Judge Bruce G. Iwasaki, Case 22STCP04100 2023-01-17 Tentative Ruling

Joshua Bark (Petitioner or Bark) is the spouse of Franses Rodriguez. On November 15, 2021, the petition avers, Rodriguez was riding an electric scooter in Pasadena and encountered an uneven gap on the roadway, causing her to crash and sustain numerous injuries. A month later, she retained a law firm to represent her for the injuries. The firm then filed a government claim on behalf of Rodriguez with the City of Pasadena (Respondent or City). After Respondent denied the claim, the firm met with Rodriguez and Bark in July 2022 to discuss next steps.

After the meeting, Bark retained the same law firm his wife has to pursue a claim for loss of consortium. In August 2022, the firm filed Bark’s application to present a late claim based on mistake, inadvertence, and excusable neglect. In the application, Bark’s counsel explained that it was “only recently that it became clear how Mr. Bark has been impacted and harmed by this incident” and that he was previously focused on helping his wife recover from her own injuries. Respondent City denied the application.

Bark now petitions this Court under Government Code section 946.6 for relief from the time limits for filing a claim against a public entity. The City filed an opposition and Bark filed a reply.

A claim for personal injury “shall be presented . . . not later than six months after the accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).) The failure to present a timely claim bars the plaintiff from bringing suit against that entity. (Gov. Code, § 945.4; Cal. Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591.)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 v. State of Cal. (1995) 33 Cal.App.4th 1767, 1777 (Munoz).)

A trial court shall grant a section 946.6 petition for relief if the petitioner demonstrates, by a preponderance of the evidence, that (1) the application for leave to present a late claim was timely made, not exceeding one year after the accrual of the cause of action; (2) the application was denied; and as relevant here, (3) the failure to timely present the claim was because of mistake, inadvertence, surprise or excusable neglect, unless the public entity establishes that it would be prejudiced in the defense of the claim if the trial court relieves the petitioner from the claim-filing requirements. (Gov. Code, § 946.6, subds. (c), (c)(1); Ebersol v. Cowan (1983) 35 Cal.3d 427, 431.) The court must independently decide the petition for relief based on the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition. (§ 946.6, subd. (e).)

The showing required for relief because of “mistake, inadvertence, surprise or excusable neglect” is the same as required under Code of Civil Procedure section 473 for relieving a party from a default judgment. (Ebersol, supra, 35 Cal.3d at p. 435.) Generally, “cases granting relief on the basis of excusable neglect involve plaintiffs who acted diligently to retain counsel with in the [] limitation period.” (Ibid.; Munoz, supra, 33 Cal.App.4th at p. 1782 [“it is the neglectful conduct of counsel or counsel’s staff, imputed to plaintiff, which is determined to be excusable and the neglectful conduct is deemed relatively minor”].)

Bark argues that it was not until August 2022, after he retained counsel, that he realized he had a separate claim against the City. In its opposition, the City contends that Bark’s failure to consult an attorney, ignorance of the law, and the nature of his damages, do not constitute excusable neglect, and it would suffer prejudice if the Court grants relief.

The evidence does not show that Petitioner diligently sought counsel during the claim-filing period.

“Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” (Ebersol, supra, 35 Cal.3d at p. 435.) “Claimants who have missed the claim filing deadline often argue that, as lay individuals, they simply did not know that they had a potential cause of action against a public entity. However, lack of knowledge alone is not considered a sufficient basis for relief, when the claimant did not make an effort to obtain counsel. ‘It is precisely because theories of third party liability are subtle, complex, and often not readily apparent to a layman that due diligence requires at least consultation with legal counsel.’ ” (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1383; Ebersol, supra, 34 Cal.3d at pp. 435-437 [“In general, cases granting relief on the basis of excusable neglect involve plaintiffs who acted diligently to retain counsel . . . In contrast . . . the cases denying relief under section 946.6 involve situations where the plaintiff failed to take any action whatsoever in pursuit of his or her claim within [the claim-filing period]; cases where the conduct of plaintiff's retained counsel was clearly unreasonable or inexcusably dilatory; and cases in which there was simply no competent evidence before the trial court upon which it could exercise its discretion”].)

Here, Petitioner has not met his burden. As an initial matter, he fails to submit any admissible declarations as to his reasons for the delay and failure to obtain counsel within the claim-filing period. “Argument of counsel of course is not evidence.” (El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 62-63 [setting aside a trial court's order granting relief based on the “conclusionary and argumentative statement of counsel in the points and authorities” and the lack of any admissible evidence].)

Petitioner does submit the declaration of his counsel, but this is insufficient.[1] Counsel avers that Petitioner did not retain her firm until August 2022, nine months after the incident. (Posey Decl., ¶ 12.) There are no details between November 15, 2021, the date of the accident, and August 2022, explaining Petitioner’s delay. The declaration merely asserts that Petitioner was caring for his wife during that time and that he did not know of his claim until her injuries worsened. (Id. at ¶ 11.) But lack of knowledge of a potential cause of action is not enough for excusable delay. (Barragan, supra, 184 Cal.App.4th at p. 1383; Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 7.) Petitioner fails to explain any diligence in seeking legal advice even though he presumably knew his wife retained counsel almost immediately after the injury and filed a claim herself in May 2022. (Posey Decl., ¶ 7; Munoz, supra, 33 Cal.App.4th at pp. 1778-1779; People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44-45.)

Ebersol is instructive here. There, the plaintiff bus driver was bitten by a teenager with mental disabilities who was traveling to a work training program that was operated by the Ventura County Superintendent of Schools. The plaintiff was initially unaware of the county’s involvement; however, she contacted several attorneys on at least nine different occasions after the incident. (35 Cal.3d at pp. 432-433.) Our Supreme Court held that her ignorance coupled with her persistence in attempting to retain counsel constituted excusable neglect. (Id. at pp. 435-437.) Here, Petitioner claims ignorance of his loss of consortium claim but does not present any evidence of his efforts to seek counsel. There are no arguments, for example, that he was disabled (Barragan, supra, 184 Cal.App.4th at p. 1385), or that he erroneously relied on information from a third party (Viles v. State (1967) 66 Cal.2d 24, 29-30).

Petitioner argues there is no “strict mandate for an injured party to engage the services of an attorney within the six-month period to establish excusable neglect.” While true, his reliance on two cases, DeVore v. Dept. of Cal. Highway Patrol (2013) 221 Cal.App.4th 454 (DeVore) and Barragan, supra, is misplaced. Both those cases involve situations of reasonable diligence. In DeVore, the plaintiffs were the heirs of a decedent who was struct by a drunk driver; the driver was the subject of an earlier traffic stop by the California Highway Patrol (CHP). The plaintiffs did not know of the earlier traffic stop (and the potential claim against CHP) until the driver’s preliminary hearing seven months after the accident. Thus, “[w]ithout this information, plaintiffs reasonably did not have any motivation to retain counsel.” (221 Cal.App.4th at p. 462.) And Barragan was a case in which the plaintiff’s physical disability constituted excusable neglect. (184 Cal.App.4th at p. 1384.) Neither case supports Petitioner’s case here.

Next, Petitioner argues that if he consulted an attorney “only recently and that counsel acted with reasonable diligence in prosecuting the late claim, such application would ordinarily suffice.” Petitioner’s cited case is unavailing. Clark v. City of Compton (1971) 22 Cal.App.3d 522, 525 involved plaintiffs who retained counsel “one week after the accident,” but who failed to file a claim; plaintiffs then reached out to another attorney almost 11 months later. The Court of Appeal affirmed the denial for relief because the first attorney’s negligence was imputed to plaintiffs. (Id. at pp. 528-529.) Clark relied on Morill v. Santa Monica (1963) 223 Cal.App.2d 703, 707, which involved a minor, and who was allowed “one hundred days plus one year within which to file his petition.” Thus, the appellate court interpreted the statute liberally to “protect minors” and not to “penalize minors or to deprive them of their rights in case where adults may have slept on their rights.” (Id. at p. 708; see also Gov. Code, § 946.6, subds. (c)(2)–(3) [providing relief for victims who were minors during the claim-filing period].) Neither case is relevant.

Petitioner next contends that he did not have “prompt actual knowledge of a claim on his behalf in November 2021.”[2] To the extent that he is arguing some sort of delayed discovery rule, the argument fails. A loss of consortium claim arises when the injury resulting in the loss of consortium occurs. (Priola v. Paulino (1977) 72 Cal.App.3d 380, 390-391.) Indeed, Petitioner was well aware of his wife’s injuries because he was already caring for her and seeking counseling. (Posey Decl., ¶ 11.)

Even if Petitioner retained counsel, there is no evidence to show that the attorney’s conduct was reasonable to constitute excusable neglect.

The evidence suggests that Petitioner was already in contact with counsel given that his wife retained the same firm for her injuries in December 2021. (Posey Decl., ¶ 7.) However, counsel fails to provide any information on the reasonableness of her investigation efforts. It is reasonable to presume that counsel was aware of Rodriguez’s marital status. If so, the Court is dubious that an experienced firm knew enough to file a claim for Rodriguez in May 2022, but was unaware of a loss of consortium claim for her husband. In part because Petitioner Bark filed no declaration himself, there are no details as to the discussions at the meetings, such as whether the firm knew Rodriguez was married and whether she lived together with Petitioner. Bark had the burden to submit facts from which the Court can determine whether the delay in asserting a claim for loss of consortium was reasonable under the circumstances.

Petitioner has not shown any inadvertence or surprise, and there is no mistake of law because this issue is not complex and debatable.

In his reply, Petitioner also argues that he was “mistaken that he would need counsel in addition to his wife” and “was surprised by the true nature of his wife’s condition.” He provides no argument or legal support for these conclusory statements. For example, “surprise” refers to a situation in which a “party to a cause is unexpectedly placed, to his injury, without any default or negligence of his own [citation], which ordinary prudence could not have guarded against.” (McGuire v. Drew (1890) 83 Cal.225, 229.) Petitioner makes no argument how he was injured by the “true nature of his wife’s condition.”

Finally, contrary to Petitioner’s assertion, this was not a “complex and debatable” issue. In California, a spouse has a cause of action for loss of consortium when there is a negligent or intentional injury to the other spouse by a third party. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408.) The claim arises at the time of injury to the other spouse, even if the other spouse’s injuries later worsen. (See Priola v. Paulino, supra, 72 Cal.App.3d 380, 391.) This was not a complex issue involving the interpretation of a statute or ambiguity in the meaning of certain words. (See, e.g., Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136-1137; Ontario v. Superior Court of San Bernardino County (1970) 2 Cal.3d 335, 345-346.) Petitioner, through his counsel, admitted that he was aware of his wife’s injuries throughout the claim-filing period. (See Posey Decl., ¶ 11.) Therefore, this matter is, unfortunately, an instance of “ignorance of the law coupled with negligence in ascertaining it.” (A & S Air Conditioning v. John J. Moore Co. (1960) 184 Cal.App.2d 617, 620.)

The Court acknowledges the remedial nature of the statute and that “ ‘any doubts which may exist should be resolved in favor of the application.’ ” (Ebersol, supra, 35 Cal.3d at p. 435.) However, Petitioner does not meet his burden to offer evidence of diligent efforts to retain counsel during the claim-filing period. Accordingly, the petition is denied.

[1] The mandatory relief of Code of Civil Procedure section 473 for attorney “affidavits of fault” does not apply to Government Code section 946.6. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 62.)

[2] Petitioner cites Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432, 439, to argue that circumstances that would “trap the unwary” may constitute excusable neglect. That case involved an insurance carrier’s adjuster failing to provide notice of the claim requirement to the insured. The Court of Appeal found excusable neglect based on estoppel principles: because the plaintiff and the adjuster were engaged in settlement talks within the claim-filing period and the entity had actual notice of the claim. (180 Cal.App.3d at p. 439.) No similar scenario exists here. Petitioner’s contention that a worker’s compensation doctor failed to diagnose his wife (which is not supported by a declaration) does not establish estoppel against the City.