Judge Mitchell L. Beckloff, Case Number: 23STCP02066, Date: 2023-12-20 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP02066, Date: 2023-12-20 Tentative Ruling

Petitioner, Takush Simityan, requests the court relieve her of the claim presentation requirement of Government Code[1] section 945.4. Petitioner alleges she suffered damages on June 3, 2022 while riding a public bus in the City of Los Angeles (City). Respondent, Los Angeles County Metropolitan Transit Authority, opposes the petition.

Except as to the first sentence of paragraph 16, Respondent’s evidentiary objections to the Declaration of Edgar Martirosyan are all sustained. Respondent’s objections based on hearsay, foundation and authentication are well taken.

In mid-November 2022, Petitioner retained the law firm of Martirosyan, P.C. to represent her with respect to injuries she suffered on June 3, 2022 while riding a public bus in the City of Los Angeles. Petitioner informed her attorney she was riding a “city bus” numbered 5911 when she suffered the injuries. (Martirosyan Decl. ¶ 2 and Exh. A-C.)

On December 1, 2022, with the six-month deadline to file a government claim quickly approaching, Petitioner’s attorney filed a claim for damages with the City of Los Angeles. (Id. ¶ 3, Exh. A.) On December 23, 2022, an investigator for the City sent Petitioner’s counsel a letter which specified a claim number and requested counsel complete a claim form. (Id. ¶ 4, Exh. B.)

On January 4, 2023, Petitioner’s attorney returned the requested claim form to the City. In describing the incident on the claim form, Petitioner’s attorney wrote: “Claimant, who is an elderly woman, got on the bus (#5911) and, before she could get to a seat, the driver abruptly drove off, causing her to loose [sic] her balance and fall, sustaining personal injuries.” (Id. ¶ 5, Exh. C.) Petitioner’s counsel also indicated on the claim form that the incident occurred at approximately 4:00 p.m. on June 3, 2022 on Hollywood Boulevard (nearest cross street of Western Avenue); the incident occurred on a “City of Los Angeles bus”; and the bus driver’s name was unknown. (Ibid.)

On February 6, 2023, the City denied Petitioner’s claim advising: “The Los Angeles County Metropolitan Transportation Authority (MTA) is a separate public entity and not part of the City of Los Angeles.” (Id. ¶ 7, Exh. D.)

Three days later, on February 9, 2023, Petitioner’s counsel served a claim for damages on Respondent. (Id. ¶ 8, Exh. E.) On February 27, 2023, Respondent denied Petitioner’s claim as untimely. (Id. ¶ 10, Exh. F.)[2]

Within a month, on March 22, 2023, Petitioner’s counsel filed an application for leave to file a late claim with Respondent. Respondent denied the application on April 24, 2023. (Id. ¶¶ 13-15, Exh. H, I.)

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.) Section 946.4, subdivision (e) instructs the trial court must make its determination upon the petition, “relying upon any affidavits in support of, or in opposition to, the petition and any additional evidence received at hearing on the petition.” (Ebersol v. Cowan (1983) 35 Cal.3d 427, 431.)

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’s claim for damages arises from an incident that occurred on June 3, 2022. Petitioner did not present her government claim with Respondent within six months of the incident. Accordingly, Petitioner untimely presented her claim.

Within one year of the incident, on March 22, 2023, Petitioner filed a late-claim application with Respondent. Respondent denied the application.

The court finds Petitioner timely filed the late-claim application as it was within a reasonable time as well as one year of the incident.

As noted earlier, the court may grant relief from an untimely claim presentation if “the failure to 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.” (§ 946.6, subd. (c)(1).)

“Although the statutes refer, as a requirement for relief, to ‘mistake, inadvertence, surprise or excusable neglect,’ only ‘neglect’ is qualified by the adjective ‘excusable.’ However, it is uniformly held that for relief on any or all of the stated grounds it must be shown that one's misconception was reasonable, or that it might have been the conduct of a reasonably prudent person under similar circumstances.” (Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 539 n.1.)

In Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270 (Bettencourt), cited by Petitioner, the court found excusable neglect when the petitioners’ attorney erroneously assumed Sacramento City College employees were state employees and filed a claim with the State Board of Control and not the Los Rios Community College District. The Court held counsel's misapprehension regarding defendant’s legal status was reasonable in light of his unfamiliarity with the area in which the college was located and the confusing blend of state and local control of the state’s system of higher education.

In Bettencourt, our Supreme Court instructed “[u]nless inexcusable neglect is clear, the policy favoring trial on the merits prevails.” (Id. at 276.) In granting relief from the claim presentation requirement, the Court reasoned in part:

In determining whether an attorney’s error constitutes excusable neglect, the courts also consider the attorney’s overall diligence or lack thereof in addition to examining the attorney’s error. Here, although counsel made an erroneous assumption, which led him to sue the wrong public entity, he was otherwise diligent. Plaintiffs' counsel recognized that defendant was a public entity and moved swiftly to file a tort claim within the 100-day period. He started investigating plaintiffs’ case the same day he was retained. . . . (Id. at 278-279.)

The circumstances here are similar to those in Bettencourt. In mid-November 2022, Petitioner retained Martirosyan, P.C. to represent her with respect to the injuries she suffered on June 3, 2022. (Martirosyan Decl. ¶ 2.) Petitioner, an elderly woman, acted diligently when she retained counsel within sufficient time to submit a timely claim for damages. Respondent develops no argument to the contrary.

The evidence shows Petitioner had little information about the party responsible for the incident. Petitioner conveyed to her attorney the information she had—she was riding city bus number 5911 when the incident occurred in the City. With that information, and with the six-month deadline quickly approaching, Petitioner’s counsel determined the defendant was a public entity and filed a claim with the City. (Id. ¶¶ 2-4, Exh. A-B.) Thereafter, Petitioner’s counsel acted diligently by returning a claim form when requested by the City; filing a claim with Respondent shortly after the City denied the claim; and filing a late claim application with Respondent shortly after Respondent denied the claim for damages. (Id. ¶¶ 4-15.) While Petitioner’s counsel erred as to the entity responsible, the evidence supports a finding Petitioner and her counsel moved with diligence to pursue the claim.

If Petitioner or her counsel simply googled “what company operates bus in Los Angeles”, a Wikipedia page which states “Los Angeles Metro Bus is the transit bus service in Los Angeles County, California operated by the Los Angeles County Metropolitan Transportation Authority (Metro)” is the first thing that comes up. If Petitioner or her counsel simply googled “LACMTA bus number”, there is another Wikipedia page that details the fleet of LACMTA buses along with the bus numbers, including #5911. (Opposition 8:1-6.)

Respondent does not cite a declaration or other evidence in support of its argument.

In response to Respondent’s argument concerning available information on the internet, Petitioner asserts:

LACMTA is not the only bus operator within the City of Los Angeles, nor the one obvious answer in an internet search, under the circumstances. Indeed, Respondent conveniently neglects to mention that similar google searches for bus operations within Los Angeles also bring up several of the Los Angeles Department of Transportation (“LADOT”) websites (e.g. ladot.lacity.org; ladottransit.com) as the top results. Respondent’s argument also fails to account for the fact that search results vary based on the phrases used to search, the search engines used, as well as any search engine optimizations in place for different websites at any given time. Indeed, if Respondent were to search “bus operation within the City of Los Angeles” using a different search engine (i.e. Microsoft Bing), LADOT’s website is the first one that comes up. LADOT is a municipal agency, which, pursuant to its website, “leads transportation planning, project delivery, and operations in the City of Los Angeles.” Moreover, according to its Wikipedia page, LADOT was created by city ordinance, and is run by a general manager appointed by the Mayor of Los Angeles, under the oversight of a citizens’ commission also appointed by the mayor. (Reply 4:27-5:.)

Like Respondent, Petitioner also does not submit a declaration or other evidence in support of her argument.

The court, on its own motion, judicially notices the Google and Bing searches described in the parties’ papers as well as the descriptions of LACMTA and LADOT found on Wikipedia.org. Significantly, Wikipedia describes LADOT as:

LADOT, is a municipal agency that oversees transportation planning, design, construction, maintenance and operations within the city of Los Angeles. LADOT was created by city ordinance, and is run by a general manager appointed by the Mayor of Los Angeles, under the oversight of a citizens' commission also appointed by the mayor. LADOT is best known for providing public transportation to the City of Los Angeles. It currently operates the second-largest fleet in Los Angeles County next to Metro. It consists of over 300 vehicles, serving nearly 30 million passengers a year and operating over 800,000 hours.

Given the information conveyed to Petitioner’s counsel in November 2022 shortly before the six-month deadline, including Petitioner’s report she was riding a “city bus” in the City, and LADOT is a public transportation agency that operates in the City, a reasonably prudent attorney in similar circumstances could have determined the City was the responsible party and filed a claim with City. Although Petitioner’s counsel made a mistake in concluding the City was the responsible party, the court cannot conclude in these circumstances that Petitioner’s counsel’s error was so unreasonable as to constitute inexcusable neglect. Petitioner’s counsel was otherwise diligent in pursuing the claim. He determined the defendant was a public agency; filed a timely government claim with City (albeit the wrong public agency); and acted diligently after the City denied the claim. Considering the policy favoring trial on the merits, the court finds the evidence sufficient to grant relief from the claim presentation requirement.

Because Petitioner has shown that she failed to file a timely claim as a result of excusable neglect, the burden shifts to Respondent to show it would be prejudiced in the defense of the claim if the court relieves Petitioner from the requirements of section 945.5. (See § 946.6, subd. (c)(1); Moore v. State of California (1984) 157 Cal.App.3d 715, 726-727.) Respondent has not presented any evidence of prejudice (or any evidence with its opposition) and, therefore, has not met its burden of proof under section 946.6, subdivision (c)(1).

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

[2] On February 28, 2023, Respondent’s claims administrator sent Petitioner’s counsel a letter enclosing a Center for Medicare & Medicaid Services form for Petitioner to sign and return. Respondent later advised Petitioner to disregard the February 28 letter. (Id. ¶¶ 11-12.)

[3] Respondent opened the door to this evidence in its opposition by citing a google search and a Wikipedia page. Respondent’s counsel may respond to the Wikipedia description of LADOT at the hearing.

[4] Petitioner also moves for relief from the claim presentation requirement pursuant to section 946.6, subdivision (c)(5), physical or mental incapacity. (Mot. 10-11.) Petitioner has not submitted any admissible evidence in support of such contention. Accordingly, the court has no evidence upon which it grant relief pursuant to section 946.6, subdivision (c)(5).