Case Number: BS162748??? Hearing Date: October 21, 2016??? Dept: 92
MARIA RODRIGUEZ ESCOBEDO,
Plaintiff(s),
vs.
CITY OF PASADENA, et al.,
Defendant(s).
Case No.: BS162748
[TENTATIVE] ORDER DENYING PETITION FOR LEAVE TO FILE LATE CLAIM1. Background Facts
Petitioner tripped and fell on public property on 7/05/15.
2. Timely Government Tort Claim
Per Gov Code ?911.2, Peitioner was required to file her government tort claim within six months thereafter. She failed to do so.
3. Application for Leave to File Late Claim
When a claimant fails to timely file a claim, her next step is to file an application for leave to file a late claim with the public entity allegedly responsible for the claim. Per Gov Code 911.4, within one year after the claim accrues, the claimant may file an application with the public entity to present a late claim; the application must indicate the reason for the delay and must be accompanied by the proposed claim. Plaintiff filed such application in this case on 2/24/16. The claim was deemed denied by operation of law on 4/14/16. Gov Code ?911.6(c).
4. Petition for Relief from Failure to File Timely Claim
If the entity denies the application for leave to present a late claim, the claimant?s last option is to file a petition for relief from failure to file a timely claim with the court. Such petition must be filed within six months after the application is denied. Petitioner herein filed her petition for leave to file late claim on 6/09/16, which was timely.
Per ?946.6(c), the court must grant the petition if it finds the entity was required to grant the application. One such ground is mistake, surprise, inadvertence, or excusable neglect. With respect to this ground, the entity is obligated to grant the claim if it finds the delay was caused by ?mistake, inadvertence, surprise or excusable neglect? and the public entity was not prejudiced ?in its defense of the claim? by the failure to file within the claim filing period. Under CCP ? 473(b), a court must grant relief from dismissal of an action when the attorney attests in a timely and sworn declaration that the dismissal resulted from his or her neglect; no showing of ?excusable? neglect is required. But the government claim filing statutes contain no comparable provision. Thus, an attorney’s ?mea culpa? does not itself establish ?excusable neglect? justifying late claim relief. Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65. Thus, even if the attorney is at fault, his neglect must be ?excusable? to justify relief.
A claimant who makes a sufficient showing of ?mistake,? ?excusable neglect,? etc. is entitled to relief under Gov.C. ? 911.6 unless the public entity pleads and proves prejudice to its defense of the claim by reason of the late claim filing. Moore v. State of Calif. (1984) 157 Cal.App.3d 715, 726-727.
5. Analysis
There are two issues before the Court at this time. First, did Petitioner adequately show that she failed to file her claim timely as a result of excusable neglect? Second, if she adequately did so, did Respondent adequately establish prejudice as a result of the failure to timely submit the claim?
a. Excusable Neglect
Petitioner argues her failure to timely file her petition was the result of excusable neglect. She argues this neglect was twofold in nature. First, her attorney?s secretary mis-calendared the date for submitting the government tort claim for 3/05/16 instead of 1/04/16, and correspondingly set the tickler for 2/22/16 instead of 12/22/15. During the same time period, Plaintiff?s attorney was undergoing treatment for chest pain; he was originally seen in July of 2015, and then had two stents implanted in August of 2015. In September of 2015, he had angioplasty performed and was placed on a reduced work schedule.
In opposition to the petition, Respondent relies on Davis v. Thayer (1980) 113 Cal.App.3d 892, 909 to contend the claimed negligence was not excusable. As noted above, even if the negligence is the attorney?s personal negligence, it must be excusable to support relief from the claim presentation requirements. The court therein considered a defendant?s claim that her own heart attack precluded her from timely responding to a summons and complaint served on her. The court analyzed the situation as follows:
With regard to defendant Willette, she, too, is guilty of inexcusable neglect.
Although she stated she was under doctor’s care for a heart attack and taking medication at the time of service of the papers, she does not state the severity of the condition or in what manner it limited her activity, nor did she present a doctor’s declaration to confirm her statements. Was she truly so disabled that she could do nothing concerning this matter for nearly six months? (Citations), in which the court stated in a similar situation a doctor’s declaration was desirable to negate unfavorable inferences against the declarant, and that it was an abuse of discretion to grant section 473 relief where the proof with regard to health of the declarant was inconclusive.)
Despite her poor health Willette claims that she was caring for her elderly mother and a dying husband. She does not state that all of her time was devoted to such matters, to the exclusion of other affairs, or that she was too distraught to think of plaintiff’s claim. In such circumstances it is the rule that: “. . . the mere fact that the client is busy and occupied with other affairs is never held to constitute an excuse for his neglect to answer a summons within time, although the courts will in a proper case relieve a client from the result of the neglect of his too busy attorney. If the rule were otherwise, few judgments by default would stand, for most men could plead their business as an excuse for not answering the summons of the court.” (Citations).
The Court tends to agree that Davis precludes a finding that the negligence at issue in this case was reasonable. Counsel herein does not detail exactly what limitations were placed on his practice during the time he was suffering from heart problems. He indicates his work schedule was reduced, but fails to state what he did to ensure business was handled while his schedule was reduced. Additionally, Defendant correctly notes that there is no declaration at all from Counsel?s secretary, the person claimed to have made the mistake at issue. There is no explanation of how the mistake was made, and no showing that the failure to calendar the statute of limitations properly was reasonable.
Petitioner, in reply to the opposition, does not address Davis. She may, in oral argument, contend that Davis is distinguishable and note the portion of the citation, above, discussing the distinction if the error is an attorney error instead of a client error. However, as noted above, when ruling on a motion under the Government Code, even attorney error must be excusable in nature; thus, the standard is different from a motion made under ?473(b), where attorney error need not be excusable.
The Court finds Petitioner failed to meet her burden to show that her attorney?s error and his secretary?s error were excusable. The petition is therefore denied.
b. Prejudice
The Court will also rule on Respondent?s argument that it would be prejudiced if the petition were granted. Respondent contends the area where Petitioner fell was under construction in July of 2015 and for the nine months thereafter and therefore looks very different now than it did when she fell. Specifically, Respondent contends construction was ongoing between June of 2015 and March of 2016. Plaintiff fell on 7/05/15. She had until 1/05/16 to file her claim. Respondent needs to tie its prejudice to the failure to timely file a claim. Respondent therefore needs to show that the condition of the property changed materially from 1/05/16, when the claim would have been timely, to 2/24/16, when she actually filed her claim, and that the changes during that specific time period hindered its ability to defend the claim. Respondent did not meet this burden, and therefore failed to show that it would be prejudiced if the petition were granted.