SONENSHINE, Acting P. J. I respectfully dissent.
The majority states “a secretary was assigned the task of determining which public agency to present with the claim.” (Majority opn., ante, p. 244.) However, nowhere in any of the three declarations submitted to the court is it suggested the secretary was assigned such a task.1 The declarations speak for themselves. The secretary was attempting to find with whom to present “a Government claim for injuries sustained in Dana Point, California.” (Declaration of Judy C. McLain—dated Aug. 3, 1983.)
It is also suggested by the majority the secretary “did conduct an investigation.” (Majority opn., ante, p. 244.) They fault governmental employees for incorrectly identifying the county as the responsible entity. But as the respondent points out, “the declarations give no evidence that anyone represented that the sidewalk was the county’s . . . and [n]owhere is it stated that [the declarant], at any time, was told that the sidewalk was the county’s or even that she asked about its ownership.” In other words, it was assumed the injury took place on county property.
The secretary did not conduct an investigation. If she had, the necessary information would have been easily ascertainable. In Tammen v. County of San Diego (1967) 66 Cal.2d 468 [58 Cal.Rptr. 249, 426 P.2d 753], Mrs. Tammen had consulted her attorneys about probating her husband’s estate. Her husband died on February 17, 1963, as a result of injuries sustained in a car accident on a state highway. In July, after a conversation with an insurance adjuster, she spoke with her lawyer regarding a claim against the city. However, no claim was filed until January 1964.
Mrs. Tammen argued “ ‘certain aspects of said accident, particularly the relationship between the City of Oceanside, the County of San Diego and the State of California, on the safe keeping and maintenance of Highway 78 was not ascertainable and was not discovered until the month of December 1963.’” (Id., at p. 477.) However, the appellate court concluded, “[t]here was evidence that both Mrs. Tammen and counsel knew as early as July 19, 1963, that there was a possibility of a claim against the city. It was known that Highway 78, where the accident occurred, was a state highway. An inquiry from the governing body of the city or the department of public works as to the responsibility for the maintenance of the highway would have disclosed whether some cooperative agreement existed to which the [248]county was a party. It stretches one’s credulity to believe that this information could not have been ascertained through the exercise of reasonable diligence between July 19, 1963, and the ‘month of December.’ [¶] If counsel was surprised to discover in the month of December that the County of San Diego was in some way responsible for the asserted dangerous and defective condition of the state highway, it is not the kind of surprise that will relieve his client from default. The ‘surprise’ contemplated by section 473 of the Code of Civil Procedure is some condition or situation in which a party is unexpectedly placed to his injury, without any fault of his own, under circumstances which he was not reasonably called upon to anticipate and which ordinary foresight could not have guarded against. Nor is such conduct that of a reasonably prudent person under the same circumstances, so as to be regarded as excusable neglect. [Citation.] 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. [Citation.] The court therefore did not act arbitrarily in disbelieving that the identity of the public entities responsible for the condition of the state highway could not have been discovered until the indeterminate ‘month of December.’” (Id., at pp. 477-478.)
And the majority fares no better in relying on Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529 [148 Cal.Rptr. 729]. There appellant, was injured while swimming in a canal managed and controlled by Buena Vista Water District. Kaslavage did not learn until after the 100-day time limit had passed that the pipe traversing the canal, and upon which he struck his head, was owned by another water district. The appellate court reversed an order denying petitioner relief from filing a late claim. The court conceded the investigator’s efforts were less than complete, but recognized “[o]n the other hand, he did spend part of two days in investigation, including an on-site inspection and a check of the official records of the assessor’s office. He also questioned four different public agencies in an attempt to obtain information.” (Id., at p. 535.) “Although the failure to make [other] inquiries was neglectful, and the general rule is that the client is chargeable with the omissions of his [or her] attorney [citation], the investigator’s actions were not devoid of diligence.” (Id., at p. 536.)
Recently decided Torbitt v. Fearn (1984) 161 Cal.App.3d 860 [208 Cal.Rptr. 1] is also instructive. A truck went out of control on a state highway on June 2, 1981, crossing the center divider and colliding with other vehicles. Torbitt was injured in this accident and promptly retained an attorney. A complaint was filed against several defendants, but no claim was made against the state until February 1982. Torbitt’s counsel argued he was unaware the state could be liable until he met with a reconstruction [249]expert in January 1982. The appellate court upheld the trial court’s rejection of the request to be relieved from the 100-day requirement.
The court noted counsel “never researched the law nor gave any consideration to the question as to whether or not a claim should be filed against the state ....’’ (Id., at p. 864.) The court also commented, “The other problem with the reasoning of plaintiffs/appellants is that counsel did not make a legitimate factual investigation nor engage in any legal research to determine whether or not such cause of action might be feasible. He simply disregarded the concept in the entirety until it was pointed out to him by a traffic engineer.” (Id., at p. 865.)
In the present case, counsel initially thought the area was within the county’s aegis. This was not based on information supplied by either the county or state. The error was not based upon reliance on misplaced papers or misinformation supplied to him by secretarial staff. And this conduct stands in marked contrast to the facts in Kaslavage, where there was an investigation. Here there was no investigation; merely an incorrect assumption of ownership.
Like counsel in Torbitt, the attorney here did not make a legitimate factual investigation. (Id., at p. 865.) And, as in Tammen, the injury occurred on a state highway which should have been a red flag to counsel concerning the state’s involvement. Although the highway was located in an unincorporated city, under the auspices of the county, reasonable diligence on the part of counsel would have led to discovery of the proper entity with whom to file the claim.
The trial court, in indicating its intended decision, stated, “I cannot find that under all of the cases . . . there was a reasonable effort made to determine who the proper entity was.” Lawrence’s counsel argued the claim was filed with the county because of representations “of a county employee that the sidewalk area, where the accident occurred, was county property.” Lawrence even received a second chance to file supplemental declarations.
However, all the declarations paint the same picture. “[T]he office was retained by claimant in reference to a possible claim against the County of Orange or the City of Dana Point." (Italics added.) No investigation was conducted. This initial assumption, that the claim was to be filed with the county or the city, was not based on information supplied by any governmental agency. Various agencies were contacted. The question to each was where to file a claim for an injury occurring in the city of Dana Point. Eventually the secretary was told to contact the county. The agencies did no more than correctly respond to the wrong question. If proper, or indeed [250]any, investigation had commenced, counsel could have ascertained the appropriate agency with which to file the claim.
I cannot find this conduct excusable. “The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief. When inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law.” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 282 [75 Cal.Rptr. 848], fn. omitted.)
Nor am I inspired by the majority’s other suggestion. They find the respondent has not shown any evidence of prejudice. There is no burden to establish prejudice until appellant shows the failure to present the claim was through excusable neglect. Lawrence has not made this showing.
“ ‘While there is a strong public policy in favor of permitting a trial of a case on its merits, the determination as to whether a particular mistake of law warrants the granting of relief reposes largely in the discretion of the trial court. (Citation.) In the instant case [the majority should not be] inter- ' ested in the question as to whether the trial court could have granted relief based on the claimed mistake of law, but, since the trial court denied relief, only in whether such holding was within its discretion.’ [Citation.] [¶] . . . ‘However, a mistake as to law does not require relief from default as a matter of law. (Citation.) The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception ánd the justifiability of lack of determination of the correct law.’ Excusable neglect is ‘that neglect which might have been the act of a reasonably prudent person under the same circumstances.’ [Citation.] [¶] Applying the foregoing rules to the facts of the present case, [I would hold] the court did not abuse its discretion in finding that [appellant] was not entitled to relief because of mistake of law.” (Tam-men v. County of San Diego, supra, 66 Cal.2d 468, 476.)
The majority’s apparent dislike for the claims statute should be directed to the Legislature. I would affirm the judgment.
A petition for a rehearing was denied September 5, 1985. Sonenshine, Acting P. J., was of the opinion that the petition should be granted. Respondent’s petition for review by the Supreme Court was denied December 18, 1985.
[251]Appendix
Declaration of Jody C. McLain
I, Jody C. McLain, declare:
That I am a secretary employed by the Law Offices of Wylie A. Aitken, the attorneys of record in the above-captioned lawsuit.
That between April 15, 1982 and April 30, 1982, I contacted the Dana Point Sheriff’s Office regarding presentation of a Government Claim for injuries sustained in Dana Point, California. I was informed that Dana Point was not a City and was referred to Laguna Niguel’s Sheriff’s Office.
That I then contacted Laguna Niguel’s Sheriff’s Office was referred to the San Clemente Sheriff’s Office.
That I next contacted San Clemente Sheriff’s Office and was advised, by a public employee at said Sheriff’s Office, to present the claim to the Orange County Clerk, Board of Supervisors.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.
Executed this 3rd day of August, 1983 at Santa Ana, California.
Dated: August 3, 1983
BY: /s/ Jody C. McLain
Declaration of John C. Adams, III
I, John C. Adams, III, declare:
That I am an attorney at law licensed to practice in the State of California and I am an associate with the attorneys of record in the above-captioned lawsuit.
That on or about April 15, 1982, this office was retained by claimant in reference to a possible cause of action against the County of Orange or the City of Dana Point. The nature of said cause of action is more fully described in the proposed Claim attached to this Petition.
Between April 15, 1982, and April 30, 1982, contact was made with the Dana Point Sheriff’s Office regarding presentation of a Governmental Claim. This office was informed Dana Point was not in fact a City, and then referred to Laguna Niguel’s Sheriff’s Office. Laguna Niguel’s Sheriffs in turn referred this office to San Clemente Sheriffs. This office was then advised to present our claim to the Orange County Clerk, Board of Supervisors.
That on April 30, 1982, a Government Claim was presented to the County of Orange based on the foregoing investigation.
At this time, we had no information which indicated that the site of the incident was within the control or jurisdiction of the State of California.
That on May 4, 1982, a response was received from the County of Orange, Administrative Office, Risk Management, for processing. (Attached as Exhibit “A”).
That on July 20, 1982, 45 days had passed without any further response from the County of Orange or its representatives.
That on July 29, 1982, a formal complaint was filed with the Orange County Superior Court naming the County of Orange as defendant.
That on August 6, 1982, this office first received a letter from the County of Orange disclaiming any liability for the injuries sustained by Steven Lawrence. (Attached as Exhibit “B”), and informing this office for the first time that the subject property was not within the jurisdiction and control of the County, but rather was with that of the State of California.
At no time prior to August 6, 1982, did this office have any information indicating that the subject property was within the control and jurisdiction of the State of California as opposed to the County of Orange.
Upon discovery of this fact and our realization that a Government Claim therefore, should have been made against the State of California but was not, due to the misinformation indicated above, we diligently proceeded to submit an Application for Leave to File Late Claim.
That on February 8, 1983, the State Board of Control, denied said Application (Attached as Exhibit “C”). Said Application was file in a timely manner, being filed prior to one year after the accrual of Petitioner’s cause of action.
[252]The Petitioner is informed and believes that the delay in presenting this claim to the State of California does not unduly cause any prejudice to the State by this delay, and thereupon this Petition should be granted.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.
Executed this 3rd day of August, 1983 at Santa Ana, California.
Dated: August 3, 1983
BY: /s/ John C. Adams, III Attorney for Claimant
[253]
[254]
The declarations of the attorney and secretary are set forth in the appendix.