Judge: James L. Crandall, Case: 21-1177656, Date: 2022-12-15 Tentative Ruling

Petition for Order Relieving Petitioner From 945.4

Defendant and Petitioner Robert C. Statham’s unopposed petition for an order relieving Petitioner from the requirements of Government Code section 945.4 and for leave to file a late claim against the Respondent California Department of Transportation (“Respondent”) for equitable indemnity, partial equitable indemnity, contribution and equitable apportionment, and declaratory relief is GRANTED.

Government Code Section 945.4 provides that: “Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented…until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board…”

Pursuant to Government Code Section 911.2, subdivision (a), “[a] claim relating to a cause of action for death or for injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action.”

Government Code Section 911.4 provides in pertinent part: “(a) When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim. [¶] (b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.”

Government Code Section 901 provides that “the date upon which a cause of action for equitable indemnity or partial equitable indemnity accrues shall be the date upon which a defendant is served with the complaint giving rise to the defendant's claim for equitable indemnity or partial equitable indemnity against the public entity.”

Government Code Section 946.6 provides in pertinent part: “(a) If an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4. The proper court for filing the petition is a superior court that would be a proper court for the trial of an action on the cause of action to which the claim relates. . . [¶] (b) The petition shall show each of the following: [¶] (1) That application was made to the board under Section 911.4 and was denied or deemed denied. [¶] (2) The reason for failure to present the claim within the time limit specified in Section 911.2. [¶] (3) The information required by Section 910. [¶] The petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6. [¶] (c) The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable: [¶] (1) The failure to 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.

“Relief from the six-month limit is granted under the same showing as is required for relief under Code of Civil Procedure section 473.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1778). “In deciding whether counsel’s error is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim. When examining the mistake or neglect, the court inquires whether a reasonably prudent person might have made the same error under the same or similar circumstances.” (Id. at 1782-83). “A petitioner or counsel for petitioner must show more than the mere failure to discover a fact until too late; he or she must establish the failure to discover that fact in the use of reasonable diligence.” (Id. at 1783). Notably, “a petitioner has the burden of proving by a preponderance of the evidence the necessary elements for relief. The granting or denial of a petition for relief under Government Code section 946.6 rests within the discretion of the trial court, and its determination will not be disturbed on appeal except for abuse of that discretion.” (Id.).

Pursuant to Government Code section 911.2, subdivision (a), a written claim for damages was required to be presented to Respondent within six months of the accrual of Petitioner’s

cause of action against Respondent. The claim for equitable indemnity against a public entity accrues on the date upon which a defendant is served with the complaint. (Govt. Code § 901.) Plaintiff’s initial Complaint was served on Petitioner on or about January 12, 2021, therefore, the deadline to present a claim was July 12, 2021. (Ross Decl., ¶ 5.) Petitioner presented a late claim to Respondent as a result of defective roadway design and dangerous road conditions on or about September 27, 2021. (Ross Decl., ¶ 6.) Therefore, Petitioner has shown that its written application was presented less than one year from the January 12, 2021, accrual date. (Ross Decl., ¶ 6.) On or about March 15, 2021, Respondent denied Petitioner’s Application for Leave to Present a Late Claim. (Ross Decl., ¶ 7, Ex. A.) Petitioner’s deadline to file a petition for relief from the requirements of Government Code Section 945.4 is September 15, 2022. (Ross Decl., ¶ 7.) Petitioner filed this Petition on June 15, 2022; therefore the Petition is timely.

Petitioner contends that the failure to present a claim against Respondent was through mistake, inadvertence, surprise, or excusable neglect. Specifically, Petitioner argues that the delay was a result of Petitioner performing his due diligence prior to presenting a claim. (Ross Decl., ¶ 9.) Petitioner arranged for an expert to investigate the site of the accident on June 14, 2021. (Ross Decl., ¶ 8.) The expert analyzed the sight of the accident and provided a report on July 21, 2021, indicating that the intersection in the City of Lake Forest was not compliant with engineering and code standards. (Ross Decl., ¶ 8.) Accordingly, Petitioner has sufficiently shown that failure to file a timely claim was due to mistake, inadvertence, surprise, or excusable neglect.

Pursuant to Government Code section 946.6, subdivision (b)(1), Respondent has the burden to show that it would be prejudiced in the defense of the claim if the court relieves the Petitioner from the requirements of Section 945.4. Respondent has not opposed the Petition; therefore, it has failed to meet its burden to show prejudice.

Accordingly, the Petition is GRANTED.