Judge: Michael E. Whitaker, Case: 23SMCV02763, Date: 2024-01-31 Tentative Ruling

Case Number: 23SMCV02763    Hearing Date: March 11, 2024    Dept: 207

TENTATIVE RULING

MOTION

This case arises from injuries Plaintiff Ashley Rochestie (“Plaintiff”) allegedly sustained when she fell into a half-filled planter, creating a hole in the sidewalk.  Plaintiff filed suit against Defendants City of Santa Monica; Los Angeles County; SML Investors, LLC; 624 Lincoln Blvd. Apartments; and Yi Pan, alleging five causes of action for (1) Damages Based on Governmental Tort Liability and Negligence (Gov. Code, § 835); (2) Negligence; (3) Premises Liability; (4) Private Nuisance; and (5) Public Nuisance.  As to Defendant City of Santa Monica (“Defendant”), Plaintiff only alleges the first cause of action. 

On January 31, 2024, the Court sustained Defendant City of Santa Monica’s (“Defendant”) demurrer to the first cause of action without leave to amend, because Plaintiff failed to comply with the presentation requirement of the Government Claims Act.  (January 31, 2024 Minute Order.)

Plaintiff now petitions the Court for relief from the Claim Statute.  Defendant opposes the petition.

LEGAL STANDARD

Government Code section 835 provides:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

            Government Code section 911.2 requires:

(a) 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. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.

(b) For purposes of determining whether a claim was commenced within the period provided by law, the date the claim was presented to the Department of General Services is one of the following:

(1) The date the claim is submitted with a twenty-five dollar ($25) filing fee.

(2) If a fee waiver is granted, the date the claim was submitted with the affidavit requesting the fee waiver.

(3) If a fee waiver is denied, the date the claim was submitted with the affidavit requesting the fee waiver, provided the filing fee is paid to the department within 10 calendar days of the mailing of the notice of the denial of the fee waiver.

Government Code section 912.4 provides that the government is required to act on the claim within 45 days of the claim being presented (unless this period is extended by agreement of the parties), and if the government fails to act within that time, the claim is deemed rejected. 

            The Government Code outlines the procedure for untimely claims.  Section 911.4 provides:

(a)   When a claim that is required by Section 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.

(b)   The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.         

(Gov. Code, § 911.4, subds. (a)-(b).) 

            Section 911.6, subdivision (a) provides:  “The board shall grant or deny the application within 45 days after it is presented to the board. The claimant and the board may extend the period within which the board is required to act on the application by written agreement made before the expiration of the period.”  Further, Section 911.6 holds that “[i]f the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day or, if the period within which the board is required to act is extended by agreement pursuant to this section, the last day of the period specified in the agreement.”  (Gov. Code, § 911.6, subd. (c), emphasis added.)

“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.”  (Code Civ. Proc., § 946.6, subd. (a).)  “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.”  (Gov. Code, § 946.6, subd. (b), emphasis added.) 

            This six-month deadline to petition the court for relief from the claim presentation requirement is mandatory, not discretionary.  (Lineaweaver v. Southern California Rapid Transit District (1983) 139 Cal.App.3d 738, 741.)

ANALYSIS

            Here, the Complaint alleges the incident occurred “On or about June 13, 2022.” (Complaint ¶ 13.)   Thus, Plaintiff’s deadline to submit the claim to Defendant was December 13, 2022.  (Gov. Code, § 911.2.)  Plaintiff did not present its claim to Defendant within this six-month time period.  (Amended Janfaza Decl. ¶ 8.) 

            Plaintiff contends to have petitioned Defendant for leave to file a late claim “within a reasonable time” pursuant to a letter dated January 6, 2023.  (Janfaza Decl. ¶ 10 and Ex. B.)  Defendant denies having received Plaintiff’s petition for leave, and therefore, did not respond to it.  (See Opp. at p. 7; Mack Decl. ¶ 5.)  Defendant also challenges Plaintiff’s evidence in this regard, noting that Plaintiff’s counsel’s declaration does not indicate exactly when the application for leave was mailed or what address it was sent to.  (Opp. at p. 1.)  In fact, Exhibit B which is the purported petition for leave submitted to Defendant does not set forth an address. 

Notwithstanding, Plaintiff mailed the untimely government claim to Defendant on May 17, 2023.  (Id. at ¶ 9.)  Defendant denied Plaintiff’s claim on July 5, 2023.  (Id. at ¶ 11 and Ex. C.)

            The Court finds that Plaintiff has not demonstrated that this Court has jurisdiction to grant Plaintiff’s petition for relief, because Plaintiff has not specified when it sent the January 6, 2023 petition for leave to Defendant.  Pursuant to Government Code section 911.4, subdivision (b), Plaintiff’s deadline to do so was on or before June 13, 2023, yet Defendant contends it has never received it, which suggests, Plaintiff may not have properly sent the letter to Defendant. 

            But even if Plaintiff had properly sent the petition for leave, because Defendant never responded to it, it would be deemed denied forty-five days later, and this Court’s jurisdiction to grant relief from the claim statute expires six months thereafter. 

Assuming the letter was sent on or around the January 6, 2023 date of the petition, it would be deemed rejected forty-five days later, on or around February 20, 2023, and the Court’s jurisdiction to grant relief expires six months thereafter, on or around August 20, 2023.  Yet Plaintiff did not petition this Court for relief until January 26, 2024.

CONCLUSION AND ORDER

Therefore, because Plaintiff has not demonstrated that this Court has jurisdiction to grant the relief Plaintiff seeks, the Court denies Plaintiff’s Petition for Relief from the Claim Statute.    

The Clerk of the Court shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  March 11, 2024                                                      ___________________________

                                                                                    Michael E. Whitaker

                                                                                    Judge of the Superior Court