Case Number: 19STCP02240    Hearing Date: October 09, 2020    Dept: 86


Case Number: 19STCP02240

Hearing Date: September 16, 2020


Petitioner, Emerson Chi Babich, moves for relief from the court to file a late government claim. Respondents, State of California, County of Los Angeles and the City of Los Angeles, each separately oppose the petition.[1]

Initially, Petitioner did not file a reply. On September 16, 2020, at the originally scheduled hearing on the petition, Petitioner’s counsel indicated he did not file a reply brief because he was not aware the State had opposed the petition—Petitioner’s counsel stated he had not received any opposition. After some discussion between the court and counsel, it became clear Petitioner’s counsel’s office relocated some time ago and failed to notify the court or opposing counsel.

On September 16, 2020, the court issued a written tentative decision denying the petition. The court raised credibility questions as well as gaps in Petitioner’s counsel’s explanation of the events leading to the late claim. In recognition of the policy in the law of resolving claims on the merits and over the objection of the State, the court permitted Petitioner to file a late reply brief.

 The Petition is GRANTED.


Government Code[2] section 911.2, in the Government Tort Claims Act, provides a “claim relating to a cause of action . . . for injury to person . . . shall be presented . . . not later than six months after the accrual of the cause of action.” (Emphasis added.) The date of accrual for the purpose of presentation of a claim is the date on which the cause of action would have accrued within the meaning of the statute of limitations. (§ 901.)

Section 946.6 is the ultimate judicial backstop of the claims presentation process. If a claimant fails to file a timely claim and if the public entity then denies the claimant’s application for permission to file a late claim, the claimant may file a petition for relief from section 945.4’s requirement of timely claim presentation prior to suit. (See also §§ 946.6, subd. (a), 911.2 and 911.4.)

The petition must be filed within six months after the application to the public entity is denied or deemed to be denied. (§ 946.6, subd. (b).) The petition must show: (1) an application was made to the public entity under section 911.4 and was denied or deemed denied; (2) the reason for the 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, subd. (b).)

The court shall grant relief only if it finds (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, subd. (b); and (2) one or more of the following is applicable:

  1. 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;
  2. 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;
  3. the person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Government Code section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time; or
  4. the person who sustained the alleged injury, damage or loss died before the expiration of the time specified in Government Code section 911.2 for the presentation of the claim.

(§ 946.6, subd. (c); see also Tammen v. County of San Diego (1967) 66 Cal.2d 468, 474.)

In instances where the petitioner claims the failure to timely present the claim was the product of mistake, inadvertence, surprise, or excusable neglect, the Court analyzes the petition under the principles applicable to relief from defaults under Code of Civil Procedure section 473, subdivision (b). (Han v. City of Pomona (1995) 37 Cal.App.4th 552, 557 [citing Ebersol v. Cowan (1983) 35 Cal.3d 427, 435].) When considering relief under section 946.6, the Court should resolve any doubts which may exist in favor of the application, preferring an outcome where the action may be heard on its merits. (Viles v. California (1967) 66 Cal.2d 24, 28-29.)

A petitioner bears the initial burden of demonstrating his or her entitlement to relief. (Renteria v. Juvenile Justice, Department of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 910-911; Toscano v. Los Angeles County Sheriff’s Department (1979) 92 Cal.App.3d 775, 784-785.) A petitioner must prove the basis for relief by a preponderance of the evidence. (Toscano v. Los Angeles County Sheriff’s Department, 92 Cal.App.3d at 784-785; Department of Water & Power v. Superior Court of Los Angeles County (Dzhibinyan) (2000) 82 Cal.App.4th 1288, 1293.) A respondent has no burden to establish prejudice until the petitioner has satisfied the court that his or her failure to file a timely claim was due to mistake, inadvertence surprise or excusable neglect. (Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 726.)


Petitioner represents he was injured when he tripped and fell at 150 World Way in Los Angeles on January 29, 2018. The Police Division of the Los Angeles World Airports prepared a report documenting the injury. (Reply, Ex. A.) The report states in part: “On 01/29/2018 at about 1700 Chi Babich Fell and his hit head on the carpeted floor by Gate #11B at 150 World Way Los Angeles, CA 90045. Babich sustained a large hematoma on his right eye and head with surrounding superficial bruising. Babich refused transportation to a local hospital . . . .” (Reply, Ex. A.)

Petitioner retained counsel to represent him in his lawsuit against Respondents based on his injury. (The date Petitioner hired counsel is not specified.) Under the Government Tort Claims Act, Petitioner had six months to present his claim to Respondents. Petitioner did not present his claim, however, until January 3, 2019, more than 11 months after his claim accrued. Thus, there is no dispute by any party that Petitioner’s claim was late as defined by section 911.2.

Petitioner explains his claims were not timely filed during the 6-month statutory period specified by section 911.2 because of mistake, inadvertence, surprise and/or excusable neglect of Petitioner’s counsel and staff. While the evidence presented to support Petitioner’s position in his moving papers is quite vague, Petitioner’s reply brief somewhat clarifies the circumstances of the late claim.

According to Petitioner’s counsel, his staff entered a calendar expiration date for the government claim as “7/29/18.”[3] Based on this deadline date, Petitioner’s counsel began preparing the claim form to present to Respondents. Petitioner contends that, as a result of a computer or human error, the software used to track whether a claim had been filed showed the government claim had been completed and indicated the form had “gone out” to Respondents. (Pet., p. 4 [Exhibit 2, May 29 Yaghoubtil Decl., ¶¶ 2-8].) After speaking with his support staff about the error, Petitioner’s counsel cannot determine whether the computer software calendaring system labeled the claim form task as completed because of human error or software failure. (Reply, Fradkin Decl., ¶¶ 10-11.) It is clear, however, Petitioner’s counsel believed the government claim forms had been submitted to Respondents. (Pet., p. 4 [Exhibit 2, May 29 Yaghoubtil Decl., ¶¶ 2-8].)

Petitioner provides no evidence about the claim preparation, but the evidence does note Petitioner’s counsel assigned the task to his paralegal who “has always been dutiful in the discharge of her duties and responsibilities.” (Reply, Fradkin Decl., ¶ 12.) From the evidence provided, the court can glean Petitioner’s counsel’s staff entered the presentation due date for the claim. One month before the claim had to be presented to Respondents, Petitioner’s counsel reviewed his calendar “and noted Plaintiff’s matter had a Government Claim deadline of ‘07/29/2018.’ ” (Pet., Exhibit 1, January 3 Yaghoubtil Decl. ¶ 6.) Petitioner’s counsel then instructed “his staff to begin the process of obtaining a claim form from [Respondents], and to prepare it to be filed prior to July 29, 2018.” (Pet., Exhibit 2, May 29 Yaghoubitl Decl. ¶ 6.)

Petitioner’s counsel’s case manager attests to the same facts and provides no explanation for what happened to the claim; Petitioners’ counsel did not include a second declaration from his case manager on reply. The case manager reports Petitioner’s counsel instructed her to “begin the process of obtaining a claim form from [Respondents] and to prepare it to be filed prior to July 29, 2019. (Pet., Exhibit 1, Barron Decl., ¶ 6.) The case manager does not indicate what action, if any, she took to obtain the claim forms, prepare the claim forms or submit them.

The late claims submitted to Respondents assert “Paralegal Error Allows for Late California Tort Claim.” (Pet., Exhibit 1.) They also request Respondents “please carefully review the declarations of Farid Yaghoutil, Esq. [sic] and Adriana Barron, attached hereto . . . that outline, in detail, the reasons why [Petitioner’s] application [for leave to file a late claim] shall be granted.” (Ibid.) Those declarations (as described above), however, provide no detail about what actually happened.

Petitioner’s counsel does explain during an audit on January 3, 2019, he discovered the claims had not been presented to Respondents. Thus, on January 3, 2019, Petitioner’s counsel caused Applications for Leave to Present a Late Claim pursuant to section 911.4 to be mailed. (Pet., p. 4 [Exhibit 2, Yaghoubtil Decl., ¶¶ 2-8].) Respondents rejected the applications.

In seeking relief to file a late claim, Petitioner identifies two mistakes or errors that he contends contributed to his failure to timely present his claim to Respondents.

First, Petitioner states that his counsel’s staff did not move the final date for the presentation of the claim from a Sunday to the prior Friday. (Yaghoubtil Decl., ¶ 4; Barronn Decl., ¶ 4.) Somehow this failure resulted in a nearly 6-month delay in presenting the claim.

While that may be true, Petitioner’s counsel attests in June 2018, he noted the claim had to be presented by July 29, 2018 and instructed his staff to prepare the claim—he knew when it was due. Thus, the evidence does not suggest any mistake concerning (1) the need to submit a claim and (2) the due date.

Moreover, Petitioner did not present the claim anytime close to Sunday, July 29, 2018. Thus, any alleged error does not credibly account for Petitioner’s failure to timely present the claim at all and cannot be relied upon to justify relief to file a late claim. Perhaps if the claim had been presented within some reasonable period after the Sunday due date—like the next business day or two—Petitioner would have a credible argument based on a deadline listed as a Sunday instead of the Friday before, but he did not.

Second, Petitioner contends that—as a result of error (software or human)—Petitioner’s counsel’s computer software marked the claims as completed even though they were not. A matter marked completed, according to the evidence, indicates the claim has been submitted. While Petitioner did not allege any computer program error when he submitted his applications to submit a late claim to Respondents, Petitioner’s counsel did specify it was staff error with regard to calendaring with no mention of a computer error.

Petitioner’s evidence of mistake, inadvertence, surprise and/or excusable neglect is thin, but there is a sufficient showing. It appears Petitioner’s counsel believed—based on a notation made on his calendaring software program—the required government claims had been timely submitted. Given that any doubts with the application should be resolved in favor of the Petitioner, the court finds Petitioner met his burden under the petition. (Viles v. Californiasupra, 66 Cal.2d at 28-29.) While Petitioner’s counsel’s explanation could have been more thorough, he has established a calendaring error likely committed by his staff. That calendaring error resulted in Petitioner’s late claim.

The City’s claim of prejudice is not persuasive. Petitioner has provided a report from the Police Division of the Los Angeles World Airports explaining the events in sufficient detail to allow the City to defend the action. The report provides the name of the officer who prepared the report and witnessed the injury. The report identifies the location of Petitioner’s fall and (perhaps) the mechanism of the fall. Thus, the City was on notice of the event just after it occurred and presumably took whatever action was necessary to its defense of the matter.

The State’s claim of prejudice is similar to that of the State in that it has not been able to investigate the claims. The Police Division report, however, provides all parties with evidence to defend against the action. (In fact, the State claims no liability here and provides evidence of same.)


Based on the foregoing, the petition is GRANTED.


October 9, 2020                                                                     ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court

[1] Petitioner has since dismissed Respondent County of Los Angeles.

[2] All further statutory references are to this code unless otherwise noted.

[3] It appears, although it is not entirely clear, Petitioner’s counsel’s staff entered the due date in a computer calendaring program. (May 29 Yaghoubtil Decl., ¶ 2.)