Judge James C. Chalfant, Case Number: 24STCP00373, Date: 2024-06-18 Tentative Ruling

Petitioner Belinda Hijar Orta (“Orta”) seeks leave to present a late claim against Respondent Los Angeles County Metropolitan Transportation Authority (“MTA”).

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

A. Statement of the Case

Petitioner Orta commenced this proceeding on February 5, 2024. The Petition alleges in pertinent part as follows.

Orta, who was 62 years old at the relevant time, has a legal claim against the MTA. Pet., ¶1. On or about December 15, 2022, at around 5:15 p.m., she was a passenger on an MTA bus. Pet., ¶1. The bus was under the control of a MTA employee and traveling eastbound on Victory Boulevard at or near Tyrone Avenue. Pet., ¶1. The bus driver suddenly and without due care for his passengers, stopped the bus abruptly. Pet., ¶1. Orta flew out of her bus seat, fell to the ground, and landed on her right knee and elbow, also hitting a bus handrail with her left foot. Pet., ¶1. As a result, she has suffered injuries. Pet., 1. Orta alleges that the MTA is liable for the negligence of its employee. Pet., ¶2.

On July 19, 2023, within one year of the incident, Orta’s counsel presented to the MTA a claim for damages as well as an application for permission to present a late claim. Pet., ¶3. The application for leave to present a late claim was denied by a Notice ofRejection dated August 7, 2023 and received on August 10, 2023. Pet., 3.

The Petition has been timely brought after the MTA’s denial pursuant to Govt. Code section 946.6(b) and Orta seeks leave to file suit due to excusable neglect and mistake. Pet., ¶¶ 4-5.

B. Applicable Law

Under the Government Claims Act (“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).

Orta has filed two declarations from Attorney Ivan Lopez Ventura (“Ventura”).

Orta retained Attorney Ventura on or about December 29, 2022, to represent her in a claim for injuries she sustained on or about December 15, 2022. Ventura Decl., ¶2. Orta is still undergoing treatment for the injuries that she sustained giving rise to this claim. Ventura Decl., ¶5.

Orta' s reason for the delay in presenting her claim against “the County of Los Angeles” (sic.) is that, due to mistake, inadvertence, and excusable neglect, the deadline to file her claim was calendared incorrectly. The claim accrued on December 15, 2022 and Orta retained Ventura’s office on or about December 29, 2022. Ventura Decl., ¶3.

As is the custom and practice in Ventura’ office, the deadline to file this claim was calendared immediately. Ventura Decl., ¶3. Due to the fact that it was year-end, the deadline was mistakenly calendared as "June 15, 2022" instead of "June 15, 2023". Ventura Decl., ¶4. on or about July 10, 2023, it came to Ventura’s attention in reviewing the status of Orta’s case and following up with her medical treatment plan that a government claim had not been filed. Ventura Decl., ¶5. Investigating further, he searched the calendar to determine what the deadline was and saw that it was June 15, 2022. Ventura Decl., ¶5. He realized that a mistake was made and immediately filed the claim as well as the present application for relief. Ventura Decl., ¶5.

This was an honest mistake due to the year changing. Although the right deadline due date was calculated, the year 2022 was inadvertently used instead of the year 2023, as at that time this was the default year. Ventura Decl., ¶6.

This claim is presented within about one month from the six-month claim's presentation deadline and, indeed, within one year from the date of the incident. Ventura Decl., ¶8. Orta is still being treated for the injuries she sustained in the incident giving rise to this claim. As such, the government would not have been able to fully evaluate her claim within the six-month deadline. Medical records are continuing to become available as her treatment is ongoing. Ventura Decl., ¶8.

Ventura is informed and believes, and thereon states, that no material evidence has been lost due to this delay. Upon request, his office can provide a description of the scene of the incident, copies of all relevant medical records, copy of the MTA Incident Report that was prepared after the incident, and will even go to the location of the incident with a representative of the MTA. Ventura Decl., ¶10.

July 14, 2023 Ventura Declaration in Support of Application to MTA for Late Claim

Ventura was retained on or about December 29, 2022 by Orta to represent her in a claim for injuries she sustained on or about December 15, 2022. Ventura Decl., ¶2.

Orta's reason for the delay in presenting her claim against “the County of Los Angeles” (sic.) is as follows:

i. Due to mistake, inadvertence, and excusable neglect, the deadline to file this claim was calendared incorrectly. The claim accrued on December 15, 2022. Orta retained Ventura’s office on or about December 29,2022;

ii. As is the custom and practice in Ventura’s office, the deadline to file this claim was calendared immediately. Due to the fact that it was year-end, the deadline was mistakenly calendared as "June 15, 2022" instead of "June 15, 2023";

iii. Orta is still undergoing treatment for the injuries she sustained giving rise to this claim. Her most recent appointment was on or about July 10, 2023. It came to Ventura’s attention in reviewing the status of her case following that appointment that the government claim had not been filed. Investigating further, Ventura searched the calendar to determine what the deadline was, saw the deadline was on the calendar as June 15, 2022, realized that a mistake had been made, and immediately filed the claim as well as the application for relief;

iv. This was an honest mistake due to the year changing. Although the right deadline due date was calculated, the year 2022 was inadvertently used instead of the year 2023, as at that time this was the default year;

v. While the government had a statutory right to receive a timely notice of this claim, the fact is that the government will not be meaningfully prejudiced by this mistake;

vi. This claim is presented less than one month from the six-month deadline. Also, Orta is still treating for the injuries she sustained in the incident giving rise to this claim. As such, the government would not have been able to fully evaluate her claim within the six-month deadline. Medical records are continuing to become available as her treatment is ongoing; and

vii. Mrs. Orta was seriously injured and respectfully deserves to have her claim heard and decided on the merits despite this year-end calendaring mistake and inadvertence. Ventura Decl., ¶3.

Petitioner Orta seeks relief from claim presentation requirements due to excusable neglect.

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 or about December 15, 2022, at around 5:15 p.m., she was a passenger on an MTA bus. Pet., ¶1. The bus was under the control of a MTA employee and traveling eastbound on Victory Boulevard at or near Tyrone Avenue. Pet., ¶1. The bus driver suddenly and without due care for his passengers, stopped the bus abruptly. Pet., ¶1. Orta flew out of her bus seat, fell to the ground, and landed on her right knee and elbow, also hitting a bus handrail with her left foot. Pet., ¶1. As a result, she has suffered injuries. Pet., 1. Orta alleges that the MTA is liable for the negligence of its employee. Pet., ¶2.

Orta’s claim accrued on December 15, 2022 when he was injured while riding an MTA bus.

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.

Orta presented her claim to the MTA on July 19, 2023. The claim presentation was due by June 15, 2023 and was untimely by more than a month.

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

Orta’s claim accrued on December 15, 2022. She was required to present her application for leave to file a late claim within a reasonable time and no later than December 15 2023. Her application to present a late claim was presented to the MTA on the same July 19, 2023 date as her claim. The late claim application was made within a year, but the MTA argues that there is no showing that it was presented in a reasonable time. Opp. at 4.

The late claim application was made within approximately a month of the six-month claim deadline. As a matter of law, this period is reasonable and no further showing is required.

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

The MTA denied the application for leave to present a late claim by letter on August 7, 2023. Pet., Ex. 3.

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). Orta’s Petition was filed on February 5, 2024, within six months of the MTA’s August 7, 2023 denial of the leave to present a late claim.

The MTA argues that Orta provides no explanation why she waited almost six months to file her Petition. Opp. at 2. The short answer is that she is not required to do so as long as it is timely.

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

Orta argues that her failure to comply with the claim presentation requirement was due to mistake, inadvertence, surprise or excusable neglect.

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.

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 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. at 907. 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 period at issue for excusable neglect is the six-month period from Orta’s claim accrual on December 15, 2022 until June 15, 2023. Orta presents evidence that she retained Ventura’s office on or about December 29, 2022. Ventura Decl., ¶3. As is the custom and practice in Ventura’ office, the deadline to file this claim was calendared immediately. Ventura Decl., ¶3. Due to the fact that it was year-end, the deadline was mistakenly calendared as "June 15, 2022" instead of "June 15, 2023". Ventura Decl., ¶4. on or about July 10, 2023, it came to Ventura’s attention in reviewing the status of Orta’s case that a government claim had not been filed. Ventura Decl., ¶5. Investigating further, he searched the calendar to determine what the deadline was and saw that it was June 15, 2022. Ventura Decl., ¶5. He realized that a mistake was made and immediately filed the claim as well as the present application for relief. Ventura Decl., ¶5. This was an honest mistake due to the year changing. Although the right deadline due date was calculated, the year 2022 was inadvertently used instead of the year 2023, as at that time this was the default year. Ventura Decl., ¶6.

As the MTA argues (Opp. at 4), this evidence is insufficient. While mis-calendaring can be a basis for excusable neglect, it must be supported by a foundation of facts. It is not enough to state that the attorney’s office mis-calendared the year. There is no declaration from the employee who made the error. There is no evidence about the calendaring software, who inputs it, how its default works, or if it is periodically checked. In short, there is no evidence about an office system or plan by which Ventura’s duties may be directed to the deadline and that he was accustomed to functioning within that system. See Renteria, supra, 135 Cal. App. 4th at 906.

Although Orta sought counsel almost immediately after her accident, her counsel’s failure is not excusable neglect. The petition for leave to file a late claim is denied.

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