-
FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
By continuing to use this site, you are consenting to our Terms of Service and use of cookies.
Santa Clara Judges Run For The Hills To Avoid Case
- Thread starter GoldySJSU
- Start date
Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills Please click a topic or scroll down for more.
- Status
- Not open for further replies.
I do remember this case you brought up:
The dissent, relying on a footnote in Ebersol v. Cowan, supra, 35 Cal.3d at page 438, footnote 14, states that where a petitioner is legally unrepresented during the 100 days' presentation period, the unavailability of an alternative remedy (i.e., an action for malpractice) requires the reviewing court to "examine with even greater scrutiny" a denial of relief from the claims presentation requirement. (Dis. opn., post, at p. 11.) But the Supreme Court went on to emphasize that "to obtain relief under section 946.6 on the basis of excusable neglect, the claimant must at a minimum make a diligent effort to obtain legal counsel within 100 days after the accrual of the cause of action." ( Ebersol v. Cowan, supra, at p. 439.)(Italics added.) In Ebersol, the petitioner sought legal advice on the day of her injury and contacted nine attorneys in all before finding one who would represent her. (See id., at pp. 432-433.) In this case, appellant took no steps whatsoever to obtain counsel until after the 100-day period had expired. Even if appellant was unaware of potential causes of action and of the claim presentation requirements, as stated in Tammen v. County of San Diego, supra, 66 Cal.2d at page 478, "[It] stretches one's credulity to believe that this information could not have been ascertained through the exercise of reasonable diligence. . . ." We therefore hold that the trial court did not abuse its discretion in finding that appellant's neglect in failing to timely file claims with the public entities was inexcusable.
Just to let you know I did attempt to get counsel and have the records to prove it. So I can prove diligent effort. Thus this case does not apply in my case
My case is distinguished because I took all steps possible to attain an attorney, all attrney's refused to take my case. So I can document the steps in attempting to get counsel. Thus this case does not apply to my case.
As I have pointed out, the reason why I do not have an attorney is because I could not get one that could deal with this case because of no fault of my own. The concept of reasonable diligence is satisfied.
A claimant is required to show that within the statutory time period he “*‘did not know or have reason to know’*” that a government entity is involved. (Leake v. Wu (1976) 64 Cal.App.3d 668, 673.)
Leake v. Wu (1976) 64 Cal.App.3d 668, 673 all parties were represented by attorneys, not pro per.
I brought up this information in response:
3. Reasonable diligence
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. In deciding whether the error in failing to timely file the tort claim is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim. (Munoz v. State of California, supra, 33 Cal.App.4th at pp. 1782-1783.)
I pointed out this case is involuntary pro se or pro per, thus this information supports that te rule is to be applied only to attorneys, not pro se or pro per plaintiffs.
3] Excusable neglect is neglect which might have been the act or omission of a reasonably prudent person under the same or similar circumstances. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 [197 Cal.Rptr. 601, 673 P.2d 271].) [4] Not every mistake of law is excusable. (Viles v. State of California, supra, 66 Cal.2d at p. 29.) To determine whether a person is entitled to relief for a mistake of law, the controlling factor is the reasonableness of the misconception of the law under the circumstances of the particular case. (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479 [58 Cal.Rptr. 249, 426 P.2d 753].)
[5] Generally, the mere ignorance of the time limitation for filing against a public entity is not a sufficient ground for allowing a late claim. (****** v. City of Madera (1968) 265 Cal.App.2d 76, 79 [70 Cal.Rptr. 908].) Moreover, ignorance of the possible cause of action against the public entity is insufficient to constitute excusable neglect. "Failure to discover the alleged basis of the cause of action in time is also not a compelling showing in the absence of reasonable diligence exercised for the purpose of discovering the facts." (Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 314 [154 Cal.Rptr. 135]; see also El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57 [159 Cal.Rptr. 267].) fn. 5
Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 [197 Cal.Rptr. 601, 673 P.2d 271case all parties were represented by attorneys, not pro per.
Viles v. State of California, supra, 66 Cal.2d at p. 29 case all parties were represented by attorneys, not pro per.
Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479 [58 Cal.Rptr. 249, 426 P.2d 753 case all parties were represented by attorneys, not pro per.
****** V. City of Madera (1968) 265 Cal.App.2d 76, 79 [70 Cal.Rptr. 908 case all parties were represented by attorneys, not pro per.
Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 314 [154 Cal.Rptr. 135case all parties were represented by an attorney, not pro per.
El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57 [159 Cal.Rptr. 267case all parties were represented by attorneys, not pro per.
As far as the Harrison v. County of Del Norte (1985) 168 Cal.App.3d case all parties were represented by attorneys, not pro per.
All cases you brought up do not address pro per plaintiffs at all. Thus until you have one that does specifically states that a pro per plaintiff MUST be aware of the rules regarding Ca Tort laws and cannot waive the requirements under CGC 946.6, there is no set rule.
However pro per plaintiffs are assumed to not know the laws in the same responsibility as a lawyer in a civil action. This means that a pro per plaintiff can use CGC 946.6 in a far more liberal approach and the courts must provide signifcantly more tolerance to pro per plaintiffs regarding the perponderence of evidence that the plaintiff makes either mistakes or excuseable negligence applicable to the waiver of following the Ca Tort Law rules.
Unless you can provide a case that is on this point, you still haven't provided a solid case that I am ineligible from using CGC 946.6 in the manner I have approached. I have not intentionally done anything to provide that I am ignorant of these rules, I am just not able to find a simple page on the web that tells me what I must do to comply with the Cal Tort Claims Act.
I found a page regarding injuries, but what I am litigating is not an injury.
I have googled and asked and yahooed, and cannot find any page that helps a lay person understand the proccess of following the Ca Tort Claims laws. No forms, no information. A lot of relatively blank pages. Wikipedia has only 2 lines in it to describe the Cal Tort Claims Act. And it does not explain the possiblilty of waiving the requirements under CGC 946.6.
When I did my research on Malicious Prosecution, there were no links to the tort rules. If there was, I would have looked at them and tried to make sure to follow the rules. In order to hold a lay person to the equal responsibility of a lawyer, the state of Ca MUST PROVIDE REGULAR PUBLIC ANNOUNCEMENTS AND INFORMATION DISTRIBUTION TO ALL CITIZENS REGARDING THE PROCESS OF THE CAL TORT CLAIMS ACT. Without said public information, the lay person cannot be held to the scrutiny that an attorney would face regarding CGC 946.6
Show me any information that is contradictory to this, please?
The dissent, relying on a footnote in Ebersol v. Cowan, supra, 35 Cal.3d at page 438, footnote 14, states that where a petitioner is legally unrepresented during the 100 days' presentation period, the unavailability of an alternative remedy (i.e., an action for malpractice) requires the reviewing court to "examine with even greater scrutiny" a denial of relief from the claims presentation requirement. (Dis. opn., post, at p. 11.) But the Supreme Court went on to emphasize that "to obtain relief under section 946.6 on the basis of excusable neglect, the claimant must at a minimum make a diligent effort to obtain legal counsel within 100 days after the accrual of the cause of action." ( Ebersol v. Cowan, supra, at p. 439.)(Italics added.) In Ebersol, the petitioner sought legal advice on the day of her injury and contacted nine attorneys in all before finding one who would represent her. (See id., at pp. 432-433.) In this case, appellant took no steps whatsoever to obtain counsel until after the 100-day period had expired. Even if appellant was unaware of potential causes of action and of the claim presentation requirements, as stated in Tammen v. County of San Diego, supra, 66 Cal.2d at page 478, "[It] stretches one's credulity to believe that this information could not have been ascertained through the exercise of reasonable diligence. . . ." We therefore hold that the trial court did not abuse its discretion in finding that appellant's neglect in failing to timely file claims with the public entities was inexcusable.
Just to let you know I did attempt to get counsel and have the records to prove it. So I can prove diligent effort. Thus this case does not apply in my case
My case is distinguished because I took all steps possible to attain an attorney, all attrney's refused to take my case. So I can document the steps in attempting to get counsel. Thus this case does not apply to my case.
As I have pointed out, the reason why I do not have an attorney is because I could not get one that could deal with this case because of no fault of my own. The concept of reasonable diligence is satisfied.
A claimant is required to show that within the statutory time period he “*‘did not know or have reason to know’*” that a government entity is involved. (Leake v. Wu (1976) 64 Cal.App.3d 668, 673.)
Leake v. Wu (1976) 64 Cal.App.3d 668, 673 all parties were represented by attorneys, not pro per.
I brought up this information in response:
3. Reasonable diligence
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. In deciding whether the error in failing to timely file the tort claim is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim. (Munoz v. State of California, supra, 33 Cal.App.4th at pp. 1782-1783.)
I pointed out this case is involuntary pro se or pro per, thus this information supports that te rule is to be applied only to attorneys, not pro se or pro per plaintiffs.
3] Excusable neglect is neglect which might have been the act or omission of a reasonably prudent person under the same or similar circumstances. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 [197 Cal.Rptr. 601, 673 P.2d 271].) [4] Not every mistake of law is excusable. (Viles v. State of California, supra, 66 Cal.2d at p. 29.) To determine whether a person is entitled to relief for a mistake of law, the controlling factor is the reasonableness of the misconception of the law under the circumstances of the particular case. (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479 [58 Cal.Rptr. 249, 426 P.2d 753].)
[5] Generally, the mere ignorance of the time limitation for filing against a public entity is not a sufficient ground for allowing a late claim. (****** v. City of Madera (1968) 265 Cal.App.2d 76, 79 [70 Cal.Rptr. 908].) Moreover, ignorance of the possible cause of action against the public entity is insufficient to constitute excusable neglect. "Failure to discover the alleged basis of the cause of action in time is also not a compelling showing in the absence of reasonable diligence exercised for the purpose of discovering the facts." (Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 314 [154 Cal.Rptr. 135]; see also El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57 [159 Cal.Rptr. 267].) fn. 5
Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 [197 Cal.Rptr. 601, 673 P.2d 271case all parties were represented by attorneys, not pro per.
Viles v. State of California, supra, 66 Cal.2d at p. 29 case all parties were represented by attorneys, not pro per.
Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479 [58 Cal.Rptr. 249, 426 P.2d 753 case all parties were represented by attorneys, not pro per.
****** V. City of Madera (1968) 265 Cal.App.2d 76, 79 [70 Cal.Rptr. 908 case all parties were represented by attorneys, not pro per.
Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 314 [154 Cal.Rptr. 135case all parties were represented by an attorney, not pro per.
El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57 [159 Cal.Rptr. 267case all parties were represented by attorneys, not pro per.
As far as the Harrison v. County of Del Norte (1985) 168 Cal.App.3d case all parties were represented by attorneys, not pro per.
All cases you brought up do not address pro per plaintiffs at all. Thus until you have one that does specifically states that a pro per plaintiff MUST be aware of the rules regarding Ca Tort laws and cannot waive the requirements under CGC 946.6, there is no set rule.
However pro per plaintiffs are assumed to not know the laws in the same responsibility as a lawyer in a civil action. This means that a pro per plaintiff can use CGC 946.6 in a far more liberal approach and the courts must provide signifcantly more tolerance to pro per plaintiffs regarding the perponderence of evidence that the plaintiff makes either mistakes or excuseable negligence applicable to the waiver of following the Ca Tort Law rules.
Unless you can provide a case that is on this point, you still haven't provided a solid case that I am ineligible from using CGC 946.6 in the manner I have approached. I have not intentionally done anything to provide that I am ignorant of these rules, I am just not able to find a simple page on the web that tells me what I must do to comply with the Cal Tort Claims Act.
I found a page regarding injuries, but what I am litigating is not an injury.
I have googled and asked and yahooed, and cannot find any page that helps a lay person understand the proccess of following the Ca Tort Claims laws. No forms, no information. A lot of relatively blank pages. Wikipedia has only 2 lines in it to describe the Cal Tort Claims Act. And it does not explain the possiblilty of waiving the requirements under CGC 946.6.
When I did my research on Malicious Prosecution, there were no links to the tort rules. If there was, I would have looked at them and tried to make sure to follow the rules. In order to hold a lay person to the equal responsibility of a lawyer, the state of Ca MUST PROVIDE REGULAR PUBLIC ANNOUNCEMENTS AND INFORMATION DISTRIBUTION TO ALL CITIZENS REGARDING THE PROCESS OF THE CAL TORT CLAIMS ACT. Without said public information, the lay person cannot be held to the scrutiny that an attorney would face regarding CGC 946.6
Show me any information that is contradictory to this, please?
- Status
- Not open for further replies.
Find the Right Lawyer for Your Legal Issue!
Fast, Free, and Confidential
data-ad-format="auto">