NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

MILLER, Acting P. J.

City of Redlands (the City) petitions for writ of mandate seeking to set aside the trial court's order granting relief to the claimant Donald Ray Bates (Bates) under Government Code section 946.6.1 We grant the petition, finding that the trial court abused its discretion.

FACTS

Bates alleges causes of action for battery and excessive force arising out of his arrest in Redlands by Redlands police officers on November 13, 2009.

The six-month period for filing a claim was up on May 13, 2010.

On May 11, 2010, Bates's attorney filed a claim with the County of San Bernardino "in regards to a civil complaint against the San Bernardino Sheriff's Department, from an incident occurring on November 13, 2009." The letter proceeds to describe a vehicle stop and foot pursuit with Redlands police officers.

On May 20, 2010, the County of San Bernardino (the County) issued an insufficiency notice based on the fact that the County has no jurisdiction over the City of Redlands or the Redlands Police Department. It formally rejected the claim on June 4, 2010.

On May 25, 2010, Bates filed a claim against the City. The City returned the claim as untimely on June 17, 2010.

In an application dated June 23, 2010, Bates applied to the City to present a late claim. The application was supported by the declaration of his attorney, who stated that he mistakenly filed a claim with the County. The application was rejected and Bates petitioned the superior court for relief.

The trial court granted relief, commenting that the delay was only 12 days and the City had not been prejudiced.

DISCUSSION

The City contends that the trial court abused its discretion because Bates's failure to present a timely claim to the proper public entity was unexplained. Thus, there was no evidence to support its finding that this unexplained failure was the result of mistake, inadvertence, surprise or excusable neglect as required under section 946.6, subdivision (c). We agree.

A claimant seeking relief under section 946.6 must demonstrate two essentials by a preponderance of the evidence: (1) that the application for late claim relief must be presented to the public entity within a reasonable time not to exceed one year from accrual; and (2) that the failure to file a timely claim was due to mistake, inadvertence, surprise, or excusable neglect. (El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 62.)

The determination of the trial court in granting or denying a petition for relief under section 946.6 will not be disturbed on appeal except for an abuse of discretion. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 (Ebersol).) While we review the trial court's ruling for abuse of discretion, that discretion must be exercised in conformity with the spirit of the law. The policy favoring trial on the merits cannot be applied indiscriminately to render statutory time limits ineffective. (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44.)

The policy favoring trial on the merits is the primary policy underlying Government Code section 946.6. (Ebersol, supra, 35 Cal.3d at p. 435.) In order to implement this policy, any doubts should be resolved in favor of granting relief. (Ibid.) Consequently, where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief, denial of relief constitutes an abuse of discretion. (Ibid.)

However, as the Supreme Court in Ebersol recognized, the trial court has to have an evidentiary basis on which to exercise its discretion. Presentation of a claim to the wrong entity does not give notice to the right public entity of its potential liability so that it could investigate the claim and possibly settle it. Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 279 explained, "The claim presentation requirement serves several purposes: (1) it gives the public entity prompt notice of a claim so that it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so that it can better prepare for the upcoming fiscal year."

Generally speaking, mistake of counsel is not a basis for granting relief from the claim filing requirements. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65.) In deciding whether counsel's error is excusable, this court looks to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. In examining the mistake or neglect, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. In addition, unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. (Bettencourt, supra, 42 Cal.3d at p. 276.)

In his declaration, Bates's attorney states, without elaboration, that he mistakenly filed a claim with the County rather than the City. It is apparent from the claim itself that he was aware that the alleged wrongdoing was committed by police officers employed by the City of Redlands. Moreover, the claim was clearly directed to the County. Bates's attorney says he made a mistake, but does not explain the nature of the mistake. Bates argues in his return that his attorney made an assumption the County was the proper entity to file the claim with, noting that he had been held in the West Valley Detention Center, which is located in the County. He also indicates that after being retained, his attorney checked the County's Website and verified Redlands is located in the County. This seems to suggest that he may have believed that the San Bernardino County Sheriff's Department was the law enforcement agency involved, but he does not explain why the claim clearly refers to Redlands police officers. In any case, Bates never presented these circumstances to the trial court. The key in this case is that claimant failed to present evidence to show that counsel's error constituted excusable neglect or mistake.

The trial court granted relief because the delay was only 12 days and no prejudice was shown. However, it does not matter if the delay is minor—the claimant must still show an adequate excuse. Prejudice (or lack thereof) to a public entity is not a factor unless there has been a sufficient showing of excuse. The public entity is not required to show prejudice unless the claimant first shows excusable neglect in failing to file a timely claim. (See e.g., Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1163, disapproved on other grounds in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605.)

We add that substantial compliance is inapplicable where there is a total failure to file a claim on the correct public entity. Presentation to the wrong public entity isn't sufficient. (Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702.)

In sum, the trial court abused its discretion in granting relief when the claimant failed to present evidence to support a finding of mistake, inadvertence, surprise, or excusable neglect.

DISPOSITION

The petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing the Superior Court of San Bernardino County to vacate its order granting relief from the government claims statutes and to enter a new order denying the petition for relief.

Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

Petitioner to recover its costs.

HOLLENHORST, J. and KING, J., concurs.