and himself, that he was preoccupied with caring for the injured and overwhelmed by grief at losing his mother. He also had a substantial commute between his sisters’ bedsides and his business operations.
Plaintiffs finally retained an attorney on July 11, 2009, seven days after the time for filing a claim under the California Tort Claims Act. Their attorney investigated the case, and on October 1, 2008, filed claims against Caltrans for each plaintiff, describing personal injury and wrongful death claims. Counsel also filed an application for leave to file the claims late because they were presented approximately ten months after the causes of action accrued. The claims were denied by operation of law on November 14, 2008, because the State did not respond to the application for leave to file late. (§ 911.6, subd. (c).)
Plaintiffs filed similar claims against the City of Irwindale and the County of Los Angeles, which were rejected as untimely. However, plaintiffs have decided not to pursue those parties because they disclaimed responsibility for the roadway.
The California Victim Compensation and Government Claims Board wrote letters in November 2008 and March 2009 indicating it was still considering the matter, but it ultimately denied the claims.
Plaintiffs then petitioned respondent court under section 946.6, subdivision (c)(1), to be excused from the claim-filing requirement and permitted to file a lawsuit against the State for claims arising from the collision. They asserted that their failure to timely file was excusable neglect because they lacked experience with the court system, were grieving over their mother’s death, and were recovering from injuries or, in Mr. Harris’s case, caring for the injured and burying the dead while managing a business. The State opposed the petition, arguing that plaintiffs failed to establish excusable neglect as that term is used in section 946.6, subdivision (c)(1). The respondent court granted plaintiffs’ petition, finding a prima facie case of excusable neglect and no prejudice to Caltrans from the late filing. This petition followed.
It also argued that the late claims were not filed within a reasonable amount of time, but that issue is not raised here.
STANDARD OF REVIEW
A trial court’s determination on a petition for relief from the California Tort Claims Act’s claim-filing requirement is reviewed for an abuse of discretion. (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44 (hereafter Isenhower).)
DISCUSSION
The sole issue presented by this case is whether the respondent court abused its discretion in granting leave to file an action against Caltrans despite plaintiffs’ failure to file a timely government claim. The circumstances warranting leave to file an action without the proper submission of a claim are set forth in section 946.6, subdivision (c). That section directs a trial court to relieve a plaintiff from the claim-filing requirements if it finds, in addition to some conditions undisputedly met here, that one or more of the following is true: 1) the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect, unless the public entity establishes prejudice; 2) the person who sustained the injury was a minor; 3) the person who sustained the injury was physically or mentally incapacitated during the entire time a claim should have been filed; or 4) the person who sustained the injury died before expiration of the time to file a claim. Plaintiffs sought relief under the first factor, asserting that the failure to present their claims was due to mistake inadvertence, surprise, or excusable neglect. There is no suggestion any of them were incapacitated during the six months following the collision, the only other possible ground for relief under section 946.6.
The claim must have been made to the government within a reasonable time, not to exceed one year, and denied by the public entity. (§ 946.6, subd. (c).)
Plaintiffs advance two reasons for their failure to timely file. First, they were preoccupied with their injuries and consumed with grief. Second, they were unfamiliar with the legal system that required them to act within six months. But both of those reasons have been rejected by the courts as bases for finding excusable neglect. The first reason was discredited in Isenhower, supra,105 Cal.App.4th 39, on facts strikingly similar to those presented here. In Isenhower, a husband and wife were driving on a road that became engulfed in smoke from a fire. They pulled to the shoulder of the road. The husband escaped the car with burns, but his wife was killed when the car caught fire. The husband was hospitalized and emotionally upset after the incident. He learned from newspaper accounts that the fire was started by an arsonist. (Id. at p. 42.) He did not seek legal counsel until approximately seven months after the incident, when his barber suggested he speak to another customer who was an attorney. Eight months after the fire, the husband and his two sons filed claims against Caltrans, which were denied. (Id. at p. 43.)
The trial court granted relief from the failure to make a timely claim against Caltrans based on mistake, inadvertence, surprise, or excusable neglect, but the Isenhower court reversed. It noted that excusable neglect to justify relief from the claim-filing requirement is not shown by the mere failure to discover the potential of governmental liability until it is too late. Rather, a plaintiff must show reasonable diligence to discover it. (Isenhower, supra, 105 Cal.App.4th at pp. 44-45.) While the husband believed that an arsonist had started the fire, that belief did not excuse his failure to retain counsel or investigate the potential responsibility of Caltrans for six months after the incident. (Id. at p. 45.) Nor were the husband’s injuries or emotional distress an excuse. His claimed emotional distress was self-diagnosed, and there was no evidence it or his injuries interfered with his ability to seek out legal counsel. (Id. at p. 46.) Indeed, such conditions could be attributed to every accident victim. (Ibid.) Were they debilitating enough to excuse the claim-filing requirement, they would have risen to the level of incapacity, identified by section 946.6 as a separate ground for excusing timely claim filing, but there was no evidence that was the case. (Id. at p. 46; see § 946.6, subd. (a)(4).)
Plaintiffs here likewise assert that personal injuries and understandable grief arising from a tragic incident were reasons no claim could be filed within the statutory time limit. Just as in Isenhower, plaintiffs offered only their own opinions that their injuries and grief impacted their ability to file a claim. In both cases, the plaintiffs failed to explain why their injuries and grief rose to a level that should excuse them from meeting the filing deadline that every other plaintiff seeking damages against a public entity must meet. In fact, unlike plaintiffs here, the Isenhower plaintiffs were affirmatively misled by reports that an arsonist caused the fire that took their family member, rather than Caltrans. Yet, they were still held to the statutory deadline when their focus shifted to the public entity as the liable party. Plaintiffs here were in a position to suspect from the outset that roadway conditions precipitated the collision, yet they took no greater actions than the Isenhower plaintiffs did to pursue their claims. Thus, they cannot be excused from their failure to timely file a government claim any more than the Isenhower plaintiffs were.
As a second factor excusing their failure to timely file a claim, plaintiffs assert that they were unfamiliar with the legal system. Again, Isenhower is instructive. Citing to multiple authorities, the court explained: “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....’ [Citations.]” (Isenhower, supra, 105 Cal.App.4th at pp. 44-45; see also Tammen v. County of San Diego (1967) 66 Cal.2d 468, 476 [“‘[i]gnorance of the law, at least where coupled with negligence in failing to look it up...,’” is not excusable neglect]; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1778-1779; Powell v. City of Long Beach (1985) 172 Cal.App.3d 105, 109.)
The California Supreme Court’s reasoning in Ebersol v. Cowan (1983) 35 Cal.3d 427, 439 (Ebersol) is to the same effect. In Ebersol, the plaintiff was injured by a passenger on a bus that she was driving. Unbeknownst to the plaintiff, the bus had been chartered by the Ventura County school system. Beginning the day of the injury, the plaintiff tried to retain an attorney, but she was repeatedly turned away as having no valid claim. Approximately two weeks after the government claim-filing deadline expired, the plaintiff found an attorney who believed she had a viable cause of action and who filed a written claim for damage with Ventura County upon discovering it might bear some liability. (Id. at pp. 432-433.) The claim was denied as untimely. The Ebersol court held that the late filing should be excused and the plaintiff allowed to file suit because the plaintiff, who was unfamiliar with the court system and claim-filing requirement, demonstrated she had tried to obtain legal assistance to enable her to prosecute her claim, but was misadvised and discouraged. (Id. at p. 439.) The court stressed that the plaintiff was tenacious in her efforts to obtain counsel during the filing period, acting swiftly to find a lawyer when injured and persisting in her search despite being rebuffed by multiple attorneys. (Id. at pp. 436-437, 439.) The court rejected the suggestion that all facts supporting an action against a public entity must be discovered within the claim-filing period, but held that “in order to obtain relief under section 946.6 on the basis of excusable neglect, the claimant must at a minimum make a diligent effort to obtain legal counsel within [the statutory period].” (Id. at p. 439.) Thereafter, it would be counsel’s responsibility to diligently pursue the pertinent facts. In the meantime, the “reasonable and prudent course of conduct... was to seek legal counsel.” (Ibid.)
Plaintiffs here compare themselves to the Ebersol plaintiff in their unfamiliarity with the legal system. But they fail to show that, like the plaintiff in Ebersol, they acted diligently to retain counsel who would compensate for their unfamiliarity and pursue facts suggesting governmental liability for their injuries. Thus, they fail to show the “minimum” effort required to establish excusable neglect under section 946.6. (Ebersol, supra, 35 Cal.3d at p. 439.) To the contrary, plaintiffs’ situation is more akin to that of the plaintiff in Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701 (Garcia). In that case, in order to establish excusable neglect, the plaintiff submitted her own declaration that she was unaware of the filing requirement and was never advised of it. (Id. at p. 708.) The Garcia court held that “[m]ere lack of knowledge of the claim-filing requirement is insufficient to support relief under section 946.6.” (Ibid.) It noted that while “a layman perhaps should not be charged with negligence in not discovering [the filing requirement] by failing to look it up, a layman who is aware of the fact that he has a compensable claim may be neglectful if he fails to consult an attorney for more than [six months] after the occurrence.” (Id. at pp. 708-709.) That is essentially what the plaintiffs here admitted in their declarations. Therefore, as the Garcia court put it, plaintiffs have “simply failed to provide the trial court with any evidentiary basis upon which to exercise its discretion to grant relief... on the basis of mistake or excusable neglect.” (Id. at p. 709.)
Plaintiffs point to Ebersol’s recitation of the general rule that excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances, and suggest that proposition alone is the holding of Ebersol. Their assertion fails because it overlooks the Ebersol court’s application of that general rule to the facts, and its resulting conclusion that the “reasonable and prudent” course of conduct for a plaintiff unfamiliar with the legal system is to search for a lawyer who can determine if there is a cause of action to be pursued. (Ebersol, supra, 35 Cal.3d at p. 439; see also, Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293, 1295 [recognizing diligence requirement]; Munoz v. State of California, supra, 33 Cal.App.4th at pp. 1778-1779 [“petitioner may not argue excusable neglect when he or she fails to take any action in pursuit of the claim”]; Garcia, supra, 173 Cal.App.3d at pp. 708-709; Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 8 [minimum effort of seeking counsel required].) Plaintiffs also highlight appellate court policy statements that the provisions of section 946.6 should be liberally construed to permit valid claims to proceed. But cases also caution that liberal construction of the statute does not authorize the courts to grant relief casually or render the statutory time limits ineffective. (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at pp. 1293, 1296; Munoz v. State of California, supra, 33 Cal.App.4th at pp. 1783-1784.) The Supreme Court has determined that section 946.6 requires some effort by plaintiffs to pursue their claims against a governmental entity in order to establish excusable neglect under its terms. That requirement cannot be ignored.
Plaintiffs further quarrel with the idea that a plaintiff must seek out counsel to demonstrate adequate diligence to support an excusable neglect finding, arguing that other forms of diligence may be proven. They point to County of Alameda v. Superior Court (1987) 196 Cal.App.3d 619, 625, finding excusable neglect where the plaintiff did not seek out counsel and was, according to a medical expert, physically and mentally incapacitated during the claim-filing period, and Powell v. City of Long Beach, supra, 172 Cal.App.3d 105, 109, finding excusable neglect where an injured worker applied for and received worker’s compensation benefits, leading him to the mistaken belief that was his only remedy. We see no reason to question the reasoning in those cases, but they are irrelevant under the record presented here. While it is true a plaintiff might show adequate diligence in pursuing his or her claim in ways other than the retention of counsel, plaintiffs offer nothing to show such diligence. All their declarations state is that they were too distressed to seek out counsel. Having framed the entire argument around the ability to retain counsel, it is unclear how the cases highlighted by plaintiffs further their claims.
Plaintiffs also cite to the decision in Perez v. City of Escondido (S.D. Cal 2001) 165 F.Supp.2d 1111, 1116-1117, in which a magistrate excused an overwhelmed, single mother of injured children from the claim-filing requirement. However, a federal district court’s decision is not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Nor is its reasoning persuasive when it applies a California statute in disregard of California appellate authority.
Finally, for the first time in the appellate court, plaintiffs argue their declarations show that they did, in fact, seek out an attorney during the six-month period. They emphasize that their declarations say they were unable to research and retain a lawyer within the statutory period, implying they did do some research. However, plaintiffs did not, and still do not, detail what that research might have been, when they made such efforts, or how diligently they pursued the research. Moreover, plaintiffs never suggested to the trial court there were any such efforts demonstrating their diligence in pursuing their claims. It was plaintiffs’ burden to present evidence establishing that their failure to timely act was excusable. (Ebersol, supra, 35 Cal.3d at p. 431; Rodriquez v. County of Los Angeles (1985) 171 Cal.App.3d 171, 175; see Munoz v. State of California, supra, 33 Cal.App.4th at p. 1784.) A belated attempt to recast the evidence and create an implication that they acted is insufficient to carry that burden.
Certainly, plaintiffs’ injuries and losses are severe. However, the Legislature has determined that a claim for damages against a public entity must be presented within six months of accrual of any cause of action, and rejected, before any lawsuit may be maintained. Self-described injury, grief, and unfamiliarity with the legal system are insufficient excuses for failing to comply with the statutory requirements. The trial court abused its discretion in concluding otherwise.
DISPOSITION
The petition for writ of mandate is granted. The respondent court is directed to vacate its order of May 11, 2009, granting plaintiffs’ petition for leave to file an action, and to enter a new and different order denying that petition. Caltrans is awarded its costs, if any, in this proceeding.
We concur: TURNER, P. J., MOSK, J.
All statutory references herein are to the Government Code unless otherwise indicated.