Judge Melvin D. Sandvig, Case Number: 24CHCP00087, Date: 2024-04-19 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 24CHCP00087, Date: 2024-04-19 Tentative Ruling

Case Number: 24CHCP00087 Hearing Date: April 19, 2024 Dept: F47

Dept. F47

Date: 4/19/24

Case #24CHCP00087

PETITION FOR RELIEF FROM GOVERNMENT CODE 945.4

Petition filed on 3/4/24.

MOVING PARTY: Petitioner Kevin Michael Chao

RESPONDING PARTY: Respondent County of Los Angeles

NOTICE: ok

RELIEF REQUESTED: An order granting Petitioner Kevin Michael Chao relief from Government Code 945.4.

RULING: The petition is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This petition arises from an incident that occurred on 9/24/22 at Knollwood Country Club (Knollwood) located in Granada Hills, California. Petitioner Kevin Michael Chao (Petitioner) claims Knollwood is owned, operated, managed, and/or controlled by Respondent County of Los Angeles (Respondent). Petitioner alleges that on 9/24/22, while lawfully golfing at Knollwood, Petitioner was attacked by an unknown third-party aggressor, resulting in Petitioner suffering a broken jaw.

On 8/18/23, Petitioner presented an application to present a late claim to Respondent regarding their alleged liability in causing Petitioner’s injuries. On 9/5/23, Respondent denied Petitioner’s application to present a claim.

On 10/17/23, Petitioner filed a lawsuit (LASC Case No. 23CHCV03132) against American Golf Corporation, who Petitioner believes operated, managed, and/or controlled Knollwood, for negligence and premises liability.

On 3/4/24, Petitioner filed the instant petition seeking an order granting Petitioner Kevin Michael Chao relief from Government Code 945.4. On 4/8/24, Respondent filed an opposition to the petition and on 4/12/24, Petitioner filed a reply to the opposition.

ANALYSIS

Subject to various exceptions, Government Code 945.4 provides that no suit for money damages may be brought against a public entity, such as Respondent, on a cause of action for which a claim is required to be presented until a written claim therefor 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.

Also, subject to various exceptions, Government Code 911.2 requires a government claim based on causes of action for death and personal injury to be presented to the public entity within six months of the date the cause of action accrued. Government Code 911.2(a). When a claim that is required by Government Code 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim. See Government Code 911.4(a). Such an application must be presented within one year of accrual of the cause of action. Government Code 911.4(b). Unless extended by agreement, an application to present a late claim is deemed denied if the entity fails or refuses to act within forty-five days. Government Code 911.6(c).

Pursuant to Government Code 946.6, a court must relieve a petitioner of the requirements of Government Code 945.4 if the petitioner establishes that the application was timely presented and denied, or deemed denied, and that either: (a) the failure to timely present the claim was through mistake, inadvertence or excusable neglect; or (b) the petitioner was a minor during all of the time specified in Government Code 911.2 for presentation of the claim. Government Code 946.6(c).

A petition for relief under Government Code 946.6, such as the instant petition, must show: (a) the application was made to the board under Government Code 911.4; (b) the reason for failure to present the claim within the time limit in Government Code 911.2; and (c) the information required by Government Code 910. See Government Code 946.6(b). Additionally, such a petition must be made within six months after the application is denied or deemed denied. Id.

While Petitioner generally claims that he is entitled to relief from Government Code 945.4 due to surprise, inadvertence or excusable neglect, the petition only specifically addresses Petitioner’s claim of excusable neglect. (See Petition, p.6:10-11 and Petition, generally).

“Excusable neglect” is defined as neglect which might have been the act of a reasonably prudent person under the same or similar circumstances. Ebersol (1983) 35 C3d 427, 435. The facts in Ebersol, supra, relied on by Petitioner to support his claim that his conduct constitutes excusable neglect, are distinguishable from the facts here.

In Ebersol, at the time of the incident, the plaintiff was unaware that the county operated the training program the individual who bit her was participating in. Id. at 432-434. Here, despite Petitioner’s claim that he “was completely unaware of Los Angeles County being liable for [his] injuries,” Petitioner admits that he contacted Respondent relatively soon after the incident to notify them of his injuries from the incident and received a response on 10/13/22. (See Chao Decl. ¶¶4-5). Such contact implies that Petitioner had some awareness of Respondent’s possible liability for his injuries. Petitioner offers no other explanation as to why he contacted Respondent to notify them of his injuries from the incident.

Additionally, in Ebersol, the plaintiff contacted an attorney, who informed her that she did not have a case, on the same day the incident occurred. See Ebersol, supra at 433. The plaintiff in Ebersol contacted another attorney, who also told her she did not have a case, within a month of the incident. Id. During the next three months, Ebersol contacted seven more attorneys in an attempt to secure legal representation. Id. Here, Petitioner’s vague declaration seems to indicate that he did not begin contacting attorneys until early March 2023, some five months after the incident, which would only be days or weeks before the claims presentation period expired on 3/24/23. (See Chao Decl. ¶¶6, 11). Also, Petitioner never states that any of the attorneys he contacted told him he did not have a case, just that they declined to take his case or never responded to his inquiries. (Chao Decl. ¶¶7, 9, 10, 11).

Further, Petitioner’s claims regarding his interactions with the Farzam Law Firm do not make sense. Petitioner claims that he contacted the firm in late March 2023 or early April 2023 and the firm orally declined to represent him. (Chao Decl. ¶9). Petitioner then goes on to state that some seven months later, on 12/1/23, he received a non-engagement letter for the Farzam Law Firm “officially declining” to represent him. (Chao Decl. ¶10, Ex.C). Despite the fact that the opposition argues that “[t]he date of the non-engagement letter calls into question the credibility of Petitioner,” the reply fails to address this issue. (See Opposition, p.5:12-18; Reply, generally).

Based on the foregoing, the Court finds that Petitioner failed to act as a reasonably prudent person under the same or similar circumstances and his conduct does not constitute excusable neglect.

Even if Petitioner’s conduct could be deemed to be excusable neglect, Respondent has been prejudiced by allowing Petitioner to file an action against it at this time, approximately one year and seven months after the incident. Respondent has lost the ability to conduct an early investigation of the claim and consider early settlement. As such, denial of the petition on such ground would be warranted.

CONCLUSION

The petition is denied.