VARINA CARVAJAL VS LOS ANGELES UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION, ET AL.

Tentative Rulings

Case Number: *******4170    Hearing Date: March 03, 2021    Dept: 55

CARVAJAL v. LAUSD BOARD OF EDUCATION *******4170

Hearing Date: 3/3/21, Dept. 55

#7: PETITION FOR ORDER RELIEVING PETITIONER FROM PROVISIONS OF GOVERNMENT CODE SECTION 945.4.

Notice: Okay

Opposition

MP:  Petitioner

RP: Respondent

Summary

On 12/18/20, Plaintiff VARINA CARVAJAL filed a Petition for relief as to a late government claim, alleging:  Petitioner's civil claims would be based on causes of action for negligence, gross negligence, breach of mandatory duty, fraudulent concealment/failure to disclose, assault, battery, false imprisonment, and 42 U.S.C. section 1983, which occurred on or around May 8, 2019.  Respondents had a legal obligation and a duty to warn Petitioner of and protect Petitioner from the violent tendencies of the students she was teaching and the harmful environment. Petitioner was attacked by the students she was there to teach whom had a history of violence known to Respondents.  On 6/23/20, the public entity denied Petitioner’s late claim. MP Positions

Moving party requests relief from a late government claim, on grounds including the following:

· Petitioner suffered serious injuries, including traumatic brain injury, and was physically and mentally incapacitated for the year following the incident. As soon as Petitioner was physically and mentally able, she retained counsel for a civil action. Cal. Gov't Code ; 946.6.

· Although Petitioner failed to present a claim within the six-month time limit under Government Code section 910, it was through excusable neglect, because Petitioner was physically and mentally incapacitated for the year following the incident.

· With the reply, Petitioner has filed her declaration, and that of expert Dr. Jan Merman, neurologist.

· In addition to dealing with her previously known symptoms of head trauma, only after she consulted with Dr. Merman, and realized that she had long-lasting symptoms of a traumatic brain injury, did she realize that she should file a lawsuit against her employer, LAUSD.

RP Positions

Opposing party advocates denying, on bases including the following:

· Petitioner has failed to meet her burden of proof.

· She previously filed a workers compensation claim, and retained an attorney to file an Application for Adjudication of Claim with the Workers Compensation Appeals Board, which negates a claim for relief on grounds on physical or mental capacity. Garcia v Los Angeles Unified Sch. Dist., 173 7 CA3d 701, 707 (1985) (public employee's ability to file administrative complaint showed mental incapacity did not prevent petitioner from presenting timely government claim).

· The alleged incapacity must be supported by physician declarations and, with the initial Petition, Petitioner has offered no physician declarations, nor has she even offered her own declaration, which by itself would be insufficient to establish a physical or mental incapacity (see, Harrison v County of Del Norte, 168 3 CA3d 1 (1985); Lutz v Tri-City Hosp., 179 CA3d 807 (1986)).

Tentative Ruling

The petition is granted.

The Court finds both excusable neglect, and mental incapacity.

Petitioner’s commencing Workers Compensation differs from the subsequent evaluation of a civil action, and does not necessarily demonstrate mental ability to accomplish the separate event of making a government as to a civil claim, or prior knowledge starting accrual of the Statute of Limitations as to a civil cause of action.

“[D]elayed accrual is justified on the basis that the expertise expected of professionals is beyond the ability of laypersons to evaluate,....” Shively v. Bozanich (2003) 31 Cal. 4th 1230, 1248. [Emphasis added.] “ ‘[W]hen personal injury is suffered [w]ithout perceptible trauma and by silent and insidious impregnation as a consequence of the act or omission of another, who knows, or is charged with the responsibility of knowing that such act or omission may result in personal injury, and the injured person is unaware of the cause of his injury, and as a reasonably prudent and intelligent person could not, without specialized knowledge, have been made aware of such cause, no action for a tort resulting from such cause begins to accrue until the injured person knows or by the exercise of reasonable diligence should have discovered the cause of such injury.’ ” Frederick v. Calbio Pharmaceuticals (1979) 89 Cal.App.3d 49, 58-59 (“if plaintiffs have adequately alleged facts excusing their delayed discovery of the negligent cause of their decedent's death, their claim is not barred by the one-year period commencing with his death.”). [Emphasis added.]

“The court must grant the petition [for relief from the claims requirement] if it determines that the petitioner applied to the public entity for relief under section 911.4 within a reasonable time not exceeding one year after the cause of action accrued, that the application was denied or deemed denied by operation of law, and that one of the following is true: (1) the failure to present a timely claim was due to mistake, inadvertence, surprise, or excusable neglect, and the public entity has not established that it would be prejudiced in its defense if the court relieved the petitioner from the claim filing requirement;…” Ovando v. County of L.A. (2008) 159 Cal.App.4th 42, 63-64.

“[A]ny doubts should be resolved in favor of granting relief [from the claim filing requirement]…. Consequently, where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief, denial of relief constitutes an abuse of discretion….In light of the policy considerations underlying section 946.6, a trial court decision denying relief will be scrutinized more carefully than an order granting relief.” Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.

“ ‘Excusable neglect has been defined as neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.’… 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.’ ” Barragan v. County of L.A. (2010) 184 Cal.App.4th 1373, 1382-83.

“The showing required of a petitioner seeking leave to file a late claim on these grounds is the same as that required by Code of Civil Procedure section 473 for relieving a party from default judgment.” People ex rel. Dept. of Transportation v. Sup.Ct. (2003) 105 Cal.App.4th 39, 43-44. Accord Munoz v. State of Cal. (1995) 33 Cal. App. 4th 1767, 1778.

For purposes of calculating time limits for a government claim, the date of action accrual is the same date of accrual pursuant to the applicable statute of limitations. Loehr v. Ventura County Cmty. College Dist. (1983) 147 Cal. App. 3d 1071, 1078.