The California Tort Claims Act states that no person may sue a public entity or public employee for money or damages unless a timely written claim has been presented to and denied by the public entity. (Gov. Code § 945.4.) A claim must be presented to the public entity within six months after the accrual of the cause of action. (Gov. Code. § 911.2.) However, a party may apply for leave to present a late claim if it is presented “within a reasonable time not to exceed one year after the accrual of the cause of action.” (Gov. Code § 911.4(b).)  

Under Government Code section 946.6, when an application for leave to present a late claim is denied, a party may petition a court for relief from section 945.4. (Gov. Code § 946.6(a).) 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” and is subject to at least one of several enumerated reasons for failure to present a timely claim. (Gov. Code § 946.6(c).)  

Analysis 

Plaintiff seeks relief from the requirement to present a timely government claim pursuant to Government Code section 946.6. Plaintiff sustained an injury resulting from construction debris on a sidewalk on October 12, 2023. (Complaint GN-1.) Plaintiff was thus required to present a tort claim to the City of Los Angeles on or before April 12, 2024. (See Gov. Code §§ 911.2; 945.4.) Plaintiff did not do so, and although she applied for leave to present a late claim, that application was denied. (Declaration of Benjamin G. Berkley ¶¶15-17.) Plaintiff thus seeks relief from the tort claim presentation requirement based on what she contends is the mistake, inadvertence, surprise, or excusable neglect of her counsel, pursuant to section 946.6(c)(1). 

Requests for relief pursuant to Government Code section 946.6(c)(1) are functionally equivalent to requests for relief for default under the discretionary provisions of Code of Civil Procedure section 473(b). (See Viles v. State of California (1967) 66 Cal.2d 24, 29.) As under that provision, “any doubts should be resolved in favor of granting relief.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) That said, a party seeking relief must show “reasonable diligence.” (Black v. County of Los Angeles (1970) 12 Cal.App.3d 670, 674.)  

Plaintiff contends that the failure to present a timely government claim was the result of the mistake, inadvertence, surprise, and excusable neglect by her counsel. Plaintiff retained her counsel on or about October 23, 2023. (Berkley Decl. ¶ 7.) Plaintiff’s counsel states that his office employs a computer system to track relevant deadlines and trigger reminders to review the files, and that this system includes a reminder regarding the six-month deadline for government claims. (Id. ¶¶ 8-9.) Plaintiff’s counsel contends that the original file, opened on October 26, 2023, mistakenly indicated that the location of Plaintiff’s injury was not on the sidewalk, which is municipally owned, but rather in the adjacent, privately-owned parking lot. (¶ 10.) Consequently, the case was not categorized as involving a municipal entity, and the government claim reminder was not triggered. (¶ 11.) This mistake was not discovered until May 2024, when counsel discovered that the location of the injury was on the sidewalk, that the matter had not been properly categorized, and that the government claim deadline had been missed. (¶ 12.) Plaintiff applied to present a late claim on June 3, 2024, which application was denied on June 18. (¶¶ 16-17.) This motion followed on August 27, 2024.  

Defendant argues in opposition that Plaintiff has not demonstrated mistake, inadvertence, surprise, or excusable neglect because her counsel has not accounted for the seven months between her retention of counsel and the discovery of the error. Although Defendant cites to Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, to claim that mistake of counsel is not a basis for relief, Defendant mischaracterizes the holding of Tackett. Contrary to Defendant’s assertion, Tackett expressly states that mistake of counsel can be a basis for relief from the claim presentation requirement if the mistake is excusable. (Tackett, supra, 22 Cal.App.4th at 64-65.) In Tackett, the plaintiff tripped on a sidewalk and retained counsel three weeks later. (Id. at 63.) Counsel missed the claim presentation deadline, then sought leave to present a late claim two months after the deadline, which was denied. (Id.) Counsel then petitioned the trial court for relief, initially claiming that the deadline had been mis-calendared, but, in a further declaration, offered a new explanation: that the case had been mischaracterized as not involving a public entity. (Id.) Critically, counsel in Tackett offered nothing to show what investigation or prelitigation activity had taken place for more than six months. (Id. at 63-64.) On the facts presented, the Court of Appeal concluded that counsel for the plaintiff had not acted with diligence and the failure to present the claim was not due to mistake, inadvertence, surprise, or excusable neglect. In the Court of Appeal’s words, “Tackett’s remedy, if any, is to pursue her attorney for malpractice.” (Id. at 66.)  

The similarities to this case are striking. As in Tackett, Plaintiff in this case retained counsel shortly after sustaining her injury, and counsel thereafter failed to present a government claim within the six-month deadline due to an error in categorization. Crucially, Plaintiff’s counsel does not explain what work, if any, was done on the case between October 2023 and April 2024. Instead, it appears, like Tackett, that Plaintiff’s case simply “languishe[d]” until counsel reviewed photos of the location seven months after retention. This is not a showing of diligence such that the Court would be inclined to find mistake, inadvertence, surprise, or excusable neglect. Plaintiff has therefore failed to demonstrate good cause for relief from the government claim presentation requirement.  

CONCLUSION:  

Accordingly, Plaintiff’s Motion for Relief from Government Claim Requirement is DENIED.  

Moving Party to give notice. 

IT IS SO ORDERED. 

Dated:  October 14, 2024 ___________________________________ 

Theresa M. Traber 

Judge of the Superior Court 

 
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