Judge: Stephen I. Goorvitch, Case: 24STCP01746, Date: 2024-09-20 Tentative Ruling

Case Number: 24STCP01746    Hearing Date: September 20, 2024    Dept: 82

Larry Bess                                                     Case No. 24STCP01746

            v.                                                         Hearing Date: September 20, 2024

                                                                        Location: Stanley Mosk Courthouse

Los Angeles Unified                                      Department: 82

School District                                               Judge: Stephen I. Goorvitch

Order Denying Petition for Relief from Government Code section 945.6

BACKGROUND

            Petitioner Larry Bess (“Petitioner”) alleges that he was involved in a motor vehicle collision with a school bus owned and operated by the Los Angeles Unified School District (the “LAUSD”) on June 2, 2023.  Petitioner filed an untimely government claim on April 15, 2024.  Petitioner did not submit an application for permission to file a late claim.  Now, Petitioner seeks relief from the government claim requirement under Government Code section 945.6.  The petition is denied because, first, Petitioner did not submit a late-claim application under Government Code section 911.4, which is jurisdictional, and, second, Petitioner does not demonstrate excusable neglect under Government Code section 946.6(c)(1). 

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, 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.) 

DISCUSSION

            A.        Petitioner Did Not Submit a Late-Claim Application

            Petitioner does not allege that he ever submitted an application for permission to file a late claim, per Government Code section 911.4.  Nor did he file a reply brief or present rebuttal evidence in response to Respondent’s opposition on this point.  This application is a mandatory prerequisite to the instant petition.  “[F]iling a late-claim application within one year is a jurisdictional prerequisite to a claim-relief petition.  (Santee v. Santa Clara County Office of Educ. (1990) 220 Cal.App.3d 702, 713; see also Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779.)  Therefore, the petition is denied on this basis.

            B.        Petitioner Does Not Demonstrate Excusable Neglect

            In the alternative, the petition is denied on the merits because Petitioner does not demonstrate mistake, inadvertence, surprise, or excusable neglect, as required by Government Code section 946.6(c)(1).  Simply, Petitioner articulates no facts and provides no declarations establishing this requirement.  Petitioner merely argues that he retained counsel on October 30, 2023, shortly before the six-month deadline, but he articulates no reasons why the claim could not have been submitted between October 30, 2023, and December 2, 2023. 

            C.        Petitioner Does Not Demonstrate any Tolling of the Statute

            Petitioner argues that the Governor issued the following executive orders relating to the pandemic: (1) Executive Order N-35-20 on March 21, 2020, which extended the time to present a government claim by 60 days; (2) Executive Order N-65-20 on May 19, 2020, which extended the time to present a government claim by 60 days; and (3) Executive Order N-71-20 on June 30, 2020, which extended the time to present a government claim by 60 days.

            Plaintiff cites no authority suggesting these executive orders are still in effect, over four years later.  Rather, the executive orders have long expired.  Executive Order N-35-20 extended the government claims deadline by 60 days.  Then, Executive Order N-65-20 stated: “The time frame set forth in Executive Order N-35-20, Paragraph 11, is extended for an additional 60 days from the date of this Order.”  That executive order was dated May 19, 2020, meaning that the 60-day extension was in effect until Saturday, July 18, 2020 (or Monday, July 20, 2020).  Then, Executive Order N-71-20 stated that this paragraph in Executive Order N-65-20 was “withdrawn and superseded by the following text: The timeframes set forth in Executive Order N-35-20, Paragraph 11, are extended by an additional 60 days.”  That executive order was dated June 30, 2020, meaning that the 60-day extension was in effect until Saturday, August 29, 2020 (or Monday, August 31, 2020).  Putting aside the plain language of these executive orders, the Governor issued a proclamation terminating the state of emergency on February 28, 2023.  Petitioner’s motor vehicle collision occurred on June 2, 2023.  Finally, even if Petitioner was entitled to a 60-day extension of his deadline to submit a government claim, this would have only extended the deadline from December 2, 2023, to February 2, 2024.  Petitioner did not submit a government claim until April 15, 2024.

CONCLUSION AND ORDER

            Based upon the foregoing, the court orders as follows:

            1.         Petitioner’s petition for relief from Government Code section 945.6 is denied.

            2.         Either party may lodge a proposed judgment if necessary.

            3.         The court’s clerk shall provide notice.

IT IS SO ORDERED

Dated:  September 17, 2024                                       ______________________________

                                                                                    Stephen I. Goorvitch

                                                                                    Superior Court Judge