Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMC000467, Date: 2023-11-29 Tentative Ruling

Case Number: 22SMC000467    Hearing Date: November 29, 2023    Dept: N

TENTATIVE RULING

Petitioner Sidney Richlin’s Motion for New Trial, or in the Alternative for Reconsideration of Denial of Petition for Relief from Claim Statute is DENIED.

Petitioner Sidney Richlin to give notice.

REASONING

Petitioner Sidney Richlin (“Petitioner”) moves the Court for a new trial pursuant to Code of Civil Procedure section 657 or, alternatively, for reconsideration pursuant to Code of Civil Procedure section 1008 after the Court issued its minute order on June 21, 2023, and signed an order on June 30, 2023, denying Petitioner’s request for an order relieving him from Government Code section 945.4 after Respondents County of Los Angeles (“the County”) and City of Beverly Hills (“the City”) denied Petitioner’s request for leave to present a late claim beyond the deadline set forth in Government Code section 911.2.

The County has filed an objection to Petitioner’s nonservice of the present motion. The proof of service attached to Petitioner’s motion shows that Petitioner served the City properly, but rather than serving the County’s attorney as identified in the County’s opposition to the initial petition and at the hearing on the petition, Petitioner served a different entity with the statement that its principal was the County of Los Angeles. Thus, Petitioner failed to properly serve the County with its present motion. Nonetheless, the Court finds that an opposition by the County would not change the outcome of the present motion; thus, the Court advances its analysis to rule on the present motion.

Code of Civil Procedure section 657 sets forth the grounds upon which a verdict may be vacated, in whole or in part, and a new or further trial granted on all or part of the issues. “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.)

Petitioner seeks a new trial on the grounds of (1) irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; (3) insufficiency of the evidence to justify the verdict or other decision, or the

verdict or other decision is against law; and (4) error in law, occurring at the trial and excepted to by the party making the application. Petitioner’s motion does not specifically identify how he is entitled to relief under any of these sections, instead simply seeking a second bite at the proverbial apple based on the Court’s denial of the initial petition. This is not a proper motion for a new trial; nonetheless, the Court finds that Petitioner is not entitled to relief under any of these grounds.

First, Petitioner does not identify any irregularity in the proceedings, newly discovered evidence, or errors of law; instead, Petitioner’s motion largely consists of boilerplate law and discussions of purportedly applicable legal authority with very few lines of argument. Second, insofar as Petitioner argues that the Court’s decision was not supported by sufficient evidence or was against law, the Court lacked a basis to conclude that Petitioner sought relief from the County and City within a “reasonable time” because he was only two weeks shy of the one-year deadline set forth in Government Code section 911.3, subdivision (b), and he provided no information about what occurred during those 50 weeks, giving only a conclusory statement that counsel immediately starting investigating the incident, and Petitioner referenced a COVID outbreak in counsel’s office causing a delay but included no dates to allow the Court to make any findings about how the outbreak affected Petitioner’s ability to present his claim. Petitioner’s failure to provide any specific information also precluded a finding that the failure to timely present a claim was reasonable under a “reasonably prudent person” standard because the Court lacked information to inform such an analysis. While Petitioner now seeks to expand on his facts, these facts were available to Petitioner at the time he filed his initial petition; they are not newly discovered evidence.

As the Court stated in its prior order, the law is well established that “[b]efore a court may relieve a claimant from the statutory tort claim filing requirements, the claimant must demonstrate by a preponderance of the evidence both that the application to the public entity for leave to file a late claim was presented within a reasonable time and that the failure to file a timely claim was due to mistake, inadvertence, surprise or excusable neglect.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293, italics omitted.) “The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief. Relief on grounds of mistake, inadvertence, surprise or excusable neglect is available only on a showing that the claimant’s failure to timely present a claim was reasonable when tested by the objective ‘reasonably prudent person’ standard.” (Ibid.)

“[E]xcusable neglect is defined as neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances. [¶] There must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence.” (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1293, citation omitted.) “The party seeking relief based on a claim of mistake must establish he was diligent in investigating and pursuing the claim and must establish the necessary elements justifying relief by the preponderance of the evidence.” (Ibid., citation omitted.) Here, Petitioner waited more than two months after his application was denied by the City, and more than three months after it was denied by the County, before filing the petition for relief, such that one year and three months elapsed before Petitioner sought relief before this Court, and nearly two years had passed since the incident.

Petitioner argues that the Court somehow penalized Petitioner for the time it took for the petition to be heard after the petition was filed, but this is not supported by the Court’s order in any regard. Petitioner argues that he was within the six-month period in which to file his petition, but the Court did not find otherwise in its order. Rather, the Court noted that Petitioner’s delay in bringing the petition weighed in favor of a finding that Respondents would be prejudiced, i.e., the passage of time would prejudice Respondents’ ability to present their defense. Notably, the Court was not required to engage in an extensive analysis of the prejudice to Respondents, as it was Petitioner’s burden to first establish that he presented his late claim within a reasonable time, and that his claim was late because of mistake, inadvertence, surprise, or excusable neglect, and he failed to do so, such that any analysis as to prejudice was unnecessary.

Again, the petition set forth that Petitioner was allegedly injured on June 18, 2021; he submitted an application for leave to file a late claim on June 1, 2022; Petitioner erroneously calendared the six-month deadline set forth in Government Code section 911.2 to be May 18, 2022, instead of December 18, 2021; upon retaining counsel, Petitioner’s counsel learned that the deadline had been wrongly calendared; the County denied Petitioner’s application to file a late claim on June 3, 2022; and the City denied Petitioner’s application to file a late claim on July 6, 2022.

Government Code section 946.6 allows relief where (1) Petitioner establishes he applied for late claim relief within a “reasonable time,” no more than twelve months after the accrual of his cause of action (Gov. Code, §§ 911.4, subd. (b); 946.6, subd. (c)); (2) the failure to timely present the claim to Respondents was the result of “mistake, inadvertence, surprise, or excusable neglect,” and Respondents will not be prejudiced in presenting their defense (Gov. Code, § 946.6, subd. (c)(1)); and (3) the petition is filed within six months after the application to the board is denied (Gov. Code, § 946.6, subd. (b)(3)). The Court lacked a basis to conclude that Petitioner had met these requirements. Thus, there is no grounds for the Court to determine that Petitioner is entitled to a new trial on his petition.

Similarly, Code of Civil Procedure section 1008, subdivision (a), allows a Court to reconsider a prior order as follows:

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.