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Court of Appeal:
No Relief From Claim-Filing Requirement Where Attorney Failed to Meaningfully Review File
Opinion Says Clerk’s Failure to Check Box in Electronic Case-Tracking System Was Excusable Error, Attorney’s Failure Over Eight-Month Period Wasn’t, Justifying Denial of Leave to File Late Claim
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal found yesterday that a calendaring slip-up excused the failure of a law firm to file a claim against a public entity within the six-month period set by statute, but that neglect by the lawyer assigned to the case to keep an eye on the file and discover the error justified a judge’s denial of a woman’s petition to file a late claim.
Acting Presiding Justice Truc T. Do authored the unpublished opinion affirming Riverside Superior Court Judge Chad Firetag’s order denying relief to plaintiff Silvia Ramirez.
Ramirez, along with her granddaughter, was injured in a car accident on Aug. 12, 2022. Seventeen days later, they retained The Dominguez Firm—widely touted in advertising posters on the backs of buses—to pursue their personal injury claims against the driver of the other car, Candice Henderson, and her employer, the Moreno Valley Unified School District.
Lawyer’s Awareness
Handling their case was attorney Matthew K. Joy, who was aware that the district is a public entity and that the filing of a claim, pursuant to Government Code § 911.2, is a requisite to suing.
The undisputed deadline for filing the claim was Feb. 8, 2023. No claim had been filed by that time.
On May 1, 2023, Joy sent the district a settlement offer. The district responded by pointing out that he had missed the deadline.
It subsequently denied consent to the filing of a late claim.
Suit was filed on Aug. 4, 2023, by Ramirez, as well as by her granddaughter, Sandy Martinez, age 14, through her guardian ad litem.
Attorney’s First Declaration
Petitioning for the court’s leave to file late claims, under Government Code § 946.6—based on “mistake, inadvertence, surprise or excusable neglect”—Joy said in a declaration that the firm’s electronic monitoring system includes a box to be checked if a defendant is a public entity in order to assure that the six-month deadline is not missed, but that a clerk in the office had “neglected to check the appropriate box.” so that reminders were not issued.
As a result, he said, he was not aware of a lack of compliance with the claim-filing requirement until March 17, when he received the district’s response to the settlement offer.
At an initial hearing on the petition for leave to file a late claim, Firetag expressed his impression that Joy had not looked at the file over an eight-month period, but granted a continuance to afford the lawyer with an opportunity to file a further declaration, which he did.
Second Declaration
In the second declaration, Joy said that he reviewed the file monthly, but saw in it a receipt for a certified mailing and assumed that what had been transmitted was the requisite claim.
Firetag denied leave, finding the neglect to have been inexcusable. He noted that Joy’s second declaration contradicted his “earlier claim that the delay was caused by the neglect of an intake employee” and declared the more recent recitation to be “not persuasive.”
In her opinion affirming the denial of relief to Ramirez, Do wrote that “[w]e agree with plaintiffs that the initial mistake by the intake employee—as described by Joy in his first declaration—was exactly the type of ‘excusable neglect’ involving a calendaring error where relief can be mandatory,” but went on to say”
“[T]here was ample evidence for the trial court to conclude it was ‘inexcusable neglect’ to fail to discover and correct the calendaring error….The Dominguez Firm claims to have not discovered the calendaring error for eight months. This is what the trial court found inexcusable.”
Second Declaration
She commented:
“Presenting a government entity with a damages claim is a milepost litigation event. The trial court could reasonably infer the review Joy conducted, if any, was unreasonable to the extent it was so cursory he failed to put two and two together and realize that a monumentally important document had not been properly calendared.”
Do acknowledged that the usual rule is that a declaration by a party that is not contradicted or inherently improbable will be credited, but said that Firetag had reason to disregard Joy’s second declaration because Joy’s initial failure to assert his monthly review of the file and tell of spotting the certified mailing receipt cast in doubt the truthfulness if the later account.
The opinion does reverse the denial of leave to file a late claim on behalf of the minor, pointing to Government Code §911.6(b)(2) which provides that a public entity “shall” grant a late claim application if “[t]he person who sustained the alleged injury...was a minor during all of the time specified in Section 911.2 for the presentation of the claim..”
Do said: “These criteria are satisfied here.”
The case is Ramirez v. Moreno Valley Unified School District, D083775.
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