Pending - Other Pending
Personal Injury - Other Personal Injury
GEORGINA T. RIZK
LOS ANGELES CITY OF
DOES 1 TO 20
TOFER & ASSOCIATES
GILLESPIE EVELYN R. DEPUTY CITY ATTY
7/11/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
9/26/2017: PROOF OF SERVICE SUMMONS
10/10/2017: ANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL
1/15/2019: Notice of Ruling
12/28/2018: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)
12/26/2018: Minute Order
DocketNotice of Ruling; Filed by Nicholas Villa (Plaintiff)[+] Read More [-] Read Less
Docketat 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Continued - Stipulation[+] Read More [-] Read Less
Docketat 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Continued - Stipulation[+] Read More [-] Read Less
Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Los Angeles, City Of (Defendant)[+] Read More [-] Read Less
Docketat 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Held - Continued[+] Read More [-] Read Less
DocketMinute Order ((Final Status Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketAnswer; Filed by Los Angeles, City Of (Defendant)[+] Read More [-] Read Less
DocketANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by Nicholas Villa (Plaintiff)[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
DocketComplaint; Filed by Nicholas Villa (Plaintiff)[+] Read More [-] Read Less
Case Number: ****7895 Hearing Date: December 03, 2020 Dept: 29
Villa v. City of Los Angeles
Plaintiff’s Petition for Relief From Government Code Section 945.4 Requirements is DENIED. (Gov. Code ; 946.6). Demurrer to Plaintiff’s Complaint Filed by Defendant Los Angeles Unified School District is SUSTAINED WITHOUT LEAVE TO AMEND.
In this action Plaintiff Nicholas Villa alleges he slipped and fell on a city sidewalk adjacent to Orville Wright Middle School in Los Angeles. Plaintiff sued Defendant and on March 27, 2020, amended the complaint to substitute Los Angeles Unified School District as Doe 1. LAUSD demurrers on the ground that Plaintiff failed to comply with the claims presentation requirement and on the ground that Plaintiff was not genuinely ignorant of LAUSD’s identity at the commencement of the litigation. Plaintiff, in turn, has filed a petition, pursuant to Government Code section 946.6, to be relieved from the claims filing requirement under section 945.4 of the Government Code.
I. Petition Pursuant to Government Code section 946.6
“Subject to exceptions listed in Government Code section 905, before suing a public entity, the plaintiff must present a timely written claim for damages to the entity.” (Rubenstein v. Doe No. 1 (2017) 3 Cal. 5th 903, 906, as modified on denial of reh'g (Nov. 1, 2017).) “Compliance with the claim requirement is a condition precedent to suing the public entity.” (Id.) The claim must be presented “not later than six months after the accrual of the cause of action.” (Gov. Code, ; 911.2, subd. (a).) “A plaintiff may apply for leave to present a late claim (Gov. Code, ; 911.4, subd. (a)), but only if the application is presented “within a reasonable time not to exceed one year after the accrual of the cause of action.” (Gov. Code, ; 911.4, subd. (b).)” (Rubenstein, supra, at 906.)
“If an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4.” (; 946.6, subd. (a).) “The petition shall show each of the following: (1) That application was made to the board under Section 911.4 and was denied or deemed denied; (2) The reason for failure to present the claim within the time limit specified in Section 911.2; (3) The information required by Section 910.” (; 946.6, subd. (b).)
“The court shall relieve the petitioner from Section 945.4 if the court finds that the [application to file a late claim] was made within a reasonable time not to exceed [one year after the accrual of the cause of action] and that . . . the following is applicable: [¶] (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 section 945.4 .” (; 946.6, subd. (c)(1).) “The court shall make an independent determination upon the petition.” (; 946.6, subd. (e).)
Thus, in order to obtain relief under section 946.6, the petitioner must show that he or she made a timely application for leave to present a late claim to the government entity. (See, e.g., Reyes v. County of Los Angeles (1988) 197 Cal. App. 3d 584, 590 [“[B]efore a court may relieve a potential plaintiff of the claim requirement of section 945.4, the plaintiff must demonstrate, inter alia, the application to the public entity for leave to file a late claim was presented within a reasonable time, not to exceed one year after the accrual of the cause of action.”]) The incident at issue here occurred on December 11, 2015. Plaintiff submitted his application for leave to file a late claim to the City on July 28, 2020, over four and a half years after the incident.
Plaintiff argues that the application was not untimely because Plaintiff allegedly did not discover that LAUSD was responsible for his injury until shortly before he submitted his application to present a late claim. As previously noted, the outside limit of the period for which the application must be submitted is “one year after the accrual of the cause of action.” (Gov. Code, ; 911.4, subd. (b).)
“Accrual of the cause of action for purposes of the government claims statute is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants. (Gov. Code, ; 901....).” (Rubenstein v. Doe No. 1 (2017) 3 Cal. 5th 903, 906.) “The general rule for defining the accrual of a cause of action sets the date as the time when, under the substantive law, the wrongful act is done,” or the wrongful result occurs, and the consequent liability arises....” In other words, it sets the date as the time when the cause of action is complete with all of its elements.” (Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 397).
A delayed discovery rule may apply under limited circumstances when a plaintiff has not discovered and has no reason to discover the cause of action. (Id.) Importantly, however, the plaintiff may discover, or have reason to discover, the cause of action even if he or she does not suspect, or have reason to suspect, the identity of the defendant. (Id. at 399). “That is because the identity of the defendant is not an element of any cause of action. [citation omitted.] It follows that failure to discover, or have reason to discover, the identity of the defendant does not postpone the accrual of a cause of action . . . .”
Accordingly, under binding Supreme Court authority, any cause of action cause of action against LAUSD accrued at the time of the injury, not when the Plaintiff purportedly discovered the identity of the Defendant. Under section 911.4, the outside limit for submitting an application for leave to file a late claim was December 11, 2016. Since the application was not submitted by that time, Plaintiff is not entitled to relief under section 946.6.
Plaintiff has presented no authority that would support a conclusion that the time to present an application under section 911.4 is somehow tolled until Plaintiff discovered or had reason to discover that LAUSD was the responsible party. But even if that were the law, Plaintiff would not meet that standard. Plaintiff’s counsel has presented no evidence that would support a finding that Plaintiff or counsel could not have discovered the identity of LAUSD within the one-year statutory period.
Based on these reasons alone, the Petition must be denied. The court need not reach the question of whether the failure to timely present the claim was through “mistake, inadvertence, surprise, or excusable neglect.” But even if the court were to reach that question, the court would find that Plaintiff has not established that the failure to submit the claim in a timely manner was the result of such factors. In evaluating mistake or neglect, the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal. 3d 270, 275.) The burden is on the moving party to make the showing. Plaintiff has provided no evidence showing that a reasonably prudent person would not have determined that the LAUSD was a culpable party. Plaintiff has provided no evidence regarding an investigation that was done or any facts bearing on the question. The deposition testimony that Plaintiff presents in no way establishes that a reasonably prudent person would not have discovered that LAUSD was responsible.
Finally, LAUSD would undoubtedly be prejudiced by relieving Plaintiff of the claims filing requirements here. The incident happened five years ago. LAUSD first got notice of the incident when the Doe Amendment was served, close to four-and-a-half years after the incident. Any ability to investigate the incident would necessarily be hampered due to the passage of time.
In sum, the court DENIES the petition under section 946.6.
Subject to certain exceptions, a plaintiff is required to submit a government claim prior to filing suit against a public entity. (Gov. Code ; 905.) A plaintiff may not file an action until a claim is made and rejected. In personal injury cases, the claim must be presented to the government entity within six months of the date of accrual of the case of action. (Gov. Code ; 911.2.)
A plaintiff may allege compliance with the claims requirements by including a general allegation that he or she timely complied with the claims statute. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236.) Here, the complaint alleges in paragraph 9 that “plaintiff is required to comply with claims statute, and has complied with the applicable claims statutes.” That allegation is sufficient to meet the general pleading standard.
However, in ruling on a pleading motion, “[a] court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) “When judicially noticed facts contradict the conclusory allegations of the complaint, those allegations may be disregarded. (Intengan v. BAC Home Loans Servicing, LP (2013) 214 Cal. App. 4th 1047, 1055.) Accordingly, “[i]f a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the government entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity’s records do not show compliance.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 376.)
Here, Defendant contends that the judicially noticeable facts demonstrate that Plaintiffs did not submit timely claims. The court takes judicial notice of the following facts that are confirmed by LAUSD’s claims files as described in the Declaration of Toni Tosello: Plaintiff did not present a Claim for Money for Damages to LAUSD, a public entity; Plaintiff presented an Application to Present a Late Claim Application to LAUSD, a public entity, on July 28, 2020; LAUSD rejected Plaintiff’s Application to Present a Late Claim presented on July 28, 2020 in a written notice dated and mailed to the address indicated on the claim form on August 5, 2020. Moreover, Plaintiff did not obtain relief from claims presentation requirements prior to filing the complaint.
Thus, the demurrer must be sustained. Further, given the court’s denial of the petition for relief from the claims presentation requirement, leave to amend is denied.
Moving party is ordered to give notice.
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