Judge Peter A. Hernandez, Case Number: 23PSCP00365, Date: 2024-02-05 Tentative Ruling

Petitioner Ruby Trevino’s Petition for Order from Relief from Claim Statute is DENIED.

Petitioner Ruby Trevino (“Petitioner”) alleges that on or about May 20, 2022, she slipped and fell on liquid at the L.A. County Fair in Pomona.

This is a petition for relief from the provisions of Government Code § 945.4, filed August 17, 2023.

“A claim relating to a cause of action for death or for injury to person . . . shall be presented . . . not later than six months after the accrual of the cause of action.” (Gov. Code § 911.2, subd. (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.” (Gov. Code § 911.4, subd. (a).) “The application shall be presented to the public entity . . . 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, subd. (b).)

“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. . .” (Gov. Code § 946.6, subd. (a).) [2] “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.” (Gov. Code § 946.6, subd. (b).) [3]

“The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable:

(1) 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.

(2) 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.

(3) The person who sustained the alleged injury, damage, or loss was a minor during any of the time specified in Section 911.2 for the presentation of the claim, provided the application is presented within six months of the person turning 18 years of age or a year after the claim accrues, whichever occurs first.

(4) 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.

(5) The person who sustained the alleged injury, damage, or loss was physically or mentally incapacitated during any 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, provided the application is presented within six months of the person no longer being physically or mentally incapacitated, or a year after the claim accrues, whichever occurs first.

(6) 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.”

“A copy of the petition and a written notice of the time and place of hearing shall be served before the hearing as prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure on (1) the clerk or secretary or board of the local public entity, if the respondent is a local public entity, or (2) the Attorney General, if the respondent is the state. . . Service on the Attorney General may be accomplished at any of the Attorney General's offices in Los Angeles, Sacramento, San Diego, or San Francisco. . .” (Gov. Code § 946.6, subd. (d).)

Petitioner moves the court for an order relieving her from the requirements of Government Code § 945.4.

At the outset, the court notes that Petitioner has failed to file a proof of service reflecting that City, County and State were provided notice of the February 5, 2024 hearing date (see footnote #1). The following analysis, then, is contingent upon Petitioner’s counsel filing said proof of service with the court at or before the time of the hearing:

In this case, the subject incident occurred on May 20, 2022. (Petitioner’s Decl., ¶ 5.) Petitioner retained counsel on January 9, 2023. (Fradkin Decl., ¶ 2). On May 18, 2023, Petitioner applied to City, County and State for leave to file a late tort claim for damages. (Id., ¶ 3, Exh. 1.) Petitioner’s application was denied by County on June 5, 2023. (Id., ¶ 5, Exh. 2) and was deemed denied by City and State on July 2, 2023 (Id., ¶ 7.) The instant application was filed on August 17, 2023.

In a petition for relief from claims filing requirements, “a petitioner has the burden of providing by a preponderance of evidence the necessary elements for relief.” (Rodriguez v. County of Los Angeles (1985) 171 Cal.App.3d 171, 175). “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. The definition of 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.’” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) “There must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence. The party seeking relief based on a claim of mistake must establish he was diligent in investigating and pursuing the claim and must establish the necessary elements justifying relief by the preponderance of the evidence.” (Id.)

The petition asserts that “Plaintiff knew that she had to file government claims within 6 month of her injury however [Petitioner] mistakenly improperly calendared the six month expiration date.” (Petition, 4:5-7). The petition further asserts that “it was discovered that [Petitioner] had miscalendared the date” “[u]pon [Petitioner retaining counsel. . . on January 9, 2023.” (Id., 4:9-10).

Petitioner attests only that she lost her job in September 2022 (Petitioner’s Decl., ¶ 2), that she has been homeless since then and living on the streets, where she “moved around a lot” having been “subjected to multiple instances of attempted kidnapping by strangers forcing [her] into sexual enslavement” (Id., ¶ 3) and that she “accidentally miscalendared the proper deadline for the government claim” “[d]ue to the situation [she] was dealing with” (Id., ¶ 4). Petitioner’s counsel, Igor Fradkin (“Fradkin”), attests that it was discovered that [Petitioner] ha[d] mis calendared the [deadline]” “[u]pon Plaintiff retaining counsel.” (Fradkin Decl., ¶ 4).

The court determines that Petitioner has not shown that her failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect. A reasonably prudent person who was admittedly aware of the six-month claims presentation requirement[4] would not wait eight months to retain an attorney. A reasonably prudent person would have attempted to retain an attorney, attempted some investigation into the claim, or taken some steps in pursuit of the claim prior to the expiration of the six-month deadline, none of which Petitioner apparently did.

Incidentally, Petitioner’s reference to Emergency Rule 9 is not applicable, inasmuch as that rule tolled the statutes of limitations and repose from April 6, 2020 until October 1, 2020 for civil cases of action that exceeded 180 days and tolled the statutes of limitations and repose from April 6, 2020 until August 3, 2020 for civil causes of action that were 180 days or less. The alleged incident occurred on May 20, 2022, well after this period.

"Once it has been shown that an application for leave to file a late claim was made within a reasonable time and that the failure to present a timely claim was through mistake, inadvertence, surprise or excusable neglect, the burden shifts to the public entity to establish by a preponderance of the evidence that it would be prejudiced if the court relieves the petitioner from the six-month claim presentation requirements.” (Renteria v. Juvenile Justice, Department of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 910.) Even if Petitioner had met her moving burden (which she has not), the court determines that County has established that it would be prejudiced in the defense of the claim if the court relieved Petitioner from the requirements of Section 945.4. The subject incident occurred over one and a half years ago; as such, County has little ability to investigate any potential evidence and to interrogate independent witnesses.

[1] The instant petition (consisting of the notice, memorandum of points and authorities and Declaration of Igor Fradkin] was filed on August 17, 2023 (originally mail-served August 15, 2023 to Corina Weaver Carl Warren & Company, P.O. Box 116, Glendale, CA 91209 for County of Los Angeles [“County”], to 500 W. Temple St., Ste. 358, Los Angeles, CA 90012 for County and to Government Claims Program Office of Risk and Insurance Management, P.O. Box 989052 – Department of General Services, West Sacramento, CA 95798-9052 for State of California [“State”]). On September 6, 2023, Petitioner filed a supporting declaration, which was mail-served to the above addresses (and also to the City Clerk’s Office, 505 S. Garey Ave, Pomona, CA 91766) on September 5, 2023. On September 15, 2023, Petitioner filed a proof of service, which reflected personal service of the foregoing documents on County on September 7, 2023 at 500 W. Temple St. Ste. 358, Los Angeles, CA 90012-3551. This appears to be the address of the Chief Executive Office for County. On September 19, 2023, Petitioner filed a second proof of service, which reflected personal service of the foregoing documents on the City Clerk’s Office for the City of Pomona [“City”] on September 12, 2023. On September 25, 2023, Petitioner filed a third proof of service, which reflected personal service of the foregoing documents on State on September 14, 2023.

On December 8, 2023, a “Notice of Hearing of Petition” was filed, wherein the court scheduled a hearing on the instant petition for February 5, 2024; notice was given to Petitioner’s counsel, who was ordered to give notice of the hearing by serving a copy of said notice on all parties to the action and to file a proof of service thereof. There is nothing on ecourt reflecting that Petitioner provided notice of the February 5, 2024 hearing date to City, County and State, although County has filed an opposition and State has filed a Case Management Statement and a “Notice of Remote Appearance” for the instant hearing date.

[2] Section 945.4 reads, in relevant part, as follows: “Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . ..”

[3] Section 910 reads, in relevant part, as follows: “A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: (a) The name and post office address of the claimant. (b) The post office address to which the person presenting the claim desires notices to be sent. (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. (f) The amount claimed if it totals less than ten thousand dollars . . .If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.”

[4] County’s counsel Kevin J. Engelien has attached Petitioner’s Declaration executed May 16, 2023 submitted concurrently with Petitioner’s Late Claim for Damages as Exhibit A to his accompanying declaration; said declaration states, in relevant part, that “It was my, TRVEINO’s, understanding that claim forms must be submitted within six months of the injury. . .” (Emphasis added).