Judge: Stephen I. Goorvitch, Case: 24STCP01676, Date: 2024-08-14 Tentative Ruling

Case Number: 24STCP01676    Hearing Date: August 14, 2024    Dept: 82

Trenice Shanae Smith,                                            Case No. 24STCP01676

v.                                                                     Hearing: August 14, 2024

                                                                        Location: Stanley Mosk Courthouse

                                                                                    Department: 82                                      City of Los Angeles,                                                        Judge: Stephen I. Goorvitch

TENTATIVE ORDER

INTRODUCTION

            Petitioner Trenice Shanae Smith (“Petitioner”) petitions for an order relieving Petitioner from the claim presentation requirement of Government Code section 945.4 with respect to her claim for damages against Respondent City of Los Angeles (“Respondent” or the “City”).  The underlying case arises from a car accident between Petitioner and a City employee that occurred on April 17, 2023. 

BACKGROUND

             On April 17, 2023, Petitioner was involved in an “automobile v. automobile … accident … [with] Carlos Luis Acosta, a City of Los Angeles employee with the Los Angeles Police Department.”  (Petition (“Pet.”) ¶ 3.)  “A comprehensive traffic collision report was conducted and prepared by the City of Los Angeles and Los Angeles Police Department.”  (Id. ¶ 4; see also Hayes Decl. ¶ 2 & Exh. A.)  The traffic report states that, after the accident, Petitioner complained of “pain to lower abdomen.”  (Hayes Decl. Exh. A at 3 of 12.)  The report also states that Acosta “was the cause of this traffic crash by making an unsafe lane change.”  (Id. at 11 of 12.)

On October 16, 2023, Petitioner was admitted to the hospital due to pregnancy complications.  (Pet. ¶ 7.)  On this date, an unspecified person from “Mgdesyan Law Firm attempted to contact [Petitioner] … to obtain information as to the incident, including but not limited to actual date, time, and location of incident, but was unable to reach [her].”  (Galajian Decl. ¶ 4.)  Petitioner’s counsel declares that “staff at Mgdesyan Law Firm … erred in overlooking to obtain exact date of incident and location from [Petitioner] prior to October 17, 2023 (the six-month application timeline).”  (Id. ¶ 5.)

On October 19, 2023, Mgdesyan Law Firm presented a claim for damages to City.  (Id. ¶ 6.)  The City denied the claim on the grounds it was untimely in a letter dated October 31, 2023.  (Ibid.; Hayes Decl. Exh. C.)

Petitioner’s counsel submitted an application for leave to present a late claim.  (Hayes Decl. ¶ 2 & Exh. D.)  The cover letter is dated March 4, 2024; the letter is post-marked March 6, 2024; and the City received the application on March 8, 2024.  (Hayes Decl. ¶ 2 & Exh. D.)  The City denied the application on April 2, 2024.  (Id. Exh. E.) 

Petitioner filed this petition on March 23, 2024.  The court held a trial setting conference on July 17, 2024, but Petitioner’s counsel did not appear.  The court set the hearing on the petition for August 14, 2024, and provided notice: “If Petitioner’s counsel does not appear on the hearing date, either remotely or in person, Petitioner shall waive the right to be heard on the petition and shall submit to any decision the court makes on the petition.”  Although counsel for the City filed an opposition to the petition, Petitioner’s counsel did not file a reply brief. 

LEGAL STANDARD

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.) 

DISCUSSION

Petitioner’s claim for damages arose on April 17, 2023, which is the date of the accident.  Petitioner filed her government claim on October 19, 2023, two days after the six-month limitations period expired.  Accordingly, City denied the claim as untimely.  (Hayes Decl. Exhs. B & C.)  Petitioner the submitted a written application to City for leave to present a late claim on or about March 8, 2024, within one year of accrual of Petitioner’s claim.  (Id. Exh. D.)  The court finds that the late-claim application was made within a “reasonable time.”  (See Gov. Code

§ 911.4(a)-(b).) 

Nevertheless, the court denies the petition because Petitioner provides insufficient information to satisfy her burden.  Petitioner contends that she failed to file a timely government claim because she “was tending to her health and the health of her unborn child which led to the mistake, inadvertence, and excusable neglect of presenting the claim untimely.”  (Pet. 5:21-6:3.)  There is no declaration from Petitioner, so the court has no admissible evidence that Petitioner was, in fact, hospitalized on October 16, 2023, due to pregnancy complications, or that these issues prevented her from filing her government claim on October 17, 2023.  Similarly, there is no explanation of how the alleged hospitalization on October 16, 2024, prevented Petitioner from filing the claim on or before October 17, 2023.  It appears that Petitioner’s argument is that she retained counsel to help her file the claim; Petitioner was unable to speak to counsel due to her hospitalization; and therefore counsel did not know the exact deadline and was unable to submit the claim until October 19, 2023, when counsel could finally speak to her and gain her approval to submit the claim.  Without a declaration from Petitioner, however, the court cannot grant this petition.  Nor does Petitioner explain why she could not have submitted the claim before she was hospitalized.

The petition also alleges that “counsel did not have specifics as to exact date, time, location of the incident to properly present the claim” due to “[c]ounsel’s staff err[or].” (Pet. 5:21-6:3.)  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. [Citation.] 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.)  

The only evidence presented with the petition is a declaration of Petitioner’s counsel, Karapet Galajian.  Several paragraphs of Galajian’s declaration are worded as his “contentions” about certain facts, rather than affirmative statements of fact, which weakens the evidentiary value of this declaration.  (See Galajian Decl. ¶¶ 2-4.)  Further, Galajian does not describe when his law firm was retained or what steps the law firm took to investigate the claim prior to the six-month deadline.  (Id. ¶¶ 2-6.)  Although Galajian declares that “staff at Mgdesyan Law Firm had erred in overlooking to obtain exact date of incident and location,” he does not identify who committed this error or describe the nature of error.  (See Id. ¶ 5.)  Given the conclusory nature of Galajian’s declaration, the court cannot find that any error of the Mgdesyan Law Firm was excusable or that it was actually this error that caused Petitioner to miss the deadline to file a claim. 

CONCLUSION AND ORDER

            TENTATIVE ORDER #1 – Based upon the foregoing, the petition is denied.  Petitioner’s counsel shall provide notice and file proof of service with the court.

            TENTATIVE ORDER #2 – Based upon the foregoing, the hearing on the petition is continued to _________, 2024, at 9:30 a.m.  The court authorizes Petitioner to file a supplement to her petition, which may include additional declarations, on or before ________, 2024.  The court authorizes Respondent to file a supplemental opposition on or before ________, 2024.  Petitioner’s counsel shall provide notice and file proof of service with the court.