El Dorado Irrigation District v. Superior Court

vacate its order relieving real party in interest (Evans) from the claim-filing requirements of Government Code section 945.4.^[1]

On November 30, 1977, while employed by H. M. Byars Construction Company, Evans was injured when a steel pipe fell from a truck causing injury to his left arm and elbow.^[2] One hundred twenty days later, on March 30, 1978, Evans engaged a law firm for the purpose of filing a workers’ compensation claim. The next day an application was filed; and contemporaneously counsel’s attention turned to the possible existence of a third party claim. An investigator was hired promptly, but he did not report the district’s status as owner of the construction project to counsel until November 2, 1978.^[3]

An application for leave to file a late claim was presented to the district on November 15, 1978; it was denied on January 10, 1979, with the statement “I must respectfully deny both your leave to Present Late Claim and also the claim for your client’s bodily injuries.” On February 15, 1979, pursuant to section 946.6, Evans filed his petition for relief in the trial court.

Regarding the 100 days prescribed by section 911.2, as the period within which to file a claim, the petition made no comment but the supportive memorandum of points and authorities stated; “Petitioner did not consult counsel within the 100 day limit. It is reasonable that a lay person would not know of the existence of a claim against a governmental entity based upon such legal theories as the entity’s failure to provide a safe place to work and its failure to take precautions with respect to a construction activity which involved ‘special risks’. Furthermore, petitioner has been diligent in proceeding with his claim against [the district] since that claim’s existence was discovered on October 20, 1978.”

Affidavits of Evans’ counsel alleged the reason the claim had not been filed more promptly was the investigator’s failure to complete the

investigation due to the “mistake, inadvertence, surprise and excusable neglect of the claimant, his attorneys and their agents . . . . ”

On April 2, 1979, without comment or findings, the trial court granted Evans’ petition for relief from the claim-filing requirement. The district filed its writ petition here on May 14, 1979. It claims error in that (1) there was nothing presented to justify Evans’ delay beyond the 100-day period of section 911.4, subdivision (a); and (2) there was no sufficient showing that Evans’ attorneys acted from excusable neglect or mistake in failing to file for relief until more than six months from the time of the initial contact with Evans. We will sustain the first contention, and having done so need not consider the second; as to it we express no view and none is to be inferred from our holding.

I

nitially we resolve Evans’ preliminary contention that the district is estopped to assert the failure to comply with the claim-filing statute because in addition to refusing to allow leave to file a late claim the district also purported to deny the claim itself. Evans cites Harvey v. City of Holtville (1969) 271 Cal.App.2d 816 [ 76 Cal.Rptr. 795 ] (see also Harvey v. City of Holtville (1967) 252 Cal.App.2d 595 [ 60 Cal.Rptr. 635 ]) and McLaughlin v. Superior Court (1972) 29 Cal. App.3d 35 [ 105 Cal.Rptr. 384 ], in support of this proposition.

The Harvey and McLaughlin cases dealt with and applied classical concepts of estoppel to the claim statute procedures. Fundamental elements of the estoppel doctrine are reliance and detriment. In Harvey the public entity notified the claimant that the claim was denied, as a result of which (according to plaintiff’s contention) plaintiff did not file a petition for relief in the superior court within the ensuing 20-day period then required by section 912^[4] (later repealed): the court held that the claimant should be given the opportunity to plead and prove the elements of estoppel and, if appropriate, be allowed to proceed. (See Harvey, supra, 271 Cal.App.2d at p. 820.) The Harvey court stated (252 Cal.App.2d at p. 598): “Where a claimant, in reliance upon the representation of an authorized employee of the public entity that his application to file a late claim has been granted and his claim denied, loses his right to petition the court for leave to make a late presentation,

Thus a court does not relieve a potential plaintiff of the claim requirements of section 945.4, as a matter of course; he must first demonstrate two essentials by a preponderance of the evidence (Shad dox v. Melcher (1969) 270 Cal.App.2d 598 , 601 [ 76 Cal.Rptr. 80 ]); first, that the section 911.4 application was presented within a reasonable time, and second, that the failure to file a timely claim was due to mistake, inadvertence, surprise or excusable neglect. (Tammen v. County of San Diego (1967 ) 66 Cal.2d 468 , 474 [ 58 Cal.Rptr. 249 , 426 P.2d 753 ].) The “mistake, inadvertence, surprise or excusable neglect” concept is expressly directed to the 100-day period of section 911.2 and not to the “reasonable time not to exceed [one year]”^[5] period of sections 911.4 and 946.6. “The showing required of a petitioner seeking relief under the authority of Government Code, 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 [ 91 Cal.Rptr. 717 , 55 A.L.R.3d 925 ].)

The trial court’s ruling granting the petition carries with it the implied finding that both requirements of section 946.6 were met. Yet there was nothing presented to the trial court to support a finding of the second requirement; no legally cognizable mistake, inadvertence, surprise or excusable neglect of any kind was shown in connection with the passage of the 100 days. The sole effort to explain the failure to file a timely claim was the conclusionary and argumentative statement of counsel in the points and authorities that Evans reasonably could be ignorant of the claim-filing requirements, nothing else. Argument of counsel of course is not evidence. (Thomas v. Thomas (1944) 66 Cal. App.2d 818 , 825 [ 153 P.2d 389 ].) Moreover, a mere lack of knowledge of the claim-filing requirements and its time limitation is insufficient. (Tammen v. County of San Diego, supra, 66 Cal. 2d at p. 475; Baker v. Beech Aircraft Corp. (1974) 39 Cal.App.3d 315 , 321 [ 114 Cal.Rptr. 171 , 91 A.L.R.3d 981 ]; Martin v. City of Madera (1968) 265 Cal. App.2d 76 , 80-81 [ 70 Cal.Rptr. 908 ]; see Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275 , 281 [75 CaLRptr. 848].)

Thus, the trial court had no evidentiary basis upon which to base its grant of the judicial relief requested. (See Tammen, supra, 66 Cal.2d at

page 475; Roberts v. State of California (1974) 39 Cal.App.3d 844 , 847 [ 114 Cal.Rptr. 518 ]; Baker v. Beech Aircraft Corp., supra, 39 Cal. App.3d at page 321; Martin v. City of Madera, supra, 265 Cal.App.2d at pages 80-81.) The court ignored the statutory mandate. We are mindful of the liberal interpretation to be accorded section 946.6. (See Viles v. State of California (1967) 66 Cal.2d 24 , 31 [ 56 Cal.Rptr. 666 , 423 P.2d 818 ].) But we cannot and should not blind ourselves to its express limitations.

Let a peremptory writ of mandate issue directing the trial court to set aside its order granting relief and to deny the application. The order to show cause is discharged.^[6]

Puglia, P. J., and Paras, J., concurred.

The petition of the real party in interest for a hearing by the Supreme Court was denied December 27, 1979. Mosk, J., was of the opinion that the petition should be granted.