Ramos v. Los Angeles

Filed 7/26/07 Ramos v. Los Angeles CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Affirmed.

Lisa Mitts Patrick for Plaintiffs and Appellants.

Albright, Yee & Schmit, Clifton W. Albright, Derek S. Yee and Boris Orlov for Defendant and Respondent County of Los Angeles.

York & Wainfeld, James R. York and Gabriel H. Wainfeld; Greines, Martin, Stein & Richland, Martin Stein and Carolyn Oill for Defendant and Respondent Los Angeles County Metropolitan Transportation Authority.

No appearance for Defendant and Respondent City of Whittier.

____________________________

Thomas Ramos, Jr., Virginia Ramos, John Ramos, Larry Ramos, Manuel Martinez, and the Estate of Margaret Ramos, deceased by Thomas Ramos, Jr., as administrator, appeal from the court order denying relief from the requirements of the Tort Claims Act. (Gov. Code [1] 810 et seq.) Appellants contend the court abused its discretion when it denied them relief. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

I. The Accident

In the evening of October 21, 2004, Margaret Ramos died after she was struck by several cars, including one driven by an employee of the State of California Department of Transportation (CalTrans), while crossing a street in the City of Whittier (City). A brief account of the accident appeared in a local newspaper two days later. Appellants admitted they were aware of that newspaper article.

In their petition, appellants, who are the heirs and estate of Margaret Ramos, stated the roadway and bus stops to and from which she was traveling were unsafe and in a dangerous condition, and that the lighting at that time of night was particularly poor making it difficult for any of the involved drivers to see her in the street.

II. The Claims

Attorney Lisa Mitts Patrick presented separate claims to the State of California (for CalTrans), the County of Los Angeles (County), Los Angeles County Metropolitan Transportation Authority (Mta) and the City.

The claims presented to the City, the County and MTA on October 6 or 7, 2005, identified the claimant as Margaret Ramos, deceased by her estate/heirs, or Margaret Ramos, deceased. The claims were returned as untimely. Although counsel knew the claims were not timely, and admitted as much in the claims to the County and MTA, she failed to present late claim applications until after the three entities returned the claims as untimely. Late claim applications were mailed to the three entities on behalf of the decedent.[2] Those entities denied the applications.

III. The Petition

Appellants filed their petition for relief from the claim presentation requirements of the Government Code against all four entities on December 22, 2005. Appellants alleged that they were not informed of the results of the police investigation into the accident until after July 2005[3] and that they were not aware of the involvement of the CalTrans vehicle until October 2005, when their attorney located additional police reports. The petition further alleged appellants were acting in pro per and were unaware of the involvement of the various public entities or of the Government Code claim presentation requirements despite reasonable investigations. The petition admitted the cause of action accrued on the date of the accident, the claims had been due in April 2005, and the claims were untimely.

Appellants stated that in July 2005, they were given only one of three police reports. That report did not identify the multiple vehicles which had hit Margaret and only dealt with the injury to Margaret by the first vehicle and not her death. After counsel was hired in October 2005, appellants received two additional police reports.[4] Those reports stated that the one or more additional drivers that ran over Margaret and killed her included CalTrans employee Victor Carvallo, who was operating a CalTrans owned vehicle and on the job at the time of the accident.

All four entitles filed opposition to the petition. Among other things, they argued that appellants had presented no evidence of excusable neglect.

The court found it was undisputed the claims were not filed within the six month period after the cause of action accrued and rejected appellants argument they could not file a claim while they were waiting for the police reports noting it was not clear the information contained in the reports was necessary for their claims. The court also found the late claims were not timely as they had not been presented within the reasonable time required by statute. With respect to the MTA, the County and the City, the court denied the petition for relief. However, with respect to CalTrans, the court granted relief on the ground the CalTrans employee withheld information he was involved in the accident.

The court signed a formal order denying relief, and appellants filed a timely notice of appeal from that order.

DISCUSSION

I. The Tort Claims Act

Before a court may relieve a claimant from the statutory tort claim filing requirements, the claimant must demonstrate by a preponderance of the evidence both that the application to the public entity for leave to file a late claim was presented within a reasonable time and that the failure to file a timely claim was due to mistake, inadvertence, surprise or excusable neglect. (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293; original emphasis.)

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 claimants 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. (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1293.)

The determination of the trial court in granting or denying a petition for relief under [section 946.6] will not be disturbed on appeal except for an abuse of discretion. Abuse of discretion is shown where uncontradicted evidence or affidavits of the plaintiff establish adequate cause for relief. [] [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. [] Relief from the six-month limit is granted under the same showing as is required for relief under Code of Civil Procedure section 473. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1778; original emphasis; citations omitted.) However, [t]he general policy favoring trial on the merits cannot be applied indiscriminately so as to render ineffective the statutory time limits. (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1293.)

The foregoing general rules counsel liberal construction of the governmental tort claims statutes. Nevertheless, courts have developed additional rules to deal with specific instances of less than strict compliance. For instance, mistake of law based solely on ignorance of the six-month claim requirement is not enough. Moreover, a petitioner may not successfully argue excusable neglect when he or she fails to take any action in pursuit of the claim within the six-month period. The claimant must, at a minimum, make a diligent effort to obtain legal counsel within six months after the accrual of the cause of action. Once retained, it is the responsibility of legal counsel to diligently pursue the pertinent facts of the cause of action to identify possible defendants. (Munoz v. State of California, supra, 33 Cal.App.4th at pp. 1778-1779; see also People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 45 [and cases cited therein].)

II. Appellants Contentions

Appellants contend the court abused its discretion by granting relief to some, but not all defendants who were similarly situated, and by failing to apply the death exception.

The court granted relief with respect to CalTrans because the CalTrans employee who hit the decedent fled the scene of the accident and withheld information regarding the accident. Appellants assert they established excusable neglect because they had no means to ascertain information about the accident other than the police reports and therefore they should have gotten relief as to all the defendants and because the July 2005 police report was inaccurate and the police investigation was incomplete until they received the additional police reports in October 2005.

According to the declaration of Thomas Ramos, appellants claim in this case for the death of our mother related to the conditions of the roadway at the time of the incident, the conditions and placement of the bus stop to and from which my mother was believed to be travelling at that time, the lighting of the roadway and/or other dangerous conditions with respect to the roadway.

In appellants opinion, without knowing the identity of the driver who first struck their mother or the identity of the driver who ran over their mother and killed her, they could not reasonably make any determinations as to whether the lighting conditions in the area or the dangerous locations of the bus stops caused or contributed to their mothers death. Appellants repeatedly claim those conditions did not become relevant until they knew a second vehicle was involved.

Appellants admit they might have been able to determine what government entities were responsible for those conditions within the six month period. Moreover, the failure to identify the government entity responsible for a particular condition is not excusable neglect. (See Tammen v. County of San Diego (1967) 66 Cal.2d 468, 478; Black v. County of Los Angeles (1970) 12 Cal.App.3d 670, 676-677; see also Munoz v. State of California, supra, 33 Cal.App.4th at pp. 1784-1785 [The court ruled a claimant could not justify her delay in presenting a claim on the ground the state had failed to provide medical records of treatment of her decedent as the requirements for presenting a claim are minimal and perfect precision was not needed.].)

Appellants admit they saw the newspaper article about the accident; an article which identified the intersection where the accident occurred, the time of day it occurred (i.e., 7:00 p.m.), and the fact the decedent was hit by at least two vehicles. Who was driving the vehicles involved in the accident was irrelevant to claims based on the conditions of the road or the lighting at the scene of the accident or the location of the bus stops. A simple investigation of the scene of the accident would have alerted appellants to those potential problems. Thus, the City, the County and the MTA were not similarly situated to CalTrans with respect to the subject accident. (See Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 314 [Failure to discover the alleged basis of the cause of action in time is also not a compelling showing in the absence of reasonable diligence exercised for the purpose of discovering the facts.]; see also Tammen v. County of San Diego, supra, 66 Cal.2d at pp. 477-478.)

There was no reason to wait for the police reports. The facts about any dangerous conditions at the scene of the accident or the location of the bus stops were not exclusively in the hand of the police. Moreover, appellants do not cite anything in the later reports that could not have been observed by inspecting the scene of the accident. Accordingly, appellants did not show they exercised reasonable diligence or acted like a reasonably prudent person would. Moreover, even though the City allegedly withheld the reports, there is no indication any of the information necessary to sue the City was contained in those reports.

Appellants imply they detrimentally relied on third party information (i.e., the police) which constituted excusable neglect. There were no affirmative representations by the police which prevented or deterred appellants from filing a timely claim. (See Ard v. County of Contra Costa (2001) 93 Cal.App.4th 339, 346-347.) Moreover, appellants did not retain an attorney until October 2005, almost a year after the accident and well beyond the six months required to show diligence. Appellants suggest the cases holding a claimant must make a diligent effort to retain counsel within six months are distinguishable because they were not percipient witnesses. The fact appellants were not personally familiar with the facts of the accident was all the more reason to retain an attorney. (See People ex rel. Dept. of Transportation v. Superior Court, supra, 105 Cal.App.4th at p. 46 [It is precisely because theories of third party liability are subtle, complex, and often not readily apparent to a layman that due diligence requires at least consultation with legal counsel.].)

Additionally, noting respondents made no showing of any prejudice from the late filing of the claims, appellants argue that when grounds for relief are shown, the denial of relief may be an abuse of discretion. Appellants did not show any grounds for relief. (See Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1297 [The public entity has no burden of establishing prejudice arising from the failure to file a timely claim until after the party seeking relief has made a prima facie showing of entitlement to relief.]; Black v. County of Los Angeles, supra, 12 Cal.App.3d at p. 677 [A public entity has no burden to prove it was prejudiced by a late filing until the petitioner has satisfied the court her failure was due to mistake, inadvertence, surprise or excusable neglect.].) Thus, the court did not abuse its discretion by granting relief against only one public entity (CalTrans).

Section 946.6, subdivision (c)(4) provides the court shall relieve a petitioner from the period within which to file a claim when: The person who sustained the alleged injury, damage or loss died before the expiration of the time specified in Section 911.2 for the presentation of the claim. Appellants suggest the court abused its discretion by not applying the death exception as their mother died before the six month period expired and the exception went to the issue of diligence because they had no personal knowledge about the accident.

The death exception is not applicable in this case. The death exception is applicable when the claimant dies during the six-month period to file a government claim. The claimant was Margaret Ramos, deceased, and Margaret died instantaneously so appellants had the full six months to file a claim. Moreover, the death exception still requires a claim to have been filed within a reasonable time not to exceed one year. ( 946.6, subd. (c).) The court found the claims were not filed within a reasonable time.

A decedents action for injuries suffered prior to death survives her death, and her estate stands in her shoes, but it may only recover for the injuries to the deceased prior to death. (Code Civ. Proc., 377.34.) On the other hand, a claim for wrongful death may be brought by the heirs for their own injuries suffered as a result of the death. (Code Civ. Proc., 377.61.) Damages available to the estate in a survival action are not available to the heirs in a wrongful death action and visa versa. (Gallup v. Sparks-Mundo Engineering Co. (1954) 43 Cal.2d 1, 11.)

Each heir had a separate interest and a separate cause of action from each other and from that of the decedent. (See Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 766-768.) A claim must be filed by each injured person.[5] (See Nguyen v. Los Angeles County Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 733-734.) The individual appellants did not file their own claims. (See Lewis v. City and County of San Francisco (1971) 21 Cal.App.3d 339, 341 [claim filed by victim for personal injuries held insufficient to satisfy heirs duty to present timely claim for wrongful death after victim died.].) We note that not having filed their own claims or applications to file a late claim, the court was without jurisdiction to hear the petition of the individual appellants. (See Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713 [a late-claim application within one year is a jurisdictional prerequisite to a claim-relief petition.].) However, the question of whether or not the court had jurisdiction over the individual appellants is moot as we affirm the denial of relief from the late claim requirements.

DISPOSITION

The order is affirmed. Respondents to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J. JOHNSON, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

[1] Unless otherwise noted, all statutory references are to the Government Code.

[2] The late claim applications were post-marked October 21.

[3] In their petition, appellants alleged the police did not inform them of any investigative findings until after July 2005. It is not clear what efforts appellants made to contact the police prior to July 2005. Neither the petition nor the declarations contain any statements about what efforts were made or when they were made. The record contains an e-mail from Thomas Ramos dated June 29 indicating he had talked to the police a few times since November and the last time was in February or March.

[4] These two reports were not attached to the petition.

[5] Thus, appellants complaint that the claim forms did not provide space for the identification of each heir is without merit.