Judge James C. Chalfant, Case Number: 23STCP02156, Date: 2023-12-07 Tentative Ruling

Petitioner David Keliher (“Keliher”) 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 supporting declarations (no opposition was filed) and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Keliher commenced this action on June 15, 2023, seeking leave to present a late claim for damages against the City. The unverified Petition alleges in pertinent part as follows.

Keliher suffered serious personal injuries on January 30, 2022. He filed a Notice of Claim with the City on October 7, 2022, which the City rejected. On January 23, 2023, he filed an Application to File a Late Claim. The City rejected it on March 6, 2023.

Keliher’s failure to file a Notice of Claim within six months was due to mistake, inadvertence and excusable neglect. The City will not suffer prejudice if the court grants leave to file a late claim.

2. Course of Proceedings

On June 27, 2023, Keliher served the City with the Petition and moving papers through personal service.

No Answer 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^{^[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^{^[2]}

1. Background

Since 2013, Cohen Law Partners (“CLP”) and the Pierry Law Firm (“PLF”) have worked as co-counsel on numerous cases for personal injury claims against various governmental entities. Pierry Decl., ¶15. Most of these cases involve defects in the condition of a roadway. Pierry Decl., ¶15. Until this case, they have never failed to file timely notice of claims with the proper governmental entities before commencing civil actions. Pierry Decl., ¶15.

For any such case, one law firm will handle the labor in preparing and filing the claim forms. Pierry Decl., ¶16; Cohen Decl., ¶5. The firms would circulate an email confirming which firm would do this. Pierry Decl., ¶16.

Before COVID-19 compelled remote work, when PLF was supposed to calendar a date, PLF partner Joseph Pierry, Esq. (“Pierry”) would email his assistant David Campos, Esq. (“Campos”) to do so. Pierry Decl., ¶18; Campos Decl., ¶2. He would also generate a paper memo for Campos and calendar a follow-up date ten days after the memo. Pierry Decl., ¶18; Campos Decl., ¶¶ 2-3.

Campos would calendar the requested date and return the memo with his initials on it to Pierry. Pierry Decl., ¶18; Campos Decl., ¶3. Campos would calendar the deadline for filing the tort claim, an event two months before, another one month before, and one for every day of the last two weeks before the due date. Pierry Decl., ¶18; Campos Decl., ¶4.

CLP partner Josh Cohen, Esq. (“Cohen”) would also tell his paralegal to calendar the six-month deadline. Cohen Decl., ¶3.

2. Case History

On January 30, 2022, Keliher was riding his bicycle on the sidewalk at or near 3427 Griffith Park Blvd., Los Angeles, CA 90027. Pierry Decl., ¶4, Ex. 3. The front tire of his bike struck a dangerous change in elevation on the sidewalk. Pierry Decl., ¶4, Ex. 3. Keliher lost control and fell to the ground. Pierry Decl., ¶4, Ex. 3. Injuries included a fractured jaw with severe lacerations of his chin. Pierry Decl., ¶4, Ex. 3.

On February 1, 2022, CLP retained PLF to help represent Keliher. Pierry Decl., ¶14. CLP sent PLF various case materials for review, including photos of the Street. Pierry Decl., ¶14. On February 2, the firms agreed to work together on the case. Pierry Decl., ¶17. At the time, both firms were both working remotely due to COVID-19. Pierry Decl., ¶¶ 16-17. This led to the collapse of communication and of longstanding procedures. Pierry Decl., ¶16.

Pierry emailed Campos to calendar the six-month government tort claim for Keliher. Pierry Decl., ¶17, Ex. 1. Pierry forwarded this email to Cohen to remind him to calendar the deadline. Pierry Decl., ¶17, Ex. 1. Cohen interpreted the email to mean that PLF was going to calendar the six-month date and file the Notice of Claim. Pierry Decl., ¶17, Ex. 2; Cohen Decl., ¶5. Cohen therefore never filed the claim. Pierry Decl., ¶17.

Because PLF was working remotely, Pierry did not generate his usual paper memo to his associate and PLF did not calendar the follow-up event ten days after such memo. Pierry Decl., ¶18; Campos Decl., ¶6. Campos never saw Pierry’s email, and PLF never calendared the claim deadline. Pierry Decl., ¶18; Campos Decl., ¶5. Working remotely also caused Cohen to fail to calendar the deadline. Cohen Decl., ¶3. As a result, neither firm filed a timely notice of claim with the City. Pierry Decl., ¶19.

Upon realizing the defect, on October 7, 2022, Keliher submitted a Notice of Claim to the City. Pierry Decl., Ex. 3. On October 24, 2022, the City rejected it as untimely and advised Keliher to apply for leave to present a late claim. Pierry Decl., Ex. 4.

On January 23, 2023, Keliher applied for leave to present a late claim to the City. Pierry Decl., Ex. 5. The City denied it on March 6, 2023. Pierry Decl., Ex. 6.

This was the first time in the firms’ partnership that they missed a deadline to file a government tort claim. Pierry Decl., ¶15. To remedy this, PLF calendar emails now require a received notice and a notification that the email was read. Campos Decl., ¶7. Campos must also send Pierry a return email stating he has calendared the requested date. Campos Decl., ¶7.

D. Analysis

Petitioner Keliher seeks leave to present a late claim to the City. No opposition is on file.

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.

Keliher’s injury occurred on January 30, 2022. Pierry Decl., ¶4, Ex. 3. 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, Keliher was required to present his claim to the City within six months of January 30, 2022, or by July 30, 2022. §911.2.

Keliher filed the Notice of Claim with the City on October 7, 2022. Pierry Decl., Ex. 3. Keliher did not present a timely claim to the City.

3. Application for Leave to Present a Late Claim

On January 23, 2023, Keliher applied for leave to present a late claim to the City. Pierry Decl., Ex. 5. Because this was before January 30, 2023, it was less than a year after the accrual of the cause of action. As there is no opposition, there is no argument that the delay in making the application to file a late claim was unreasonable. The application is not time-barred.

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 Keliher’s application on March 6, 2023. Pierry Decl., Ex. 6. Keliher commenced this action on June 15, 2023, a little over three months later. His 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 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 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.

Keliher’s counsel consisted of two firms, CLP and PLF, who have worked as co-counsel on numerous government tort claims since 2013. Pierry Decl., ¶15. They have always assigned one firm to file the claim forms, and they circulate an email confirming which one would handle the forms for a particular case. Pierry Decl., ¶16; Cohen Decl., ¶5. PLF’s partner Pierry would then ask his assistant Campos to calendar the deadline and a series of reminders beforehand. Pierry Decl., ¶18; Campos Decl., ¶¶ 3-4. Pierry also generates a paper memo for Campos and calendar a follow-up date ten days after the memo. Pierry Decl., ¶18; Campos Decl., ¶¶ 2-3. Cohen would tell his own paralegal to calendar the six-month deadline for CLP. Cohen Decl., ¶3.

The firms did not follow this practice when working remotely on Keliher’s case.^{^[3]} Pierry Decl., ¶¶ 16-17. This led to the collapse of communication and longstanding procedures. Pierry Decl., ¶16. Campos did not receive the email to calendar the deadline, and there was no written memo when working remotely. Pierry Decl., ¶18; Campos Decl., ¶6. Cohen also failed to calendar the deadline. Cohen Decl., ¶3. This caused neither firm to file a timely notice of claim with the City. Pierry Decl., ¶19.

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.

As Kekiher asserts, the law firms have a system in place for presenting claims. This system broke down due to the remote work caused initial by COVID. As in Renteria, they should not be held to the same strict accountability as though the habit of reliance upon the system had not been formed. The failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect. Because no opposition was filed, the court need not consider whether granting the Petition would prejudice the City.

The failure of Keliher’s attorneys to present a timely claim was due to mistake, inadvertence, surprise, or excusable neglect. The Petition for relief from claim filing requirements is granted. Keliher is ordered to file all exhibits supporting his declarations.

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

^{^[2]}Keliher cites to exhibits that he failed to attach to his declarations. However, the facts of the case are not in dispute. For convenience, the court will cite the exhibits on which Keliher purports to rely.

^{^[3]} It is unclear why the firms were still working remotely in 2022. This may have been due more to convenience than COVID protocols.