Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2008-00090453-CU-PT-CTL, Roger W. Krauel, Judge.
McDONALD, J.
Plaintiff Beulah Hilbers appeals an order denying her Government Code section 946.6 petition for an order relieving her from the claim presentation requirements of sections 911.2 and 945.4. On appeal, she contends the trial court abused its discretion by denying her petition because her counsel acted with reasonable diligence in investigating whether defendant Metropolitan Transit System (MTS) is a government agency and MTS did not show it would suffer any prejudice from her requested relief.
All statutory references are to the Government Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On August 9, 2007, Hilbers was injured while on an MTS bus. A few days later, Diana Bernico, Hilbers's home care provider, reported the incident to MTS by telephone and received claim No. 30126. In late August, Hilbers retained attorney William C. Mathews to represent her in her personal injury claim against MTS. Aware of government claim requirements, Mathews checked his telephone book to determine whether MTS was a government agency. He did not find MTS listed under government agencies, but found MTS in the business listings. Based on that information, Mathews concluded MTS was a private bus company.
On or about April 5, 2008 (more than six months after the incident), Hilbers presented MTS with a personal injury claim. MTS apparently denied the claim as untimely filed.
On or about May 9, 2008, Hilbers presented MTS with an application for leave to present it with a late claim for her August 2007 personal injury. MTS denied that application.
On August 25, 2008, Hilbers filed the instant section 946.6 petition (Petition) for an order relieving her from the claim presentation requirements of sections 911.2 and 945.4. She alleged her failure to present a timely claim was the result of mistake, inadvertence, surprise or excusable neglect, and MTS would not suffer any prejudice from her requested relief. In support of the Petition, she submitted the declaration of Mathews in which he stated:
"I have been doing personal injury [work] for [27] years in San Diego and was fully aware of claim requirements. I had done a number of bus cases, and at the time was working on a bus case involving injury on a Lemon Grove bus, wherein the defendant was a private company, to wit, Laidlaw Transit Co., Inc., which operated city buses. In that case, there was no claim issue, as the company was private, and as such, there was no Government Code issue.
"In the instant case, I initially checked my telephone book under government agencies to determine whether [MTS] was a government agency. They were not listed. A copy of that listing is attached... and incorporated by reference herein. I then checked the private listings and found MTS prominently listed under the private business listings. A copy of that listing is attached... and incorporated herein by reference. Because of this information, I concluded that MTS was like Laidlaw, a private company operating buses in the San Diego area."
MTS opposed the Petition, arguing MTS is an alternative name for the San Diego Metropolitan Transit Development Board (MTDB), a California public agency. MTS quoted Public Utilities Code section 120050, subdivision (b), which provides: "The board [i.e., MTDB] shall also be known as the San Diego Metropolitan Transit System. Any reference in law to the board shall be construed to include a reference to the San Diego Metropolitan Transit System." MTS further argued MDTB was listed on the State of California's Roster of Public Agencies. MTS argued Hilbers's investigation into its public agency status was wholly deficient; and had her attorney, instead of merely consulting a telephone book, accessed the Roster of Public Agencies or contacted MTS, he would have learned of its public agency status. Therefore, MTS argued Hilbers had not shown "excusable neglect" to justify her late claim. MTS further argued it would suffer prejudice were the Petition's requested relief granted.
On September 29, the trial court held a hearing on the Petition. After hearing arguments of counsel, the court noted section 946.6, subdivision (c)(1), directed it to grant the Petition if it found Hilbers's failure to timely present her claim was due to mistake, inadvertence, surprise or excusable neglect. The court noted Hilbers's purported mistake was her counsel's reliance on how MTS was listed in the telephone book in determining whether MTS was a government agency. The court further noted, in determining whether that purported mistake was sufficient for section 946.6 relief, it would apply the test of "whether a reasonably prudent person would have made the same error under similar circumstances." The court found Hilbers had not made a sufficient showing by a preponderance of the evidence that she satisfied the requirements for section 946.6 relief. The court also found MTS would suffer substantial prejudice were the relief granted. Accordingly, the trial court denied the Petition.
On October 15, Hilbers timely filed a notice of appeal.
DISCUSSION
I Government Claims Presentation Requirements Generally
"Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. (Gov. Code, § 911.2; [citations].)... Since 1988, [personal injury] claims must be presented to the government entity no later than six months after the cause of action accrues. [Citation.]... [¶] Timely claim presentation is not merely a procedural requirement, but is, as this court long ago concluded, ' " 'a condition precedent to plaintiff's maintaining an action against defendant.' " ' [citations], and thus an element of the plaintiff's cause of action. [Citation.] Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action. [Citation.]" (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208-209.) Section 911.2, subdivision (a), sets forth the relevant claims period for personal injury claims against government agencies: "A claim relating to a cause of action for death or for injury to person... shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action...." Section 945.4 provides: "Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board...."
If a claimant has not timely presented a personal injury claim within section 911.2's six-month claim presentation period, the claimant may present the public entity with an application for leave to present a late claim pursuant to section 911.4, which must be presented "within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim." (§ 911.4, subd. (b).) Section 911.6, subdivision (b), provides that the public entity's board "shall grant the application where... [¶] (1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its defense of the claim by the failure to present the claim within the time specified in Section 911.2."
If the public entity denies an application to present a late claim, the claimant may file with the court a section 946.6 petition within six months after that denial for relief from complying with section 945.4. Section 946.6 provides:
"(a) If an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4.... [¶]... [¶]
"(c) The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable: [¶] (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. [¶]... [¶]
"(e) The court shall make an independent determination upon the petition. The determination shall be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.
"(f) If the court makes an order relieving the petitioner from Section 945.4, suit on the cause of action to which the claim relates shall be filed with the court within 30 days thereafter." (Italics added.)
The petitioner has the burden to prove by a preponderance of the evidence that his or her failure to timely present a claim to the public entity was due to mistake, inadvertence, surprise or excusable neglect. (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1162 (Rojes), overruled on another ground in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1607; Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 156.) "The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief." (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293 (Water & Power).) "Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person in the same or similar circumstances. [Citation.]" (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 (Ebersol), italics added; see also Rojes, at p. 1162; Shank, at p. 157.) Accordingly, "[r]elief on grounds of mistake, inadvertence, surprise or excusable neglect is available only on a showing that the claimant's failure to timely present a claim was reasonable when tested by the objective 'reasonably prudent person' standard." (Water & Power, at p. 1293.)
We stated in De Young v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, at page 864: "The reasonableness of a misconception leading to the failure to timely file under section 911.2 determines whether relief will be granted under section 946.6. [Citations.]" "There must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence. [Citation.] The party seeking relief based on a claim of mistake must establish he was diligent in investigating and pursuing the claim [citation] and must establish the necessary elements justifying relief by the preponderance of the evidence. [Citation.]" (Water & Power, supra, 82 Cal.App.4th at p. 1293.) In proving excusable neglect, the claimant must show that within the applicable six-month claims period, the claimant did not know or had no reason to know that a public entity was involved. (Id. at p. 1294; Leake v. Wu (1976) 64 Cal.App.3d 668, 673.)
"[A]ctual knowledge by the public entity of the circumstances of a potential claim constitutes neither substantial compliance with the claims statute by the claimant nor a basis for estoppel. [Citation.] The public entity has no burden of establishing prejudice arising from the failure to file a timely claim until after the party seeking relief has made a prima facie showing of entitlement to relief. [Citations.]" (Water & Power, supra, 82 Cal.App.4th at pp. 1296-1297.)
The decision to grant or deny a section 946.6 petition for relief is within the sound discretion of the trial court. (Water & Power, supra, 82 Cal.App.4th at p. 1293.) On appeal, we will not disturb the trial court's decision unless the appellant shows the court abused its discretion. (Ebersol, supra, 35 Cal.3d at p. 435.)
II Order Denying the Petition
Hilbers contends the trial court erred by denying the Petition because she made a good faith mistake regarding whether MTS was a public entity for which a personal injury claim must be presented within six months pursuant to sections 911.2 and 945.4. She further contends MTS did not show it would be prejudiced were the trial court to grant her requested relief.
Before reaching the question of whether MTS showed it would be prejudiced were the trial court to grant the Petition, we address the question of whether the court abused its discretion by concluding Hilbers did not carry her burden to prove by a preponderance of the evidence that her failure to timely investigate MTS's status as a public agency was due to a mistake, inadvertence, surprise or excusable neglect under section 946.6. (Water & Power, supra, 82 Cal.App.4th at pp. 1293, 1297.) To make that prima facie showing, Hilbers cannot merely show her mistake, or her attorney's mistake, was an actual, good faith or honest mistake; rather, she must show that in the exercise of reasonable diligence she could not have discovered MTS's public agency status. (Id. at pp. 1293-1294.) Hilbers must show that a reasonably prudent person in her circumstances would not have discovered MTS's public agency status. (Id. at p. 1293; Ebersol, supra, 35 Cal.3d at p. 435.)
Based on our review of the record, we conclude the trial court did not abuse its discretion by concluding Hilbers did not prove by a preponderance of the evidence that a reasonably prudent person in the same or similar circumstances in the exercise of reasonable diligence would not have discovered MTS's public agency status. In support of the Petition, Hilbers submitted the declaration of her attorney, who stated his entire investigation into whether MTS was a public agency consisted of consulting a telephone book. After Hilbers retained Mathews, it was his responsibility "to diligently investigate the facts, identify possible defendants, and timely file the tort claim. [Citation.]... Mistake of counsel is not a basis for granting relief from the claim filing requirements. [Citation.]" (Water & Power, supra, 82 Cal.App.4th at p. 1294, fn. 3.) In this case, Mathews's perfunctory investigation showed MTS was listed in the business listings, but apparently was not listed in the government listings. Based solely on that telephone book research, Mathews concluded MTS was not a public agency to which Hilbers's personal injury claim must be timely presented (pursuant to sections 911.2 and 945.4) before filing a court action.
Based on the record, we conclude the trial court did not abuse its discretion by implicitly finding Mathews's investigation did not constitute reasonable diligence and, instead, a reasonably prudent person would have conducted a more diligent and thorough investigation regarding whether MTS is a public agency and, in so doing, would have discovered MTS is a public agency. (Cf. Leake v. Wu, supra, 64 Cal.App.3d at p. 673 [plaintiffs' claims were lost by inexcusable neglect of their attorney, who "apparently conducted no investigation, such as simple inquiry to the hospital, to determine whether the doctors might have been county employees. Instead, the attorney chose to rely solely on his understanding or personal experience that a doctor is an independent contractor. The attorney's failure to make even a minimal inquiry into the matter was not the conduct of a reasonably prudent person nor the type of mistake or neglect for which the statutes afford relief."]; De Young v. Del Mar Thoroughbred Club, supra, 159 Cal.App.3d at pp. 861, 864 [claimant's counsel unreasonably interpreted tenant club's claims adjuster's statement that club was the responsible party for claim as a statement of sole ownership of premises owned by State of California]; Life v. County of Los Angeles (1991) 227 Cal.App.3d 894, 902 [County of Los Angeles was not estopped from asserting claims bar because claimant's attorney unreasonably relied on advice of medical records clerk regarding filing a claim with hospital's legal department].) In this case, the trial court may have concluded a reasonably prudent person would have taken the simple step of confirming whether MTS was listed on the State of California's Roster of Public Agencies. (See § 53051 [regarding obligation of public agencies to file statement of facts with Secretary of State and county clerk, who shall maintain Roster of Public Agencies as a public record].) The court may also have concluded a reasonably prudent person, having found MTS's telephone number in the telephone book, would have taken the further simple step of calling that number to inquire whether, and would presumably have learned, MTS is in fact a public agency. We conclude the trial court did not abuse its discretion by concluding Hilbers did not satisfy her burden to prove her failure to timely present a claim to MTS was the result of a mistake, inadvertence, surprise or excusable neglect within the meaning of section 946.6. (Water & Power, supra, 82 Cal.App.4th at p. 1293; Ebersol, supra, 35 Cal.3d at p. 435.)
None of the cases cited by Hilbers are apposite to this case or otherwise persuade us to reach a contrary conclusion. (See, e.g., Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432 [plaintiff's ongoing settlement discussions with public entity would have caused a reasonably prudent person to untimely present a claim]; O'Brien v. City of Santa Monica (1963) 220 Cal.App.2d 67.) Because we conclude the trial court did not abuse its discretion in concluding Hilbers did not make a prima facie showing under section 946.6, we need not address whether the court abused its discretion by concluding MTS showed it would be prejudiced were the Petition granted. (Water & Power, supra, 82 Cal.App.4th at p. 1293; Rojes, supra, 203 Cal.App.3d at pp. 1163-1164.)
Hilbers raises for the first time in her reply brief the contention that MTS did not comply with section 7530 by listing its telephone number in the telephone book's business listings without identifying itself as a public agency. However, we deem that belatedly raised contention to be waived and therefore decline to address its merits. In any event, were we to address its merits, we doubt a reasonably prudent person would have believed MTS was not a public agency based on that purportedly noncompliant telephone book listing. (Cf. Rojes, supra, 203 Cal.App.3d at pp. 1165-1166 [lack of public agency identification on all medical records did not require trial court to grant relief for untimely presented claim].)
DISPOSITION
The order is affirmed. Defendant is entitled to costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., AARON, J.