2018-00226737-CU-PT

Dalwinderjit Kaur vs. State of California DMV

Nature of Proceeding: Petition to Relieve Petitioner from the Requirements of Government

Filed By: Arnold, Jeffrey C.

Petitioner Dalwinderjit Kaur’s (“Petitioner”) amended petition for relief from the requirements of Government Code § 945.5 is GRANTED.

The claim here arises from a vehicle collision that occurred on April 28, 2017, where

Petitioner was rear-ended by a vehicle owned by the respondent, State of California Department of Motor Vehicles (“Respondent”) and operated by one of the Respondent’s employees.

Petitioner is an immigrant from India, speaks limited English, and has a limited understanding of the American justice system. (Laskin Decl. ¶ 4.)

Following the collision, Petitioner retained the services of the Mann Law Firm. (Kaur Decl. ¶ 4.) She forwarded all communications addressed to her to her attorney at the firm. (Kaur Decl. ¶ 5.) In or around August of 2017, the Mann Law Firm terminated the attorney-client relationship. (Kaur Decl. ¶ 6.) The Mann Law Firm informed Petitioner she should attempt to resolve the claim on her own and that she had two years to file a lawsuit. (Kaur Decl. ¶ 6.)

Petitioner then contacted her friend and insurance agent, Jack Kandola, believing he could help her with her legal issue. (Kandola Decl. ¶ 3.) Mr. Kandola reached out to Kim Clark, a Department of General Services (“DGS”) Risk Analyst, and informed her that he would be assisting Petitioner with her claim. (Kandola Decl. ¶ 6.) Ms. Clark informed Mr. Kandola that a claim must be presented to the State within six months of accrual of the cause of action. Mr. Kandola then provided Ms. Clark with medical records and wage loss documentation. (Kandola Decl. ¶ 7.) Ms. Clark then offered around $6,000 to resolve the claim. Mr. Kandola believed the submission of documents along with the offer to resolve the matter from the State was sufficient to present a claim within the six month requirement. Mr. Kandola was unaware that a formal claim with specific legal requirements was required. (Kandola Decl. ¶ 7.) It was not until the six month time period had elapsed that Mr. Kandola became aware that the information submitted was insufficient to present a claim. (Kandola Decl. ¶ 7.)

After Petitioner learned the six month period had expired, she contacted her current counsel for assistance. (Arnold Decl. ¶ 7.) Petitioner presented an application to submit a late Government Tort Claim to DGS on December 15, 2017. (Arnold Decl. ¶ 8, Exh. A.) The claim was denied on January 31, 2018. (Arnold Decl. ¶ 10, Exh. C.)

Petitioner previously moved for relief from the requirements of Government Code § 945.5. Petitioner’s original petition was denied without prejudice on September 17, 2018. Petitioner has now filed an amended petition for relief.

Petitioner seeks leave to file a late claim based upon mistake and excusable neglect. Petitioner contends she is an immigrant from India and her native language is Punjabi. She speaks limited English and has a limited understanding of the American legal system. She reasons she acted as a reasonably prudent person would have in the same or similar circumstances. Petitioner contends she consulted an attorney, her attorney then withdrew from representation, told her she should resolve the claim on her own and that she had two years to file a lawsuit. Unable to understand English, Petitioner then consulted her friend and insurance agent Mr. Kandola (who speaks English and Punjabi) for assistance and believed her claim was being handled by him. Mr. Kandola also believed he had submitted a “claim” because he submitted documents and received a settlement offer from Ms. Clark.

The Government Tort Claims Act requires that an action for monetary damages cannot be maintained against a public entity unless a plaintiff has first presented a written claim to the public entity. (Govt. Code §§ 905, 945.4.) For claims involving injury to a person, claims must be presented to the public entity within six months of the accrual of the cause of action. (Govt. Code § 911.2(a).) Failure to present the claim is a bar to the cause of action. In other words, the Act requires the timely presentation of a written claim for money or damages directly to a public entity, and the rejection of that claim, as a condition precedent to a tort action. (Gov’t Code §§ 911.2, 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)

If the claim is not timely presented, the claimant may file a written application with the public entity, seeking leave to present the late claim. (Gov. Code § 911.4.) The application must be made within a reasonable time, not to exceed one year after the accrual of the cause of action. (Gov. Code § 911.) If the public entity denies the application, California law allows the claimant to file a petition with the court for relief from the claims presentation requirement. (Gov. Code § 946.6.) Pursuant to Government Code § 911.6, a claim is denied by operation of law if the public entity fails or refuses to take action on an application within the 45 day after it is presented.

Petitioner mailed her application on December 15, 2017. DGS rejected Petitioner’s late claim application on January 31, 2018. (Arnold Decl. ¶ 10, Exh. C.)

Respondent contends the amended petition is untimely because it was not filed within six months after the application was denied on January 31, 2018. Respondent contends while the first petition was timely filed, this amended petition was not filed until October 9, 2018, long past the six month deadline set forth in section 946.6(b). Pursuant to Gov. Code § 946.6, subsection (b), “the petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.” The six-month time period is mandatory. (City of San Diego v. Superior Court (2015) 244 Cal.App.4th 1, 9.)

Here, however, the first petition was timely and the Court denied that petition without prejudice, inviting Petitioner to correct the deficiencies in her first timely petition and submit additional evidence to support her claim for relief. Denial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial.” (Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015 [emphasis in original].) Accordingly, the Court finds that the amended petition is not untimely and should not be denied on such a technical basis.

Respondent then argues Plaintiff’s late claim application was not based upon mistake, inadvertence, surprise, or excusable neglect.

Respondent first argues that Petitioner’s first lawyer’s delay in submitting a timely government claim is not excusable neglect. Respondent argues Ms. Clark informed the Mann Law Firm in May of 2017 of the six-month statute of limitations, but it appears the Mann Law Firm made a legal determination that Petitioner could not successfully litigate a personal injury action against the State and suggested she deal with the State’s insurance carrier herself. (Opp. at 7:27-8: 3.) Respondent cites to Mitchell v. Department of Transportation (1985) 163 Cal.App.3d 1016, 1021-1023, a case in which the plaintiff’s first attorney was found to have made a legal determination not to file a government claim. Here, however, there is no evidence that such a conscious determination was made. Respondent simply makes this assumption. The evidence instead is that Petitioner was represented by the Mann Law Firm for approximately four months, but then their relationship broke down (for undisclosed reasons) and the Mann Law Firm withdrew from representation. There is insufficient evidence to determine the Mann Law Firm made a specific legal determination regarding whether or not it was prudent to file a government claim on Petitioner’s behalf. Accordingly, this argument is rejected.

Next, Respondent argues the Mann Law Firm advised Petitioner that if she decides to further pursue her claim, she should immediately consult and retain an attorney, but Petitioner failed to do so, which is inexcusable. (Kaur Decl. Exh. A.) However, the letter from the Mann Law Firm terminating the relationship did not provide such a clear statement. The letter stated in full:

“This will confirm my understanding that you do not want to proceed with your injury case. Considering minimal injuries, I believe you can simply speak to the other party’s insurance and resolve any issues directly with them for any damages. Attached is a copy of the letter from the other driver’s representative.’ No further work will be done on your file.

Please note that if you decide to further pursue your case, you must file a lawsuit with the court within [t]wo years from the date of the accident. Failure to comply with such statutory deadlines can bar your recovery for your injuries and other damages. Therefore, if you decide to further pursue your claim, you should immediately consul and retain an attorney of your choice.” (Kaur Decl. Exh. A.)

As can be seen, the letter makes no mention whatsoever regarding the six-month deadline to file a claim. There is also no other evidence indicating the Mann Law Firm ever informed Petitioner of this deadline, even if Ms. Clark informed the Mann Law Firm of the deadline. Further, the letter was written and provided in English, Petitioner’s second language. While Petitioner indicates her brother-in-law helped her understand the contents of the letter, she declares her understanding of the communication was that she was being told she should attempt to resolve her claim with the state on her own and contact the other party’s insurance company, not that she should immediately retain other counsel. Thus, there is evidence Petitioner was misled by the Mann Law Firm as to the amount of time she had to file a lawsuit, leading to her delay in filing a government claim.

Further, even though Petitioner did not retain new legal counsel, she did diligently pursue further assistance by way of contacting her friend and insurance agent, Mr. Kandola, who speaks English and Punjabi, to assist her in resolving the claim on her own. Petitioner declares she believed this to be an appropriate course of action given the information she was given by the Mann Law Firm. Thereafter, Mr. Kandola also did pursue Petitioner’s claim on her behalf, submitted medical records and wage loss documents to Ms. Clark, and even received a settlement offer from Ms. Clark. This is not a case where Petitioner failed to take any action whatsoever in pursuit of her claim.

Based on the record before it, the Court is persuaded Petitioner has met her burden to establish mistake, inadvertence, surprise, and excusable neglect. Petitioner retained counsel and provided them will all the information and documents she received from the State, all of which were in English. After her attorney withdrew and suggested she may be able to handle the matter on her own or had two years to file a lawsuit, Petitioner sough the assistance of Mr. Kandola who could understand English and Punjabi. Mr. Kandola then made a mistake. However, Petitioner, an immigrant whose native language is not English acted with reasonable prudence in following the advice of counsel and attempting to resolve the claim on her own.

The burden thus shifts to Respondent to demonstrate it would be prejudiced if the Court grants relief. (Gov. Code § 946.6(c)(1).) Respondent contends it will be prejudiced because if this matter proceeds, it may cost more to resolve. This is insufficient to justify denial of relief. Respondent has not shown the delay would substantially impair its ability to present a full and fair defense on the merits.

Petitioner’s motion for relief from the requirements of Government Code § 945.5 is GRANTED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.