Judge Stephen I. Goorvitch, Case Number: 24STCP01516, Date: 2024-07-10 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01516, Date: 2024-07-10 Tentative Ruling

Petitioner Charroma Dixon seeks leave to file a late tort claim against a public entity pursuant to Government Code section 946.6. Petitioner alleges that on or about December 25, 2022, she was injured after stepping into an open hole or uneven pavement near 7509 South Broadway in Los Angeles, California. 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 written notice of the rejection or inaction (which amounts to a rejection) on the claim is tendered pursuant to section 913, the claimant has six months from the time the written notice is personally delivered or deposited in the mail to file suit against the public entity. (Gov. Code § 945.6(a)(1).) This six-month period expired on June 25, 2022, and no claim was submitted before the deadline.

Petitioner retained counsel on July 27, 2023. If a claimant fails to submit a claim within six months, the claimant may make a written application to 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).) Therefore, on December 22, 2023, Petitioner’s counsel filed an application for leave to present a late claim under Government Code section 911.4. The County denied the application on January 2, 2024, and the City denied the application on January 23, 2024.[1] This petition follows.

If an application for leave to present a late claim is denied by the public entity, a petitioner may file a petition before the court. (Gov. Code § 946.6(a).) The petition must demonstrate that the application was made to the public entity and was actually or effectively denied. (Gov. Code § 946.6(b)(1).) Petitioner must articulate the reason(s) for not presenting the claim within the time period. (Gov. Code § 946.6(b)(2).) Finally, the petitioner must include all of the information required by Government Code section 910. (Gov. Code § 946.6(b)(3).) The court “shall” relieve the petitioner from the requirements of section 945.4 if the application was made in a timely manner and was actually or effectively denied if “[t]he failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudice in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.5.” (Gov. Code § 946.6(c).)[2]

Petitioner does not establish good cause, as required by section 946.6(c)(1). Petitioner provides no credible explanation or evidence why she did not file a claim during the six-month time period between December 25, 2022, and June 25, 2023. The petition is not accompanied by a declaration from Petitioner, and the petition itself articulates no reason why Petitioner could not have filed a timely claim. In fact, the petition contains no facts making clear what, if anything, Petitioner did during the six-month period to attempt to submit a claim or making clear why she was unable to do so. In other words, Petitioner does not satisfy her burden of establishing that her mistake was “reasonable,” and that her neglect was “excusable.” This is required:

Although the statutes refer, as a requirement for relief, to “mistake, inadvertence, surprise or excusable neglect,” only “neglect” is qualified by the adjective “excusable.” However, it 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 fn.1, quoting Shaddox v. Melcher (1969) 270 Cal.App.2d 598, 601). Instead, the petition makes only a generic argument:

Counsel for Plaintiff noted that due to the COVID crises [sic], which was unfolding during the relevant time period, statutes of limitations were extended, governmental attorneys and departments were closed, inaccessible, or otherwise difficulty [sic] to communicate with and obtain information due to the stay home orders and social distancing requirements.

(First Amended Petition at 11:16-21.) Generic arguments by counsel—unsupported by a declaration from Petitioner—are insufficient. As discussed, Petitioner identifies no specific facts or circumstances suggesting that the pandemic affected her ability to submit a timely claim between December 25, 2022, and June 25, 2023. Simply, if the court granted this petition on this record, it would effectively have to “toll” the six-month deadline for every plaintiff who was injured at any point during the existence of Covid-19.

Petitioner attempts to rely on the state of emergency declared by the Governor on or about March 4, 2020, and the subsequent Covid-19 emergency orders, like Emergency Rule 9, which tolled statutes of limitations over 180 days from April 6, 2020, until October 1, 2020. Emergency Rule 9 expired on June 30, 2022, and this accident happened approximately six months later, on December 25, 2022. There is no basis to apply Emergency Rule 9 or any other Covid-related tolling to this case at such a late stage.

Petitioner’s counsel argues that there was an error in submitting the application for relief from late claim, which was submitted on December 22, 2023, and he seeks relief under Code of Civil Procedure section 473(b). In fact, the application was submitted within one year of the accrual of the claim and therefore was timely. Rather, the court denies the petition on the merits because Petitioner cannot establish good cause for not having submitted the claim within the six-month period.

The court has considered Petitioner’s arguments and finds none to be persuasive. The court need not reach Respondents’ arguments that they would be prejudiced if the court granted this petition. Based upon the foregoing, the court orders as follows:

[1] The remaining defendants have been dismissed.

[2] There are other circumstances under which the court “shall” grant the petition, but none is applicable to this case, as they apply to minors, persons with physical or mental incapacitation, or those who have passed away. (See Gov. Code §§ 946.6(c)(2)-(6).)