2017-00223747-CU-PT

Marcie M. Pompei vs. Board of Supervisors Co. of Sacramento

Nature of Proceeding: Petition for Order Relieving Petitioner

Filed By: Pompei, Marcie M.

The Petition for Relief from Section 945.4 (late tort claim relief) is DENIED.

A self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. ( Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247; see also Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984.)

The Govt. Code (Tort Claims Act) requires that an action for monetary damages cannot be maintained against a public entity unless a plaintiff has first presented a written claim to the public entity. Govt. Code sec. 905, 945.4. For claims involving injury to a person, claims must be presented to the public entity within six months of the accrual of the cause of action Govt. Code sec. 911.2(a). Failure to present the claim is a bar to the cause of action. In other words, the Act requires the timely presentation of a written claim for money or damages directly to a public entity, and the rejection of that claim, as a condition precedent to a tort action. (§§ 911.2, 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 .)

If an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition for relief from the tort claim requirements of Govt. Code, sec. 945.4 may be made to the Court. Govt. Code § 946.6 requires that the court shall make an independent determination upon the petition. The determination shall be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.

In order to obtain relief, the injured party generally must establish facts which would have entitled him or her to have the late-claim application granted by the governing board of the public entity. (§ 946.6, subd. (c).) (1) In ruling on a claim-relief petition, the “court shall make an independent determination upon the petition. The determination shall be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.” (§ 946.6, subd. (e).) Where no testimony is received, the trial court may rule on the basis of the petition and any declarations. (Santee v. Santa Clara County Office of Educ. (1990) 220 Cal. App. 3d 702, 708-709.) To be clear, in order to show mistake, inadvertence, surprise, or excusable neglect under the statute, the moving party must prove, by a preponderance of the evidence, (Shaddox v. Melcher (1969) 270 Cal. App. 2d 598) that his or her conduct was that of a reasonably prudent person under similar circumstances. People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal. App. 4th 39. It is not shown by the mere failure to discover a fact until it is too late; the party seeking relief must establish that in the exercise of reasonable diligence, he or she failed to discover it. Id.

In tandem with this, § 946.6(c) provides, in pertinent part: that “The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is

applicable:” [emphasis added]

“(1) 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 if the court relieves the petitioner from the requirements of Section 945.4.” Govt. Code § 946.6(c)

Here, although a Petition, Memorandum of Points and Authorities and “Declaration” has been filed and served, no admissible evidence has been presented of “mistake, inadvertence, surprise or excusable neglect”. The moving party petitioner has presented no admissible evidence at all. (Code Civ. Proc., § 2015.5.)

Therefore the Petition for Relief from Section 945.4 (late tort claim relief) is denied.