Judge: David B. Gelfound, Case: 24CHCP00349, Date: 2024-09-30 Tentative Ruling

Case Number: 24CHCP00349    Hearing Date: September 30, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

PETITION FOR LEAVE TO PRESENT A LATE CLAIM

Motion filed: 9/4/24

MOVING PARTY: Petitioner Andranik Movsisyan

RESPONDING PARTY: Respondents County of Los Angeles and Cheryl Lynn Custard

NOTICE: OK.

RELIEF REQUESTED: An order granting Petitioner’s Petition for Leave to Present a Late Claim

TENTATIVE RULING: The motion is DENIED.

BACKGROUND

            Petitioner Andranik Movsisyan (“Petitioner” or “Movsisyan”) seeks leave to present a late claim against Respondents County of Los Angeles and Cheryl Custard (“Custard”) (collectively, “Respondents”), alleging liabilities for injuries sustained by Petitioner on September 8, 2023.  

            On September 4, 2024, Petitioner filed the instant Petition for Leave to Present a Late Claim (the “Petition”). Subsequently, Respondents filed their Opposition to the Petition. No Reply papers have been received by the Court.

ANALYSIS

Government Code section 911.2(a) states that “a claim relating to a cause of action for death or for injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action.”  If written notice of the board’s action or inaction (which amounts to a rejection) on the claim is tendered pursuant to section 913, the claimant has six months from the time the written notice is personally delivered or deposited in the mail to file suit against the public entity.  (Gov. Code § 945.6(a)(1).)

If a claimant fails to make a claim within six months pursuant to Government Code section 911.2, the claimant may make a written application to the board of the public entity for permission to present a late claim within a reasonable time but not to exceed one year from the accrual of the cause of action.  (Gov. Code § 911.4(a)-(b).)  If, pursuant to the provisions of Government Code section 911.6, the board denies the application to present a late claim, the claimant may petition the Court for relief from the requirements of Government Code section 945.4.  (Gov. Code § 946.6(a).)

Government Code section 946.6(b) requires that the petition to the court must show each of the following: (1) that the late claim application made to the board was denied or deemed denied; (2) the reason for failure to present the claim within six months of the accrual of the cause of action; and (3) the contents of the claim as required by Government Code section 910.  The petition must be filed within six months after the application to present a late claim to the board was denied or deemed to be denied.  (Ibid.) 

The Petitioner bears the burden of proving by a preponderance of the evidence that the late-claim application was made within a reasonable time and that one of the statutory requirements under Government Code section 946.6(c) was met.  (Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1410.) 

Under Section 946.6, relief may be granted when the petitioner establishes that the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the claim filing requirements. (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1379-1380 quoting Section 946.6, subd. (c)(1).)

Under section 946.4(e), the trial court must make its determination upon the petition, “relying upon any affidavits in support of, or in opposition to, the petition and any additional evidence received at hearing on the petition.”  (Ebersol v. Cowan (1983) 35 Cal.3d 427, 431.)

“A copy of the petition and a written notice of the time and place of hearing shall be served before the hearing as prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure on (1) the clerk or secretary or board of the local public entity, if the respondent is a local public entity[...]” (Gov. Code ¶ 946.6(d).)

A.    Petition for Leave to Present a Late Claim

1)      Accrual of Petitioner’s Cause of Action

“As a general rule, a statute of limitations accrues when the act occurs which gives rise to the claim . . . that is, when ‘the plaintiff sustains actual and appreciable harm.’  Any ‘manifest and palpable’ injury will commence the statutory period.”  (Costa Serena Owners Coalition v. Costa Serena Architectural Committee (2009) 175 Cal.App.4th 1175, 1195-96.) 

Accordingly, Petitioner’s cause of action accrued on September 8, 2023, when Petitioner sustained “the loss” (Pet. at p. 1) and Custard provided her personal auto insurance to Petitioner. (Ibid.)

2)      Petitioner’s Fails to Meet the Burden of Proving One of the Statutory Requirements under Government Code Section 946.6, subdivision (c)

Under Government Code section 946.6, subdivision (c), the court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable:

(1)   The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4.

(Gov. Code, § 946.6, subd. (c).)

“Excusable neglect has been defined as neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1782.) It “is not shown by the mere failure to discover a fact until it is too late; the party seeking relief must establish that in the exercise of reasonable diligence, he failed to discover it.” (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44.) “The total failure to investigate and take action to protect plaintiff’s rights was not reasonable under the circumstances.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1294.) 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. (Leake v. Wu (1976) 64 Cal.App.3d 668, 673.) (Italics in original.)

The Petitioner bears the burden of proving by a preponderance of the evidence that the late-claim application was made within a reasonable time and that one of the statutory requirements under Government Code section 946.6(c) was met.  (Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1410.) “The court shall make an independent determination upon the petition.  The determination shall be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.”  (Gov. Code, § 946.6, subd. (e).)

Here, Petitioner claims that he initially filed a claim with Respondent Custard’s personal auto insurer, Liberty Mutual Insurance Company, and later was informed that Custard was driving during the scope of employment and the claim was transferred to Carl Warren and Company Claims Management and Solutions (“Carl Warren”), the insurance company for Custard’s employer. (Pet. at p. 2.) Subsequently, Petitioner was informed by Carl Warren on March 5, 2024, that the claim needed to be filed with the Board of Supervisors due to the fact that it was a county loss. (Ibid.)

In the Opposition, Respondents argue that Petitioner has not provided any evidence to support these claims, particularly regarding the timing of his discovered that Custard was driving during the course and scope of her employment, details of unspecified attempts to contact Carl Warren, or any investigation on this information in pursuit of his claim. (Opp’n. at p. 5.) They argue that Petitioner failed to make a diligent effort to pursue his claim from the date of the incident until March 5, 2024. (Ibid.)

The Court notes that the Petitioner has not submitted affidavits or other evidence, either attached to the Petition or separately filed, thereby failing to present evidence to allow the Court to make an independent determination of any statutory requirements for relief, pursuant to Government Code section 946.6, subdivision (e). (See also Ganter v. Ganter (1952) 39 Cal.2d 272, 278 [The matters set forth in the memoranda of points and authorities are not evidence and cannot provide the basis for the granting of the motion. We do not consider evidence contained in documents filed here which the parties failed to present as evidence to the trial court.])

Petitioner does not demonstrate that reasonable diligence was exercised to investigate the County of Los Angeles’s potential liability and claim requirement after being informed that Custard was driving within the scope of employment. Additionally, Petitioner has not provided evidence of the filing of the original claim that was allegedly not received by the Board of Supervisors. Therefore, the Court finds that Petitioner has failed to meet his burden of proving the existence of mistake, inadvertence, surprise, or excusable neglect. (Gov. Code, § 946.6, subd. (c)(1).) These claims are unsupported by evidence. By contrast, the Court finds Respondent’s argument persuasive.

            Based on the foregoing, the Court DENIES the Petition.

CONCLUSION

Petitioner Andranik Movsisyan’s Petition for Leave to Present a Late Claim is DENIED.

Petitioner to give notice.