Judge Lee W. Tsao, Case 22NWCP00459 2023-04-27 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCP00459, Date: 2023-04-27 Tentative Ruling

Case Number: 22NWCP00459 Hearing Date: April 27, 2023 Dept: SEC

AZARA PRICE v. THE CITY OF LOS ANGELES, et al.

CASE NO.: 22NWCP00459

HEARING: 04/27/2023

TENTATIVE ORDER

Claimant Azara Price’s Hearing on Petition to be Relieved from Govt. Code § 945.4 Petition is CONTINUED to Thursday, June 15, 2023, at 9:30 a.m., Dept. C, Norwalk Courthouse. Claimant is ordered to file and serve (1) an amended petition with all attachments, (2) notice of the new hearing, and (3) proof of service of those papers, at least sixteen (16) court days before the next hearing. Any opposition and reply papers shall be served in accordance with the Code of Civil Procedure section 1005.

Moving party to also give notice of this ruling.

Background

On November 14, 2022, Claimant Azara Price (“Claimant”) commenced this action by filing a Petition to be Relieved From Government Code section 945.4 (the “Petition”), against Respondents The City of Los Angeles, The County of Los Angeles (the “County”), Lucia Dyan Auner (“Officer Auner”), and Los Angeles County Sheriff’s Department (the “Sheriff’s Department”) (collectively, “Respondents”).

The Petition alleges the following. On July 14, 2021, Officer Auner (who is part of the Sheriff’s Department) failed to adhere to traffic in front of and around her, thereby colliding with Claimant. (Petition, p. 2:7-12.) Therefore, on December 21, 2021, Claimant presented to the County a claim for property and personal injury damages, but the County did not confirm receipt of the claim. (Petition, p. 1:22-26.) Therefore, Claimant applied for leave to present a late claim on July 13, 2022, but the application was denied. (Petition, p. 2:4-5.)

Petitioner now moves for relief from Government Code section 945.4.

Legal Standard

The claims presentation requirement provides a public entity with the opportunity to evaluate a claim for damages and decide whether to pay the claim. (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474.)

Government Code section 945.4 states: “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 in accordance … 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 ….” (Gov. Code, § 945.4 [emphasis added].)

Any “claim relating to a cause of action for death or for injury to person or to personal property … [must] be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).)

“When a claim that is required … 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.” (Gov. Code, § 911.4, subd. (a).)

“If an application for leave to present a [late] claim is denied or deemed to be denied …, a petition may be made to the court for an order relieving the petitioner from Section 945.4.” (Gov. Code, § 946.6, subd. (a); see also City of Los Angeles v. Superior Court (1993) 14 Cal.App.4th 621, 627 [“If the public entity denies an application for leave to file a late claim, the claimant must obtain a court order for relief from the requirements of the claims act before filing suit”].)

Discussion

A petition for relief from Government section 945.5 must 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.

(Gov. Code, § 946.6, subd. (b).)

Here, the Court finds that the Petition satisfies the first requirement above, by showing that Claimant’s application to present a late claim was made pursuant to statute and denied. The incident with Officer Auner occurred on July 14, 2021. (Petition, p. 2:7-12.) Therefore, Claimant had until January 14, 2022 (six months after the incident), to present his claim for damages. (Gov. Code, § 911.2, subd. (a).) Claimant states that he timely submitted his claim to the County of Los Angeles via mail on December 21, 2021, but the County did not respond to the claim. (Notice of Hearing, declaration of Carmen Rosales (“Rosales Decl.”), ¶¶ 2-3.) Therefore, Claimant applied for leave to present a late claim on July 13, 2022. (Petition, p. 2:4-5.) That application was denied. (Petition, p. 2:6.) Therefore, Claimant filed this action. “The petition [must] be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.” (Gov. Code, § 946.6, subd. (b).) Here, the Petition does not state when Claimant’s application for leave to present a late claim was denied. However, since Claimant presented the application on July 13, 2022, and filed this lawsuit less than sixth months later on November 14, 2022, the Petition is timely because the board’s denial occurred within those sixth months. Therefore, the Petition satisfies the requirement of Government Code section 946.6, subdivision (b)(1).

The Petition also satisfies the requirement of Government Code section 946.6, subdivision (b)(2). An employee from Claimant’s counsel’s law firm testifies that she mailed out Claimant’s claim within the six-month limit on December 12, 2021, but the County has not acknowledged receipt of the claim. (Rosales Decl., ¶¶ 2-3.) Therefore, Claimant is unsure whether he successfully “presented” the claim within the sixth-month limit.

However, the Petition does not satisfy the requirement of Government Code section 946.6, subdivision (b)(3), because it does not provide the information required by Section 910. According to Section 910, “[a] claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: ¶ (a) The name and post office address of the claimant. ¶ (b) The post office address to which the person presenting the claim desires notices to be sent. ¶ (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. ¶ (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. ¶ (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. ¶ = (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim …. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.” (Gov. Code, § 910.) The Petition shows that Claimant intended to attach a copy of his claim. (See Petition, p. 2:7-12 [stating “[a]s set forth in the attached Claim Form …”].) However, Claimant did not attach the claim. The Court notes that on December 7, 2022, Claimant filed a document named “Notice of Hearing on Petition …,” which includes a copy of the claim and the information required by Section 910. However, it is unclear whether Claimant intended that document to serve as an amended petition.

In addition, there is no proof that Claimant satisfied the requirement of Government Code section 946.6, subdivision (d). According to the statute, “[a] copy of the petition and a written notice of the time and place of hearing shall be served before the hearing as prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure on (1) the clerk or secretary or board of the local public entity, if the respondent is a local public entity, or (2) the Attorney General, if the respondent is the state.” (Gov. Code, § 946.6, subdivision (d) [emphasis added].) According to Code of Civil Procedure section 1005, “all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (Code Civ. Proc., § 1005, subd. (d) [emphasis added].) California Rules of Court requires a “[p]roof of service of the moving papers [served in accordance with Code of Civil Procedure section 1005 to] … be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).) Here, as of April 25, 2023, less than five court days of the hearing, there is no proof of service of the Petition and notice of hearing on the Respondents. Although, Claimant filed a document named Notice of Hearing on Petition, there is no proof of service attached.

Indeed, the Court cannot relieve Claimant from Government Code section 945.4 without proof that the Respondents received a copy of the Petition and notice of the hearing. “Relief from the failure to timely present a government tort claim is available only if the petitioner establishes by a preponderance of the evidence the failure was ‘through mistake, inadvertence, surprise, or excusable neglect.’ [Citations.]” (Renteria v. Juvenile Justice, Department of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 909 (“Renteria”).) However, the Court’s determination must “be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.” (Gov. Code, § 946.6, subd. (e) [emphasis added].) Indeed, “[o]nce it has been shown that an application for leave to file a late claim was made within a reasonable time and that the failure to present a timely claim was through mistake, inadvertence, surprise or excusable neglect, the burden shifts to the public entity to establish by a preponderance of the evidence that it would be prejudiced if the court relieves the petitioner from the six-month claim presentation requirements.” (Renteria, supra, 135 Cal.App.4th at p. 910 [emphasis added].) Therefore, even if the Court were to find that Claimant has met his burden of showing by a preponderance of the evidence that he entitled to relief, the Court cannot find that Respondents have failed to meet their burden of showing that they will be prejudiced because there is no proof that Respondents were served with the Petition or received notice of the hearing and had the opportunity to oppose the Petition.

For those reasons, the hearing on the Petition is CONTINUED to Thursday, June 15, 2023, at 9:30 a.m., Dept. C, Norwalk Courthouse. Claimant is ordered to file and serve (1) an amended petition with all attachments, (2) notice of the new hearing, and (3) proof of service of those papers, at least sixteen (16) court days before the next hearing. Any opposition and reply papers shall be served in accordance with the Code of Civil Procedure section 1005.

Moving party to also give notice of this ruling.