Judge Teresa A. Beaudet, Case Number: 21STCP01985, Date: 2023-08-18 Tentative Ruling

On June 21, 2021, Petitioner Nicole Sullivan (“Petitioner”) filed a “Petition for Order From Relief From Claim Statute” (the “Petition”) in this action against the County of Los Angeles (“County”) and the Los Angeles County Sheriff’s Department, (jointly “Respondents”).

Petitioner sought an order “granting the Petitioner’s requested relief herein from the provisions of ¿Cal Gov. Code § 945.6¿.” (See May 2, 2022 Order.) The County opposed. On May 2, 2022, the Court issued an Order denying the petition.

Thereafter, Petitioner moved for an order for reconsideration and/or to vacate and/or to set aside the May 2, 2022 Order. On August 4, 2022, the Court issued an Order providing, inter alia, that “[b]ecause Petitioner attached the November 27, 2020 ‘Application to Present a Late Claim’ document to her reply in support of the petition, and because her counsel purportedly made an oral request at the at the May 2, 2022 hearing for leave to amend the petition accordingly, there appears to be additional evidence that the Court should have considered in connection with the petition.” (August 4, 2022 Order at p. 4:1-5.) The Court granted Petitioner’s motion for reconsideration and vacated its May 2, 2022 Order. The August 4, 2022 Order also provides that “Petitioner may file an amended petition…” (Id. at p. 4:10.)

On August 17, 2023, Petitioner filed an “[Amended] Petition for Order for Relief From [sic] Claim Statute” (the “Amended Petition”). The County opposes.

As an initial matter, although the Amended Petition states that Petitioner seeks relief “from the provisions of Cal Gov. Code § 945.6,” (Amended Petition at p. 3:8-9), it appears based on a review of the remainder of the Amended Petition that Petitioner seeks relief from Government Code section 945.4, which provides that “[e]xcept as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented…until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board…”

In her declaration in support of the instant amended petition, Petitioner states, inter alia, that “[o]n or around December 3, 2019, I was attacked by my estranged husband, Tracy Burage, Jr. (‘Burage’) while I was in a woman’s restroom inside the Airport Courthouse.” (Sullivan Decl., ¶ 5.) Petitioner states that “[a]fter being attacked, I was at first in denial that I was a victim of domestic violence, and I was in fear of what would Burage would do to me if I reported the incident.” (Sullivan Decl., ¶ 6.) Petitioner “[e]ventually…reported the incident to the South Los Angeles Sheriff’s station (the ‘South LASD’) on February 18, 2020,” and “specifically reported the incident to a ‘Deputy Cornea’…” (Sullivan Decl., ¶¶ 7-8.)

Petitioner states that “[o]n April 14, 2020, [Petitioner] received an email from Detective Miguel Jimenez-Ramirez (‘Detective Jimenez-Ramirez’) from the South LASD in which Detective Jimenez-Ramirez advised [Petitioner] that [her] case against Burage…was under review by the Los Angeles County District Attorney’s Office…” (Sullivan Decl., ¶ 10.) Petitioner states that “[i]n that same email, Detective Jimenez-Ramirez also advised that video footage from the surveillance cameras at the courthouse…had been erased on or around January 18, 2020.” (Sullivan Decl., ¶ 11.) Petitioner states that “[a]fter being advised that the surveillance footage had been erased and without receiving any substantive update regarding the status of my case, I decided to take action into my own hands and I filed a complaint against the South LASD and the specific officers whom I had been dealing with, including, but not limited to, Deputy Cornea and Detective Jimenez-Ramirez.” (Sullivan Decl., ¶ 12.)

Petitioner states that she filed her claim “electronically through the Office of Inspector General’s (the ‘OIG’) filing portal on April 18, 2020.” (Sullivan Decl., ¶ 13.) Petitioner states that she “never received any written response after filing [her] complaint in the OIG’s filing portal, which [she] believed was the most appropriate place to file [her] claims against the South LASD and its officers.” (Sullivan Decl., ¶ 16.)

Petitioner also filed a supplemental declaration on August 14, 2023, in which she states that “[w]hen I submitted my claim to the OIG, I was not represented by counsel, and my decision to present my claim to the OIG was based upon information that I researched online… I was unaware that there may have been issues with the claim that I submitted to the OIG until I later retained counsel.” (Suppl. Sullivan Decl., ¶¶ 18-19.) Petitioner states that “[a]fter retaining my current counsel, we filed the Application and a claim…on or around November 27, 2020…” (Suppl. Sullivan Decl., ¶ 21.)

Petitioner states in the instant Amended Petition that “[o]n or around November 27, 2020, the Petitioner, by and through the undersigned, filed and served the Late Claim Application on the County. See Exhibit ‘A’. The Late Claim Application was rejected by the County on or around February 2, 2021. See Exhibit ‘D’.” (Amended Petition at p. 5:25-28.)

“The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6,” and that one or more of certain specified circumstances are applicable, including that “[t]he 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.” (Gov. Code, § 946.6, subd. (c)(1).)

“The court shall make an independent determination upon the petition. The determination shall be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.” (Gov. Code, § 946.6, subd. (e).) “If the court makes an order relieving the petitioner from Section 945.4, suit on the cause of action to which the claim relates shall be filed with the court within 30 days thereafter.” (Gov. Code, § 946.6, subd. (f).)

As to the requirement that the petition show “[t]hat application was made to the board under Section 911.4 [1] and was denied or deemed denied,” (Gov. Code, § 946.6, subd. (b)(1)), Petitioner provides, as discussed above, a document titled “Application to Present a Late Claim” dated November 27, 2020. (Amended Petition, Ex. A.) Petitioner states that “[a]fter retaining my current counsel, we filed the Application and a claim…on or around November 27, 2020…” (Suppl. Sullivan Decl., ¶ 21.) Petitioner’s counsel states that “[t]he Application included the late claim, and it was rejected by the Respondents on or around February 3, 2021.” (Williams Reply Decl., ¶ 13.) Exhibit “D” attached to the Amended Petition is a letter dated February 3, 2021 which provides, inter alia, that “the claim that you presented to the County of Los Angeles, Board of Supervisors on November 30, 2020, was rejected by operation of law on January 27, 2021…” (Amended Petition, Ex. D.)

As to the requirement that “[t]he petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6” (Gov. Code, § 946.6), Petitioner asserts that “the Claim was denied on or around February 2, 2021. The Petitioner therefore timely petitioned the Court for relief when she filed the Petition on June 21, 2021, which was within the six (6) month period prescribed by Cal. Gov. Code § 946.6(b).” (Amended Petition, p. 10:1-3.) As set forth above, Petitioner indicates that “[t]he Application included the late claim, and it was rejected by the Respondents on or around February 3, 2021.” (Williams Reply Decl., ¶ 13, emphasis added.) In any event, the initial Petition in the instant action was filed on June 21, 2021, less than six months after February 3, 2021.

As to the requirement that the petition show “[t]he reason for failure to present the claim within the time limit specified in Section 911.2,” (Gov. Code, § 946.6, subd. (b)(2))[2], Petitioner asserts that her “failure to timely present a claim to the County was due to mistake, inadvertence, surprise and/or excusable neglect. The Petitioner, acting in pro per, timely submitted the Original Claim to the OIG; however, the Original Claim should have been sent to the County, and not the OIG. Because the Original Claim was sent to the OIG via mistake, inadvertence and/or excusable neglect and was thus improperly presented, the County failed to respond to the Original Claim. After the County failed to respond to the Original Claim, the Petitioner retained the services of the undersigned as counsel, and she timely submitted the Late Claim Application to the County.” (Amended Petition at pp. 10:25-11:4.)

As set forth above, Petitioner states in her supporting declaration that “I filed my claim electronically through the Office of Inspector General’s (the ‘OIG’) filing portal on April 18, 2020.” (Sullivan Decl., ¶ 13.) Petitioner further states in the declaration that “I never received any written response after filing my complaint in the OIG’s filing portal, which I believed was the most appropriate place to file my claims against the South LASD and its officers…I am not an attorney and I have no legal training whatsoever and my belief that the OIG’s filing portal was the proper place to file my grievances against the South LASD and its officers was based upon information I discovered online.” (Sullivan Decl., ¶¶ 16-17.) Petitioner states that “I was unaware that there was another more appropriate channel to file my claims until I retained counsel,” and that “[a]fter retaining my current counsel, we filed an application and claim…against the Los Angeles County Sheriff’s Department…” (Sullivan Decl., ¶¶ 18-19; see also Suppl. Sullivan Decl., ¶ 21, “[a]fter retaining my current counsel, we filed the Application and a claim…on or around November 27, 2020…” )

As to the requirement that the petition show “[t]he information required by Section 910,” (Gov. Code, § 946.6, subd. (b)(3)), Petitioner asserts that “[t]he Late Claim Application included all of the information required under Cal. Gov. Code § 910.” (Amended Petition at p. 11:27-28.)

Government Code Section 910 provides that “[a] claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:

(b) The post office address to which the person presenting the claim desires notices to be sent.

(d) 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.

(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.

(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.”

Here, Petitioner’s “Application to Present a Late Claim” document attaches as Exhibit “A” a document titled “Los Angeles County Sheriff’s Department Claim for Damages to Person or Property.” (Amended Petition, Ex. A, p. 2, Ex. A.) These documents discuss the information required by Government Code Section 910. In addition, the County does not appear to dispute that the petition shows “the information required by Section 910.” (Gov. Code, § 946.6, subd. (b)(3).)

As set forth above, Government Code section 946.6, subdivision (c)(1) provides that “[t]he court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable: (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 the court relieves the petitioner from the requirements of Section 945.4…”

Pursuant to Government Code section 911.4, subdivision (a), “[w]hen a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.” Pursuant to Government Code section 911.4, subdivision (b), “[t]he application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.” In addition, “[t]he board shall grant or deny the [application to present a late claim] within 45 days after it is presented to the board,” or “[i]f the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day.” (Gov. Code, § 911.6, subds. (a), (c).)

Petitioner asserts that “[h]ere, the Late Claim Application was presented to the public entity, the County, on or around November 30, 2020…It is undisputed, or at least it should be, that November 30, 2020, is/was within one (1) year of the accrual of the cause of action, which at its earliest was December 3, 2019…” (Amended Petition at p. 8:9-13.) As discussed above, Petitioner states that “[o]n or around December 3, 2019, [she] was attacked by [her] estranged husband…” (Sullivan Decl., ¶ 5, emphasis added.) As to the November 30, 2020 date, the “Application to Present a Late Claim” attached as Exhibit “A” to the Amended Petition is dated November 27, 2020, but the February 3, 2021 letter attached as Exhibit “D” to the Amended Petition states, “[n]otice is hereby given that the claim you presented to the County of Los Angeles, Board of Supervisors on November 30, 2020, was rejected by operation of law on January 27, 2021. No further action will be taken on this matter.” (Emphasis added.)

In the opposition, the County asserts that Petitioner’s claim accrued on April 14, 2020. As discussed, Petitioner states in her declaration that on April 14, 2020, she received an email from Detective Miguel Jimenez-Ramirez, who “advised that video footage from the surveillance cameras at the courthouse…had been erased on or around January 18, 2020…” (Sullivan Decl., ¶¶ 10-11.) The County asserts that “[h]ere, the statute requires that Petitioner first asks the Board of Supervisors to accept a late claim by April 14, 2021. Petitioner Sullivan has not done that.” (Opp’n at p. 7:5-6.) But as discussed, Petitioner attaches as Exhibit “A” to the Amended Petition a document titled “Application to Present a Late Claim” dated November 27, 2020.

The County also asserts that “[t]he Petition of Nicole Sullivan is notably devoid of any justification for the late Petition. She provides no evidence compelling relief to meet her burden of proof.” (Opp’n at p. 8:8-10.)

The County cites to Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1783, where the Court of Appeal noted that “a petitioner has the burden of proving by a preponderance of the evidence the necessary elements for relief…A superior court may properly deny relief under Government Code section 946.6 where there is simply no competent evidence before the trial court upon which it could exercise its discretion…” The County argues that “[h]ere, it is clear that the Court cannot make the evidentiary and legal findings contemplated by the statute due to the absence of an application to present a late claim, and the fact that the document that she attempts to characterize as that application is in fact merely the original claim presented on December 1, 2020.” (Opp’n at p. 8:18-21.)

But as discussed, Petitioner indicates that she presented an “Application and a claim…on or around November 27, 2020…” (Suppl. Sullivan Decl., ¶ 21). Exhibit “A” attached to the Amended Petition is titled “Application to Present a Late Claim.” The County asserts in the opposition that “[o]n November 30, 2020, Petitioner presented a civil claim to the Board of Supervisors for the first time. Petition, Ex. A. She mischaracterizes this Government Claim as an ‘Application to File a Late Claim,’ however this is facially untrue…Her initial Government Claim does not cite Government Code section 911.4 regarding Applications for Late Claims, nor does it reference the prior public complaints, nor does it comply with section 911.4 by explaining the reason for the delay in filing.” (Opp’n at p. 5:3-8.)

But Exhibit “A” to the Amended Petition referenced by the County states, inter alia, that “[h]ere, Ms. Sullivan first attempted to file a ‘claim’ against the LASD on April 18, 2020, which was four (4) days after Ms. Sullivan discovered that the LASD inexcusably failed to have a copy of the Recordings. Ms. Sullivan, who is not a licensed attorney, and who was not represented by counsel at the time, filed a claim with the Office of Inspector General for the County of Los Angeles (‘OIG’) on April 18, 2020, by filing an electronic claim. A true and correct copy of the claim that Ms. Sullivan filed with the OIG has been attached hereto as Exhibit ‘B’. Ms. Sullivan was under the belief and impression that this ‘claim’ was all she needed to file and that her OIG claim would be forwarded to the LASD for review.” (Amended Petition, Ex. A, p. 3.) The “Application to Present a Late Claim” further states that “[w]hile Ms. Sullivan arguably may have filed a timely claim, in an effort to ensure that Ms. Sullivan does not and has not waived any rights, claims or remedies available to her, she has now retained counsel and she has filed this Application to present a late claim based upon her mistake in filing her initial claim with the OIG instead of the LASD.” (Ibid.) Petitioner further states that “[t]his Application is timely as it has been submitted within one year after the accrual of the cause of action, the December 3, 2019 assault at the Courthouse. See Cal. Gov. Code § 911.4(b).” (Ibid., underline added.)

The Court finds that Petitioner has demonstrated that “[t]he failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect…” (Gov. Code, § 946.6, subd. (c)(1).) As discussed, Petitioner states that on April 14, 2020, she received an email from

Detective Jimenez-Ramirez, who advised that video footage from the surveillance cameras at the courthouse had been erased on or around January 18, 2020. (Sullivan Decl., ¶ 11.) Petitioner states that she then “filed [her] claim electronically through the Office of Inspector General’s (the ‘OIG’) filing portal on April 18, 2020.” (Sullivan Decl., ¶ 13.)

Petitioner states in her declaration that “I never received any written response after filing my complaint in the OIG’s filing portal, which I believed was the most appropriate place to file my claims against the South LASD and its officers…I am not an attorney and I have no legal training whatsoever and my belief that the OIG’s filing portal was the proper place to file my grievances against the South LASD and its officers was based upon information I discovered online.” (Sullivan Decl., ¶¶ 16-17.) Petitioner states that “I was unaware that there was another more appropriate channel to file my claims until I retained counsel,” and that “[a]fter retaining my current counsel, we filed an application and claim…against the Los Angeles County Sheriff’s Department…” (Sullivan Decl., ¶¶ 18-19.) The Court notes that in Munoz v. State of California, supra, 33 Cal.App.4th at page 1778, the Court of Appeal noted that “Government Code section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary. The remedial policy underlying the statute is that wherever possible cases should be heard on their merits. Thus, a denial of such relief by the trial court is examined more rigorously than where relief is granted and any doubts which may exist should be resolved in favor of the application.” (Emphasis in original.)

Lastly, the County asserts in the opposition that it is “prejudiced by the late claim…” (Opp’n at p. 8:22.)

The Court notes that Petitioner argues in the Amended Petition that “[t]he deletion and the unavailability of the video footage from the Courthouse is and was in direct violation of Cal. Gov. Code §§ 26202.6 and 34090.6. Furthermore, the deletion of the video footage has denied the Petitioner of her constitutional right to court access since the District Attorney’s Office no longer has the evidence it needs to effect various state court remedies.” (Amended Petition at pp. 4:26-5:2.) The County asserts that it “is prejudiced because the bases for the suit are alleged to be the violation of Government Codes 34090.6 and 26202.6--Government Code section 34090.6 does not apply to the County and 26202.6 pertains to the retention of documents by the County itself. These alleged violations resulted in the District Attorney’s declination of charges against her husband. That is not a legally-cognizable injury to Petitioner because the prosecutor exercises his or her independent judgment about whether to file charges.” (Opp’n at p. 8:26-9:3.) The County cites to Dix v. Superior Court (1991) 53 Cal.3d 442, 451, where the California Supreme Court noted that “[t]he prosecutor ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek. No private citizen, however personally aggrieved, may institute criminal proceedings independently, and the prosecutor’s own discretion is not subject to judicial control at the behest of persons other than the accused.” (Internal citations omitted.)

In the reply, Petitioner asserts that “this Court’s granting or denying of the Amended Petition is not to be based upon whether this Court finds the Petitioner’s allegations viable. See Gov. Code § 946.6.” (Reply at p. 11:11-13.) Indeed, the County does not appear to cite any legal authority demonstrating that the purported insufficiency of Petitioner’s claims constitutes “prejudice” to the County for purposes of Government Code section 946.6. The County could presumably test the legal sufficiency of any complaint by demurrer, motion for judgment on the pleadings, or other appropriate proceedings.

Based on the foregoing, the Court finds that Petitioner has demonstrated grounds for “an order relieving the petitioner from Section 945.4.” (Gov. Code, § 946.6, subd. (a).)

Based on the foregoing, the Court grants Petitioner’s “[Amended] Petition for Order From [sic] Relief From Claim Statute.” The Court thus “relieve[s] the petitioner from the requirements of Section 945.4…” (Gov. Code, § 946.6, subd. (c).)

[1]Government Code section 911.4, subdivision (a) provides that “[w]hen a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.”

[2]Government Code section 911.2, subdivision (a) provides that “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.”

NICOLE SULLIVAN, Petitioner, vs. COUNTY OF LOS ANGELES, et al., Respondents.	Case No.:	21STCP01985
	Hearing Date:	December 1, 2023
	Hearing Time:	10:00 a.m.
	TENTATIVE RULING RE: PETITIONER NICOLE SULLIVAN’S [AMENDED] PETITION FOR ORDER FROM [SIC] RELIEF FROM CLAIM STATUTE

Superior Court of California

County of Los Angeles

Department 50