Judge Mitchell L. Beckloff, Case Number: 21STCP04250, Date: 2023-09-06 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP04250, Date: 2023-09-06 Tentative Ruling

In identical petitions,[1] Petitioner, Rakeem Chadwick, requests the court relieve him of the claim presentation requirement of Government Code[2] section 945.4. The petition filed in case number 21STCP04250 concerns Petitioner’s claim for wrongful death of his wife. (See Pet., Blumenthal Decl., ¶ 2.) The petition filed in case number 21STCP04251 concern’s Petitioner’s claim for injuries he sustained. (See Pet., Blumenthal Decl., ¶ 2.)

Respondent, the City of Los Angeles, has opposed the petition in case number 21STCP04251 but not case number 21STCP04250.

The court finds the City of Los Angeles does not have proper notice of the proceedings in case number 21STCP04250.[3] Nonetheless, given the identical nature of the petitions and identical points and authorities submitted by Petitioner in both cases, the court proceeds with the hearing on the related petitions using the opposition filed by the City of Los Angeles to case number 21STCP04251 for both petitions. The court finds no prejudice to the City of Los Angeles by proceeding in such manner.

Petitioner filed his reply papers only three court days prior to this hearing in violation of Code of Civil Procedure section 1005, subdivision (b). Accordingly, the court does not consider the late filed papers. (Cal. Rules of Court, Rule 3.1300, subd. (d).)

The petitions for relief from the claim presentation requirement are DENIED. The court finds Petitioner has failed to meet his burden of proof on the petitions.

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 him of the claim presentation requirement based on mistake, surprise, inadvertence and/or excusable neglect.

As noted, 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, Petitioner sustained injuries in an automobile accident in the City of Compton. (Pet. 2:14-15.)[4] Petitioner’s wife died as a result of the accident. (See Pet., Blumenthal Decl., ¶ 2 [Case No. 21STCP02450.)

Petitioner concedes the time to present his government claim “expired on or about November 30, 2020.” (Pet. 3:4.)

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

More than five months later and just days prior one year after the accident, Petitioner submitted applications to submit a late claim to the City of Compton (on May 24, 2020) and the City of Los Angeles (on May 26, 2020). (Pet., Blumenthal Decl., ¶ 6.)

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

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

Petitioner filed his petitions to excuse the claim presentation requirement on December 30, 2021.

Through the petitions, 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.[5] 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.

The Sheehan Declaration attests to Petitioner’s age and address. (Sheehan Decl., ¶ 2.) It also authenticates 12 exhibits—a traffic collision report, late claim applications, application denials, and various proofs of service.

The Blumenthal Declaration, dated December 30, 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., 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., Blumenthal Decl., ¶ 5.)

As a preliminary matter, Blumenthal’s statements about the traffic report are inaccurate. Attached to the petitions is the first page of a seven-page traffic collision report dated October 4, 2020. Petitioner submitted the first page of the report with each of his late claim applications in May 2021. In fact, the Sheehan Declaration includes all seven pages of the October 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 October 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.

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 report does not justify (or excuse) a failure to present the claim within six months of the injury. Even assuming the City of Compton of the City of Los Angeles required such a report, the report was completed well within the six-month claims presentation period.

Plaintiff 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 his failure to file claims with the City of Compton and/or the City of Los Angeles resulted from his 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—he “was unaware of his need to serve governmental entities with notice of claim . . . .” (Memo 10:16-17.)[6] 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].)[7] As Petitioner has offered no evidence suggesting he acted as a reasonably prudent person when he failed to obtain counsel within the six months claims-presentation period, Barragan v. County of Los Angeles is unhelpful to his 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.[8] Throughout the claim period, the claimant diligently pursued legal representation and could not locate an attorney who was willing to represent here. 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 his burden of demonstrating excusable neglect, the petitions are denied.

Additionally, and independent of Petitioner’s failure to show excusable neglect, the court finds Petitioner is not entitled to relief because he has not demonstrated he filed his applications 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 his applications within one year of the May 30, 2020 accrual of his claims—May 24, 2021 (City of Compton) and May 26, 2021 (City of Los Angeles)—to obtain relief, Petitioner must have filed his late claim applications with the cities “within a reasonable time.” (§ 946.6, subd. (c).) Petitioner has provided no evidence to suggest his delay was reasonable or that his 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., ¶ 5.) Petitioner presents nothing further to explain why he needed nearly an entire year to submit his 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 October 4, 2020. Moreover, it is unclear why Petitioner (or his counsel) believed he could not file a claim more quickly without the report.

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

[Finally, even assuming the court considered Petitioner’s late-filed reply papers, the result would be no different. First, Petitioner submitted no additional evidence with his reply papers.[9] Thus, the lack of evidence to support Petitioner’s petitions remains. Second, Petitioner’s factual assertions are unsupported with any evidence. (See, e.g., Reply 2:8-9 [“debilitating injuries, depression”], 2:11-12 [“recovering and in mourning, unaware of his need to serve governmental entities”].) Third, Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976 concerned an attorney’s calendaring error and evidence of same. (Id. at 978.)[10] Finally, the court cannot determine whether Petitioner acted as a reasonably prudent person in his situation without evidence of his situation.]

[1] The petitions are identical, but there are slight differences in the attachments to the petitions. For example, the Declaration of Howard S. Blumental attached to each petition explains the petition in case number 21STCP04250 concerns Petitioner’s wrongful death claim while the petition in case number 21STCP04251 concerns the “injuries sustained by petitioner . . . .” (Pet., Blumenthal Decl., ¶ 2 [Case No. 21STCP04250], Blumenthal Decl., ¶ 2 [Case No. 21STCP04251].) Therefore, the court addresses both petitions in this single order. Doing so also permits the court to move forward despite the notice issues (discussed infra) as to the City of Los Angeles and case number 21STCP04250. The related petitions have been pending since December 30, 2021 and have been plagued with notice problems.

[2] All further statutory references are to this code unless otherwise noted.

[3] As to the City of Los Angeles and case number 21STCP04250, Petitioner has again failed to provide proper notice. On April 28, 2023, the City of Los Angeles did not appear at the continued trial setting conference. The court found Petitioner had not provided notice of the proceedings to the City of Los Angeles, set the matter for adjudication on August 23, 2023 and ordered Petitioner to give notice.

On July 27, 2023, this court issued an order continuing the August 23, 2023 hearing to September 6, 2023. The court ordered Petitioner to provide notice of the continuance “and to file proof of service of such notice forthwith . . . .”

On July 27, 2023 at 10:58 a.m.—presumably prior to Petitioner receiving notice of the continued hearing—Petitioner personally served the petition, memorandum of points and authorities and the Declaration of Howard S. Blumenthal on the City of Los Angeles at 200 North Spring Street, Room 395 in Los Angeles. The proof of service makes no reference to a notice of hearing. The face of the petition (attached to the proof of service) has no date, time and place of the hearing.

On August 14, 2023, Petitioner served the City with his points and authorities indicating today’s date, time and place of hearing. The service appears defective, however, as Petitioner electronically served the City of Los Angeles at the email address of former City Attorney Mike Feuer. (Mike Feurer has not been acting as City Attorney since December 12, 2022.) The proof of personal service is deficient as it indicates Marlene Nget, an employee of Petitioner’s attorney, “caused” personal service of the document. That is, Ms. Nget does not attest she personally served the document.

[4] As the petitions in both cases are identical, the court’s citations to the petition can be located in the petitions filed under either case number. While the Declarations of Howard S. Blumenthal attached to the petitions are not identical, the only difference in in paragraph 2, a paragraph not relevant to the analysis of whether Petitioner is entitled to relief.

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

[6] Petitioner “was unaware of the need to file a claim and his ignorance is excusable. Claimant was not represented during the six month statutory period and to this date the traffic collision report is still not completed to assist him in determining if in fact there is any claim for a dangerous condition of public property.” (Pet., 7:6-10.) First, the petitions are unverified so they have no evidentiary value. Second, Petitioner’s argument about the traffic collusion report, as discussed earlier, is simply inaccurate.

[7] 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.)

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

[9] The court is not suggesting such evidence would be timely or properly submitted.

[10] 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.)