Judge Peter A. Hernandez, Case Number: 23PSCV02655, Date: 2024-05-20 Tentative Ruling

Plaintiff/Petitioner Michael Guirguis’ Petition for Relief from Government Code § 945.4 Pursuant to Government Code § 946.6 is GRANTED.

Plaintiff Michael Guirguis (“Guirguis”) alleges that he twisted/inverted his left ankle while stepping down from an unmarked elevation from the track to the concrete at Bonita High School in La Verne.

On August 29, 2023, Guirguis filed a complaint, asserting causes of action against Bonita Unified School District (“BUSD”), County of Los Angeles and Does 1-100 for:

On January 10, 2024, the court related Case Nos. 23PSCV02655 and 23PSCV03288 and designated Case No. 23PSCV02655 as the lead case.

“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[1]. . .” (Gov. Code § 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[2]. The petition shall be filed within six months after the application to the board is denied or deemed denied pursuant to Section 911.6.” (Gov. Code § 946.6, subd. (b).)

“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.

Guirguis moves the court for an order relieving him from the requirements of Government Code § 945.4.

The subject incident occurred on August 30, 2022. (Guirguis Decl., ¶ 2). On January 13, 2023, Guirguis contacted superintendent of BUSD Sonia Eckley’s (“Eckley”) office and left a message for Eckley with Eckley’s assistant, Christine Froio (“Froio”), requesting an immediate callback with information on how he could report the incident and submit a claim for damages. (Id., ¶ 6). On January 18, 2023, Eckley called Guirguis back and advised Guirguis that his claim was not against BUSD but was instead against Pop Warner. (Id., ¶ 7). Eckley gave Guirguis the contact information for O2 Insurance, Pop Warner’s insurer, “with the direction” that Guirguis file his claim with them. (Id.)

On January 18, 2023, Guirguis attempted to file his claim with O2 Insurance but they initially failed to respond to his correspondence. (Id., ¶ 8). On January 19, 2023, Guirguis spoke with Patricia Chez (“Chavez”) an agent of O2 Insurance, who began a series of correspondence with Guirguis over the following month. (Id., ¶ 9). On February 22, 2023, O2 Insurance stopped responding to Guirguis’ correspondence. (Id., ¶ 10). On February 22, 2023, Guirguis contacted Eckley’s office again and told Froio that O2 had stopped responding to his correspondence. (Id., ¶ 11). Eckley did not call Guirguis back. (Id.)

On April 7, 2023, Guirguis received a call from a BUSD agent named Leeza, who informed him that he had missed the public entity statute of limitations by 7 days. (Id., ¶ 13). On May 19, 2023, Guirguis’ counsel sent a Claims for Damages to Person or Property form along with a Supplemental Letter Requesting Leave to Present a Late Claim. (Id., ¶ 14; see also, Nino Decl., ¶ 3, Exh. A). On June 8, 2023, a letter was sent to Guirguis in care of his counsel on behalf of the Los Angeles[3] Board of Supervisors, stating that the claim was being returned because it was not presented in the six months after the incident, that no action was taken on the claim and that Guirguis’ only recourse was to apply for lave to present a late claim to the Los Angeles Board of Supervisors. (Guirguis Decl., ¶ 15; Nino Decl., ¶ 4, Exh. B). On July 17, 2023, Guirguis’ counsel sent a letter entitled “PETITION FOR LEAVE TO PRESENT A LATER CLAIM” to the Los Angeles County Board of Supervisors. (Guirguis Decl., ¶ 16; Nino Decl., ¶ 5, Exh. C). On July 27, 2023, a letter was sent to Guirguis in care of his counsel on behalf of the Los Angeles Board of Supervisors, stating that his application for leave to present a late claim was denied as of July 25, 2023. (Guirguis Decl., ¶ 17; Nino Decl., ¶ 6, Exh. D).

The above information reflects that Guirguis made his application to the Los Angeles Board of Supervisors within one year after the accrual of the cause of action and that Guirguis filed this instant petition within six months after his application to the Los Angeles Board of Supervisors was denied. Guirguis asserts that he is entitled to relief on the basis of “mistake, inadvertence, surprise, or excusable neglect.”

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 court determines that Guirguis has shown that his failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect. The evidence presented above reflects that Guirguis specifically contacted Eckley’s office on January 13, 2023 (well within the 6-month deadline) to request information on how he could report the August 30, 2022 incident and submit a claim for damages, but that he was misdirected to communicate with Pop Warner’s insurer. BUSD does not contest the information contained in Guirguis’ declaration whatsoever,

“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.) The court determines that BUSD has not attempted to make any such showing.

[1] 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 . . ..”

[2] 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.”

[3] Guirguis erroneously refers to the Board as the “LAUSD Board of Supervisors.”