Judge: James C. Chalfant, Case: 24STCP03011, Date: 2025-01-30 Tentative Ruling

Case Number: 24STCP03011    Hearing Date: January 30, 2025    Dept: 85

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).

D. Statement of Facts

1. Petitioner’s Evidence

Petitioner Twina’s incident occurred on or about December 12, 2023.  Lingenfelter Decl., ¶2.  Twina retained a law firm where Ernest J. Lingenfelter, Esq. (“Lingenfelter”) is an attorney (“Law Firm”) for legal assistance with his personal injury matter against the City.  Lingenfelter Decl., ¶2.  Law Firm has several individuals who are versed in completing the government claims process.  Lingenfelter Decl., ¶2.

On or about May 26, 2024, Lingenfelter directed an employee of Law Firm to file a government claim against the City, which was completed and submitted on that date.  Lingenfelter Decl., ¶3.  The claim was filed within the six-month statutory period to file a government claim.  Lingenfelter Decl., ¶3.

After not receiving confirmation of the filing, Law Firm filed a supplemental government claim through the City’s portal on or about June 17, 2024, which represented a late claim as it was being presented more than six months after the date of the incident.  Lingenfelter Decl., ¶4, Ex. 1. 

After receiving no response, Law Firm sent a written correspondence to the City Clerk on July 10, 2024, advising it of all the foregoing and asking for a status update on Twina’s government claim.  Lingenfelter Decl., ¶4, Ex. 2.

Law Firm received a response letter that the City was denying Twina’s application for leave to file a late claim. The letter was silent on any of the facts surrounding the initial timely-filed claim.  It directed Twina to petition the appropriate court for relief from the claims presentation requirement.  Lingenfelter Decl., ¶5, Ex. 3. 

Law Firm has attached a copy of the proposed complaint it intends to file if the court grants the Petition, or in the alternative deems Twina’s tort claim as timely.  Lingenfelter Decl., ¶6, Ex. 4.

2. The City’s Evidence

On December 12, 2023, Twina allegedly tripped and fell on sidewalk at 1218 N. Bronson Avenue in Los Angeles, CA.  Hayes Decl., ¶2, Ex. A. 

On June 17, 2024, Twina presented the City with a government claim.   Hayes Decl., ¶2, Ex. A. 

On June 27, 2024, the City returned Twina’s claim without taking any action “because it was not presented within six months after the event or occurrence as required by law.”  Hayes Decl., ¶2, Ex. B.

On July 5, 2024, the City received documentation from Twina, which the City treated as an application for leave to present a late claim.  Hayes Decl., ¶2, Ex. C.  On July 11, 2024, the City received a “Late Government Claim Supplemental Letter” from Twina.  Hayes Decl., ¶2, Ex. D. 

On July 11, 2024, the City denied Twina’s application for leave to present a late claim.  Hayes Decl., ¶2, Ex. E.

On September 19, 2024, Twina filed the Petition.  Hayes Decl., ¶2.  Twina served the Petition and other documents on the City on November 4, 2024.  Hayes Decl., ¶3, Ex.  F.

When a government claim is submitted to the City via submission to the City Clerk’s online portal, a claim number is automatically generated by the system and is almost simultaneously provided to the submitter in a format such as “C25-10683”, which is the claim number for Twina’s claim and indicates a claim submitted in City fiscal year 2025.  Hayes Decl., ¶4.

3. Reply Evidence

On or about May 26, 2024, Law Firm attorney Shawn Athari, Esq., who is versed in completing the government claims process, filed a government claim against the City.  Reply Athari Decl., ¶3.  Because the City’s submission form is made through an online portal, there was no documentation provided to Law Firm showing the submission was done.  Reply Athari Decl., ¶3. 

E. Analysis

Petitioner Twina seeks relief from the need to file a timely tort claim to allow him to file his civil complaint against the City.

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 factual basis for its elements.”  Id.

Petitioner’s claim accrued on December 12, 2023, when the accident occurred. 

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, Twina was required to present his claim to the City within six months of December 12, 2023, or by June 12, 2024.  §911.2. 

Twina argues that he timely presented a claim on May 26, 2024.  Initially, Twina filed his government claim with the City on or about Sunday, May 26, 2024. Lingenfelter Decl., ¶3.  As such, the claim was filed within the applicable six-month filing period.  This claim was allegedly not received by City due to technical issue with its claims portal.  Once Law Firm realized that the City’s government claims portal had not given confirmation of receipt, out of an abundance of caution Law  Firm filed a late claim and application for leave to present a late tort claims with the City on or about June 17, 2024.  Lingenfelter Decl., ¶4, Exs. 1, 2. This late claim was filed less than one week after the six-month initial filing period.  Pet. Op. Br. at 2.

A section 949.6 proceeding is akin to a relief from default, permitting a petitioner to proceed on the underlying suit.  Ngo v. County of Los Angeles, (“Ngo”) (1989) 207 Cal.App.3d 946, 950.  Pursuant to Ngo, where a petitioner contends that his claim was timely presented because of delayed accrual, he may simply file a complaint for damages alleging timely compliance with the Claims Act.  Id.  The jury will then try the issue of claim accrual as a question of fact.  Id.  The court hearing a late claim petition under section 946.6 may not take from the jury the factual question of claim accrual.  Id. 

The issue of timely filing of a claim may be determined in a petition for relief from the claim presentation requirements of section 945.4.  Santee v. Santa Clara County Office of Education, (“Santee”) (1990) 220 Cal.App.3d 702, 711 (“the issue of timely filing may be determined in a claim-relief proceeding.”).  The Santee court acknowledged that this does not mean that the issue of timely filing must be determined by a claim-relief proceeding.  Id.  Where the date of accrual is disputed and there is a factual question of timeliness, the matter is best left to a determination by the jury in a trial for damages.  Id. at 712. 

In this case, there is no issue of the date of accrual, only whether a timely claim was presented.  The court therefore chooses to address Twina’s argument that the claim was timely presented and compliant with the Claims Act.

As the City correctly argues, Twina has insufficient evidence that a claim was presented on May 26, 2024.[2]  While Petitioner’s counsel contends that he “directed an employee to file a government claim” against the City on May 26, 2024, there is no documentary evidence from Law Firm to support that a claim was presented on that date.  See Lingenfeler Decl., ¶3.  Law Firm should have some computer-generated document or hard copy to prove the submission.

Additionally, although Twina’s counsel asserts that task “was completed” and a government claim was submitted on that date, this statement is hearsay and lacking in personal knowledge.  See Lingenfelter Decl., ¶3.  There is no declaration from the employee who was directed on a Sunday of a three-day weekend to submit a claim stating how the claim was submitted (orally, writing, text, email, online City portal) and that he/she in fact submitted a government claim to the City.  

While Twina attempts to blame the City “due to technical issue with its claims portal” or other “technological reasons”, there is no evidence supporting this assertion. Moreover, the City presents evidence that when a claim is submitted through the City’s Office of the City Clerk’s electronic claims portal, the claimant receives a confirmation -- including the claim number -- almost instantaneously. Hayes Decl., ¶4. Petitioner’s counsel asserts his “office has several individuals who are versed in completing the government claim presentation process and are familiar with doing such.”  Lingenfelter Decl., ¶2.  The unidentified employee versed in completing the claims presentation process should have received an automatically generated claim number instantaneously.  If there was a glitch in the system, that employee should have recognized a technical issue with the submission on May 26 and taken appropriate action.  There would have been no reason to wait until June 17^th (three weeks later) to file a supplemental government claim through the City’s portal.  See Lingenfelter Decl., ¶4.  

In reply, Petitioner attempts to rectify these defects.  Twina presents evidence that, on or about May 26, 2024, Shawn Athari, Esq., (“Athari”) who is versed in completing the government claims process, filed a government claim against the City.  Reply Athari Decl., ¶¶ 2-3.  Because the City’s submission form is through an online portal, there was no documentation provided to Law Firm showing the submission was done.  Reply Athari Decl., ¶3.

Aside from the fact that this evidence should have been presented in the moving papers and may be disregarded (Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333), it is insufficient.  Athari fails to address the fact that she should have received an automatically generated claim number instantaneously and, if there was a glitch in the system, she should have recognized a technical issue with the submission on May 26 and taken appropriate action.  At best, Athari shows that she made an attempt to submit a claim but was both unsuccessful, and there is no explanation why she waited from May 26 until June 17 to take action.

  Petitioner’s evidence of a timely claim is inadequate.

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  

The application to the public entity for permission to file a late claim must be presented within a reasonable time, and not later than one year after the cause of action’s accrual.  §911.4(b). 

Petitioner’s claim accrued on December 12, 2023 and he was required to present the application for leave to file a late claim by December 12, 2024.  The application was presented to the City on July 5 and 11, 2024.  This was within a year of accrual and the City does not argue it was unreasonable. 

4. The Application Was Denied or Deemed Denied by the Public Agency Pursuant to Section 911.6.  

The City denied the application to present a late claim on July 11, 2024. 

5. The Petition is Timely 

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 September 19, 2024, within six months of the City’s July 11, 2024 denial of leave to present a late claim. 

6. The Failure to Timely Present the Claim was Through 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, (1974) 12 Cal.3d 447, 455.  Timely compliance with the claim’s 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. 

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; Department of Water & Power v. Superior Court, (2000) 82 Cal.App.4th 1288, 1294.   Ignorance of the claim’s 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.  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.  “It is not the purpose of remedial statutes to grant relief from defaults which are the result of inexcusable neglect of parties or their attorneys in the performance of latter’s obligation to their clients.”  Tammen v. San Diego County, (1967) 66 Cal.2d 468, 478.

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 Bettancourt v. Los Rios Community College Dist., (“Bettancourt”) (1986) 42 Cal.3d 270, 275, the claimant’s counsel made an erroneous assumption that employees of Sacramento City College were state employees and failed to remedy the error within the time frame for government claims.  Bettancourt’s counsel was confused by the blend of state and local control and funding and filed a claim with the State when he/she should have filed with the Los Rios Community College District.  The Supreme Court held that counsel’s error was reasonable in light of the confusing blend of state and local control and funding of the higher education system and that counsel acted diligently once he discovered his error.

Petitioner Twina contends that his failure to comply with the claim’s presentation requirement was due to mistake, inadvertence, surprise, or excusable neglect.  He argues that the City allegedly never received his first timely-submitted claim, and then subsequently denied his application for leave to file a late claim mere weeks after the six-month statutory period had elapsed.  Pet. Op. Br. at 3.  Petitioner argues that he exercised reasonable diligence in filing the initial government claim within the first six months, but it allegedly was not received by City due to technical issue with its claims portal.  Petitioner then exercised even more reasonable diligence in re-filing the claim and applying for leave to present a late claim, which was ultimately denied by City.  Pet. Op. Br. at 4.

The contention of diligence in presenting a claim on May 26 is not a contention of excusable neglect.  Rather, it is an argument of Claim Act compliance which is addressed ante.  Petitioner’s suggestion that Law Firm acted diligently in applying for leave to present a late claim focuses on the wrong time period, which is the six-month period between December 12, 2023 and June 12, 2024.  §911.2.  Moreover, Athari’s attempt to submit a claim was both unsuccessful and not diligent for purposes of excusable neglect.  See ante.[3]

F. Conclusion

The Petition for relief to permit Petitioner to file a complaint is denied.