David Castillo vs. Comcast Corporation
Nature of Proceeding:
Filed By:
Petition for Relief from GC 945.4 and for Leave to File Cross-Complaint
Bigley, Paul A.

Defendant Comcast of Sacramento I, LLC’s Petition for Relief from Govt. Code, sec. 945.4 and for Leave to File Cross-complaint against SMUD is GRANTED.

This action arises out of a January 18, 2011 bicycle accident that occurred as Plaintiff David Castillo was riding on Fruitridge Road. Plaintiff alleges he struck an unsheathed guy wire tethering a nearby utility pole to an eye bolt protruding from the cement in the middle of the sidewalk, causing him to fly off his bicycle and sustain serious injuries.

Plaintiff alleges it was dark at the time of the accident, and that he did not see the wire stretching across the sidewalk.

Plaintiff named Comcast and others as defendants in this action, but did not include Sacramento Municipal Utility District (SMUD) as a party.

Through the instant petition, defendant Comcast seeks an order relieving it from the requirements of Government Code §945.4 as to proposed cross-defendant SMUD on a cross-complaint for comparative equitable apportionment and indemnification.

Pursuant to Govt. Code §911.2, a claim relating to a cause of action for death or injury to a person or to personal property or growing crops must be presented to the public entity no later than six months after the accrual of the cause of action, and 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. (Govt. Code §911.2(a).)

Counsel for Comcast declares that his client was served with Plaintiff’s complaint on Jan. 16, 2013. Counsel for Comcast identified SMUD as the owner of the pole at issue, but no date is given for that discovery. In reply, counsel asserts that it commenced service of its subpoena on SMUD in June 2013.

In a related action, Sacramento Superior Court Case no. 2012-121715, Plaintiff Castillo contacted SMUD in August 2011, claiming SMUD was responsible for his injuries. Plaintiff filed a petition for relief of the claim filing requirement on August 20, 2012, which was denied by the Court (J. Chang).

Comcast filed this petition pursuant to Govt. Code §946.6, which provides that a claimant may, within six months of denial of an application for leave to file a late claim, petition the superior court for an order relieving it from the claim-filing requirements of §945.4. “The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of section 911.4 [one year] and was denied…and that one or more of the following is applicable: (1) the failure to present the claim was though mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim…” (CCP §946.6(c)(1).)

Comcast contends that its failure to discover that SMUD was responsible for the guy wire was the result of its “mistake, inadvertence, surprise, or excusable neglect.” Comcast contends that on Oct. 28, 2013, it served a subpoena duces tecum on SMUD for production of the records relating to the utility pole. Counsel declares that “as soon as counsel was able to so identify SMUD” as the owner of the utility pole, counsel issued its subpoena.

In opposition, SMUD contends that Comcast is not entitled to relief from the requirements of Government Code §945.4 . It points to the complaint, and evidence from a related action Sacramento Superior Court Case no. 2012-121715, in which Comcast does not appear to be a party, in which the Court held on Sept. 18, 2012, that Plaintiff did not diligently pursue his claims based on the January 18, 2011 accident.

SMUD here presents evidence that Plaintiff knew of SMUD’s potential involvement by at least August 3, 2011, when Plaintiff contacted SMUD by phone and claimed SMUD was responsible for his injuries.

SMUD contends the evidence and Court ruling in the other action undermines Comcast’s assertion that it did not learn of SMUD’s potential responsibility until recently.

Additionally, SMUD contends that it will suffer prejudice if Comcast is permitted relief from the claim filing requirement. SMUD presents evidence that its policy and procedure is to immediately investigate the scene of any incident giving rise to a claim of liability against SMUD, and that had it timely received Comcast’s claim, it would have investigated the property at the time of the incident and taken measures to preserve evidence. (Miller Decl. ¶¶2,10.) SMUD contends that because it did not timely receive notice of Comcast’s claim, two years and eight months has passed since the accident, which hindered SMUD’s ability to ascertain the condition of the scene at the time of the incident. (Miller Decl. ¶10.)

However, based upon the telephonic notice of plaintiff’s contention that SMUD was responsible received in August 2011, the Court does not accept SMUD’s contention that it did not have notice and an opportunity to investigate the cause of accident until receipt of formal notice of claim from Comcast.

Based on the foregoing, Comcast’s petition for relief from the requirements of Government Code §945.4 is granted.

Comcast may have leave to file and serve the Cross-complaint against SMUD. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.