Case Number: BS142746    Hearing Date: September 02, 2014    Dept: 82

Charles Hansen
v.
City of Los Angeles; City of Los Angeles Transit Services; City of Los Angeles Department of Transportation; and Michael Richard Conley.

Tentative Decision on Petition: Denied

Petitioner Charles Hansen seeks leave to present a late claim against Respondents City of Los Angeles, City of Los Angeles Transit Services, City of Los Angeles Department of Transportation, and Michael Richard Conley, arising out of an accident where Petitioner was allegedly struck on the head by the protruding right front-side mirror of a bus. The Petition is denied for the reasons that follow.

Statement of the Case

Here, Petitioner has not submitted a declaration and the Petition is unverified. The only declaration is from Petitioner’s counsel, Ramin Peyman. Thus, the following background facts are drawn from the unverified Petition, the Peyman declaration, and the exhibits attached to Peyman’s declaration.

On May 2, 2012 at 11:20am, at the intersection of Avalon Blvd. and Anaheim St., Petitioner was struck on the head by the protruding right front-side mirror of a bus operated by Respondents and driven by Respondent Conley. (Petition, ¶1; Peyman Decl., ¶32, Exhibit 4). After the accident, Petitioner was transported to a hospital for treatment. (Petition, ¶1).

Petitioner first consulted with his counsel of record on October 29, 2012. (Peyman Decl., ¶24). Due to Petitioner’s alleged struggle with alcohol addiction, and having failed to make any notes or other means of recording the details of the incident, Petitioner was unable to provide the specific date, time, and place of the incident. (Peyman Decl., ¶24). At another meeting with counsel on November 1, 2012, Petitioner or his counsel concluded that the incident occurred on May 12, 2012. (Peyman Decl., ¶25). As such, Petitioner’s counsel submitted a Claim for Damages with the City Clerk on or about November 6, 2012. (Peyman Decl., ¶25, Exhibit 1).

On November 13, 2012, the City sent Petitioner’s counsel a letter acknowledging receipt of the Claim. (Peyman Decl., ¶26; Exhibit 3). On November 20, 2012, the Office of the City Attorney Claims Unit sent a letter requesting that it be provided with “the address and/or location of the loss.” (Peyman Decl., ¶26; Exhibit 2).

On December 20, 2012, Petitioner’s counsel received medical records and charts which showed the date of the incident was actually on May 2, 2012. (Peyman Decl., ¶27). Petitioner’s counsel also obtained a copy of the traffic collision report from the incident which confirmed that the date of the incident was May 2, 2012. (Peyman Decl., ¶32, Exhibit 4).

Summary of Applicable Law

Government Code section 911.2(a) states that “a claim relating to a cause of action for death or for injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action.” If written notice of the board’s action or inaction (which amounts to a rejection) on the claim is tendered pursuant to section 913, the claimant has 6 months from the time the written notice is personally delivered or deposited in the mail to file suit against the public entity. Gov. Code § 945.6(a)(1).

If a claimant fails to make a claim within six months pursuant to Government Code section 911.2, the claimant may make a written application to the board of the public entity for permission to present a late claim within a reasonable time but not to exceed one year from the accrual of the cause of action. Gov. Code § 911.4(a)-(b). If, pursuant to the provisions of Government Code section 911.6, the board denies the application to present a late claim, the claimant may petition the Court for relief from the requirements of Government Code section 945.4. Gov. Code § 946.6(a).

Government Code section 946.6(b) requires that the petition to the Court must show each of the following: (1) that the late claim application made to the board was denied or deemed denied; (2) the reason for failure to present the claim within six months of the accrual of the cause of action; and (3) the contents of the claim as required by Government Code section 910. The petition must be filed within six months after the application to present a late claim to the board was denied or deemed to be denied. Id.

Under Government Code section 946.6(c)(1), the Court shall relieve the petitioner from the requirements of section 945.4 if the failure to 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. Once the petitioner makes a sufficient showing of mistake, inadvertence, surprise or excusable neglect, the relief shall be allowed “unless the public entity pleads and proves prejudice to the defense of the claim by reason of the late filing.” See Moore v. State of California, (1984) 157 Cal.App.3d 715, 726.

The court makes an “independent determination upon the petition.” Gov. Code § 946.6(e). The Petitioner bears the burden of proving by a preponderance of the evidence that the application was made within a reasonable time and that one of the statutory requirements under Government Code section 946.6(c) was met. Drummond v. County of Fresno, (1987) 193 Cal.App.3d 1406, 1410. Under section 946.4(e), the trial court must make its determination upon the petition, “relying upon any affidavits in support of, or in opposition to, the petition and any additional evidence received at hearing on the petition.” Ebersol v. Cowan, (1983) 35 Cal.3d 427, 431.

Analysis

1. Accrual of Petitioner’s Cause of Action

The Court must first consider when Petitioner’s cause of action accrued in order to determine whether his application to present a late claim was timely. “As a general rule, a statute of limitations accrues when the act occurs which gives rise to the claim . . . that is, when ‘the plaintiff sustains actual and appreciable harm.’ Any ‘manifest and palpable’ injury will commence the statutory period.” Costa Serena Owners Coalition v. Costa Serena Architectural Committee, (2009) 175 Cal.App.4th 1175, 1195-96. Generally, a tort action “accrues” upon occurrence of the last fact essential to the cause of action. See Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208-209. Here, Petitioner admits that his claims against Respondents accrued on May 2, 2012. (Petition, ¶2; Peyman Decl., ¶32, Exhibit 4).

2. Timeliness of Petitioner’s Claims

Government Code section 911.2(a) states that “a claim relating to a cause of action for death or for injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action.” If a claimant fails to make a claim within six months pursuant to Gov. Code section 911.2, the claimant may make a written application to the board of the public entity for permission to present a late claim within a reasonable time but not to exceed one year from the accrual of the cause of action. Gov. Code § 911.4(a)-(b) (emphasis added). “The court . . . lacks jurisdiction to grant relief if the application to file a late claim was filed more than one year after the cause of action accrued.” Brandon G. v. Gray, (2003) 111 Cal.App.4th 29, 34 (emphasis added).

“Filing a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition . . . [and] [w]hen the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under Government Code section 946.6.” Munoz v. State of California, (1995) 33 Cal.App.4th 1767, 1779. Gov. Code § 946.6(b) requires that the petition to the Court must show each of the following: (1) that the late claim application made to the board was denied or deemed denied; (2) the reason for failure to present the claim within six months of the accrual of the cause of action; and (3) the contents of the claim as required by Gov. Code § 910.

On November 8, 2012, the City Clerk’s Office received Petitioner’s Claim for Damages. (Peyman Decl., ¶25, Exhibit 1). As stated in the Petition, “the time for timely presentation of [Petitioner’s] claim against Respondent expired on November 2, 2012.” (Petition, ¶2). However, as pointed out by the City, Petitioner never filed an application to present a late claim. Indeed, as of the date of this hearing, September 2, 2014, the time for Petitioner to file an application to present a late claim expired on May 2, 2013. As such, the Court lacks jurisdiction to grant the requested relief. Further, Petitioner has failed to submit competent and admissible evidence in support of his request.

Disposition

The Petition is denied.

IT IS SO ORDERED.