The court rules as follows on the amended petition for order relieving Petitioner from the provisions of Gov?t Code ?945.4 ?

Petitioner seeks an order pursuant to Govt. Code ?946.6, relieving her of the requirement of Gov?t. Code ?945.4 of presenting a claim to the City of Orange before filing suit against the City.


On or about 1/17/13, Petitioner Schwan was involved in an auto accident on East Collins Avenue in the City of Orange.? (Amend. Pet., Ex. B at p. 1).? She was attempting to turn left and collided with a motorcycle.? The motorcyclist, Joann Mykkanen, sustained serious injuries including a leg amputation.? Petitioner is facing liability of $1.45 million for the injuries of Mykkanen, who incurred $350,000 in medical expenses, and has continuing injuries and losses.? (Amend. Pet., Ex. B at p. 2)

According to the traffic collision report for the incident,

Petitioner was under the influence of marijuana at the time of the accident and was arrested.? (City?s Opp., Hoard Decl. ?2, Ex. D)? The Orange County District Attorney?s office filed felony charges against her under OCSC case no. 13CF0465.? (Opp., Hoard Decl. ? 2-3)? At an arraignment held on 2/14/13, Petitioner was represented by a criminal defense attorney and pleaded not guilty.? [City?s RJN, Ex. 1]


More than six months after the accident, on August 3, 2013, Petitioner retained a civil defense attorney, her present counsel.? In a meeting with the attorneys for Mykkanen on August 2, 2013, Petitioner?s counsel was informed that the accident location was dangerous.? On August 20, he visited the location with an expert, a licensed engineer, whose opinion was the lack of a no-left turn sign and the street design at the accident scene were dangerous conditions for public property.? (Amend. Pet., Ex. A -3, Lenhardt Decl., ? 2-3).


Petitioner seeks to file a claim with the City for the dangerous condition and for damages that she suffers in the form of liability to Mykkanen.


Petitioner notes the time to file a claim would have expired by approximately 7/17/13, or six months after the accident.? (Amend. Pet. at 2:6-7).


On 9/3/13, Petitioner presented her late Claim, and Application for Leave to Present Late Claim, to the City.? (Amend. Pet., Ex. A and Ex. B).


On 9/25/13, the City served notice to Petitioner that the Application was denied by the City Council.? (Amend. Pet., Ex. C)


The hearing on this petition was continued because Petitioner did not give the City notice of the hearing date and time, and further, the petition appeared premature in that the time for the City to act on Petitioner?s request to file a late claim had not expired.


Those issues have been resolved.? Petitioner filed an amended petition meanwhile, and the City has responded.


On 10/17/13, Petitioner timely filed this amended petition for relief.




Petitioner contends as follows:


  1. The reason that a claim was not presented to the City within 6 months of the accident was that Petitioner was not represented by a civil attorney after the accident.
  2. Because she did not have civil defense counsel, Petitioner was not able to understand that the scene of the accident was a dangerous public condition for which she should have filed a government claim.
  3. Since her current counsel was retained in August, he visited the scene with an engineer who opines that the scene of the accident is a dangerous condition of public property.? Specifically, where the left turn was attempted, the road curves and the speed of traffic impairs a safe left turn.? Further, vision is obstructed by a street light pole, two large cylinders or vents, and shade from foliage.? There are inadequate traffic controls, such as a no left turn sign or controls on traffic speed.? These characteristics all create a dangerous condition and have a likelihood of causing accidents.? (Amend. Pet., Ex. B,? p. 1-2)
  4. This knowledge has only come to light after the expiration of the six-month time frame for filing a claim against the City.
  5. Further, a cause of action for indemnity has not even accrued because no formal civil action has been filed by the injured driver, Mykkanen.? Thus, no cause of action for indemnity has even accrued.


Respondent City of Orange contends as follows:


  1. Petitioner has not made a showing of excuse.? She offers no declaration describing any action taken on her part from the time of the accident and in the six months that followed, which would show reasonable diligence on her part in bringing this claim.
  2. Petitioner was certainly sophisticated enough to retain a criminal defense attorney (RJN. Ex. 1) so she was capable of retaining a civil defense counsel as well.? She does not offer a declaration to state why she did not take action after the accident.
  3. Because Petitioner did not even make a proper showing, the City need not show any prejudice from the delay.


The City requests judicial notice of a copy of this court?s minutes in OCSC case no. 13CF0465 (the criminal case against Amy Schwan).? The court may take judicial notice of its records under Evid. Code ? 452(d).






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 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.?? Gov?t. Code ?945.4.


Thus, in order to prosecute a claim in court against a governmental entity, a plaintiff must first file a claim with the entity.? Claims relating to causes of action for death, personal injury, and injury to personal property, must be filed within six months after the accrual of the cause of action, which is usually the date of injury. Gov?t. Code ? 911.2(a).


If plaintiff fails to file a claim with the public entity within the six-month time limit, he must apply directly to the entity for permission to file a late claim. ??Gov?t. Code ?? 911.4.? This application must be made within a reasonable time not to exceed one year from the accrual of the cause of action.? Id. subd.(a),(b).


If the application is denied, ?a petition may be made to the court for an order relieving the petitioner from Section 945.4?, i.e., relieving the petitioner from the need to comply with the claims presentation requirements before bringing suit.? Gov?t. Code ? 946.6.??? The petition must be filed within six months after the application to the board is denied or deemed to be denied. Gov?t. Code ? 946.6(b).


A court must relieve the petitioner from the government claims requirements if the court finds that the application to the public entity was made within a reasonable time and that one or more of the following is applicable:? (1) mistake, inadvertence, surprise or excusable neglect unless the public entity proves it would be prejudiced in defense of the claim by the granting of such relief; (2) claimant was a minor throughout the claims-filing period; (3) claimant was physically or mentally incapacitated throughout the claims-filing period and for this reason unable to file a timely claim; or (4) claimant died during the claims-filing period.? Gov?t. Code ?946.6(c).?? The petitioner has the burden of proving one of the statutory grounds for relief by a preponderance of the evidence.? Rodriguez vs. County of Los Angeles (1985), 171 Cal.App.3d 171, 175.


The court makes an independent determination as to whether the claimant has shown grounds for relief based on the petition, attached affidavits and any evidence received at the hearing.? Gov?t. Code ?946.6(e).? Courts exercise their power to grant relief liberally, so as to preserve meritorious claims wherever possible; therefore, any doubts are to be resolved in favor of permitting the suit to proceed.? Viles vs. California (1967) 66 Cal.2d 24, 28-29.




Petitioner?s amended petition was filed within 45 days of the City?s denial of her application for leave to present late claim.? The petition is therefore timely.




The City?s unopposed request for judicial notice of the minutes of this court in the criminal case is granted.? Evid. Code ?452(d).


Relief from the failure to timely present a government tort claim is available only if the petitioner establishes by a preponderance of the evidence the failure was through mistake, inadvertence, surprise, or excusable neglect.? It is not shown by the mere failure to discover a fact until it is too late; the claimant must establish that in the exercise of reasonable diligence, he failed to discover it.?? Renteria vs. Juvenile Justice, Dept. of Corrections and Rehabilitation (2006), 135 Cal.App.4th 903, 909-10; People ex rel. Dept. of Transportation vs. Superior Court (2003), 105 Cal.App.4th 39, 43-44; Dept. of Water & Power vs. Superior Court (2000), 82 Cal.App.4th 1288, 1293.


California cases are uniformly clear that a claimant may not successfully argue excusable neglect when he or she fails to take any action in pursuit of the claim within the six-month claim-filing period. ?The claimant must, at a minimum, make a diligent effort to obtain legal counsel within six months after the accrual of the cause of action. Once retained, it is the responsibility of legal counsel to diligently pursue the pertinent facts of the cause of action to identify possible defendants.? Dept. of Transportation, supra, 105 Cal.App.4th 39, 43-45.


In Black vs. County of Los Angeles (1970), 12 Cal.App.3d 670, the claimant retained counsel less than two weeks after her husband was killed in an automobile accident.? Her counsel filed suit against the driver of the other car but did not investigate the condition of the road.? Approximately 10 months later, counsel took the deposition of the other driver who indicated the condition of the road caused the accident.? Counsel then investigated and discovered a potential cause of action against the county.? In affirming the denial of her petition for relief from the claims-filing statute, the appellate court held that even though claimant had acted diligently in obtaining counsel, her counsel did not exercise reasonable diligence.? Id. at 676-77.


In Dept. of Water & Power vs. Superior Court, supra, the claimant retained counsel and filed suit against the other driver, but counsel failed to investigate and determine the potential liability of the public entity.? Since claimant and his counsel failed to conduct a timely, reasonably prudent investigation of the circumstances of the accident, relief was properly denied.? Id. at 1292, 1295-96.


In Dept. of Transportation vs. Superior Court (2003), 105 Cal.App.4th 39, the claimant did nothing during the six months following the accident to retain counsel or investigate the potential responsibility of other parties.? Eventually, he retained counsel who formed the opinion that negligent maintenance of the high grass and weeds abutting the freeway caused the accident.? The Court of Appeal denied the petition for relief, concluding that claimant?s lack of diligence within the six month period barred relief.? Id. at 44-5.


Failing to retain counsel is not an excuse.? Dept. of Transportation, supra, 105 Cal.App.4th 39, 44-45.


In the present case, Petitioner?s showing is similarly deficient.? Petitioner has not shown that she or her counsel exercised reasonable diligence to attempt to investigate the conditions of the road within the six months following the accident.? The accident apparently occurred right in front of her own residence, an area with which she would have been familiar and which was readily accessible to her.


Moreover, right after the accident, Petitioner faced criminal liability.? She retained an attorney to represent her, and within approximately one month she pleaded not guilty.? Given these facts, there is no explanation of why she and her counsel did not undertake to comprehend the conditions of the street where she lived, to determine all of the possible causes of the accident, and the criminally responsible parties.? A reasonably prudent person under these circumstances ? even a non-attorney – would have been aware of potential civil liability in this situation.? Even if Petitioner?s counsel was at fault, such fault is not a valid excuse mandating relief from a failure to file a timely claim. The attorney?s actions must be shown to have been excusable and reasonable as well, see Black and Dept. of Water & Power, supra.? Here, there is no showing offered on this point at all.? Clark vs. City of Compton (1971) 22 Cal.App.3d 522, 528.


Petitioner has not demonstrated there are grounds for relief. The petition is DENIED.