Judge: Douglas W. Stern, Case: 23STCV20372, Date: 2023-12-29 Tentative Ruling

Case Number: 23STCV20372    Hearing Date: December 29, 2023    Dept: 68

ABET Home Security Services, Inc. vs. City of Los Angeles, et al., 23STCV20372

Motion for Relief Pursuant to CCP § 473(b)/Petition for Relief Pursuant to Govt. Code §§ 945.4 and 945.6 Re: Failure to Timely File Suit After Government Claim Rejected

Moving Party: Plaintiff ABET Security Services, Inc.

Motion

Plaintiff ABET Security Services, Inc. (Plaintiff) has filed a motion for relief pursuant to CCP § 473(b) and Govt. Code §§ 945.4 and 945.6.  However, as Defendant City of Los Angeles (Defendant) points out in its opposition, the relief that Plaintiff is seeking is most unclear.

This actions arises from a contract between Plaintiff and Defendant whereby the Plaintiff provided security services to Defendant.  Plaintiff alleges that Defendant failed to pay for patrol supervisor services between 2017 and 2022.  The total amount claimed is $805,527.92 for 24,284 hours of unpaid labor.

Plaintiff alleges that on July 12, 2022 it filed a claim with Defendant Los Angeles.  No rejection of the claim was served.  Next Plaintiff filed an action in federal court on October 21, 2022.  It was dismissed on May 12, 2023.  The case filed in this court was filed in August 2023.

CCP § 473(b) provides that “[t]he court may, upon any terms as may be just, relieve a party … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Bold added.)  The only judgment Plaintiff suffered is a federal court judgment entered on May 12, 2023, that dismissed Plaintiff’s claims with prejudice.  Federal court judgment may only be reversed on appeal or modified or set aside in the court of rendition. (Martin v. Martin (1970) 2 Cal.3d 752, 763.)  Even if this Court could allow Plaintiff relief from a federal court judgment, CCP § 473(b) requires that relief be sought within six months.  Plaintiff filed this motion on November 14, 2023, two days after the six months was up.

Govt. Code § 945.4 states that “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board…”

That section would be inapplicable because Plaintiff presented a government claim on July 12, 2022, followed by an amended claim on November 9, 2022.  Plaintiff is not seeking relief for failure to file a government claim.

Govt. Code § 945.6 provides that a party has six months to bring a civil action after receiving written rejection of a claim and two years from accrual of a cause of action to bring a civil action if the party does not receive written notice of rejection.  It is unclear how this would apply.  Plaintiff did not receive a written notice of rejection, so Plaintiff would have two years from accrual of the cause of action to file this action.  However, Plaintiff is not asking for relief for failure to file the action within two years.  It unclear what relief, if any, Plaintiff is seeking.

Order

Plaintiff’s motion for relief is DENIED WITHOUT PREJUDICE for failure to request actionable relief.

(If Plaintiff files a further motion seeking relief for some judgment, dismissal or order, or for some untimely action, Plaintiff must clearly identify the precise judgment, dismissal or order or other action implicated.)