IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
May 20, 2011
CARLOS ROMERO ET AL., PLAINTIFFS AND APPELLANTS,
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
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 controlled by Respondent City." Under these circumstances, the Romeros argue, they reasonably believed the hedge was located on privately-owned property, and their failure to timely identify the City as the property owner was excusable neglect, mistake or inadvertence.
In its opposition, the City asserted the Romeros had failed to show that their failure to timely present a claim to the City was the result of surprise, inadvertence, mistake or the excusable neglect of a reasonably prudent person. Information concerning the City's ownership of the property on which the hedge is located is "easily ascertained" and the Romeros' failure to discover ownership of the property within six months of the accident is inexcusable. Parcel maps readily available in the office of the San Joaquin County Assessor show the City's ownership of the small parcel on which the hedge is located. Also, the "mapping" link on the City's Website allows a computer user to search properties located in the City limits by location, physical address or assessor's parcel number and, in approximately four steps, the user can obtain detailed information (including ownership) of any property within City limits.
The Romeros filed no reply brief.
The trial court denied the petition. It concluded that the Romeros had failed to show by a preponderance of the evidence that their failure to timely present a tort claim to the City was due to surprise, inadvertence, mistake or the excusable neglect of a reasonably prudent person.
California's Tort Claims Act (the Act) authorizes limited governmental liability for injuries suffered as a result of the acts or omissions of public entities or their employees.*fn2 (§§ 815.2, 815.6.) It establishes a uniform claims procedure, and makes the filing of a claim within a brief period of the injury a prerequisite to maintaining a suit for damages. (§§ 905, 905.2, 911.2, 945.4; Renteria v. Juvenile Justice, Dept. of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 908 (Renteria).)
The Act requires that a person who wishes to sue a public entity based on a cause of action relating to personal injuries must first present a claim to the entity within six months of the date the cause of action accrues. (§§ 911.2, 945.4.) The claim presentation requirement of section 911.2 serves several purposes: "(1) it gives the public entity prompt notice of a claim so it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so it can better prepare for the upcoming fiscal year." (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.)
If the claim is not timely presented, an application for leave to present a late claim may be made within a reasonable time, not to exceed one year of the date the cause of action accrues. (§ 911.4.) The board of the public entity has 45 days to grant or deny the late claim application; the application will be deemed denied if the board fails to act. (§ 911.6.) If the application is denied, late claimants can obtain relief in the trial court by establishing "'by a preponderance of the evidence that failure to present their claim on time was through mistake, inadvertence, surprise or excusable neglect.' [Citation.]" (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 43; § 946.6.)*fn3
We review the trial court's refusal to grant relief from the Act's claims presentation requirement under an abuse of discretion standard. "'Government Code section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary. The remedial policy underlying the statute is that wherever possible cases should be heard on their merits. Thus, a denial of such relief by the trial court is examined more rigorously than where relief is granted and any doubts which may exist should be resolved in favor of the application.' [Citation.] Nonetheless, we 'cannot arbitrarily substitute our judgment for that of the trial court.' [Citation.]" (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1382.)
The Romeros contend they are entitled to relief from the failure to timely present a claim to the City because their attorney Sam was under a "reasonable mistake of fact" as to the ownership of the land underlying the hedge that obscured the driver's view because the police report stated that the hedge was located "on the apartment complex property" and there were "no obvious clues or warning signs" to give Sam "reason to believe that the subject hedge was owned by any entity other than the two private landowners on either side of it." They also argue that Sam's failure to discover that the City owned the hedge was excusable because Sam "did not know, and had no reason to know, that the City of Lodi owned the narrow strip of land on which the subject hedge sat." Consequently, his failure to immediately discover that fact was a product of excusable neglect.
"'[T]he 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. The definition of excusable neglect is defined as "neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances."' [Citations.]" (Renteria, supra, 135 Cal.App.4th at pp. 909-910.)
Moreover, excusable neglect 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 failed to discover it. (People ex rel. Dept. of Transportation v. Superior Court, supra, 105 Cal.App.4th at p. 44; Munoz v. State of California, supra, 33 Cal.App.4th at p. 1783.)
The evidence before the trial court established that the Romeros retained Sam within a week of the accident; Sam dispatched an investigator the next day to examine the site and take photographs; the site photographs did not indicate who owns the property on which the view-obscuring hedge is located; and the police report noted the hedge is "on the apartment complex property." Sam's declaration avers, without any details, "many unsuccessful attempts to confirm the ownership of said large hedge/bush" and "continued efforts" revealed that the City owned the property. The declaration does not describe with specificity the "unsuccessful attempts" and "continued efforts." For example, the declaration fails to state what attempts were made to confirm ownership and why they were unsuccessful.
These unsupported and conclusory statements do not constitute evidence that the Romeros' attorney Sam labored under a reasonable mistake of fact as to who owned the property on which the hedge is located. The only definitive statement of his investigative efforts is his statement that he sent an investigator to take photographs of the accident site. But most property does not bear a sign announcing its ownership; that this small parcel bore "no obvious clues or warning signs" of its public ownership did not entitle Sam to reasonably draw any conclusion to the contrary. Nor can Sam reasonably claim he was "misled by the official accident report" as that report does not indicate the ownership of the property where the hedge is located. Sam's reliance on the police report's observation that the hedge was "on the apartment complex property" as a statement about the hedge's ownership was not reasonable. An accident report is designed to identify the parties and vehicles involved in an accident and collect information about an accident, including a summary of the accident and any injuries, witness statements and a description of the accident scene. It is not an official document identifying the ownership interests of property adjacent to an accident site.
Nor was there evidence from which the trial court should have concluded that the Romeros' counsel's failure to discover the true ownership of the parcel was excusable. As Sam's declaration does not describe the efforts to uncover the ownership of the parcel with any specificity, the trial court did not abuse its discretion in concluding that the Romeros failed to show excusable neglect by a preponderance of the evidence.
The City's demonstration of the ease with which the ownership of any property within its limits can be discovered leads to the conclusion that Sam's failure to uncover the City's ownership of the parcel within the statutory timeframe was not reasonable. (See Dept. of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1294, citing Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1163, fn. 5 ["When there is a readily available source of information from which the potential liability of a government entity may be discovered, a failure to use that source is deemed to be inexcusable"].)
The order denying the Romeros' petition for leave to file a late claim against the City of Lodi is affirmed. Costs on appeal are awarded to respondent City of Lodi. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: RAYE , P. J. HULL , J.