Opinion
H030667
5-25-2007
KURT SCANLIN, Plaintiff and Appellant, v. STATE OF CALIFORNIA, Defendant and Respondent.
NOT TO BE PUBLISHED
Appellant Kurt Scanlin appeals from the trial courts denial of his petition under Government Code section 946.6 to relieve him of the statutory requirement of presenting a timely, written claim under section 945.4 before proceeding in tort against the State of California. Scanlins claim against the state arose out of the execution of a search warrant at his residence and business by employees of the State Board of Equalization (BOE) and the California Highway Patrol (CHP). After denial of Scanlins written claim presented to Santa Clara County—the wrong governmental entity—the California Victim Compensation and Government Claims Board (the Board) rejected his application to file a late claim against the state, acting through the BOE and CHP, under section 911.6. The trial court then denied Scanlins petition under 946.6, concluding that he had not demonstrated that his failure to have timely filed a government claim against the state was the result of mistake, inadvertence, surprise, or excusable neglect. We conclude that Scanlin has not demonstrated that the court below abused its discretion and we accordingly affirm the trial courts order.
Further unspecified statutory references are to the Government Code.
STATEMENT OF THE CASE
We note that Scanlins brief contains not one citation to the appellate record in violation of rule 8.204(a)(1)(C) of the California Rules of Court.
I. Factual Background
On January 27, 2005, agents and officers of the BOE and the CHP executed a search warrant at Scanlins San Jose residence and his Los Gatos business, through which he operates an art gallery and print distributorship. They confiscated—in 33 boxes—Scanlins computers, software, and business records but Scanlin was not arrested. Scanlin was able to determine at the time that even though the search warrant was signed by a Santa Clara County Superior Court judge, the governmental agencies conducting the search operation were the BOE and CHP, both of which act for the state and not a local public entity.
II. Procedural Background
On July 26, 2005, Scanlin signed a tort claim against the County of Santa Clara. Assuming Scanlins causes of action arising from the execution of the warrant accrued on the day the warrant was executed, this was at the outer bounds of the six-month period he had to present a governmental tort claim relating to a cause of action for death or for injury to person or personal property under sections 911.2 and 915. The claim alleged that Scanlins premises were searched and his property seized without cause, leading to "significant interruption in business activities as a result of property loss[,] humiliation, embarrassment, emotional distress." The claim further identified the public employees involved, listing by name various BOE agents and CHP officers who had executed the search warrant. Around the same time, Scanlin also apparently filed some form of motion in the Santa Clara County Superior Court for return of his property that had been seized under the warrant.
The county later indicated in rejecting the claim that it had been filed on July 28, 2005, but under the circumstances of this case, we need not address the issue of the date the claim against the county was actually presented.
This motion does not appear in the record but is referred to in papers that do.
On August 8, 2005, the county rejected Scanlins tort claim in writing, noting that its investigation had revealed "that the County of Santa Clara has no ownership, interest, duty or obligation in this matter" as alleged in the claim. The county also requested that Scanlin not name it in any lawsuit pertaining to the claim since "this matter does not fall within jurisdiction of the County of Santa Clara."
On August 25, 2005, Scanlin signed a "Government Claims Form," which he submitted to the Board, the appropriate body for submission of tort claims against the state and its bureaus, agencies, and officers under sections 900.2, 900.6, and 905.2. The form alleged in detail the events giving rise to Scanlins claim and asserted money damages of $1,100,000 for "violation of rights, unlawful search and seizure of property, general interruption of regular business activities and emotional distress." The claim also identified Santa Clara County Superior Court Judge Paul Tielh, who had signed the search warrant, the BOE, the CHP, and specific employees and officers of those state agencies as the agencies or employees against whom the claim was filed. The claim repeatedly described that while the warrant was being executed, Scanlin was able to identify that it was employees of the BOE and CHP who were involved.
The claim also acknowledged that it was being filed late (after the six-month claim filing period). And its transmittal letter stated that Scanlin was presenting an application for late filing under section 911.6, subdivision (b)(1), because his failure to timely 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 [it] within the time specified in Section 911.2." Scanlin further stated in the transmittal letter that on July 26, 2005, he had "mistakenly filed a tort claim with the County of Santa Clara," and that that claim had been rejected "since the matter does not fall within jurisdiction of" that governmental entity.
On November 2, 2005, the Board wrote to Scanlin and informed him that its staff had recommended denial of his application for leave to present a late claim "for failure to meet the criteria of . . . [s]ection 911.6," that it was Board policy to follow the staff recommendation, and that the Board would act on his application on December 15, 2005. On January 10, 2006, the Board again wrote to Scanlin to inform him that his application to file a late claim against the state had indeed been denied at the Boards December 15, 2005 hearing and that he had six months from that date to petition the appropriate court for an order under section 946.6 relieving him from the claim presentation requirement before proceeding in tort against the state.
Under section 911.6, subdivision (a), absent a written agreement between the claimant and the Board to extend time, the Board shall grant or deny the application for late filing of a claim within 45 days after its presentation. Under subdivision (c) of this section, if the Board fails to act on an application within 45 days, it shall be deemed to have been denied on the 45th day and the six-month period within which to file a petition for relief under section 946.6, subdivision (b), then begins. In this case, no written agreement extending the time for the Board to act on Scanlins application for late claim appears in the record. Assuming there was no such agreement, this would mean that Scanlins application to the Board to file a late claim, which was at least signed if not presented on August 25, 2005, would be deemed to have been denied (notwithstanding the Boards later action on the claim) on or about October 9, 2005. This would further mean that his section 946.6 petition would have to have been filed within six months thereafter, or by May 9, 2006. It was not filed until June 2006 and thus its timeliness is questionable, at least on this record. Because we reach the merits of the petition in affirming the trial courts order, we do not decide whether Scanlins petition might also have been denied on this other ground.
Just shy of six months later, Scanlin filed his verified section 946.6 petition in the trial court on June 8, 2006, and set the matter for hearing. He generally asserted in the petition that he had met the legal criteria for the filing of a late claim against the state under section 911.6 but he alleged no specific facts to support this. He further alleged that he had failed to timely present his claim against the state through "mistake" in that he had initially filed a claim against the county because he "mistakenly believed that he should have filed the claim with the county in which he resides—not realizing that he should have filed directly with the [Board] in Sacramento, California." The petition included as an exhibit Scanlins application to the Board to file a late claim, which, as noted, included his own admissions that on the day of the incident, he had identified the state agencies (the BOE and CHP) involved in the execution of the search warrant.
In the interim, on January 6, 2006, Scanlin filed a separate action for damages arising from the incident. He named as defendants Judge Paul Tielh, the State of California, the County of Santa Clara, the BOE, the CHP, and the various individual representatives of these two state agencies who had been involved in execution of the search warrant. The causes of action included claims titled as "unlawful search and seizure," abuse of process, "deprivation of due process," interference with contractual relations, libel and slander, infliction of emotional distress, intentional and negligent infliction of emotional distress, "value of plaintiffs time," and imposition of a constructive trust. The trial court sustained without leave to amend certain of the defendants demurrer to the complaint. As to the rest of the named defendants, the court granted a motion to quash service of summons. These orders effectively terminated the action.
Scanlin referred to "Exhibit D" to the petition in support of this allegation. But Exhibit D, which is composed of two letters to Scanlin from the Board, does not contain any facts which would show that Scanlin met or attempted to meet the statutory requirements for a late-claim filing under section 911.6.
The state opposed the petition, asserting that Scanlin had not demonstrated that he had failed to timely present his claim against it due to mistake, inadvertence, surprise, or excusable neglect as provided in section 946.6, subdivision (c), so as to warrant relief from the claim presentation requirement.
In reply, Scanlin argued that "filing a claim with the incorrect entity could be considered `excusable neglect which might have been the act of a reasonably prudent person under the same circumstances." He acknowledged that he "had largely identified the correct parties involved" but was instead "focusing the important legal weight on the timeliness of the initial tort claim filing based on a minimum of documents left behind identifying the venue from which the action arose" and that this focus was "both diligent and reasonable." Scanlin further declared that it was reasonable to have erroneously filed his initial claim with the County of Santa Clara since Judge Tielh had executed the search warrant under the Santa Clara County seal. But Scanlin also suggested that there had been a strategic reason related to his motion for return of property filed in the superior court for presenting his tort claim against Santa Clara County at the very end of the six-month filing period, thus rendering his subsequent claim to the Board untimely.
The trial court denied Scanlins petition by written order, concluding that he had "failed to establish mistake, inadvertence, surprise or excusable neglect sufficient to warrant relief."
The record on appeal does not include a reporters transcript of the hearing on the petition.
An order denying relief under section 946.6 is appealable because it "effectively determines a petitioners right to relief from the claim presentation requirements. [Citations.]" (Spencer v. Merced County Office of Education (1997) 59 Cal.App.4th 1429, 1432, fn. 2.)
DISCUSSION
I. Legal Framework
The Tort Claims Act requires that any civil complaint for money damages be first timely presented to and rejected by the pertinent public entity. (§§ 910, 912.4, 912.8, 945.4.) Under section 945.4, the presentation of a timely claim is a condition precedent to the initiation of suit. If such a claim is not timely presented, written application for relief may be presented to the public entity, in this case the state through the Board, seeking leave to present the late claim. (§ 911.4.) The Board shall grant the application for relief where "[t]he failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced . . . ." (§ 911.6, subd. (b)(1).) As noted, if the Board fails or refuses to act on the application within 45 days, it is deemed denied by operation of law. (§ 911.6, subd. (c).)
If the application for leave is timely rejected or deemed denied, the claimant may petition the superior court for an order relieving him or her from the claim requirements within six months from the rejection or denial. (§ 946.6, subds. (a) & (b).) The court shall grant relief if it finds that the application for leave presented to the public entity was timely filed and denied, and the preponderance of the evidence establishes that the failure to have timely presented the claim "was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced . . . ." (§ 946.6, subd. (c)(1); People ex.rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 43 (Department of Transportation); Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293, 1296 (Department of Water.) The showing required is in essence the same as that required under Code of Civil Procedure section 473. (Department of Transportation, supra, at p. 43; Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 683 (Hernandez); Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 (Ebersol); Viles v. State of California (1967) 66 Cal.2d 24, 29.)
In evaluating a petition under section 946.6, the trial court makes an independent determination based on the petition, declarations, and any additional evidence received at the hearing. (§ 946.6, subd. (e).) The decision whether to grant or deny relief resides generally within the courts sound discretion, provided the decision is in accord with the spirit of the law. (Department of Water, supra, 82 Cal.App.4th at p. 1293.) In exercising its discretion, the trial court must balance the policy of favoring trial on the merits with the countervailing policy of enforcing statutes of limitations for presenting government tort claims. (Department of Transportation, supra, 105 Cal.App.4th at p. 44.) This latter policy exists to give public entities notice of a claim while the evidence is still fresh and witnesses are available; to afford the opportunity for amicable adjustment, thereby avoiding the expenditure of public funds in needless litigation; and to assure accurate and feasible risk management of those funds. (Renteria v. Juvenile Justice, Department of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 909 (Renteria).) Notwithstanding this policy, doubts about whether to grant the petition should be resolved in favor of affording relief. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276 (Bettencourt).)
Concerning the grounds for relief provided at section 946.6, subdivision (c)(1), the petitioners "mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant a [granting of the petition]. Relief on grounds of mistake, inadvertence, surprise or excusable neglect is available only on a showing that the claimants failure to timely present a claim was reasonable when tested by the objective `reasonably prudent person standard. The definition of excusable neglect is defined as `neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances. [Citation.]" (Department of Water, supra, 82 Cal.App.4th at p. 1293.) Excusable neglect typically involves the failure to discover pertinent facts while exercising reasonable diligence. (Department of Transportation, supra, 105 Cal.App.4th at pp. 44-45, citing Ebersol, supra, 35 Cal.3d at p. 439.) Other kinds of mistakes that are generally considered excusable are those involving factual knowledge of the jurisdiction over the exact location of the subject incident or calendaring errors made by attorneys or their staff. (See, e.g., Lawrence v. State of California (1985) 171 Cal.App.3d 242, 244-246 [mistake as to jurisdiction]; Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529 and cases cited therein.) Whatever the mistake, the party seeking relief must establish that he or she was diligent in investigating and pursuing the claim. (Department of Water, supra, 82 Cal.App.4th at p. 1293.)
A mistake of law occurs when one knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. (Hernandez v. Garcetti, supra, 68 Cal.App.4th at p. 683.) Whether such a mistake is excusable depends on the reasonableness of the misconception and whether the lack of determination of the actual law is justifiable. (Ibid.) An honest mistake of law is a valid ground for relief where an issue is complex and debatable and the determining factor is the reasonableness of the misconception. (Id. at pp. 683-684.) In evaluating whether the failure to timely file the tort claim is excusable, a reviewing court generally "looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim. [Citation.]" (Department of Water, supra, 82 Cal.App.4th at p. 1294.)
Once a petitioner has shown that an application for leave to file a late claim was made within a reasonable time and that the failure to have timely presented the claim was through mistake, inadvertence, surprise, or excusable neglect, only then does the burden shift to the public entity to establish that it would suffer prejudice if the claimant were to be relieved of the timely claim requirement. (Renteria, supra, 135 Cal.App.4th at p. 910.)
An appellate court reviews an order denying relief under section 946.6 for abuse of discretion. (Hernandez v. Garcetti, supra, 68 Cal.App.4th at p. 682.) Such discretion, however, is not unfettered. Rather, it must be exercised " `in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. " (Bettencourt, supra, 42 Cal.3d at p. 275.) An " `[a]buse of discretion is shown where uncontradicted evidence of affidavits of the plaintiff establish adequate cause for relief. " (Spencer v. Merced County Office of Education, supra, 59 Cal.App.4th at p. 1436; see also Ebersol, supra, 35 Cal.3d at p. 435.) And because of the remedial nature of section 946.6, an appellate court will be more rigorous in reviewing a trial courts order denying, as opposed to granting, relief. (Bettencourt, supra, 42 Cal.3d at p. 276.)
II. Analysis
On appeal, Scanlin in essence contends that the trial court abused its discretion in denying his petition for relief from the claim presentation requirements because he made a mistake in initially presenting his claim to the County of Santa Clara at the end of the six-month claim filing period instead of to the Board, thus rendering his subsequent claim against the state untimely. Yet the record offers no justification or reason for Scanlins mistake other than that he erroneously assumed the claim should be filed with the county in which he resided. This, even though he acknowledged that at the time his causes of action accrued, he had properly identified the targets of his claim as the BOE, the CHP, and employees of these two state agencies. The law provides that when "there is a readily available source of information from which the potential liability of a government entity may be discovered, a failure to use that source is deemed inexcusable. [Citation.]" (Department of Water, supra, 82 Cal.App.4th at p. 1294; see also Greene v. State of California (1990) 222 Cal.App.3d 117, 120 [available police report identified pertinent public entity]; Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 157 [correspondence from defendant facility made on county letterhead, thus identifying public entity involved].) It follows that where, as here, a party has correctly identified the targeted public entity, the failure to properly present ones claim to that entity could hardly be deemed excusable.
Scanlin argues on appeal that it was reasonable to assume that his claim should be filed with the county because a Santa Clara County Superior Court judge issued the warrant and because the Santa Clara County District Attorney opposed his motion for return of his property. But evidence of his reliance on these facts, or the reasonableness (or not) of that reliance, is not included in the record.
Moreover, the record contains no evidence of any investigative efforts that Scanlin might have undertaken within the claims-filing period to ascertain the correct procedure for presenting a claim to the state—something he obviously figured out within weeks of the countys denial of his initial, but erroneously presented, claim. Nor is there any evidence that identifying the correct procedure for presenting a claim to the state was unduly confusing to Scanlin as a non-attorney. Whats more, the record suggests that for whatever reason, Scanlin strategically waited until the end of the six-month claims-filing period to present his initial claim to the county. This deprived him of any remaining time to properly present his claim to the Board once the county informed him that his initial claim had been rejected and of the reasons therefor. That he made such a judgment, albeit with unintended consequences, speaks more to a conscious and deliberative process rather than to a reasonable and excusable "mistake" that a reasonably prudent person could make under the circumstances. Indeed, we find it unreasonable to wait until the last possible moment to present ones claim where there is any uncertainty or a lack of confirmation about the proper entity to which the claim should be presented or the correct procedure for doing so. It is equally imprudent to simply assume without investigation that a claim against the state should be presented to the county in which one resides, even if one also wishes to assert a claim against a local superior court judge.
We conclude that Scanlins "mistake" in initially presenting his claim to the wrong legal entity despite his knowledge and identification of the state actors involved in the execution of the search warrant was not excusable or reasonable under the circumstances. Scanlin has also failed to establish the necessary exercise of diligence in spite of the mistake to warrant relief under section 946.6, subdivision (c)(1). This distinguishes the instant case from those in which relief has been afforded and on which Scanlin relies. Accordingly, in our view, Scanlin has fallen well short of meeting his burden on appeal of showing that the trial court abused its discretion in denying relief.
Apart from his conclusionary contentions that his "mistake" was a reasonable one, Scanlin rests his entreaties for reversal on the facts that he is not a lawyer and that he represents himself, thus entitling him, the argument goes, to be held to a different—read lower—legal standard. Scanlin is mistaken in this regard. While it is clear that under the law, a party may choose to act as his or her own attorney, in procedural matters " `[s]uch a party is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys. [Citation.] [Citation.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267-1271 [pro. per. litigant held to usual standards and requirements under Code Civ. Proc., § 473]; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055-1056 [pro. per. litigant held to same evidentiary and procedural rules as counsel; otherwise ignorance is unjustly rewarded].)
We conclude that despite the remedial nature of section 946.6, the record amply supports the trial courts conclusion that Scanlin did not sufficiently establish mistake, inadvertence, surprise, or excusable neglect so as to warrant relief.
DISPOSITION
The order denying relief under Government Code section 946.6 is affirmed.
We concur:
Bamattre-Manoukian, Acting P.J.
Mihara, J.