Case Number: 20STCP02215    Hearing Date: October 08, 2020    Dept: 85

Mercedes Rodriguez v. City of Montebello, 20STCP02215

Tentative decision on petition to file a late claim: granted

Petitioner Mercedes Rodriguez (“Rodriguez”) applies for relief from claim presentation requirements to file a claim against the City of Montebello (“Montebello”).

The court has read and considered the moving papers and opposition (no reply was filed), and renders the following tentative decision.

  1. Statement of the Case
  2. Petition

Petitioner Rodriguez commenced this proceeding on July 9, 2020.  The Petition alleges in pertinent part as follows.

On January 2, 2019, Rodriguez was a passenger on a bus operated by Montebello.  When Rodriguez boarded the bus, the bus operator failed to properly secure Rodriguez’s wheelchair.  Consequently, at the intersection of Fourth Street and Olive Street, Downtown Los Angeles, Rodriguez’s wheelchair moved abruptly, causing injury to her.  The bus operator contacted her supervisor, who arrived at the scene shortly thereafter and investigated the incident.  Due to her injuries, Rodriguez has and continues to receive medical treatment.

An investigator retained by Rodriguez’s counsel informed him that Rodriguez was injured while a passenger on a DASH bus.  Counsel found that DASH is operated by the City of Los Angeles Department of Transportation and, filed a timely claim for damages with the City of Los Angeles (“Los Angeles”).  Rodriguez and her counsel were mistaken in believing Los Angeles was the proper public entity.  Los Angeles rejected the claim for damages on August 2, 2019.

On August 6, 2019, Rodriguez presented a claim for damages to Montebello.  On August 12, 2019, Montebello returned the claim because it was not presented within six months of the incident.  On December 27, 2019, Rodriguez presented a written application for leave to present a late tort claim pursuant to Section 911.4 of the Govt. Code to Montebello.

 

  1. Course of Proceedings

According to a proof of service on file, Montebello was personally served with the Summons, Petition, and moving papers on July 16, 2020.

 

  1. Applicable Law

Under the Government Claims Act (“Act”), a plaintiff bringing suit for monetary damages against a public entity or employees thereof must first present a claim to the public entity (“government claim”) which must be acted upon or deemed rejected by the public entity.  §§945.4, 950.2, 950.6(a).  To be timely, a government claim for damages must be presented to the public entity within six months of the date the cause of action accrued.  §911.2.

If a plaintiff fails to file a government claim within the six-month period, he or she may apply to the public entity for permission to file a late claim.  §911.4.  Such an application must be presented within a reasonable time, and not later than one year after the cause of action’s accrual.  §911.4(b).

If the public entity denies the application for permission to file a late claim, the plaintiff may file a civil petition for relief from section 945.4’s requirement of timely claim presentation prior to suit.  §946.6.  The petition must be filed within six months after the application to the public entity is denied or deemed to be denied.  §946.6(b). The petition must show: (1) that an application was made to the public entity under section 911.4 and was denied or deemed denied; (2) the reason for failure to timely present the claim to the public entity within the time limit specified in section 911.2; and (3) the information required by section 910.  §946.6(b).

 

The court shall grant relief only if it finds that (1) the application to the public entity for leave to file a late claim was made within a reasonable time not to exceed one year after accrual of the claim as specified in section 911.4(b), (2) was denied or deemed denied by the public agency pursuant to section 911.6,  and (3) one or more of the following is applicable: (a) the failure to timely 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; (b) the person who sustained the alleged injury, damage or loss was a minor during all of the time specified in section 911.2 for the presentation of the claim; (c) the person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time; or (d) the person who sustained the alleged injury, damage or loss died before the expiration of the time specified in section 911.2 for the presentation of the claim.  §946.6(c).

 

  1. Statement of Facts
  2. Petitioner’s Evidence

On January 2, 2019, Rodriguez was injured while riding a bus operated by Montebello after the bus operator failed to properly secure Rodriguez’s wheelchair.  Berkovich Decl., Ex. A.

An investigator retained by Rodriguez’s counsel Gary Berkovich, Esq. (“Berkovich”), conducted the initial interview of Rodriguez.  Berkovich Decl., ¶7.  The investigator informed Berkovich that Rodriguez was injured while a passenger on a DASH bus.  Id.  Upon further research, Berkovich discovered that the DASH bus system is operated by the Los Angeles Department of Transportation.  Id.  Since the incident causing injury occurred in the heart of Downtown Los Angeles (intersection of Olive Street and 4th Street), Berkovich had no reason to doubt that the injury occurred on a bus operated by Los Angeles.  Id.

Rodriguez presented a claim for damages to Los Angeles on June 24, 2019.  Berkovich Decl., ¶2, Ex. A.  Los Angeles rejected the claim on August 2, 2019, and Rodriguez’s counsel, Berkovich received notice of the rejection on August 5, 2019.  Berkovich Decl., ¶3, Ex. B.

On August 6, 2019, Rodriguez presented a claim for damages to Montebello.  Montebello returned the claim on August 12, 2019 because it was not presented within six months after the date of the incident.  Berkovich Decl., ¶¶ 4-5, Exs. C, D.

Rodriguez presented an application for leave to present a late tort claim to Montebello on December 27, 2019, which was denied on January 9, 2020.  Berkovich Decl., ¶6, Ex. E.

 

  1. Respondent’s Evidence

Los Angeles rejected Rodriguez’s claim on August 2, 2019.  Colvin Decl., ¶6.  On August 6, 2019, after the expiration date, Rodriguez’s counsel submitted a claim for damages involving the same incident to Montebello.  Colvin Decl., ¶7.  On August 12, 2019, Montebello sent Rodriguez a notice of untimely claim.  Colvin Decl., ¶8.  Based upon information and belief, Rodriguez’s counsel received the notice of untimely claim on August 19, 2019.  Id.

On December 27, 2019, over four months after receiving the notice of untimely claim, Rodriguez’s counsel submitted to Montebello an application for leave to present a late claim pursuant to section 911.4.  Colvin Decl., ¶9.  On January 9, 2020, Montebello denied Rodriguez’s application for leave to file a late claim.  Colvin Decl., ¶10.

On July 9, 2020, Rodriguez’s counsel filed a Petition for Relief from Claim Requirements, six months after Montebello’s denial of Rodriguez’s application for leave to file late claim.  Colvin Decl., ¶11.

Rodriguez’s Petition was scheduled for a Trial Setting Conference (“TSC”) on September 8, 2020, at 1:35 p.m. in Department 85.  Colvin Decl., ¶12.  At the TSC on September 8, 2020, the court continued the matter for hearing to October 8, 2020, nine months after Rodriguez filed her Petition.  Colvin Decl., ¶13.

Montebello’s counsel is informed that the bus operator driving the subject bus on the incident date, Marie Santa Anna, is no longer employed by Montebello and is not available to provide her version of the incident.  Colvin Decl., ¶20.

 

  1. Analysis

Petitioner Rodriguez applies for leave to file a late claim against Montebello on the basis that her failure to timely file a claim was due to mistake, inadvertence, surprise, or excusable neglect.  Montebello opposes.

 

  1. Accrual of the claim

A cause of action accrues at the time a claim is complete with all of its elements.  Norgart v. Upjohn, (1999) 21 Cal.4th 383, 397.  An exception to this usual rule exists where accrual is delayed until the plaintiff discovers, or has reason to discover, the cause of action.  Id.  A plaintiff has reason to discover a cause of action when he or she “has reason to at least suspect factual basis for its elements.”  Id.

Rodriguez’s claim accrued on January 2, 2019 when she was injured while a passenger on a bus operated by Montebello.  Berkovich Decl., Ex. A.

 

  1. Presentation of the claim

Section 911.2 mandates that claims based on causes of action for death and personal injury must be presented “not later than six months after the accrual of the cause of action.”

To be timely, Rodriguez was required to present her claim within six months of January 2, 2019, or by July 2, 2019.  §911.2.  Rodriguez presented her claim to Montebello on August 6, 2019 after mistakenly filing a claim with Los Angeles on June 24, 2019 and receiving a denial of that claim on August 5, 2019.  Berkovich Decl., ¶¶ 23, Exs. A, B.  The claim was untimely.

 

  1. The application to the public entity for leave to file a late claim was made within a reasonable time not to exceed one year after accrual of the claim

Rodriguez’s claim accrued on January 2, 2019.  She was required to present her application for leave to file a late claim by January 2, 2020.  Her application was presented to Montebello on December 27, 2019, within one year of the accrual.  Berkovich Decl., ¶6, Ex. E.  Rodriguez’s claim was made within one year of accrual.

Montebello points out that Rodriquez’s application was made over four months after her claim was denied on August 5, 2019 and suggests that this delay was unreasonable.  Opp. at 3, 5-6.  Montebello relies on this delay to show lack of diligence for excusable neglect, not unreasonable delay, and the former is addressed post. 

 

  1. The application was denied or deemed denied by the public agency pursuant to section 911.6.

Montebello denied Rodriguez’s late claim application on January 9, 2020.  Berkovich Decl. ¶6.

 

  1. The petition is timely.

The petition for leave to file a late claim must be filed with the court within six months after the application to the public entity is denied or deemed to be denied.  §946.6(b).  The Petition was filed on July 9, 2020, six months from Montebello’s denial date.  The Petition is timely.

  1. The failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect.

Rodriguez contends that her failure to comply with the claim presentation requirement was due to mistake, inadvertence, surprise or excusable neglect because her counsel reasonably, but mistakenly, believed that Los Angeles was the proper public entity for her claim rather than Montebello.

Timely compliance with the claims presentation is a mandatory prerequisite to maintaining a cause of action against a public entity and failure to file a claim is fatal to the claimant’s cause of action.  Pacific Telegraph & Telephone Co. v. County of Riverside, (1980) 106 Cal.App.3d 83, 188; San Leandro Police Officers Assoc. v. City of San Leandro, (1976) 55 Cal.App.3d 553.  Ignorance of the claims filing deadline is no excuse.  Harrison v. Count of Del Norte, (1985) 168 Cal.App.3d 1, 7; Drummond v. County of Fresno, (1987) 193 Cal.App.3d 1406, 1412.  Excusable neglect is neglect which might have been the act of a reasonably prudent person under the same or similar circumstances.  Ebersol v. Cowan, (1983) 35 Cal.3d 427, 435.  Mere failure to discover a fact does not constitute excusable neglect for failing to present a timely claim; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence.  Munoz v. State of California, (1995) 33 Cal.App.4th 1767, 1783.  Excusable neglect is defined as an act or omission that might be expected of a prudent person under similar circumstances.  Department of Water & Power v. Superior Court, (2000) 82 Cal.App.4th 1288, 1294.

A mistake or neglect by an attorney is imputed to the client and may not be offered by the latter as a basis for relief.  Mitchell v. Department of Transportation, (1985) 163 Cal.App.3d 1016, 1021.  An exception occurs when an attorney’s neglect is that extreme degree amounting to positive misconduct by which a petitioner was effectually and unknowingly deprived of representation. Carroll v. Abbott Laboratories, (“Carroll”) (1982) 32 Cal.3d 892, 898.

Rodriguez’s evidence shows that her counsel, Berkovich, was informed by his investigator that Rodriguez was injured while riding on a DASH bus in downtown Los Angeles.  Berkovich Decl., ¶7.  Based on this information Berkovich mistakenly assumed that Los Angeles was the proper public entity with which to file a claim.  Rodriguez argues this mistake was reasonable because Berkovich’s research showed that the DASH bus system is operated by Los Angeles.  Since the incident occurred in downtown Los Angeles, Berkovich had no reason to doubt that Los Angeles operated the bus in question.  App. at 4-5.

The court agrees.  Montebello argues that Berkovich relied entirely on the statement of his investigator in filing the mistaken claim, and he was obligated to investigate and verify the proper public entity.  Opp. at 5.  While Berkovich has a duty to investigate, he most certainly can rely on his agents in doing so.  All the information Berkovich had showed that Los Angeles was the proper entity.  From his investigator’s interview, Berkovich knew that his client believed that the bus was a DASH bus, which is indisputably operated by Los Angeles.  Montebello fails to explain what else Berkovich could have done to verify that he had the correct city.  Montebello points to no online or other source of information which would have informed him that bus #40 was a Montebello bus.  Berkovich’s actions of presenting a claim to Los Angeles, learning that it was the wrong entity, and then presenting a claim (albeit untimely) to Montebello was reasonable and showed due diligence.

The cases Rodriguez relies support her claim for excusable neglect.  In Kaslavage v. West Kern County Water Dist., (1978), 84 Cal.App.3d, 527, the plaintiff’s attorney’s investigator carried out a substantial investigation from which he wrongly concluded that a water district owned both a canal and the pipe flowing into it, which was excusable neglect.  See Bettencourt v. Los Rios Community College District, (“Bettencourt”) (1986) 42 Cal.3d 270, 278 (counsel’s belief that college employees worked for the state instead of college district was excusable neglect); Flores v. Board of Supervisors, (“Flores”) (1970) 13 Cal.App.3d 480, 480 (attorney’s neglect excusable where he failed to open file on the matter which would have reminded him of claim filing deadline).  The same is true here.

Montebello argues that Rodriquez’s four-month delay in presenting her late claim application should be considered on the due diligence issue.  In Bettencourtsupra, 42 Cal.3d at 278, plaintiffs’ counsel moved swiftly to file a tort claim and was otherwise diligent besides his mistake.  In Floressupra, 13 Cal.App.3d at 480, the court similarly noted that plaintiffs acted swiftly in pursuing their claim, with only a minor mistake from their attorneys preventing litigation.  In contrast, Berkovich waited four months after the rejection of the initial claim to file her late claim application and waited six months after the denial of the late claim application to file the instant Petition.  Opp. at 6.

The court declines to find these delays, which were within the relevant deadlines, as showing a lack of due diligence.  In the first place, the due diligence requirement principally applies to excusable neglect in presenting the initial claim, not in filing the late claim application or the lawsuit.  See §946.6(c).  Unlike the initial claim, neither the late claim nor the lawsuit is essential to the agency’s notice of the claim.  Second, although Rodriquez presents no explanation for the four-month delay in making a late claim application, the court does not find it to be unreasonable.

Montebello unpersuasively argues that it would be prejudiced.  Opp. at 7.  Montebello’s prejudice evidence consists of the fact that its attorney was “informed” that the bus no longer works for the city (Colvin Decl., ¶20) and speculation that any other witnesses are unlikely to be located or remember the event, which occurred on January 2, 2019, almost two years ago.  Opp. at 7.  Aside from the fact that the proper period to consider for prejudice is from the January 2, 2019 incident to the August 6, 2019 date on which Montebello was first notified of the claim, these conclusions are not sufficient to show prejudice. Montebello does not suggest that the bus driver is unavailable as a witness and has made no investigation of other witnesses.

  1. Conclusion

Rodriguez has demonstrated that her counsel’s mistake was the result of excusable neglect and Montebello has not shown that it would be prejudiced by her failure to present a timely claim.  The petition for relief from claim presentation requirements is granted.