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Carlos Romero et al v. City of Lodi

May 20, 2011

CARLOS ROMERO ET AL., PLAINTIFFS AND APPELLANTS,
v.
CITY OF LODI, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 39201000235340CUPTSKT)

The opinion of the court was delivered by: Hoch, J.

Romero v. City of Lodi

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case involves the timeliness of a government tort claim for injuries plaintiff Carlos Romero (and, by extension, his wife Adriana Romero)*fn1 suffered when he was hit by a car while riding his bicycle. The Romeros failed to present a timely claim to defendant, City of Lodi (City) (Gov. Code, § 810 et seq.; undesignated section references are to the Government Code) and the trial court subsequently denied their petition for leave to file a late tort claim pursuant to section 946.6 based on mistake, inadvertence, surprise or excusable neglect. The Romeros argue the trial court abused its discretion in rejecting their request to file a late claim. We disagree and affirm the judgment.

BACKGROUND

On May 21, 2009, Carlos Romero was riding his bicycle eastbound on the sidewalk in the 500 block of Harney Lane in the City of Lodi. David Brey was in his car, preparing to leave the adjacent parking lot of a business complex. Where the driveway crossed the sidewalk, Brey struck Carlos.

At the scene, Brey told a Lodi police officer he "could not see west of his location [as he prepared to leave the parking lot] due to a large hedge which blocked his view. Brey slowly pulled forward (south) onto the sidewalk when [Carlos] appeared heading [eastbound] on a bicycle and collided with the front of his vehicle."

The police report of the accident notes that the driveway Brey was using when he collided with Carlos's bicycle has "a 3' wide planter on the west side. The property that borders this driveway on the west is a landscaped apartment complex. Directly west of the 3' [wide] planter is a large green hedge (W 3'6" x H 5'4" x L 25') on the apartment complex property. This hedge extends over the north edge of the sidewalk approximately 10"."

Carlos suffered facial lacerations, multiple rib fractures, a punctured left lung and a broken scapula.

Within a week, Carlos sought the assistance of an attorney, Roeuth Sam. The next day, Sam sent an investigator to the scene to examine it and take pictures. The photos do not indicate that the City owns the strip of land on which the hedge is located. Carlos believed that the property belonged either to the apartment complex or the neighboring business complex.

On December 29, 2009, Sam discovered that the City owns the strip of property. On December 31, 2009, Carlos filed a government tort claim and an application with the City to file a late claim (§§ 911.2, 945.4, 911.6). The City rejected the application and tort claim.

The Romeros filed a petition for judicial relief from the requirement that they file a claim against the City within six months of the accident. In their petition, the Romeros argued their mistaken belief that the hedge was located on or between the two privately owned commercial parcels of land was reasonable because the accident report prepared by the police officers does not note or indicate that the hedge was located on property owned or maintained by the City and the property itself (as seen in photographs) has no indication of City ownership. The Romeros asserted that there had been many unsuccessful attempts to confirm the ownership of the property and City ownership was revealed as a result of their continued efforts. In support of the petition, the Romeros' attorney Sam submitted a declaration stating in pertinent part: "On 12/29/2009, after many unsuccessful attempts to confirm the ownership of said large hedge/bush, our continued efforts revealed said large hedge/bush was located on 601 West Harney Ln., Lodi, CA which is owned, maintained, or ...


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