Case Number: BS146310    Hearing Date: July 29, 2014    Dept: 82

Leslie Linet
v.
Los Angeles City College; Los Angeles Community College District; Board of Trustees of Los Angeles City College District; and Does 1 through 100, inclusive

Tentative Decision on Petition: Denied

Petitioner Leslie Linet seeks leave to present a late claim against Respondents Los Angeles City College, Los Angeles Community College District, and the Board of Trustees of Los Angeles City College District, (collectively the “Community College”), arising out of the Community College’s termination of Petitioner from its nursing program.

After reading and considering the filings, the Court renders the following decision:

Statement of the Case

Petitioner has not submitted a declaration or any other evidence detailing the incidents giving rise to her underlying claim against the Community College. Thus, the following background facts are drawn from Petitioner’s unverified petition.

On May 23, 2011, Petitioner was accepted into the Community College’s nursing program. On November 22, 2011, one of Petitioner’s professors temporarily suspended Petitioner from her clinical rotations due to the professor’s concerns about Petitioner’s use of anti-anxiety medicine. On November 23, 2011, Petitioner was removed from all of her classes in the nursing program after her professor submitted a write-up outlining her concerns about Petitioner’s drug use to the college’s administrators. The following day, the college provided Petitioner with a remediation plan.

Petitioner allegedly completed her remediation plan on February 6, 2012. However, on February 15, 2012, the Community College’s administrators refused to allow Petitioner to return to the nursing program without first completing additional tests, assignments, and lab hours.

On May 29, 2012, Petitioner filed a claim with California’s Victim Compensation and Government Claims Board (“Claims Board”). (See Quintilone Decl., ¶ 4, Exhibit B). On June 11, 2012, the Claims Board sent Petitioner a letter denying her claim on the basis that the Claims Board lacked jurisdiction to handle the claim because the Community College is not a state agency. (Id., ¶ 4, Exhibit B). The denial letter also states that Petitioner’s May 29, 2012 claim listed the date of the underlying incident as December 5, 2011. (Id., ¶ 4, Exhibit B).

On September 27, 2013, Petitioner’s counsel submitted a claim for damages with the Community College. (Quintilone Decl., ¶ 3, Exhibit A). The October 2, 2013 claim form listed the date of the incident giving rise to Petitioner’s claim as February 6, 2012. (Id., ¶ 3, Exhibit A). On October 4, 2013, the Community College denied Petitioner’s claim as untimely. (Id., ¶ 3, Exhibit C).

On October 23, 2013, Petitioner’s counsel sent the Community College a letter requesting leave to file a late claim with the college. (Quintilone Decl., ¶ 5, Exhibit C). On December 6, 2013, the Community College denied Petitioner’s request for leave to file a late claim. (Id., ¶ 6, Exhibit D).

On December 11, 2013, Petitioner her petition for relief from Government Code section 946.6’s claim-filing requirement.

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 her 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’s claim submitted to the Community College on September 27, 2013 states that her claim accrued on February 6, 2012. (Quintilone Decl., ¶ 3, Exhibit A). Although Petitioner’s claim filed with the Claims Board and her petition provide for two different accrual dates (December 5, 2011 and February 15, 2012, respectively), as shown below, Petitioner’s claim is time-barred under Government Code section 911.4 regardless of which of the three accrual dates the Court applies.

2. Petitioner’s Late-Claim Request was Untimely

On September 27, 2013, Petitioner submitted a claim to the Community College. (Quintilone Decl., ¶ 3, Exhibit A). Her claim was denied on October 4, 2013. (Id., ¶ 3, Exhibit C). On October 23, 2013, Petitioner sent the Community College a late-claim request, which was denied on December 6, 2013. (Id., ¶¶ 5-6, Exhibits C and D).

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.

Petitioner filed her late-claim application more than one year after the accrual of her potential cause of action against the Community College: Petitioner’s claim accrued on February 6, 2012 and she did not file her late-claim request until October 23, 2013. Even if the Court assumes Petitioner’s claim accrued on February 15, 2012, when the Community College allegedly refused to readmit Petitioner to its nursing program, Petitioner’s claim with the Community College would also have been filed more than one year after its accrual date.

Petitioner has presented no evidence demonstrating that Government Code section 911.4’s one-year limitation began to run after the date her claim accrued. Additionally, the fact that Petitioner did not retain counsel and did not ascertain that the Community College was the correct agency with which she was required to file her claim does not excuse her failure to file her claim within one year. Such mistake would only be taken into consideration to excuse Petitioner’s untimely filing of her claim had she submitted her late-claim application within one year of the date her claim accrued. Brandon G., supra, 111 Cal.App.4th at p. 34; see also Gov. Code, § 911.4. Because Petitioner failed to do so, the Court lacks jurisdiction to grant the relief Petitioner seeks. Munoz, supra, 33 Cal.App.4th at p. 1779.

In any event, even if Petitioner had filed her late-claim request within one year of the date her claim accrued, she has failed to meet her burden of proof to obtain relief from the Government Claims Act’s filing requirements. In seeking relief from Government Code section 945.4, 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. Here, Petitioner has presented absolutely no evidence to support her argument that her failure to file a timely claim was reasonable. While Petitioner argues that her failure to timely file her claim against the Community College was reasonable because she was not represented by counsel during the time she was required to file her claim, there is no evidence to support this argument. That is, Petitioner has not provided the Court with her own declaration verifying that she was not represented by counsel when she filed her claim with the Claims Board or explaining why she failed to timely file her claim with the Community College. The declaration of her attorney, who admittedly was not involved in her initial attempts to file her claim, does not suffice to establish that Petitioner’s failure to timely file her claim was the result of Petitioner’s
mistake, inadvertence, surprise or excusable neglect.

Disposition

The petition to present a late claim is denied.