2012-00130257-CU-DF

Jamie Yvonne Barnes vs. Ca State University, Sacramento

Nature of Proceeding:   Motion to Stay and Dismiss Petition for Relief from Government Claims

Filed By:  Garza, Andreas O.

Defendant Board of Trustees of California State University (“Board’s”) motion to stay
and dismiss petition for relief from Government Claims Act is denied.

Board’s requests for judicial notice of the August 1, 2013, order declaring Plaintiff
Jamie Barnes to be a vexatious litigant and the demurrer it filed which was heard and
sustained without leave to amend on November 26, and the order sustaining the
demurrer is granted.

Petitioner was declared to be a vexatious litigant on August 1, 2013.  (RJN Exh. A.)                The “clerk of the court may not file any litigation presented by a vexatious litigant
subject to a prefiling order unless the vexatious litigant first obtains an order from the…
presiding judge permitting the filing.”  (CCP § 391.7(c).)  If the “clerk mistakenly files
the litigation without the order, any party may file with the clerk and serve…on the
plaintiff…a notice stating that plaintiff is a vexatious litigant subject to a prefiling
order…The filing of the notice shall automatically stay the litigation.  The litigation shall
be automatically dismissed unless the plaintiff within 10 days of the filing obtains an
order from the…presiding judge permitting the filing of the litigation.  (Id.)

Section 391.7(a) only prohibits a vexatious litigant from filing new litigation without prior
permission and only where the litigant is unrepresented by counsel.  (Shalant v. Giradi
th
(2011) 51 Cal.4   1164, 1168.)  “By its terms, the statute and orders made pursuant to
it apply only to the vexatious litigant’s filing of new litigation.”  (Id. at 1172 [emphasis in
original].)

Here, Plaintiff filed a “motion for relief from claim statute” in the instant action.  Board
claims that to obtain relief from the Government Claims Act, Plaintiff was required to
file a petition for a court order under Government Code § 946.6 which it asserts can
only done in a separate action which would constitute new litigation.  It reasons that
Plaintiff is seeking to avoid the prefiling order by filing the instant motion in this case.
However, as seen above, Section 391.7 only applies to the “filing of new litigation” not
anything filed in the instant action which was commenced before Plaintiff was declared
a vexatious litigant.  While Board may believe that she should have filed her “motion”
as a petition in a new action, and that the relief requested in her motion is not available
because she failed to do so, the fact remains that Plaintiff filed the “motion” in the
instant litigation and the clerk did not mistakenly file any new litigation.  Thus there is
no occasion for the Court to invoke Section 391.7(c) to stay the “motion” and dismiss it
if Plaintiff does not obtain an order from the presiding judge allowing her to file the
motion.

The motion is denied.

This minute order is effective immediately.  No formal order pursuant to CRC rule
3.1312 or other notice is required.

Item   6      2012-00130257-CU-DF

Jamie Yvonne Barnes vs. Ca State University, Sacramento

Nature of Proceeding:      Motion for Relief from Claim Statue

Filed By:   Barnes, Jamie

Motion for Relief from Claims Requirements under Government Code section 911.4 is
denied.

The motion is unopposed.  The proof of service of the motion reflects personal service
on the Attorney General’s office on October 28, 2013. On October 14, 2013 defendant
filed a “request for stay” in lieu of opposition.  This motion was continued to this date to
be heard in conjunction with the motion to dismiss.

The Court is ruling on the motion even though it is unopposed, however, at defendant’s
request the court will continue the motion if the defendant wishes to submit an              opposition.

If an application for leave to present a late claim is denied or deemed to be denied
pursuant to Section 911.6, a petition may be made to the court for an order relieving
the petitioner from Section 945.4. . . (b) The petition shall show each of the following:
(1) That application was made to the board under Section 911.4 and was denied
or deemed denied.  (2) The reason for failure to present the claim within the time limit
specified in Section 911.2.  (3) The information required by Section 910. Gov Code §
946.6.

Plaintiff filed her Complaint on August 20, 2012 without having complied with the
Government Claims Requirements.  Plaintiff alleges that she suffered injuries on the
following dates: February 10, 2009, July 9, 2011, June 27, 2012, January 15, 2013,
March 8, 2013, March 25, 2013, September 16, 2013, September 20, 2013, and
October 11, 2013. Defendant has filed two demurrers since the Complaint was filed
raising the defense of failure to comply with the claims filing requirement.

Plaintiff requests relief from the claims filing requirement, relying on Government Code
section 911.4.  However, to emphasize,  that code section requires the claimant to
apply to the public entity, not the court, for leave to file a late claim.  Unless plaintiff
follows the procedure under 911.4 within the applicable time parameters, she cannot
bring a motion or petition for relief from the claims filing requirements under
Government Code section 946.6.  The application to present the late claim must be
made to the public entity within one year after accrual of the claim, otherwise the court
has no jurisdiction to grant relief in a late claim petition under Gov Code section 946.6.
Santee v Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713.

Plaintiff has presented no admissible evidence that she has filed timely late claim
applications with the public entity pursuant to Gov. Code 911.4. No declaration was
filed in support of this motion.  However, the Court has reviewed the Declaration filed
in support of her ex parte appointment scheduled for 9:15 a.m. on October 30, 2013.

As to the claims that occurred within the last six months, plaintiff is  not precluded from
complying with the government claims act.  As to the claims accruing within the last
year, but more than six months ago, plaintiff is not precluded from applying with the
public entity for leave to file a late claim

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