Judge James C. Chalfant, Case Number: 23STCP00620, Date: 2023-12-07 Tentative Ruling

Petitioner Marlene Virgen (“Virgen”) seeks leave to present a late claim for damages against Respondent Los Angeles County Metropolitan Transportation Authority (“MTA”). In a related action, she seeks leave to present a late claim for damages against Respondent City of Compton (“City”).

The court has read and considered the moving papers, oppositions, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Virgen v. MTA

Petitioner Virgen commenced this action on February 28, 2023, seeking leave to present a late claim for damages against MTA. The unverified Petition alleges in pertinent part as follows.

On July 29, 2021, Reymundo Diaz Pena (“Raymundo”) was on his motorcycle with his helmet on at the intersection of Willowbrook Avenue and Compton Boulevard in Compton, CA. (“Intersection”). Los Angeles County Sheriff’s Department (“LASD”) Deputy Jessica Barlow (“Barlow”) drove her patrol car over the speed limit without any emergency response indicators and struck and killed Raymundo at the Intersection.

On August 3, 2021, Raymundo’s mother, Virgen, retained counsel to bring a wrongful death action. On November 8, 2021, she initiated a wrongful death and negligence action against Barlow and the County of Los Angeles (“County”) as Barlow’s employer. That case, Virgen v. County of Los Angeles, et al. (“Virgen v. County”), Case No. 21STCV41151, is ongoing in Department 30.

On May 19, 2022, the County sent Virgen surveillance video of the collision and moments prior from the adjacent gas station. Virgen hired engineers on June 1, 2022, who conducted a site inspection on July 10, 2022. They discovered the Intersection was dangerous and had traffic controls with contradictory instructions, directions, or indicators to users. Upon review of the preliminary collision investigation findings, Virgen determined there was a viable claim for dangerous conditions on public property against those owners and operators. She believes MTA owns, controls, or operates the Intersection.

Virgen completed and submitted a Claim for Damages form with MTA on July 22, 2022. Virgen also submitted to MTA a written application for permission to present a late claim for damages. The application to present a late claim was timely as it was within one year of the incident.

MTA did not respond within 45 days of the claim, or by September 5, 2022. As a result, it was denied on that day as a matter of law under Government Code section 911.6(c). This gave Virgen until March 5, 2023 to file this Petition for leave to file an action.

Virgen’s counsel diligently pursued the pertinent facts of the cause of this incident to identify possible defendants and causes of action. Her failure to file a claim against MTA before six months passed was due to mistake, inadvertence, surprise, and/or excusable neglect. MTA would not face prejudice if leave to file an action against it was granted. Virgen asks for leave to file the Complaint attached to her Petition.

2. Virgen v. City

The court has related this case to Virgen v. City of Compton, (“Virgen v. City”), Case No. 23STCP00622, also filed on February 28, 2023, which seeks leave to present a late claim for damages against the City. The Petition alleges in pertinent part as follows.

The July 10, 2022 investigation of the Intersection and surveillance tapes led Virgen to conclude she had a viable claim for dangerous conditions on public property against the owners and operators of the Intersection. This included the City.

Virgen completed and submitted a Claim for Damages form with the City on July 25, 2022. Virgen also submitted a written application for permission to present a late claim for damages. The application to present a late claim was timely as within one year of the incident.

The City did not respond within 45 days of the claim, or by September 8, 2022. As a result, it was denied on that day as a matter of law under Government Code section 911.6(c). This gave Virgen until March 8, 2023 to file this Petition for leave to file an action.

Virgen’s counsel diligently pursued the pertinent facts of the cause of this incident to identify possible defendants and causes of action. Her failure to file a claim against the City before six months passed was due to mistake, inadvertence, surprise and/or excusable neglect. The City would not face prejudice if leave to file an action against it was granted. Virgen asks for leave to file the Complaint attached to her Petition.

3. Course of Proceedings

On March 8, 2023, Virgen filed a notice of related cases Virgen v. County and Virgen v. City.

On March 9, 2023, Virgen served MTA the Petition in Virgen v. MTA and Notice of Related Cases.

On March 13, 2023, Virgen served the City with the Petition in Virgen v. MTA, the Petition in Virgen v. City, and Notice of Related Cases.

On May 9, 2023, the court consolidated Virgen v. MTA and Virgen v. City. It ordered Virgen to file joint opening and reply briefs.

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. Govt. 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 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

1. Virgen’s Evidence

a. Incident

Marlene is the mother of Raymundo, who died in a collision on July 29, 2021. Flores Decl., ¶2. The Intersection at issue is Willowbrook Avenue and Compton Boulevard in the City. Flores Decl., ¶3, Ex. 1. Compton Boulevard runs east to west. Flores Decl., ¶3, Ex. 1. Willowbrook Avenue runs north to south and has railroad tracks running parallel to it and across Compton Boulevard. Flores Decl., ¶3, Ex. 1.

LASD Deputy Robbert Apodaca’s (“Apodaca”) Traffic Collision Report (“Traffic Report”) and Supplement thereto (“Supplemental Report”) issued on December 20, 2021 narrate the collision. Flores Decl., ¶4, Ex. 2. LASD Deputy Jeaton Wilson’s (“Wilson”) supplemental narrative on March 22, 2022 adds additional information. Flores Decl., ¶5, Ex. 3.

The reports assert that at 4:00 p.m. on July 29, 2021, Barlow was travelling southbound on West Willowbrook Avenue on her way to the LASD Compton Station nearby. Flores Decl., ¶¶ 4, 6, Exs. 2, 4. She was driving 44 miles per hour 9 (“mph”), nine mph above the speed limit, when she entered the Intersection with the light yellow for her direction. Flores Decl., ¶4, Exs. 2, 3, 6.

At the same time, Raymundo made a right-hand turn on his motorcycle from East Willowbrook Avenue going southbound to Compton Boulevard. Flores Decl., ¶¶ 4, 7, Exs. 2, 5. Barlow collided with him at about 26 miles per hour. Flores Decl., ¶4, Ex. 2.

Deputy Wilson’s narrative states that she talked to Lupe Montalvo (“Montalvo”), the City’s lead employee about the traffic control devices. Flores Decl., ¶5, Ex. 3. He said the signals at the Intersection were in working order. Flores Decl., ¶5, Ex. 3. The lights phase together except when the MTA train passes or when vehicles are in left turn bays. Flores Decl., ¶5, Ex. 3. Montalvo gave additional details as to the timing of the lights. Flores Decl., ¶5, Ex. 3.

Wilson admitted that in her City travels she sometimes notices the traffic signals are not easily noticeable at select angles. Flores Decl., ¶5, Exs. 3, 14. This could have been the case for Raymundo as well. Flores Decl., ¶5, Ex. 3, 14.

b. Investigation

Virgen did not have the full facts and circumstances surrounding the collision until May 19, 2022, when she received a surveillance video from a Chevron gas station on the Intersection. Flores Decl., ¶8, Ex. 6.

She hired engineers on June 1, 2022, who uncovered further evidence of the City’s and MTA’s role in contributing to the collision. Flores Decl., ¶8. The engineers conducted a site inspection on July 10. Flores Decl., ¶8. They discovered the Intersection was dangerous and had traffic controls with contradictory instructions, directions, or indicators to users. Flores Decl., ¶8.

Virgen and her counsel diligently pursued the pertinent facts of the cause of the fatal collision and did not perceive of a possible claim against the City and MTA based on the dangerous conditions of public property. Flores Decl., ¶¶ 8-9. A such no government claim was filed against the City or MTA within six months filing window. Flores Decl., 9. This failure was excusable because there was no readily available information from which the potential liability of the City and MTA could be discovered until Virgen obtained video discovery in Virgen v. County, hired engineers to study the collision, and conducted discovery in Virgen v. County. Flores Decl., ¶9.

c. Filings

On July 22, 2022, UPS delivered Virgen’s claim for money damages and application for permission to present a late claim against MTA. Flores Decl., Exs. 10-12.

On July 25, 2022, UPS delivered Virgen’s claim for money damages and application for permission to present a late claim to the City. Flores Decl., Exs. 7-9.

d. Depositions

Pertinent deposition testimony from Virgen v. County is as follows.

(1). Apodaca

Virgen deposed Apodaca on March 9, 2023. Flores Decl., ¶16, Ex. 13. Conversations with Wilson informed Apodaca there had been crashes at that Intersection. Ex. 13. Apodaca did not conclude it was a problem Intersection. Ex. 13. He did not know how many accidents had occurred, only that many accident reports were written about that Intersection. Ex. 13.

(2). Ramirez

Virgen deposed LASD Deputy Matthew Ramirez (“Ramirez”) on April 13, 2023. Flores Decl., ¶18, Ex. 15. Ramirez has investigated six collisions at the Intersection before the one that killed Raymundo. Ex. 15.

Ramirez could not remember a specific moment where he had trouble identifying a traffic light’s color in the City. Ex. 15. However, a lot of the lights are either not functioning or have some other problem. Ex. 15. Every intersection with a train track has two sets of traffic lights, but drivers do not realize that. Ex. 15. They will pass through the first light when green, try to avoid stopping on the tracks, then continue past the second light which they cannot read. Ex. 15.

In Ramirez’s experience investigating collisions at the Intersection, many people who turn onto Compton Boulevard express confusion and fear of potentially getting trapped within the railroad gates. Ex. 15. This causes them to continue the turn after they see one green light on the side of the tracks they were coming from. Ex. 15.

Ramirez has never voiced this concern to his superiors, and he does not know if any LASD officers have shared this concern with the City. Ex. 15. When people involved in collisions have raised a concern, Ramirez has just told them to contact the City. Ex. 15.

(3). Wilson

Virgen deposed Wilson on May 22, 2023. Flores Decl., ¶17, Ex. 14. Wilson has pulled over people for running red lights at that Intersection. Ex. 14. They explained that they were concerned that they could be trapped in the Intersection when the cross-arms come down and a train is coming. Ex. 14. Wilson has had to explain a train is not coming because traffic signals are designed to help people get off safely. Ex. 14.

Wilson has not heard people talk about traffic lights whose current color is only distinguishable from a minimum distance. Ex. 14. The color of the light at this Intersection becomes indistinguishable after a driver is within 30 or 50 feet. Ex. 14.

The traffic lights for east and westbound Compton Boulevard are difficult for a driver to see when on the MTA track. Ex. 14. They are visible as a driver approaches the Intersection, but not after someone has entered it. Ex. 14.

e. Relief

Virgen has drafted the complaint she seeks to file against MTA. Flores Decl., Ex. 17.

2. Respondents’ Evidence

Virgen has asserted Raymundo, the motorcyclist, entered the Intersection on a red light out of fear he would be caught on the train tracks on Willowbrook Avenue. Levine Decl., ¶2.

On August 5, 2021, Raymundo’s son Adrian (“Adrian”) presented a claim for damages against the County. Levine Decl., ¶6, Ex. B. He alleged the Intersection constituted a dangerous condition of public property, but he was vague as to how. Ex. B.

On August 18, 2021, Virgen’s counsel sent a preservation of evidence letter to the Chevron gas station opposite the Intersection. Levine Decl., ¶4, Ex. A. It advised the station not to destroy, conceal, or alter any video footage related to the collision. Ex. A.

On October 9, 2021, the County coroner printed Raymundo’s autopsy report. Levine Decl., ¶7, Ex. C. Its summary finding asserted that he was riding a motorcycle when he ran a red traffic light and was struck by a patrol vehicle. Ex. C.

The Traffic Report with the Supplemental Report and including a surveillance video, was printed on December 20, 2021. Levine Decl., ¶8, Ex. D. They share the Case Number 021-08548-2835-470. Levine Decl., ¶8, Ex. D. The copy of the Supplemental Report Virgen attached to her moving papers includes only nine of its 16 pages. Roberts Decl., ¶2, Ex. A.

The Supplemental Report includes a diagram of the railroad tracks on the Intersection. Levine Decl., ¶8, Ex. D (Supplemental Report at pp. 7-8). It also includes a two-page “Video Analysis” based on footage from the roof of the Chevron gas station. Roberts Decl., ¶2, Ex. A; Supplemental Report at pp. 13-14. Its time-stamped description notes that Raymundo made a right turn onto Compton Boulevard when there was a red light. Supplemental Report at p. 13. It notes that it was difficult to see the signal lights in the video. Roberts Decl., ¶2, Ex. A; Supplemental Report at p. 14.

No evidence suggests Virgen inspected the Intersection of the MTA tracks at the scene before she received the video footage on May 19, 2022. Levine Decl., ¶5. She has not explained the “important details” the video revealed (Levine Decl., ¶9), why her engineers’ expert opinion was not available before June 1, 2022 (Levine Decl., ¶10), or what evidence they uncovered (Levine Decl., ¶10).

On July 7, 2023, Virgen served responses to MTA’s Requests for Production of Documents (“RFP”). Roberts Decl., ¶4, Ex. C. RFP No. 6 asked for any evidence or reference to scheduling inspections of the Intersection within six months of the collision. Roberts Decl., ¶4, Ex. C. Virgen replied she had not found any yet, but that discovery was ongoing. Roberts Decl., ¶4, Ex. C.

RFP No. 11 asked for any Traffic Collision Report, police report, or other incident report Virgen had received from the date of the Incident to February 1, 2022. Roberts Decl., ¶4, Ex. C. Virgen produced “Traffic Collision Report no. 021-08548-2835-470” and Apodaca’s report. Roberts Decl., ¶4, Ex. C.

Virgen produced the autopsy report, the Traffic Report, and the Supplemental Report in response to discovery in Virgen v. County on August 14, 2023. Levine Decl., ¶¶ 7-8, Exs. C-D.

Virgen’s application to file a late claim with MTA was timely filed on July 25, 2022. Levine Decl., ¶11. Because it was denied as a matter of law on September 8, 2022, she had six months after that date to file a petition in court. Levine Decl., ¶12. She filed the Petition in Virgen v. MTA on March 15, 2023. Levine Decl., ¶12.

Virgen v. County is currently set for trial on January 16, 2024. Roberts Decl., ¶3, Ex. B.

3. Reply Evidence

Raymundo’s death on July 29, 2021, was one of the most emotionally painful events of Virgen’s life. Virgen Decl., ¶3. She knew the other party to the collision was an LASD deputy. Virgen Decl., ¶3. Law enforcement was likely to withhold information when a matter involves one of its own. Virgen Decl., ¶3. She knew she would need counsel’s help to obtain information and get justice for her son. Virgen Decl., ¶3.

Virgen retained counsel on August 3, 2021. Carrillo Decl., ¶2. On August 4, 2021, her counsel Michael Carrillo, Esq. (“Carrillo”) conducted a site visit and noticed surveillance cameras on structures at the Intersection. Carrillo Decl., ¶3. This led him to send a preservation letter to the Chevron gas station on August 18, 2021. Carrillo Decl., ¶3. This preservation letter was the only available remedy in the time shortly after the collision. Carrillo Decl., ¶3.

All Carrillo knew at the time was a deputy and Raymundo has collided at that Intersection. Carrillo Decl., ¶3. He did not know the direction Raymundo came from, the speed of each vehicle, or the conditions of the Intersection at the time of the crash. Carrillo Decl., ¶3. Without information on the vehicles’ path of travel, he had no reason to believe the Intersection contributed to the collision. Carrillo Decl., ¶4. Carrillo needed the video footage to determine how the collision occurred. Carrillo Decl., ¶3.

Chevron refused to produce the video. Carrillo Decl., ¶3. Carrillo only obtained a copy of the video after Virgen v. County began. Carrillo Decl., ¶3.

Carrillo does not have the specialized training in accident reconstruction or traffic engineering necessary to determine and identify potentially dangerous conditions. Carrillo Decl., ¶4. His firm hired experts, who conducted a site inspection in July 2022. Carrillo Decl., ¶4. It was apparent to them that the Intersection design and construction contributed to the collision. Carrillo Decl., ¶4. Their preliminary conclusions led counsel to pursue claims against the City and MTA. Carrillo Decl., ¶4.

Virgen has lived in Rancho Cucamonga for ten years. Virgen Decl., ¶4. She was unfamiliar with the Intersection and had no reason at first to suspect its layout contributed to the collision. Virgen Decl., ¶4. She only learned this when her attorneys told her. Virgen Decl., ¶5.

D. Analysis

Petitioner Virgen seeks leave from claim filing requirements to the City and MTA based on Raymundo’s fatal collision at the Intersection.

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 collision occurred on July 29, 2021. Flores Decl., ¶2. Virgen’s 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, Virgen was required to present her claim to any agency within six months of July 29, 2021, or by January 29, 2022. §911.2.

Virgen’s claim was due six months after July 29, 2021, or by January 29, 2022. She filed her claim against MTA on July 22, 2022 and her claim against the City on July 25, 2022. Flores Decl., Exs. 7-12. Both claims were untimely.

3. Application for Leave to Present a Late Claim

Because the cause of action accrued on July 29, 2021, Virgen’s application for leave to file a late claim was due by July 29, 2022. Flores Decl., ¶2. Virgen submitted her applications to file late claims with her claims on July 22 and 25, 2022. Flores Decl., Exs. 7-12.

This was within one year of the accrual date, but the City asserts that the delay was not reasonable. The City cites Carrasco v. Craft, (“Carrasco”) (1985) 164 Cal.App.3d 796, 805, which held that what qualifies as a reasonable time in any case depends upon the circumstances of that particular case. City Opp. at 9. As this issue is similar to the issue of excusable neglect, it is addressed post.

4. The Petition is Timely

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).

Because neither MTA nor the City responded to the late claim applications, they were denied as a matter of law 45 days after submission. §911.6(c). This dated was September 7, 2022 for MTA and September 10, 2022 for the City. Virgen was required to file her petitions by March 7 and 10, 2023.

Court records show that Virgen filed both Petitions on February 28, 2023. The Petitions are 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 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. 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, supra, 33 Cal.App.4th at 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, (“DWP”) (2000) 82 Cal.App.4th 1288, 1294.

“Once the potential plaintiff has retained counsel, it is the responsibility of counsel to diligently investigate the facts, identify possible defendants, and timely file the tort claim. [Citation.]” DWP, supra, 82 Cal.App.4th at 1294, n. 3. To demonstrate entitlement to relief, counsel “must show more than that he did not discover a fact until too late; he must establish that in the use of reasonable diligence he failed to discover it.” Greene v. State, (1990) 222 Cal.App.3d 117, 121. “In deciding whether counsel’s error is excusable, this court looks to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. In examining the mistake or neglect, the court inquires whether ‘a reasonably prudent person under the same or similar circumstances’ might have made the same error. In addition, ‘[unless] inexcusable neglect is clear, the policy favoring trial on the merits prevails.”’ Bettencourt, supra, 42 Cal.3d at 276.

Virgen’s theory of liability against both the City and MTA is that the Intersection was a dangerous condition of public property that contributed to the accident because Raymundo entered the Intersection on his motorcycle against a red light because he feared being caught on the train tracks, similar to other motorists using the Intersection. Pet. Op. Br. at 1.

Virgen relies on mistake, inadvertence, surprise, or excusable neglect for her untimely presentation of this claim to the City and MTA. Pet. Op. Br. at 7. She states that she was not certain about the City’s and MTA’s contribution to the collision at the time of the accident. Pet. Op. Br. at 7. She did not have information suggesting causes of action against either the City or MTA until after the six-month claim period had passed. Flores Decl., ¶¶ 8-9. On May 19, 2022, she received a surveillance video from Chevron gas station at the Intersection. Flores Decl., ¶8, Ex. 6. She hired engineers on June 1, 2022, who uncovered further evidence as to the City and MTA’s role in contributing to the collision. Flores Decl., ¶8. Their July 10 inspection revealed the Intersection was dangerous and had traffic controls with contradictory instructions, directions, or indicators to users. Flores Decl., ¶8. She did not discover details regarding the dangerous condition of the Intersection until taking discovery in her case against the County, Virgen v. County. Flores Decl., ¶¶ 16-18, Exs. 13-15. Pet. Op. Br. at 7.

Virgen has not shown excusable neglect because her attorney was not diligent in investigating potential claims against the City and MTA. Virgen hired counsel swiftly within days after the July 29, 2021 accident. Carrillo Decl., ¶2. At that point, her counsel was required to diligently investigate the facts, identify possible defendants, and timely file the tort claim. See DWP, supra, 82 Cal.App.4th at 1294, n. 3. Virgen’s evidence of her attorney’s effort consists mostly of conclusions and a conclusory statement that Virgen’s counsel acted diligently does not prove that he did so. The only real facts presented in Virgen’s moving papers are that her attorney received a surveillance video from Chevron gas station at the Intersection on May 19, 2022 and that he hired engineers on June 1, 2022 who uncovered further evidence.

This is inadequate. For one thing, Virgen fails to state what facts in the surveillance video or in the engineers report were unknown to her counsel and what about them gave reason to believe the Intersection was in a dangerous condition. She also fails to provide evidence what efforts her attorney made to obtain the video in Virgen v. County and why it took until May 19, 2022 to receive it.

Additionally, the City correctly asks why Virgen could not have discovered the Intersection’s dangerous conditions or hired an engineer between July 29, 2021 and the six-month deadline of January 29, 2022. City Opp. at 10. In reply, Virgen’s attorney, Carrillo, states that he visited the accident site on August 4, 2021. Carrillo Decl., ¶3. All he knew was that a deputy and Raymundo has collided at that Intersection. Carrillo Decl., ¶3. He did not know the direction Raymundo came from, the speed of each vehicle, or the conditions of the Intersection at the time of the crash. Carrillo Decl., ¶3. Without information on the vehicles’ path of travel, he had no reason to believe the Intersection contributed to the collision. Carrillo Decl., ¶4. He does not have the specialized training in accident reconstruction or traffic engineering necessary to determine and identify potentially dangerous conditions. Carrillo Decl., ¶4.

Carillo noticed surveillance cameras at the Intersection. Carrillo Decl., ¶3. This led him to send a preservation letter to the Chevron gas station on August 18, 2021. Carrillo Decl., ¶3. Carrillo needed the video footage to determine how the collision occurred. Carrillo Decl., ¶3. Chevron refused to produce the video. Carrillo Decl., ¶3. Carrillo only obtained a copy of the video after Virgen v. County began. Carrillo Decl., ¶3.

This is well and good, but Carillo fails to explain why the video is more significant than the Traffic Collision Report, Supplemental Report, and other police reports which were finalized and available on December 21, 2021, more than a month before the January 29, 2022 claim deadline. Virgen has admitted in discovery that her counsel received the Traffic Report prior to February 1, 2022. Roberts Decl., ¶4, Ex. C (Response No. 11). These reports state in detail how the accident occurred. In the Supplemental Report, LASD summarized the Chevron video. Roberts Decl., ¶2, Ex. A; Supplemental Report, pp. 13-14.^{^[2]} The time-stamped Video Analysis states that Raymundo entered the Intersection on a solid red light. Supplemental Report, p. 13. It states that the traffic lights are hard to see from the surveillance video. Supplemental Report, p. 14. The Supplemental Report also included a diagram of the intersection with the MTA railroad tracks. Supplemental Report at pp. 7-8. The map of the Intersection and the Video Analysis show the placement of relevant traffic signals and the railroad tracks. Coupled with his visit to the site, Carillo should have been able to use the reports to investigate whether the Intersections lights and railroad tracks were in a dangerous condition. He did not need to be an engineer to begin this investigation.

Virgen argues that the video is the best evidence because narrative descriptions are subject to incompleteness or bias. Reply at 4. Maybe so, but he shows nothing in the reports that is inconsistent with the video, and even a biased summary could have prompted him to investigate the condition of the Intersection.

Virgen has not shown her counsel’s diligence. As MTA notes, because a police officer killed a motorist, it should have been obvious there would be a police report. MTA Opp. at 6. Her counsel should have checked with LASD regularly to see when the reports would be ready. Id. This would have allowed Virgen and Carrillo to obtain the report closer to its December 20, 2021 issuance date and to timely make a claim against the City and MTA.^{^[3]} Carrillo did not act diligently before the six month deadline of January 29, 2022.

Additionally, Deputy Wilson’s supplemental narrative dated March 22, 2022, states that she talked to Montalvo, the City’s lead employee about the traffic control devices. Flores Decl., ¶5, Ex. 3. He said the signals at the Intersection were in working order and the lights phase together except when the MTA train passes or when vehicles are in left turn bays. Flores Decl., ¶5, Ex. 3. Montalvo gave additional details as to the timing of the lights. Flores Decl., ¶5, Ex. 3. Wilson admitted that in her City travels she sometimes notices the traffic signals are not easily noticeable at select angles. Flores Decl., ¶5, Exs. 3, 14. This could have been the case for Raymundo as well. Flores Decl., ¶5, Ex. 3, 14.

This supplemental narrative is more evidence that should have triggered a dangerous condition investigation. Virgen does not mention when her counsel obtained Deputy Wilson’s supplemental narrative. While he necessarily would have acquired it after the January 29, 2022 six-month deadline, its March 22, 2022 date is more than two months before Carillo obtained the video in May. It shows that the delay in Virgen’s respective July 22 and 25, 2022 claims was unreasonable under section 911.4(b).^{^[4]}

Carillo knew how to make a government claim because he promptly made one against the County. Yet, his only effort to investigate whether the accident location is a dangerous condition of public property was to visit the scene on August 4, 2021. It appears that Carrillo spent his time thereafter prosecuting Virgen v. County and pursuing the video from Chevron in discovery. It was not until Carillo deposed Apodaca, Wilson, and Ramirez in March-May 2023, and received the video in May, that he realized there may be a potential to add the City and MTA as defendants. By this time, the six month deadline had long passed. Virgen’s counsel failure to explore other sources of information between July 29, 2021 and January 29, 2022 demonstrates a lack of due diligence. That failure, coupled with the continued failure to investigate from January 29, 2022 until May/June 2022 also was not reasonable under section 911.4(b). Virgen’s failure to present timely claims against the City and MTA is not excused by mistake, inadvertence, surprise, or excusable neglect. Additionally, her applications to the City and MTA, although presented within one year of the July 29, 2021 accrual, were not reasonable. §911.4(b). Both Petitions for relief from claim filing requirements are denied.

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

^{^[2]} It is unclear whether the video itself was included and disclosed with the reports.

^{^[3]} MTA notes that Virgen’s counsel sent Chevron a preservation of evidence letter on August 18, 2021, just weeks after the collision. Levine Decl., ¶4, Ex. A. MTA Opp. at 9. MTA argues that this suggests her counsel already believed MTA was implicated in the collision. MTA Opp. at 9. Not so. Virgen’s attorney knew almost nothing about the accident, and he needed to see the video to understand how it occurred and as potential evidence against the County. Carrillo Decl., ¶3.

MTA also notes that the decedent’s child, Adrian, filed a claim against the County based on dangerous conditions at the Intersection as early as August 5, 2021. Levine Decl., ¶6, Ex. B. MTA Opp. at 7. As Virgen replies, Adrian’s claim has so little information it seems based on speculation rather than solid information. An unsubstantiated claim by another person says little about whether Virgen should have had enough information to justify a claim against MTA and the City. Reply at 5.

^{^[4]} The court need not discuss whether leave to file a late claim would prejudice either governmental entity.