Case Number: BS147851    Hearing Date: August 08, 2014    Dept: 91

Plaintiff’s Petition for Leave to Present Late Tort Claim, filed on 3/28/14, is DENIED. Plaintiffs have not met their burden of establishing that their failure to timely file the government claim was the result of mistake, inadvertence, surprise or excusable neglect. § Gov Code § 945.4.

Plaintiff had six months from accrual to file a government claim. Gov Code § 911.2 There is no dispute that Plaintiff did not file a timely claim. Plaintiff may petition the City for leave to present a late claim within a reasonable time, not to exceed one year after accrual. The one year period expired on 4/2/14. Plaintiff’s application to the City was timely submitted on 12/20/13 pursuant to Gov Code § 911.4.

The court may grant relief from claims presentation requirements if it finds that the application to the City was made within a reasonable time under § 911.4 and failure to present a timely claim was due to mistake, inadvertence, surprise or excusable neglect. Gov Code 946.6

The court considers “the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim [citations omitted]. In examining the mistake or neglect, the court inquires whether ‘a reasonably prudent person under the same or similar circumstances” might have made the same error [citations omitted]. In addition, [unless] inexcusable neglect is clear, the policy favoring trial on the merits prevails.” ( Elston, supra, 38 Cal.3d at p. 235.)” Bettencourt v. Los Rios Community College Dist., 42 Cal. 3d 270, 276 (Cal. 1986).

Plaintiffs have not proffered any evidence to establish that the failure timely file a claim was the result of mistake, inadvertence, surprise or excusable neglect, or that Defendant Paris concealed his relationship with the City. The City’s evidence establishes that the van being driven by the Defendant was a marked City vehicle. Opposition, Ex. A. Defendant Paris declares that he did identify himself as a City employee. Defendant waited for a police officer. He informed the police officer that he was a City employee. Defendant was wearing his City custodial uniform at the time of the accident marked with a picture of City Hall on the top sleeve. He had his City I.D. around his neck. Declaration of Paris. The police report indicates that the City of Los Angeles is the owner of the van. RJN, Ex. D.

Nor have Plaintiffs provided any evidence that they acted diligently in investigating or pursuing the claim. Plaintiffs indicate they did not get DMV records identifying the City until 11/27/13. However, the police report itself identifies the City as the owner.