Judge: Curtis A. Kin, Case: 23STCP02632, Date: 2023-12-12 Tentative Ruling

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 23STCP02632    Hearing Date: December 12, 2023    Dept: 82

PETITION FOR LEAVE TO FILE ACTION

Date:               12/12/23 (9:30 AM)

Case:               Mariaelena Rodriguez Estrada v. County of Los Angeles et al. (23STCP02632)

TENTATIVE RULING:

Petitioner Mariaelena Rodriguez Estrada’s Petition for Leave to File Action Against the City of Los Angeles is DENIED.

On June 7, 2022, petitioner was allegedly injured due to falling on an uneven and cracked sidewalk in the City of Los Angeles (“City”) (Cho Decl. ¶ 4 & Ex. A.) 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 December 7, 2022 to present a claim to respondent City.

Petitioner did not file a claim with the City until January 13, 2023. (Cho Decl. ¶ 5 & Ex. B.) On January 26, 2023, the City notified petitioner that no action was taken on the claim because it was untimely presented. (Cho Decl. ¶ 6 & Ex. C.)

Petitioner submitted a written application – dated March 14, 2023 – to respondent for leave to present a late claim. (CCP §§ 911.4, 911.6; Cho Decl. ¶ 6 & Ex. C.) The claim was denied on April 18, 2023. (Cho Decl. ¶ 7 & Ex. D.) Petitioner files this petition seeking relief under Government Code § 946.6 to present a late claim. The instant petition was filed on July 25, 2023, within six months of April 18, 2023, pursuant to Government Code § 946.6(b).

To obtain relief, petitioner must demonstrate 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.)

In support of petitioner’s application for leave to present a late claim, petitioner’s counsel made the following averments: (1) petitioner had been “unresponsive” with her counsel for an “extensive period of time,” thereby “making it difficult to determine whether or now [she] wanted to pursue this personal injury claim”; (2) an “attorney switch” occurred around the six-month deadline, and the new attorney “was not able to contact [petitioner] until after the statute had elapsed”; and (3) petitioner does not speak English, and counsel had to contact petitioner’s son, which delayed the obtaining of necessary information to file a claim with the City of Los Angeles. (Cho Decl. ¶ 6 & Ex. C at ¶¶ 1-3.) 

The foregoing averments do not demonstrate reasonable diligence.

With respect to the first ground, neither petitioner nor her counsel provided any reasons why petitioner did not respond to counsel’s communications. Consequently, it is just as likely, if not more so, on this showing that petitioner’s delay in presenting a claim after the six-month period under Government Code § 911.2 had expired was entirely unreasonable.

With respect to the second ground, “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.) Even if the attorney handling the instant matter changed “around the six-month deadline,” there is still no explanation of the prior handling attorney’s efforts, if any, to present the claim within the six-month period provided by Government Code § 911.2. Further, if the prior handling attorney was attempting to ascertain whether petitioner wanted to pursue a claim against the City during that time period (Cho Decl. ¶ 6 & Ex. C at ¶ 1), petitioner has provided no explanation for why she did not respond to counsel’s communications, as noted above.

With respect to the third ground, even if counsel needed to contact petitioner’s son to prepare the claim, counsel did not provide any declaration indicating their attempts to contact the son prior to the expiration of the six-month period to present the claim, or any other efforts made to procure the relevant information from petitioner due to language barriers. Accordingly, petitioner has not demonstrated why any delay in obtaining information from petitioner’s son was reasonable.

In sum, petitioner fails to explain sufficiently why petitioner or counsel delayed in presenting petitioner’s 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.)

The petition is DENIED.