GAYLE DRAPER, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents, 52 Cal. 3d 502

Opinion MOSK, J. In this case we are called on to decide whether plaintiff, physically unable to file a claim against a governmental entity within 100 days of an accident (Gov. Code, former § 911.2), may be denied relief from the Government Code’s claim-filing requirements on the ground that an attorney, purporting to act on her behalf, filed a timely claim against a governmental entity different from the entity plaintiff now seeks to hold liable. The Court of Appeal affirmed the trial court’s denial of relief. On the peculiar facts of this case, we reverse.

Plaintiff, who was 19 years old in 1987, was seriously injured on June 11 of that year when she was struck by a car driven by a high school student in a crosswalk in the Panorama City district of Los Angeles. The doctor who treated plaintiff from the time of her admission to the hospital on June 11 immediately after the accident until she was transferred to another hospital on July 22 stated that she was both physically and mentally incapacitated during the entire time she was under his care.

Another declaration, from the doctor who cared for plaintiff during her hospital stay from July 22 until her discharge the following January, stated that plaintiff suffered severe head injuries and multiple fractures in the accident, was totally dependent on others, had severe cognitive deficits and difficulty speaking, and was both physically and mentally incapacitated well beyond the 100 days following the accident.

The supporting medical records reveal that plaintiff was in a coma until the end of July, and for some period of time thereafter could only give “yes-no responses” with “lap board communication” and could “identify simple objects” but could not talk. She was completely dependent on others for her physical needs, such as feeding and grooming, and she was immobile. At the time of plaintiff’s accident, former

section 911.2 provided that a personal injury claim against a governmental entity must be filed within 100 days of the accrual of a cause of action. An action for damages cannot be filed against such an entity unless the claim is first presented to it. (§ 945.4.) Sections 911.4 and 911.6 set forth a procedure for seeking leave to present a late claim. On November 4, 1987, less than two months after the one hundred-day claim-filing period had elapsed, plaintiff applied for such relief to the City of Los Angeles, the Los Angeles Unified School District, and several other governmental units.

She alleged that the accident was caused by defects in the condition of the intersection, and that she had not filed a timely claim because she was severely injured in the accident, suffered permanent brain damage, was unconscious and hospitalized for a long time, and did not have the assistance of counsel. The petitions were denied by operation of law. (§911.6, subd. (c).)

Section 946.6 provides that when an application for leave to present a late claim to a governmental entity is denied, a petition for relief from the claim-filing requirement may be filed with the court. Relief is conditioned on the presentation of the application to file the late claim within a reasonable time, not to exceed one year after accrual of the cause of action, and on satisfaction of one of the additional requirements of the section. We are concerned here with the requirement embodied in subdivision (c)(3) of

section 946.6 (hereafter subdivision (c)(3)), which provides as a condition for relief that the “person who sustained the alleged injury, damages or loss was physically incapacitated . . . [during the claim-filing period] and by reason of such disability failed to present a claim during that time.” Plaintiff sought relief under this provision on January 28, 1988, substantially less than one year after the accident.

The petition was supported by her attorney’s declaration that plaintiff suffered severe brain injuries in the accident and was not released from the hospital until after the 100-day claim-filing period. The city and the other defendants opposed the petition on the ground that it was not supported by competent medical evidence. In response, plaintiff’s attorney filed a declaration from a doctor who began treating plaintiff six weeks after the accident, stating that she had suffered brain damage and other injuries.

On March 28, the court continued the hearing to enable plaintiff to file supplemental declarations regarding her medical condition. Prior to the date of the continued hearing, the Los Angeles Unified School District, by a special appearance, filed an opposition to the petition for relief from the claim-filing requirements, pointing out that a claim had previously been filed on plaintiff’s behalf against the school district on August 3, 1987, by one George L. Hecker, an attorney, and had been rejected on September 11.

The supporting documents indicated that the district had notified plaintiff’s present attorney of the rejection in November 1987. On the morning of June 6, 1988, the date set for the continued hearing, plaintiff’s attorney did not appear, nor did plaintiff file any supplementary medical evidence. The court thereupon denied the petition, ruling that plaintiff failed to establish that her injuries were the cause of her failure to file a timely claim. On June 15, plaintiff’s attorney moved for reconsideration of the June 6 order on the ground of excusable mistake and neglect. (Code Civ.

Proc., § 473.) On July 7, the court denied the motion for reconsideration. It ruled that the claim filed by Attorney Hecker on plaintiff’s behalf during the 100-day claim-filing period against the Los Angeles Unified School District demonstrated that any failure to file a claim against the city and other governmental units within that time was not caused by disability. On August 5, 1988, plaintiff filed a notice of appeal from both the order denying relief from the claim-filing requirements and the order denying reconsideration of that order.

The Court of Appeal, although affirming both orders, expressed the view that plaintiff had presented “powerful evidence” that she was seriously disabled during the 100 days following the accident. However, it held that the trial court acted within its discretion in ruling that the filing by Hecker of a timely claim on her behalf against the Los Angeles Unified School District indicated that plaintiff’s disability was not the reason for her failure to file a timely claim against the other public entities. The city does not contend that plaintiff failed to comply with the requirement of

section 946.6 that she apply to file a late claim reasonably soon after her cause of action accrued. Our concern is whether plaintiff established that she was disabled during the 100-day claim-filing period and, if so, whether her disability explained her failure to file a timely claim. As will appear, we hold that in light of the information the court had before it at the June 6 and July 7 hearings, plaintiff satisfied the requirements of subdivision (c)(3) that she demonstrate both her incapacity and the fact that her disability was the cause of her failure to file a timely claim.

The rule that remedial statutes are to be liberally construed (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 273-274 [228 Cal.Rptr. 190, 721 P.2d 71]; Viles v. State of California (1967) 66 Cal.2d 24, 32-33 [56 Cal.Rptr. 666, 423 P.2d 818]) applies with particular force when, as here, strict application of a statutory requirement will result in barring the claim of an incapacitated plaintiff and ultimately deny her a day in court. The Legislature and the courts are concerned with protecting the rights of incapacitated persons, as with those of minors who cannot act for themselves.

For example, a minor is not held accountable for the negligence of an attorney or parent who fails to file an application for a late claim on the minor’s behalf within a reasonable time after accrual of the cause of action. (Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020, 1029 [232 Cal.Rptr. 519, 728 P.2d 1154], citing Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479-480 [58 Cal.Rptr. 249, 426 P.2d 753]; Williams v. Mariposa County Unified Sch.

Dist. (1978) 82 Cal.App.3d 843, 850-852 [147 Cal.Rptr. 452].) And a mentally incapacitated person may postpone the filing of an application to present a late claim until a guardian or conservator has been appointed to act on his or her behalf. (§ 911.4.) Thus in Tammen v.

County of San Diego, supra, 66 Cal.2d 468, 480, we construed a claims statute in favor of a minor, relying on “the policy of the law toward liberal construction of remedial statutes for the protection of persons within their purview and the modern trend of judicial decisions in favor of granting relief unless absolutely forbidden by statute.” With regard to the first prong of the test set forth in subdivision (c)(3), we conclude that the evidence, viewed in light of the whole record, establishes in this case that plaintiff was incapacitated during the claim-filing period.

It could be contended that the evidence plaintiff presented in her motion for relief under

section 946.6 and her reply to the city’s opposition to that motion was somewhat conclusory. Nevertheless, given the unusual facts of this case, we believe the trial court should have paid greater heed to the declaration of plaintiff’s doctor that she was severely injured and brain damaged as a result of the accident.

Although the doctor’s declaration was not as complete as it could have been because it did not specify the precise time during which plaintiff was unable to act on her own behalf, on this record we conclude that the rule of liberal construction of remedial statutes should operate to grant plaintiff relief. The city contends that even if the record shows plaintiff was incapacitated, she failed to satisfy the second requirement of subdivision (c)(3), i.e., that her disability caused her failure to timely file her claim.

The city argues that the fact Hecker filed a claim on her behalf during the 100-day period provides countervailing evidence that her incapacity did not cause her omission, and the trial court was justified in so finding. Unfortunately, the record of the trial court’s opinion on this point is unclear. The court may have believed that the weight of the evidence showed that plaintiff’s injuries did not prevent her from personally authorizing Hecker to file a claim on her behalf. Or it may have inferred that someone other than plaintiff, with implied authority to do so, had retained Hecker for that purpose.

We do not know. Plaintiff’s attorney stated at the hearing on the motion for reconsideration that he was not certain of the relationship between Hecker and plaintiff—although he thought Hecker was a family friend—and he pointed out there was no evidence that Hecker had actually been retained to file the claim. He then sought a continuance to ascertain the facts, but the court denied the request. It ruled that Hecker was acting as plaintiff’s attorney when he filed the claim, and that because she had not repudiated his actions she was bound by them.

In light of the whole record of this case we are reluctant to bar plaintiff’s claim on the basis of this contention. On August 3, 1987, the date Hecker filed the claim against the Los Angeles Unified School District, it is undisputed that plaintiff was just emerging from a long coma and that her ability to reason was severely impaired. In such circumstances it is inconceivable that she could have authorized the filing of the claim. Nor can we uphold the ruling on the basis of an assumption that some unnamed person retained Hecker to file a claim for plaintiff.

Under subdivision (c)(3), it is the incapacity of the person who failed to file a claim that is in issue. The structure of the sentence requires this conclusion: it provides that an application for relief under

section 946.6 shall be granted if “The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated [during the claim-filing period] . . . and by reason of such disability failed to present a claim” within 100 days (italics added). The sentence obviously refers to the injured person as the person who is too disabled to file a claim. (See Gonzales v.

County of Merced (1963) 214 Cal.App.2d 761, 764-766 [29 Cal.Rptr. 675] [construing predecessor to § 946.6].) Construction of the subdivision in the manner the city advocates would require us to add words to the sentence so that the last clause would read, “and by reason of such disability the injured person or someone with authority to appoint another to act on the injured person’s behalf failed to present a claim” within the 100-day period. We cannot thus rewrite the statute.

Contrary to the city’s assertion, our construction of subdivision (c)(3) does not render superfluous the last clause of the provision (“and by reason of such disability failed to present a claim”). The subdivision is designed to assure both that the claimant was disabled during the filing period and that the disability was the reason the claimant could not file timely. A person can be disabled yet be able to file a timely claim.

The decisions construing subdivision (c)(3) and its predecessor apply the disability provision in just this way: they analyze the extent of the injured person’s disability and determine whether it was so great as to preclude filing a timely claim or authorizing someone to do so. For example, in Tammen v. County of San Diego, supra, 66 Cal.2d 468, 474-475, we held that the fact the plaintiff consulted attorneys and dealt with insurance adjusters within the filing period was evidence that her failure to present a timely claim was not caused by her incapacity. (See also Thompson v.

County of Fresno (1963) 59 Cal.2d 686, 689 [31 Cal.Rptr. 44, 381 P.2d 924]; Lutz v. Tri-City Hospital (1986) 179 Cal.App.3d 807, 811-812 [224 Cal.Rptr. 787]; Baber v. Napa State Hospital (1984) 154 Cal.App.3d 514, 518-519 [201 Cal.Rptr. 432]; O'Brien v. City of Santa Monica (1963) 220 Cal.App.2d 67, 76 [33 Cal.Rptr. 770]; Pope v. County of Riverside (1963) 219 Cal.App.2d 649, 652 [33 Cal.Rptr. 491].) Here, by contrast, there can be little doubt that plaintiff’s incapacity prevented her from taking any such actions. The result sought by the city would deny this seriously injured woman her day in court.

We are not convinced the law requires such an unconscionable conclusion. The judgment of the Court of Appeal is reversed with directions to reverse the orders appealed from with instructions to grant plaintiff the relief requested. Broussard, J., concurred. Kennard, J., and Arabian, J., concurred in the judgment. All further unlabeled statutory references are to this code. In 1987 the Legislature extended

section 911.2’s filing period to six months after the cause of action accrues, for acts or omissions occurring on or after January 1, 1988. (See County of Los Angeles v. Superior Court (1990) 223 Cal.App.3d 163, 165 [272 Cal.Rptr. 600].) Code of Civil Procedure

section 473 provides in part, “The court may, upon such terms as may be just, relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” The court was also of the view that plaintiff’s attorney did not show that his failure to appear at the June 6 hearing or to file the supplemental medical declarations before that hearing was excusable.

In so holding, however, we reiterate that the evidence in support of the motion for relief from the claim-filing requirements was the minimum acceptable, and in less peculiar and compelling circumstances might well not suffice.