A widow filed a notice of claim and application for leave to file a late claim with a public entity one year after a traffic accident that killed her husband. The court of appeals held that the widow’s failure to discover a basis for the public entity’s liability until seven months after the accident was excusable. (DeVore v. California Highway Patrol (November 13, 2013 (No. C071610) — Cal.Rptr.3d —- [13 Cal. Daily Op. Serv. 12,447].
Oscar Alfaro was killed while trying to avoid a multi-car accident caused by Thomas Roberts, who was driving under the influence of drugs and alcohol on August 3, 2010. Roberts’ car was uninsured and had expired registration tags. Alfaro’s wife, Rachelle DeVore, did not know Roberts had been stopped by a California Highway Patrol (“CHP) officer a few hours before the accident. She learned about the stop at Roberts’ preliminary hearing in March 2011, when CHP Officer Justin Sherwood testified that he stopped Roberts for speeding on August 3, 2010, at 8:20 p.m., but did not see any indication that Roberts was intoxicated. Officer Sherwood did not issue a citation and instead gave a verbal warning against speeding.
DeVore was denied access to the video recording of the traffic stop. She sought legal counsel in June 2011, but did not secure representation until the following month. DeVore’s attorney filed a notice of claim and application for leave to file a late claim asserting the CHP and Officer Sherwood were liable because they failed to carry out their mandatory duty to impound Roberts’ car after he failed to produce a valid driver’s license. The CHP denied the claim and application.
DeVore filed a petition with the trial court pursuant to Government Code section 946.6 in which she sought relief from the Government Claims Act requirement of presenting a timely claim to the CHP before bringing a tort action. The trial court denied the petition concluding that DeVore could have discovered the CHP’s potential liability with reasonable diligence, and her failure to hire an attorney for more than six months after her cause of action arose did not constitute excusable neglect.
Government Code section 946.6 provides relief from the Government Claims Act requirement that a party must present a timely claim to a public entity before he or she commences an action against the public entity. The party must show that he or she filed an application with the public entity to file a late claim due to mistake, inadvertence, surprise, or excusable neglect.
In a previous case, the court of appeal held that neglect was not excusable where the party did not take any action within six months of the accrual of an action involving an accident that arose from an obvious condition of public property. The court in the previous case concluded that, at the very least, such a party must attempt to hire an attorney to investigate whether he or she has a cause of action. However, the court of appeal noted it “did not hold expressly that this principle applies in the context of a claimant who does not reasonably have any basis to consult an attorney about the potential liability of a public entity.” In fact, a court of appeal in another case expressly rejected the proposition “that there is a strict mandate for an injured party to engage the services of an attorney within the six-month period to establish excusable neglect.”
Here, nothing in the CHP records or the accident reports would have led DeVore, or an attorney acting with reasonable diligence, to discover that Roberts had been the subject of a traffic stop a few hours before the accident. Without information about the traffic stop, DeVore “reasonably did not have any motivation to retain counsel” to file a claim against Roberts, who was uninsured and facing a lengthy jail term. The court concluded DeVore’s failure to retain counsel prior to learning about Officer Sherwood’s traffic stop, which established the CHP’s potential connection to the accident in which Alfaro was killed, “was the omission of a reasonably prudent person under the circumstances.” DeVore retained counsel within three months of learning about the traffic stop and the attorney immediately filed a notice of claim and application to file a late claim. DeVore did not wait an unreasonably long period of time after learning about the traffic stop to file her claim and application.
The court found DeVore’s failure to discover a basis for the CHP’s liability before March 2011 was excusable, the delay before she applied for leave to file a late claim with the CHP was reasonable, and that the CHP “failed to demonstrate any particular prejudice from the delay in filing the claim”. The court of appeal held that the trial court abused its discretion in denying DeVore’s petition.
Questions
If you have any questions concerning the content of this Legal Alert, or other questions about the Government Claims Act, please contact the following from our office, or the attorney with whom you normally consult.
Mona G. Ebrahimi or Maggie W. Stern | 916.321.4500