Judge: Ronald F. Frank, Case: 22TRCV01403, Date: 2023-09-07 Tentative Ruling
Case Number: 22TRCV01403 Hearing Date: September 7, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: September 7, 2023¿¿
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CASE NUMBER: 22TRCV01403
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CASE NAME: Mahshid A.
Malekzadeh; Reza Malekzadeh v. Lightfoot & Sons Plastering, Inc., et
al.
MOVING PARTY: Plaintiffs, Mahshid A. Malekzadeh and Reza Malekzadeh
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RESPONDING PARTY: Defendant,
City of Palos Verdes Estates
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TRIAL DATE: September 30, 2024
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MOTION:¿ (1) Plaintiffs’ Motion for
Judicial Relief from Rejection of Application to File Late Government Claim
Tentative Rulings: (1) Plaintiffs’ Motion for
Judicial Relief from Rejection of Application to File Late Government Claim is
GRANTED.
¿¿ I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On
December 6, 2022, Plaintiffs, Mahshid A. Malekzadeh and Reza Malekzadeh (Collectively
“Plaintiffs”) filed a Complaint against Defendants, Lightfoot & Sons
Plastering, Inc., Douglas Lee Lightfoot; and DOES 1 through 100. The Complaint
alleges causes of action for: (1) Motor vehicle negligence; and (2) General
Negligence.
On
March 16, 2023, Defendants, Lightfoot & Sons Plastering Inc. and Douglas
Lee Lightfoot filed a Cross-Complaint for Implied Indemnity, Comparative Fault,
and Declaratory Relief. On June 5, 2023, Defendants filed an amended
cross-compliant.
Plaintiffs
now seek an order granting judicial relief from the City of Palos Verdes
Estates rejection to Plaintiffs’ application to file a late government claim so
that Plaintiffs may file and serve a first amended complaint adding the City of
Palos Verdes Estates as a defendant in the action here City of Palos Verdes
Estates is already a named cross-defendant.
B. Procedural¿¿¿
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On August 10, 2023,
Plaintiffs filed a Motion for Judicial Relief From Rejection of Application to
File Late Government Claim. On August 24, 2023, City of Palos Verdes Estates
(“City”) filed an opposition. On August 30, 2023, Plaintiffs filed a reply
brief.
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¿II. ANALYSIS¿¿
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“Except as
provided in Section 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 in accordance with Chapter 1 (commencing with Section
900) and Chapter 2 (commencing with Section 910) or Part 3 of this division
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, in accordance with Chapters 1 and 2 of Part 3 of this division.”
(Gov. Code, § 945.4.) “A claim relating to a cause of action for
death or for injury to person or to personal property or growing crops shall be
presented as provided in Article 2 (commending with Section 915) 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 as provided in Article 2 (commencing with
Section 915) within a reasonable time not to exceed one year after the accrual
of the cause of action and shall state the reason for delay in presenting the
claim. The proposed claim shall be attached to the application.”
(Gov. Code, § 911.4, subd. (b).)
“The board shall
grant or deny the application within 45 days after it is presented to the
board.” (Gov. Code, § 911.6, subd. (a).) “The board shall grant the
application where one or more of the following is applicable: (1) The failure
to present the claim was through mistake, inadvertence, surprise or excusable
neglect and the public entity was not prejudiced in its defense of the claim by
the failure to present the claim within the time specified in Section
911.2. [¶] (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 physically or mentally incapacitated during all of
the time specified in Section 911.2 for the presentation of the claim and by
reason of such disability failed to present a claim during such time. [¶]
(4) 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.” (Gov. Code, § 911.6, subd. (b)(1)-(4).)
“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).)
“The petition shall be filed within six months after the application to the
board is denied or deemed to be denied pursuant to Section 911.6.” (Gov.
Code, § 946.6, subd. (b).) “This petition shall show each of the
following: (1) The 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)(1)-(3).)
“The court shall
relieve the petitioner from the requirements of Section 945.5 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.” (Gov. Code, § 946.6, subd. (c)(1).) “The court shall make
an independent determination upon the petition. The determination shall
be made upon the basis of the petition, any affidavits in support of or in
opposition to the petition, and any additional evidence received at the hearing
on the petition.” (Gov. Code, § 946.6, subd. (e).) “If the court
makes an order relieving the petitioner from Section 945.5, suit on the cause
of action to which the claim relates shall be filed with the court within 30
days thereafter.” (Gov. Code, § 946.6, subd. (f).)
B.
Discussion
Here, Plaintiffs assert that not until
reading Defendants’ allegations of the existence of a dangerous condition of
public property owned by the City of Palos Verdes Estates within the cross-complaint,
did Plaintiff know that such a condition was a cause of the incident. Plaintiff further asserts that upon learning
of this, they immediately undertook to present their own claims to the City
along with an application to file a late claim as required by their own claims
to the City.
Plaintiff was injured on June 22,
2022, therefore, he had until December 22, 2022, to file the claims against
City for the damages alleged herein. (Gov. Code § 911.2(a).) Plaintiff failed
to do so. However, pursuant to
California Government Code § 911.4, Plaintiff was within his right for up to 1
year after accrual of the cause of action to apply in writing to City for
permission to file a later clam, explaining the reason for the delay and attach
a copy of the proposed claim. Here,
Plaintiff did so. The Late Claim Application was made on April 12, 2023, and
was subsequently denied on April 26, 2023.
Section 946(b)(2)
Plaintiffs
maintain that the reason for their failure to present the claim within
six-months was because, despite a reasonable investigation, Plaintiffs had no
facts to suggest a cause of action for dangerous condition of public property
against the City was appropriate at the time the Complaint was filed. Instead,
Plaintiffs assert that they first learned of the allegations of a dangerous
condition of public property when the cross-complaint against the City was
served on March 14, 2023. As such,
Plaintiffs argue that the element of surprise is a valid reason for their
failure to timely file the claim.
Plaintiffs further note that when
interviewed by police at the time of the accident, Defendant never alleged that
foliage obscured his view at the time of the accident. Moreover, Plaintiffs
note that prior to filing their complaint, their counsel undertook an
investigation to determine if any roadway sign or “trap” existed such that a
Government Claim may be warranted due to a dangerous condition of public
property under Government Code section 835. However, Plaintiffs suggest that no such
factual basis for a dangerous condition was seen to exist. Based on this,
Plaintiffs contend that no foundation existed for them to retain an expert in
dangerous roadway conditions.
In
opposition, City contends that Plaintiffs and their counsel has failed to show
by a preponderance of evidence that they did not know, or did not have reason
to know, that the City was a potential party in this matter. City also argues
that the failure to discover an alleged issue against it within the six-month
claim period is not excusable neglect, noting “In deciding
whether counsel's error is excusable, the reviewing court looks to the nature
of the mistake or neglect and whether counsel was otherwise diligent in
investigating and pursuing the claim. When examining the mistake or neglect,
the court inquires whether a reasonably prudent person might have made the same
error under the same or similar circumstances.” (Munoz v. State of
California (1995) 33 Cal.App.4th 1767, 1782-1783.) Further, City also cites
that “[a] person seeking relief must show more than just failure to discover a
fact until too late . . .. He must show by a preponderance of the evidence that
in the use of reasonable diligence, he could not discover the fact or could not
act upon it." (Department of Water & Power v. Superior Court
(2000) 82 Cal.App.4th 1288, 1296.)
City argues that this case is akin
to Dept. of Water & Power, because there was a failure of due
diligence to not name City, and that Plaintiffs have not shown that they did
not know, or did not have reason to know of City’s potential liability. This
Court finds that Dept. of Water & Power is distinguishable from the
case at bar. Namely, in Dept. of Water & Power, the accident report there
clearly indicated that the roadway was flooded due to DWP work in the area, yet
the plaintiff in that case had not timely named DWP in the suit. Dept. of
Water & Power also cites to Black v. County of Los Angeles
(1970) 12 Cal.App.3d 670, where the claimant retained counsel less than two
weeks after her husband was killed in an automobile accident. Counsel filed
suit ad named the driver of the other case but did not investigate the
condition of the roadway. Approximately 10 months after the accident, the
claimant’s counsel took the deposition of the other driver, who for the first
time indicated the condition of the road caused the accident. This led
claimant’s counsel to obtain a copy of the traffic report, which showed the
measurements and exact location of the accident, which indicated a condition
suggesting a potential cause of action against the County. There, the Court in Black
noted that even though claimant had acted diligently in obtaining counsel, her
counsel did not exercise reasonable diligence in failing to obtain a copy of
the accident report within the statutory time period. (Id. at 676.)
There cases are distinguishable as
Plaintiffs’ counsel has obtained an accident report, and that accident report does
not indicate liability on behalf of the city. As such, the Court finds that
Plaintiffs have shown the element of surprise as they could not have known
about the dangerous condition of public property claim prior to the filing of
the cross-complaint. The Court holds that Plaintiffs have satisfied their
burden under section 946.6, and GRANTS judicial relief from rejection of
application to file late government claim.
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III. CONCLUSION¿¿¿
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For the foregoing reasons, Plaintiffs’ Motion for
Judicial Relief From Rejection of Application to File Late Government Claim is
GRANTED.
Plaintiffs are ordered to give notice.¿¿¿¿¿