Judge Ashfaq G. Chowdhury, Case Number: 24GDCP00018, Date: 2024-04-19 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24GDCP00018, Date: 2024-04-19 Tentative Ruling

Case Number: 24GDCP00018 Hearing Date: April 19, 2024 Dept: E

Hearing Date: 04/19/2024 – 8:30am
Case No: 24GDCP00018
Trial Date: UNSET
Case Name: GREG ASADURIYAN, a minor by and through her natural mother and parent, VERGINE KADIMIAN v. GLENDALE UNIFIED SCHOOL DISTRICT, a public entity

TENTATIVE RULING PETITION FOR ORDER PERMITTING LATE CLAIM AGAINST GOVERNMENTAL ENTITY

RELIEF REQUESTED
Petitioner, Greg Asaduriyan, a minor by and through her natural mother and parent, Vergine Kadimian, hereby petitions this Court for an order relieving her from the provisions of Government Code §945.4 on account of failure to file a timely claim against Respondent, Glendale Unified School District, as Petitioner was a minor during all of the time specified in Section 911.2 for the presentation of the claim.

PROCEDURAL

Moving Party: Petitioner, Greg Asaduriyan

Responding Party: No Opposition by Respondent Glendale Unified School District (Respondent or GUSD)

Moving Papers: Petition; Proposed Order [The petition had a proof of service, but the Proposed Order did not contain a proof of service.] Further, two proofs of service were uploaded on 4/16/2024 alleging service of the: “Notice of Ruling, Notice of Continuance of Hearing on Petition for Order Permitting a Late Claim, Petition.”

Opposing Papers: No Opposition

Reply Papers: No Reply

BACKGROUND

The instant petition arises from allegations for personal injuries that occurred on August 17, 2022 and October 6, 2022 wherein Petitioner, a minor (11 at the time of the alleged incident and currently 12 at the time of filing this petition), alleges that as a result of GUSD’s negligence in failing to provide adequate supervision and security to petitioner, petitioner was bullied, assaulted, battered, and harmed.

ANALYSIS

Government Code

“The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity (Gov. Code, §§ 910, 912.4, 912.8, 945.4).” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) “Government Code section 911.2 requires the claim relating to a cause of action for death or for injury to person or to personal property be presented not later than six months after the accrual of the cause of action.” (Munoz, 33 Cal.App.4th at 1776.) “Generally speaking, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented until a written claim has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board. (Munoz, 33 Cal.App.4th at 1776 citing Gov. Code, §945.4; Ocean Services Corp. v. Ventura Port Dist. (1993) 15 Cal.App.4th 1762, 1775.)

Here, Petitioner filed a claim on June 27, 2023 against GUSD for incidents which occurred on August 17, 2022, October 6, 2022, January 25, 2023, and February 23, 2023. (Marcus Decl. ¶3; Attachment A.)

On July 18, 2023, Tamatha Chipp, a Claims Examiner for GUSD, informed Petitioner that claims presented to GUSD as to activities occurring from August 17, 2022 to December 26, 2022 are being returned because they were not presented within six months.

O, in other words, it appears as if the August 17, 2022 and October 6, 2022 claims were being rejected for not being presented within six months after the event or occurrence because the claims were not filed until June 27, 2023, which after 6 months from both the August 17, 2022 and October 6, 2022 dates.

The July 18, 2022 letter from the Claims Examiner also stated that activities occurring since December 27, 2022 are being investigated.

That is to say, it appears that the January 25, 2023 and February 23, 2023 events are still being investigated.

Therefore, the August 17, 2022 and October 6, 2022 incidents are the two incidents relevant for purposes of this petition since those were the two incidents that were rejected for not being presented within six months of the occurrences.

“Under Government Code section 945.4, presentation of a timely claim is a condition precedent to the commencement of suit against the public entity. However, if the injured party fails to file a timely claim, a written application may be made to the public entity for leave to present such claim. (Gov. Code, §911.4, subd. (a).) If the public entity denies the application, Government Code section 946.6 authorizes the injured party to petition the court for relief from the claim requirements.” (Munoz, 33 Cal.App.4th at 1777.)

“The court must grant the petition under Government Code section946.6, subdivision (c) if the claimant demonstrates by a preponderance of the evidence the application to the public entity under Government Code section 911.4 was made within a reasonable time not exceeding one year after the accrual of the cause of action, and one of the other four requirements listed in Government Code section 946.6, subdivision (c) is met. In determining whether relief is warranted, the court will consider the petition, any affidavits submitted in support of or in opposition to the petition, and any other evidence presented at the hearing.” (Munoz, 33 Cal.App.4th at 1777-78 citing Gov Code §946.6(e) and Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275.)

Here, Petitioner did not timely comply in order to be granted relief. Petitioner submitted his application for leave to present a late claim to GUSD on November 22, 2023. (Decl. Marcus ¶5, Exhibit C.)

Petitioner submitted his application for leave to present a late claim over a year after the accrual of the two dates of the August 17, 2022 and October 6, 2022 injuries.

Since Petitioner either misunderstood the relevant statutes or omitted the relevant portions of the relevant statutes, the Court will cite the statutes below.

Petitioner cites Gov. Code § 946.6(c)(2) as its basis for relief, but Petitioner disregards several portions of § 946.6.

“If an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4.” (Gov. Code § 946.6(a).)

The petition shall show each of the following:

(1) That application was made to the board under Section 911.4 and was denied or deemed denied.

(2) The reason for failure to present the claim within the time limit specified in Section 911.2.

(3) The information required by Section 910.

The petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.”

(Gov. Code §946.6(b)(1)-(3).)

Here it appears as if petitioner complied with § 946.6(b)(1) and (3); however, Petitioner makes no mention of the reason for failure to present the claim within the time limit specified in Section 911.2. Thus, Petitioner did not comply with 946.6(b)(2).

The petitioner does appear to comply with the requirement that the petition be filed within six months after the application to the board is denied or deemed to be denied pursuant to § 911.6 because this petition was filed on January 26, 2024, just 20 days after January 6, 2024, the date Petitioner alleges the application was deemed to have been denied (based on 45 days of silence after the application being filed on November 22, 2023).

The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable:

(1) The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4.

(2) The person who sustained the alleged injury, damage, or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim.

(3) The person who sustained the alleged injury, damage, or loss was a minor during any of the time specified in Section 911.2 for the presentation of the claim, provided the application is presented within six months of the person turning 18 years of age or a year after the claim accrues, whichever occurs first.

(4) The person who sustained the alleged injury, damage, or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time.

(5) The person who sustained the alleged injury, damage, or loss was physically or mentally incapacitated during any of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time, provided the application is presented within six months of the person no longer being physically or mentally incapacitated, or a year after the claim accrues, whichever occurs first.

(6) The person who sustained the alleged injury, damage, or loss died before the expiration of the time specified in Section 911.2 for the presentation of the claim.

(Gov. Code §946.6(c)(1)-(6) [emph added].)

Here, Petitioner argues that relief is appropriate based on § 946.6(c)(2) based on the Petitioner’s status as a minor; however, Petitioner completely ignores the preliminary requirement of 946.6(c) that states the court has to find that the application to the board under Section 911.4 was “made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4.”

In relevant part of § 911.4(b), “The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action.” (Gov. Code § 911.4(b) [emph. added].)

Further, as noted in Munoz, “The court must grant the petition under Government Code section § 946.6, subdivision (c) if the claimant demonstrates by a preponderance of the evidence the application to the public entity under Government Code section 911.4 was made within a reasonable time not exceeding one year after the accrual of the cause of action, and one of the other four requirements listed in Government Code section 946.6, subdivision (c) is met.” (Munoz, 33 Cal.App.4th at 1777 [emph. added].)

Here, the application to the public entity under § 911.4 was not submitted until November 22, 2023 (Decl. Marcus ¶5)—more than one year after the accrual of the cause of action for the dates of injury on August 17, 2022 and October 6, 2022.

“Filing a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition.” (Munoz, 33 Cal.App.4th at 1779 citing Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713.)

“When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under Government Code section 946.6.” (Munoz, 33 Cal.App.4th at 1779 citing Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 488.)

Service

Proof of Service Timely Filed (CRC Rule 3.1300(c)): Uncertain

16/21 Court Days Lapsed (CCP 1005(b), CRC 3.1300(a)): Uncertain

Correct Address: (CCP §1013, §1013a, §1013b): Uncertain

It is unclear if this petition was properly served on GUSD.

The 3/15/2024 Minute Order stated:

The matter is called for hearing.

Court orders petitioner to locate and serve counsel for Glendale Unified School District--if that cannot be determined, or if the current service address is the correct service contact for counsel for Glendale Unified School District, counsel can file a declaration to that effect.

Hearing on Petition for Order Permitting a Late Claim is continued to 04/19/24 at 08:30 AM in Department E at Glendale Courthouse.

Glendale Unified School District may file an opposition to the petition.

Petitioner may file an optional reply.

All briefing dates are set based on the 04/19/24 hearing.

Petitioner to give notice.

(Min. Order 3/15/2024, p.1.)

TENTATIVE RULING
The Court’s tentative is to DENY Petitioner’s Petition for Order Permitting a Late Claim Against a governmental.

The application for leave to present a late claim was submitted on November 22, 2023 to GUSD—over a year after the dates of accrual for the two incidents on August 17, 2022 and October 6, 2022.

The Court will hear argument.