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Tackett v. City of Huntington Beach1/28/1994
Do the recent amendments to Code of Civil Procedure section 473, requiring a trial court to vacate a default, default judgment, or dismissal if the aggrieved party's attorney submits a timely application for relief "in proper form, . . . accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect," apply to a motion under Government Code section 946.6 for relief from the claim-filing requirement under the Government Tort Claims Act? No. Alternatively, did the superior court abuse its discretion in concluding the petitioning party failed to show excusable neglect that would warrant relief from the Government Code's tort claims filing requirement? Again, the answer is no.
I
Candice Amber Tackett tripped on a Huntington Beach sidewalk on January 3, 1991. She retained Attorney James A. Rainboldt three weeks later. He failed to file a claim with Huntington Beach within six months of the accident, as required by Government Code section 911.2. An application for leave to file a late claim was submitted on August 30. The application included a bald Conclusion, devoid of elaboration, that " he reason for the delay in presenting this claim is the mistake, inadvertence, surprise, and excusable neglect of the claimant and James A. Rainboldt, attorney." (Italics added.) The application was denied on September 25.
Tackett's counsel then waited five months and twenty-eight days, until March 24, 1992, to petition the superior court for relief from the claim presentation requirement. In the supporting declaration, Rainboldt asserted, "Through inadvertence and mistake, a member of my staff failed to calendar Petitioner's claim for timely presentation to the City of Huntington Beach. [ ] When the calendaring error was discovered, Application for Leave to
Present Late Claim was presented and received by . . . Huntington Beach on August 30, 1991." (Italics added.)
Huntington Beach opposed the petition on the basis that no excusable neglect had been shown. Before the hearing, and in an apparent effort to rebut the city's opposition, Tackett's attorney asserted in a four-paragraph document denominated as a declaration that he "noted a claim against the ity would have to be presented by July 3, 1991; a member of my staff inadvertently miscalendared the due date as July 13." The primary subject of Discussion at the hearing on the petition was whether Tackett's counsel established excusable neglect. The superior court continued the matter to give him the opportunity to file a more detailed declaration.
In that submission Rainboldt stated, "In reviewing our file it appears that the statute for the government claim was recorded in our statute book, however, it is along the right margin of the page [actually it is in the center of the page] and in a position to be easily overlooked. Statutes are recorded and appropriate action initiated as they approach by my law clerk, Mr. Brown. The instant government claim was miscategorized in our data base as not a public entity and therefore did not appear on the firm's monthly statute report. Statutes are recorded and checked by at least two persons working independently, however, as is obvious in this case, our system failed to catch this particular statute date. Once that failure became known, we immediately filed a claim."
The trial court was admittedly taken aback by the new declaration: "You know, Mr. Rainboldt, giving you a chance to enter some supplemental declarations I think has actually hurt you. What my understanding was last time was that the case had been miscalendared as far as the statute of
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