Judge: John J. Kralik, Case: 23BBCP00096, Date: 2023-05-26 Tentative Ruling

Case Number: 23BBCP00096    Hearing Date: May 26, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

            Petitioner Alla Afanasyeva (“Petitioner”) filed this petition for relief from government claim requirement.  Petitioner alleges that Petitioner has causes of action for general negligence and motor vehicle that accrued on April 6, 2022.  Petitioner alleges that the claim was not filed during the statutory period specified in Government Code, § 911.2 against Respondent Los Angeles County Metropolitan Transportation Authority (“Respondent” or “MTA”) because of mistake, inadvertence, surprise, and excusable neglect.  Petitioner alleges that Petitioner applied to Respondent on December 22, 2022 for leave to file a late tort claim for damages, but Respondent denied the petition on January 4, 2023.  Thus, Petitioner filed this petition with the Court. 

            The petition was filed on April 18, 2023.  It is on hearing this date of May 26, 2023.

            A review of the Court’s records for this case shows that a proof of service of the petition on Respondent has not been filed.  The Court is not in receipt of an opposition brief from Respondent.

DISCUSSION

Government Code § 911.2 provides that a claim relating to a cause of action for injury to a person, such as this, shall be presented not later than six months after the accrual of the cause of action.  Here, Petitioner’s causes of action accrued on April 6, 2022.  Accordingly, Petitioner was required to present a government claim by October 6, 2022.  Petitioner did not present the claim by this date against Respondent.

            However, Government Code § 911.4 provides that “[w]hen a claim that is required by Section 911.2 to be presented not later than six months after accrual is not presented within that time, a written application may be made to the public entity for leave to present that claim.”  (Gov. Code, § 911.4(a).)  Such application must be presented “within a reasonable time not to exceed one year from accrual and shall state the reason for the delay in presenting the claim.”  (Gov. Code, § 911.4(b).)  On December 21, 2022 (within 1 year of incident), Petitioner made a written Application for Late Claim on Respondent.  (Pet., Ex. 3.)  On January 4, 2023, Respondent sent a letter denying the application.  (Pet., Ex. 4.)  Thus, Petitioner’s Application for Late Claim was timely.

Petitioner must then meet the requirements of Government Code § 946.6.  Specifically, Government Code § 946.6(c) provides that: “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.

(Gov’t Code, § 946.6(c)(1).)  “[A] petitioner must show more than his or her failure to discover a fact until too late; the petitioner must establish that in the use of reasonable diligence he or she failed to discover it.”  (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1784.)

            Petitioner argues that it was due to mistake, inadvertence, surprise, and/or excusable neglect that Petitioner’s claim for damages was not presented to Respondent MTA within the 6-month time frame required under Government Code, § 911.2. In support of the motion, Petitioner provides the declaration of counsel John C. Ye.  Mr. Ye states that on May 7, 2022, Petitioner retained Mr. Ye’s office to represent her for injuries she sustained on April 6, 2022 while she was a passenger on an MTA bus that involved a rear-end accident.  (Pet., Ex. 2 [Ye Decl., ¶3].)  He states that he is well aware of personal injury cases as he has practiced for over 30 years.  (Ye Decl., ¶4.)  He states that on August 17, 2022 (4 months and 11 days after the incident), his firm sent MTA’s legal services the Claim for Damages along with a copy of his designation of counsel via USPS mail.  (Id., ¶6, Ex. 5.)  Thus, he states that he believed his Claim for Damages was satisfactorily sent within the 6-month requirement and his firm waited for a response from MTA.  (Id., ¶6.)  Mr. Ye states that on October 14, 2022 when his office had not yet received a response from MTA, his office did an online search on the USPS website based on the tracking number and discovered that the August 17, 2022 submission had not been delivered.  (Id., ¶7, Ex. 6.)  He states that on October 14, 2022, his firm resubmitted the Claim for Damages via USPS mail and the submission was returned by MTA as untimely.  (Id., ¶8.)  Mr. Ye states that his firm applied to file a late claim with MTA on December 21, 2022, which was denied on January 4, 2023.  (Id., ¶9, Exs. 3-4.)  Mr. Ye states that he will take responsibility for not monitoring the tracking number and that this was based on his excusable neglect.  (Id., ¶10.)  He argues that MTA cannot be prejudiced by this since all evidence, witnesses, and defenses can still be investigated and preserved by MTA.  (Id., ¶11.) 

            Pursuant to Government Code, § 946.6(c)(1), the Court must evaluate first whether the failure to present the claim in a timely fashion was through mistake, inadvertence, surprise, or excusable neglect, and then whether the public entity would be prejudiced in the defenses of the claim.   However, as stated above, the petition does not appear to have been served on Respondent yet, such that Respondent has not had the opportunity to respond or show whether it would be prejudiced by granting this petition.

            As such, the Court will continue the hearing on the petition so that Petitioner can serve Respondent and Respondent has sufficient time to file an opposition brief.

CONCLUSION AND ORDER

            Petitioner Alla Afanasyeva’s petition for order for relief from claim statute against Respondent Los Angeles County Metropolitan Transportation Authority is continued to July 28, 2023 at 8:30 a.m. 

Plaintiff is ordered to provide notice of this order.