Judge: Stephen Morgan, Case: 23AVCV00207, Date: 2023-10-24 Tentative Ruling
Case Number: 23AVCV00207 Hearing Date: October 24, 2023 Dept: A14
Background
This is a motor vehicle –
personal injury action. Plaintiff Ali Hossain (“Plaintiff”) alleges that on or
about March 07, 2022, Plaintiff was driving on Avenue M/Columbia Way just
before coming to the Railroad Track and Signal Crossing (“Railroad Crossing”)
that runs parallel to Sierra Highway and runs through the cities of Lancaster
and Palmdale, Plaintiff confirmed the lack of visible trains and entered the
intersection, thereupon Plaintiff was struck by MetroLink Train #212. Plaintiff
presents there was an unengaged guardrail and no visible warning signs or
flashing lights.
On February 22, 2023, Plaintiff
filed his Complaint alleging three causes of action for: (1) Negligence, (2)
Dangerous Condition, and (3) Negligent Hiring/Retention/Training/ Supervision.
On September 05, 2023, Plaintiff
filed a Notice of Hearing on Petition for Order Permitting a Late Claim.
On September 08, 2023, Plaintiff
withdrew the petition.
On September 11, 2023, Plaintiff
filed this Petition for Order Relieving Petitioner for Order Permitting a Late
Claim Against a Government Entity Pursuant to Gov. Code § 946.6 (“Petition for
Relief”).
On October 11, 2023, Southern
California Regional Rail Authority (“SCRRA”) filed its Opposition.
On October 18, 2023, Plaintiff
filed his Reply. “. . .[A]ll reply papers [shall be filed with the court and a
copy served on each party] at least five court days before the hearing.” (Cal.
Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which
a right may be exercised or an act may be done, does not apply to a notice of
motion, papers opposing a motion, or reply papers governed by this section.”
(Ibid.) The hearing is set for October 24, 2023. Accordingly, a Reply was due
by October 17, 2023. “No paper may be rejected for filing on the ground that it
was untimely submitted for filing. If the court, in its discretion, refuses to
consider a late filed paper, the minutes or order must so indicate.” (Cal.
Rules of Court, Rule 3.1300(d).) The Court, in its discretion, does not
consider the late filed Reply.
-----
Legal Standard
Standard for Judicial Relief from Bar to Sue
Because of Nonpresentation of Claim– Cal. Gov.
Code § 946.6 provides that “[i]f 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
[requiring a claim to be presented to a public entity before an action may be
brought against the public entity].” (Cal. Gov. Code § 946.6(a).) The petition
must be filed within six months after the application to the board is denied.
(Cal. Gov. Code § 946.6(b).) The court shall relieve the petitioner from the
requirements of Section 945.4 if the court finds (1) the application to the
board was made within a reasonable time not to exceed that specified in Section
911.4(b); (2) was denied or deemed denied pursuant to Section 911.6; and (3)
that one or more of the enumerated reasons applies. (Cal. Gov. Code §
946.6(c).) The enumerated reasons include (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 relief is granted; (2) the person who sustained the alleged injury or
loss was a minor during the time the claim was to be presented; (3) the person
who sustained the alleged injury or loss was physically or mentally
incapacitated during the time the claim was to be presented; and (4) the person
who sustained the alleged injury or loss died before the expiration of the time
to present the claim. (Ibid.) Where no testimonial evidence is offered
with respect to a delay in filing a claim against a county, the court may
decide whether to grant relief on the basis of the petition and declarations
offered in support of, or in opposition to, the petition. (Cal. Gov. Code §
946.6(e).)
Cal. Gov.
Code § 911.4(b) provides that an application to the board to present a late claim
must be made within one year after the accrual of the cause of action.
-----
Discussion
Application – Plaintiff
presents that (1) his counsel, Jonathan Shirian (“Shirian”) reached out to
SCRRA around May 2022 and was directed to William Garrett (“Garrett”) for
assistance (Decl. Shirian ¶¶ 9-10); (2) Shrian’s firm contacted Garrett
telephonically on or about May 17, 2022 inquiring about the adequacy of
Plaintiff’s claim with the County of Los Angeles (“COLA”) as no proper
procedure nor claim form could be identified on SCRRA’s website (Id..; Decl.
Eric Castillo ¶¶ 4-5); (3) Garrett acknowledged receipt of the claim and
invited Shirian’s firm to view footage of the incident (Id.; Decl. Eric
Castillo ¶¶ 6-7; Decl. Luis A. Serrano ¶¶ 5-9); and (4) only upon inquiring
about the claim on January 10, 2023, did Garrett inform Shirian’s firm that he
did not find a claim form that had been filed and no action was taken (Id.
at ¶¶ 12, 14, Exh. B; Decl. Luis A. Serrano ¶¶ 11.) Thereafter Shirian
presented an Application to File a Late Claim which was denied by SCRRA. (Id.
at ¶¶ 17-18, Exh. D.) Plaintiff contends that he has met his burden under Cal.
Gov. Code § 946.6 as (1) he presented a late claim and it was denied; (2) he
has sufficiently stated the reason for failing to present the claim; (3) his
petition contains all the information required by Cal. Gov. Code § 910, (4) the
petition is filed within the time specified under Cal. Gov. Code § 946.6(3);
(5) his late claim to SCRRA was filed within a reasonable amount of time; (4)
he has made a showing that his failure to present a timely claim was due to
mistake, inadvertence, surprise, and/or excusable neglect; and (5) SCRRA cannot
establish that it would be prejudice as Garrett had knowledge that a claim was
being pursued through multiple contacts with Shrian’s firm and SCRRA is in
possession of all the evidence they need to defend the claim.
SCRRA argues that Plaintiff’s
counsel cannot establish excusable neglect because an attorney I supposed to
conduct research into matters such as presenting a government claim. SCCRA
argues that Plaintiff’s counsel is, in essence, claiming that SCRRA’s s failure
to provide advice to him regarding his attorney’s error somehow makes this
failure excusable and that the failure to provide advice was misleading has no
merits. SCRRA also emphasizes that California law holds that that a public
entity’s actual knowledge of the circumstances surrounding a claim does not
constitute compliance with the Government Code’s dictates, and cannot form the
basis for relief from the claims-presentation requirements.
Cal.
Gov. Code § 911.4(b) provides that an application to the board to present a
late claim must be made within one year after the accrual of the cause of
action. The cause of action began accruing as of March 07, 2022. (See Exh. A;
Cal. Gov. Code § 911.4(b)-(c).) The Application to File a Late Claim
submitted to SCRRA was timely under Cal. Gov. Code § 911.4.
The Petition shows that Plaintiff
presented an Application to File a Late Claim which was denied by SCRRA and it
was denied (see Exh. D), and the reasoning behind the failure to present the
claim within the time limit specified in Cal. Gov. Code § 911.2 (see Petition
[generally]). The claim presented to SCRRA includes the information required by
Cal. Gov. Code § 910: the name and post office address of the claimant; the
post office address to which the person presenting the claim desires notices to
be sent; the date, place and other circumstances of the occurrence or
transaction which gave rise to the claim asserted; and a general description of
the indebtedness, obligation, injury, damage or loss incurred so far as it may
be known at the time of presentation of the claim. (See Decl. Shirian, Exh. C.)
The petition shows the information required under Cal. Gov. Code § 946.6(b). (Ibid.)
It appears that the failure to
present the claim was through mistake, inadvertence, surprise, or excusable neglect
and SCRRA, the public entity has not shown it would be prejudiced in the
defense of the claim if the court relieves the petitioner from the requirements
of Section 945.4. However, the Court goes through the cases SRCCA basis its
argument that the actions of counsel do not constitute mistake, inadvertence,
surprise, or excusable neglect:
·
Dep't of Water & Power v. Superior Court
(2000) 82 Cal.App.4th 1288 (“Dep't of Water & Power”): “The party
seeking relief based on a claim of mistake must establish he was diligent in
investigating and pursuing the claim (Bettencourt v. Los Rios Community
College Dist. (1986) 42 Cal. 3d 270, 276 [228 Cal. Rptr. 190, 721 P.2d 71])
and must establish the necessary elements justifying relief by the
preponderance of the evidence. (Santee v. Santa Clara County Office of
Education (1990) 220 Cal. App. 3d 702, 717 [269 Cal. Rptr. 605].)” (Dep't
of Water & Power supra, 82 Cal.App.4th at 1293.) The court continued to
lay out the following: (1) the decision to grant or deny a petition for relief
is within the sound discretion of the trial court; (2) such discretion is not
unfettered; and (3) the determinative issue is whether the reasonable diligence
requirement is satisfied by the actions of counsel and claimant. The court held
that claimant and counsel did not satisfy the reasonable diligence requirement
as they failed to act completely. (Id. at 1297.)
·
Shank v. County of Los Angeles (1983) 139
Cal.App.3d 152 (“Shank”): Repeated letters to a hospital defendant
requesting the hospital forward the letter to its insurance carrier prior to
the hospital defendant informing counsel to file a claim does not constitute grounds
for relief from the claim presentation requirement. Specifically, “Petitioner
did not allege, nor does the record show, that her failure to file a timely
claim was occasioned by any misconduct, concealment or other unconscionable act
on the part of Olive View[]” and defendant was not required to tell plaintiff
to file a claim. (See Shank, supra, 139 Cal.App.3d at 158.)
Further, hospital defendant “promptly sent plaintiff a letter which clearly
indicated that Olive View is a county facility.” (Ibid.)
·
Mitchell v. Department of Transportation
(1985) 163 Cal.App.3d 1016: Plaintiff’s first attorney did not want to proceed
with a government claim as he believed it was not viable. Plaintiff later
retained a different counsel. Plaintiff’s new counsel attempted to pursue
government claims; however, the statutory time limit had passed. The first
attorney's conscious failure to file a claim against defendants, the court
found, did not amount to excusable neglect or positive misconduct as to afford
relief under § 946.6.
·
Black v. County of Los Angeles (1970) 12
Cal.App.3d 670, 676: Counsel inspected the wrong area of the road where the
incident occurred and was only alerted to a potential claim against the county
during the defendant’s deposition. This did not qualify as a basis for relief
from the statutory time limit for government tort claims as an exercise of
reasonable diligence would have revealed the exact location of the accident via
the copy of California Highway Patrol’s report.
·
Tackett v. City of Huntington Beach
(1994) 22 Cal.App.4th 60: An application with only conclusions does not
demonstrate excusable neglect. The Court continued the motion to allow for
supplemental declarations to be filed. The appellate court found that the
declarations by plaintiff’s counsel showed that the matter was correctly
calendared and no action was taken during the five months after the plaintiff
retained her counsel. The court provides a guideline for determining whether
mistake is excusable: “In Bettencourt v. Los Rios Community College Dist.
(1986) 42 Cal.3d 270, 276 [228 Cal.Rptr. 190, 721 P.2d 71], the Supreme Court
wrote, ‘In deciding whether counsel's error is excusable, this court looks to:
(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise
diligent in investigating and pursuing the claim.’ There, an attorney timely
filed a tort claim, but with the wrong public entity (the state instead of the
appropriate community college district). The Supreme Court found the neglect to
timely file a claim with the proper entity excusable.” (Tackett, supra, 22 Cal.
App. 4th at 65.)
Here, the events leading up to
this application are distinguished from the cases that SCRRA provide. Shirian
attests that he understood the deadline and that his staff entered into
communications with SCRRA, under his instructions, to inquire as to their claim
procedure and form. (Decl. Shirian ¶ 8.) Here, the events leading up to this
application are distinguished from the cases that SCRRA provide. Shirian
attests that he understood the deadline and that his staff entered into
communications with SCRRA, under his instructions, to inquire as to their claim
procedure and form. (Decl. Shirian ¶ 8.) Erick Castillo (“Castillo”) declares
that he called LA Metro’s Transit Information Line on May 20, 2022 to inquire
about claims regarding MetroLink trains as he could not find anything on the
website and was advised that he needed to reach out to Garrett to open a claim
and he subsequently called Garrett and left a message. (Decl. Castillo ¶ 3-4.)
On May 24, 2022, Garrett informed Castillo that he would be handling the matter
and would be reviewing video footage of the incident. (Id. at ¶ 5.) On
June 03, 2022, Garrett sent an email denying liability and inviting Shirian’s
firm to review the footage. (Id. at ¶ 6, Decl. Shirian Exh. A.) Luis
Serrano declares that he visited Garrett’s office and reviewed the video on
June 30, 2022. The parties disagreed as to liability and Serrano’s firm
discussed with Garrett filing a claim with COLA. Castillo sent an email in
January 2023 asking: “I just realized I never heard back from you in regards to
this matter. Our office is getting ready to file but we never received a
reference number or a claim number that we can point to. Do you happen to have
one available for us? Or is there another form we are required to fill out in
order to obtain the appropriate information?” (Decl. Shirian Exh. C.) To which
Garrett replied, in relevant part: “We do not assign unique file numbers to our
incidents. We find that having multitudinous different claim and file numbers
assigned by various constituencies just serves to confuse matters. We track
incidents by dated and claimant name.” (Ibid.) Serrano sent a follow up
email to confirm a denial of claim to which Garrett responded on the same day
saying that SCRRA never received a claim. (Decl. Shirian, Exh. B.) Following
this, Esperanza Galvan Trejo (“Trejo”) declares that she called SCRRA on
January 08, 2023 and SCRRA would not provide information as to their claim
process unless provided with specific information and was told that all claim
information is sent to Garrett. (Decl. Trejo ¶ 3.) Trejo spoke with Garrett
directly, Garrett indicated that Trejo should “file the claim with the Board
Secretary under Section 900, etc. of the Government Code. And mail it to
Southern California Regional Rail Authority, P.O. Box 812060, Los Angeles,
California 90081-0018.” (Id. at ¶ 4.) It is unclear on what date this
conversation occurred. On March 02, 2023, Trejo called the Board Secretary
requesting a claim form and spoke to Michelle Pena who informed Trejo that
Trejo needed to leave her “name, number and email that message would be forward
to the attorney. And that they would in turn email me the form.” (Id. at
¶ 5.) Pena indicated that she would
accept personal service of the Application for filing Late Claim, and enclosed
Claim. (Ibid.)
The facts at hand are, patently,
distinguished from the cases SCRRA cites. This is not a case where no action
was taken. Rather, (1) Shirian’s firm went to SCRRA’s website and found no
instructions to file a claim via the website; (2) Shirian’s firm contacted
SCRRA in May 2022 and was directed to speak to Garrett; and (3) Shirian’s firm
was in direct contact with Garrett, SCRRA’s senior counsel and risk manager.
Contact was occurring regularly between Shirian’s firm and Garrett. Once
Garrett affirmatively responded that there was no claim filed with SCRRA, a
subsequent communication once again directed Shirian’s firm to Garett. Thereupon,
Shirian’s firm was finally directed to the Board Secretary and an address was
finally provided for SCRRA. (See Decl. Trejo ¶ 4.) The most analogous case
presented by SCRRA is Shank, but that does not address direct contact
with a public entity’s counsel. The Court also notes that contact went to far
as to reviewing video footage of the incident and Garrett, himself, requested a
law enforcement report from Castillo. (See Dec. Shirian, Exh. A.) Further,
unlike Shank, Garrett did not provide any document with a clear header
indicating where to file a claim. Garrett’s signature simply states, in
relevant part: “WILLIAM GARRETT Senior Counsel, Risk Manager.” SCRRA seeks the
court prevent Plaintiff from filing a claim in a situation where Plaintiff’s
counsel exercised due diligence and was directed to Garrett to file the claim. Ultimately,
Plaintiff’s counsel was again directed to Garrett to obtain information to file
an Application to File a Late Claim. To hold that a lawyer must file a claim
when the individual they are directed to upon reasonable diligence (1) does not
inform them of the process, and (2) presents themselves in a way in which it
appears that litigation is moving forward would a bar to interests of justice.
Accordingly, the Motion is
GRANTED.
-----
Conclusion
Plaintiff Ali Hossain’s Petition
for Order Relieving Petitioner From Provisions of Gov. Code§ 945.4 is GRANTED.