Judge: Mark H. Epstein, Case: 22SMCV02918, Date: 2023-04-25 Tentative Ruling

Case Number: 22SMCV02918    Hearing Date: April 25, 2023    Dept: R

Plaintiff Eden Hakoun, a minor, by and through her Guardian ad Litem, Netta Mazal Perez (“plaintiff”) filed this premises liability claim against defendant Los Angeles Unified School District (“defendant”).  Currently before the court is plaintiff’s petition for relief pursuant to Government Code section 946.6.  It is unopposed.

“A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall 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).)  “The date of accrual for purposes of the claim presentation requirement is the same date on which the cause of action would accrue for purposes of the statute of limitations in an action against a private party.  (Id., § 901; Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208–209.)  [¶] A person who fails to present a timely claim may apply to the public entity for leave to present a late claim.  (Gov.Code, § 911.4, subd. (a).)  The application must be presented to the public entity ‘within a reasonable time not to exceed one year after the accrual of the cause of action. . . .’  (Id., subd. (b).)”  (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 63, parallel citations omitted.)  The one-year deadline is jurisdictional.  (Estill v. County of Shasta (2018) 25 Cal.App.5th 702, 712.)

“If an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4.  The proper court for filing the petition is a superior court that would be a proper court for the trial of an action on the cause of action to which the claim relates.”  (Gov. Code, § 946.6, subd. (a).)  “If the public entity denies the application to file a late claim, section 946.6 authorizes the injured party to petition the trial court for relief from the claim filing requirements.  In ruling on the petition, the trial court ‘shall relieve the petitioner from the requirements of Section 945.4’ to timely file a claim if two requirements are met.  (§ 946.6, subd. (c).)  First, the application to the public entity to file a late claim must have been made within a reasonable time not exceeding one year after the accrual of the cause of action.  (§ 946.6, subd. (c).)  Second, one of the four circumstances set forth in section 946.6, subdivision (c) must be shown by a preponderance of the evidence.  (§ 946.6, subd. (c); Ebersol v. Cowan (1983) 35 Cal.3d 427, 431.)”  (N.G. v. County of San Diego (2020) 59 Cal.App.5th 63, 72, parallel citations omitted.)

Plaintiff is a minor who suffered an injury on October 4, 2021.  On or about March 28, 2022, plaintiff served a claim for damages on the City of Los Angeles, which advised on April 5 that it was not the proper entity to be served. On or about April 11, plaintiff served defendant, which was the proper entity. On or about July 6, 2022, LAUSD rejected plaintiff’s claim as untimely (it having been over six months).  On or about October 4, 2022, plaintiff filed an application for leave to file a late claim.  LAUSD failed to respond and accordingly the request was deemed denied.

The application to file the late claim was made within one year of the accrual of the cause of action.  “For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon.”  (Gov. Code, § 901.)  Ordinary statute of limitations are calculated per Code of Civil Procedure section 12.  (Shalabi v. City of Fontana (2021) 11 Cal.5th 842, 848.)  “Section 12 sets forth ‘the ordinary rule of computation of time.’  (Ley v. Dominguez (1931) 212 Cal. 587, 594.) This section provides in full: ‘The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.’ (§ 12.) This general statutory rule was first codified in 1850 as section 307 of the Original Practice Act and has remained unchanged since its enactment in 1872.  (§ 12; see Cabrera, supra, 159 F.3d at p. 379.)”  (Ibid.)  “We continue to adhere to our holding in Ley, that an exception to the ordinary rule for computation of time must be clearly expressed in the limitations statute.  (Ley, supra, 212 Cal. at p. 595.)”  (Id. at p. 851.)

Government Code section 901 makes explicit reference to the ordinary way of calculating the statute of limitations.  Our Supreme Court has repeatedly held that the ordinary way is per Code of Civil Procedure section 12, which requires that the first day be excluded.  With that in mind, the application by plaintiff was filed exactly one year after the accrual of her claim.  The application was therefore timely.  The application also complies with the requirements contained in section (b) of Government Code section 946.6.

Plaintiff also satisfies one of the four circumstances in subdivision (c).  “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.”  (Gov. Code, § 946.6, subd. (c)(2).)  Plaintiff was a minor during the entire period specified for presentation of the claim.

“If the court makes an order relieving the petitioner from Section 945.4, suit on the cause of action to which the claim relates shall be filed with the court within 30 days thereafter.”  (Gov. Code, § 946.6, subd. (f).)  Plaintiff’s complaint is already on file and is premature, but that is not material.  “Appellant correctly points out that until September 24, 1976, her lawsuit of February 2nd could not be advanced unless the court granted her leave from filing a claim.  (Govt.Code, § 946.6.)  That leave was granted with the condition that a new action be filed within 30 days of the court's order.  (See Govt.Code, § 946.6, subd. (f).)  Section 946.6, subdivision (f), entitled appellant to bring a valid cause of action as a matter of law.  The fact that appellant never complied with subdivision (f) would not be deemed fatal in this instance.  Section 946.6, subdivision (f), clearly states that “If the court makes an order relieving the petitioner from the [timely claim] provisions of [Government Code] Section 945.4, suit on the cause of action to which the claim relates must be filed in such court within 30 days thereafter.”  (Emphasis added.)  However, ‘where the complaint was actually on file when the order granting such relief was made, such prematurely filed complaint satisfies the provisions of subdivision (f) of section 946.6 . . ., and the filing of a new pleading is unnecessary.’  (Bahten v. County of Merced, supra, 59 Cal.App.3d at p. 107; emphasis added);  see also Savage v. State of California, supra, 4 Cal.App.3d at p. 796.)”  (Davalos v. County of Los Angeles (1983) 142 Cal.App.3d 57, 61, parallel citations omitted, emphasis by Davalos court.)

The petition is GRANTED and the court deems the complaint filed as of December 20, 2022.  The court notes that defendant has already answered.  The case management conference will go forward in June as scheduled.