Case Number: BC605298??? Hearing Date: February 06, 2017??? Dept: 98
FRANK MASIELAS,
Plaintiff,
vs.
TREANTAFELLES MARIA, et al.,
Defendants.
CASE NO: BC605298
[TENTATIVE] ORDER RE: PETITION FOR LEAVE TO FILE LATE CLAIMDept. 98
1:30 p.m.
February 6, 2017
On December 23, 2015, Plaintiff Frank Masielas filed this action for alleged damages arising out of a January 24, 2014 trip and fall. Defendants Maria Treantafelles (erroneously sued as Treantafelles Maria) (?Treantafelles?), John Karatzias, Sam Karatzias, and Chris?s Burgers (collectively, ?Petitioners?) filed a Cross-Complaint against City of Los Angeles and City of La Puente (?Respondent?) on April 7, 2016 for indemnity, apportionment, and declaratory relief. Petitioners now petition for late claim relief pursuant to Government Code section 946.6.
No suit for money or damages may be brought against a public entity 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. Cal. Gov. Code ? 945.4. A claim relating to a cause of action for death or injury shall be presented no later than six months after the accrual of the cause of action. Id., ? 911.2(a). A claim relating to ?any other cause of action? must be presented no later than one year after the accrual of the cause of action. Id.
When a claim is not presented within six months, a written application may be made to the public entity for leave to present a late claim. Id., ? 911.4(a). If the application is denied, the injured party may petition the court for an order relieving the petitioner from the claim requirements. Id., ? 946.6(a). The court must grant the petition if the petitioner demonstrates by a preponderance of the evidence the application to the public entity was made within a reasonable time not exceeding one year after the accrual of the cause of action, and that 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. Id., ? 946.6(c)(1).
The date upon which a cause of action for equitable indemnity or partial equitable indemnity accrues shall be the date upon which a defendant is served with the complaint giving rise to the defendant’s claim for equitable indemnity or partial equitable indemnity against the public entity. Id., ? 901.
First, Petitioners argue that their claim for indemnity against Respondent did not accrue with the original complaint in this matter, citing to Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090. In Centex Homes, a defendant was seeking indemnity from a city for building violations related to plumbing and sewer systems. Id., at 1094. The plaintiff’s original complaint contained allegations of various other building codes, none of which involved plumbing and sewer systems. Id. The court held that the original complaint did not encompass the claim for which the defendant sought indemnity and that the defendant’s claim for indemnity therefore did not accrue with the filing of the original complaint. Id., at 1093.
Here, Petitioners are seeking indemnification directly related to the claims contained in Plaintiff?s Complaint. The original Complaint in this action therefore is the complaint that gives rise to Petitioners? claim for the purposes of Government Code section 901. Treantafelles was served on February 20, 2016. The other three Petitioners were served on February 13, 2016.
Petitioners also argue that their claim is one relating to any ?other cause of action? and that their time for filing a claim was one year after the accrual of the cause of action. The Court finds that the six month time period in section 911.2(a) applies here, as Petitioners? claims are related to Plaintiff?s underlying personal injury action.
Lastly, Petitioners argue that they should be relieved from the claim requirements under Government Code section 946.6 because their application to Respondent was made within one year after the accrual of their cause of action and their failure to timely present their claim was the result of mistake, surprise, inadvertence, and excusable neglect. Plaintiff?s deposition was taken on October 17, 2016. Plaintiff testified that he was walking on the sidewalk adjacent to Chris?s Burgers parking lot when he stepped over a raised curb onto a concrete ditch that was not leveled. Petitioners contend that the location of the event was unknown prior to the deposition. On November 2, 2016, Petitioners filed a Claim and an Application for Leave to Present a Late Claim with Respondent. Petitioners received a Rejection Notice on November 11, 2016.
Respondent contends that Petitioners failed to diligently investigate their claims, such that leave from the filing requirements should not be granted. Respondent argues that Plaintiff?s discovery responses, served on June 24, 2016, were sufficiently detailed to provide support for a potential indemnity claim against it. In his discovery responses, Plaintiff indicates that the incident occurred at a short wall blocking a sudden drop on the other side that is not visible. He also states that the unsafe condition is ?located in the parking lot on the other side of a short wall which is also in the parking lot leading into the business establishment and locations in the parking lot.? Respondent therefore argues that Petitioners failed to present a timely claim due to lack of diligence rather than mistake, surprise, inadvertence, or excusable neglect.
?Government Code section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary.? Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1778. ?Relief from the six-month limit is granted under the same showing as is required for relief under Code of Civil Procedure section 473.? Id. A ?petitioner may not successfully argue excusable neglect when he or she fails to take any action in pursuit of the claim within the six-month period.? Id., at 1778-79. ?Excusable neglect? is measured by a reasonably prudent person standard and the failure to discover a fact until after the claim deadline is insufficient. People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44. The petitioner must establish that he or she exercised reasonable diligence to obtain relief. Id.
The Court agrees that Plaintiff?s discovery responses provide sufficient information to Petitioners of the location of the incident. At the very least, Petitioners should have investigated further upon receiving those responses in June 2016, prior to the deadline for the filing of their claim, as the responses indicate that a potential claim against a public entity may have existed. Indeed, Petitioners admit that they had a suspicion that the location was owned and maintained by a public entity and filed their Cross-Complaint against two public entities on April 7, 2016. Petitioners? argument that it was not aware of a potential claim against Respondent until Plaintiff?s deposition in October 2016 is disingenuous. Petitioners were simply unaware of the government tort claim requirement. Mistake of law based solely on ignorance of the six-month claim requirement is not enough to obtain relief under section 946.6. Munoz, supra, 33 Cal.App.4th at 1778.
In light of the foregoing, the Petition is DENIED.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 6th day of February, 2017
Hon. Holly J. Fujie
Judge of the Superior Court