Judge James C. Chalfant, Case Number: 23STCP01030, Date: 2023-12-05 Tentative Ruling

Petitioner Dwayne Burrell (“Burrell”) seeks leave to present a late claim for damages against Respondent City of Los Angeles (“City”).

The court has read and considered the moving papers and opposition, as well as the version of Burrell’s moving papers in the trial notebook,^{^[1]} and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Burrell commenced this action on April 3, 2023, seeking leave to present a late claim for damages against the County. The unverified Petition alleges in pertinent part as follows.

On October 3, 2021, Burrell was traveling down the street on a rideshare scooter at Harbor Transitway/37th St./USC (“Intersection”). He lost his balance on concrete that was broken, defective, uneven, split, cracked, or fractured in an uneven way. Burrell’s injuries were severe and likely caused permanent damage. The City is liable for this damage under Govt. Code sections 815.2, 820, 830, and 835.

In February 2022, Burrell presented a Claim for Damages to Los Angeles County. The County Claim was denied on April 18, 2022.

On August 9, 2022, Burrell filed a complaint against the County, Dwayne Burrell v. County of Los Angeles, (“Burrell v. County”), Case No. 22STCV25606. On August 16, 2022, the County informed him that the City, not the County, controls the Intersection. On August 18, 2022, at the County’s request, Burrell filed a request to dismissal the County. He also filed an amendment to the complaint adding the City as a defendant.

On February 15, 2023, the City demurred to the complaint in Burrell v. County, for failure to bring a timely claim under Govt. Code section 946.6. which the court sustained. On February 16, 2023, Burrell filed a Claim for Damages against the City. The City denied the claim on March 15, 2023.

Burrell seeks leave to file a complaint against the City within 30 days of an order to that effect.

2. Course of Proceedings

No proof of service for the Petition is on file.

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^{^[2]} §§ 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^{^[3]}

In both this case and Burrell v. County, Burrell alleges that, on October 3, 2021, he was on a rideshare scooter when he fell on broken, split, and uneven concrete at the Intersection. RJN Ex. A.

In February 2022, Burrell presented a claim to the County. RJN Ex. A. On March 2, 2022, the County’s insurance company sent a Notice of Insufficiency asking for more information. TN Ex. 1. On April 18, 2022, the County denied the claim. TN Ex. 2.

On August 9, 2022, Burrell filed the complaint in Burrell v. County. RJN Ex. A. On August 16, 2022, the County informed Burrell that the City controls the Intersection where his injury occurred. TN Ex. 4. On August 18, 2022, pursuant to the County’s request, Burrell dismissed the complaint against the County. He also amended the complaint to name the City as a defendant. TN Exs. 4-5. The City asked for several continuances to file a responsive pleading. TN Exs. 6-8.

On January 12, 2023, the City demurred to the complaint in Burrell v. County on the grounds that Burrell had not presented the City with a timely claim for damages with the City under section 911.2. RJN Ex. A; TN Ex 9. Burrell filed an opposition. RJN Ex. A; TN Ex. 10. He attached a copy of his County claim as evidence, but the court could not consider it in a demurrer. RJN Ex. A; TN Ex. 10.

The City argued that filing a claim with the wrong public entity was not a defense for failure to file a claim. RJN Ex. A; TN Ex. 9. Burrell argued that he complied with the claims presentation requirement, and no prejudice has resulted to the City. RJN Ex. A; TN Ex. 10.

On February 15, 2023, the court in Burrell v. County sustained the City’s demurrer without leave to amend. RJN Ex. A; TN Ex. 11. Burrell had never presented a claim to the City and the court ruled that Burrell’s cited authority did not demonstrate that presenting a claim to the wrong entity constitutes substantial compliance with the claims presentation requirement. RJN Ex. A; TN Ex. 11. No authority suggested that the court could relieve a plaintiff from claims presentation requirements in response to an opposition to a demurrer. RJN Ex. A; TN Ex. 11.

On February 16, 2023, Burrell presented a claim to the City. TN Ex. 12. On March 15, 2023, the City denied the claim because it had not been made within one year of accrual on October 3, 2021. TN Ex. 13. Burrell filed this Petition on April 3, 2023. TN Ex. 14.

D. Analysis

Burrell seeks leave to present a late claim to the City based on his injury 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 parties agree that Burrell’s injury occurred on October 3, 2021. Pet. Op. Br. at 1-2; Opp. at 2. 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, Burrell was required to present his claim to the City within six months of October 3, 2021, or by April 3, 2022. §911.2.

Burrell filed the City claim on February 16, 2023, long after the April 3, 2022 deadline. TN Ex. 12. Burrell did not present a timely claim to the City.

Burrell asserts that he presented a timely claim to the County in February 2022, and that a claim to the wrong entity constitutes substantial compliance with the claims presentation requirement. Pet. Op. B. at 6. This argument is frivolous. The County and City are separate entities. Burrell cannot substantially comply with claim presentation requirements for the City by presenting a claim to the County.

3. Application for Leave to Present a Late Claim

Burrell presented a claim to the City on February 16, 2023, more than a year after the claim accrued on October 3, 2021. TN Ex. 12. Even if this claim is construed as an application to present a late claim, it is time-barred.

Burrell notes that he added the City as a defendant in Burrell v. County on August 18, 2022, which was within one year of the injury and accrual of the cause of action. Pet. Op. Br. at 6. That fact adds nothing to the analysis. A party must present a claim to a government agency, which must be acted upon or deemed rejected by the public entity, before filing suit. §§ 945.4, 950.2, 950.6(a).

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).

The City denied Burrell’s claim on March 15, 2023. TN Ex. 13. Burrell filed the Petition a month later. His Petition 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.

Burrell asserts there was no mistake, inadvertence, disability, or excusable neglect because he filed his County claim withing six months of accrual. Pet. Op. Br. at 5. As discussed above, a petitioner cannot demonstrate substantial compliance based on timely filing with the wrong agency.

Burrell then asserts that it is the City that made a mistake. Pet. Op. Br. at 7. He added the City to Burrell v. County within one year of the incident. Id. Although the City received the complaint in August 2022, it did not ask whether Burrell had filed a claim against it until its February 2023 demurrer. Pet. Op. Br. at 7. This was after the one-year deadline to file a late claim application had passed. Opp. at 3. As Burrell admits, the City had no duty to inform Burrell that he should present a claim to it. Pet. Op. Br. at 7.

Moreover, as the City notes, Burrell presents no evidence about any effort to determine who owns and controls the Intersection where his injury occurred, or why he failed to know that it is owned and controlled by the City. Opp. at 5. The County informed Burrell that the City controls the Intersection, and therefore was the correct agency for a claim, on August 16, 2022. TN Ex. 4. This was less than a year after his October 3, 2021 injury. While a claim against the City at that time would have been untimely, it would not have been completely time-barred by section 911.4(b). Yet, Burrell did nothing to present a claim against the City until February 16, 2023. By then, it was too late.

Burrell asserts that no material evidence was lost because of the delay. The Intersection has not changed since the injury and witnesses to the incident are still available for interview. Burrell also has photographs of the Intersection from the day of the injury. Leave to present an untimely claim would not prejudice the City’s ability to investigate or defend against Burrell’s lawsuit. Pet. Op Br. at 5, 8.

Burrell misunderstands claims against government agency. The government is immune from suit unless it waives that immunity, and the Act is a limited waiver of the government’s immunity. Prejudice is only relevant to defeat a petition after the petitioner has demonstrated mistake, inadvertence, surprise, or excusable neglect. §946.6(c)(1). 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.

Burrell’s failure to timely present his claim to the City was not due to mistake, inadvertence, surprise, or excusable neglect.

The Petition for relief from claim filing requirements is denied, both because (a) Burrell’s failure to present a timely claim to the City was not due to mistake, inadvertence, surprise, or excusable neglect and (b) it is time-barred under section 911.4(b).

^{^[1]}Burrell’s brief in the trial notebook does not match the brief electronically filed with the court. The trial notebook also contains exhibits that never were filed, and it fails to contain the City’s opposition and request for judicial notice. Further, Burrell’s opening brief is unpaginated in violation of CRC 2.109. Burrell’s counsel is admonished to follow the CRC and the court’s directions for all future trial notebooks.

^{^[2]}All further statutory references are to the Government Code unless otherwise stated.

^{^[3]}The City requests judicial notice of (1) Burrell v. County, Case No. 22STCV25606; and (2) the February 15, 2023 minute order in Burrell v. County (RJN Ex. A). The court judicially notices the existence of Burrell v. County. Evid. Code §452(d). The request also is granted for the minute order. Evid. Code §452(d).

Burrell fails to cite to any evidence in the filed version of his opening brief, which is the only version that the court may consider. While the City cites the Petition, it is unverified and cannot be used as evidence. See CCP §446(a). However, the facts of the case are not in dispute, and for convenience the court will cite the evidence in the trial notebook.