Judge James C. Chalfant, Case Number: 24STCP00089, Date: 2024-04-11 Tentative Ruling

Petitioner Paul Dawson (“Dawson”) seeks leave to present a late claim against Respondents Housing Authority for the City of Los Angeles (“Housing Authority”).

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

A. Statement of the Case

Petitioner Dawson commenced this proceeding on January 10, 2024. The Petition alleges in pertinent part as follows.

The Housing Authority was made aware of Dawson’s claim as early as April 12, 2023. Pet., ¶2. There were 31 or more communications between Dawson’s attorneys and claims adjusters for the Housing Authority between April 12, 2023 and October 4, 2023. Pet., ¶2. The City is claiming that Dawson failed to present the claim in compliance with Government Code sections 910-911.2 and 945.4. Pet., ¶2.

Dawson filed a late claim on November 6, 2023 and thereafter filed a late claim application on November 21, 2023. Pet., ¶4. These dates were 32 days and 46 days after the six-month presentation requirement window. Pet., ¶4.

Dawson seeks leave to file suit due to excusable neglect and mistake. Pet., Prayer. Alternatively, Dawson seeks a finding that he substantially complied with the Claims Act. Id.

B. Applicable Law

Under the Government Claims Act ( the “Claims 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. Government 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).

Dawson was injured on April 5, 2023. On the same day, Dawson retained the law office of Sweet James Accident Attorneys, LLP (“Former Counsel”) to represent him on his bodily injury claim. Kocaj Decl., ¶2. In April 2023, Former Counsel paid for and requested a copy of the Los Angeles Police Department (“LAPD”) traffic collision report. Kocaj Decl., ¶4. The report was not provided to Dawson’s former counsel until October 16, 2023. Id.

On July 5, 2023, Dawson retained trial counsel Law Offices of Samer Habbas & Associates, P.C. (“Current Counsel”) for the purposes of filing a lawsuit on his claim. Kocaj Decl., ¶3. At the time of substitution, Current Counsel was under the impression, based on correspondence in the file, that Former Counsel had presented a claim via government tort claim form to Housing Authority. Kocaj Decl., ¶6.

On November 1, 2023, Current Counsel became aware of the possibility that a claim form had not been presented to the City in a manner that complied with the Claims Act. Kocaj Decl., ¶8.

Current Counsel understands that the following occurred with Former Counsel from April 12 through June 14, 2023. Kocaj Decl., ¶¶ 10-20.

On our around April 12, 2023, Former Counsel representative Darwin Flores contacted the “Risk Retention Group for Housing Authority” to open the claim. Kocaj Decl., ¶11. On April 17, 2023, Former Counsel filed a claim letter with “the City’s Risk Retention Group”. Kocaj Decl., ¶12.

On or around April 21, 2023, Koning & Associates, the claims adjuster for Housing Authority Risk Retention Group, sent an email to Former Counsel confirming receipt of Former Counsel’s representation letter for Dawson. Kocaj Decl., ¶¶ 15-16, Ex. B.

On June 14, 2023, Koning & Associates informed Former Counsel that it had been retained to assist in gathering facts about the incident and that Housing Authority Risk Retention Group, the liability insurer for Housing Authority, would make all decisions on liability and damages. Kocaj Decl. ¶20, Ex. C.

On July 7, 2023, Current Counsel contacted Former Counsel and received information that the traffic collision report had been paid for and not received from LAPD. Kocaj Decl., ¶23. On July 12, 2023, Current Counsel sent a letter of representation to the Housing Authority Risk Retention Group that Current Counsel was substituting in for Former Counsel. Kocaj Decal., ¶¶ 24-25, Ex. D. Current Counsel sent an email the same day asking about the status of liability. Kocaj Decl., ¶26, Ex. E. Risk Retention Group responded, confirming receipt and stating that it has been retained by Housing Authority to assist in its investigation of Dawson’s incident. Kocaj Decl., ¶28.

Various communications occurred between Current Counsel and Koning & Associates from July 21 to October 2023. Kocaj Decl., ¶¶ 31-55, Exs. E-G. Koning & Associates always identified itself as the claims adjuster working for the Housing Authority’s liability insurer, Housing Authority Risk Retention Group. See Ex. F.

On November 1, 2023, Konig & Associates emailed Current Counsel, informing it that “the City ‘never received a tort claim for this incident.’” Kocaj Decl., ¶56. Current Counsel emailed Konig & Associates a response that it understood that a claim was presented by Former Counsel, hence the claim number and notice regarding the claim. Kocaj Decl., ¶57.

Current Counsel served the Housing Authority with an application to present a late claim on November 6, 2023 and then served an amended version on November 21, 2023. Kocaj Decl., ¶¶ 62-63, Ex. H.

Dawson’s failure to file a timely government claim was due to mistake, inadvertence, disability, and/or excusable neglect. Kocaj Decl. ¶ 60. The adjusters retained by the City led Current Counsel to believe that a claim had been presented and that liability was being reviewed. Kocaj Decl. ¶ 61.

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 factual basis for its elements.” Id.

On April 5, 2023, Dawson was in the parking lot of the Pueblo Del Rio Apartments lying underneath his vehicle while he worked to remove a lift-jack he used while working on his vehicle that day. Mem. at 1. As he lay on the ground with his legs protruding from underneath the car, a Housing Authority employee operating a yellow Ford Ecoline van ran over Dawson’s right leg. Mem. at 1.

Dawson’s claim accrued on April 5, 2023, when he was injured when he was run over by the Housing Authority’s vehicle as he was working underneath his vehicle.

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, Dawson was required to present his claim to the Respondents within six months of April 5, 2023, or by October 5, 2023. §911.2.

Dawson presented his claim to the Housing Authority on November 6, 2023 and presented his amended claim on November 21, 2023. On either date, the claim presentation was untimely.

3. 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

Dawson’s claim accrued on April 5, 2023. He was required to present his application for leave to file a late claim within a reasonable time and no later than October 5, 2023. The application to present a late claim was presented to the Housing Authority on either November 6 or 21, 2023. The late claim application was made within a year, and Housing Authority does not contend that the date was unreasonable.

4. The application was denied or deemed denied by the public agency pursuant to section 911.6

Housing Authority states that the request was deemed denied by the operation of the law as of December 21, 2023. Opp. at 2.

The petition for leave to file a late claim must be filed with the court within six months after the application to the public entity is denied or deemed to be denied. §946.6(b). The Petition was filed on January 10, 2024, within six months of Housing Authority’s denial of the leave to present a late claim. Petition, p. 13.

6. The failure to timely present the claim was made through mistake, inadvertence, surprise, or excusable neglect

Dawson argues that his failure to comply with the claim presentation requirement was due to mistake, inadvertence, surprise or excusable neglect because Current Counsel was “under the impression” that Former Counsel had presented a claim to the Housing Authority. Kocaj Decl. ¶22. Dawson further argues that Housing Authority would not be prejudiced by granting of this Petition.

The purpose of the Claims Act is to provide the public entity sufficient information to enable it to adequately investigate claims and settle them, if appropriate, without the expense of litigation. City of San Jose v. Superior Court, (“City of San Jose”) (1974) 12 Cal.3d 447, 455. Timely compliance with claim presentation requirements 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.

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. El Dorado Irrig. Dist. v. Superior Court, (1979) 98 Cal.App.3d 57, 62. 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.

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 a 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. A mistake or neglect by an attorney is imputed to the client and may not be offered by the latter as a basis for relief. Mitchell v. Department of Transportation, (1985) 163 Cal.App.3d 1016, 1021.

The period at issue for excusable neglect is the six-month period from Dawson’s accident on April 5 to October 5, 2023.

Dawson provides evidence about Former Counsel’s communications from April 5 until Current Counsel was retained on July 5, 2023. Most important, on June 14, 2023, Koning & Associates informed Former Counsel that it had been retained to assist in gathering facts about the incident and that Housing Authority Risk Retention Group, the liability insurer for Housing Authority, would make all decisions on liability and damages. Kocaj Decl. ¶20, Ex. C. Thus, Former Counsel – and Current Counsel when it retained the file – knew that it was communicating with Risk Retention Group, the liability insurer for Housing Authority, and with Risk Retention Group’s claims adjuster, Koning & Associates. Neither of these entities is Housing Authority.[2] Former Counsel never contacted or communicated with Housing Authority. Former Counsel failed to make a claim with Housing Authority and did not act diligently in the three months it represented Dawson.

Current Counsel merely states that it was “under the impression” that Former Counsel had submitted a claim. Kocaj Decl., ¶22. This also is not reasonable diligence. A reasonable attorney would have inquired of both Former Counsel and Housing Authority whether a claim had been made. Current Counsel obviously knew that a claim against Housing Authority was required. It cannot rely on communications with a third-party insurer, including the claim number it created, or that third party’s claims adjuster. This is not excusable neglect.

Although Dawson sought counsel immediately after his accident, his counsel did not act diligently to file a claim. This failure is imputed to Dawson and is not excusable neglect.

In the alternative, Dawson argues that he substantially complied with the Claims Act’s claim requirements because Former Counsel contacted the agents for the Housing Authority’s insurer on April 12, 2023, within a week of the cause of action. Mem. at 13. He repeatedly argues that Housing Authority had actual knowledge of the circumstances surrounding the claim, Dawson’s name and address, the address of Former and Current Counsel, a detailed description of the injury and damages, the name of the Housing Authority employee causing the injuries, and that Dawson’s damages exceeded $10,000. Reply at 3. This knowledge occurred through Konig & Associates, which clearly held itself out as Housing Authority’s agent. Reply at 8.

Dawson relies on Ebersol v. Cowan, (1983) 35 Cal.3d 427, but that reliance is misguided because Ebersol found mistake, inadvertence, surprise, or excusable neglect, which is not true in this case. See id. at 439-40. Dawson’s contact with a third-party insurer (Housing Authority Risk Retention Group) and that insurer’s claims adjuster (Konig & Associates)[3] does not qualify as presentation of a claim to Housing Authority or even show Housing Authority’s actual knowledge of the claim. The mere fact that Former Counsel was notified that Housing Authority Risk Retention Group would make all decisions regarding liability, coverage, and damages does not satisfy the Claims Act. Reply at 8, Ex. A. “It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge — standing alone — constitutes neither substantial compliance nor basis for estoppel.” City of San Jose, supra, 12 Cal.3d at 465.

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

[2] Housing Authority notes that it is a distinct legal entity from the City. Housing Authority v. City of Los Angeles, (1952) 38 Cal.2d 853,862-64. Opp. at 3.

[3] It is not clear that either of Dawson’s counsel communicated with Housing Authority Risk Retention Group as opposed to its claims adjuster, Konig & Associates.