Case Number: BS173198 Hearing Date: June 13, 2018 Dept: 7

[TENTATIVE] ORDER RE: PETITION FOR LEAVE TO FILE ACTION; PETITION GRANTED

I. BACKGROUND

On April 10, 2018, Petitioner Dessalegn Alemu (“Petitioner”) filed this Petition for Leave to File an Action against Respondents County of Los Angeles (“County”) and Eugene Frank Mac Isaac (“Isaac”) for injuries relating to an October 12, 2016 automobile accident. Petitioner failed to timely file a government claim and seeks relief from the requirements of Government Code section 945.5 based on the mistake of his attorney.

II. LEGAL STANDARDS

Prior to filing a suit against a public entity, a plaintiff must comply with the Government Tort Claims Act, which states, in part: “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 therefor 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. Code, § 945.4)

A claim for death or injury to person or personal property shall be presented not later than six months after the accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) When a claim required to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim. (Gov. Code, § 911.4, subd. (a).) The application shall be presented to the public entity within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application. (Gov. Code, § 911.4, subd. (b).)

If an injured party who has failed to timely file a claim has submitted a written application to the public entity for leave to present such claim and the application has been denied, the injured party may petition to the court for relief from the claim requirements. (Gov. Code, § 946.6, subd. (a); Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1777.) The petition shall be filed within six months after the application to the board is denied or deemed denied pursuant to Section 911.6. (Gov. Code, § 946.6, subd. (b).)

The court shall relieve the petitioner from the requirements of Section 945.4 and grant the petition under Section 946.6, subdivision (c) if the petitioner demonstrates by a preponderance of the evidence the application to the public entity under Section 911.4 was made within a reasonable time not exceeding one year after the accrual of the cause of action and was denied or deemed denied, and that one or more of the following is applicable: (1) the failure to present the claim was due to mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim, (2) the person who sustained the injury was a minor during all of the time specified in Section 911.2 for presentation of the claim, (3) the person who sustained the injury was physically or mentally incapacitated during all of the time specified in Section 911.2 and failed to present a claim by reason of that disability, or (4) the person who sustained the injury died before the expiration of the time specified in Section 911.2. (Gov. Code, § 946.6, subd. (c); Munoz, supra, 33 Cal.App.4th at p. 1778.) A petitioner may not successfully argue excusable neglect when she fails to take any action in pursuit of the claim within the six-month period. (Id., at 1778-1779.)

III. DISCUSSION

The subject accident occurred on October 12, 2016. Petitioner alleges Isaac, an employee of County and driving a county vehicle in the course and scope of his employment, rear-ended Petitioner’s vehicle. On October 16, 2016, Petitioner retained attorney George Aldrich (“Aldrich”). (Declaration of George Aldrich, ¶ 1.) Aldrich declares that he believes he opened a claim with County in November 2016, but due to his lack of records, including a returned letter, email confirmation, or copy of the claim, he assumes the claim was started and not mailed or processed by County. (Aldrich Decl., ¶ 7.) Aldrich further explains that a close family friend died from complications with cancer in February 2017 and that he was in Iowa for services immediately after. (Aldrich Decl., ¶¶ 10, 11.) Then, on April 6, 2017, his brother passed away after battling dementia and liver disease. (Aldrich Decl., ¶ 12.) Counsel states that due to the deaths in his family in quick succession and inadvertence in not calendaring the six-month claim deadline, he inadvertently failed to file the government claim pursuant to Section 911.2. (Aldrich Decl., ¶ 13.)

On September 1, 2017, Girma Gebriel (“Gebriel”) substituted as counsel for Petitioner. (Aldrich Decl., ¶ 14; Declaration of Girma H. Gebriel, ¶ 2.) On October 3, 2017, Gebriel filed an application to present the late claim to County. (Gebriel Decl.,¶ 8; Exh. 2.) On October 11, 2017, the application for leave to present a late claim was denied. (Exh. 3.) On April 10, 2018, Petitioner filed this Petition for Leave to File an Action.

In opposition, Respondents argue Petitioner has not met her burden of showing mistake or excusable neglect. Respondents contend Aldrich committed inexcusable neglect by failing to timely file the government claim after being provided all the pertinent information. Respondents contend there was lack of diligence and complete neglect of Petitioner’s case for eleven months, which cannot be grounds for relief from the requirements of Government Code section 946.6.

Respondents also argue that if the Petition is granted, they will be prejudiced by being “thrust into a lawsuit, a year and half after the accrual of the cause of action, and be forced to incur the exorbitant fees and costs associated with litigation.” (Opposition, 6:15-17.) Respondents contend County will be deprived of the opportunities to conduct an early investigation of Petitioner’s claim and consider early settlement to save in litigation fees and costs.

The Court is not persuaded thta Respondents’ substantial rights will be prejudiced. While County did not conduct an early investigation, there is no indication it cannot now conduct an investigation or that key pieces of evidence are unavailable. Further, costs of litigation do not establish prejudice.

The Court finds Petitioner’s application for leave to present the late claim was filed on October 3, 2017, within one year of the accrual of the cause of action, and the application was denied by the Board on October 11, 2017. Petitioner filed this Petition on April 10, 2018, within the six-month deadline to file a petition for relief. The Court finds the failure to timely file the government claim was due to the excusable neglect of Petitioner’s prior counsel, George Aldrich. Excusable neglect is 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.) Aldrich declares the death of two close family members in quick succession and inadvertence in calendaring caused his neglect of Petitioner’s case and failure to file the government claim. The Court finds this omission might be expected of a prudent person under similar circumstances.

Further, in Reply, Petitioner argues that even if Aldrich’s actions are determined to be inexcusable neglect, Petitioner should not suffer, as she was diligent in providing all pertinent information to Aldrich within days of the accident. Petitioner argues her own excusable neglect in relying on her attorney to properly file the claim is a basis for relief from the requirements of Section 946.6.

IV. CONCLUSION

In light of the foregoing, the Petition for relief from the requirements of Government Code section 945.4 is GRANTED. Petitioner is ordered to file his proposed Complaint within fifteen (15) days of the date of this Order.

Moving party to give notice.