Judge: Lee W. Tsao, Case: 23NWCP00023, Date: 2023-03-08 Tentative Ruling

Case Number: 23NWCP00023    Hearing Date: March 8, 2023    Dept: C

ZARATE v. NORWALK-LA MIRADA UNIFIED SCHOOL DISTRICT

CASE NO.:  23NWCP00023

HEARING: 3/8/23 @ 1:30 PM

#5

TENTATIVE RULING

Petitioner Zarate’s petition for relief from the claim filing statute is DENIED.

Opposing Party to give NOTICE.

Plaintiff Zarate petitions the court for relief from the claim filing requirement pursuant to Gov. Code § 946.6.

As an initial matter, the petition is procedurally defective because Petitioner failed to serve notice of the hearing date upon the District.  “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 ... the clerk or secretary or board of the local public entity, if the respondent is a local public entity.”  (Gov. Code § 946.6(d).)  By happenstance, District was made aware of the hearing when its attorney checked the court website on March 1, 2023.  However, Petitioner failed to properly notify District about the hearing date.

On the merits, any claim against a public entity for personal injury or death must be presented within 6 months of accrual of the cause of action. (Gov. Code § 911.2.)  Claimant has up to 1 year after accrual of the cause of action to apply to the public entity for permission to file a late claim. (Gov. Code § 911.4.)

“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 [one year after accrual of the cause of action]… 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. Code § 946.6(c).)

“Filing a late-claim Application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief Petition. When the underlying Application to file a late claim is filed more than one year after the accrual of the cause of action, the Court is without jurisdiction to grant relief under Government Code section 946.6.”  (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779.)

Petitioner’s cause of action accrued on September 29, 2021.  Petitioner did not request permission to file a late claim until November 14, 2022 (Petition, Ex. A), which is more than one year after accrual of the cause of action.  The court is therefore without jurisdiction to grant the relief requested.

Accordingly, the Petition is DENIED.