2013-00148990-CU-PT

Cindy Ann Paul vs. City of Citrus Heights

Nature of Proceeding: Petition for Relief from Claim Requirement

Filed By: Gilbeau, Terry L.

The petition pursuant to Government Code §946.6 for relief from the claim filing
requirement set forth in Government Code §945.4 is DENIED, as follows. According to the petition, petitioner’s claim against the City of Citrus Heights (“City”)
arises out of an incident which occurred on 9/23/2012 when she was told her son had
died and his body was being transported to the morgue. (Not. of Hrg. & Petition, p.2:5-
7.) However, when petitioner arrived at the hospital, she learned her son was still alive
but despite medical efforts, he died shortly thereafter on 9/24/2012. Over seven (7)
months later, petitioner submitted on 4/30/2013 a government tort claim to the City
which alleged in pertinent part that petitioner “began to experience symptoms of
severe emotional distress” in “mid-November 2012,” although the claim states that
petitioner was emotionally “numb and distant” in the first two months after her son’s
death on 9/24/2013.

On 5/3/2013, petitioner’s tort claim was denied by the City as untimely in light of the 6
month limitations period specified in Government Code §911.2. On 5/9/2013,
petitioner submitted an application for leave to present a late claim pursuant to
Government Code §911.4. The application stated that the petitioner’s claim “is
founded on a cause of action for negligence which accrued on [9/22/2012]” and that
the reason for the delay in presenting the claim was the mistake, inadvertence,
surprise and/or excusable neglect of the petitioner. Although the application to present
a late claim indicated that petitioner’s mistake, inadvertence, surprise and/or excusable
neglect was shown more fully in petitioner’s supporting declaration, that declaration
made no meaningful showing other than to assert in conclusory terms, “At the recent
urging of friends, I recently sought legal advice concerning my experience.” (Paul Decl.
dated 5/8/2013, ¶22.) Petitioner’s application for leave to present a late claim was
denied by the City on 5/14/2013.

The present petition for relief from the claim filing requirement set forth in Government
Code §945.4 was filed on 8/20/2013. The petition now argues that relief should be
granted because petitioner’s original tort claim was timely filed or because any delay
was caused by petitioner’s counsel’s mistake or negligence. The petition alternatively
argues that relief is warranted because the delay was caused by petitioner’s own
mistake, inadvertence, surprise and/or excusable neglect.

The City opposes the petition, arguing first that petitioner’s cause of action accrued on
9/23/2012 and not on the later November 2012 date when petitioner claims to have
first experienced emotional symptoms. More specifically, the City maintains that
petitioner cannot rely on the delayed discovery rule here in order to show her original
tort claim was timely because she admittedly knew she had been misinformed about
her son’s death on 9/23/2012. Additionally, the City asserts petitioner’s counsel’s
attempt to characterize the failure to timely file a tort claim as the result of his own
mistaken belief that petitioner’s cause of action did not accrue until she began to
experience symptoms of emotional distress in “mid-November 2012” is not borne out
by the record since petitioner stated under oath on 5/8/2013 that she “recently sought
legal advice” and since petitioner’s counsel stated under oath that he advised
petitioner to file a claim “immediately.” (Gilbeau Decl. dated 7/1/2013, ¶6.) According
to the opposition, this evidence establishes that petitioner’s counsel’s conduct did not
play any role in the failure to timely submit a tort claim to the City but even if the Court
finds it did, counsel’s alleged mistake as to when the six month period commenced
was neither reasonable nor excusable. Finally, the City insists petitioner has not
presented evidence sufficient to establish any statutory grounds for relief from the
claim presentation requirements in Government Code §945.4. In particular, the
opposition contends petitioner has not presented any evidence which shows that her failure to timely file a tort claim with the City was the result of any mistake,
inadvertence, surprise or excusable neglect. Instead, although petitioner says she
was emotionally “numb and distant” in the first two months after her son’s death on
9/24/2013 and then began to have symptoms of “severe emotional distress” in “mid-
November 2012,” petitioner fails to explain her failure to take any action suggesting
diligent pursuit of her claim against the City or her failure to seek legal until late April
2013, after the six month limitations period had already expired. Likewise, petitioner
has failed to competently establish any legal incapacity which might otherwise toll any
applicable limitations period.

At the outset, the Court must agree with the City that petitioner’s cause of action here
accrued no later than 9/23/2012, when she learned she had been misinformed about
her son’s death. Petitioner’s alleged delay in experiencing symptoms in November is
of no legal consequence her for several reasons, not the least of which is her
admission that she had other symptoms of emotional distress in the form of being
“numb and distant” in the months preceding November 2012. Additionally, the petition
itself indicates that the underlying claim against the City arises out of an incident which
occurred on 9/23/2012 when she was told her son had died and his body was being
transported to the morgue. (Not. of Hrg. & Petition, p.2:5-7.) Consequently, the
delayed discovery rule plays no role here but even if it did, petitioner has failed to
establish not only her reasonable diligence in pursuing her claim against the City but
also her inability to discover her injury despite reasonable diligence. For all these
reasons, the Court rejects petitioner’s arguments both that her cause of action did not
accrue until mid-November and that her original tort claim filed on 4/30/2013 was
timely.

Since petitioner’s cause of action accrued on 9/23/2012 and since she failed to file her
tort claim within the six months specified by Government Code §911.2, petitioner was
relegated to the provisions of Government Code §911.4 which requires in pertinent
part that a written application to present a late claim be submitted 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.” (Gov. Code
§911.4(a), (b).) There is in this case no dispute that petitioner filed an application less
than one year after her cause of action accrued on 9/23/2012 and that her failure to
timely present her tort claim to the City was the result of her own mistake,
inadvertence, surprise and/or excusable neglect, essentially that she delayed in
seeking “legal advice concerning my experience.” (Paul Decl. dated 5/8/2013, ¶22.)

Having had her application to file a late claim denied, petitioner must now proceed
pursuant to Government Code §946.6 which permits in certain circumstances relief
from §945.4’s claim-filing requirement. In order to obtain relief under §946.6, petitioner
must demonstrate by a preponderance of the evidence both that (1) the application to
the public entity to present a late claim was filed within a reasonable time (not to
exceed one year) after the accrual of the cause of action and that (2) the failure to file
a timely claim was due to mistake, inadvertence, surprise or excusable neglect. (Dept.
of Water v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) The City does not
dispute that petitioner met the first prerequisite but instead argues only that petitioner
cannot satisfy the second. However, the Court must set forth the following discussion
of what is and what is not sufficient to obtain relief under §946.6.

“The mere recital of mistake, inadvertence, surprise or excusable neglect is not
sufficient to warrant relief. Relief on grounds of mistake, inadvertence, surprise
or excusable neglect is available only on a showing that the claimant’s failure to
timely present a claim was reasonable when tested by the objective ‘reasonably
prudent person’ standard. The definition of excusable neglect is defined as
‘neglect that might have been the act or omission of a reasonably prudent
person under the same or similar circumstances.’ (Ebersol v. Cowan (1983) 35
Cal. 3d 427, 435.)

There must be more than the mere failure to discover a fact; the party seeking
relief must establish the failure to discover the fact in the exercise of reasonable
diligence. (Munoz v. State of California (1995) 33 Cal. App. 4th 1767, 1783.)
The party seeking relief based on a claim of mistake must establish he was
diligent in investigating and pursuing the claim (Bettencourt v. Los Rios
Community College Dist. (1986) 42 Cal. 3d 270, 276) and must establish the
necessary elements justifying relief by the preponderance of the evidence. (
Santee v. Santa Clara County Office of Education (1990) 220 Cal. App. 3d 702,
717.)

The decision to grant or deny a petition for relief is within the sound discretion of
the trial court but that discretion is not unfettered. It must be exercised in
conformity with the spirit of the law. (Bettencourt v. Los Rios Community
College Dist., supra, 42 Cal. 3d at p. 275.) The general policy favoring trial on
the merits cannot be applied indiscriminately so as to render ineffective the
statutory time limits. (Trailmobile, Inc. v. Superior Court (1989) 210 Cal. App. 3d
1451, 1455-1456.)” (Dept. of Water, at 1293 (emphasis added).)

The Court now turns to the merits of the present petition.

As noted above, petitioner’s primary contention with respect to the second prerequisite
for relief under Government Code §946.6 is that petitioner’s tort claim was not timely
due to her counsel’s mistake or negligence. The mistake or negligence identified is
counsel’s opinion that petitioner’s cause of action did not accrue until she experienced
symptoms of severe emotional distress” in “mid-November 2012.” (Petitioner’s Memo.
P&A, p.3:19-21.) While the Court agrees that counsel’s “opinion” as to when the
cause of action accrued was mistaken and/or negligent, petitioner has not shown by a
preponderance of the evidence that this “opinion” had any causal connection role in
the failure to submit a timely tort claim to the City. First, as noted above, petitioner
admitted under oath in her 5/8/2013 declaration in support of her application to present
a late claim that she had “recently” been urged by friends to seek legal advice. (Paul
Decl. dated 5/8/2013, ¶22.) Second, petitioner’s counsel admitted under oath in his
7/1/2013 declaration in support of the present petition that after meeting with his client
he advised her to “immediately” file a tort claim with the City. (Gilbeau Decl. dated
7/1/2013, ¶6.) Third, this tort claim was “immediately” filed with the City on 4/30/2013.
Fourth, Given that petitioner’s cause of action actually accrued on 9/23/2012, her tort
claim against the City was due on or about 3/23/2013 (i.e., within six months). Based
on this evidence, the Court cannot conclude it was more likely than not that counsel’s
mistaken “opinion” caused or even contributed the tort claim to be filed untimely.
Instead, the only reasonable conclusion to be drawn from the evidence now before the
Court is that the tort claim was not timely submitted as a result of petitioner’s own
failure to seek legal advice until shortly before 5/8/2013, the date of her declaration,
and more specifically, shortly before the tort claim was actually filed on 4/30/2013,
given counsel’s advice to file a claim “immediately.” Therefore, petitioner has failed to
meet her burden of showing by a preponderance of the evidence that counsel’s mistaken “opinion” actually caused or contributed to the failure to submit a timely tort
claim to the City.

Moreover, even if the Court were to conclude that counsel’s mistaken “opinion”
somehow caused or contributed to the delay in the tort claim, such mistake does not
pass “the objective ‘reasonably prudent person’ standard” set forth above. This
conclusion is reinforced by the fact that petitioner’s counsel failed to demonstrate the
requisite reasonable “diligence” in investigating and pursuing the claim. Because
counsel’s alleged mistake was neither reasonable nor excusable, it cannot justify
granting relief pursuant to Government Code §646.6.

The sole remaining ground for this petition is that petitioner’s own mistake,
inadvertence, surprise and/or excusable neglect led to the delay in filing the tort claim
with the City. However, the opposition correctly points out that petitioner’s evidence
fails to affirmatively establish any specific “mistake, inadvertence, surprise or
excusable neglect” and fails to affirmatively establish any “mistake, inadvertence,
surprise or excusable neglect” which caused or contributed to the failure to timely file a
tort claim. The sum and substance of the evidence from petitioner is that she took no
action whatsoever regarding her claim until shortly before 5/8/2013, when her friends
urged her to seek legal advice. These purported facts are insufficient to satisfy “the
objective ‘reasonably prudent person’ standard” set forth above and effectively confirm
petitioner acted without reasonable “diligence” in investigating and pursuing her claim.
Accordingly, petitioner has not demonstrated any right to relief from the claim filing
requirement pursuant to §946.6.

Since petitioner failed to show by a preponderance of the evidence not only that any
mistake, inadvertence, surprise and/or excusable neglect by either petitioner or her
counsel caused or contributed to the delay in filing the tort claim but also that any
mistake, inadvertence, surprise and/or excusable neglect by either petitioner or her
counsel meets the applicable reasonably prudent person standard set forth in Dept. of
Water v. Superior Court, the present petition must be and hereby is denied in its
entirety.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)