Judge: Ronald F. Frank, Case: 23TRCV01791, Date: 2024-01-03 Tentative Ruling
Case Number: 23TRCV01791 Hearing Date: January 3, 2024 Dept: 8
Tentative Ruling¿¿
¿¿¿
HEARING DATE: January 3, 2024¿
¿¿¿
CASE NUMBER: 23TRCV01791
¿¿¿
CASE NAME: Maximiliano
Serrano v. Los Angeles County Sheriff’s Department, et al.
MOVING PARTY: Specially
Appearing Defendant, City of
Hawthorne
¿¿¿
RESPONDING PARTY: Plaintiff,
Maximiliano Serrano
¿¿¿
TRIAL DATE: September 30, 2024
¿¿¿
MOTION:¿ (1) City of Hawthorne’s Motion
for Judicial Relief from Order Granting Plaintiff Leave to File Late Claim
Tentative Rulings: (1) GRANTED. The June
7, 2023 Order granting Plaintiff relief from the late claim in Case No.
22TRCP00420 is deemed to be not enforceable against City of Hawthorne in this action
because they had no Due Process notice and opportunity to be heard as to that application. Accordingly, if Plaintiff seeks relief from the
City’s denial of the late claim it will need to bring a new application in this
action (or in the case pending in Torrance Department M), and in either case
Plaintiff must serve Hawthorne’s counsel of record with that new application.
¿¿
I. BACKGROUND¿¿¿
¿¿¿
A. Factual¿¿¿
¿¿¿
On June 5, 2023, Plaintiff, Maximiliano Serrano
(“Plaintiff”) filed a Complaint against Defendants, Los Angeles County
Sherriff’s Department, State of California, and California Highway Patrol. The
Complaint alleges causes of action for: (1) Motor Vehicle Negligence; and (2)
General Negligence.
Defendant, City of Hawthorne (“City”) now files a
Motion for relief from order granting leave to file late claim pursuant to Code
of Civil Procedure § 437.
B. Procedural¿¿¿
¿¿
On November 6, 2023, City filed
a Motion for Relief from Order Granting Leave to File late Claim Pursuant to
Code of Civil Procedure § 473. On December 19, 2023, Plaintiff filed an
opposition. On December 26, 2023, City filed a reply brief.
¿II. ANALYSIS¿¿
¿¿
“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
Preliminarily, the Court
notes that Plaintiff’s Opposition papers do not contain an order granting leave
to file a late Government Code claim.
They contain application papers but no order granting that application in
case no. 22TRCP00420. The Court has
reviewed that case file and finds that Judge Hill in Torrance Dept. M granted
that Petition on June 7, 2023. The
Minute Order of May 23, 2023 in that case shows no appearance by any of the 3
defendants, and the Proof of Service attached to the Petition has no hearing
date, merely the Petition for an Order of Relief from the Claim Statute. At the
most fundamental level, Due Process requires notice and an opportunity to be
heard. Here, there was no notice in the
court file that a hearing was occur on the Petition and nothing in the court file
to reflect that even the Petitioner’s counsel was notified that any hearing would
take place on May 23, 2023. Page 126 of the
131 pages of Plaintiff’s opposition papers contains a “Notice of Hearing” for the
May 23, 2023 date, but there is no indication that document was ever filed with
the Court. The proof of service on that “Notice
of Hearing” does not reflect any lawyer or law firm, nor any service on The
City of Hawthorne’s City Attorney or City Clerk or City Councilmembers. The general rule is that “a court
acquires jurisdiction over a party by proper service of process or by that
party's general appearance.” (In re
Jennifer O. (2010) 184 Cal.App.4th 539, 547.) Hawthorne did not make a general appearance in
Case No. 22TRCP00420 nor did Petitioners/Plaintiffs prove that Hawthorne had
been properly served with process. It appears to the Court that Due Process was not followed as to the “hearing”
on the Petition which a covering bench officer, not Judge Hill, “heard” on May
23, 2023.
In Case No. 23TRCV01791, City of Gardena’s demurrer (which was never
heard because Gardena was dismissed in December of 2023 while the demurrer was
pending) was based on three different alleged defects in the service of
Plaintiff’s petition for an order relieving him from compliance of the claims statute,
relying on Government Code § 946.6 and § 945.4. While Government Code § 946.6 does not specify the manner of
service of a late-claim application, the First District in Thierfeldt
v. Marin Hospital Dist., held that for a plaintiff to be relieved from
provisions of Government Code § 945.4, service for such relief should have been
effected in same manner as service of summons in order to give court
jurisdiction to enter an order against the public entity and service of
petition and notice of hearing by mail is insufficient. (Thierfeldt v. Marin
Hospital Dist. (1973) 35 Cal.App.3d 186.) The Court in Thierfeldt
also noted that the plaintiffs’ reliance in that case on provisions of sections
1012, 1013, and 1013a of the Code of Civil Procedure only apply to service of
notices in a pending action upon a party who has appeared or has been served in
that action. (Id. at 198.) The
Legislature is presumed aware of the holding in Thierfeldt and has not
amended the Government Code to provide differently in the intervening half a
century.
Similar to Thierfeldt,
Plaintiff in this case argues that service was complete upon deposit of the
petition in the mail pursuant to Code of Civil Procedure § 1013(a). However, following
Thierfeldt, the City of Hawthorne needed to be served with process, and thereby
provided notice in the same manner as service of summons in order to give this
Court jurisdiction to enter an order relieving Plaintiff from the late notice
as against City of Hawthorne. Absent
some showing to the contrary at the January 3, 2024 hearing on this matter, the
Court concludes that City of Hawthorne is entitled to have the order entered on
May 23, 2023 deemed ineffectual as to it, because proper notice was not given
to Hawthorne of Plaintiff’s application for leave to proceed with a late-filed
claim and the public entity has never had the opportunity to have a properly
noticed hearing on this issue determined by the Court.