Judge: Curtis A. Kin, Case: 24STCP01859, Date: 2024-11-21 Tentative Ruling

Case Number: 24STCP01859    Hearing Date: November 21, 2024    Dept: 86

PETITION FOR ORDER FROM

RELIEF FROM CLAIM STATUTE

Date:               11/21/24 (1:30 PM)

Case:               Ricardo Jose Nunez v. City of Montebello (24STCP01859)

TENTATIVE RULING:

Petitioner Ricardo Jose Nunez’s Petition for Relief from Government Code § 945.4 is DENIED.

According to petitioner, on June 23, 2023, at or near the intersection of Duncan Ave. and 6^th St. in Los Angeles, while petitioner was waiting to make a left turn, a government-owned vehicle unsafely passed petitioner and violently collided into petitioner’s vehicle. (Fradkin Decl. ¶ 14 & Ex. 1.) Petitioner alleges he sustained injuries. Petitioner filed claims with respondents City of Montebello and the County of Los Angeles. After the deadline to file a government tort claim had passed, petitioner discovered that the deadline to file the claims had passed. (Fradkin Decl. ¶¶ 7, 9. 10.)

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 23, 2023—the longer of six calendar months or 182 days—to present a claim to respondents. (Gov. Code § 911.2; Munoz v. State of California¿(1995) 33 Cal.App.4th 1767, 1776; Jiminez v. Chavez (2023) 97 Cal.App.5th 50, 58.)¿

On April 17, 2024, petitioner submitted written applications to respondents for leave to present a late claim. (CCP §§ 911.4, 911.6; Fradkin Decl. ¶ 14 & Ex. 1.) Petitioner asserts that the applications were deemed rejected on June 1, 2024, which was 45 days from submission. (Petition at 5:8-9.) Respondents do not dispute the assertion. Accordingly, it appears that respondents failed to respond to the application within 45 days of submission. (Gov. Code § 911.6(c) [“If the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day….”].)

Petitioner files this petition seeking relief under Government Code § 946.6 to present a late claim. The instant petition was timely filed on June 7, 2024, within six months of June 1, 2024, as is required by 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.)

Petitioner hired counsel the day after the subject incident. (Fradkin Decl. ¶¶ 4, 5.) Petitioner was diligent in hiring counsel. Irrespective of whether petitioner himself was diligent in retaining counsel after the incident, however, petitioner does not demonstrate that his counsel was reasonably diligent in discovering the available claims against respondents. “[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.) “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, 82 Cal.App.4th at 1296.) 

Counsel avers that his office “immediately started working in investigating the incident and obtaining necessary information.” (Fradkin Decl. ¶ 8.) Other than that conclusory statement, counsel does not state what work was done on petitioner’s case from June 24, 2023 to December 23, 2023.  Counsel fails to explain what, if any, reasonably prudent investigation was conducted such that counsel might have discovered that the six-month government claim deadline had not been properly calendared. For example, counsel does not state what, if any, efforts he made to obtain documents from petitioner before the claim deadline passed. (Fradkin Decl. ¶ 9.) Indeed, counsel admits that he did not procure from petitioner the traffic collision report until sometime after petitioner had obtained new counsel on February 6, 2024, which was after the claim deadline had passed. (Fradkin Decl. ¶ 9.) Simply put, petitioner does not establish reasonable diligence in discovering that government claims had to be filed by December 23, 2023.

Contrary to petitioner’s assertion in reply, petitioner may not rely on an attorney affidavit of fault, like the type filed pursuant to CCP § 473(b), to obtain mandatory relief from government claim deadlines. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 62 [“Do the recent amendments to Code of Civil Procedure section 473, requiring a trial court to vacate a default, default judgment, or dismissal if the aggrieved party’s attorney submits a timely application for relief ‘in proper form, ... accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect,’ apply to a motion under Government Code section 946.6 for relief from the claim-filing requirement under the Government Tort Claims Act? No.”].)

For the foregoing reasons, petitioner 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 has not demonstrated the necessary mistake, inadvertence, surprise, or excusable neglect to obtain leave to file a late claim, the question of whether respondent would be prejudiced by the grant of relief does not matter. (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.