HELEN COLE, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.
No. B011528
Second Dist., Div. Seven
Dec. 16, 1986
187 Cal. App. 3d 1369
Dirnfeld & Zelner and Barry S. Zelner for Plaintiff and Appellant.
James K. Hahn, City Attorney, John T. Neville and Richard M. Helgeson, Assistant City Attorneys, for Defendant and Respondent.
OPINION
LILLIE, P. J.— Helen Cole appeals from judgment entered after denial of her petition for relief from requirements of
FACTS
Helen Cole sustained personal injuries on October 8, 1983, when she tripped and fell on a sidewalk in Van Nuys. That day, she called the City of Los Angeles (hereinafter City) and reported her accident. She was told that claim forms would be mailed to her and if she intended to present a claim, she had one yeаr in which to do so. She received the claim forms stapled together with a one-by-two-inch notice stapled to the top which covered the instruction as to the time limit to file a personal injury claim. As she was in considerable pain, she did not fill out the forms immediately. On May 17, 1984, she began to fill out the forms, discovered the 100-day limit within which to file her сlaim, and that day she filed her claim. On August 16, 1984, she filed application for leave to present late claim to the City; not having received notice of denial within 45 days, the application was deemed denied on September 30, 1984. (
II
ESTOPPEL TO ASSERT STATUTORY REQUIREMENTS
Appellant contends the court abused its discretion in failing to find the City was estopped to assert her noncompliance with the time requirements of the claim statutes.2
The existence of an estoppel is generally a question of fact for the trial court whose determination is conclusive on appeal unless the opposite conclusion is the only one that can be reasonably drawn from the evidence. (Driscoll v. City of Los Angeles, supra, 67 Cal.2d at p. 305.)
In support оf her petition, appellant presented her declaration, undisputed by City. She declared that she was a 73-year-old woman residing in Van Nuys; on October 8, 1983, she tripped and fell on a sidewalk raised by tree
Appellant argues that because her evidence was uncontradictеd, the court‘s decision was arbitrary and an abuse of discretion. We find no abuse of discretion in an implied finding that appellant did not adequately establish all elements of equitable estoppel. In such case counterdeclarations are not necessary to defeat the claim. Appellant‘s evidence was silent оn the issue of reliance. The only reason given by her for the failure to fill out the forms in a timely fashion was the fact that she was in pain, not the fact of any oral representation by City. Even had the court drawn the inference that she did rely on the oral representations of City‘s agent, the court nevertheless could have reasonably concluded the City did not act so as to give her the right to rely on such representations inasmuch as City furnished her with written information on claim filing procedures giving her the ready means of discovering the true facts. There was no abuse of discretion in the implied finding that City was not estopped to assert the claim requirements.
III
NO ABUSE OF DISCRETION IN DENIAL OF RELIEF BASED ON MISTAKE, INADVERTENCE, SURPRISE OR EXCUSABLE NEGLECT
Appellant cоntends that because sufficient facts were presented such that the court, applying a liberal interpretation of
The showing required of a petitioner seeking relief under
Based on the foregoing rules and a review of the record, we conclude the trial court did not abuse its discretion in denying relief. Plaintiff failed to establish adequate cause for relief. Thе record reflects a carefully considered inquiry by the court into the basis for relief tendered by plaintiff. At the hearing, the court found it “not only commendable but amazing” that plaintiff knew just which agency in the government handles claims and undertook to communicate with the correct City agency. Regardless of what, concerning the claim procedures, was told to plaintiff by telephone, the court correctly concluded, “I wouldn‘t think the average, reasonable person would rely on that when the document [claim form] finally arrives and it is spelled out in the document.” The court further commented that “[t]here is nothing in the record to suggest that she comes within the legal definition of physical or mental incapacity.” Thus, the court properly found insufficient evidence to have been presented that plaintiff‘s “considerable pain” prevented her from attending to her business affairs (see Garcia v. Los Angeles Unified School Dist., supra, 173 Cal.App.3d at p. 708), or that it was of sufficient severity or duration so as to affect her ability to file a timely claim. Other than the conсlusory reference to “considerable pain,” no other explanation is offered for plaintiff‘s failure to file a timely claim. Nor is the seven-month delay between the time she received the forms and the time she began to fill them out attributed to any oral representations of City. Plaintiff failed to set out sufficient facts to show that shе exercised reasonable diligence in pursuing her claim and that a mistake or excusable neglect was the actual cause of her failure to comply with the 100-day requirement. (Black v. County of Los Angeles, supra, 12 Cal.App.3d 670, 676.) Thus,
Having detеrmined the court did not abuse its discretion in finding no mistake, inadvertence, surprise nor excusable neglect, we need not consider whether the application for leave to present late claim was made within a reasonable time.3 (Black v. County of Los Angeles, supra, 12 Cal.App.3d at p. 674.) Nor need we address the issue of prejudice, as the public entity has no burden to establish рrejudice until plaintiff has satisfied the trial court that her failure to file timely claim was due to mistake, inadvertence, surprise or excusable neglect. (Shank v. County of Los Angeles, supra, 139 Cal.App.3d 152, 159.)
DISPOSITION
The judgment is affirmed.
Thompson, J., concurred.
JOHNSON, J.—I respectfully dissent.
The majority opinion limits the scope of our review of the court order denying appellant‘s application to the traditional “abuse of discretion” standard. It quotes sevеral Court of Appeal opinions suggesting this is the rule. The California Supreme Court, on the other hand, has stressed many times that denials of relief from the claims filing requirement are subject to a different and higher standard of review on appeal. Indeed, in our consideration of a trial court‘s denial of the relief provided by
The governing rules were restated recently in Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 [197 Cal.Rptr. 601, 673 P.2d 271], as follows: “Section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary claimant. [Citаtion omitted.] The remedial policies underlying the statute are ‘that wherever possible cases be heard on their merits, and any doubts which may exist should be resolved in favor of the application.’ [Citation omitted.] Thus, ‘[a]n appellate
Resolving all doubts in favor of the application is a far cry from resolving all doubts in favor of the trial court‘s decision to deny the application which is the standard the majority applies. Instead we must ask ourselves—did the trial court in exercising its discretion resolve all doubts in favor of appellant‘s aрplication? Pretty clearly, it did not and thus the decision should be reversed.
In this case, the uncontroverted evidence demonstrated the city had told Mrs. Cole orally she had a full year to file her claim. The uncontroverted evidence also demonstrated the written notice she received announcing she actually only had 100 days was concealed under a card stapled to the letter sent to her. True, she also said she did not file the claim immediately because of her physical condition. However, a court exercising its discretion to “resolve all doubts in favor of the application” would have construed the latter statement as merely an еxplanation of why Mrs. Cole waited later into the one-year period she had been led to believe she had available for filing a claim instead of filing it immediately after she received the letter from the city. Ordinarily one would expect a 73-year-old person to initiate legal action just as soon as possible even if shе were allowed one year—or ten years—to file her claim. And presumably if Mrs. Cole had taken steps to file her claim with the city shortly after she received the letter she probably would have removed the card and found the notice of the 100-day time limit concealed beneath. It is entirely logical to construe this part of Mrs. Cоle‘s statement as merely pointing out her physical condition was enough to overcome the sense of urgency about filing a claim one would ordinarily anticipate in an elderly person and thus to explain why she did not discover the city had erred in advising her she had a full year to file.
The trial court appears to have resоlved all doubts against not in favor of the application. In the majority‘s view, the trial judge interpreted Mrs. Cole‘s mention of her physical condition to mean Mrs. Cole had not been misled about when she was required to file the claim. Rather she was only contending her condition was so bad it excused her deliberate disregard of the time limit she knew applied to her claim. I am not sure this is even a reasonable inference from the uncontroverted facts. I am especially doubtful given the additional factor that Mrs. Cole lodged her application immediately after being made aware she had only 100 days rather than a year to file with the city. But even if this were a logically permissible inference it is by no
Appellant‘s petition for review by the Supreme Court was denied March 5, 1987.