Judge James C. Chalfant, Case 22STCP02142 2023-04-13 Tentative Ruling

Petitioner Dontay Marshall (“Dontay”) seeks leave to present a late claim for damages against Respondent Los Angeles County (“County”).

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 Dontay commenced this action on June 6, 2022 seeking leave to present a late claim for damages against the County. The unverified Petition alleges in pertinent part as follows.

The claim is for wrongful death and negligence and arises out of the County’s Department of Children and Family Services’s (“DCFS”) failure to protect Dontay’s son Dontez (“Son”). Son was born in July 2020 to Dontay and the mother of two of Dontay’s other children (“Mother”). Mother’s two other children already had been removed from her care and placed in the care of Dontay’s mother (“Grandmother”). Of Mother’s nine children, Son is the only child whom DCFS has not removed from her care.

Upon Son’s birth, DCFS opened a case but allowed him to remain in Mother’s care despite Dontay’s request otherwise. In February 2021, eight-month-old Son was taken to the hospital for head trauma and injuries to his spine and leg. The hospital also discovered that the Son had levels of THC in his body that could only occur from consumption. Son was removed from life support and died of his injuries.

The police began an investigation into Son’s death, which is ongoing. Dontay has not received a death certificate or coroner’s report. This led him not to contact his attorney until November 2021, eight months after Son’s death.

On November 30, 2021, Dontay submitted an application to submit a late claim to County. County rejected the application on December 20, 2021 pursuant to Government Code^{^[1]} section 911.6. Dontay’s failure to present the claim for damages was the result of mistake, inadvertence, surprise, and excusable neglect because he did not have the documentation about Son’s death. Dontay requests that the court relieve him from the claim filing requirements of section 945.6.

2. Course of Proceedings

On June 22, 2022, Dontay personally served Respondent County with the Petition, summons, and supporting declaration.

On December 14, 2022, Department 1 (Hon. Michelle Williams Court) reassigned the case to this court.

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. §§945.4, 950.2, 950.6(a). To be timely, a government claim for damages must be presented to the public entity within six 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

Son was born in July 2020. Fisher Decl.,^{^[2]} ¶3. He was Mother’s third child with Dontay and tenth child overall. Fisher Decl., ¶¶ 3-4. DCFS had already removed all nine other children from her care and placed Dontay’s other two children with Grandmother. Fisher Decl., ¶¶ 3-4.

Upon Son’s birth, DCFS opened a case but allowed him to remain in Mother’s care despite Dontay’s request. Fisher Decl., ¶5.

In February 2021, eight-month-old Son was rushed to the hospital. Fisher Decl., ¶6. There it was discovered that Son had suffered head trauma and injuries to his spine and leg. Fisher Decl., ¶6. He also had abnormally high amounts of THC in his body. Fisher Decl., ¶6. The hospital informed Dontay that such levels could only occur from direct consumption of THC. Fisher Decl., ¶6. Son was removed from life support and died from his injuries. Fisher Decl., ¶6.

As of June 6, 2022, the police investigation into Son’s death is ongoing and has not yet led to an arrest. Fisher Decl., ¶7. Dontay has not received a copy of Son’s death certificate or any coroner’s report or investigation into the death. Fisher Decl., ¶8. Because of this, Dontay did not contact the law office of Natalee Fisher, Esq. (“Fisher”) until November 2021. Fisher Decl., ¶9.

On November 30, 2021, Dontay submitted an application for leave to present a late claim to the County. Fisher Decl., ¶10, Ex. 1.^{^[3]} On December 20, 2021, the County informed Dontay that his application was deemed denied by operation of law pursuant to Section 911.6. Fisher Decl., ¶11, Ex. 2.

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.

Dantay claim is for wrongful death of Son. Fisher Decl., ¶6. At the hospital, it was discovered that Son had suffered head trauma and injuries to his spine and leg. Fisher Decl., ¶6. He also had abnormally high amounts of THC in his body. Fisher Decl., ¶6. The hospital informed Dontay that such levels could only occur from direct consumption of THC. Fisher Decl., ¶6. Son was removed from life support and died from his injuries. Fisher Decl., ¶6.

The claim accrued no later than the date on which Dontay was informed of the high levels of TCH or the date on which he was informed of the nature of Son’s injuries, whichever is earlier. This date was no later than sometime in February 2021.

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, Dontay was required to present his claim to the County within six months of February 2021, or by August 2021. §911.2.

Dontay did not present his claim until he sent an application for leave to present a late claim to County on November 30, 2021. Fisher Decl., ¶10, Ex. 1. The claim was untimely.

3. Application for Leave to Present a Late Claim

Because the cause of action accrued in February 2021, the latest date to apply for permission to file a late claim was in February 2022. Fisher Decl., ¶6. Dontay submitted the application for leave to present a late claim on November 30, 2021. Fisher Decl., ¶10, Ex. 1. The application was timely. Dontay does not show that the delay until November 30, 2021 was reasonable. However, the opposition does not assert that it was unreasonable.

4. The Petition is Timely

The County denied Dontay’s application for permission to file a late claim on December 20, 2021. Dontay filed the Petition on June 6, 2022. Fisher Decl., ¶11, Ex. 2. The Petition is timely.

5. The Failure to Timely Present the Claim Was the Result of 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 claims 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 claims 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. 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. Excusable neglect is defined as 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.

Dontay asserts that his delay was due to mistake, inadvertence, and excusable neglect because he assumed that he would need the results of the police investigation into Son’s death before he could pursue any legal action. Pet. at 6. He was forced to wait over a year for the police to investigate Son’s death. Left with no answers from the police or the coroner, he sought counsel in November 2021. He did not know the procedural requirements in bringing a claim against the County and mistakenly believed that he needed to wait for this documentation or an arrest before he could make a claim. Pet. at 6.

Dontay fails to show that he exercised due diligence. In fact, he fails to present any evidence on this issue at all. As the County argues (Opp. at 4), those cases granting relief for excusable neglect generally involve a plaintiff who diligently attempted to retain counsel within the claim presentation period. Ebersol v. Cowan, (1983) 35 Cal.3d 427, 435-36. Dontay’s papers argue that he assumed he needed results from the police investigation before he could retain an attorney. Pet. at 6; Reply at 6. He does not explain why he held this belief, which of course is wrong. Nor does he explain any effort to discover whether his belief was true. Ignorance of the law is not a sufficient basis for relief when the claimant did not make an effort to obtain counsel. Barragan v. County of Los Angeles, 184 Cal. App. 4th 1373, 1383. Dontay did not retain counsel until eight months after Son died. Fisher Decl., ¶9. Had he sought legal advice before six months had passed, he may have avoided that mistake. Opp. at 5.

Dontay asserts that no one suggested that he should seek legal counsel during his multiple attempts to obtain information about the investigation. Reply at 5. They were not required to do so. Dontay cannot excuse his own failure to obtain counsel by another party’s failure to inform him that he might have a claim.

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.

After Dontay retained counsel in November 2021, he filed an application for leave to present a late claim to County the same month. Fisher Decl., ¶10, Ex. 1. He argues that he continues to seek additional records and information to support the claim. Reply at 5-6.

The diligence of his counsel is not demonstrated because the only evidence is that his attorney applied for leave to present a late claim. There is no evidence of the attorney’s investigation into the claim. More important, his attorney’s diligence does not affect the Petition’s outcome because Dontay was not diligent during the six-month period. El Dorado Irrig. Dist. v. Superior Court, (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). That his lawyer may have acted with due diligence after the six-month period does not excuse his failure.

Dontay’s failure to present a claim by August 2021 was not due to mistake, inadvertence, surprise, or excusable neglect. 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.^{^[4]}

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

^{^[2]} Dontay presents only an attorney declaration which does not present firsthand knowledge of any facts other than those that arose after her firm’s retention in November 2021. Fisher Decl., ¶9.

^{^[3]}The parties cite two exhibits filed with Fisher’s declaration in support of the Petition. See, e.g., Opp. at 2. The exhibits are not on file, but the parties do not dispute the relevant dates of the documents.

^{^[4]} County asserts that the unreasonable period between its denial of the application to file a late claim and the Petition raises a presumption of prejudice under Han v. City of Pomona, (“Han”) 37 Cal. App. 4th 552, 560. Opp. at 5. In Han, the plaintiff served the city with the petition for relief two and a half years after it was filed in court. 37 Cal. App. 4th at 560. Prejudice was presumed from this unreasonable delay. Id. Dontay served his Petition on June 22, 2022, 16 days after it was filed. The delay is not presumptively prejudicial.

County adds that a late claim would prejudice it because DCFS processes thousands of cases each year and involved personnel will not remember the details necessary for the County to defend itself. Opp. at 6. County’s conclusory argument is unsupported with evidence.