Judge Lee W. Tsao, Case Number: 23NWCV02131, Date: 2024-04-25 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV02131, Date: 2024-04-25 Tentative Ruling

Case Number: 23NWCV02131 Hearing Date: April 25, 2024 Dept: C

MOJARRO v. CITY OF MAYWOOD

CASE NO.: 23NWCV02131

HEARING: 4/25/24

Plaintiff RAUL MOJARRO’s unopposed Petition for Relief from Government Code §945.4 is GRANTED. Plaintiff is ORDERED to file and serve a First Amended Complaint naming the City of Vernon as a defendant within 30 days.

Moving Party to give notice.

This action for dangerous condition of public property was filed by Plaintiff RAUL MOJARRO (“Plaintiff”) against Defendants CITY OF MAYWOOD; COUNTY OF LOS ANGELES; and CITY OF LOS ANGELES (collectively “Defendants”) on July 10, 2023. Plaintiff alleges that “[o]n August 13, 2022, Plaintiff was riding his bicycle at or near 5005 District Blvd., and/or near the intersection of District Blvd. and Slauson Ave., Maywood, CA 90270 (‘SUBJECT AREA’ and/or ‘INCIDENT’) when he suddenly encountered a defective, raised, broken, cracked, dangerous, dilapidated, and unreasonable portion of sidewalk that caused him to lose control of his bicycle and sustain serious bodily injuries.” (Complaint ¶7.)

Plaintiff alleges that he complied with the Government Claim Requirements: “Within six months of the INCIDENT giving rise to this complaint, Plaintiff duly served notice of his claim upon the Defendants CITY OF MAYWOOD, COUNTY OF LOS ANGELES, and CITY OF LOS ANGELES.” (Complaint ¶16.)

Plaintiff did not present a timely claim to the City of Vernon under Gov. Code §911.2. On August 14, 2023, Plaintiff presented an Application for Permission to Present a Late Claim to the City of Vernon. On September 5, 2023, the City of Vernon denied Plaintiff’s Application for Permission to File a Claim.

Plaintiff now seeks a Petition for Relief from Government Code §946.6 to permit them to commence and pursue this action against the City of Vernon.

Plaintiff argues that they should be excused from the late filing of a claim against the City of Vernon under Gov. Code §§946.6(c)(1) and 946.6(c)(4) due to Plaintiff’s debilitating injuries and because, on July 31, 2023, the City of Maywood asserted for the first time that the Subject Area is actually within the City of Vernon’s city limits. (Asryan Decl., ¶3., Ex. 2.)

In an untimely response filed April 23, 2024, the City of Vernon argues the Petition is jurisdictionally barred, because the underlying application for leave to file a late claim was not presented to the City Vernon within one year of the date the claim arose, as required by Government Code section 911.4, subdivision (b), and Government Code section 946.6, subdivision (c). The City of Vernon also argues that Plaintiff’s failure to undertake a basic investigation to determine the location of the subject incident does not constitute excusable neglect.

As a prerequisite to filing a claim against a public entity, a plaintiff must substantially comply with the California Tort Claims Statute. 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 until a written claim 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.) Under Gov. Code §945.4, presentation of a timely claim is a condition precedent to the commencement of suit against the public entity.

However, if the injured party fails to file a timely claim, a written application may be made to the public entity for leave to present such claim. (Gov. Code §911.4(a).) If the public entity denies the application, Gov. Code §946.6 authorizes the injured party to petition the court for relief from claim requirements.

“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 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 relives the petitioner from the requirements of Section 945.4. (2) The person who sustained the alleged injury, damage, or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim. (3) The person who sustained the alleged, injury, damage, or loss was a minor during any of the time specified in Section 911.2 for the presentation of the claim, provided the application is presented within six months of the person turning 18 years of age or a year after the claim accrues, whichever occurs first. (4) The person who sustained the alleged injury, damage, or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time. (5) The person who sustained the alleged injury, damage, or loss was physically or mentally incapacitated during any of the time specified in Section 911.2 for the presentation of the claim and by the reason of that disability failed to present a claim during that time, provided the application is presented within six months of the person no longer being physically or mentally incapacitated, or a year after the claim accrues, whichever occurs first. (6) The person who sustained the alleged injury, damage, or loss died before the expiration of the time specified in Section 911.2 for the presentation of the claim.” (Gov. Code §946.6(c).)

Plaintiff has demonstrated that his failure to present a timely claim to the City of Vernon was due to mistake, inadvertence, surprise, or excusable neglect pursuant to Gov. Code §946.6(c)(1). Here, Plaintiff acted diligently to prosecute this action, and timely complied with the Government Claims Act against the City of Maywood, City of Los Angeles, and County of Los Angeles. It appears to be unsettled whether the Subject Incident occurred within the City of Maywood or the City of Vernon. (See Asryan Decl., ¶¶2 and 5, Exs. 1 and 3.) Plaintiff’s failure to file a timely claim against the City of Vernon meets the standard for excusable neglect.

The City of Vernon argues that Plaintiff’s Application for Leave to Present Late Claim was untimely because it was not submitted within one year of the date the cause of action accrued. The cause of action accrued on August 13, 2022, but Plaintiff did not submit the Application to the City of Vernon until August 14, 2023 – one day late. However, this argument fails because August 13, 2023 was a Sunday, and the time to submit the application was extended by operation of law to August 14, 2023. (CCP §§ 10 and 12a).

The City of Vernon also argues Plaintiff failed to undertake a basic investigation to determine the location of the subject incident. Had Plaintiff done so, Plaintiff would have discovered much earlier that the incident took place in the City of Vernon. Yet, the City of Vernon disputes that the accident occurred within its jurisdiction. (Opp., p. 2, fn. 1.) It appears the issue is not so clear. The Court is satisfied that Plaintiff acted diligently to prosecute the action.

The Petition is GRANTED. Plaintiff is ORDERED to file and serve a First Amended Complaint naming the City of Vernon as a defendant within 30 days.