Filed 11/13/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
RACHELLE DEVORE et al., C071610
Plaintiffs and Appellants, (Super. Ct. No. CVPT12398)
v.
CALIFORNIA HIGHWAY PATROL et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Yolo County, Daniel P.
Maguire, Judge. Reversed.
Jeffrey | 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 946.61 for relief from the Government Claims Act (§ 810 et
1 Undesignated statutory references are to the Government Code.
1 (SEE CONCURRING AND
DISSENTING OPINION)
seq.) requirement of presenting a timely claim to a public entity before bringing a tort
action against it (§§ 911.2, 945.4), because defendant 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). 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 (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 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.
FACTUAL AND PROCEDURAL BACKGROUND
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
2 The parties represent that plaintiffs had concomitantly filed a tort action against the
CHP and defendant Justin Sherwood (a CHP officer). Defendants apparently filed a
demurrer in that action based on the preclusive effect of the ruling in the present matter,
which the trial court denied on the ground that the present matter was on appeal.
3 We will generally refer to plaintiffs in the plural, although it does not appear plaintiff
Hix took any active part in the events.
2
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 the 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 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
3
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
4
time to provide a copy of the recording from defendant Sherwood’s patrol car because it
also contained “nonpublic” information that could not be redacted. The CHP did not
have any other information relating to the traffic stop.
In denying the petition, the trial court stated, “Petitioners have not shown
reasonable diligence in pursuing the claim, since Petitioners did not contact civil counsel
until after the expiration of the six-month period. . . . The facts of this tragic incident
suggest civil liability, and[,] if timely retained[,] counsel would have [had] a duty to
‘diligently pursue the pertinent facts of the cause of action to identify possible
defendants.’ ([Citing Dept. of Transportation, supra, 105 Cal.App.4th at p. 45].) The
cause of action accrued at or near the time of the incident, because even if the delayed
discovery rule applies, the Petitioners had reason to discover the earlier traffic stop as
part of the investigation into civil liability.”
DISCUSSION
I. Standards of Review
Section 946.6 provides a procedure for relieving a party from the condition
precedent of presenting a timely claim to a public entity before commencing an action
against the public entity on the cause of action contained in the claim. (Ebersol v. Cowan
(1983) 35 Cal.3d 427, 430-431 (Ebersol).) In order to obtain relief, the party must
establish that an application to the public entity for leave to file a late claim (§ 911.4) was
filed in a reasonable period of time (not to exceed one year) after the accrual of the cause
of action for reasons of inadvertence, mistake, surprise, or excusable neglect akin to the
showing necessary for relief from default. (Dept. of Transportation, supra,
105 Cal.App.4th at p. 43.) As it is a remedial statute, a trial or appellate court must
resolve any doubts in favor of the petition (Ebersol, supra, at p. 435), but the preference
for a trial on the merits does not warrant relief if based on a perfunctory recital of
diligence in support of excusable neglect (Dept. of Transportation, supra,
5
105 Cal.App.4th at p. 44; Department of Water & Power v. Superior Court (2000)
82 Cal.App.4th 1288, 1293 (Water & Power); cf. Trailmobile, Inc. v. Superior Court
(1989) 210 Cal.App.3d 1451, 1455-1456 [same principle applied in context of dilatory
prosecution]).
Upon finding an adequate showing that warrants relief, the trial court must then
decide if granting the petition would be prejudicial to the public entity. (Ebersol, supra,
35 Cal.3d at p. 432.) In the absence of any evidence of particular prejudice to the public
entity, a trial court abuses its discretion in denying a petition (Kaslavage v. West Kern
County Water Dist. (1978) 84 Cal.App.3d 529, 538; Syzemore v. County of Sacramento
(1976) 55 Cal.App.3d 517, 524; 1 Coates et al., Cal. Government Tort Liability Practice
(Cont.Ed.Bar 4th ed. Feb. 2011), § 7.33, p. 346 (Coates)), and if a denial is reversed for
abuse of discretion the public entity is not entitled to marshal further evidence of
prejudice on remand (Moore v. State of California (1984) 157 Cal.App.3d 715, 727).
An order denying a section 946.6 petition is an appealable order (Ebersol, supra,
35 Cal.3d at p. 435, fn. 8); an order granting the petition is reviewable only on appeal
from the cause of action stated in the claim (see County of Alameda v. Superior Court
(1987) 196 Cal.App.3d 619, 622). We review the ruling on the petition for an abuse of
discretion. (Dept. of Transportation, supra, 105 Cal.App.4th at p. 44.)
II. Jurisdiction to Adjudicate Accrual
In a proceeding on a section 946.6 petition, the trial court’s authority to rule on
the issue of the accrual of a cause of action is a recurring procedural dilemma. (1 Coates,
Cal. Government Tort Liability Practice, supra, § 7.10, p. 323.) One strand of authority
asserts that in the proceeding for relief, the issue of whether a claim was timely filed is
not properly before the trial court; the court may consider only whether a plaintiff
qualifies under one of the four categories (e.g., inadvertence, mistake, surprise, or
excusable neglect). The second strand finds that a trial court can properly consider
6
accrual in a proceeding on a petition for relief if necessary to its ruling, but this ruling
does not preclude a second court from coming to a different conclusion in a legal action
for damages that alleges a timely presentation of the claim. The third strand concludes
that the trial court can properly consider timeliness, and its ruling on this issue in a
petition proceeding has preclusive effect in the independent action for damages. (See
Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 65, fn. 8 [summarizing
cases].)
Relying on the first strand, plaintiffs assert we should strike any finding in the
order regarding the date on which their cause of action accrued. We agree with Coates
that the first strand is anomalous because the date of accrual can be a necessary
subsidiary finding in deciding whether a party qualifies for relief, even if section 946.6
does not authorize the court to grant relief on the basis that a claim was in fact timely.
(1 Coates, Cal. Government Tort Liability Practice, supra, § 7.10, p. 324; accord, Santee
v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 711-712 [first
strand states rule too broadly; trial court has authority and discretion either to rule or
defer ruling on issue].) As we will be directing the trial court to grant relief—a
nonappealable order without preclusive effects (1 Coates, supra, § 7.11, p. 325)—and do
not ourselves need to decide the date of accrual of plaintiffs’ cause of action, we do not
need to choose between the second and third strands regarding the future preclusive
effects of a ruling on accrual in an order denying relief.
III. Excusable Neglect
In Dept. of Transportation, we indeed noted the principle that neglect is not
excusable where a party does not take any action within six months after the accrual of a
cause of action; at the very least, the party must attempt to engage the services of an
attorney to investigate the facts to identify potential defendants in any cause of action
arising out of a damaging incident. (Dept. of Transportation, supra, 105 Cal.App.4th at
7
pp. 44-45.)4 However, the facts that underlay the opinion involved a patent condition of
public property: Whether roadside weeds and shrubbery were an attractant to arsonists,
and represented a dangerous condition whether or not the fire leading to the injury started
naturally or through criminal agency. (Dept. of Transportation, at p. 45.) “When there is
a readily available source of information from which the potential liability of a [public]
entity may be discovered, a failure to use that source is deemed inexcusable.” (Water &
Power, supra, 82 Cal.App.4th at p. 1294, italics added.)5 Thus, Dept. of Transportation
turns on a claimant’s failure to consult an attorney about an accident arising from an
obvious condition of public property, who in turn could have readily determined the
potential liability of the public entity, in holding that this could not be excusable neglect.
However, we 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, and cases are not authority for propositions not expressly considered.
(In re Randy J. (1994) 22 Cal.App.4th 1497, 1504, fn. 7.) Rather, the interpretive
principle of ratio decidendi requires that we view the scope of a holding through the lens
of the underlying facts. (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421,
427.)
Nor can such a principle be derived from Ebersol, which is among the cases cited
in Dept. of Transportation for the general rule that a party must engage the services of an
attorney in order to demonstrate excusable neglect. Ebersol involved a bus driver for a
4 Among the cases we cited was Ebersol, which also stated this principle (Ebersol,
supra, 35 Cal.3d at p. 435). Ebersol, however, found that a party who diligently but
unsuccessfully sought representation within the period for filing a claim can still assert
excusable neglect. (Id. at pp. 437, 439.)
5 Although one might think that discovering a new fact would be more in the nature of
“surprise,” cases and commentary categorize it under excusable neglect. (See 1 Coates,
Cal. Government Tort Liability Practice, supra, § 7.22, p. 334.)
8
private company who transported developmentally delayed teenagers from their homes to
a work-training facility; she was unaware this program was under the aegis of a public
entity. She suffered severe injuries when one of the teenagers bit her. (Ebersol, supra,
35 Cal.3d at p. 432.) From the day of the incident she began to contact attorneys, nine of
whom told her that she did not have any basis for redress against whatever third party
managed the program. Four months later, after the time for filing a claim expired (a 100-
day claim period then being in effect), she consulted with an attorney who proffered a
theory of third party liability for failure to warn of dangerous propensities, and who then
readily discovered the public entity status of the program. (Id. at pp. 432-433, 439.)
Ebersol held that a party who diligently but unsuccessfully seeks representation within the
period for filing a claim can still assert excusable neglect, because at all times these
unsuccessful diligent efforts were those of a reasonably prudent person. (Id. at pp. 437,
439.) The case as a result did not consider the issue of whether excusable neglect is
barred for failure to engage an attorney in all circumstances, and consequently cannot be
authority for that proposition.
Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373 (Barragan)
expressly declines to find 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. (Id. at
pp. 1376-1377.) The asserted basis for the public entity’s liability was the nature of the
rock and dirt embankment on which the plaintiff incurred her injuries after her car left the
roadway. (Id. at pp. 1377, 1379.) The court concluded “there is no absolute rule barring
excusable neglect when the claimant has failed to obtain counsel during the six-month
period.” (Id. at p. 1385.) Rather, the question is whether “the failure to seek counsel
could itself be considered the act of a reasonably prudent person under the same or
similar circumstances,” in which case “excusable neglect is established.” (Ibid., italics
added.) In the course of coming to this conclusion, Barragan noted another case had
9
similarly interpreted Ebersol. (Barragan, at pp. 1383-1384, citing Bertorelli v. City of
Tulare (1986) 180 Cal.App.3d 432, 439 [“even the failure to obtain legal advice will be
excused when a different course of action is reasonably prudent”].) With debilitating
injuries and depression, the claimant’s failure to consult with an attorney was the act of a
reasonably prudent person. (Barragan, supra, at pp. 1385-1386.) Thus, even where an
attorney could readily have determined the potential liability of the public entity, the
failure to engage an attorney’s services can still be excusable neglect.
In the present case, by contrast, nothing in the accident report or the records of the
CHP would have led plaintiffs or an attorney acting with reasonable diligence to discover
the earlier traffic stop or the identity of defendant Sherwood (and the audio/video
recording from his patrol car). The trial court does not identify what trail plaintiffs or
counsel could have followed to lead to these facts within the limitations period, and the
record does not explain how the prosecutor made the connection; it may even be that
defendant CHP supplied the information to him.6 Without this information, plaintiffs
reasonably did not have any motivation to retain counsel, there being little point in hiring
counsel otherwise to pursue a claim against an uninsured motorist facing a lengthy jail
term. The mere fact that the accident took place on a public roadway as a consequence of
a drunken driver’s loss of control was not a basis for plaintiffs to assume there was
potential liability for a public entity, which can arise only where a condition of the
roadway presents a danger to those using it with due care. (Biscotti v. Yuba City Unified
School Dist. (2007) 158 Cal.App.4th 554, 558-561; see Murrell v. State of California ex
rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 271-272, fn. 7.) Thus, the failure to
6 It is speculation for defendants to suggest that had plaintiffs retained an attorney
earlier, the attorney would have discovered the facts in the prosecutor’s possession earlier
than plaintiffs. Moreover, the record does not indicate the prosecutor was even aware of
defendant Sherwood for any appreciable time before contacting him in early February
2011.
10
engage an attorney before learning about the earlier traffic stop (and through that the
public entity’s potential connection with the accident) was the omission of a reasonably
prudent person under similar circumstances. (Ebersol, supra, 35 Cal.3d at p. 435;
Barragan, supra, 184 Cal.App.4th at p. 1385; Water & Power, supra, 82 Cal.App.4th at
p. 1296.)
In a little more than three months after learning the fact, plaintiffs retained
counsel (despite the prosecutor’s discouragement about the merits of pursuing an action
against the CHP), who immediately filed the claim/leave to file late claim. This was
not an unreasonably long period of time to file after obtaining the information about
the potential liability of defendants. Defendants cite eight other cases (which appear
in 1 Coates, Cal. Government Tort Liability Practice, supra, § 7.52, pp. 364-365) in
which courts found that delays of various lengths (including some shorter than here)
under various circumstances were unreasonable. However, we must review the present
trial court’s ruling in light of the specific facts in the record before the court, and it is
generally unproductive to compare different cases on a question of fact such as this.
(People v. Rundle (2008) 43 Cal.4th 76, 137-138 [sufficiency of evidence]; Robison v.
City of Manteca (2000) 78 Cal.App.4th 452, 458, fn. 5 [issue of undue influence]; State
Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188, 202 [status as independent
contractor].) Suffice it to say that these cases generally involve complete inaction for a
period longer than plaintiffs waited here to seek counsel, and mostly involve inaction on
counsel’s part before filing an application for leave to file a late claim. None of these
cases find unreasonable delay as a matter of law.
Defendants reiterate their wan claim of prejudice advanced in the trial court. They
contend they will be forced to defend the case with defendant Sherwood’s stale memory.
However, his memory had already declined by the time his involvement in the traffic stop
came to light in March 2011, and he was forced to reconstruct it from the patrol car video
11
and audio. As a result, there is no prejudicial change in the circumstances to defendants
if plaintiffs are now given leave to pursue their claim.7
In short, plaintiffs’ failure to discover a basis for public entity liability before
March 2011was excusable. The delay before they applied for leave to file a late claim
was reasonable. Defendants have failed to demonstrate any particular prejudice from the
delay in filing the claim. The trial court therefore abused its discretion in denying the
petition.
DISPOSITION
The order denying the petition is reversed with directions to grant the petition.
Plaintiffs shall recover their costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ , J.
I concur:
BLEASE , Acting P. J.
7 Moreover, it would not appear that the litigation of plaintiffs’ claim will survive a
demurrer (and thus require delving into defendant Sherwood’s memory). In California
Highway Patrol v. Superior Court (2008) 162 Cal.App.4th 1144, 1155, we held that
Vehicle Code section 14602.6, which provides that a peace officer “may” impound the
vehicle of a person driving with a suspended or revoked license, did not impose a
mandatory duty that could be the basis for a tort action against a public entity (Gov.
Code, § 815.6) for the failure of a CHP officer to impound the car of a drunken driver
who retrieved it after his release from custody and killed another driver later that day.
Plaintiffs will be hard pressed to distinguish the statute on which they are relying here
(Veh. Code, § 14607.6), given that the use of “shall” is not necessarily the sine qua non
of a mandatory duty under Government Code section 815.6. (San Mateo Union High
School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 429 [ultimate question
is whether “commanded” act does or does not lend itself to a “ ‘normative or qualitative
debate’ ” over manner in which undertaken].) However, we do not have any occasion to
resolve that issue in the present action.
12
Mauro, J, concurring and dissenting:
As the majority correctly explains, the trial court had authority to determine the
accrual date of plaintiffs’ cause of action. (Maj. opn. at p. 7.) Unlike the majority,
however, I would not bypass review of the trial court’s accrual determination. (Maj. opn.
at p. 7.)
The trial court erred in finding that plaintiffs’ cause of action accrued at or near
the time of the accident, because unrefuted evidence establishes that plaintiffs did not
discover, and did not have reason to discover, the facts giving rise to their claim until
March 25, 2011. Thus, plaintiffs’ cause of action did not accrue until then. Additional
unrefuted evidence establishes that plaintiffs presented a government claim less than six
months after their cause of action accrued. Accordingly, plaintiffs are entitled to relief
because they complied with the government claim filing requirements.
I disagree with part III of the majority opinion.
I
Generally, a cause of action accrues when the wrongful act is done, or the
wrongful result occurs, and the consequent liability arises. (Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 397.) But the delayed discovery rule is an exception to the
general rule. (Ibid.) It postpones accrual of a cause of action until the plaintiff discovers,
or has reason to discover, the cause of action. (Ibid.) A plaintiff discovers the cause of
action when she at least suspects a factual basis, as opposed to a legal theory, for its
elements. (Ibid.) A plaintiff has reason to discover the cause of action when she has
notice or information of circumstances that would put a reasonable person on inquiry.
(Id. at pp. 397-398.)
Here, the trial court found that plaintiffs’ cause of action against the California
Highway Patrol and Officer Sherwood accrued at or near the time of the accident. The
trial court said the facts of this tragic accident suggest civil liability, and if plaintiffs had
retained counsel in a timely manner, counsel would have had a duty to diligently pursue
1
the pertinent facts of the cause of action to identify possible defendants. The trial court
concluded that even if the discovery rule applied, plaintiffs “had reason to discover the
earlier traffic stop as part of the investigation into civil liability.”
On appeal, plaintiffs contend the trial court should not have selected any accrual
date, because accrual under the discovery rule is a question for the jury. I agree with the
majority that the trial court had authority to determine the accrual date in ruling on the
petition for relief, because the accrual date was a subsidiary finding in determining
whether plaintiffs were entitled to relief from the claim filing requirements. (Maj. opn. at
p. 7.)
Plaintiffs also assert, however, that the trial court selected the wrong accrual date.
The majority concludes we need not decide the accrual date (Maj. opn. at p. 7), but I
believe we should address plaintiffs’ contention.
“ ‘Resolution of the statute of limitations issue is normally a question of fact.’
[Citation.] More specifically, as to accrual, ‘once properly pleaded, belated discovery is
a question of fact.’ [Citation.] As our state's high court has observed: ‘There are no hard
and fast rules for determining what facts or circumstances will compel inquiry by the
injured party and render him chargeable with knowledge. [Citation.] It is a question for
the trier of fact.’ [Citation.] ‘However, whenever reasonable minds can draw only one
conclusion from the evidence, the question becomes one of law.’ [Citation.]” (E-Fab,
Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320.)
Thus, although the trial court's finding regarding accrual of the cause of action
must be upheld on appeal if supported by substantial evidence (Institoris v. City of Los
Angeles (1989) 210 Cal.App.3d 10, 17), where the underlying facts are not in dispute, the
question of accrual is one of law, subject to independent review. (Armstrong Petroleum
Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1388.)
The record on appeal shows that plaintiff Rachelle DeVore filed a declaration in
support of plaintiffs’ petition for relief from the government claim filing requirements.
2
She declared it was not until March 25, 2011, that she first learned an officer had
previously stopped Roberts on the evening of the accident.
Plaintiffs’ attorney, Scott Love, also filed a declaration in support of the petition.
Among other things, the declaration attached a copy of the accident report, which did not
contain any indication that Roberts had previously been stopped on the evening of the
accident.
The record on appeal does not include any additional declarations or evidence
filed by the California Highway Patrol and Officer Sherwood. Moreover, the record
indicates defendants did not cite to any evidence in the record refuting plaintiffs’
assertion of delayed discovery. Although defendants argued that had plaintiffs conducted
even a minimal search, they would have learned about Officer Sherwood just as the
prosecutor had learned about him, defendants did not cite evidence supporting that
assertion. In fact, they admitted that Officer Sherwood did not prepare a police report
regarding the prior stop.
On this record, the undisputed evidence indicates that plaintiffs did not discover,
and did not have reason to discover, facts giving rise to their cause of action against the
California Highway Patrol and Officer Sherwood until March 25, 2011. Accordingly,
plaintiffs’ cause of action did not accrue until that date.
II
A claim against a public entity relating to a cause of action for wrongful death
must be presented no later than six months after the accrual of the cause of action. (Gov.
Code, § 911.2.) Plaintiffs presented their government claim on August 3, 2011, less than
six months after the accrual of their cause of action. The California Highway Patrol and
Officer Sherwood did not file, or cite, contrary evidence. Unrefuted evidence establishes
that plaintiffs presented a timely claim.
3
Plaintiffs are entitled to relief because they complied with the government claim
filing requirements.
MAURO , J.
4