Judge Stephen I. Goorvitch, Case Number: 24STCP01229, Date: 2024-09-11 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01229, Date: 2024-09-11 Tentative Ruling

[Tentative] Order Granting Petition for Relief from Government Code Section 945.4

Petitioner Ao Bai (“Petitioner”), individually and as successor-in-interest to Lin Bai, deceased, petitions for an order relieving her from the claim presentation requirement of Government Code section 945.4 with respect to her claim for damages against the City of La Puente (“Respondent” or the “City”). Petitioner’s claim arises from a fire on April 8, 2023, at 45 Waringwood Road, La Puente, CA 91744 (the “Property”), resulting in the death of Petitioner’s father, Lin Bai.

There was a fire on April 8, 2023, at the Property, resulting in the death of the then-tenant, Lin Bai. (Mahmood Decl. ¶¶ 2-4, Exh. 1-3.) In a report dated April 9, 2023, the coroner noted that the source of the fire was unknown and was under investigation by the Los Angeles Sheriff’s Department’s arson unit. (Id. Exh. 3.)

On or about July 19, 2023, Petitioner retained Jamal S. Mahmood his firm to represent her in a personal injury and wrongful death action. (Id. ¶¶ 5-6, Exh. 4.) From August 30, 2023, through October 25, 2023, Petitioner’s counsel retained experts to perform testing to discover the cause of the fire. (Id. ¶ 5.) On or about September 15, 2023, Petitioner’s counsel made a request to the City under the California Public Records Act (the “CPRA”) for building permits, code enforcement records and violations, inspections records, and certificates of occupancy for the Property. (See Oppo. Exh. C.) The City produced responsive records to Petitioner between September 25 and 29, 2023. (See Oppo. 4:16-17 and Exh. C.) On October 29, November 29, and November 30, 2023, Petitioner’s experts inspected the Property and performed destructive tests. During this time period, one of the experts sent Petitioner’s counsel building permits believed to be associated with a “sink room” on the Property. (Mahmood Decl. ¶¶ 5-7.)

On November 13, 2023, Petitioner’s counsel filed a personal injury and wrongful death action against the owners of the Property. (Id. Exh. 4.) The complaint alleges, among other things, that “defective … electrical wires” caused the fire and also that “[a]djacent to Plaintiff LIN BAI’s bedroom was a sink inside of a closet, which was not up to code.” (Ibid.)[1]

On March 4, 2024, Petitioner’s counsel submitted a government claim to City for alleged damages arising from the fire. In her government claim, Petitioner alleged: “The City failed to exercise reasonable diligence with respect to the [] issuance of an owner builder exempted building permit with respect to [the Property]. The additions made according to the building permit are believed to be the cause of the fire which led to Claimant’s father, Lin Bai, passing.” (Id. Exh. 5 at 2.) Petitioner’s counsel also submitted an application for leave to present a late claim. On March 6, 2024, City rejected Petitioner’s application to present a late claim. (Id. ¶¶ 8-9, Exh. 5-6.) This petition follows.

Government Code section 911.2(a) states that “a claim relating to a cause of action for death or for injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action.” If a claimant fails to make a claim within six months pursuant to Government Code section 911.2, the claimant may make a written application to the board of the public entity for permission to present a late claim within a reasonable time but not to exceed one year from the accrual of the cause of action. (Gov. Code § 911.4(a)-(b).) If, pursuant to the provisions of Government Code section 911.6, the board denies the application to present a late claim, the claimant may petition the Court for relief from the requirements of Government Code section 945.4. (Gov. Code § 946.6(a).)

Government Code section 946.6(b) requires that the petition to the court must show each of the following: (1) that the late claim application made to the board was denied or deemed denied; (2) the reason for failure to present the claim within six months of the accrual of the cause of action; and (3) the contents of the claim as required by Government Code section 910. The petition must be filed within six months after the application to present a late claim to the board was denied or deemed to be denied. (Ibid.)

The petitioner bears the burden of proving by a preponderance of the evidence that the late-claim application was made within a reasonable time and that one of the statutory requirements under Government Code section 946.6(c) was met. (Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1410.) Under section 946.4(e), 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.)

“Section 946.6 is a remedial statue intended to provide relief from technical rules which otherwise provide a trap for the unwary claimant.” (Id. at 435.) “[D]oubts will be resolved in favor of the party attempting to get to trial to the end that wherever possible, cases may be heard on their merits.” (Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 537.)

Petitioner’s claim for damages arose on April 8, 2023, the date of the fire. The six month limitations period expired on October 8, 2023. Petitioner’s counsel filed the underlying lawsuit on November 13, 2023, and submitted a government claim on March 4, 2024. Accordingly, City denied the claim as untimely. Petitioner made a written application to City for leave to present a late claim on March 4, 2024, within one year of accrual of Petitioner’s claim. (Mahmood Decl. ¶¶ 8-9, Exh. 5-6.) The court also finds that the late-claim application was made within a “reasonable time.” (See Gov. Code § 911.4(a)-(b).)

B. Petitioner Demonstrates that the Government Claim Was Untimely because of Counsel’s Mistake, Inadvertence, Surprise, or Excusable Neglect

Pursuant to Government Code section 946.6(c)(1), the court may grant relief from section 945.4 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.”

The showing required of a petitioner seeking relief because of mistake, inadvertence, surprise, or excusable neglect is the same as required by Code of Civil Procedure section 473(b). (Viles v. State (1967) 66 Cal.2d 24, 29.) “[I]t 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.)

The neglect of counsel is “imputed” to the client. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 436.) “The party seeking relief based on a claim of mistake must establish he was diligent in investigating and pursuing the claim.” (Department of Water & Power v. Sup.Ct. (2000) 82 Cal.App.4th 1288, 1293.) “Once the potential plaintiff has retained counsel, it is the responsibility of counsel to diligently investigate the facts, identify possible defendants, and timely file the tort claim. Section 946.6 expressly requires a showing of excusable neglect for relief from the failure to file a tort claim.” (Id. at 1294, fn. 3, citation omitted.)

In the instant case, after the fire occurred on April 8, 2023, the source of the fire was unknown and was under investigation by the Los Angeles Sheriff’s Department’s arson unit. (Mahmood Decl. ¶¶ 2-4, Exh. 1-3.) Petitioner retained counsel on or about July 19, 2023, a little over three months after the fire occurred. Because the cause of the fire had still not been determined, Petitioner’s counsel retained experts to perform testing to discover the cause of the fire. (Id. ¶ 5.) On October 29, November 29, and November 30, 2023, Petitioner’s experts inspected the Property and performed destructive tests. (Id. ¶¶ 5-7.) On November 13, 2023, after discussions with the experts, Petitioner’s counsel filed a personal injury and wrongful death action against the owners of the Property. (Id. ¶¶ 5-6, Exh. 4.) The court finds that Petitioner acted with reasonably diligence when she retained counsel by July 19, 2023, within the six-month limitations period. Petitioner’s counsel acted with reasonable diligence by promptly retaining experts to investigate the cause of the fire, a process that continued through November 2023. The court recognizes that this is not the type of case where the City’s potential liability should have been obvious (like a slip-and-fall on public property or a motor vehicle collision involving a city vehicle). The court encourages Plaintiffs’ lawyers to do their due diligence before filing lawsuits and submitting government claims.

As discussed, Petitioner’s counsel filed the instant lawsuit on November 13, 2023, but waited until March 4, 2024, to submit a government claim and late-claim application. This delay is not explained in Petitioner’s evidence. Nevertheless, given that Petitioner’s counsel’s determination of the potential liability of the City required a careful review of expert evidence and the building permits for the Property, the court concludes that the delay in filing a government claim was not an unreasonably long period of time. As stated by the Court of Appeal in similar circumstances, “a little more than three months … was not an unreasonably long period of time to file after obtaining the information about the potential liability of defendants.” (DeVore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 464.)

In the alternative, Petitioner argues that her claims did not accrue until November 2023, when she discovered the true cause of the fire, and therefore her government claim was timely. Petitioner relies on the discovery rule, which “provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” (Jolly v. Eil Lilly & Co. (1988) 44 Cal.3d 1103, 1110, citation omitted.) The court also notes that Petitioner’s counsel did not receive all relevant building permits until September 29, 2023, in response to the CPRA request to the City. However, the court need not address this issue in order to rule on the petition.

The City has the burden of demonstrating that it would be prejudiced in the defense of the claim if the court relieves Petitioner from the requirements of section 945.5. (See Code Civ. Proc. § 946.6(c)(1); Moore v. State of Calif. (1984) 157 Cal.App.3d 715, 726-727.) The City argues as follows:

From March 28, 2024 through April 19, 2024 extensive asbestos removal was undertaken at the PROPERTY, where 15,074 square feet of asbestos was removed. (Opposition, Exhibit E.) The remediation work was completed on April 19, 2024 as certified by the Certificate of Completion from Viking Environmental Group. (Opposition, Exhibit D.) This remediation work involved destruction of certain parts of the PROPERTY, including but not limited to, removal of drywall/joint compound, insulation, and debris. The remediation work was localized in the area of the fire and ‘…was limited only to specific areas and specific building materials that were affected by [fire] damage, as described by the client and/or their representative. All other areas of the building were excluded… .’ (Opposition, Exhibit E.) The PROPERTY has been functionally repaired and current images of the situs show no remaining signs of fire. (Opposition, Exhibit F, G, H, I.) Critical evidence that may substantiate or defeat liability has been irretrievably destroyed.

(Oppo. 7.) As an initial matter, the City’s exhibits have not been authenticated by way of a sworn declaration. Nor is there any clear foundation for business records or public records exceptions to the hearsay rule. That alone is fatal to the City’s argument.

Putting that aside, even if the court considered the arguments and exhibits, they fail to demonstrate any prejudice to the City’s defense. Although the City asserts that “critical evidence” has been destroyed, the City does not articulate why the existing evidence would be insufficient for City to defend itself. Presumably, Petitioner’s experts took photographs of the fire damage and the parts of the Property at which destructive testing was performed; prepared written reports analyzing the evidence; and will be called to testify or appear for deposition in any personal injury action against the City. It is also reasonable to infer that the Property’s owners, who Petitioner sued in November 2023, have retained physical evidence related to the fire and Property to support their own defense. The City has failed to submit any expert declaration or similar evidence explaining why the existing evidence would be inadequate for City to defend against Petitioner’s action. Indeed, as phrased by the Court of Appeal in similar circumstances, “not only has the [City] not introduced evidence that the [destructive testing and other work] would prejudice it in its defense, it has argued no plausible theory for any such prejudice.” (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1386.)

The City’s reliance on Han v. City of Pomona (1995) 37 Cal.App.4th 552 is misplaced. In Han, the Court of Appeal held that prejudice to the respondent was presumed where the petitioner waited “two and one-half years between the time he filed his petition and the time he served it,” resulting in a delay of four years from accrual of the cause of action. (Id. at 560.) Here, there was no such unreasonable delay.

1. Petitioner’s petition for relief from Government Code section 945.4 is granted. If necessary, Petitioner’s counsel may lodge a proposed order for the court’s signature.

2. The court sets no future dates in Department 82, as the court has granted all of the relief requested in the petition.

3. Petitioner’s counsel shall provide notice and file proof of service with the court.

[1] In her petition, Petitioner explains that her experts determined, after the destructive testing, that the source of a fire was a wire in the wall of the sink room. (Pet. 5:19-24.)