Judge: Layne H. Melzer, Case: 2022-01257960, Date: 2022-08-25 Tentative Ruling

Petitioners Colin Q Nguyen, Kenny  Nguyen, Nancy  Truong
Motion - Other (To Leave for File Action against The County of Orange)

The Petition for Leave to File Action Against the County of Orange is granted in part and denied in part. The petition is granted as to Petitioner C.Q. Nguyen. The petition is denied as to Petitioners Kenny Nguyen and Nancy Truong.

Respondent County of Orange concedes that Petitioner C.Q. Nguyen, a minor, is entitled to relief. (ROA 27-Opp’n at 2.) Thus, the Petition is granted as to Petitioner C.Q. Nguyen, only. (Gov. Code, § 946.6, subd. (c)(2).)

However. the Petition is denied as to Petitioners Kenny Nguyen and Nancy Truong, because they have not met their burden of showing that their failure to timely present their claim was due to “mistake, inadvertence, surprise, or excusable neglect.” (Gov. Code, § 946.6, subd. (c)(2).) The petitioners acknowledge that their “causes of action accrued on June 26, 2021.” (Petition at ¶ 1.) Even if Petitioners did not know that the Respondent was “at fault” in the subject collision, they “need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery.” Rather, once they have “a suspicion of wrongdoing, and therefore an incentive to sue, [they] must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Lincoln Unified School Dist. v. Superior Court (2020) 45 Cal.App.5th 1079, 1091, fn. 3 [discussing the rule of “accrual,” as set forth in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109-1111, for the purpose of the claim presentation statute].)

Notably, it was not until after Respondent denied their application to file a late claim, that Petitioners asserted, for the first time, that, not only were they unaware that Respondent was “at fault,” but that they were wholly unaware that Respondent’s employee was involved in the collision at all. (Petition at ¶¶ 3-4, Exhs. A, B.) The Court does not find these statements to be credible in light of the evidence in the record. (Tammen v. San Diego County (1967) 66 Cal.2d 468, 477 [“uncontradicted testimony may be disbelieved because there are so many omissions in a witness' account of a particular transaction …”].)

Further, even assuming for the sake of argument that the testimony was credible, Petitioners’ counsel fails to show he acted with “due diligence” by requesting the Traffic Collision Report on July 6, 2021, but then failing to do any follow-up whatsoever when the report had still not been received more than 6 months later. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1783 [trial court properly concluded petitioner’s attorney did not show “due diligence” in attempting to comply with the claims statute or in obtaining leave to file late claim].) As explained in Munoz: “Remedial statutes such as Government Code section 946.6 should be liberally construed. However, this does not mean relief in such cases should be granted casually. As noted above, 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.” (Id. at 1783–1784, citation omitted.)

Respondent shall give notice of the ruling.