Judge: Curtis A. Kin, Case: 23STCP01773, Date: 2024-02-06 Tentative Ruling

Case Number: 23STCP01773    Hearing Date: February 6, 2024    Dept: 82

PETITION FOR ORDER

FOR RELIEF FROM CLAIM STATUTE

Date:               2/6/24 (1:30 PM)

Case:               Whitney Williams v. City of Los Angeles et al. (23STCP01773)

TENTATIVE RULING:

Petitioner Whitney Williams’ Petition for Order from Relief from Claim Statute is DENIED.

On February 23, 2022, petitioner Whitney Williams was injured when she tripped and fell on an uneven portion of the roadway and/or walkway. (Williams Decl. ¶ 2.) A claim relating to a cause of action for personal injury must be presented to the public entity no later than six months after the accrual of the cause of action.¿ (Gov. Code § 911.2; Munoz v. State of California¿(1995) 33 Cal.App.4th 1767, 1776.)¿Accordingly, petitioner had until August 23, 2022 to present a claim to respondents City of Los Angeles, County of Los Angeles, and State of California.

Petitioner did not file a claim with or seek permission to file a late claim from respondents until December 2, 2022. (Fradkin Decl. ¶¶ 5-7 & Exs. 1-3.) Petitioner’s claims were denied by the City, County, and State in December 2022 and January 2023. (Fradkin Decl. ¶¶ 8-10 & Exs. 4, 5.)

Petitioner files this petition seeking relief under Government Code § 946.6 to present a late claim. The instant petition was filed on May 24, 2023, within six months of December 2022 and January 2023, pursuant to Government Code § 946.6(b).

Petitioner is required to demonstrate that the failure to present a claim under Government Code § 945.4 was “through mistake, inadvertence, surprise, or excusable neglect….” (Gov. Code § 946.6(c)(1).) “The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief…. There must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) “The party seeking relief based on a claim of mistake must establish he was diligent in investigating and pursuing the claim [citation] and must establish the necessary elements justifying relief by the preponderance of the evidence.” (Ibid.)

In support of petitioner’s application for leave to present a late claim, petitioner avers that she understood that claim forms must be submitted within six months of injury, i.e., August 23, 2022. (Williams Decl. ¶¶ 2-4.) Petitioner calendared the deadline for October 23, 2022 – two months too late. (Williams Decl. ¶ 3.) When petitioner retained counsel, counsel discovered that petitioner had put down the wrong date to submit the claim forms. (Fradkin Decl. ¶ 3.)

The foregoing averments are insufficient to establish reasonable diligence.

Petitioner does not provide any averments regarding what actions she took to pursue her claims against respondents within the six-month period from February 23, 2022, the date of her injury, to August 23, 2022. From the declarations, it appears that she retained counsel after August 23, 2022. (See Fradkin Decl. ¶ 3 [“At the time of retention, it was discovered that WHITNEY had miscalendared the date for the six month deadline for the government claims to the CITY OF LOS ANGELES, COUNTY OF LOS ANGELES and STATE OF CALIFORNIA”].)

Even if petitioner had made a calendar error, petitioner did not indicate what efforts she made to pursue her claims, including consulting with and/or retaining an attorney, from August 23, 2022 to October 23, 2022, the date petitioner believed to be the deadline to submit her claims to respondent. Even if her calendar error could be excused, petitioner has not demonstrated what efforts she made to retain an attorney within the period she believed she had to submit her government claims.

Moreover, even assuming petitioner had until October 23, 2022 to submit her claims as she contends she mistakenly believed, petitioner does not explain why the claims were not submitted until December 2, 2022. Because petitioner does not state when she retained counsel, it is unclear whether petitioner or counsel delayed in preparing the claims and whether such delay occurred after reasonable diligence.

In sum, petitioner fails to meaningfully explain why she delayed in presenting her claim until after the presentation period set forth in Government Code § 911.2. Petitioner consequently does not demonstrate the diligence necessary to obtain relief under Government Code § 946.6. While there is a “general policy favoring trial on the merits,” it “cannot be applied indiscriminately so as to render ineffective the statutory time limits.” (Department of Water, 82 Cal.App.4th at 1293.)  Because petitioner does not demonstrate the necessary mistake, inadvertence, surprise, or excusable neglect to obtain leave to file a late claim, her contention that respondents would not be prejudiced by the grant of relief here is irrelevant.  (Id. at 1297 [“The public entity has no burden of establishing prejudice arising from the failure to file a timely claim until after the party seeking relief has made a prima facie showing of entitlement to relief”].)

The petition is DENIED.