Judge James C. Chalfant, Case 22STCP01634 2022-09-08 Tentative Ruling

Petitioner Johnny Romero Smith (“Smith”) seeks relief from claim filing requirements against Respondent City of Los Angeles (“Los Angeles”). 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

Petitioner Smith his Petition on April 30, 2022, seeking relief from claim filing requirements against Los Angeles.

The claim arises out of an accident on a public sidewalk on October 1, 2020. The deadline for presenting the claim was April 1, 2022.

On October 8, 2020, Smith retained the Novik Law Group to represent him. Multiple searches cause Smith to think that the incident took place within the City of San Fernando (“San Fernando”). On October 13, 2020, Smith retained WEXCO, a construction and safety company, to inspect the scene. On January 6, 2021, WEXCO Senior Forensic Engineer Mark Burns visited the site and confirmed that, to the best of his knowledge, the incident occurred within San Fernando.

On March 27, 2021, within the six-month time frame, Smith presented a claim to San Fernando. On April 29, 2021, Carl Warren & Company, the third-party claims administrator for San Fernando notified Smith that his claim was rejected on April 5, 2021. This notice on April 29, 2021 occurred after the six-month deadline had elapsed.

On June 3, 2021, Smith filed a lawsuit against San Fernando. On September 9, 2021, while San Fernando served its Answer, a San Fernando Councilmember advised that the incident occurred just outside San Fernando limits and within Los Angeles limits.

On September 26, 2021, Smith presented his claim to Los Angeles, and its claim portal automatically populated the city of incident as “San Fernando” when the zip code was provided. On September 28, 2021, Smith mailed and later personally served Los Angeles with a timely application for permission to file his claim for damages. The City denied it on November 3, 2021.

The condition of the subject sidewalk has not changed since the incident, so no material evidence has been lost and Los Angeles would not suffer prejudice if the Petition were granted. Smith requests that the court relieve him from the claim filing requirements of Government Code section 945.4.

2. Course of Proceedings

On June 3, 2022, Smith filed a proof of service showing service on Los Angeles of the Petition and supporting memorandum and declaration. On June 21, 2022, the court found the proof of service defective for failure to specify who was served and ordered Smith to file valid proof of service. To date, he has not done so.

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. Government Code^{^[1]} §§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. §911.2.

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. §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. §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. §946.6. The petition must be filed within six months after the application to the public entity is denied or deemed to be denied. §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. §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. §946.6(c).

C. Statement of Facts

On October 1, 2020, Smith was walking on the south sidewalk of Corcoran Street when he tripped or stumbled on or over the uneven sidewalk. Novik Decl., ¶3.^{^[2]} Overgrown and unmaintained trees, lack of lighting, dirt, debris, shadows, and other distractions kept Smith from seeing the uneven sidewalk and caused him to injure himself. Novik Decl., ¶3. On October 8, 2020, Smith retained the Novik Law Group to represent him. Novik Decl., ¶4.

Smith explained to Erick Novik, Esq. (“Novik”) that he believed the sidewalk was in San Fernando. Novik Decl., ¶5. Novik then researched the site location on various websites, all of which identified the properties adjacent to, and across the street, from the sidewalk as in San Fernando. Novik Decl., ¶¶ 6-7. Ex. 1-2. Google Maps also showed that the zip code where the incident occurred corresponds to San Fernando. Novik Decl., ¶8, Ex. 3.

On October 13, 2020, Smith retained WEXCO to inspect the scene. Novik Decl., ¶9, Ex. 4 (Burns Decl., ¶5). On January 6, 2021, Novik asked WEXCO Senior Forensic Engineer Mark Burns (“Burns”) to visit and inspect the site. Novik Decl., ¶10, Ex. 4 (Burns Decl., ¶7). Based on his observations, including the address of the property on the opposite side of the street from the sidewalk, Burns concluded that the sidewalk is in San Fernando. Novik Decl., ¶10, Ex. 4 (Burns Decl., ¶10). This added to Novik’s belief that the incident occurred in San Fernando. Novik Decl., ¶11.

On March 27, 2021, Novik presented Smith’s claim to San Fernando. Novik Decl., ¶12, Ex. 5. On April 29, 2021, third-party administrator Carl Warren & Company notified Novik that San Fernando had rejected the claim on April 5, 2021. Novik Decl., ¶13, Ex. 6. The two-page notice asserted that the site of the incident was in Pacoima, which is in Los Angeles. Novik Decl., ¶¶ 13-14, Ex. 6. This was the first time that Novik had any indication the incident had occurred outside of San Fernando. Novik Decl., ¶15.

On June 3, 2021, Novik filed a lawsuit against San Fernando based on the accident. Novik Decl., ¶16. On September 9, 2021, San Fernando served an answer. On the same date, San Fernando’s counsel informed Novik via telephone that San Fernando’s position is that the incident took place in Los Angeles. Novik Decl., ¶17.

On September 26, 2021, Smith submitted a claim to Los Angeles through its online claim portal. Novik Decl., ¶18, Ex. 7. When Novik filled out the online form, it automatically listed the city where the incident occurred as “San Fernando” when he put in the zip code “91340”. Novik Decl., ¶19, Ex. 8.

On September 26, 2021, Novik’s office filed Smith’s petition for leave to present a late claim for damages. Novik Decl., ¶20, Ex. 9.

On October 15, 2021, Los Angeles returned the initial claim as untimely made more than six months after the incident. Novik Decl., ¶21, Ex. 10. Los Angeles informed Novik that his only recourse was to apply for leave to present a late claim. Novik Decl., ¶21, Ex. 10.

On November 3, 2021, Los Angeles denied Smith’s application to file a late claim. Novik Decl., ¶22, Ex. 11.

Novik remains in contact with San Fernando, trying to understand the border between the cities. Novik Decl., ¶23. The portion of sidewalk responsible for the incident has remained unchanged. Novik Decl., ¶26.

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 Smith tripped over the Sidewalk on October 1, 2020. Novik Decl., ¶3. 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, Smith was required to present his claim to Los Angeles within six months of October 1, 2020, or by April 1, 2021. §911.2.

Smith presented his claim to Los Angeles on September 28, 2021. Novik Decl., ¶18, Ex. 7. The claim was therefore untimely.

3. Application for Leave to Present a Late Claim

The cause of action accrued on October 1, 2020 and therefore the latest date to apply for Smith to file a late claim with Los Angeles was October 1, 2021. Novik Decl., ¶3. Smith that he filed is late claim request on September 28, 2021 and Los Angeles denied it on November 3, 2021. See Novik Decl., ¶20, Exs. 9, 10.

The late claim application was timely made within one year of October 1, 2020 under section 911.4. Los Angeles does not argue that this time frame was unreasonable.

4. The Petition As Timely

The late claim application was denied on November 3, 2021 and the Petition was filed on April 30, 2022, less than six months later. The Petition is timely.

5. The Failure to Timely Present the Claim Through Mistake, Inadvertence, Surprise, or Excusable Neglect.

The court may grant relief if it finds that 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. §946.6(c)(1).

Timely compliance with the claim presentation is a mandatory prerequisite to maintaining a cause of action against a public entity and failure to file a claim is fatal to the claimant’s cause of action. Pacific Telegraph & Telephone Co. v. County of Riverside, (1980) 106 Cal.App.3d 83, 188; San Leandro Police Officers Assoc. v. City of San Leandro, (1976) 55 Cal.App.3d 553. Ignorance of the claim filing deadline is no excuse. Harrison v. Count of Del Norte, (1985) 168 Cal.App.3d 1, 7; Drummond v. County of Fresno, (1987) 193 Cal.App.3d 1406, 1412. “Excusable neglect” is neglect which might have been the act of a reasonably prudent person under the same or similar circumstances. Ebersol v. Cowan, (1983) 35 Cal.3d 427, 435. Excusable neglect is an act or omission that might be expected of a prudent person under similar circumstances. Department of Water & Power v. Superior Court, (2000) 82 Cal.App.4th 1288, 1294.

Once a party retains counsel, that attorney must diligently investigate facts, identify possible defendants, and timely file the claim. Ebersol v. Cowan, supra, 35 Cal.3d at 439. A mere mistake of counsel does not provide basis for granting relief. Tackett v. City of Huntington Beach, (1994) 22 Cal. App. 4th 60, 64-65. A mere failure to discover a fact does not constitute excusable neglect for failing to present a timely claim; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence. Munoz v. State of California, (1995) 33 Cal.App.4th 1767, 1783.

As Los Angeles argues (Opp. at 4), the relevant period in which to establish mistake, inadvertence, surprise, or excusable neglect is the initial six-month period after the accident. Opp. at 4. El Dorado Irrig. Dist. v. Superior Court (“El Dorado”) (1979) 98 Cal.App.3d 57, 62 (“mistake, inadvertence, surprise or excusable neglect” applies to the six-month period after the accident and not to the late claim presentation requirement of a “reasonable time not to exceed [one year]” period).

Los Angeles asserts that Smith did not act reasonably diligently in pursuing the claim or investigating. Opp. at 5.

Smith cites Bettencourt v. Los Rios Community College Dist. (“Bettencourt”) (1986) 42 Cal. 3d 270, 276, which held that whether counsel’s error is excusable depends on (1) the nature of the mistake or neglect and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. In Bettencourt, an attorney filed a claim with the State Board of Control four days after he was retained under the mistaken belief that employees of Sacramento City College were state employees. Id. at 274. He discovered his error less than a month later and immediately telephoned defendant community college district’s general counsel informing him that a petition to present a late claim would be filed. Id. at 274.

In holding that claim filing requirements were excused, the court found the attorney’s assumption reasonable based on his distance from and unfamiliarity with Sacramento and the confusing nature of state and local control over public education. Id. at 276-77. Defendant argued that the plaintiff’s attorney’s conduct was unreasonable because he had been sent a letter within the 100-day timeframe the letterhead of which indicated that Sacramento City College was part of the community college district. Id. at 277. The Supreme Court ruled that this cover letter, received after the claim had been made to the State Board of Control, was attached to multiple enclosures regarding the merits of the case and a reasonable attorney would have focused on the enclosures after skimming the cover letter. Id. at 277. The attorney promptly had investigated the claim and requested further information and the court concluded that the attorney’s mistake was excusable. Id. at 278.

Smith’s application shows his counsel’s efforts to determine that the incident occurred in San Fernando. Smith told Novik that he believed the sidewalk was in San Fernando. Novik Decl., ¶5. Novik then researched the site location on various websites, all of which identified the properties adjacent to, and across the street, from the sidewalk as in San Fernando. Novik Decl., ¶¶ 5-7. Ex. 1-2. Google Maps also showed that the zip code where the incident occurred corresponds to San Fernando. Novik Decl., ¶8, Ex. 3. Finally, Smith retained WEXCO and Burns visited and inspected the site and Burns concluded that the sidewalk is in San Fernando based on the address of the property on the opposite side of the street from the sidewalk,. Novik Decl., ¶10, Ex. 4 (Burns Decl., ¶10). Even when Novik presented the claim on the Los Angeles online portal, it showed that the zip code corresponded to San Fernando. Novik Decl., ¶19, Ex. 8.

Smith contrasts his circumstances to Tackett, supra, 22 Cal. App. 4th at 63, where the court denied relief because Tackett’s counsel took no action after Tackett retained the lawyer’s services. Reply at 4-5.

There is little doubt that Smith’s counsel was diligent in his initial efforts to determine where the incident occurred. However, he did not remain diligent. On April 29, 2021, Smith’s counsel received notice that San Fernando had rejected the claim based on the assertion that the site of the incident was in Pacoima, which is in Los Angeles. Novik Decl., ¶¶ 13-14, Ex. 6. Smith’s counsel admits that his careful review of this two-page letter provided notice that the incident may have occurred in Los Angeles. Reply at 2; Novik Decl., ¶14. Yet, Smith’s counsel did nothing to further investigate the issue until September 9, 2021, San Fernando’s counsel informed Novik via telephone that its position is the event took place in Los Angeles. Reply at 2-3; Novik Decl., ¶17.

This was not reasonable. Smith’s counsel was not required to accept San Fernando’s April 29, 2021 position, but he was required to further investigate the matter. The notice Smith’s counsel received was not a cover letter with numerous attachments is in Bettencourt; it was a notice of rejection in which Carl Warren & Company explained to Novik that San Fernando had rejected the claim because the site of the incident was in Los Angeles. Novik Decl., ¶¶ 13-14, Ex. 6. Any reasonably prudent attorney would have investigated this contention in the almost five months that took place before Smith’s claim was presented to Los Angeles. See Novik Decl., ¶18, Ex. 7. Yet, between the April 29, 2021 letter and September 9, 2021, Smith’s counsel took only one action; he filed a lawsuit against San Fernando. Novik Decl., ¶16. Novik’s lack of diligence to ascertain whether Carl Warren & Company was correct in contending that the sidewalk is in Los Angeles differentiates this case from Bettencourt.

Smith’s failure to timely present a claim against Los Angeles did not occur through mistake, inadvertence, surprise, or excusable neglect. Los Angeles correctly notes that a lack of prejudice is irrelevant if there is no excuse for the failure to timely present the claim. Black v. County of Los Angeles, (1970) 12 Cal.App.3d 670, 678.^{^[3]}

^{^[1]} All further statutory references are to the Government Code unless otherwise stated.

^{^[2]}All citations to the Declaration of Erick Novik are to his amended declaration.

^{^[3]} Los Angeles also argues that it was necessarily prejudiced by Smith’s unreasonable delay in presenting his claim. Opp. at 5-6. This contention is untenable because prejudice is not inherent in delay. Otherwise, prejudice would not be listed as a separate reason to deny an untimely claim. See §946.6(c). Smith asserts that the sidewalk conditions have not changed and that all evidence as to the incident is therefore preserved. Novik Decl., ¶26. Therefore, Los Angeles has not shown any prejudice.