Judge: Matthew C. Braner, Case: 37-2023-00038370-CU-PT-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Petitions - Other Hearing on Petition 37-2023-00038370-CU-PT-CTL ARABELLA MCCORMACK A DECEASED MIINOR BY AND THROUGH HER SUCCESSOR IN INTEREST TORRIANA FLOREY VS COUNTY OF SAN DIEGO CAUSAL DOCUMENT/DATE FILED:

Petitioner Torriana Florey's petition for order relieving her from the provisions of Government Code section 945.4, is GRANTED.

Petitioner seeks relief pursuant to Government Code section 946.6, subdivision (c)(2) and (c)(6). Under section 946.6: (a) 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. If the petition is filed in a court which is not a proper court for the determination of the matter, the court, on motion of any party, shall transfer the proceeding to a proper court. If an action on the cause of action to which the claim relates would be a limited civil case, a proceeding pursuant to this section is a limited civil case.

(b) The petition shall 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.

The petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.

(c) 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 of the following is applicable: (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.

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(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.

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3029234  16 CASE NUMBER: CASE TITLE:  ARABELLA MCCORMACK A DECEASED MIINOR BY AND  37-2023-00038370-CU-PT-CTL The court find that Petitioner has met the requirements of subdivisions (b)(1), (b)(2), and (b)(3) of section 946.6, and that she filed her petition within six months after her application for late filing was denied by Respondent County of San Diego. The court also finds that subdivisions (c)(2) and (c)(6) of Government Code section 946.6 are applicable. Specifically, Petitioner submits evidence that Decedent Arabella McCormack was at all times a minor during the time specified for presentation of the claim, and died before expiration of the time for presentation of the claim.

The court disagrees with Respondent that the claims related to the abuse suffered by Decedent, ultimately leading to her death at the hands of her adopted parents, accrued prior to her death. Given Decedents age and her adoptive parents' complicity in her abuse, Decedent lacked sufficient awareness of the wrongdoing from which her survival claims arise. (See, e.g., Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1422-23.) Under these circumstances, accrual is likely subject to the delayed discovery rule. Using the date of Decedent's death as the accrual date, Petitioner's submission of a claim on February 15, 2023 was timely. In any case, this issue is really a factual jury question and not something this court should resolve. (See Ngo v. County of Los Angeles (1989) 207 Cal.App.3d 946, 950-51.) In sum, Petitioner promptly and in an abundance of caution applied to Respondent for leave to present a late claim under Government Code section 911.4 within one year from the date of accrual of the claim.

Following denial of that application on August 3, 2023, Petitioner promptly applied to this court for relief.

As a final matter, the court is sympathetic to Respondent's standing argument and the inevitable issues that will arise due to competing claims over Decedent's estate. However, the court concludes this issue is not relevant to the present question concerning relief from Government Code section 945.4, and should be left to the court or fact finder ultimately faced with the competing claims.

Accordingly, Petitioner's petition for relief is granted.

The minute order is the order of the court.

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