Judge Mitchell L. Beckloff, Case Number: 21STCP04249, Date: 2023-09-06 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP04249, Date: 2023-09-06 Tentative Ruling

Petitioner, Wonda L. Hale, as guardian ad litem for minor, Brooklyn Dixon (Claimant), requests the court relieve her of the claim presentation requirement of Government Code[1] section 945.4.

The petition for relief from the claim presentation requirement is DENIED. The court finds Petitioner has failed to meet her burden of proof on the petition.

Government Code section 911.2, in the Government Tort Claims Act, provides a “claim relating to a cause of action . . . for injury to person . . . shall be presented . . . not later than six months after the accrual of the cause of action.” (Emphasis added.) The date of accrual for the purpose of presentation of a claim is the date on which the cause of action would have accrued within the meaning of the statute of limitations. (§ 901.)

Section 946.6 is the ultimate judicial backstop of the claim presentation process. If a claimant fails to file a timely claim and if the public entity then denies the claimant’s application for permission to file a late claim, the claimant may file a petition for relief from section 945.4’s requirement of timely claim presentation prior to suit. (See also §§ 946.6, subd. (a), 911.2 and 911.4.)

The petition must be filed within six months after the application to the public entity is denied or deemed to be denied. (§ 946.6, subd. (b).) The petition must show: (1) an application was made to the public entity under section 911.4 and was denied or deemed denied; (2) the reason for the failure to timely present the claim to the public entity within the time limit specified in section 911.2; and (3) the information required by section 910. (§ 946.6, subd. (b).)

The court shall grant relief only if it finds (1) the application to the public entity for leave to file a late claim was made within a reasonable time not to exceed one year after accrual of the claim as specified in section 911.4, subd. (b); and (2) one or more of the following is applicable:

(a) the failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect, unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of section 945.4;

(b) 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;

(c) the person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time; or

(d) 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.

(§ 946.6, subd. (c); see also Tammen v. County of San Diego (1967) 66 Cal.2d 468, 474.)

In instances where the petitioner claims the failure to timely present the claim was the product of mistake, inadvertence, surprise, or excusable neglect, the court analyzes the petition under principles applicable to relief from defaults under Code of Civil Procedure section 473, subdivision (b). (Han v. City of Pomona (1995) 37 Cal.App.4th 552, 557 [citing Ebersol v. Cowan (1983) 35 Cal.3d 427, 435].) When considering relief under section 946.6, the court should resolve any doubts which may exist in favor of the application, preferring an outcome where the action may be heard on its merits. (Viles v. California (1967) 66 Cal.2d 24, 28-29.)

A petitioner bears the initial burden of demonstrating his or her entitlement to relief. (Renteria v. Juvenile Justice, Department of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 910-911; Toscano v. Los Angeles County Sheriff's Department (1979) 92 Cal.App.3d 775, 784-785.) A petitioner must prove the basis for relief by a preponderance of the evidence. (Toscano v. Los Angeles County Sheriff's Department, 92 Cal.App.3d at 784-785; Department of Water & Power v. Superior Court of Los Angeles County (Dzhibinyan) (2000) 82 Cal.App.4th 1288, 1293.) A respondent has no burden to establish prejudice until the petitioner has satisfied the court that his or her failure to file a timely claim was due to mistake, inadvertence surprise or excusable neglect. (Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 726.)

Finally, “[r]emedial statutes such as . . . section 946.6 should be liberally construed.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1783.)

Petitioner argues the court should relieve her of the claim presentation requirement based on excusable neglect. (Pet. 10:12-13.)

As noted earlier, pursuant to section 911.2, a “claim relating to a cause of action . . . for injury to person . . . shall be presented . . . not later than six months after the accrual of the cause of action.” (Emphasis added.) The date of accrual for the purpose of presentation of a claim is the date on which the cause of action would have accrued within the meaning of the statute of limitations. (§ 901.)

On May 30, 2020, Claimant’s mother died as a result of a traffic accident that occurred in the City of Compton, County of Los Angeles. (See Pet., Exh. H, Blumenthal Decl., ¶ 2.)

Petitioner concedes the time for Claimant to have presented her government claim “expired on or about November 30, 2020.” (See Pet., Exh. H, Blumenthal Decl., ¶ 5.)

Petitioner retained her current attorneys “on January 7, 2021 which was after the six month period” to present a government claim. (See Pet., Exh. H, Blumenthal Decl., ¶ 5.)

More than four months later and just days prior to one year after the accident, Petitioner submitted applications to submit a late claim to the City of Compton and the County of Los Angeles (on May 24, 2021) and the City of Los Angeles (on May 26, 2021). (Pet., Exh. H, Blumenthal Decl., ¶ 6.)

The City of Los Angeles denied Petitioner’s application to submit a late claim on June 30, 2021. (Pet., Exh. H, Blumenthal Decl., ¶ 7.)

The City of Compton denied Petitioner’s application to submit a late claim on July 6, 2021. (Pet., Exh. H, Blumenthal Decl., ¶ 7.)

Petitioner filed her petition to excuse the claim presentation requirement on December 30, 2021.

Through the petition, Petitioner seeks relief from the claim presentation requirement based upon excusable neglect. (Memo 10:12-13. [“Petitioner’s Failure to Serve a Notice of Claim was Due to Excusable Neglect.”]) Subdivision (a) of section 946.6 requires a petitioner to demonstrate excusable neglect for the failure to make a timely claim.[3] To show excusable neglect, a petitioner must provide evidence. The evidence provides a factual basis for the court to determine whether a petitioner’s neglect is excusable.

"The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief. Relief on grounds of mistake, inadvertence, surprise or excusable neglect is available only on a showing that the claimant's failure to timely present a claim was reasonable when tested by the objective ‘reasonably prudent person’ standard.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.)

Excusable neglect is defined as “neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) Under the reasonably prudent person standard, “[e]xcusable neglect is that neglect which might have been the act of a reasonably prudent person under the circumstances.” (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at 1296.)

“When relief is sought based on mistake, because of the reasonably prudent person standard ‘it is not every mistake that will excuse a default, the determining factor being the reasonableness of the misconception.’ ” (N.G. v. County of San Diego (2020) 59 Cal.App.5th 63, 74.)

Petitioner has submitted two declarations to provide the evidentiary basis for his request for relief: the Declaration of John A. Sheehan and the Declaration of Howard S. Blumenthal.[4]

The Sheehan Declaration attests to Petitioner’s age and address. (Sheehan Decl., ¶ 2.) It also authenticates 13 exhibits—a traffic collision report, late claim applications, application denials, and various proofs of service.

The Blumenthal Declaration, dated December 28, 2021, provides some factual background to support the petitions. For example, Blumenthal describes the underlying accident. He also attests after Petitioner retained his law firm (after the six month claims presentation period had run) the law firm “conducted an investigation and contacted the Los Angeles Sheriffs Department to obtain a copy of the completed traffic collision report.” (Pet., Exhi. H, Blumenthal Decl., ¶ 5.) Blumenthal explains Petitioner “had tried to obtain it during the first six months and it was not completed. We were further advised it had not been completed and could not be given to us and to this day we have not received the completed report nor are we aware that it has been completed.” (Pet., Exh. H, Blumenthal Decl., ¶ 5.)

As a preliminary matter, Blumenthal’s statements about the traffic report are inaccurate. Attached to the petition as Exhibit A is the first page of a seven-page traffic collision report dated August 4, 2020. Petitioner submitted the first page of the report with her late claim application in May 2021. (The single page submitted with the application indicates it is page 1 of 7.) In fact, the Sheehan Declaration includes all seven pages of the August 4, 2020 report. Given that the face page of the report indicates the report consists of seven pages, the California Highway Patrol completed its traffic collision report on August 4, 2020. Blumenthal’s cursory statement about the availability of the report provides no detail to support his statement the law firm could not obtain the report or that the report had not been completed. Blumenthal’s statement about Petitioner attempting to obtain the report is unsupported with any foundation.

Nonetheless, the issue about a completed traffic collision report is somewhat of a red herring. Nothing required Petitioner to include such a report with any claim presented to the City of Compton or the City of Los Angeles. That is, the traffic collision report does not justify (or excuse) a failure to present the claim within six months of the injury to either city. Even assuming the City of Compton or the City of Los Angeles required such a report, the California Highway Patrol completed the report well within the six-month claims presentation period.

Petitioner has provided no evidence concerning the six months following the accident—the claims presentation period. There is no evidence before the court from which the court could determine Petitioner’s neglect was excusable. The evidentiary record is devoid of any facts about what occurred between May 30, 2020 and November 30, 2020. The lack of evidence necessarily requires the petitions be denied based on Petitioner’s failure to demonstrate her failure to file claims with the City of Compton and/or the City of Los Angeles resulted from her excusable neglect. (See El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 62.)

Based on the lack of any evidence addressing Petitioner’s claim of excusable neglect, the court has no grounds for granting Petitioner relief.

In a single sentence, Petitioner does argue—without any evidence—she “was . . . unaware of her granddaughters[’] claims for wrongful death[.]” (Memo 10:19-21.)[5] Even assuming the statement is true, it is well established that “a mere lack of knowledge of the claim-filing requirements and its time limitation is insufficient.” (El Dorado Irrigation Dist. v. Superior Court, supra, 98 Cal.App.3d at 62. See also Tammen v. San Diego County, supra, 66 Cal.2d at 476.)

“California cases are uniformly clear that ‘a petitioner may not successfully argue excusable neglect when he or she fails to take any action in pursuit of the claim within the six-month period. The claimant must, at a minimum, make a diligent effort to obtain legal counsel within six months after the accrual of the cause of action.’ ” (People ex rel. Dep’t of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44-45.)

Petitioner’s reliance on Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373 (see Memo 11:5-24), Ebersol v. Cowan (1983) 35 Cal.3d 427 and Syzemore v. County of Sacramento (1976) 55 Cal.App.3d 517 is unhelpful. As a preliminary matter, none of the cases suggest the court can find excusable neglect where no evidence concerning a petitioner’s actions has not been proffered to the court.

Barragan v. County of Los Angeles has no application here. In fact, the case notes “lack of knowledge alone is not considered a sufficient basis for relief, when the claimant did not make an effort to obtain counsel.” (Barragan v. County of Los Angeles, supra, 184 Cal.App.4th at 1383.) While the Court later explains such rule is not absolute, the Court makes clear “the failure to obtain legal advice will be excused when a different course of action is reasonably prudent.” (Id. at 1384 [quoting Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432, 439].)[6] As Petitioner has offered no evidence suggesting she acted as a reasonably prudent person when she failed to obtain counsel within the six months claims-presentation period, Barragan v. County of Los Angeles is unhelpful to her position.

Syzemore v. County of Sacramento is also unhelpful to Petitioner. The case concerned the claims presentation requirement with a claimant on active military duty. The Court permitted a claimant to proceed with a late claim finding the time within which the claimant was required to present his claim had been tolled under the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. App. § 501 et seq.) (Syzemore v. County of Sacramento, supra, 55 Cal.App.3d at 524.) The court also briefly noted the “undisputed facts” of the case “establish mistake and excusable neglect beyond any doubt.” (Ibid.) The undisputed facts included the number of days the claimant was hospitalized and his ongoing medical care. (Id. at 520.)

Ebersol v. Cowan actually supports the results here. After sustaining an injury, the claimant in Ebersol v. Cowan contacted and spoke with up to nine attorneys during the (then) 100-day claim-presentation period.[7] Throughout the claim period, the claimant diligently pursued legal representation and could not locate an attorney who was willing to represent her. The Supreme Court noted the claimant

acted swiftly to place her case in the hands of an attorney on the very day she was injured. Thereafter, despite repeated rebuffs by attorneys she contacted, [the claimant] continued to seek legal advice and assistance. Despite her physical pain, and progressive deformity of her left hand, her frequent and prolonged admissions to the hospital, and her frequent outpatient medical treatments, [the claimant] continued her search. Clearly, [the claimant’s] efforts to obtain counsel during the 100-day limitation period were both tenacious and diligent. (Ebersol v. Cowan, supra, 35 Cal.3d at 437.)

Unlike Ebersol v. Cowan, there is no evidence before the court addressing Petitioner’s actions during the six-month claims presentation period. There is no factual basis for the court to find Petitioner’s neglect was excusable.

As Petitioner has failed to meet hier burden of demonstrating excusable neglect, the petition is denied.

Additionally, and independent of Petitioner’s failure to show excusable neglect, the court finds Petitioner is not entitled to relief because she has not demonstrated she filed her application for leave to present a late claim with the City of Compton and/or the City of Los Angeles “within a reasonable time” as required by section 946.6, subdivision (c). While Petitioner filed her application within one year of the May 30, 2020 accrual of Claimant’s claims—May 24, 2021 (City of Compton) and May 26, 2021 (City of Los Angeles)—to obtain relief, Petitioner must have filed her late claim applications with the cities “within a reasonable time.” (§ 946.6, subd. (c).) Petitioner has provided no evidence to suggest her delay was reasonable or that her counsel “was otherwise diligent in investigating and pursuing the claim.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)

The evidence proffered by Petitioner on this issue is scant at best. As noted earlier, Petitioner’s counsel advises the California Highway Patrol’s traffic collision report “had not been completed and could not be given to [the law firm] and to this day [the law firm had] not received the completed report nor [was the law firm] aware that it has been completed.” (Pet., Blumenthal Decl., Exh. H, ¶ 5.) Petitioner presents nothing further to explain why she needed nearly an entire year to submit her application to file a late claim with the cities.

As discussed earlier, the representation a traffic collision report had not been completed by November 30, 2020 is inaccurate. The seven-page report is dated August 4, 2020. Moreover, it is unclear why Petitioner (or her counsel) believed she could not file a claim more quickly without the report.

Petitioner has provided no evidence to justify her close to five-month delay from hiring counsel and submitting her applications to a file late claim with the cities. The court cannot find Petitioner proceeded with her application “within a reasonable time” as required by section 946.6, subdivision (c).

Petitioner failed to present evidence in reply.[8] (The court is not suggesting such late-filed evidence would have been appropriate.) Thus, the lack of evidence to support Petitioner’s petitions remains.

Petitioner’s reliance on Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976 is unhelpful to her position. In Nilsson v. City of Los Angeles, the petitioner presented evidence to explain the reason for her late claim—a calendaring error by her counsel. The Court noted, “While not every mistake of an attorney constitutes excusable neglect . . ., calendar entries by an attorney or a member of his staff are, under appropriate circumstances, excusable.” (Id. at 980.)[9]

Finally, the court need not address the issue of prejudice to the cities given that Petitioner has not made her showing of excusable neglect.

[1] All further undesignated statutory references are to this code.

[2] Petitioner dismissed the County of Los Angeles from this proceeding on August 15, 2023.

[3] Mistake, inadvertence and/or surprise also serve as grounds to relieve a petitioner from timely presentation of a claim.

[4] The Blumenthal declaration is actually attached to the petition (Exhibit H) as part of late claim application submitted to the cities and county.

[5] There is no evidence before the court about Petitioner’s understanding. The petition is unverified so it has no evidentiary value.

[6] As noted by the City of Compton, “In finding that petitioner had demonstrated excusable neglect, the court noted that the petitioner ‘spent the first three months in the hospital, and the remainder of the six-month period confined to her bed at home. Depressed, in pain, and under the influence of medication, [petitioner’s] attention was directed toward learning the basis tasks of everyday life, such as eating, hold a toothbrush, and controlling her elimination of waste. During that six-month period, she was unable to even sit up without assistance, and did not so much as leave her bedroom to watch television.’ ” (City of Compton Opposition 12:17-24.)

[7] The exact number of attorneys with whom the claimant consulted within the 100-day period is not entirely clear.

[8] Accordingly, the court disregards the unsupported claim of what Petitioner may have been feeling based on the accident. The court cannot determine whether Petitioner acted as a reasonably prudent person in her situation without evidence of her situation.

[9] Nilsson v. City of Los Angeles discussed Viles v. State of California (1967) 66 Cal.2d 24 in its decision. The petitioner in Viles v. State of California supported his request of the court with evidence to explain his delay. (Id. at 27, 29.)