I respectfully dissent.
On August 6, 1981, petitioner was employed by North Coast Paving and Rock, which was a subcontractor on a road repair project for Del Norte County. On that day he was severely burned when a portable water pump, owned and supplied by North Coast, exploded. North Coast informed petitioner that he had a workers’ compensation claim. A sign posted at the job site directed employees to submit all on-the-job injuries to North Coast’s compensation carrier.
During the four months following the accident, petitioner was hospitalized three times and also underwent extensive outpatient treatment for his injuries. Within a month of the accident, during his initial month-long hospitalization at the Bum Center of the St. Francis Memorial Hospital, petitioner directed his wife to file an application for workers’ compensation benefits arising out of the accident.
In mid-December 1981, petitioner was fired from his job with North Coast. He thereupon consulted attorneys. After an investigation, the attorneys on February 12, 1982, 190 days after the date of petitioner’s injury, filed an application on petitioner’s behalf for leave to file a late claim. (Gov. *11Code, § 911.4.)1 The application was denied, as was petitioner’s subsequent section 946.6 petition to the superior court for an order relieving him from the claim-filing requirement of section 911.2.
As grounds for relief below, petitioner asserted that he was unaware that he had a cause of action against respondents and that he believed that his sole remedy was workers’ compensation. The trial court ruled that he had not shown the mistake, inadvertence, surprise or excusable neglect required by statute (§ 946.6, subd. (c)(1)).
In Ebersol v. Cowan (1983) 35 Cal.3d 427 [197 Cal.Rptr. 601, 673 P.2d 271], our Supreme Court reiterated the principles applicable to review of the lower court’s order. “The determination of the trial court in granting or denying a petition for relief under section 946.6 will not be disturbed on appeal except for an abuse of discretion. [Citation.] Abuse of discretion is shown where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief. [Citation.] [¶] Section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary claimant. [Citation.] The remedial policies underlying the statute are ‘that wherever possible cases be heard on their merits, and any doubts which may exist should be resolved in favor of the application. ’ [Citation.] Thus, ‘[a]n appellate court will be more rigorous in examining the denial of such relief than its allowance.’ [Citation.]” (35 Cal.3d at p. 435.) Moreover, where the petitioner was legally unrepresented during the 100 days’ presentation period (see § 911.2), the unavailability of an alternate remedy (i.e., an action for legal malpractice) requires that the reviewing court “examine with even greater scrutiny” the denial of relief from the claim-presentation requirement. (35 Cal.3d at p. 438, fn. 14.)
In denying appellant relief, the trial court relied on El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57 [159 Cal.Rptr. 267], and Tsingaris v. State of California (1979) 91 Cal.App.3d 312 [154 Cal.Rptr. 135], also cited by the majority. Neither case is dispositive.
In El Dorado Irrigation Dist. the petitioner, a construction worker, was injured on the job. Not until he engaged an attorney for the purpose of filing a workers’ compensation claim did he learn that he had a cause of action against the irrigation district. Reversing the trial court’s order granting relief, the reviewing court did not address the reasonableness of the petitioner’s ignorance of his third-party claim. The court held only that there was no evidentiary basis for the trial court’s determination that the petitioner’s ignorance of the “claim-filing requirements” was reasonable (98 Cal.App.3d at p. 62), and that, furthermore, “a mere lack of knowledge of the claim-filing requirements and its time limitation is insufficient” (ibid.).
*12In Tsingaris v. State of California, supra, petitioner was injured and her daughter killed by a knife-wielding intruder. Only at the murder trial did the petitioner learn that the intruder was a probationer who was known by the state to be in violation of probation. On appeal from the trial court’s denial of relief, the reviewing court affirmed. Citing Black v. County of Los Angeles (1970) 12 Cal.App.3d 670 [91 Cal.Rptr. 104], the court held that “[f]ailure to discover the alleged basis of the cause of action in time is . . . not a compelling showing in the absence of reasonable diligence exercised for the purpose of discovering the facts.” (91 Cal.App.3d at p. 314.) Black, however, as the Tsangaris dissent observed (id., at p. 316), relates to the negligence of an attorney in failing to discover the operative facts of his client’s automobile accident. (12 Cal.App.3d at p. 676.) The case has no bearing on a layman’s failure to realize that the circumstances of his injury give him a cause of action against a third-party public entity. Moreover, as the Supreme Court has emphasized, cases involving the neglect of attorneys must be distinguished from cases involving unrepresented clients. (Ebersol v. Cowan, supra, 35 Cal.3d at p. 438, fn. 14; Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479 [58 Cal.Rptr. 249, 426 P.2d 753].)
“[T]he showing required for relief under section 946.6 because of mistake, inadvertence, surprise or excusable neglect is the same as required under Code of Civil Procedure section 473 for relieving a party from a default judgment [citations]. . . . Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances. [Citation.]” (Ebersol v. Cowan, supra, 35 Cal.3d at p. 435.) A “mistake of law” is a mistake occurring “ ‘when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts.’” (Moore v. State of California (1984) 157 Cal.App.3d 715, 722 [203 Cal.Rptr. 847].) Not every mistake of law is excusable, but “an honest mistake is excusable, the determining factor being the reasonableness of the misconception [citations].” (Viles v. State of California (1967) 66 Cal.2d 24, 29 [56 Cal.Rptr. 666, 423 P.2d 818].) Thus, a mistake of law “may be excusable when made by a layman but not when made by an attorney.” (Tammen v. County of San Diego, supra, 66 Cal.2d at p. 479.)
In the present case, based on information provided by his employer, petitioner reasonably believed that his sole remedy was a claim for workers’ compensation benefits. He acted diligently to pursue that remedy. In so doing he had no occasion nor any reason to seek legal advice, from which he might have learned of the third-party claim against respondents. As the Supreme Court has stated in a related context: “The workmen’s compensation system, after all, was intended to afford a simple and nontechnical path to relief. [Citations.] The system affords means by which an employee may learn about his rights informally and without an attorney. [Citation.]” (Elkins v. Derby (1974) 12 Cal.3d 410, 419 [115 Cal.Rptr. 641, 525 P.2d *1381, 71 A.L.R.3d 839] [statute of limitations on tort remedy tolled during pendency of compensation claim].) Petitioner’s misconception about the exclusiveness of his workers’ compensation remedy, and his consequent failure to timely discover a possible claim against respondents, was in the circumstances reasonable and consistent with the actions of a prudent person. (See Ebersol v. Cowan, supra, 12 Cal.3d at p. 439; Viles v. State of California, supra, 66 Cal.2d at pp. 29-30; cf. Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 536 [148 Cal.Rptr. 729] [investigator’s insufficient investigation].) Petitioner thus established by his uncontradicted evidence that his failure to comply with the claim-filing requirements was the result of mistake and excusable neglect. (§ 946.6, subd. (c)(1).)
Because petitioner’s application to file a late claim (§ 911.4) was made less than two months after he learned of his cause of action and little more than six months after its accrual, he satisfied the additional requirement for relief that the application be filed within a reasonable time not to exceed one year. (§ 946.6, subd. (c); see Ebersol v. Cowan, supra, 35 Cal.3d at p. 440; Viles v. State of California, supra, 66 Cal.2d at p. 32.)
I believe, therefore, that denial of petitioner’s application for relief was in the circumstances an abuse of discretion, particularly since respondents failed to assert or show any prejudice from the delay.2 (See Kaslavage v. West Kern County Water Dist., supra, 84 Cal.App.3d at p. 538; Syzemore v. County of Sacramento (1976) 55 Cal.App.3d 517, 524 [127 Cal.Rptr. 714]; Segal v. Southern California Rapid Transit Dist. (1970) 12 Cal.App.3d 509, 512 [90 Cal.Rptr. 720]; see generally Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 5.51, at p. 517.)
For the above reasons, I would reverse the judgment with directions to enter an order granting the petition. (Moore v. State of California, supra, 157 Cal.App.3d at pp. 726-728.)
A petition for a rehearing was denied May 30, 1985, and the opinion was modified to read as printed above. Poché, Acting P. J., was of the opinion that the petition should be granted. Appellant’s petition for review by the Supreme Court was denied August 19, 1985. Bird, C. J., Mosk, J., and Reynoso, J., were of the opinion that the petition should be granted.
All further statutory references are to the Government Code unless otherwise indicated.
Although the public entity is not required to show prejudice until after the petitioner has established grounds for relief (Tammen v. County of San Diego, supra, 66 Cal.2d at p. 478; Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 726 [173 Cal.Rptr. 4]), this does not mean that it need not in the first instance assert prejudice in opposition to the application for relief. (See § 946.6, subd. (e); Moore v. State of California, supra, 157 Cal.App.3d at p. 727.)