[510]EAGLESON, J. I respectfully dissent.
If an ounce of the milk of human kindness courses in anyone’s veins, it flows in sympathy toward this grievously injured plaintiff.1 She is a victim, however, not of the judicial process, but of incompetent counsel.
The true legal issue is nothing more and nothing less than the question of whether a trial court, faced with cursory and conflicting evidence, erred in concluding that plaintiff had failed to justify her untimely claim under the Tort Claims Act. (Gov. Code, § 900 et seq.) The lead opinion, however, proceeds as if the trial court had never decided this case. Applying the orthodox standard of appellate review, the only tenable conclusion is that the trial court did not err. The record, in condensed form, reveals as follows:
Plaintiff’s petition for relief from the Tort Claims Act (the Act) was filed on January 28, 1988. Plaintiff’s counsel (hereafter counsel) presented no medical evidence on which to grant relief—not a single declaration or document. All that he submitted was his own self-serving declaration, with his bare assertion that plaintiff had been incapacitated during the claim filing period.
In response to the City of Los Angeles’s objection to the lack of evidence, counsel filed a brief and cursory (less than one page) declaration by one of plaintiff’s treating physicians. It contained two relevant paragraphs, which stated that plaintiff had suffered “brain damage” and other injuries. This declaration did not contain any supporting facts and did not state that plaintiff had ever been incapacitated, nor was it supported by any medical records.
Rather than outright deny the petition, as it was entitled to do, the trial court, for plaintiff’s benefit, continued the matter for almost three months (from March 28 until June 17) to allow her counsel to submit additional medical declarations in support of his contention that plaintiff had been legally incapacitated during the claim filing period. (At counsel’s request, the continued hearing date was later changed to June 6.)
Despite the continuance, plaintiff’s counsel failed to submit any additional evidence or even to appear at the June 6 hearing. The trial court denied the petition for relief under Government Code section 946.6, subdivision [511](c)(3).2 Its order stated, “Petition is denied without prejudice based on failure to establish medical injuries were cause of late claim.”
The lead opinion concludes that this trial court order was erroneous. Not so. All that was before the trial court was the woefully inadequate physician’s declaration described above. A trial court need not rely on such a declaration. (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 477 [58 Cal.Rptr. 249, 426 P.2d 753]; Martin v. City of Madera (1968) 265 Cal.App.2d 76, 81-82 [70 Cal.Rptr. 908].)
The only way the lead opinion can reach its result is to substitute its judgment for that of the trial court. Of course, doing so requires disregard for the long-established rule that a reviewing court must not substitute its judgment for that of the trial court on petitions to file late claims. “ ‘ . . . Unless, ultimately, each case of this nature is to be decided by the Court of Appeal [or the Supreme Court] as if no trial court had ever acted on the petition, we must be careful to preserve the area of the superior court’s discretion, and we must do this in fact, as well as in words'" (Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 7 [213 Cal.Rptr. 658], quoting Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 156 [188 Cal.Rptr. 644], italics added.) The lead opinion in this case “in fact, as well as in words” allows the trial court no discretion. The standard of review is not even mentioned in the lead opinion. The lead opinion sub silentio ignores decades of California law and proposes the radical new rule that trial court determinations under section 946.6(c)(3) are subject in every case to de novo review in the appellate courts.
The lead opinion also errs by relying in large part on facts not before the trial court when it denied the petition under section 946.6(c)(3). Most of the relevant facts relied on by the lead opinion were submitted to the court in support of plaintiff’s subsequent motion under Code of Civil Procedure section 473 to reconsider the denial of the petition. It is unwarranted and unfair to the trial court to say that it erred “in light of the whole record in this case” (lead opn., ante, at p. 508). The “whole record” was not before the trial court when it denied the section 946.6(c)(3) petition. Indeed, almost nothing was before the trial court.
If the lead opinion wishes to rely on evidence submitted in connection with plaintiff’s subsequent motion for reconsideration under Code of Civil Procedure section 473, the lead opinion must address the threshold issue of [512]whether that motion should have been granted.3 If the trial court properly denied that motion, there is no way for the lead opinion to reach the issue of whether the initial petition should have been granted. The lead opinion, however, avoids this issue altogether. The reason becomes obvious when one reads the record. Plaintiff’s counsel failed to offer any tenable justification for his failure to timely present evidence to support the petition under section 946.6(c)(3). I am compelled to state briefly the facts that the lead opinion omits on this threshold issue.
On June 15, 1988, plaintiff’s counsel filed the motion for reconsideration under Code of Civil Procedure section 473 on the ground that his failures as to the June 6 hearing were due to problems in his office. Counsel made two separate arguments: (1) that he misunderstood the date of the hearing, and (2) that the failure to submit evidence was due to delays by doctors and a mistake by messengers. Counsel submitted several declarations in support of his request. They contain falsehoods which suggest that both claims are fabricated. Even viewed generously, they do not support the conclusion that counsel’s shortcomings were excusable neglect. The trial court was familiar with its prior proceedings, had the opportunity to review these materials, and heard lengthy argument by counsel that allowed the court to judge his credibility. The lead opinion, however, concludes that the court exceeded the bounds of reason. Not so.
Counsel claimed that he failed to appear for the hearing because his “calendar clerk” incorrectly entered the hearing date as June 7, rather than June 6. This claim is at least debatable and thus subject to the trial court’s discretion in two respects: (1) whether the alleged error really occurred, and (2) if so, whether it was excusable.
James Quinn, one of plaintiff’s counsel, admitted in his declaration that he informed all parties by letter of the June 6 hearing date, and the documents he filed with the court stated on their face that the hearing date was June 6. Similarly, defendant school district filed on May 25 a special appearance to oppose the petition for relief. The district’s papers (which were served on counsel) also identified the hearing date as June 6. Perhaps most telling is the admission by counsel’s law clerk, who had been assigned the task of preparing papers for the hearing. He admitted that he knew the hearing date was June 6, but claimed that he thought the 6th was a Monday rather than a Tuesday.
[513]In short, there are ample indications in the record that counsel knew the correct hearing date of June 6. More important, even if there was an internal office error, the facts were such that the trial court was “within the bounds of reason” in finding the error was not excusable.
The facts are even more troublesome with respect to the failure to timely file papers. The declarations in support of reconsideration are replete with inaccuracies, some of which suggest outright misrepresentations by the declarants. Counsel and the facts tell the following conflicting stories:
Counsel contends that, after the hearing was continued on March 28, it took several weeks for him to obtain plaintiff’s medical records and several weeks thereafter to obtain declarations from the two treating doctors. Conspicuously absent is any explanation of when counsel began his efforts. Nor are there any declarations by the copy service as to when it received counsel’s request for records or by the doctors as to when the declarations were submitted to them. Counsel had the burden of establishing his claim of excusable neglect, but he was unwilling to provide the trial court with any documentation of his claim except for his own vague and self-serving declaration. The trial court could properly disregard his testimony. (Tammen v. County of San Diego, supra, 66 Cal.2d 468, 477.)
The record reflects that counsel delayed obtaining the declarations until the last minute. He states that he assigned the task to a law clerk. The clerk, in turn, states in his declaration that counsel informed him on May 31 of the hearing. This strongly suggests that the firm did not even begin to prepare the doctors’ declarations until a week before the hearing.
Counsel’s “administrative assistant,” Fontaine, states that she sent the declarations by messenger to the doctors’ offices on June 1. This is at least partly false. The messenger slips show that documents were not sent to Dr. Sauk until the next day—June 2. (There is no record of when the declaration was sent to Dr. Hedge.)
Fontaine also asserts that the signed declarations were returned to counsel’s office on June 2 at 4 p.m. Untrue. Dr. Sauk did not even sign his declaration until June 3. Moreover, the messenger’s records show that neither Sauk’s nor Hedge’s declarations were returned until June 3.
The claim of messenger misdelivery also appears to be false. Fontaine claims the messenger went to the wrong superior court—Los Angeles rather than Van Nuys. The messenger slip, which was provided by counsel, stated on its face that the delivery was to be to Los Angeles. Regardless of whether the incorrect address was written by counsel’s employee or the messenger, [514]counsel should take responsibility for it. The misdelivery, if any, was his fault.
The purported timing of the delivery is also suspect in many respects. Fontaine states that she received the declarations on June 2 at 4 p.m. but delayed filing them until the next day because it was then too late to have them delivered to court by its 4:30 closing time. Aside from being false (because she did not get the declarations until June 3), this statement is puzzling. Fontaine goes on to state that the next day, June 3, she called the messenger at 3:25 p.m. and that he picked up the documents at 3:50 p.m. for delivery before the court closed at 4:30 p.m. If, as Fontaine claims, she had the documents the preceding day, it is unexplained why she waited until late the next day before calling a messenger. This is especially curious in light of her admission that, on the preceding day, one-half hour was too little time to deliver the documents to court. It is nearly impossible to travel from counsel’s office in the mid-Wilshire area of Los Angeles to the Van Nuys courthouse in a period of 40 minutes (from 3:50 to 4:30) on a Friday afternoon.
The facts also belie the claim that the messenger was called at 3:25 and “picked up the documents at 3:50 P.M.” The messenger’s slip indicates that he had to wait at counsel’s office 45 minutes for the documents. In short, counsel has inadvertently revealed that the messenger was unable to leave his office until after the court had already closed. There was no messenger misdelivery.
Fontaine also asserts that when she learned of the purported misdelivery she directed the messenger to make the delivery the “first thing Monday morning.” This is dubious. The messenger slip, apparently signed by Fontaine, states that she requested only “1/2-day (4 hours) delivery.” This is a far cry from “first thing Monday morning.”
Aside from these specific inconsistencies, there are two fundamental and troubling aspects to counsel’s conduct. First, if he was (as he claims) having difficulty obtaining the doctors’ declarations, he could easily have requested a brief continuance of the hearing. He chose not to do so. The simple truth is that counsel gambled on rushing to meet a deadline and he failed.
Second, as the trial judge pointed out, even if the papers had been filed on June 3 and the hearing had been set for June 7, the papers would have been untimely. Los Angeles Superior Court rules require that “all moving and supporting papers” be filed at least 15 calendar days before the hearing date. (L.A. Super. Ct. Law & Discovery Policy Manual, par. 145, p. 10, [515]emphasis in original.) If the papers had been filed on June 3, they would have been 11 days late for a June 7 hearing.
In short, the facts tell a tale of sloppy practice. There was no excusable neglect, just neglect. “Excusable neglect is ‘that neglect which might have been the act of a reasonably prudent person under the same circumstances.’ ” (Tammen v. County of San Diego, supra, 66 Cal.2d 468, 476.) It is contrary to common notions of law practice to conclude that plaintiff’s counsel acted with the prudence of a reasonable attorney. “It is not the purpose of remedial statutes to grant relief from defaults which are the result of inexcusable neglect of parties or their attorneys in the performance of the latter’s obligation to their clients.” (Id., at p. 478, italics added.)
More important, though, the facts, even viewed most favorably to plaintiff, allow reasonable minds to differ on this question. It is unfair to the trial court to conclude that it acted “beyond the bounds of reason.” The opposite is true. We should not substitute our judgment for that of the trial court. We should uphold the trial court’s determination under Code of Civil Procedure section 473, as did the Court of Appeal.
As explained above, the lead opinion altogether avoids the issue under Code of Civil Procedure section 473. Assume, however, that the lead opinion could tenably conclude that the trial court erred and should have granted reconsideration. If so, there would still remain the question of whether the trial court “exceeded the bounds of reason” by declining to grant relief under section 946.6(c)(3) based on the evidence subsequently presented. The evidence does not support that conclusion.
Counsel relied on declarations by two treating physicians and portions of plaintiff’s medical records. Her first physician, Dr. Sauk, submitted a discharge summary which indicates that plaintiff was comatose, or close to it, from the time of the accident until her discharge from Sauk’s care on July 22, 1987. Of course, she was incapacitated until then.
Her second physician, Dr. Hedge, submitted a brief (two-page) declaration stating his opinion that she was “physically and mentally incapacitated” beyond the one hundred-day claim filing period. Hedge, however, failed to explain this broad conclusion. (As a preliminary matter, I note the question of plaintiff’s legal incapacity under section 946.6(c)(3) was beyond the scope of Hedge’s expertise.) Rather, Hedge submitted a discharge summary (DS). We must therefore consider that document to see if it sheds light on plaintiff’s status during the claim filing period.
Before describing the DS, I emphasize that I do not dispute that plaintiff was grievously injured. The question before us is more narrow: Was she [516]legally incapacitated and, if so, for how long? I believe the DS is equivocal on this question. At the beginning of her care by Dr. Hedge, plaintiff was clearly in very poor shape. The initial physical examination showed that she could open and close her eyes on command but that she had a host of other serious problems. I would agree that the only reasonable conclusion is that at that time she was incapacitated. But what about later?
The DS says that by July 30, “Yes-no responses were reliable with lap board communication.” She still was, however, mostly unable to communicate in any meaningful way. At an unspecified time thereafter (two paragraphs later in the DS), she had “responded well to the intensive rehabilitation program, and made slow but steady improvements along her hospital course. She began to vocalize and communication significantly improved thereafter .... Neurologically the patient improved with regards to motor power . . . .” Perhaps most significant is the statement that, “By the time of discharge the patient had made significant functional improvement. The patient was independent in oral communication, demonstrating improved linguistic flexibility, pragmatics, and her writing had improved to 70-80% legibility.”
I believe the foregoing is critical. At some point prior to her discharge, plaintiff was able to communicate effectively with others, including family members or attorneys. If so, she was arguably no longer “incapacitated” within the meaning of section 946.6(c)(3). The most telling omission from the lead opinion is plaintiff's own admission (in her application to file a late claim) that she hired her present counsel on October 23, 1987. This was almost three months before her discharge from the hospital. Plaintiff also overlooks the fact that on August 3, 1987, a claim was filed on her behalf by attorney George Hecker against the Los Angeles Unified School District. The record does not reflect that she has disavowed this claim, which casts a reasonable doubt on her assertion that she was unable to communicate with an attorney during her hospitalization.
The lead opinion, however, avoids the dispositive issue of when plaintiff was no longer incapacitated. Section 946.6(c)(3) provides that in order for it to apply, the plaintiff must have been incapacitated “during all the time” allowed for filing a claim, i.e., the entire 100-day period. (Italics added.) Thus, this plaintiff must prove by a preponderance of the evidence that she was legally incapacitated from the date of the accident (June 11, 1987) until September 19, 1987. This determination cannot be made on the basis of the evidence submitted by plaintiff. She may have regained her capacity before that date. If so, she is not entitled to file a late claim.
Even if the record as a whole casts some doubt on the trial court’s decision, that would not be sufficient to support the result reached by the [517]lead opinion. As explained above (ante, at p. 511), the correct issue is whether the trial court abused its discretion. The evidence does not remotely support the conclusion that the trial court abused its discretion.
In conclusion, one important point remains to be made regarding the lead opinion. The lead opinion emphasizes the “peculiar facts of this case” and reiterates that relief may not be warranted in future cases. (Lead opn., ante, at p. 504 and p. 508, fn. 5.) To the extent that the lead opinion is seeking to caution against any future reliance on this case, I agree on that point. This case is an aberration and should remain one.
I would affirm the judgment of the Court of Appeal.
Lucas, C. J., and Panelli, J., concurred.
For purposes of this opinion, I assume to be true the undisputed allegations of the serious nature of plaintiff’s injuries.
All further section references are to the Government Code unless otherwise indicated. For convenience, I will hereafter refer to section 946.6, subdivision (c)(3) as section 946.6(c)(3).
I assume for purposes of discussion that the order denying reconsideration was appeal-able. The question of appealability of such an order has not been clearly resolved. (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160-1161 [250 Cal.Rptr. 435].) I note that if every motion for reconsideration could give rise to an appeal, there would be no finality to any order under section 946.6(c)(3).