MEHRAN ABAIAN v. CITY OF LOS ANGELES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Plaintiff and appellant Mehran Abaian filed a petition pursuant to Government Code section 946.6 ¹ for relief from filing a late claim against defendant and respondent City of Los Angeles (City), a public entity.   Abaian appeals from the trial court's order denying his petition.   We affirm because Abaian failed to establish that his failure to present a timely claim was the result of mistake, inadvertence, surprise, or excusable neglect.

BACKGROUND

Abaian operated Joseph's Place, a business that sells clothing at wholesale.   On September 24, 2009, Abaian filed a claim for damages with the County of Los Angeles (County) for clothing that was damaged on March 27, 2009, by water flooding into Abaian's warehouse.   The claim stated that the location of the incident was “406 West Pico Blvd., Los Angeles, CA 90015.”   The location of the incident is also listed on the claim as Abaian's address.   The claim purports to be executed by Abaian.

On December 14, 2009, Abaian filed with City an application for permission to present a late claim pursuant to section 911.4, with the proposed claim.   Abaian's counsel submitted a declaration in support of the application stating that his office assisted in the preparation of the September 24, 2009, claim and that it was submitted erroneously to County instead of to City because his office mistakenly “gave [Abaian] the wrong information regarding the location of the subject incident.”   In addition, Abaian submitted a declaration stating that he had filed the claim with County and that he had no experience with filing claims against governmental entities.   The proposed claim was substantially the same as the claim filed with County on September 24, 2009.   The proposed claim stated that the location of the incident was “406 West Pico Blvd., Los Angeles, CA 90015,” the same location listed on the claim filed with County.   Abaian's business address was again listed on the proposed claim as the location of the incident.

On March 24, 2010, Abaian filed a petition with the trial court pursuant to section 946.6 for relief from filing a late claim against City. Abaian alleged in the petition that City did not act on the December 10, 2009, application within 45 days of it being filed and, therefore, pursuant to section 911.6, City was deemed to have denied it.   Abaian's counsel submitted a declaration in support of the petition stating that the claim had been submitted erroneously to County instead of to City because his office “inadvertently provided the wrong information to [Abaian] regarding the location incident, leading to his filing with the wrong jurisdiction.”   On June 1, 2010, the trial court denied the petition, finding that there was an insufficient showing of mistake or inadvertence, and that the claim was untimely.

DISCUSSION

A.  Standard of Review

A trial court has broad discretion to grant or deny a petition for relief under section 946.6 and its determination will not be disturbed on appeal absent an abuse of discretion.  (People Ex. Rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 44.)   A trial court abuses its discretion when it exceeds the bounds of reason by making a determination that is arbitrary, capricious, or patently absurd.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

B. Legal Principles

No suit for money may be brought against a governmental entity for personal injury, death, or damage to personal property or crops unless a formal claim has been presented to such entity and the claim has been rejected. (§ 945.4; ²  see Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.)   The claim must be presented to the governmental entity “not later than six months after the accrual of the cause of action.” (§§ 911.2, subd. (a),³ 915, subd. (a).⁴ )

Section 911.4 provides relief for claimants who fail to present a claim within the six-month statutory period by enabling them to file with the public entity “within a reasonable time not to exceed one year after the accrual of the cause of action” an application for leave to present a late claim.   The application must state the reason for the delay. (§ 911.4, subds.(a) and (b).⁵ )  The public entity has 45 days within which to act on an application for permission to file a late claim, otherwise the application is deemed denied by operation of law. (§ 911.6, subd. (c).⁶ )

If the public entity denies the late claim application, section 946.6, subdivision (a) ⁷ authorizes the claimant to petition the trial court for relief from the claim requirements set forth in section 945.4.  “The petition shall be filed within six months after the application ․ is denied or deemed to be denied ․“ (§ 946.6, subd. (b).)  The trial court must grant the petition under section 946.6, subdivision (c) if the claimant demonstrates by a preponderance of the evidence that 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 claimant from the requirements of section 945.4. (§ 946.6, subd. (c)(1);  see also Munoz v. State of California, supra, 33 Cal.App.4th at p. 1777.)  “Normally, a complaint for damages against a public entity may not be filed until the public entity acts on a timely claim or, where the claim was not timely and an application for leave to present a late claim is denied, until a court grants the claimant relief from the requirements of the Tort Claims Act. (§§ 945.4, 946.6.)”  (Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817, 827.)

C. Relief from Filing Late Claim

Abaian argues that the trial court erred in denying his petition based on the court's finding that he made an insufficient showing of mistake or inadvertence.   Abaian contends he established that his failure to present a timely claim was the result of his attorney's mistake, inadvertence, and neglect.   We disagree.

“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 [one year after the accrual of the cause of action] ․ and that one or more of 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 the requirements of Section 945.4.” (§ 946.6, subd. (c).)  “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.”  (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.)   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.)

“ ‘[T]he showing required for relief under section 946.6 because of mistake, inadvertence, surprise, or excusable neglect is the same as required under Code of Civil Procedure section 473 for relieving a party from a default judgment [citation].’  [Citation.]” ⁸  (Han v. City of Pomona (1995) 37 Cal.App.4th 552, 557;  see also Viles v. State of California (1967) 66 Cal.2d 24, 29.)   In applying this standard, the court in Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152 (Shank ) stated, “it is not every mistake that will excuse a default, the determining factor being the reasonableness of the misconception.  (Black v. County of Los Angeles (1970) 12 Cal.App.3d 670, 675 [91 Cal.Rptr. 104].)   This principle likewise applies to excusable neglect, which is ‘ “that neglect which might have been the act of a reasonably prudent person under the same circumstances.” ’  (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 476 [58 Cal.Rptr. 249, 426 P.2d 753].)”  (Shank, supra, 139 Cal.App.3d at p. 157.)   The court in Shank explained that, “ ‘It is not the purpose of remedial statutes to grant relief from defaults which are the result of inexcusable neglect of parties or their attorneys in the performance of the latter's obligation to their clients.’   (Tammen v. County of San Diego, supra, 66 Cal.2d 468, 478.)”  (Shank, supra, 139 Cal.App.3d at pp. 157.)

Abaian's counsel attempted to support Abaian's petition by declaring that the claim was timely submitted to County instead of City because his office “inadvertently provided the wrong information to [Abaian] regarding the location of the incident.”   This declaration is vague and is susceptible to two reasonable interpretations.   First, it may be interpreted to mean Abaian's counsel provided to Abaian an incorrect address where the incident occurred.   Second, the declaration also may be interpreted to mean Abaian's counsel incorrectly advised him Abaian the claim should be filed with County instead of with City. Regardless of how the declaration is interpreted, there were no facts in the record to explain how the mistake proximately caused Abaian to file erroneously the claim with County instead of with City. Although the record established that Abaian filed the claim with County, there was no evidence that Abaian relied on the claimed erroneous information in filing the claim with the wrong governmental entity.

Even if the record supported the conclusion that the error by Abaian's counsel proximately caused the claim to be filed with the wrong governmental entity, Abaian's counsel failed to establish the reason for his error so a determination may be made whether “ ‘a reasonably prudent person under the same or similar circumstances' would have made the same error.”  (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at p. 276.)   There is no evidence in the record from which it may be determined whether Abaian and his attorney acted diligently in investigating the claim and obtaining the correct information regarding the location of the incident.   Abaian said he dealt with the City. He gave no explanation as to why he filed the claim with the County.   There may be such an explanation, but he failed to provide it to the trial court.   Abaian did not say he relied upon his counsel.   And his counsel did not say he told Abaian to file with the County.⁹  Abaian's attorney did not provide any information as to how the error occurred.   Again, there may be such information.   It was not provided to the trial court.

Abaian argues that the trial court erred in denying his petition because relief was mandatory under Code of Civil Procedure section 473, subdivision (b), even where the attorney's neglect was inexcusable.¹⁰  Although the petition asserts that Abaian's application made to City pursuant to section 911.2 was supported by a “Declaration of Counsel pursuant to Code of Civil Procedure § 473,” the petition is expressly made pursuant to section 946.6, not Code of Civil Procedure section 473.   Also, an “Attorney's affidavit of fault [pursuant to the mandatory provisions of Code of Civil Procedure section 473, subdivision (b) ] does not entitle [a] party to relief from [the] claim-filing requirement under the Government Claims Act or excuse [a] late filing of a claim.”  (Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 2010) ¶ 5:300.26, pp. 5-79 to 5-80, citing Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65;  see also Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927, 933.)

Abaian also contends that City did not establish that it would suffer any prejudice if Abaian were granted relief under section 911.4.   City, however, “has no burden of establishing prejudice arising from the failure to file a timely claim until after [the plaintiff] has made a prima facie showing of entitlement to relief.  [Citations.]”  (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1297.)   Abaian did not make such a prima facie showing.

Abaian further argues that City was estopped from asserting that Abaian's claim was late because Abaian notified City of the incident when it occurred.   There is, however, no evidence in the record of such notice.   Abaian only makes this allegation in his unverified petition.   Even if there was evidence that Abaian notified City of the incident when it occurred, Abaian admits that this does not entitle him to relief from filing a late claim with City. “It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim.   Such knowledge-standing alone-constitutes neither substantial compliance nor basis for estoppel.  [Citations.]”  (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455.)

In addition, to establish estoppel as a bar to a public entity's assertion of noncompliance with the timely claim requirement, a plaintiff must establish (1) the public entity was apprised of the facts;  (2) the public entity intended that its conduct which allegedly induced the plaintiff not to file a claim be acted on in that regard;  (3) the plaintiff was ignorant of the true state of the facts;  and (4) the plaintiff relied on the misleading conduct of the entity to his or her injury.  (DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 862.)   Abaian has failed to show that City prevented or deterred the filing of a timely claim by some affirmative action.  (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445.)

Abaian failed to establish that “[t]he failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect.” (§ 946.6, subd. (c).)  Based on the trial court record and the evidence before the trial court, the trial court's denial of Abaian's petition was not arbitrary, capricious, or patently absurd.  (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

DISPOSITION

The trial court's order denying Abaian's petition for relief from filing a late claim against City is affirmed.   The City is to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

KUMAR, J.^*

FOOTNOTES

FN1. All statutory citations are to the Government Code unless otherwise noted..  FN1. All statutory citations are to the Government Code unless otherwise noted.

FN2. Section 945.4 provides, “Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.”.  FN2. Section 945.4 provides, “Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.”

FN3. Section 911.2, subdivision (a) states in part, “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented ․ not later than six months after the accrual of the cause of action.   A claim relating to any other cause of action shall be presented ․ not later than one year after the accrual of the cause of action.”.  FN3. Section 911.2, subdivision (a) states in part, “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented ․ not later than six months after the accrual of the cause of action.   A claim relating to any other cause of action shall be presented ․ not later than one year after the accrual of the cause of action.”

FN4. Section 915, subdivision (a) provides, “(a) A claim, any amendment thereto, or an application to the public entity for leave to present a late claim shall be presented to a local public entity by either of the following means:  [¶] (1) Delivering it to the clerk, secretary or auditor thereof.  [¶] (2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office.”.  FN4. Section 915, subdivision (a) provides, “(a) A claim, any amendment thereto, or an application to the public entity for leave to present a late claim shall be presented to a local public entity by either of the following means:  [¶] (1) Delivering it to the clerk, secretary or auditor thereof.  [¶] (2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office.”

FN5. Section 911.4 provides in part, “(a) When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim. [¶] (b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) 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.   The proposed claim shall be attached to the application.”.  FN5. Section 911.4 provides in part, “(a) When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim. [¶] (b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) 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.   The proposed claim shall be attached to the application.”

FN6. Section 911.6, subdivision (c) provides, “If the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day or, if the period within which the board is required to act is extended by agreement pursuant to this section, the last day of the period specified in the agreement.”.  FN6. Section 911.6, subdivision (c) provides, “If the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day or, if the period within which the board is required to act is extended by agreement pursuant to this section, the last day of the period specified in the agreement.”

FN7. Section 946.6, subdivision (a) provides in part, “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.”.  FN7. Section 946.6, subdivision (a) provides in part, “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.”

FN8. Code of Civil Procedure section 473, subdivision (b) provides for discretionary relief from a “proceeding taken against [a party] through his or her mistake, inadvertence, surprise, or excusable neglect.”.  FN8. Code of Civil Procedure section 473, subdivision (b) provides for discretionary relief from a “proceeding taken against [a party] through his or her mistake, inadvertence, surprise, or excusable neglect.”

FN9. At oral argument before the trial court, Abaian's attorney argued that Abaian did not know the difference between the City and the County.   This explanation, however, is not in evidence..  FN9. At oral argument before the trial court, Abaian's attorney argued that Abaian did not know the difference between the City and the County.   This explanation, however, is not in evidence.

FN10. Code of Civil Procedure section 473, subdivision (b) provides that the court “shall” vacate a default entered against a party or a resulting default judgment or dismissal entered against a party, if the party's attorney attests to his or her mistake, inadvertence, surprise, or neglect, even if it was inexcusable.  (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604.).  FN10. Code of Civil Procedure section 473, subdivision (b) provides that the court “shall” vacate a default entered against a party or a resulting default judgment or dismissal entered against a party, if the party's attorney attests to his or her mistake, inadvertence, surprise, or neglect, even if it was inexcusable.  (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604.)

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

KRIEGLER, J.