legal news


Register | Forgot Password

Ottovich v. City of Freemont

Ottovich v. City of Freemont
11:06:2006

Ottovich v. City of Freemont


Filed 10/30/06 Ottovich v. City of Freemont CA1/4






NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST APPELLATE DISTRICT



DIVISION FOUR










MARK OTTOVICH,


Plaintiff and Appellant,


v.


CITY OF FREMONT et al.,


Defendants and Respondents.



A110857


(Alameda County


Super. Ct. No. HG03118703)



Appellant Mark Ottovich appeals the denial of his motion for leave to file a late claim for tort damages against the City of Fremont and its police officers (collectively, City) for false arrest. We affirm the order.


FACTS


Appellant was arrested by City police on March 15, 2002, for resisting arrest. (Pen. Code, § 148, subd. (a)(1).) Almost a year later, on March 14, 2003, appellant submitted a late claim for damages alleging false arrest. The claim should have been presented no later than six months after accrual of the cause of action. (Gov. Code, § 911.2.) Appellant asked the City for leave to present a late claim. (Gov. Code, § 911.4.) He maintained that his failure to file a timely claim was “through mistake, inadvertence, and excusable neglect.” Appellant declared that he had been “informed and believed” that he was not permitted to file a claim as long as a criminal charge from the underlying events was pending. Appellant said: “It was my understanding of Government Code § 945.3 that I was not allowed to file a claim for damages until the trial on my criminal charge was completed.”


Appellant did not explain the source of the misinformation, or when he discovered his error. The criminal charge was still pending when he filed his declaration and request to present a late claim, and thus it was not any cessation of criminal proceedings that motivated his belated claim. Nor did appellant explain how he misread Government Code section 945.3, which stays prosecution of a false arrest action during the pendency of criminal charges arising from the arrest but clearly provides that it does not toll the time for filing a damages claim: “Nothing in this section [precluding a false arrest civil action] shall prohibit the filing of a claim with the board of a public entity, and this section shall not extend the time within which a claim is required to be presented pursuant to [Government Code] Section 911.2.” (Gov. Code, § 945.3.)


The City denied appellant’s request to present a late claim on March 25, 2003. Six months later, on September 25, 2003, appellant petitioned the court, in propria persona, for relief from the claim-filing requirement. (Gov. Code, §§ 945.4, 946.6.) Appellant set a hearing on his petition for February 4, 2004. On the scheduled hearing date, the court denied the petition without prejudice because appellant failed to file proof of service. (Gov. Code, § 946.6, subd. (d).)


At this point, appellant could not file a new petition for relief from the claim-filing requirement. A petition for such relief must be filed within six months after the request to the public entity for presentation of a late claim is denied. (Gov. Code, § 946.6, subd. (b)(3).) Appellant’s original petition to the court had been filed on the last possible day so there was no time remaining for a new petition. The correct course was for appellant to correct the deficiency in the presentation of his original petition by scheduling another hearing and filing proof of service of the petition and notice of the new hearing date. The court invited appellant to do just that when it denied his petition without prejudice. Appellant instead appealed the trial court’s order to this court on April 2, 2003.


After the appeal was briefed and set for oral argument, appellant asked to withdrawal his appeal and we dismissed it on December 7, 2004, without issuing an opinion. Appellant returned to the trial court. On January 4, 2005, appellant filed an unnoticed, ex parte request for reconsideration of the court’s order. The request attached a purported proof of service of the original petition from September 2003. The court denied the ex parte request without prejudice to requesting such relief by way of a properly noticed motion.


Appellant, represented by recently retained legal counsel, renewed his efforts. We now reach the motion that is the subject of this appeal. On February 10, 2005, appellant filed a noticed motion entitled “motion for leave to file a petition for reconsideration of order denying application for leave to present late claim pursuant to Government Code section 911.4.” The object of the motion was far from clear. Appellant’s proper recourse was to schedule a hearing on the petition for relief and file proof of service of the petition and notice of that hearing date.


The City was confused by appellant’s latest filing. In its opposition, the City pointed out the incomprehensibility of appellant’s motion but chose to interpret the motion as seeking an order granting the original petition filed in September 2003. The City thus addressed the merits of the petition and argued that appellant failed to demonstrate excusable neglect, mistake, or inadvertence for his failure to file a timely damages claim. The City also disputed service of the petition in September 2003, and asserted prejudice by appellant’s lack of diligence in bringing his request for relief before the court.


At the April 6, 2005 hearing, appellant’s counsel somewhat clarified the relief sought by the motion in stating that appellant “wasn’t trying to file a motion for reconsideration in the formal sense,” but wanted “to reinstate this petition” from September 2003. However, counsel also argued that the petition was served upon the City in 2003, and suggested that filing proof of service of notice for a hearing years ago justified granting relief at the current hearing without any analysis of the merits of the petition for relief. In his motion papers, he reasoned that, “[a]s indicated by the lack of any mention of other error in the Order herein [denying relief in February 2004], the Application for Late Claim had no other fatal errors and is hereby revived.”


The court explained that the earlier denial of relief on procedural grounds was not a resolution of the motion on the merits. One may correct an earlier procedural defect and still be denied relief once the merits are reached. The court tried to explain this to appellant’s counsel with an example: “You’re trying to resurrect something that goes back into 2003, I guess, that was not ruled favorably on him. Yes, it was denied for procedural reasons, but that doesn’t mean anything. You were here for the writ of replevin. I’m going to issue an order that says the writ of replevin is denied because it wasn’t on with appropriate service. If the writ of replevin comes on in 30 more days with appropriate service, it’s going to be denied on the merits.” The court denied appellant’s motion, and this appeal followed.


discussion


Appellant’s arguments on appeal are founded on a misunderstanding of the court’s order. Appellant argues that the court denied his motion on procedural grounds for lack of notice, when the subject motion was properly noticed and the City never claimed otherwise. The motion, however, was plainly denied on substantive grounds. When the court commented at the hearing on defective service of notice, it was referring to prior proceedings and was simply responding to appellant’s assertions that he was entitled to relief from claim-filing requirements because he cured previous procedural deficiencies. The court explained that curing procedural defects only puts the matter up for consideration on the merits--it does not necessitate a favorable resolution on the merits.


Likewise, appellant misinterprets the court’s comments on this matter as an indication of bias. Appellant argues that the court’s example of a writ of replevin, that can be denied for lack of notice and yet still denied after defective notice is cured, reveals a biased intention to prejudge and to deny a writ of replevin and any other petition brought by appellant. Appellant argues that appellant “had not even filed the Motion/Petition; however, Judge Richman had already indicated he would deny the motion on the merits--without even reading the motion or reviewing the merits. The Judge’s bias against Appellant is patent and indefensible.”


Appellant misunderstands the court’s comments. No writ of replevin was remotely at issue in this case. The court was merely using a writ of replevin as an example to show that correction of a procedural deficiency does not necessitate a favorable resolution on the merits. Appellant argues, as another instance of alleged bias, that “Judge Richman contradicted his own order [in February 2004] wherein he stated that he was denying the motion for lack of proof of service, and when the Appellant moved for reconsideration based upon valid service, the judge denied the motion anyway.” There is no contradiction. The original petition was properly denied for lack of proof of service. The subsequent motion, based upon valid service, entitled appellant to a hearing on the motion. It did not entitle him to win the motion.


The court’s resolution on the merits was proper. A petition for relief from claim-filing requirements may not be granted unless the failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect. (Gov. Code, § 946.6, subd. (c)(1).) As the City’s opposition to appellant’s motion ably demonstrates, appellant failed to carry his burden of proof on this issue. As noted above, appellant’s excuse for waiting a year to file a damages claim was that he had been “informed and believed“ that he was not permitted to file a false arrest claim as long as a criminal charge from the underlying events was pending. Appellant said: “It was my understanding of Government Code § 945.3 that I was not allowed to file a claim for damages until the trial on my criminal charge was completed.”


Appellant did not explain the source of the misinformation, or when he discovered his error. Nor did appellant explain how he misread Government Code section 945.3, which is unambiguous in not extending the time within which a damages claim must be presented. (Gov. Code, § 945.3.) A petitioner seeking relief under Government Code section 946.6 may not rely upon conclusory statements alone. (Dunston v. State of California (1984) 161 Cal.App.3d 79, 83-84.) “ ‘A petitioner must show more than that he did not discover a fact until too late; he must establish that in the use of reasonable diligence he failed to discover it.’ “ (Id. at p. 83.) Appellant’s motion was properly denied.


disposition


The order is affirmed.


_________________________


Sepulveda, J.


We concur:


_________________________


Ruvolo, P. J.


_________________________


Rivera, J.


Publication Courtesy of San Diego County Legal Resource Directory.


Analysis and review provided by San Diego County Property line attorney.





Description Appellant appeals the denial of his motion for leave to file a late claim for tort damages against the City of Fremont and its police officers (collectively, City) for false arrest. Appellant did not explain the source of the misinformation, or when he discovered his error. Court affirmed the order.
Rating
0/5 based on 0 votes.

    Home | About Us | Privacy | Subscribe
    © 2025 Fearnotlaw.com The california lawyer directory

  Copyright © 2025 Result Oriented Marketing, Inc.

attorney
scale