Judge James C. Chalfant, Case Number: 23STCP01003, Date: 2023-08-15 Tentative Ruling

Petitioner Tina Johnson (“Johnson”) 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 Johnson commenced this action on March 27, 2023, seeking leave to present a late claim for damages against the County. The unverified Petition alleges in pertinent part as follows.

The injury at issue occurred when Johnson tripped and fell over a signpost stump on a public sidewalk in front of a Dollar Tree at 3828 W Slauson Ave, Unincorporated County of Los Angeles, 90043. The date of accrual of her cause of action was July 4, 2022.

The week after Johnson’s initial medical consultation, she retained counsel. The attorney was out of the country at the time, and clerical staff forgot to include the government claim notation when it entered claimant’s case into the office’s case database. This led Johnson’s counsel to calendar an incorrect statutory deadline. Counsel discovered the mistake days after the six-month period expired.

On January 17, 2023, Johnson applied to submit a late claim under Government Code^{^[1]} section 911.4. The County denied the request on February 1, 2023. Johnson requests that the court relieve her from the claim filing requirements of section 945.6.

2. Course of Proceedings

On April 6, 2023, Johnson served the County with the Petition and moving papers by mail only. The County never filed an Answer.

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

1. The Injury

Johnson’s Claim for Damages form dated January 12, 2023 asserts that her injury occurred on July 4, 2022 at 11:00 a.m. Pet. Ex. A, p. 4. At that time, Johnson tripped and fell over a signpost stump on a public sidewalk in front of a Dollar Tree at 3828 W Slauson Ave, Unincorporated County of Los Angeles, 90043. Pet. Ex. A, p. 4. Johnson visited a physician on July 5 and 14 and August 5, 2022. Pet. Ex. A, pp. 7, 15, 22.

Johnson served the County with a claim for damages through personal service on January 17, 2023. Pet. Ex. A, p. 30.

2. Counsel Activity

Johnson’s attorney, Into Champon, Esq. (“Champon”), has a standard office procedure to track and calendar the statutes of limitations and claims deadlines for personal injury cases. Champon Decl., ¶3. Champon has used this procedure for over 15 years. Champon Decl., ¶3. Pursuant to this procedure, clerical staff works directly with clients and enters the exact accident date stated by the client or police report into the system. Champon Decl., ¶3. Staff also enters special flags for circumstances like a government claim, an uninsured motorist, or a case in a foreign jurisdiction. Champon Decl., ¶3.

Champon’s associate attorney, Michael Rex, Esq. (“Rex”), maintains and circulates litigation deadline lists and statutes of limitations lists. Rex Decl., ¶3. He enters those deadlines into a shared office calendar. Rex Decl., ¶3. To do this, he either has someone email him the client database or copies it himself. Rex Decl., ¶3. He then calculates the deadlines and statutes of limitations according to case type, location, and date of loss. Rex Decl., ¶3. He sorts this information on a spreadsheet by date, prints it, and enters all the deadlines into the shared office calendar. Rex Decl., ¶3.

On July 8, 2022, Champon’s office secretary received a phone call from Johnson about her trip and fall accident. Souvannavongsack Decl., ¶3. The secretary relayed the details to Champon, who approved drafting a retainer package to email Johnson. Souvannavongsack Decl., ¶¶ 3-4. Johnson provided additional details via phone and email. Souvannavongsack Decl., ¶4.

Johnson returned the signed retainer agreement and general authorization to counsel’s office on July 11, 2022. Souvannavongsack Decl., ¶5. Champon had agreed to take the case while in the country but was in Cananda for two weeks and often without phone service when Johnson returned the retainer agreement. Souvannavongsack Decl., ¶5; Champon Decl., ¶4. The office secretary was the only person available to handle injury cases. Souvannavongsack Decl., ¶5. Champon could not provide additional reminders or double check staff’s work. Champon Decl., ¶4.

On July 15, 2022, staff entered the case into counsel’s system as a normal personal injury matter but forgot to add the flag that the defendant was a government entity. Champon Decl., ¶4; Souvannavongsack Decl., ¶6. Staff continued to perform routine tasks on the case, including saving emails of medical documents sent by Johnson, sending authorizations to Johnson for her signature, and sending out requests of bills and records to Johnson’s health insurer. Souvannavongsack Decl., ¶6.

On September 26, 2022, Rex conducted a statute list update which included Johnson’s case. Rex Decl., ¶4, Ex. 1. Because her case entry only stated that it was a generic personal injury case, he entered a two-year statute of limitations into the statute list. Rex Decl., ¶4, Exs. 1-2.

On January 6, 2023, Rex conducted an evidence review of open pre-litigation injury cases. Rex Decl., ¶5. When he looked at photographs of the sidewalk injury site, he asked staff if Johnson’s trip and fall was on public property. Rex Decl., ¶5. Once he learned that it was, he realized that the system had this case as the wrong type and recalculated the deadline. Rex Decl., ¶5. Champon was notified and an application for leave to submit a late claim was prepared. Rex Decl., ¶5.

Aside from the incorrect deadline in the filing system, Johnson’s counsel prepared the claim diligently, including ongoing communications with, and instructions to, Johnson, and collecting evidence for medical damages and lost earnings in a timely manner. Champon Decl., ¶6. Champon has since amended the office procedures and checklists to reduce the risk of clerical errors that would yield an erroneous calendar deadline. Champon Decl., ¶5.

To the best of Champon’s knowledge, the hazard at the site of the injury was not altered between the date of the accident and the filing of Johnson’s application for leave to submit a late claim. Champon Decl., ¶7. The few days of delay past the six-month deadline would not prejudice the County. Champon Decl., ¶7.

D. Analysis

Petitioner Johnson seeks relief from claim presentation requirements.

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.

Johnson’s accident and injury occurred on July 4, 2022 at 11:00 a.m., and the claim accrued on that date. See Pet. Ex. A, p. 4.

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, Johnson was required to present her claim to the County within six months of July 4, 2022, or by January 4, 2023. §911.2.

Johnson did not present a governmental claim to the County until she served an application for leave to present a late claim on January 17, 2023. Pet. Ex. A, p. 30. The claim was untimely.

3. Application for Leave to Present a Late Claim

Because the cause of action accrued in July 2022, the latest date to apply for permission to file a late claim was in July 2023. Pet. Ex. A, p. 4. Johnson submitted the application for leave to present a late claim on January 17, 2023. Pet. Ex. A, p. 30. The application was made timely, and the County does not argue that it was reasonable.

4. The Petition is Timely

The Petition asserts that the County denied Johnson’s application for permission to file a late claim on February 1, 2023. Pet., ¶5. Because the Petition is unverified, Johnson cannot cite to it as an affidavit that establishes the facts therein. CCP §446(a). However, the County does not object to the Petition as evidence. Also, Johnson filed the Petition in March 2023, a little over two months after she applied for permission to file a late claim, and therefore it necessarily is timely.[2]

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 claim presentation is a mandatory prerequisite to maintaining a cause of action against a public entity, and the 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, (“Ebersol”) (1983) 35 Cal.3d 427, 435. 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. 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.

Once a party retains counsel, that attorney must diligently investigate facts, identify possible defendants, and timely file the claim. Ebersol, supra, 35 Cal.3d at 439. Calendar errors by an attorney or a member of his staff are excusable under appropriate circumstances but not every mistake of an attorney constitutes excusable neglect. Nilsson v. City of Los Angeles, (1967) 249 Cal. App. 2d 976, 980. 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.

Johnson approached Champon’s law firm within a week of her injury and her first doctor’s appointment. Pet. Ex. A, p. 7; Souvannavongsack Decl., ¶3. For the past 15 years, Champon has used a system that relies on special flags to determine the litigation deadlines based on special circumstances. Champon Decl., ¶3. In this case, the secretary forgot to add the flag for a government claim. Champon Decl., ¶4; Souvannavongsack Decl., ¶6. As a result, when Rex reviewed the firm’s statute of limitations list in September 2022 to update the calendar, he believed it was a generic personal injury case and entered a two-year statute of limitations. Rex Decl., ¶¶ 3-4, Exs. 1-2.

Champon had approved Johnson as a client, but he was in Canada for two weeks with minimal phone service when Johnson the firm’s secretary details about the case. Souvannavongsack Decl., ¶¶ 3-5; Champon Decl., ¶4. Champon could not provide additional reminders or double check staff’s work. Champon Decl., ¶4. The office continued to investigate the case and contact Johnson throughout the six-month period. Champon Decl., ¶6; Souvannavongsack Decl., ¶7. No one discovered the mistake until Rex asked two days after the six-month deadline whether the accident site was on public property. Rex Decl., ¶5.

In Flores v. Board of Supervisors, (1970) 13 Cal. App. 3d 480, 483, the plaintiffs contacted counsel about representation for a medical malpractice suit for their child’s death, counsel advised them that they only had 18 days left to file suit. Id. at 482. The firm knew that it needed to act quickly to meet this deadline and sought medical records. Id. However, the plaintiff’s law firm failed to file a timely claim because it failed to open a file which would have reminded it of the 100-day limitation in effect. Id. Thereafter, the attorneys diligently followed statutory requirements in pressing plaintiffs’ claim. Id. The court held that this was excusable neglect. Id. at 485.

In Renteria v. Juvenile Justice, Department of Corrections & Rehabilitation, (“Renteria”) (2006) 135 Cal. App. 4th 903, 906, an incarcerated youth claimed that he was bitten by a Department of Corrections dog. In support of a late claim petition, the law firm representing him presented evidence that its secretary removed the six-month public entity statute of limitations from its calendaring system. Id. at 907. She had received a letter from the Attorney General’s office concerning the preservation of evidence which made her believe that a paralegal had served the governmental claim. Id. She therefore removed the six-month deadline from the law firm’s calendaring system. Id. The court granted late claim relief, noting that generally lawyers who adopt a system or plan by which their duties may be directed to their attention, and who are accustomed to the functioning of that system, should not be held to the same strict accountability when there is a break in that system as those for whom no system has been formed. Id. at 912.

The County argues that Champon’s staff should have caught the miscalculation in July 2022. The law firm’s custom was for counsel to calculate deadlines after the case is entered into the computer system. The office secretary input the case into the system, albeit with the wrong flags, in mid-July 2022. Johnson’s counsel should have caught the error at that time, not in January 2023 when Rex checked the time deadlines for new personal injury cases. Opp. at 4.

The County is arguing that Champon’s firm should have caught the mistake on the same day it was made. In effect, this would not be a mistake at all. In any case, the County misstates the evidence. The secretary wrongly input the information in July 2022, but that is not when Johnson’s attorneys calculated the filing deadlines. Rex performed this task in September 2022 based on the generic personal injury case type the secretary had listed in the system. Rex Decl., ¶¶ 3-4, Exs. 1-2. There was no reason for Rex to catch the error at that time.

The County argues that, if Johnson’s attorneys and staff continued to pursue the case and obtain supporting documents, there should have been many other opportunities to realize the error. The moving papers fail to explain the ongoing oversight and why they error was not discovered on a timely basis. Opp. at 4.

Johnson sufficiently replies that the law firm’s effort in a routine personal injury to collect patient medical records and billing invoices would not reveal the missed deadline. Reply at 3. It is true that Rex discovered the error in January 2023 by looking at photographs of the injury site and asking if the site was on public property. Rex Decl., ¶5. The County may legitimately question why this discovery did not happen earlier. The answer lies in the fact that the law firm’s error did not lie in misidentifying the proper defendant for the case. Johnson and Champon’s secretary were always aware that the accident occurred on government property, and therefore that the County was the proper defendant. The law firm’s error lay in the fact that the case had been improperly entered as a general personal injury case with a two-year limitations period in the firm’s computer. The misalignment of the firm’s knowledge with its computer system entry was not discovered until Rex compared the file with the computer entry in January 2023.

As Johnson asserts, her law firm has a system in place and the firm employees have decades of experience with the system. Champon Decl., ¶3. There was no cause to discover the error until the computer entry was compared with the actual file evidence. As such, the law firm is much like the firm in Renteria, supra, 135 Cal. App. 4th at 906. The firm adopted a system or plan by which its duties may be directed to their attention, and who were accustomed to the functioning of that system. The firm should not be held to the same strict accountability when there is a break in that system as those for whom no system has been formed. Id. at 912.

The failure of Johnson’s attorneys to present a claim by January 4, 2023 was due to mistake, inadvertence, surprise, or excusable neglect. The County does not dispute Johnson’s assertion that a late claim would not prejudice the County because the injury site has not changed. Champon Decl., ¶7. The Petition for relief from claim filing requirements is granted.

Johson’s counsel is ordered to prepare a proposed judgment, serve it on the County’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 19, 2023 at 1:30 p.m.

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

^{^[2]} For some reason, the County argues that section 946.6 does not permit reliance on attorney neglect as an excuse for failure to timely file the petition, citing Castro v. Sacramento County Fire Protection District, (1996) 47 Cal.App.4^th 927, 933. Opp. at 5-6. While that is true, the Petition was timely filed.