Judge: Christian R. Gullon, Case: 24PSCP00264, Date: 2024-08-12 Tentative Ruling

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Case Number: 24PSCP00264    Hearing Date: August 12, 2024    Dept: O

Tentative Ruling

PLAINTIFFS’ PETITION FOR ORDER PERMITTING A LATE CLAIM AGAINST A GOVERNMENTAL ENTITY [GOV. CODE SEC. 946.6 is DENIED, namely because the failure to contact an attorney (even if grieving) and ignorance of possible facts/legal theories do not qualify as excusable neglect.

Background

This is a petition for an order permitting a late claim against a governmental entity pursuant to Government Code section 946.6.

On June 5, 2024, Plaintiffs/Petitioners EMERITA BARRAGAN, BRITTANY BARRAGAN, CRYSTAL BARRAGAN, RAFAEL BARRAGAN III, and ESTATE OF RAFAEL BARRAGAN JR. filed the instant petition against Defendants/Respondents MOUNT SAN ANTONIO COMMUNITY COLLEGE DISTRICT; MT. SAN ANTONIO COLLEGE DBA MT. SAC; and KNIGHTSCOPE, INC.

On July 30, 2024, MOUNT SAN ANTONIO COMMUNITY COLLEGE DISTRICT and MT. SAN ANTONIO COLLEGE (“Mt. SAC”) filed an opposition.[1]

On August 5, 2024, Petitioners filed their reply.

Legal Standard

Pursuant to the claim presentation requirement of the Government Claims Act (“GCA”), “[b]efore suing a public entity, the plaintiff must present a timely written claim for damages to the entity.” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208 (Shirk); see also Govt. Code section 945.4 [presentation of a timely claim is a condition precedent to sue a public entity].) Pursuant to Government Code section 911.2 section (a), the claim for a wrongful death must be made no later than six months after the accrual of the cause of action. However, if the injured party fails to file a timely claim, they can rely upon Government Code section 946.6, which is a remedial statute intended to hear cases on their merits whenever possible. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1778.)[2]

There are two requirements to the statute. First, the application must be submitted to the public entity “within a reasonable time not to exceed one year after the accrual of the cause of action.” (§911.4, subd. (a), emphasis added.) (Here, one year after the accrual of the COA (death happened on December 1, 2022) would be December 1, 2023—Petitioners filed their joint application to Mt. SAC on December 1, 2023.) Second, the application must state the reason for the delay in presenting the claim. (Ibid.) The reasons, which are set forth in 946.6 subsection (c), subdivision (1) are that the failure to present a timely claim “was through mistake, inadvertence, surprise, or excusable neglect.” According to Department of Water & Power v. Superior Court (2000) 82 Cal. App. 4th 1288, 1293 (DWP), the petitioner must demonstrate this excusable neglect by “a preponderance of the evidence.” (emphasis added.)  

An application is deemed denied by operation of law 45 days after submission to the public entity if that public entity declines to act on the application. (Cal. Gov. Code §911.6(c).) Subsequent to denial of an application, if a petitioner wishes to continue to pursue the public entity, then he must file a § 946.6 petition (“Petition”) with the Court within six (6) months after the application is denied. (Cal. Gov. Code § 946.6.) (Here, the last claim was denied on January 11, 2024, meaning this petition was to be filed no later than July 11, 2024, meaning the June 6, 2024 filing was timely.)[3] If the petitioner meets all requirements, the court shall grant the petition. (946.6(c).)

Discussion

Plaintiffs (spouse and children of decedent) move for relief from the untimely filing in presenting their claims related to the death of Decedent Rafael Barragan Jr (“decedent”). Decedent, a tram driver for Mt. SAC, was on campus when he was intentionally struck by a vehicle and subsequently stabbed by a former aggrieved student and employee of Mt. SAC. Plaintiffs explain that prior to the expiration of the six-month period, they “believed that their remedies against MT. SAC were limited to the workers’ compensation system because Decedent was in the course and scope of his employment with MT. SAC at the time of his death.” (Petition p. 4 of 10 of PDF:18-21.) They did not learn that the assailant was known by Mt. SAC to have a history of threats against Mt. SAC and its employees (Petition p. 5:1-4) until “approximately one week prior to the one-year deadline to file an Application for Leave to Present Late Claim and Claims with MT SAC, Petitioners contacted counsel, Richard Alpers of Alpers Law Group, regarding potentially representing them with respect to their potential wrongful death claims related to Decedent’s death.” (Petition p. 5:21-24, emphasis added.)[4]

Preliminary, the reason as to excusable neglect changes between the petition and the reply.[5] The reason set forth in the petition is that Plaintiffs “did not know or have reason to know of the grounds for liability against Mt. SAC or the identities of Mt. SAC’s employees.” (Petition p. 5:21-24.) Then, in Reply, the reason changes to the (i) “lack of available information,” (ii) “substantial mental anguish,” and (iii) “the opacity of information regarding the acts and admissions on the part of Mt. SAC.” (Reply p. 2:25-27, emphasis added.) Notwithstanding the new argument(s) raised in the Reply,[6] the court will overlook this defect because the determinative issue turns on whether Plaintiffs’ failure to consult an attorney within the six-month period qualifies as excusable neglect, a point that is thoroughly analyzed by Mt. SAC. 

For reasons to be explained below, the court determines that Petitioners have failed to make the requisite showing required by Government Code section 946.6 for late claim relief.

1.     GCA

As summarized by the court in Munoz, “[t]he intent of the Tort Claims Act is not to expand the rights of plaintiffs against governmental entities. Rather, the intent of the act is to confine potential governmental liability to rigidly delineated circumstances.” (Munoz, supra, 33 Cal.App.4th `at p. 1776.) The act serves several purposes “provid[ing] a public entity with sufficient information to enable it to investigate and evaluate the merits of claims, assess liability, and, where appropriate, to settle claims without the expense of litigation.” (Nguyen v. Los Angeles County Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 732.)

Here, Plaintiffs waited 350 days to pursue their claims.

Therefore, Plaintiffs’ (dilatory) delay does not serve the purpose of allowing Mt. SAC to investigate the claims to possibly settle the claims without the expense of litigation.

2.     Ignorance

“Excusable neglect is defined as neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances. In deciding whether the error in failing to timely file the tort claim is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim. A claimant is required to show that within the statutory time period he did not know or have reason to know that a government entity is involved.” (DWP, supra, 82 Cal.App.4th at p. 1294, internal citations omitted.)

In DWP, which Mt. SAC heavily relies upon in opposition, the plaintiff sustained an injury when he was involved in a car accident. (Id. at p. 1291.) The police report stated that the roadway where the accident occurred was flooded due to DWP work in the area. (Id. at p. 1292.) The injured party retained counsel and filed a lawsuit against the driver of the other vehicle but failed to investigate and determine the potential liability of the DWP “even though at all relevant times the information was either in the possession of or readily available to [the plaintiff] and his counsel.” (Ibid.) In denying the plaintiff’s petition for relief to file a late claim, the court observed the following:

Dzhibinyan and his counsel had easily available access to a copy of the accident report. There was no misconception about the identity of the DWP or of the facts.…Dzhibinyan and his counsel conducted no investigation whatsoever regarding DWP's potential liability and did not contact or communicate with DWP during the statutory time period. There was a total failure to act with due diligence during the claims filing period. (Id. at p. 1295, emphasis added.)

Here, Plaintiffs’ attempt to distinguish DWP from their case because there “all relevant facts were at hand in the given police report” (Reply p. 3:9-10) misinterprets the case. The police report in DWP did not provide for DWP’s liability but noted DWP’s placement at the scene. Similarly, here, the police report (presumably) provided where the incident happened--on Mt. SAC’s campus—for Petitioners to contact or communicate with Mt. SAC about the incident. In fact, Mt. SAC contends that Petitioners could not have reasonably been ignorant of the facts giving rise to their claims because the facts listed in these filings were listed almost verbatim in a December 7, 2022 Los Angeles Times article concerning the incident. (Opp. p. 9:21-23.) The reply does not address this compelling argument, but the argument nevertheless bears attention. After all, it is unclear how information that was (deliberately) withheld but needed to better understand the incident to file the government tort claim—like social media posts that were taken down (Reply p. 3:22-23)—were suddenly accessible to Plaintiffs in one week. This discrepancy further suggests that Petitioners knew enough information to file their government tort claim within the six months.

To the extent that Plaintiffs argue that any information was known to Mt. SAC, but Mt. SAC did not divulge information or make admissions, parties do not generally admit to liability. (See also DWP, supra, at p. 1925 [“[I]t is totally unreasonable to rely on another party to determine the parties with potential liability.”].) Additionally, “It is well-settled that claims statutes must be satisfied even in the face of the public entity's actual knowledge of the circumstances surrounding the claim.” (Id. at p. 734.) Moreover, even if not all facts were known, a plaintiff need not plead every fact with specificity, merely enough facts to put the public entity on notice of the claims they are defending. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

Ultimately, ignorance of the possible cause of action against the public entity is insufficient to constitute excusable neglect. (Opp. p. 9:14-17, citing Harrison v. Cnty. of Del Norte (1985) 168 Cal. App. 3d 1, 7 [“Failure to discover the alleged basis of the cause of action in time is also not a compelling showing in the absence of reasonable diligence exercised for the purpose of discovering the facts.”].)

Therefore, granting Plaintiffs’ relief would undermine the underlying purposes of the claims statutes.

3.     Failure to Contact Counsel

Next, though the general rules counsel liberal construction of the governmental tort claims statutes, a petitioner “must, at a minimum, make a diligent effort to obtain legal counsel within six months after the accrual of the cause of action.” (Munoz, supra, at pp. 1778-1779, emphasis added.) The issue was addressed in Ebersol v. Cowan (1983) 35 Cal. 3d 427. (Opp. p. 8.) There, a school bus driver petitioned for leave to file a late claim against county superintendent of schools for personal injuries which driver suffered when bitten on the hand by a student she was transporting to a work training program. (Id. at p. 428.) In reversing the trial court’s decision and finding that failure of driver to timely file claim against county constituted excusable neglect, the court observed the following:

In the present case, Ms. Ebersol acted swiftly to place her case in the hands of an attorney on the very day she was injured. Thereafter, despite repeated rebuffs by the attorneys she contacted, Ms. Ebersol continued to seek legal advice and assistance. Despite her physical pain, the progressive deformity of her left hand, her frequent and prolonged admissions to the hospital, and her frequent outpatient medical treatments, Ms. Ebersol continued her search. Clearly, Ms. Ebersol's efforts to obtain counsel during the 100-day limitation period were both tenacious and diligent. (Id. at p. 437.)

Unlike the plaintiff above who despite experiencing anguish in her own way—wherein she returned to the hospital on consecutive days, was admitted for intravenous therapy on multiple days, received outpatient care, and underwent surgery—yet she still telephoned almost ten attorneys (id. at pp. 433-434), here, Plaintiffs did not even commence the process of contacting attorneys let alone continuing the process to pursue the pertinent facts of the cause of action to identify possible defendants/legal theories.

Therefore, like the plaintiff in DWP but unlike the plaintiff in Ebersol, there was a total failure to act with due diligence during the claims filing period.

4.     Grieving

To the extent that Plaintiffs argue that the grieving process precluded them from contacting an attorney, that is unavailing as the legislature has already contemplated such instances. A claim is to be filed within six months if the claim relates 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.” (Government Code section 911.2, emphasis added.) “The statutory language itself is the most reliable indicator, so we start with the statute's words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs.” (X.M. v. Superior Court (2021) 68 Cal.App.5th 1014, 1021.)

Here, the plain language of the statute mentions death amongst damage to personal property. Had the Legislature intended to omit death, which clearly carries different emotional consequences than damage to, say personal property, from the six-month requirement, the Legislature could have easily said so. “The language the Legislature employs is the best indicator of its intent. (People v. Cook (2015) 60 Cal.4th 922, 935.) Moreover, the grieving process is different for individuals; some people take weeks, some months, some years, and for many, the process never ends. To create an exception for the grieving process would effectively allow a party to file their government claims whenever their grieving process subjectively ends. But that would circumvent the legislature’s intent behind the claims statutes which is governed by an objective, reasonable standard. (See DWP, supra, 82 Cal.App.4th at p. 1293.)

Conclusion

All in all, there is no evidence whatsoever, let alone evidence by a preponderance of the evidence, that Petitioners undertook any efforts to determine Mt. SAC’s alleged role in the subject incident within six months of decedent’s death. In fact, they did not even contact counsel until one week before their deadline to file the application and filed their application to Mt. SAC on the last day permissible, further evidencing a lack of reasonable diligence in pursuing their claims.[7] Based on the foregoing, the petition is denied.