IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
November 29, 2011
JOEL GUTHRIE, PLAINTIFF AND APPELLANT,
COUNTY OF SUTTER, DEFENDANT AND RESPONDENT.
(Super. Ct. No. CVCS10-1024)
The opinion of the court was delivered by: Blease , Acting P. J.
Guthrie v. County of Sutter
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Joel Guthrie appeals from an order denying his petition for relief from the tort claim filing requirements of Government Code*fn1 section 911.2. We find no abuse of discretion and affirm the order.
On June 1, 2009, Guthrie's wife was involved in a fatal single car accident on Garden Highway. She was alone in the car.
On January 27, 2010, 57 days after the six-month statutory claim period passed, Guthrie filed a request with the County of Sutter (County) for leave to present a late tort claim. When the County denied the request, Guthrie petitioned the superior court for relief from the tort claim filing requirements, pursuant to section 946.6. He asserted that his failure to present a claim within the six-month time limit imposed by the tort claims law was the result of mistake, inadvertence, surprise and excusable neglect, arising from (1) the fact that the traffic collision report, which was delayed and unavailable until September 2009, was essential to a determination of whether a dangerous condition of public property played a role in the accident; and (2) the emotional trauma Guthrie suffered from losing his wife of 44 years "fundamentally altered his life" and "hindered his ability to work and function as he did before." Moreover, Guthrie argued, the County would not be prejudiced by granting the relief.
In support of his petition, Guthrie, an attorney, averred that, after his wife's death, he "was not able to function as I formerly did. I was depressed, unfocused, and disorganized." He also "had a difficult time working[,]" and "missed deadlines, was unorganized, and had difficulty focusing" on his family law practice, to the point where he was sanctioned for the first time in 10 years by the court for missing deadlines. After the six-month claim period ended, Guthrie spoke with two other attorneys, who advised Guthrie he might have a claim against the County arising from a dangerous condition of property. Within days of that conversation, Guthrie sought to file a late claim.
Guthrie also submitted the declaration of his friend and former law partner Terence Keeley, now a retired judge. Keeley averred that he saw Guthrie frequently after the accident, and noticed that Guthrie "was not functioning in the same fashion" as before: it "was apparent [Guthrie] suffered from emotional trauma caused by his wife's sudden death and evidenced signs of depression. He was irritable and restless, had difficulty concentrating, difficulty in making decisions, was not able to pay attention to or remember details, was unorganized, was pessimistic at times, lost interest in activities he once enjoyed, and clearly was not himself." Keeley expressed "no doubt" that through the beginning of 2010, Guthrie was "significantly depressed, suffered from emotional trauma, and was not able to function at his former personal and professional level."
In opposition, the County argued Guthrie's use of "non-medical conclusory statements regarding [his] mental health" do not establish excusable neglect for failure to follow the required claims procedure particularly where, as here, the potential claimant is an attorney who failed to take any action (including seeking legal counsel) in pursuit of his claim within six months of the accident. The County did not assert it would be prejudiced if Guthrie were granted relief.
Following oral argument, the trial court denied Guthrie's motion, finding that Guthrie failed to establish that his depression and trauma following his wife's death prevented him from taking any step toward presenting a wrongful death claim within the statutory six-month period, and thus failed to satisfy his burden of showing excusable neglect.
The issue here is whether the court abused its discretion in denying Guthrie's petition for relief from section 946.6 on grounds of mistake, inadvertence, surprise, or excusable neglect. We conclude the court did not abuse its discretion.
Presentation of a timely claim is a condition precedent to the commencement of suit against a public entity. (§ 945.4.) Such a claim must be made not later than six months after the accrual of a cause of action. (§ 911.2.) However, if the injured party fails to file a timely claim, he may make a written application to the public entity for leave to present a late claim (§ 911.4, subd. (a)) and, if the public entity denies the application, he may petition the court for relief from the claim requirements. (§ 946.6.)
Grounds for relief, under section 946.6, subdivision (c), include that:
"(1) The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4.
"(2) The person who sustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim.
"(3) The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time.
"(4) The person who sustained the alleged injury, damage or loss died before the expiration of the time specified in Section 911.2 for the presentation of the claim."
The trial court must grant the petition under section 946.6, subdivision (c), if the claimant demonstrates by a preponderance of evidence the application was made within a reasonable time not exceeding one year after the accrual of the cause of action, and that one of the other four requirements listed in section 946.6, subdivision (c), is met. In determining whether relief is warranted, the court will consider the petition, any affidavits submitted in support of or in opposition to it, and any other evidence presented at the hearing. (§ 946.6, subd. (e); see Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275; Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1410.)
The trial court's determination to grant or deny a petition for relief under section 946.6 will not be disturbed on appeal except for an abuse of discretion; abuse of discretion is shown where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435; Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1383.) Section 946.6 is a remedial statute intended to provide relief from technical rules which trap the unwary. The remedial policy underlying the statute is that, wherever possible, cases should be heard on the merits, and any doubts that exist should be resolved in favor of the application. A denial of relief by the trial court is therefore examined more rigorously than an order granting relief. (Ibid., and cases cited therein.)
Guthrie contends the court abused its discretion in denying his petition for relief because he carried his burden of proof of demonstrating mistake, inadvertence, surprise, or excusable neglect. He claims he demonstrated these grounds by showing that during the six-month claim filing period, he was consumed by emotional trauma, which precluded him from acting with reasonable diligence. Guthrie also argues he effectively satisfied the requirement that he seek legal counsel during the statutory six-month window by "reasonably rel[ying] on his own legal experience and that of Terence Keeley, former superior court judge and practitioner of personal injury law, and neither of them ever saw" the existence of a potential claim against the County.*fn2
Excusable neglect can be the result of a mental disability or extreme emotional upset. (Barragan v. County of Los Angeles, supra, 184 Cal.App.4th at pp. 1384-1385.) "If a claimant can establish that physical and/or mental disability so limited the claimant's ability to function and seek out counsel such that the failure to seek counsel could itself be considered the act of a reasonably prudent person under the same or similar circumstances, excusable neglect is established. . . . [E]very claimant is likely to be suffering from some degree of emotional upset, and it takes an exceptional showing for a claimant to establish that his or her disability reasonably prevented the taking of necessary steps." (Id. at p. 1385; see also County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 552-554 [upholding order allowing parents to present a late wrongful death claim where the delay in filing resulted from the emotional trauma caused by their son's death, and the total delay was only 30 days].)
In People ex rel. DOT v. Superior Court (2003) 105 Cal.App.4th 39, this court considered the claimant's argument that he did not seek counsel due to post accident depression and trauma. While rejecting his argument on procedural grounds, we also reasoned that, even were the argument cognizable on appeal, the claimant's evidence was "insufficient to demonstrate excusable neglect, because no evidence was offered that these conditions substantially interfered with his ability to function in daily life, take care of his personal and business affairs, or seek out legal counsel." (Id. at p. 46; see Barragan v. County of Los Angeles, supra, 184 Cal.App.4th at p. 1385.)
Here, Guthrie did offer some evidence that his post accident depression and emotional trauma interfered with his ability to take care of his personal and business affairs. (Cf. People ex rel. DOT v. Superior Court, supra, 105 Cal.App.4th at p. 46.) His declaration states that he was "not able to function as [he] formerly did," was "depressed, unfocused, and disorganized[.]" His ability to take care of his business affairs suffered, in that he "missed deadlines, was unorganized, . . . had difficulty focusing" on his family law practice, and ultimately was sanctioned by the court for missing deadlines associated with his law practice. His close friend and former law partner similarly averred that Guthrie was not functioning "at his former personal and professional level" in the six months following his wife's accident: Guthrie suffered from difficulty concentrating, difficulty in making decisions, was unorganized, and was "significantly depressed . . . ."
The County argues this evidence does not show his post-accident mental or emotional state "substantially interfere[d]" with his ability to function in his personal or professional life, or to seek out legal counsel.*fn3 (People ex rel DOT v. Superior Court, supra, 105 Cal.App.4th at p. 46.)
There is some conflict in the authority on the issue of whether a claimant is absolutely precluded from showing excusable neglect if he has not at least consulted an attorney within six months of the potentially actionable event. In People ex rel DOT v. Superior Court, supra, 105 Cal.App.4th 39, the plaintiff took more than seven months to consult an attorney and did nothing in the intervening months to retain counsel or investigate the potential liability of others. (Id. at p. 44.) Of that delay, we wrote: "The pivotal issue is the diligence exercised by [plaintiff] during the six-month claim-filing period. In this respect, the record demonstrates that there was no diligence at all. [Plaintiff] did nothing until his fortuitous conversation with his barber, which took place seven months after the incident. [¶] 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. Once retained, it is the responsibility of legal counsel to diligently pursue the pertinent facts of the cause of action to identify possible defendants.' (Citations.)" (Id. at pp. 44-45; accord Ebersol v. Cowan, supra, 35 Cal.3d at p. 439; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1778-1779.)
More recently, Barragan v. County of Los Angeles, supra, 184 Cal.App.4th 1373 rejected the notion that established a bright-line rule for excusable neglect requires a claimant to have made a diligent effort to obtain counsel within the first six months. In Barragan, the plaintiff was rendered quadriplegic in a car accident, and she endured a lengthy hospitalization and recovery that extended over 10 months. (Id. at pp. 1376-1379.) She appealed after her petition for leave to file a late claim was denied. (Id. at pp. 1380-1381.) Barragan concluded, "there is no absolute rule barring excusable neglect when the claimant has failed to obtain counsel during the six-month period. If a claimant can establish that physical and/or mental disability so limited the claimant's ability to function and seek out counsel such that the failure to seek counsel could itself be considered the act of a reasonably prudent person under the same or similar circumstances, excusable neglect is established." (Id. at p. 1385.)
Barragan does not aid Guthrie's case, because the evidence does not suggest that Guthrie's mental disability or emotional trauma prevented him from contacting or consulting an attorney. To the contrary, the evidence shows Guthrie had frequent contact with at least one attorney, his former law partner and retired Judge Keeley, during the relevant time period, during which he could have (but apparently did not) discuss potential causes of action related to the accident. Indeed, the fact that Guthrie was depressed, disorganized or had difficulty making decisions following his wife's accident did not preclude his continuing to work in his own career as an attorney; presumably, that work brought him into contact with other attorneys with whom he could have consulted had he wished to do so. An unsophisticated claimant is required under the law to make a diligent effort within the first six months to consult with counsel or show that he was prevented from doing so by a physical and/or mental disability (cf. Barragan v. County of Los Angeles, supra, 184 Cal.App.4th at p. 1385); Guthrie has not shown that the law requires any less of a reasonably prudent attorney who is also a potential claimant. (Ibid.)
Under these circumstances, the trial court did not abuse its discretion in concluding that Guthrie failed to make the requisite "exceptional showing" that his mental or emotional state prevented him from taking the "necessary step" of at least consulting counsel within the first six months after his wife's accident (cf. Barragan v. County of Los Angeles, supra, 184 Cal.App.4th at p.1385).*fn4
The order is affirmed. County is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: NICHOLSON , J. DUARTE , J.