Judge Elaine W. Mandel, Case Number: 23SMCV05319, Date: 2024-04-22 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV05319, Date: 2024-04-22 Tentative Ruling

Case Number: 23SMCV05319 Hearing Date: April 22, 2024 Dept: P

Tentative Ruling

Paolinetti v. City of West Hollywood, Case No. 23SMCV05319

Hearing Date: April 22, 2024

Plaintiff’s Petition for an Order Relieving Petitioner from Section 954.4

Plaintiff seeks relief from Government Code Section 945.4 requirements to bring a timely government tort claim against the City of West Hollywood in this trip and fall matter. Plaintiff alleges the late filing resulted from counsel’s mistake, inadvertence and excusable neglect.

A government tort claim must be presented within six months after accrual of the cause of action. Gov. Code §911.2. A plaintiff who fails to timely file a claim may seek relief for leave to present a late claim which must be presented within one year after accrual of the cause of action. Gov. Code §911.4(b). “If the public entity denies an application for leave to file a late claim, the claimant must obtain a court order for relief from the requirements of the claims act before filing suit.” City of Los Angeles v. Superior Court (1993) 14 Cal.App.4th 621, 627. A petition for such order must be filed within six months after the application is denied. Gov. Code §946.6.

The court must relieve petitioner from the requirements of¿Section 945.4¿if failure to present the claim was through mistake, inadvertence, surprise or excusable neglect, unless the public entity would be prejudiced. Gov. Code §946.6(c)(1). A party seeking relief based on a claim of mistake must establish diligence in investigating and pursuing the claim. Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.

Plaintiff alleges injury due to stepping into an unguarded tree well on December 30, 2022 (petition, para. 1). He presented a tort claim to the City of Los Angeles, which was rejected by operation of law due to the City’s failure to respond (petition, para. 2). He then presented an application to the City of West Hollywood for leave to present a late claim on September 15, 2023; it was rejected September 18, 2023.

Plaintiff’s counsel declares failure to present a timely claim was the result of his mistake, inadvertence or excusable neglect because he did not discover the actual location of the fall was in West Hollywood, not the City of Los Angeles. Halpern Decl. ¶ 6. Counsel states in August, he began searching for adjacent property owners and cross-referenced plaintiff’s photographs with Google street views and “believed that the location of the fall was within the boundaries of the City of West Los Angeles [sic].” Halpern Decl. ¶ 5. Upon discovery, he immediately prepared and presented an application for filing a late government tort claim. Id. at ¶ 7.

The City argues plaintiff failed to make a prima facie showing he is entitled to relief by failing to show a statutory excuse for failing to meet the claims deadline.

The petition was timely filed. However, plaintiff fails to carry his burden under Gov. Code §946.6(c)(1) to show the failure to timely file was based upon excusable neglect.

“The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief.” Dep’t. of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293. Such relief is only available if “failure to timely present a claim was reasonable when tested by the objective ‘reasonably prudent person’ standard,” and “the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence.” Id. “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.

The petition indicates it was only after Los Angeles’ denial by operation of law that counsel began to prepare to file suit and began an investigation to determine the exact location of the incident. Counsel’s declaration does not indicate any attempt to determine the correct location of the incident, either via a site inspection, meeting with his client or using a map until after the statutory time to file a claim had run (petition, paras. 4-6). It was only upon preparing to file the complaint that counsel began to review photographs and property information to confirm the incident location (petition, paras. 5-6, Halpern decl. paras. 5-7). There was no information provide showing why such investigation could not have been done previously, such that a timely claim could have been filed.

Such failure does not meet the “reasonably prudent person” standard; in the exercise of reasonable diligence and prudence, the true location could have and should have been determined in time to make a timely claim. Plaintiff has not shown by a preponderance of the evidence that he is entitled to relief. DENIED.