Judge: Melvin D. Sandvig, Case: 24CHCV01531, Date: 2025-03-20 Tentative Ruling

Case Number: 24CHCV01531    Hearing Date: March 20, 2025    Dept: F47

Dept. F47

Date: 3/20/25

Case #24CHCV01531

 

PETITION FOR ORDER PERMITTING LATE CLAIM

AGAINST GOVERNMENT ENTITY

 

Petition filed 2/13/25.

 

MOVING PARTY: Plaintiff Lisa Diane Ullrey

RESPONDING PARTY: Defendant Los Angeles County Metropolitan Transportation Authority

NOTICE: ok

 

RELIEF REQUESTED: An order permitting a late claim against government entity pursuant to Government Code 946.6.

 

RULING: The petition is denied. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of a solo motorcycle accident involving Plaintiff Lisa Diane Ullrey (Plaintiff) that occurred on 8/5/23 at the intersection of The Old Road and Edison Road which at the time was the site of a Los Angeles County Metropolitan Transportation Authority (MTA) construction project.  Defendant OHLA USA, Inc. (OHLA) was the contractor on the project. 

 

On 9/11/23, Plaintiff retained her attorney.  (Graff Decl. ¶7).  On 11/1/23, Plaintiff presented a Government Claim to the County of Los Angeles (County).  (Id. ¶8).  On 11/21/23, the  County’s Claims Administrator, Carl Warren & Company, sent Plaintiff a letter indicating that her claim was being investigated.  (Id., Ex.3).  On 12/13/23, the County sent Plaintiff a Notice of Rejection of her claim.  (Id. ¶9, Ex.4).  Plaintiff claims that a second letter was sent stating that the matter was investigated and stated that the County “was in no way negligent with respect to their actions pertaining to your claim and as such, the County has no legal liability for this matter.”  (Id. ¶10, Ex.5).  However, the letters dated 12/13/23 and attached to the Graff declaration as Exhibits 4 and 5 appear to be identical.  (See Graff Decl., Ex.4, 5).

 

On 1/4/24, Plaintiff’s attorney requested information from the County’s Claims Examiner regarding the private contractor working on the project and in response, OHLA was identified.  (Graff Decl. ¶11, Ex.6).  Plaintiff also filed government claims with the City of Santa Clarita and the State of California which were also rejected.  (Id. ¶¶12-13, Ex.7, 8).  

 

On 4/24/24, Plaintiff filed this action against the State of California, the County and OHLA.  (Graff Decl. ¶13, Ex.9).  On 5/29/24, Plaintiff’s counsel received a letter from Carl Warren & Company advising that the lawsuit was sent to Collinson, Daehnke, Inlow & Greco to represent the County.  (Id. ¶14, Ex.10).  On 6/12/24, Plaintiff’s counsel received a voice message and email from Laura Inlow at Collinson, Daehnke, Inlow & Greco indicating that the accident occurred in an area under a “Metro construction project” and since MTA is a separate legal entity, the defense of the County was being tendered to MTA.  (Id. ¶15).  On 6/20/24, Plaintiff’s counsel received a copy of the permit for the project identifying MTA as the applicant/owner of the construction project.  (Id. ¶16, Ex.11).

 

On 7/9/24, Plaintiff filed an application to present a late claim to MTA which was denied on 8/15/24.  (Graff Decl. ¶17, Ex.1, 2). 

 

On 2/13/25, Plaintiff filed and served the instant petition seeking an order permitting a late claim against government entity (MTA) pursuant to Government Code 946.6.  MTA has opposed the petition.  Plaintiff has not filed a reply to the opposition. 

 

ANALYSIS

 

In order to sue a public entity such as MTA for money or damages, a plaintiff must present a claim for damages to the public entity within six months of the accrual of the cause of action or no later than 182 days after accrual, whichever is longer.  See Government Code 911.2(a), 945.4; Loehr (1983) 147 CA3d 1071, 1081; Gonzales (1988) 199 CA3d 601, 604.  The petition concedes that Plaintiff did not present a claim to MTA within six months of the accrual of her cause of action.  (See Graff Decl. ¶¶15-17).  As such, Plaintiff was required to file an application to present a late claim with MTA within a reasonable time, not to exceed one year from the accrual of the cause of action.  See Government Code 911.4.  Since MTA denied Plaintiff’s application, Plaintiff filed the instant petition to obtain relief from the court as permitted.  See Government Code 946.6(a).

 

Plaintiff contends that the instant petition should be granted because her application made under Government Code 911.4 was made within a reasonable time, not to exceeding one year after the accrual of the cause of action, and that the failure to present the claim was due to the mistake, inadvertence, surprise or excusable neglect of Plaintiff’s counsel.  See Government Code 946.6(c)(1).  Plaintiff has the burden of establishing her position by a preponderance of evidence.  Tammen (1967) 66 C2d 468, 474.  The procedure for granting relief from claims statutes is remedial in nature and must be liberally construed in favor of the claimant; however, such liberality does not extend to the statute of limitations which are mandatory and must be strictly complied with.  Rivera (1981) 117 CA3d 718, 726.

 

Under CCP 473(b), a court lacks discretion to deny relief if an attorney provides a declaration of fault establishing that the default, default judgment or dismissal resulted from the attorney neglect, even if such neglect was inexcusable.  See Tackett (1994) 22 CA4th 60, 64-65.  However, when a party is not challenging a default, default judgment or dismissal, CCP 473 and Government Code 946.6 still require that an attorney’s neglect be excusable to obtain relief.  Id. at 65. 

 

While Plaintiff presented her late-claim to MTA within a year of the accrual of her cause of action, Plaintiff has not established that she did so within a reasonable time.  Plaintiff’s cause of action accrued on 8/5/23 and Plaintiff presented her late-claim application to MTA on 7/9/24, less than a month before the one-year expiration date.  Such a delay has been held to be unreasonable where the plaintiff was found to be capable of attending to his business affairs during the time period.  See Martin (1968) 265 CA2d 76, 81; Tammen, supra at 475.  As noted above, Plaintiff was able to retain an attorney to represent her interests approximately one month after the accident occurred.  (Graff Decl. ¶¶5, 7).  Plaintiff has not shown that she did anything else to fulfill her obligation to act with reasonable diligence and/or that her attorney’s failure to identify MTA as a potential defendant and file a timely claim with MTA was the result of excusable mistake, inadvertence, surprise or excusable neglect.  In determining whether Plaintiff’s counsel’s conduct warrants relief, Plaintiff must establish that the failure to discover MTA’s involvement resulted despite acting with reasonable diligence.  See Munoz (1995) 33 CA4th 1767, 1782-1783; Department of Water & Power (2000) 82 CA4th 1288, 1293. 

 

The petition indicates that approximately one month after the accident, Plaintiff retained counsel.  (Graff Decl. ¶¶5, 7).  However, Plaintiff provides no facts as to what she or her attorney did, if anything, to investigate who was involved with the project other than to rely on a purported investigation by the claims examiner for the County.  (Graff Decl. ¶¶8-11, Ex.3-6).  Nothing in those communications indicate that the County’s claims examiner was acting on behalf of MTA which Plaintiff’s counsel admits to knowing is a separate entity from the County.  (Graff Decl., Ex.1, p.4:2-3).  Plaintiff merely concludes, without any supporting evidence or authority, that the County, which Plaintiff’s counsel was “well aware. . . is separate entity,” was acting as MTA’s agent.  Id.    

 

The letter from the County’s claims examiner regarding an investigation merely establishes that the County’s Claims Administrator, Carl Warren & Company, was investigating Plaintiff’s claim as against the County, not any other possible tortfeasors.  (See Graff Decl., Ex.3, pdf 103-105).  Plaintiff cites no authority which requires the County to identify other possible tortfeasors.  Plaintiff’s attorney states that claims were presented to the City of Santa Clarita and the State of California “out of an abundance of caution” which shows that Plaintiff nor her counsel did not know who was involved in the construction project.  (See Graff Decl. ¶12).  Despite the foregoing, the petition makes no showing that Plaintiff or her counsel made any effort to determine who was involved in the construction project (i.e., by serving a California Public Records Act (Government Code 7920, et seq.) request on the County or by conducting pre-litigation discovery (CCP 2035.010-2035.030).  Plaintiff’s attorney only asked the County to identify the “outside contractor” involved in the project which the County’s claims examiner did, OHLA.  (See Graff Decl., Ex.6).  There is no evidence that Plaintiff’s attorney asked for any other information or that she conducted any independent investigation into the matter.  Plaintiff’s counsel’s failure to act diligently to present a timely government claim is imputed to Plaintiff.  See Clark (1971) 22 CA3d 522, 528.   

 

Plaintiff has also failed to establish her estoppel argument.  This argument is also based on the unsupported claim that the County was acting as MTA’s agent.  As noted above, Plaintiff has failed to present any evidence or authority to support such claim.

 

Since Plaintiff has failed to meet her burden of establishing that relief is warranted under Government Code 946.6(c)(1) (application for late-claim was made within a reasonable time and was the result of mistake, inadvertence, surprise or excusable neglect), MTA has no obligation to establish that it would be prejudiced if the petition is granted.  See Tammen, supra at 478; Hasty (1976) 61 CA3d 623, 627; Rivera, supra at 726.

 

CONCLUSION

 

The petition is denied.