Judge James C. Chalfant, Case 22STCP01198 2022-08-09 Tentative Ruling

Petitioner Siavash Alikhanlou (“Alikhanlou”) seeks leave to present a late claim for damages to Respondent Los Angeles County Metropolitan Transportation Authority (“MTA”). The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Alikhanlou commenced this action on April 1, 2022. He seeks leave to present a late claim for damages to MTA.

The claim arises out of an accident between an MTA rail car and Alikhanlou’s vehicle on June 5, 2021. The deadline for presenting the claim to MTA was December 5, 2021.

On June 9, 2021, Cindy Padilla (“Padilla”), a case manager with Alikhanlou’s counsel the Becker Law Group, assembled the claims package, which consisted of the Claim for Damages Form and a preservation of evidence letter. On July 21, 2021, Carl Warren & Company (“Carl Warren”), sent a letter on behalf of MTA acknowledging receipt of the preservation of evidence letter without mentioning whether the Claim for Damages Form was present.

On November 12, 2021, Becker Law Group assistant Kiana Ku (“Ku”) called Carl Warren to check on the status of Alikhanlou’s claim, noting that the six-month deadline for filing a complaint was approaching. Nancy Rothman (“Rothman”) responded that the six-month window for filing a complaint would not begin until the rejection letter was sent out. She did not mention that the packet was missing the Claim for Damages Form.

Ku asked again in January 2022. Although Rotham was “out,” Carl Warren claimed it did not see the Claim for Damages Form. Calls on February 3 and 10, 2022 yielded similar results. Only on February 10, 2022 did Alikhanlou’s counsel confirmed that MTA took the position that it did not have the Claim for Damages Form.

On February 15, 2022, Alikhanlou submitted to MTA an application to submit a late claim along with a proposed Claim for Damages Form. MTA received the application on February 22, 2022 and rejected it on March 17, 2022.

Alikhanlou’s failure to present the claim for damages was due to excusable neglect did not prejudice MTA because it received the preservation of evidence letter on June 9, 2021. Alikhanlou requests that the court relieve him from the claim filing requirements of Government Code section 945.4.

2. Course of Proceedings

On April 12, 2022, Alikhanlou served Respondent MTA with the Petition, summons, and declarations supporting the Petition.

B. Applicable Law

Under the Government Claims Act (the “Act”), a plaintiff bringing suit for monetary damages against a public entity or employees thereof must first present a claim to the public entity (“government claim”) which must be acted upon or deemed rejected by the public entity. Gov. Code §§945.4, 950.2, 950.6(a). To be timely, a government claim for damages must be presented to the public entity within 6 months of the date the cause of action accrued. Gov. Code §911.2.

If a plaintiff fails to file a government claim within the 6-month period, he or she may apply to the public entity for permission to file a late claim. Gov. Code §911.4. Such an application must be presented within a reasonable time, and not later than one year after the cause of action’s accrual. Gov. Code §911.4(b).

If the public entity denies the application for permission to file a late claim, the plaintiff may file a civil petition for relief from section 945.4's requirement of timely claim presentation prior to suit. Gov. Code §946.6. The petition must be filed within six months after the application to the public entity is denied or deemed to be denied. Govt. Code §946.6(b). The petition must show: (1) that an application was made to the public entity under section 911.4 and was denied or deemed denied; (2) the reason for failure to timely present the claim to the public entity within the time limit specified in section 911.2; and (3) the information required by section 910. Govt. Code §946.6(b).

The court shall grant relief only if it finds that (1) the application to the public entity for leave to file a late claim was made within a reasonable time not to exceed one year after accrual of the claim as specified in section 911.4(b), (2) was denied or deemed denied by the public agency pursuant to section 911.6, and (3) one or more of the following is applicable: (a) the failure to timely 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; (b) the person who sustained the alleged injury, damage or loss was a minor during all of the time specified in section 911.2 for the presentation of the claim; (c) the person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time; or (d) the person who sustained the alleged injury, damage or loss died before the expiration of the time specified in section 911.2 for the presentation of the claim. Govt. Code §946.6(c).

C. Statement of Facts

The claim arises out of an accident between a MTA rail car and Alikhanlou’s personal vehicle on June 5, 2021. Shear Decl., ¶4. On June 9, 2021, Padilla assembled a claims package consisting of a completed and signed Claim for Damages Form and a preservation of evidence letter. Padilla Decl., ¶2; Shear Decl., ¶4, Ex. A. At the same time, Padilla submitted a similar package for another matter. Padilla Decl., ¶2. She believes that she included both the Claim for Damages Form and the preservation of evidence letter to MTA in this matter. Padilla Decl., ¶2. If the claims package did not include the Claim for Damages Form, it was omitted due to her mistake, inadvertence, or excusable neglect. Padilla Decl., ¶¶ 2-3.

On July 21, 2021, Carl Warren, a claims management company for MTA, sent a letter acknowledging receipt of the preservation of evidence letter and the Becker Group’s representation of Alikhanlou. Shear Decl., ¶5, Ex. B. The acknowledgement did not mention whether the Claim for Damages Form was included. Ex. B.

On November 12, 2021, Ku called Carl Warren to inquire about the status of the claims package. Ku Decl., ¶2. She spoke with Rothman and asked about the status of Alikhanlou’s claim, noting that the six-month deadline was approaching. Ku Decl., ¶2. Rothman responded that a rejection letter had not been sent out. Ku Decl., ¶2. She explained that the six-month window for filing a complaint would not begin until the rejection was sent out. Ku Decl., ¶2. Rothman did not mention that the packet was missing the Claim for Damages Form. Ku Decl., ¶2.

The Becker Law Group asked Carl Warren again in January 2022 and was advised that Rothman was “out” and that Carl Warren did not see the Claim for Damages Form in its file. Ku Decl., ¶2.

On February 3, 2022, Ku spoke with MTA Legal Department representative “Maggie,” who stated that she saw the claim and forwarded it to Carl Warren. Ku Decl., ¶3. That same date, Ku spoke with Michael Heath (“Heath”) at Carl Warren who said that he only could see the representation/preservation letter. Shear Decl., ¶7; Ku Decl., ¶3.

On February 10, 2022, Ku spoke with MTA Legal Department representative “George,” who also stated he only saw the representation/preservation letter. Ku Decl., ¶4; Shear Decl., ¶8.

On February 15, 2022, Alikhanlou submitted to MTA an Application to Submit Late Claim along with a proposed Claim for Damages Form. Shear Decl., ¶9, Ex. C. This was eighth months after the accrual of the cause of action and five days after Alikhanlou learned MTA was taking the position that the package did not include the Claim for Damages Form. Shear Decl., ¶9.

MTA received the application on February 22, 2022 and rejected it on March 17, 2022. Shear Decl., ¶¶ 10-11, Ex. D-E.

D. Analysis

1. Accrual of the Claim

A cause of action accrues at the time a claim is complete with all of its elements. Norgart v. Upjohn, (1999) 21 Cal.4th 383, 397. An exception to this usual rule exists where accrual is delayed until the plaintiff discovers, or has reason to discover, the cause of action. Id. A plaintiff has reason to discover a cause of action when he or she “has reason to at least suspect a factual basis for its elements.” Id.

The incident giving rise to the claim for damages occurred when the MTA rail car and Alikhanlou’s vehicle had an accident on June 5, 2021. Shear Decl., ¶4. The claim accrued on that date.

2. Presentation of the Claim

Section 911.2 mandates that claims based on causes of action for death and personal injury must be presented “not later than six months after the accrual of the cause of action.” To be timely, Alikhanlou was required to present their claim to the County within 6 months of June 5, 2021, or by December 5, 2021. Gov. Code §911.2.

Alikhanlou and his counsel attempted to present his claim on June 9, 2021. Padilla Decl., ¶2; Shear Decl., ¶4, Ex. A. The claims package was complete with a filled out and signed the requisite Claim for Damages Form. Padilla Decl., ¶2; Shear Decl., ¶4, Ex. A. Padilla believes she included both the Claim for Damages Form and the preservation of evidence letter to MTA. Padilla Decl., ¶2.

On February 3, 2022, Ku spoke with MTA Legal Department representative “Maggie,” who stated that she saw the claim and forwarded it to Carl Warren. Ku Decl., ¶3. Although Ku spoke with Heath at Carl Warren on that same date, and he said that he only could see the representation/preservation letter (Shear Decl., ¶7; Ku Decl., ¶3), that does not mean the Claim for Damages Form was not timely presented.

The evidence from Padilla that she “believes” the Claim for Damages Form was included and from Ku that Maggie at MTA stated that she saw “the claim” and forwarded it to MTA, while not overwhelming, is also not rebutted. The claim was timely.

3. Application for Leave to Present a Late Claim

If a plaintiff fails to file a government claim within the six-month period, he or she may apply to the public entity for permission to file a late claim. Gov. Code §911.4. Such an application must be presented within a reasonable time, and not later than one year after the cause of action’s accrual. Gov. Code §911.4(b).

The cause of action accrued on June 5, 2021 and the latest date to apply for permission to file a late claim was June 5, 2022. Shear Decl., ¶4. Alikhanlou submitted the Application to Submit Late Claim on February 15, 2022. Shear Decl., ¶9, Ex. C. The opposition does not assert that this is an unreasonable time, and this is before the one-year deadline of Gov. Code section 911.4. The application was timely.

4. The Petition is Timely

MTA denied the Application to Submit Late Claim on March 17, 2022 and Alikhanlou filed this Petition on April 1, 2022. Shear Decl., ¶11, Ex. E. The Petition is timely.

5. The failure to timely present the claim through mistake, inadvertence, surprise, or excusable neglect.

Where a petitioner contends that his claim was timely presented, he may simply file a complaint for damages alleging timely compliance with the Act. See Ngo v. County of Los Angeles, (1989) 207 Cal.App.3d 946, 950. The jury will then try the issue of claim accrual as a question of fact. Id. The court hearing a late claim petition under section 946.6 may not take from the jury the factual question of claim accrual. Id. A section 949.6 proceeding is akin to a relief from default, permitting a petitioner to proceed on the underlying suit. Id.

However, other authority provides that the issue of timely filing of a claim may be determined in a petition for relief from the claim presentation requirements of section 945.4. Santee v. Santa Clara County Office of Education, (“Santee”) (1990) 220 Cal.App.3d 702, 711 (“the issue of timely filing may be determined in a claim-relief proceeding.”). The Santee court acknowledged that this does not mean that the issue of timely filing must be determined by a claim-relief proceeding. Id. Where the date of accrual is disputed and there is a factual question of timeliness, the matter is best left to a determination by the jury in a trial for damages. Id. at 712.

That is not the situation here. Alikhanlou presents unrebutted evidence that the claim form was in the claims package. By showing that his claim was timely, Alikhanlou may file a complaint for damages.

If arguendo Alikhanlou failed to present a timely claim and the court should hear his late claim argument, he contends that his prepared a claims package which had a signed claims form in it. Padilla may have mistakenly failed to mail it with the preservation of evidence letter because she submitted a similar package to MTA at the same time for another matter. Padilla Decl., ¶¶ 2-3. Her counsel diligently contacted Carl Warren both before and after the December 5, 2021 deadline to inquire about the status of the claims package and was not informed that the claims form was missing until February 3, 2022. Ku Decl., ¶¶ 2-3.

In opposition, MTA asserts that Carl Warren’s July 21, 2021 letter acknowledging receipt of the preservation of evidence letter should have placed Alikhanlou’s counsel on notice that it had not received the Claim for Damages Form. Shear Decl., ¶5, Ex. B; Opp. at 2.

The court does not agree. Carl Warren’s June 17, 2021 letter merely acknowledged the receipt of the letter for representation and preservation of evidence and said nothing about the lack of a claim form. Alikhanlou was not on notice that the claim form was missing until it was too late. The failure to timely present the claim was due to mistake and excusable neglect, and it does not prejudice the agency.

The evidence shows that the claim was timely, and no late claim was necessary. Alternatively, the petition for leave to file a late claim is granted.