Tsingaris

John Tsingaris and Rita Tsingaris appeal from an order denying a petition for relief from lateness in filing claims pursuant to the Government Tort Claims Act as a basis for bringing suit against the State of California, the County of San Mateo and Fred Arthur Wenger.

*314 The petition for relief was submitted upon declarations showing that Rita Tsingaris was seriously injured and her infant son was killed on December 19, 1976, when Charles Edward Peters entered the Tsingaris residence and attacked the victims with a carving knife. Appellants did not file a claim within 100 days as required by Government Code section 911.2. After learning that Peters was a probationer, appellants retained counsel who filed a claim and an application for leave to present claim on June 28, 1977.

Appellants acknowledge that a petition for judicial relief from lateness in filing a claim calls for a discretionary determination by the court. The court is to grant relief where “The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes that it would be prejudiced . . . .” (Gov. Code, § 946.6, subd. (c)(1).) Appellants…

I respectfully dissent.

While mindful of the rule that relief from failure to file a claim as required by the Government Code is within the discretion of the trial judge (Black v. County of Los Angeles (1970) 12 Cal.App.3d 670, 674 [ 91 Cal.Rptr. 104 ]), we must also be cognizant of the principle that “denials of such relief by the trial court are scanned more carefully than cases where the court granted the relief, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.” (Viles v. State of California (1967) 66 Cal.2d 24, 29 [ 56 Cal.Rptr. 666 , 423 P.2d 818 ].)

The unspeakably brutal attack by Peters against appellants took place on December 19, 1976. It is undisputed that appellants were unaware of Peters’ relationship with respondents until June 7, 1977, when it was revealed at his murder trial not only that Peters was a probationer but that respondents had knowledge that he had violated the conditions of his probation. Appellants thereupon sought legal advice and, promptly after being advised that they had a tenable cause of action, submitted their petition for leave to file a late…

John Tsingaris and Rita Tsingaris appeal from an order denying a petition for relief from lateness in filing claims pursuant to the Government Tort Claims Act as a basis for bringing suit against the State of California, the County of San Mateo and Fred Arthur Wenger.

The petition for relief was submitted upon declarations showing that Rita Tsingaris was seriously injured and her infant son was killed on December 19, 1976, when Charles Edward Peters entered the Tsingaris residence and attacked the victims with a carving knife. Appellants did not file a claim within 100 days as required by Government Code section 911.2. After learning that Peters was a probationer, appellants retained counsel who filed a claim and an application for leave to present claim on June 28, 1977.

Appellants acknowledge that a petition for judicial relief from lateness in filing a claim calls for a discretionary determination by the court. The court is to grant relief where "The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes that it would be prejudiced...." (Gov. Code, § 946.6, subd. (c)(1).) (1)…