Judge: Jon R. Takasugi, Case: 22STCP01531, Date: 2023-01-05 Tentative Ruling

Case Number: 22STCP01531    Hearing Date: January 5, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiff’s petition for relief is DENIED.

            On 4/27/2022, Plaintiff filed a petition for relief from the Government Claim filing requirements. 

            On 12/6/2022, Plaintiff filed an amended petition for relief.

            Now, Plaintiff moves for consideration of his petition for relief.

Legal Standard

The Government Claims Act, Government Code sections 900 et seq., requires a litigant suing a public entity to present a prelitigation claim for damages to the public entity before filing suit. (Gov Code, §§ 910, 945.4, 950.) A timely claim is one that is made within six months after the date of accrual. (Gov. Code, § 911.2.) The same accrual rules that apply to private defendants apply to accrual under the Government Claims Act. (Gov. Code, § 901.) Under those rules, a cause of action accrues when the last element of a cause of action is complete—the “elements” being the generic ones of wrongdoing, causation, and injury. (Fox v. Ethicon EndoSurgery, Inc. (2005) 35 Cal.4th 797, 806.) An exception to this rule is the “discovery rule,” which applies where a plaintiff does not discover or have reason to discover one or more of these elements until after the date of the injury. (Id. at p. 807.) Under this rule, suspicion of one or more elements, coupled with knowledge of any remaining elements, triggers accrual. (Ibid.)

Under the State of California’s Covid-19 related executive orders (N-35-20 and N-65-20), the six-month deadline was twice extended for 60 days, for a total of 120 days, meaning that a timely claim was one presented within 10 months of the date of accrual. (See Coble v. Ventura County Health Care Agency (2021) 73 Cal.App.5th 417, 425.) These executive orders applied only to causes of action that accrued before June 30, 2021. (See Coble at p. 422.)

If a litigant fails to present a claim within the six months (plus 4 months for Covid-19 Executive Orders), he may apply to the public entity for leave to present a late claim. (Gov. Code, § 911.4.) He must apply within a reasonable time that does not exceed one year after accrual. (Gov. Code, § 911.4, subd. (b).) This time limit is not extended by the Covid-19 Executive Orders. (Coble, supra, 73 Cal.App.5th at pp. 426–427.)

If the entity denies the application, Government Code section 946.6, subdivision (b) gives the claimant six months from the date the application is denied (or deemed denied by operation of law) to petition the Superior Court for an order relieving the claimant from the requirement to present a timely claim. If the petition is denied, and the claim is untimely without excuse, the litigant may not sue the public entity for damages under California law. (Gov Code, §§ 910, 945.4, 950.)

            However, the court shall relieve a petitioner from the requirements of section 945.4 if the court finds (1) the application to the board was made within a reasonable time not to exceed that specified in Section 911.4(b); (2) the application was denied or deemed denied pursuant to Section 911.6; and (3) that one or more of the enumerated reasons applies.  (Id., § 946.6(c).)  The enumerated reasons include (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 relief is granted; (2) the person who sustained the alleged injury or loss was a minor during the time the claim was to be presented; (3) the person who sustained the alleged injury or loss was physically or mentally incapacitated during the time the claim was to be presented; and (4) the person who sustained the alleged injury or loss died before the expiration of the time to present the claim.  (Id.)  

Discussion

            As a preliminary matter, the Court is unable to consider Plaintiff’s amended petition filed 12/6/2022, eight months after the original petition was filed, and over a year after the County denied Plaintiff’s late-claim application.

Government Code 946.6, subdivision (b) provides the claimant six months from the date the application is denied (or deemed denied by operation of law) to petition the Superior Court for an order relieving the claimant from the requirement to present a timely claim. As such, Plaintiff’s amended complaint—which advances entirely different reasons for the late-filing—was filed well outside the statute of limitations.

Moreover, nothing in section 946.6 permits a petitioner to amend his petition, outside the limitation period, to advance new arguments which contradict his original allegations. In the original complaint, Plaintiff argued that his cause of action accrued in November 2020, that his claim was untimely because he was incapacitated, and because he did not have counsel during the claim period. Now, his amended petition—conducted after discovery—alleges that “his cause of action accrued in February 2021; that his claim was timely when he obtained an attorney; and that because the attorney believed the claim untimely, he did not present a claim for another six months.” (Opp., 18: 8-10, emphasis added.) In other words, Plaintiff now concedes that he was, in fact, represented by counsel long before the claim period ended, but now contends he failed to file a timely complaint based on a different accrual date and as a result of his counsel’s miscalculations.

            In Lincoln Unified School Dist. v. Superior Court (2020) 45 Cal.App.5th 1079, a mother, acting as guardian ad litem on behalf of her son, filed a late-claim application alleging that the claim was late due to the claimant’s excusable neglect (i.e., she was unaware of the extent of her son’s injury, and was preoccupied with her son’s recovery). Then, after the trial court tentatively denied late-claim relief, the amended petition papers shifted the explanation to error by the claimant’s attorney who allegedly learned during the claim period that the claimant wanted to present a claim but neglected to present a timely claim on the claimant’s behalf when it presented one for her son. The appellate court issued a writ overturning the trial court’s order granting the petition, on the grounds that the trial court had no power to grant relief on a factual ground that had not first been presented to the entity in the late-claim application, and that the claimant had failed to prove the truth of the original theory by a preponderance of the evidence. (Id. at pp. 1094–1096.)

            Here, when Plaintiff applied to the County for relief (through counsel), Plaintiff conceded his cause of action accrued in November 2020, and alleged lack of knowledge, lack of counsel during the claim period, and his condition for his claims’ timing. Now, after the County has conducted written discovery and depositions which disprove these contentions, Plaintiff, like the plaintiffs in Lincoln, now advance a new, previously unasserted theory that he is entitled to relief because of attorney error. As such, for the same reasons as Lincoln, the Court must reject the amended petition and the theories advanced in it.

            As a result, the Court limits itself to the original petition. For the following reasons, the Court finds that relief from the untimely filing is not warranted here.

Government Code section 945.6, subdivision (c), as of 2021 (when Plainitff) presented his late-claim application), provided four potential grounds for relief. In addition to minority (subd. (c)(2)) and death (subd. (c)(4)), neither of which are applicable here, the grounds were mistake, inadvertence, surprise, or excusable neglect (subd. (c)(1)) and physical or mental incapacity throughout the claim period that prevented the claimant from presenting a timely claim (subd. (c)(3)).

When hearing a section 946.6 special proceeding, the trial Court sits as a finder of fact and exercises its discretion to determine whether Plainitff has met the statute’s requirements. (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 65.) As noted, the trial court cannot grant a late claim petition on factual grounds not reflected in Plaintiff’s late claim application to the County, or on grounds that contradict the grounds asserted in his application. (Lincoln, supra, 45 Cal.App.5th at p. 1096.)

            Here, in his November 4, 2021 late-claim application, Plaintiff alleged his cause of action accrued November 14 and 17, 2020, and argued that he did not file his claim within six months because he was incapacitated throughout the time to present the claim, and because “he was not represented by counsel and did not know the deadline or the liability/governmental status of the prospective defendant.” (Opp., 12: 8-10.)

“Generally, the mere ignorance of the time limitation for filing against a public entity is not a sufficient ground for allowing a late claim.” (Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 7.) Nor is ignorance of the possible cause of action against the public entity. (Ibid.) Instead, when a claimant alleges excusable neglect, the court looks to the claimant’s effort to obtain counsel within the claim-presentation period. (Id. at p. 8, citing Ebersol v. Cowan (1983) 35 Cal.3d 427, 439.) “Once the potential plaintiff has retained counsel, it is the responsibility of counsel to diligently investigate the facts, identify possible defendants, and timely file the tort claim.” (Department of Water & Power v. Superior Court (Dzhibinyan) (2000) 82 Cal.App.4th 1288, 1294, fn. 3.) Mistake of counsel is not a ground for granting relief under Government Code section 946.6. (Ibid.)

Here, the evidence establishes that, despite his quadriplegia, Plaintiff was not physically or mentally incapacitated from authorizing a claim on his behalf. Beginning in November 2020, he was able to communicate with Bobbie Grant, his current attorney in fact. (Am. Gharibian Dec., Ex. 2 [Grant Depo., p. 27:25-30:20].) He was not incapacitated if he was able to authorize another to present a claim for him. (Barragan, supra, 184 Cal.App.4th at p. 1384.) Barragan cited Draper v. City of Los Angeles (1990) 52 Cal.3d 502, which noted at p. 9, “A person can be disabled yet able to file a timely claim.” The claimant must therefore not only show disability during the claim period, but also “that the disability was the reason the claimant could not file timely.” (Draper, at p. 509.) The court must therefore determine whether the claimant’s disability “was so great as to preclude filing a timely claim or authorizing another to do so.” (Ibid.) Here, it clearly was not—Plaintiff was not only able to authorize another to present a claim for him during the claim period, but he actually did so.

Moreover, even assuming Plaintiff had shown proof he was unable to authorize another to present a claim before May, he still has not shown that his incapacity caused him to present a late claim. Once Plaintiff put the case in his attorney’s hands, Plaintiff’s disability became irrelevant to claim delay. The submitted evidence shows that Plaintiff’s attorney knew from the time he was retained that County of Los Angeles facilities were involved in Plaintiff’s treatment because he obtained medical records from LAC+USC and Rancho Los Amigos in June and July 2021, indicating he requested County facility records no later than June 2021. The attorney therefore had everything he needed to present a timely claim to the County. Instead, the attorney did not present a claim until November 2021, almost a year after Plaintiff’s treatment and the asserted accrual date.

Plaintiff contends his attorney needed time to review the records before presenting a claim. But, as a matter of law, a claimant who suspects injury through medical negligence cannot allow the claim period to lapse while he confirms his suspicions through medical record review. In Munoz v. State (1995) 33 Cal.App.4th 1767, the court rejected the argument of a plaintiff’s counsel, retained just a month after the plaintiff’s father’s death, that his failure to present a timely claim was excusable because he could not present a claim for medical malpractice in good faith without first obtaining and reviewing the necessary medical records to substantiate the claim. (Id. at pp. 1784– 1785.) “[C]ounsel’s goal of perfect precision was no excuse for failure to file the claim within the statutory six-month period.” (Id. at p. 1785.)

            Finally, Plaintiff’s petition arguments fail because he did not present his late-claim application to the County within a reasonable time. Before the Court may relieve Plainitff from the statutory claim filing requirements, he must demonstrate by a preponderance of the evidence, that he applied to the County for late-claim relief within a reasonable time, not to exceed one year, after accrual. (Gov. Code, §§ 911.4, subd. (b), 946.6, subd. (c); Department of Water & Power, supra, 82 Cal.App.4th at p. 1293.) Even where a claimant establishes incapacity prevented him from presenting a timely claim, unexplained delay in applying bars relief.

For instance, in Greene v. State (1990) 222 Cal.App.3d 117, an incapacitated claimant obtained an attorney five months after his accident. The attorney was aware of facts establishing the state’s potential liability six months after the accident. Yet the attorney did not file a late-claim application with the state for nearly five more months. The appellate court found it “incredible counsel did not immediately file an application and claim with the state to protect her client’s interests.” (Id. at p. 122.) The appellate court declined to even consider whether the claimant was incapacitated throughout the claim period, because the failure to present a claim until 11 months after accrual demonstrated lack of reasonable diligence in submitting the late-claim application. (Id. at p. 120.)

Similarly, in Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1412–1413, the court affirmed denial of late-claim relief to a plaintiff who was incapacitated throughout the claim period, but failed to present a late-claim application until eight months after accrual. And in Hasty v. County of Los Angeles (1976) 61 Cal.App.3d 623, 626, the court affirmed denial of relief where the claimant’s counsel applied for late-claim relief eight months after accrual and six months after an attorney advised the claimant he might have a claim against the County. The deciding factor was the lack of explanation for the claimant’s second attorney’s two-month delay in presenting an application.

Here, based on the November 17, 2020 date of accrual to which Plaintiff conceded in his late-claim applications and original petition, Plaintiff had until September 15, 2021 to present a timely claim. Plaintiff’s attorney was retained in May 2021, and did not present a late-claim application until six months later on November 4, 2021. As in Greene, supra, at p. 122, it is inexcusable that when Plaintiff’s attorney received the case, and knew that Plaintiff was treated at County facilities, he did not immediately present a claim (and a late-claim application, if he believed the claim untimely at that point) to preserve Plaintiff’s rights while the attorney investigated the merits of Plaintiff’s potential claim.

Based on the foregoing, Plaintiff’s motion for relief from the failure to present a timely claim is denied.

It is so ordered.

Dated:  January    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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