MARIAN LEE EBERSOL, Plаintiff and Appellant, v. JAMES F. COWAN, as Superintendent, etc., Defendant and Respondent.
L.A. No. 31644
Supreme Court of California
Dec. 30, 1983.
35 Cal. 3d 427
Ghitterman, Hourigan, Grossman, Finestone & Perren, Ghitterman, Hourigan, Grossman, Finestone & Schumaker, Steven Z. Perren, Allan Ghitterman and George Benz for Plaintiff and Appellant.
Leonard Sacks, Victoria J. De Goff, Wylie A. Aitken, Harlan Arnold, Glen T. Bashore, Ray Bourhis, Richard D. Bridgman, Edwin Train Caldwell, Robert E. Cartwright, David S. Casey, Jr., Harry J. Delizonna, Douglas K. deVries, Paul A. Eisler, Sanford M. Gage, Ian Herzog, G. Dana Hobert, Stanley K. Jacobs, Harvey R. Levine, John C. McCarthy, Timothy W. Peach, Joseph Posner, Roberta Ritter, John M. Van Dyke, Arne Werchick and Stephen I. Zetterberg as Amici Curiae on behalf of Plaintiff and Appellant.
Ives, Kirwan & Dibble, Martin J. Kirwan and Herbert Jung for Defendant and Respondent.
John K. Van de Kamp, Attorney General, Nеlson Kempsky, Chief Deputy Attorney General, Richard D. Martland, Chief Assistant Attorney General, Marvin Goldsmith, Assistant Attorney General, Seward L. Andrews and Bruce J. Braverman, Deputy Attorneys General, Robert F. Carlson, Joseph A. Montoya, Robert L. Meyer and Robert W. Vidor as Amici Curiae on behalf of Defendant and Respondent.
REYNOSO, J.—Marian Lee Ebersol appeals from an order of the Superior Court of Ventura County denying her relief from the claim presentation requirement of
For the reasons discussed below, we conclude that the trial court abused its discretion. We hold that, under the circumstances of this case, Ms. Ebersol‘s failure to timely identify a possible cause of action against the county superintendent of schools constituted excusable neglect. We remand to the trial court for a determination of whether respondent would be prejudiced by granting relief in this case.2
The court must grant the petition under
I
The facts are undisputed. On February 17, 1981, while employed as a school bus driver by the Channel Islands Bus System, a private company, Ms. Ebersol was bitten on the left wrist by a mentally retarded teenage boy whom she was transporting to a work training program at the Camarillo Air Base. Unknown to Ms. Ebersol, the work training program was operated under the auspices of the Department of Special Education of the Ventura County Superintendent of Schools (County) which had contracted with the Channel Islands Bus System to provide transportation.
Ms. Ebersol began employment with the Channel Islands Bus System in August 1978. During the three weeks prior to February 17, 1981, she was responsible for picking up mentally retarded teenagers and young adults at their homes in the City of Oxnard and transporting them to the Camarillo Air Base for participation in the work training program.
On February 17, 1981, Ms. Ebersol took Mark Cates from his home in Oxnard to the air base. Enroute, Ms. Ebersol noticed that Mark had rubbed a candy bar on his face and was rocking in his seat. In accordance with the instructions of her supervisor, Ms. Ebersol stopped the bus and walked a few seats back to where Mark was sitting. She tried to calm him. As she spokе, she placed her left hand on Mark‘s shoulder. Mark turned toward Ms. Ebersol, smiled, and bit her left wrist.
Ms. Ebersol finished the run, returned to the bus yard and informed her supervisor of the incident. Shortly thereafter, she noticed swelling and broken skin where she had been bitten.
Ms. Ebersol went to the Ventura County Hospital at 11:15 that same morning. A doctor wrapped her arm and instructed her not to drive. That afternoon, in response to a call from the hospital, she returned there for the purpose of receiving a tetanus shot.
On that same afternoon, during the time between her hospital visits, Ms. Ebersol telephoned a Santa Paula attorney whom she knew, and explained the incident to him. Thе attorney informed her that she did not have a case and he was not retained.
On March 13, 1981, Ms. Ebersol contacted a Ventura attorney recommended by her father through a Florida attorney. The Ventura attorney also advised that she had no case and was not retained.
Ms. Ebersol was readmitted to the hospital on March 19, and remained there until March 27, 1981. Her condition was finally diagnosed as “Volkmann‘s contracture.” This condition, resulting from the bite, involves tissue degeneration which results, as in Ms. Ebersol‘s case, with the hand going into a claw position.
Ms. Ebersol underwent surgery and her hand was put into a surgical cast on March 25, 1981. This cast was removed on April 2, and a plaster cast applied. The plaster cast was removed after two weeks and a fiberglass cast was applied. On May 2, the fiberglass cast was remоved. On June 9, a new cast was applied. Ms. Ebersol is apparently still undergoing medical treatment.
During the period from March 14 to June 11, 1981, Ms. Ebersol telephoned seven additional attorneys, all of whom she had located in the yellow pages. Not one of these attorneys expressed an interest in her case and none of them advised her regarding the nature of her claim.
Unknown to Ms. Ebersol, on May 28, 1981, the 100-day limitation for filing a claim against the County expired under
On June 11, 1981, Ms. Ebersol went to the Ventura law firm which now represents her and to which she was referred by a former coworker. She initially met with a paralegal employed by the firm. The paralegаl advised Ms. Ebersol that she had a workers’ compensation claim. Attorney Steve Perren joined the meeting, and indicated that while Ms. Ebersol did have a workers’ compensation claim, she did not appear to have any claim for personal injuries on the basis of a “third-party” action.
Later that afternoon, Mr. Perren discussed the case with another partner of the law firm. They determined that if the agency responsible for the work training program kept records on the care and well-being of the youths who
Mr. Perren contacted Ms. Ebersol that afternoon and set an appointment for the first available date, June 16, 1981. On June 16, Ms. Ebersol and Mr. Perren discussed the facts of the case in more detail. Mr. Perren tried without success to identify by telephone the agency responsible for the work training program. The following day, after many additional telephone calls, Mr. Perren ultimately determined that the program was operated under the auspices оf the County. Mr. Perren notified Ms. Ebersol, who retained Mr. Perren to pursue her claim.
On June 26, 1981, 127 days after the accrual of her cause of action, Ms. Ebersol presented to the County a written application for leave to file a late claim pursuant to
Thereafter, Ms. Ebersol petitioned the Ventura County Superior Court for relief from the claim requirement pursuant to
On August 27, 1981, the trial court denied the petition on the ground that Ms. Ebersol failed to make a sufficient showing of mistake, inаdvertence, surprise or excusable neglect, as required under
II
Did the trial court abuse its discretion in denying Ms. Ebersol‘s petition?
We have said that the showing required for relief under
Ms. Ebersol contends that her ignorance of the existence of a possible cause of action against the County superintendent of schools and hence her failure to timely file a claim against it, in light of her consistent efforts to retain legal representation, constituted mistake or excusable neglect which warrants the granting of relief under
Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances. (Tammen v. County of San Diego, supra, 66 Cal.2d 468, 476.) In general, cases granting relief on the basis of excusable neglect involve plaintiffs who acted diligently to retain counsel within the 100-day limitation period. It is
In contrast, as Ms. Ebersol points out, the cases denying relief under
In the present case, Ms. Ebersol acted swiftly to place her case in the hands of an attorney on the very day she was injured. Thereafter, despite repeated rebuffs by the attorneys she contacted, Ms. Ebersol continued to seek legal advice and assistance. Despite her physical pain, the progressive deformity of her left hand, her frequent and prolonged admissions to the hospital, and her frequent outpatient medical treatments, Ms. Ebersol continued her search. Clearly, Ms. Ebersol‘s efforts to obtain counsel during the 100-day limitation period were both tenacious and diligent.
The County asserts that diligent efforts to obtain legal counsel within the 100-day limitation period provide an insufficient basis for granting relief from the claim presentation requirement. The County argues that relief must be based on the claimant‘s diligent efforts to ascertain the pertinent facts of his or her case. Thus, the County maintains that relief cannot be granted in the present case because Ms. Ebersol made no efforts to discover its identity within the 100-day period. The County relies, as did the trial court, on City of Fresno, supra, 104 Cal.App.3d 25, 32. The County, and presumably the trial court, rely on the following language in City of Fresno: “A petitioner or his attorney must show more than that he just failed to discover a fact until too late; they must establish in the use of reasonable diligence they failed to discover it. (Black v. County of Los Angeles, supra, 12 Cal.App.3d 670, 677.)” (Ibid.)
This reliance on City of Fresno is misplaced. In that case, the plaintiff was beaten and robbed in the area of an underground garage prominently marked as reserved for guests of the hotel in which he was a registered guest and served by an elevator to that hotel. Plaintiff‘s counsel filed a complaint for personal injuries against the hotel and other private defendants
Through new counsel, plaintiff filed a petition for relief from the claim requirement. The only evidence presented in support of the petition was a declaration of plaintiff‘s former counsel indicating that the first knowledge he had that the City of Fresno and its parking authority were potential defendants was when he was served with the cross-complaint. On this basis, the trial court granted relief.
The City of Fresno and its parking authority successfully sought from the Court of Appeal a peremptory writ of mandate directing the trial court to vacate its order. In the absence of competent evidence as to when plaintiff had consulted his first attorney, the Court of Appeal assumed that counsel had been retained prior to the running of the 100-day limitation period.13 The court held that counsel‘s failure to file a timely claim against the public entities could not be attributed to mistake, inadvertence, surprise, or excusable neglect. It reasoned that counsel had conducted no investigation whatsoever to ascertain the possible defendants that should have been joined in his client‘s suit. Neither counsel nor his investigator had visited the scene of the injury, which would have disclosed that the lower levels of the garage were public parking arеas maintained by the City of Fresno. Moreover, had the attorney or his investigator discussed, or made a written inquiry into, the situation with either the hotel or the Fresno Police Department, such efforts would probably have disclosed the ownership of the parking facility.
Thus, the City of Fresno, unlike the present case, is similar to those cases where relief has been denied due to the inexcusably dilatory conduct of plaintiff‘s counsel.14 (See fn. 11, ante, at pp. 436-437, and accompanying text.) Black v. County of Los Angeles, supra, on which Fresno relies, is similarly distinguishable. In Black, counsel was retained within 100 days
Ms. Ebersol properly sought to retain legal counsel to pursue her claim rather than undertake an independent investigation of the facts and the law of her own case. Given that nine attorneys told her she had no claim, it could not reasonably be expected that Ms. Ebersol would undertake, or should have undertaken, her own legal or factual investigation. As set forth in her declaration, Ms. Ebersol had no prior experience with claims for personal injuries, nor was she aware of the claim requirement against governmental entities. Ms. Ebersol did not know or have reason to know that the County operated the work training program at the Camarillo Air Base. This fact would not be reasonably apparent to, or anticipated by, the average layperson. As Ms. Ebersol points out, an initial awareness and understanding of the possible basis for recovery in Tarasoff is required even before an inquiry into agency responsibility would be made. The reasonable and prudent course of conduct under the circumstances of this case was to seek legal counsel. Accordingly, we conclude that the failure of Ms. Ebersol to timely file a claim against the County constituted excusable neglect.15
The County argues that the uncontradicted nature of the evidence is not a sufficient reason to grant relief in this case. While it is true that a trier of fact may disbelieve uncontradicted evidence, such evidence cannot be arbitrarily disregarded. (Tammen v. County of San Diego, supra, 66 Cal.2d 468, 477.) The County would apparently have us disbelieve that Ms. Ebersol made repeated attempts to retain legal counsel and, further, that her failure to independently identify the County as the agency responsible for operating the work training program was unreasonable. The County has not submitted any declarations or other factual basis for disbelieving the prof-
Where, as here, plaintiff‘s excusable neglect was the actual cause of her failure to comply with thе 100-day requirement, and her application to the County could obviously not be made until she discovered that she had a possible cause of action, the delay of less than one year after the accrual of the cause of action was reasonable under the circumstances. (Viles, supra, 66 Cal.2d 24, 32.)
The order of the trial court is reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.
Mosk, J., Richardson, J., Kaus, J., Broussard, J., and Grodin, J., concurred.
BIRD, C. J.—I concur in Justice Reynoso‘s opinion for the court. However, I would rest the holding on the equal protection guarantee of the California Constitution.1
It is the general policy of the State of California to provide protection from negligence to everyone. (
This court has recognized that “[t]he rule of governmental immunity for tort is an anachronism, without rational basis ....” (Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d at p. 216; but see Flournoy v. State of California (1964) 230 Cal.App.2d 520, 524-525 [41 Cal.Rptr. 190].) A sweeping distinction between victims of governmental and private torts makes no more sense with regard to onerous procedural requirements than with regard to governmental immunity. “A [person‘s] life or limb does not become less worthy of protection by the law nor a loss lеss worthy of compensation under the law” (Rowland v. Christian, supra, 69 Cal.2d at p. 118) merely because his or her injury was caused by governmental as opposed to private negligence.
In Tammen v. County of San Diego (1967) 66 Cal.2d 468, 481 [58 Cal.Rptr. 249, 426 P.2d 753], this court upheld the claims presentation requirements without discussion. Recent appellate decisions upholding the requirements have added little or no analysis.3 I would overrule Tammen and invalidate the claims presentation requirements as violative of the equal protection guarantee.