Judge James C. Chalfant, Case 22STCP01634 2022-10-13 Tentative Ruling

Johnny Romero Smith v. City of Los Angeles, 22STCP01634

Tentative decision on motion to reconsider or alternatively renewed motion: denied

Petitioner Johnny Romero Smith ("Smith") moves under CCP section 1008(a) for reconsideration of the court’s order denying his petition for leave to file a late claim. Alternatively, Smith renews his motion under CCP section 1008(b).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following decision.

Smith commenced this action on April 30, 2022. He seeks leave to present a late claim to 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 (“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 the claim to San Fernando. On April 29, 2021, Carl Warren & Company, the third-party claims administrator for San Fernando, notified Smith that the 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’s city limits, within Los Angeles’ city limits.

On September 26, 2021, Smith presented his claim to Los Angeles, and its claim portal automatically populated the city of the 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. Los Angeles 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; 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.

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 me valid proof of service. To date, he has not done so.

On September 8, 2022, the court denied the petition for leave to file a late claim.

Code of Civil Procedure section 1008(a) (“section 1008(a)”) provides for reconsideration of court orders. Section 1008(a)’s motion to reconsider is broad in scope and allows any party affected by the order to seek reconsideration and modification, amendment or vacation of prior orders. Relief under section 1008(a) is strictly limited; motions to reconsider must be brought within 10 days of service of written notice of the original order.

A motion for reconsideration constitutes the exclusive means for a party seeking modification, amendment or revocation of an order. Morite of Calif. v. Superior Court, (1993) 19 Cal.App.4th 485, 490. To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi (“Garcia”) (1997) 58 Cal.App.4th 674, 690. A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. A mistake based on ignorance of law is not a proper basis for reconsideration. Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670.

Relief under CCP section 1008(a) is strictly limited. A motion to reconsider must be brought within ten days of service of written notice of the original order. Kalivas, supra, 49 Cal.App.4th at 1160.

Alternatively, a party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP §1008(b).

If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order. CCP §1008(c).

The court’s ruling on the Petition found that (1) the claim accrued on October 1, 2020; (2) Smith presented the claim to Los Angeles on September 28, 2021, making it untimely per Government Code (“Govt. Code”) section 911.2; (3) the late claim application was timely filed within one year of October 1, 2020 and Los Angeles did not contest the time frame as unreasonable; and (4) the Petition was timely filed on April 30, 2022. Opp. Ex. A. At issue was whether Smith’s failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect pursuant to section 946.6(c)(1). Ex. A.

Parties have a duty to diligently investigate facts, identify possible defendants, and timely file the claim. Ex. A (citing Ebersol v. Cowan, (1983) 35 Cal.3d 427, 439). The court agreed with Los Angeles that the relevant period in which to establish mistake, inadvertence, surprise, or excusable neglect is the initial six-month period after the accident. Ex. A.

Smith provided evidence that his counsel was diligent in his efforts to determine where the incident occurred. Ex. A. However, 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. Ex. A. Smith did not investigate the issue until San Fernando’s counsel reiterated this during a teleconference on September 9, 2021. Ex. A.

Smith’s counsel was not required to accept San Fernando's April 29, 2021 position, but he was required to further investigate the matter. Opp. Ex. A. Smith cited 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. Ex. A. However, Bettencourt, supra, 42 Cal. 3d at 274, concerned failure to read the letterhead of a cover letter attached to multiple exhibits. Ex. A. This rejected notice here was a single-page notice 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. Ex. A. Any reasonably prudent attorney would have investigated this contention in the almost five months that passed before Smith's claim was presented to Los Angeles. Ex. A. The only action Smith’s counsel took in that period was to file a lawsuit against San Fernando. Ex. A.

The court concluded that Smith's failure to timely present a claim against Los Angeles did not occur through mistake, inadvertence, surprise, or excusable neglect. Ex. A. The court therefore denied the Petition. Opp. Ex. A.

At the hearing on the motion, the court indicated that it was unclear whether the time period at issue was the initial six-month period for filing a government claim or the time for filing the petition after the late claim application was denied by the City. Novik Decl., ¶4. Since then, Plaintiff has determined that the law requires that reasonableness be determined by the judge. Novik Decl., ¶5.

At the time of the incident, Smith’s counsel was not certain of the City’s involvement in the cause of the incident. Novik Decl., ¶11a. He accessed and reviewed multiple Google maps images of the sidewalk where the incident occurred and identified dangerous conditions in photos online. Novik Decl., ¶11b. He contracted WEXCO to evaluate the incident and identify any factors causing or contributing to its occurrence. Novik Decl., ¶11c. Smith only knew he had a claim once WEXCO finished its evaluation. Novik Decl., ¶11d.

Smith filed the Government Claim form with San Fernando on March 2, 2020, within the six-month timeframe. Novik Decl., ¶11e. San Fernando’s April 29, 2021 correspondence did not provide actual notice that the incident occurred in Los Angeles; the conference with counsel on September 6, 2021 did. Novik Decl., ¶13. Smith filed the Government Claim form with Los Angeles less than 30 days later. Novik Decl., ¶14.

Denial of the petition will deprive Smith of a trial on the merits of his claim against Los Angeles. Novik Decl., ¶9.

Smith moves under CCP section 1008(a) for reconsideration of the court’s order denying his petition for leave to file a late claim. Alternatively, Smith renews his motion under CCP section 1008(b) or asks the court to sua sponte reconsider due to a change in law under CCP section 1008(c).

A motion to reconsider must be filed within ten days of service of written notice of the original order. CCP §1008(a); Kalivas, supra, 49 Cal.App.4th at 1160. Mail service is complete at the time of deposit and extends the time for filing by five days if the place of mailing is within California. CCP §1013(a). When the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. CCP §12a(a). If any public office other than a branch office is closed for the whole of any day, insofar as the business of that office is concerned, that day shall be considered as a holiday. CCP §12b.

The court denied the petition on September 8, 2022, and the parties waived notice. The ten-day clock for a motion to reconsider therefore began on September 8 and the deadline was September 18, 2022. That day was a Sunday and the court was closed. The deadline was extended to the next court day, which was September 19, 2022. CCP §12a(a). Smith filed and served this motion on September 16, 2022. Mot. at 12, Proof of Service. The motion for reconsideration is timely.[2]

To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas, supra, 49 Cal.App.4th at 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia, supra, 58 Cal.App.4th at 690. Although Smith moves for reconsideration under any part of CCP section 1008 (Reply at 4),[3] subsections (a) and (b) both require new or different facts, circumstances, or law.

Smith presents no new evidence in his counsel’s supporting declaration that justifies reconsideration. His counsel reiterates the facts concerning his handling of the incident and the timing of claims. The only new facts concern the initial hearing. Smith’s counsel contends that the court indicated at the hearing that it was unclear whether the time period at issue was the initial six-month period for filing a government claim or the time for filing the petition in court after the Los Angeles denied the late claim application. Novik Decl., ¶4. Since then, Plaintiff has determined that the law requires that reasonableness be determined by the judge. Novik Decl., ¶5.

Smith’s counsel misunderstands the court’s point at the hearing. The court expressed uncertainty whether, given the holding in El Dorado Irrig. District v. Superior Court, (“El Dorado”) (1979) 98 Cal.App.3d 57, 62, that mistake and excusable neglect apply only to the six-month period in which to present a claim, whether counsel’s inexcusable neglect remains a factor during the period for application for leave to present a late claim under section 911.4(b). The court did not express uncertainty about the time within which the petition may be filed with the court.

In any event, Smith’s discussion of the hearing does not arise to the level of new facts or circumstances justifying reconsideration.

Assuming arguendo that Smith’s evidence about the hearing constitutes new facts that should be considered, Smith asserts that his counsel did not have actual notice during the initial six-month period to present a claim. Rather, his counsel was unaware of that San Fernando believed that the accident occurred in Pacoima, which is in Los Angeles, because he did not read the April 29, 2021 letter. Novik Decl., ¶13.

The court agrees with Smith that the issue is reasonableness in applying for permission for leave to present a late claim under section 911.4. Smith argues that reasonableness should depend on actual, not constructive, notice. He argues that his counsel’s mistake and excusable neglect in not reading the April 29 letter should be considered reasonable. Mot. at 8. He relies on Lawrence v. State of California, (“Lawrence”) (1985), 171 Cal. App. 3d 242, 244, 246, in which the court granted relief when the plaintiff diligently presented a claim to Orange County before the initial deadline and the county delayed more than three months in telling him that the accident occurred on state property. Id. at 244. The court found that the county behaved as if it deliberately sabotaged Lawrence’s lawsuit and concluded that his counsel’s modest investigation was sufficient to constitute excusable neglect. Id.

While mistake or excusable neglect only applies to the initial six-month period after the accident to present a claim (El Dorado), the application for leave to present a late claim under section 911.4(b) must be made both within one year and within a reasonable time. Thus, counsel’s inexcusable neglect after the initial six-month period applies to the reasonableness of a late claim application.

The court’s decision stated that until the April 29, 2021 notice, Smith’s counsel acted with due diligence. Opp. Ex. A. However, Smith’s counsel’s failure to read San Fernando’s notice rejecting the claim based on the assertion that the site of the incident was in Pacoima, which is in Los Angeles. That failure was inexcusable. Ex. A. The notice was a single-page notice. Ex. A. Any reasonably prudent attorney would have investigated this contention in the almost five months that passed before Smith's claim was presented to Los Angeles. Ex. A. Yet, the only action Smith’s counsel took in that period was to file a lawsuit against San Fernando. Ex. A. This was unreasonable.

Smith’s argument is essentially that the court should find the timing of his late claim application to be reasonable because his counsel did not have actual notice of San Fernando’s position, even though the reason he did not have actual notice was due to his own inexcusable neglect. This is untenable. For this reason, Lawrence, supra, 171 Cal. App. 3d at 246, does not suggest a different result. Unlike Lawrence, San Fernando timely informed Smith that Los Angeles owned the property; Smith’s lawyer just did not read the notice. Reconsideration does not merit granting Smith’s Petition.

[1] Respondent City of Los Angeles (“Los Angeles”) failed to lodge a courtesy copy of the opposition brief, and Petitioner Smith failed to lodge a courtesy copy of his reply brief, in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Both counsel are admonished to provide courtesy copies for all future filings in any civil case.

[2] Because the motion to reconsider is timely, the court need not address the motion as a renewed motion under CCP section 1008(b). Nor will the court sua sponte address a change in the law under CCP section 1008(c).

[3] Smith also cites to CCP section 410.20(a), but there is no record of this statute.