The opinion
BURKE, J.
I dissent. Although a claimant may establish excusable neglect under Government Code section 946.6 by showing that his emotional *555 condition made it impossible for him to act with reasonable diligence, there is no evidence whatsoever in the record that plaintiffs actually suffered such a condition, or that it precluded them, from filing a timely claim.
The record shows that plaintiffs’ son died on February 15, 1967, that both plaintiffs and their attorney had actual knowledge of the facts underlying their claim no later than April 21, but that they delayed until June 23, before attempting to file that claim. (The 100-day statutory period expired in May 1967.) The majority point out that plaintiffs’ attorney, at the close of the hearing below, offered to amend his declaration to state that plaintiffs’ delay resulted from “emotional trauma” resulting from their son’s death. That bare offer of proof, which was impliedly rejected by the court, did not constitute evidence sufficient to support a finding of excusable neglect. Moreover, even had the offer been accepted, the declaration of an attorney attesting to the emotional trauma of his clients, and thus pertaining to highly subjective medical matters requiring actual testimony (either by experts or by plaintiffs themselves) to appraise, would have been of no evidentiary value. Finally, plaintiffs fail to explain why their own emotional difficulties prevented their attorney from acting with reasonable diligence on their behalf. That attorney had filed the previous claim for personal injuries to plaintiffs’ son, was familiar with claims procedure, and had actual knowledge of the facts supporting the wrongful death claim. His lack of diligence cannot be explained or excused on the ground of emotional trauma.
Since plaintiffs failed to carry their burden of proving excusable neglect, the fact that the county was not prejudiced by the late claim is immaterial. (Gov. Code, § 946.6, subd. (c); Tammen v. County of San Diego, 66 Cal. 2d 468, 478 [ 58 Cal.Rptr. 249 , 426 P.2d 753 ]; Van Alstyne, Cal. Government Tort Liability, Supp., § 8.30, p. 107.)
Although, as the majority hold, prohibition does not ordinarily lie in these cases, the merits have been briefed and no purpose would be served in remanding the action to the trial court. Accordingly, I would grant the peremptory writ of prohibition.
On May 13, 1971, the opinion was modified to read as printed above.