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DeVore v. Department of California Highway Patrol

California Court of Appeals, Third District, Yolo

November 13, 2013

RACHELLE DEVORE et al., Plaintiffs and Appellants,

APPEAL from a judgment of the Superior Court of Yolo County, No. CVPT12398 Daniel P. Maguire, Judge.

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[Copyrighted Material Omitted]

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Jeffrey I Scott and Scott R. L. Love for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Kristin G. Hogue, Assistant Attorney General, Alberto L. Gonzalez and Catherine Woodbridge Guess, Deputy Attorneys General, for Defendants and Respondents.



Plaintiffs Rachelle DeVore (individually and as administrator of the estate of her late husband, Oscar Alfaro) and her adult daughter, Steffani Hix, filed a petition pursuant to Government Code section 946.6[1] for relief from the Government Claims Act (§ 810 et seq.) requirement of presenting a timely claim to a public entity before bringing a tort action against it (§§ 911.2, 945.4), because defendant Department of the California Highway Patrol (CHP) had denied plaintiffs’ alternative claim/request for leave to file a late claim (§ 911.4; see Mandjik v. Eden Township Hospital Dist. (1992) 4 Cal.App.4th 1488, 1500 [6 Cal.Rptr.2d 582]). The trial court denied the petition, concluding that facts establishing defendants’ potential liability to plaintiffs could have been discovered with reasonable diligence, so plaintiffs’ failure to engage the services of an attorney for more than six months after their cause of action arose did not constitute excusable neglect that would qualify them for relief under section 946.6 (citing our decision in People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39 [129 Cal.Rptr.2d 60] (Dept. of Transportation)), and precluded application of the doctrine of delayed discovery.[2]

On appeal, plaintiffs contend the trial court could not make findings on the issue of the accrual of their cause of action because this is beyond the scope

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of a proceeding on a petition for relief under section 946.6.[3] They further maintain that the facts contained in the petition entitle them to relief. We disagree with the former premise, but find that the facts establish grounds for relief under section 946.6. We therefore shall reverse the order with directions to grant the petition.


The trial court makes its determination regarding the petition “[]on the basis of the petition, any affidavits in support... or in opposition..., and any additional evidence received at the hearing on the petition.” (§ 946.6, subd. (e).) We draw our facts from these sources.

Shortly after 10:00 p.m. on August 3, 2010, plaintiffs’ decedent was killed trying to avoid a multi-car accident while riding his motorcycle on Interstate 505 outside Winters, California. He was thrown when his motorcycle went down on the shoulder, and fell 34 feet from a bridge.

Thomas Roberts, who was driving under the influence of alcohol and drugs, was the cause of the accident, having crashed after overcorrecting his steering. He fled the scene on foot, ineffectually attempting to hide from authorities in nearby shrubbery. His breath smelled strongly of alcohol; breath samples indicated alcohol levels of 0.067 percent, and extrapolation from a later blood draw indicated a blood-alcohol level at 10:00 p.m. of between 0.06 and 0.11 percent. The car was uninsured, with expired registration tags. Roberts was charged inter alia with gross vehicular manslaughter while intoxicated.

Plaintiffs were in contact with the victim liaison in the prosecutor’s office over the next few months. The liaison told them the process of bringing charges against Roberts could take several months, and prosecution might take years. Neither the liaison nor anyone else in the prosecutor’s office ever mentioned that Roberts had been the subject of a traffic stop earlier in the evening.

In March 2011, plaintiffs were present at a session of the ongoing preliminary hearing and learned for the first time about the earlier traffic stop. The prosecutor called defendant Sherwood as a witness. Defendant Sherwood testified that the prosecutor had first contacted him at the beginning of February 2011 about testifying. The officer did not at that time have any independent recollection of the traffic stop, but reviewed the video and audio

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recording his patrol car had automatically made of it. At 8:20 p.m. on August 3, 2010, he had stopped the Roberts car for speeding about eight miles north of Williams. From the video, it appeared to the officer that they had talked about whether Roberts had a driver’s license and the circumstances of the speeding violation. The officer did not issue a citation, only a verbal warning against speeding. He had not seen any indicium of intoxication.

Plaintiffs were surprised to hear there had been a traffic stop of Roberts less than two hours before the accident. A reexamination of the CHP report on the accident confirmed that it did not include any reference to the earlier traffic stop or defendant Sherwood. Plaintiffs contacted the victim liaison, who confirmed that there was a dispatch record and a video of the traffic stop, but plaintiffs could not have access to it. At a May 2011 session of the preliminary hearing, plaintiffs approached the prosecutor and asked whether she (DeVore) should consult an attorney about filing an action against the CHP for failing to prevent the accident from happening. The prosecutor offered the opinion that it would be a hard case to prove because the officer had discretion about impounding the vehicle, and the several members of the Roberts family present in the car would have been stranded if it were impounded. He also offered the opinion that it would not be easy to find an attorney to take the case. Plaintiffs began to seek legal representation after a June session of the preliminary hearing. They found their present attorney in early July, and executed a retainer on July 29, 2011.

On August 3, 2011, counsel filed the notice of claim/application for leave to file a late claim. It asserted defendants’ liability for failure to carry out a mandatory duty to impound the Roberts car when Roberts was unable to produce a valid driver’s license. (Veh. Code, § 14607.6, subd. (c)(1) [peace officer “shall” impound car if driver fails to produce valid license].) The claim /application was denied in September 2011. In a request to CHP for public records, plaintiffs’ counsel obtained the daily field record for defendant Sherwood for August 3, 2010, which showed a verbal warning for a speed infraction at 8:20 p.m. but no other identifying information. The CHP declined at that time to provide a copy of the recording from ...

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