DeVore v. Department of the California Highway Patrol
221 Cal. App. 4th 454
| Cal. Ct. App. | 2013Background
- On August 3, 2010, plaintiffs’ decedent was killed in a multi-car incident on I-505 after a drunk driver (Roberts) lost control; Roberts was later charged.
- Plaintiffs learned in March 2011 at a preliminary hearing that CHP Officer Sherwood had stopped Roberts about two hours before the crash; that traffic stop (and Sherwood) were not disclosed in the CHP accident report.
- Plaintiffs did not know of the prior stop before March 2011 and therefore had no reason to suspect CHP liability; they retained counsel in late July 2011 and filed a claim/application for leave to file a late claim on August 3, 2011.
- CHP denied the late-claim application; the trial court denied plaintiffs’ Government Code section 946.6 petition for relief, finding plaintiffs lacked reasonable diligence (citing Dept. of Transportation) and that accrual occurred at or near the accident date.
- The Court of Appeal reversed, holding plaintiffs’ failure to discover CHP involvement before March 2011 was excusable, their delay in filing after discovery was reasonable, and CHP failed to show prejudice; the matter was remanded with directions to grant the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to decide accrual in §946.6 proceeding | Trial court could not make accrual findings in the §946.6 proceeding | Trial court may decide accrual as relevant to relief | Court: trial court has authority to decide accrual as a subsidiary issue; but this appeal need not resolve preclusive effect of such a ruling |
| Whether plaintiffs’ delay amounted to excusable neglect | DeVore did not discover facts giving rise to CHP liability until March 25, 2011; failure to consult counsel before that was reasonable | Plaintiffs unreasonably waited >6 months and should have sought counsel sooner (Dept. of Transportation principle) | Court: excusable — plaintiffs lacked notice of CHP involvement; reasonable to wait to retain counsel until after discovery; delay after discovery was reasonable |
| Applicability of delayed discovery rule / accrual date | Accrual delayed until plaintiffs discovered prior stop (March 25, 2011) | Cause of action accrued at or near accident; plaintiffs had reason to discover earlier | Majority: did not need to decide accrual date to grant relief; concurrence would have held accrual delayed until March 25, 2011 and claim timely filed |
| Prejudice to public entity from late claim | No particularized prejudice shown; Sherwood’s memory already faded | CHP argued stale witness memory would prejudice defense | Court: CHP failed to show particular prejudice; denial of petition was an abuse of discretion |
Key Cases Cited
- Ebersol v. Cowan, 35 Cal.3d 427 (Cal. 1983) (remedial nature of §946.6 relief; diligence in seeking counsel can support excusable neglect)
- People ex rel. Dept. of Transportation v. Superior Court, 105 Cal.App.4th 39 (Cal. Ct. App.) (principle that in some cases failure to consult counsel within six months may be inexcusable)
- Department of Water & Power v. Superior Court, 82 Cal.App.4th 1288 (Cal. Ct. App.) (readily available sources of information can make failure to use them inexcusable)
- Barragan v. County of Los Angeles, 184 Cal.App.4th 1373 (Cal. Ct. App.) (no absolute rule precluding excusable neglect where claimant failed to obtain counsel within six months)
- California Highway Patrol v. Superior Court, 162 Cal.App.4th 1144 (Cal. Ct. App.) (interpretation of Vehicle Code impound provisions relevant to public-entity duty issues)
- Norgart v. Upjohn Co., 21 Cal.4th 383 (Cal. 1999) (delayed discovery rule: accrual delayed until plaintiff discovers or has reason to discover cause of action)