Judge: Curtis A. Kin, Case: 23STCP02409, Date: 2023-10-26 Tentative Ruling

Case Number: 23STCP02409    Hearing Date: October 26, 2023    Dept: 82

PETITION FOR RELIEF FROM CLAIMS PRESENTATION REQUIREMENT OF GOVERNMENT CODE § 945.4

Date:               10/26/23 (1:30 PM)

Case:               Gerardo Gonzalez v. City of Cerritos (23STCP02409)

TENTATIVE RULING:

Petitioner Gerardo Gonzalez’s Petition for Relief from Claims Presentation Requirement of Government Code § 945.4 is DENIED.

On April 4, 2022, petitioner was allegedly injured while working at the City of Cerritos Corporate Yard. (Gonzalez Decl. ¶ 3; Golshani Decl. ¶ 3 & Ex. 3.) 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 October 4, 2022 to present a claim to respondent City of Cerritos. No such timely claim was presented to the City.

Instead, petitioner submitted a written application to respondent for leave to present a late claim. (CCP §§ 911.4, 911.6; Golshani Decl. ¶ 1 & Ex. 1.) That claim was denied on May 3, 2023. (Golshani Decl. ¶ 2 & Ex. 2.) Petitioner brings the instant petition seeking relief under Government Code § 946.6 to present a late claim. The instant petition was filed on July 12, 2023, within six months of May 3, 2023, in accordance with 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.” (Id.)

Petitioner maintains that he initially hired the Law Offices of Jacob Emrani (“Emrani”) to handle his workers compensation claim. (Gonzalez Decl. ¶ 4.) Emrani purportedly never identified a government claim during the six-month period to present a claim under Government Code § 911.2. (Ibid.) Petitioner claims that only after discharging Emrani and hiring a different attorney did petitioner discover the possibility of a claim against respondent City of Cerritos. (Ibid.)

“Failure to discover the alleged basis of the cause of action in time is…not a compelling showing in the absence of reasonable diligence exercised for the purpose of discovering the facts.” (Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 314.)  Petitioner hired former counsel Emrani in mid-May 2022 (Pet. at 7:4-5), which was many months before the October 4, 2022 deadline to file a claim with the City of Cerritos. “[A] late claimant who seeks relief under section 946.6 may be barred by inexcusable delay by counsel.” (Hasty v. County of Los Angeles (1976) 61 Cal.App.3d 623, 626, citing Black v. County of Los Angeles (1970) 12 Cal.App.3d 670, 674-77.)  Here, petitioner does not demonstrate that former counsel was reasonably diligent in discovering the available claims against respondent. Petitioner does not provide a declaration from any representative of former counsel to demonstrate what efforts were made between May 2022 and October 2022 to ascertain the claims available against respondent. Petitioner does not state what information former counsel had concerning the incident, which could inform the Court on the reasonableness of any delay by former counsel to discover the claims available against respondent.

Further, petitioner does not provide any details concerning attempts he made to follow up with former counsel regarding the status of his case. (Golshani Decl. Ex. 1 & Ex. 1 at ¶ 3 [“Claimant’s former counsel began working on this case on an unknown time, the previous counsel has failed to respond to any inquiries into the [sic] their work on the matter”].) Instead, petitioner states that “after a while,” he “got the feeling that [his] case was not being attended to properly.” (Gonzalez Decl. ¶ 4.) “Where the lateness of the claim is attributable to the failure of the claimant or his counsel to conduct a reasonably prudent investigation of the circumstances of the accident, relief from the claims filing statute is not available.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1296.)

The Court notes that, where “the attorney's neglect is in an extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence,” the neglect of counsel is not imputed on the client. (Ibid.) However, as discussed above, petitioner does not provide sufficient information for the Court to determine that former counsel’s neglect amounted to positive misconduct or that petitioner was free from any negligence, including efforts (or lack thereof) to follow up with former counsel regarding the status of the case.

Petitioner also argues that his late claim should be allowed because he purportedly was incapacitated after his April 4, 2022 fall due to resulting injuries. (Gonzalez Decl. ¶ 3; Pet. at 7:1-3.) It is true the Court “shall relieve a petitioner” who complied with Government Code § 911.4 from the requirements of Government Code § 945.4 if the petitioner failed to timely present the claim due to physical incapacity. (Gov. Code § 946.6(c)(5).) Here, however, petitioner’s claimed physical incapacity is not determinative. Petitioner does not present meaningful evidence to demonstrate physical incapacity prevented him from pursuing relief for the fall and making a timely claim.  To the contrary, petitioner was able to retain counsel a little more than one month after the incident.

Lastly, even crediting petitioner’s assertion that he believed workers compensation was his only remedy, such belief is unavailing. In Powell v. City of Long Beach (1985) 172 Cal.App.3d 105, cited by petitioner, the appellant did not seek counsel until after the presentation period because he had sought and obtained workers compensation benefits, which he believed were his sole remedy. (Powell, 172 Cal.App.3d at 110.) The Court of Appeal found that the appellant “had no reason to seek advice of counsel and, in fact, was acting in just the manner designed by the workers' compensation laws.” (Ibid.) Here, by contrast, petitioner had counsel during the presentation period. As is discussed above, any inexcusable neglect by former counsel is imputed to petitioner. (Clark v. City of Compton (1971) 22 Cal.App.3d 522, 528.)

In sum, there is no explanation why counsel delayed in pursuing petitioner’s claim until 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.)

The petition is DENIED.