Filed 7/13/15 Vara v. Los Angeles County MTA CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 TWO

ENRICO VARA,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY 

METROPOLITAN TRANSPORTATION 

AUTHORITY,

Defendant and Respondent.

 B257948

 (Los Angeles County

 Super. Ct. No. BC517296)

APPEAL from an order of the Superior Court of Los Angeles County.

Samantha P. Jessner, Judge. Reversed and remanded.

Jahrmarkt & Associates, John Jahrmarkt for Plaintiff and Appellant.

Briskin, Latzanich & Pene, Katherine B. Pene for Defendant and Respondent.

___________________________________________________
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A pedestrian sued a municipality after tripping over a metal tube protruding from a 

public sidewalk. He petitioned the trial court for permission to file a late claim against 

the county, after discovering that the metal object belongs to it. (Gov. Code, § 946.6.)1 

We reverse the trial court’s denial of the petition. Plaintiff acted with reasonable haste, 

and disallowing his late claim defeats the remedial purpose of the statute.

FACTS

In February 2013, Enrico Vara tripped and fell over a metal object protruding a 

few inches from a public sidewalk at a bus stop on Olympic Boulevard in Los Angeles; it 

appeared to be part of a street sign. He injured his leg and knee. Vara submitted a timely 

damage claim to the City of Los Angeles (the City), then filed a personal injury lawsuit 

against the City on August 6, 2013. The six-month period for making a government 

claim expired August 7, 2013.

In November 2013, Vara learned that the metal object is a sign sleeve belonging to 

respondent Los Angeles County Metropolitan Transportation Authority (MTA). That 

month, the City sought indemnification from MTA in a cross-complaint, and Vara 

submitted a claim to the MTA that was denied as untimely. On January 21, 2014, Vara 

requested permission to file a late claim; MTA denied his request three days later.

In March 2014, Vara petitioned the trial court for permission to file a late claim 

against MTA. He argued that he presented a timely tort claim to the City, the entity 

responsible for sidewalk safety, and had no way of knowing that the metal fragment 

belonged to MTA. Vara maintained that there was surprise and excusable neglect on his 

part. He noted that MTA answered the City’s cross-complaint and participated in his 

deposition. MTA countered that Vara rode an MTA bus daily, and always alit at the 

location where he fell, so he should have known that the unlabeled metal object was an 

MTA sign sleeve. It argued that Vara and his attorney did not diligently discover that an 

MTA sign was placed in the metal sleeve after Vara was injured. 

 

1 All undesignated section references in this opinion are to the Government Code.
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THE TRIAL COURT’S RULING

The court acknowledged its discretion to grant or deny a petition for relief. It 

found that when Vara filed suit, he reasonably thought the City was solely liable for 

defective conditions on public streets, and did not know that the two-inch metal sleeve 

belonged to MTA, when it was in the middle of a City sidewalk. Vara’s failure to inquire 

into the liability of others was the result of surprise or excusable neglect.2 

After discovering MTA’s involvement in November 2013, Vara did not file an 

application to present a late claim with MTA until January 2014, and did not explain the 

two-month delay. Counsel’s failure to apply promptly for permission to file a late claim 

“was in error.” The court denied Vara’s petition on the ground that he did not act within 

a reasonable time after learning that MTA was a potential joint tortfeasor.

DISCUSSION

A claimant may seek judicial relief within six months after a public entity denies 

leave to present a late claim. (§ 946.6, subd. (b).) The court “shall relieve” the petitioner 

if it finds that (1) application to file a late claim was made to the public entity “within a 

reasonable time” not to exceed one year from the date the cause of action accrued; (2) 

failure to present the claim was caused by mistake, inadvertence, surprise or excusable 

neglect; and (3) the public entity would not be prejudiced. (Id., subd. (c); § 911.4, subd. 

(b).) Appeal lies from an order denying leave to file a late claim against a government 

entity. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1772, fn. 1.) 

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 

 

2 MTA erroneously claims that the petition was denied due to insufficient evidence 

of surprise or excusable neglect. The trial court found against MTA on this issue and 

MTA did not cross-appeal; therefore, the argument is not reviewable. (Kardly v. State 

Farm Mut. Auto. Ins. Co. (1995) 31 Cal.App.4th 1746, 1748-1749, fn. 1.)
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any doubts which may exist should be resolved in favor of the application.” (Munoz, 

supra, 33 Cal.App.4th at p. 1778; Spencer v. Merced County Office of Education (1997) 

59 Cal.App.4th 1429, 1436.) While the court’s ruling is reviewed for an abuse of 

discretion, this “does not preclude reversal of an order denying relief where adequate 

cause for relief is shown by uncontradicted evidence or affidavits of the petitioner, nor 

should it be employed to defeat the liberal policies of remedial statutes designed for that 

purpose.” (Viles v. State of California (1967) 66 Cal.2d 24, 28-29; Bettencourt v. Los 

Rios Community College Dist. (1986) 42 Cal.3d 270, 275-276.)

Vara filed his petition for relief with the trial court two months after MTA denied 

his application for leave to file a late claim. He has satisfied the statutory requirement 

that a petition be filed within six months, and also satisfied the jurisdictional requirement 

that his application be filed within a year after his claim accrued. The trial court accepted 

Vara’s explanation that he could not immediately determine who was responsible for a 

two-inch metal sleeve protruding from a public sidewalk. We cannot revisit the trial 

court’s determination that Vara’s failure to submit an initial claim to MTA resulted from 

surprise or excusable neglect. 

The sole issue is whether Vara’s late-claim application was “made within a 

reasonable time” after he discovered that MTA is a possible tortfeasor. Vara discovered 

MTA’s involvement in November 2013 and promptly submitted a claim to MTA that 

month. The only delay was the two-month gap between Vara’s initial claim and his

application to MTA for leave to file a late claim, in January 2014.

Statutes requiring timely presentation of claims are intended “to give the 

governmental entity notice and an opportunity to investigate and settle meritorious 

claims.” (Viles v. State of California, supra, 66 Cal.2d at p. 32.) MTA had actual notice 

of Vara’s claim in November 2013, when (1) Vara submitted a late claim and (2) the City 

sued MTA for indemnification. MTA is already a party to this litigation, and is slated to 
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go to trial this year as cross-defendant. MTA is not prejudiced by having to defend the 

complaint, as well as the cross-complaint, as both arise from the same set of facts.3

In Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d 270, the 

Supreme Court held that the trial court abused its discretion by denying relief to a 

plaintiff whose attorney diligently commenced an investigation, but mistakenly sued the 

wrong public entity. Though the attorney failed to file a timely claim, the defendant 

received actual notice that it might be sued when plaintiff’s counsel called to request 

information about the accident. (Id. at pp. 276-278.) The court wrote, “[a]ppellate courts 

have consistently reversed trial court decisions denying relief under section 946.6 in 

situations where the attorney’s neglect was comparable to, or even more serious than 

counsel’s neglect here.” (Id. at p. 277.) 

The error of Vara’s counsel in submitting a late claim in November 2013—as 

opposed to submitting an application to file a late claim—is not determinative. Counsel 

acted diligently when he discovered MTA’s ownership of the metal sleeve protruding 

from the City’s sidewalk, giving actual notice by filing a claim describing the incident, 

while neglecting to first obtain permission to file the claim. The two-month lapse 

between MTA’s rejection of the untimely claim and Vara’s submission of an application 

to file a claim is immaterial, because during that period MTA was actively participating 

in the litigation. Indeed, MTA served its answer to the cross-complaint on Vara’s 

attorney on November 26, 2013, so there is no point in pretending that MTA “lacked 

notice” of Vara’s claim until January 2014. The evidence is uncontradicted.

We shall follow “the modern trend of judicial decisions in favor of granting relief 

unless absolutely forbidden by statute.” (Viles v. State of California, supra, 66 Cal.2d at 

p. 33.) MTA’s denial of Vara’s application to file a late claim was disingenuous, as 

MTA formally appeared in this lawsuit two months before it denied the application. The 

trial court compounded the error by denying Vara relief under the circumstances, thereby 

 

3 MTA admits in its brief that it has filed a cross-complaint seeking indemnity, 

apportionment and declaratory relief against culpable parties. 
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impeding or defeating the ends of substantial justice. (Bettencourt v. Los Rios 

Community College Dist., supra, 42 Cal.3d at p. 275.)

DISPOSITION

The trial court’s order denying plaintiff Enrico Vara leave to file a late tort claim 

is reversed and the cause is remanded for further proceedings consistent with this 

opinion. Defendant Los Angeles County Metropolitan Transit Authority shall reimburse 

plaintiff for his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.