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Filed 3/25/24 Janis v. Sacramento Housing and Redevelopment Agency CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

LYLE JANIS,

Plaintiff and Appellant,

v.

SACRAMENTO HOUSING AND 

REDEVELOPMENT AGENCY,

Defendant and Respondent.

C098094

(Super. Ct. No. 34-2022-

00326831-CU-PT-GDS)

This appeal arises out of the failure to comply with the claim presentation 

requirements of the Government Claims Act (Gov. Code, § 810 et seq.) (the Act).

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 The 

Act provides that no suit for money or damages may be brought against a public entity 

unless a claim has first been presented to the public entity and rejected by it. (§ 945.4.) 

A claim for personal injuries must be presented within six months of the accrual of the 

1 Further undesignated statutory references are to the Government Code.
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cause of action. (§ 911.2, subd. (a).) If it is not, the injured party may file an application 

with the public entity for leave to present a late claim. (§ 911.4, subd. (b).) If the 

application is denied, the injured party may file a petition in the superior court seeking 

relief from the claim presentation requirements of the Act. (§ 946.6, subd. (a).) The 

superior court “shall” grant the petition if, among other things, “[t]he failure to present 

the claim was through mistake, inadvertence, surprise, or excusable neglect.” (§ 946.6, 

subds. (b)(2) & (c)(1).) 

In this case, plaintiff and appellant Lyle Janis appeals the trial court’s decision 

denying his petition seeking relief from the claim presentation requirement of the Act. 

Finding no abuse of discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In ruling on a petition for relief from the claim presentation requirements, the trial 

court considers “the petition, any affidavits in support of or in opposition to the petition, 

and any additional evidence received at the hearing on the petition.” (§ 946.6, subd. (e).) 

The facts below thus come from these sources.

On September 21, 2021, Janis sustained personal injuries when the bicycle he was 

riding was struck by a motor vehicle driven by Wilfredo Buenafe. Janis contended the 

accident was Buenafe’s fault because he failed to make a complete stop at a stop sign and

failed to yield the right of way to Janis.

Janis retained counsel sometime in September 2021, and in November 2021, his 

attorney requested a copy of the traffic collision report (the Report). Janis’s attorney 

stated the Report was delivered to her office sometime in December, and that it identified 

a public entity—namely, defendant and respondent Sacramento Housing and 

Redevelopment Agency (SHRA)—that was potentially liable for Janis’s injuries.

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 The 

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In particular, the Report states Buenafe was driving the vehicle that hit Janis, and 

that the vehicle was owned by SHRA.
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attorney also stated her secretary failed to give her the Report when it was delivered. The 

attorney acknowledged the deadline to present a timely claim to SHRA was March 21, 

2022, but she stated her secretary “failed to calendar the . . . claim,” and the claim thus 

was not timely presented “[d]ue to a calendaring mistake” by “clerical staff.” She stated

she first learned of the mistake when “the attorney representing [SHRA] called and left a 

message inquiring about the status of the claim,” and she then “[i]mmediately” filed an 

application to present a late claim on April 22, 2022. SHRA denied the application on 

May 19, 2022.

Janis then filed a petition for relief from the claim presentation requirements. He 

argued the failure to file a timely claim was due to a “calendaring mistake by [his] 

attorney’s clerical staff,” and the mistake was “excusable.” He supported his petition 

with a declaration from his attorney that recounted the facts set forth above. SHRA 

opposed the petition but did not submit any additional declaration(s) or evidence.

The court denied the petition, finding Janis failed to present sufficient evidence 

that the failure to file a timely claim was due to mistake, inadvertence, surprise or 

excusable neglect within the meaning of section 946.6. In particular, the court found 

Janis’s attorney was not diligent because although she requested the Report in November 

2021, she never followed up on the request to see if the Report had been received, and 

thus did not know until after the claim presentation deadline had expired that it had been

sitting in her office for months and showed SHRA’s involvement in the accident.

Janis filed a timely notice of appeal.

DISCUSSION

I

Standard of Review

The decision to grant or deny a petition seeking relief from the claim presentation 

requirements “is within the sound discretion of the trial court and will not be disturbed on 

appeal except for an abuse of discretion.” (Bettencourt v. Los Rios Community College 
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Dist. (1986) 42 Cal.3d 270, 275.) The abuse of discretion standard is deferential, and we 

may not substitute our own judgment for that of the trial court whose job it is to decide 

these petitions. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1783.) 

“ ‘[W]e are not interested in the question as to whether the trial court could have granted 

relief based on the claimed mistake . . . , but, since the trial court denied relief, only in 

whether such holding was within its discretion.’ ” (Tammen v. County of San Diego

(1967) 66 Cal.2d 468, 476.) 

Janis acknowledges the denial of the petition is reviewed for an abuse of 

discretion, but he emphasizes our Supreme Court has stated, “Section 946.6 is a remedial 

statute intended to provide relief from technical rules which otherwise provide a trap for 

the unwary claimant. [Citation.] The remedial policies underlying the statute are ‘that 

wherever possible cases be heard on their merits, and any doubts which may exist should 

be resolved in favor of the application.’ [Citation.] Thus, ‘[a]n appellate court will be 

more rigorous in examining the denial of such relief than its allowance.’ ” (Ebersol v. 

Cowan (1983) 35 Cal.3d 427, 435; see also Bettencourt v. Los Rios Community College 

Dist., supra, 42 Cal.3d at p. 276 [“In light of the policy considerations underlying section 

946.6, a trial court decision denying relief will be scrutinized more carefully than an 

order granting relief”].) This is true, and, as directed, we have rigorously reviewed the 

trial court’s decision in this case. We note, however, that being “more rigorous” does not 

change the underlying standard of review, which remains the deferential abuse of 

discretion standard. We also note, “The 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 (2000) 82 Cal.App.4th 1288, 1293

(Department of Water & Power)), and, “It is not the purpose of remedial statutes to grant 

relief from [mistakes] which are the result of inexcusable neglect of parties or their 

attorneys in the performance of the latter’s obligation to their clients” (Tammen v. County 

of San Diego, supra, 66 Cal.2d at p. 478). 
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II

Section 946.6

“Before a court may relieve a claimant from the [Act’s] claim filing requirements, 

the claimant must demonstrate by a preponderance of the evidence . . . that the failure to 

file a timely claim was due to mistake, inadvertence, surprise or excusable neglect. 

[Citation.] [¶] 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 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.’ [Citation.] [¶] There must be more than the mere failure to discover a 

fact; the party seeking relief must establish the failure to discover the fact in the exercise 

of reasonable diligence.” (Department Water & Power, supra, 82 Cal.App.4th at 

p. 1293, italics omitted.) “Although only ‘neglect’ is qualified by the adjective 

‘excusable,’ it is uniformly held that for relief on any or all of the stated grounds it must 

be shown that one’s misconception was reasonable, or that it might have been the 

conduct of a reasonably prudent person under similar circumstances. [Citation.] Plaintiff 

must show more than that she did not discover a fact until too late; she must establish that 

in the use of reasonable diligence she failed to discover it.” (Cole v. City of Los Angeles

(1986) 187 Cal.App.3d 1369, 1376.) 

Where, as here, the claimant makes a diligent effort to obtain legal counsel, “it is 

the responsibility of legal counsel to diligently pursue the pertinent facts of the cause of 

action to identify possible defendants,” and the question when ruling on a petition for 

relief from the claim presentation requirement is whether counsel’s mistake or neglect is 

excusable. (Munoz v. State of California, supra, 33 Cal.App.4th at p. 1779; see id. at 

pp. 1782-1783.) In determining whether counsel’s mistake is excusable, we consider 
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both “the nature of the mistake or neglect,” and “whether counsel was otherwise diligent 

in investigating and pursuing the claim.” (Bettencourt v. Los Rios Community College 

Dist., supra, 42 Cal.3d at p. 276.)

III

Analysis

For purposes of this appeal, we accept Janis’s attorney’s statement that her 

secretary did not give her the Report when it was delivered to the office in December 

2021. We will also assume that the secretary’s error was excusable (even though we 

have no declaration from the secretary and thus no idea why the secretary failed to give 

the Report to the attorney). In order to be entitled to relief from the claim presentation 

requirements, however, the attorney still had to show that she was otherwise diligent in 

pursuing the claim, and “in the use of reasonable diligence,” she could not have 

discovered SHRA’s potential liability in time to file a timely claim. (Department of 

Water & Power, supra, 82 Cal.App.4th at p. 1296; see id. at p. 1293.) She fails to make 

such a showing. 

Where counsel “either ha[s] actual possession of or readily available access to” a 

report showing a public entity is potentially liable for the claimant’s injuries, relief from 

the claim presentation requirement is not available. (Department of Water & Power, 

supra, 82 Cal.App.4th at p. 1296; see id. at p. 1293.) Here, the Report showing SHRA’s 

potential liability for Janis’s injuries was in his attorney’s office months before the claim 

presentation deadline passed. Although his attorney apparently was not aware of that 

fact, she had both actual possession of and readily available access to the Report. 

Department of Water & Power is instructive. The real party in interest in that case

was involved in a two-car collision. The Department of Water & Power (DWP), a public 

entity, was working near the location of the accident, there was water on the roadway, 

and the accident report prepared by the police indicated the roadway was flooded due to 

DWP’s work. The real party in interest retained counsel and sued the driver of the other 
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vehicle, but failed to determine the potential liability of DWP until after the six-month 

claim presentation period had passed. The real party in interest and his counsel claimed 

they had no knowledge DWP might be liable until the other driver’s insurance carrier 

mentioned its insured had filed a claim against DWP. (Department of Water & Power, 

supra, 82 Cal.App.4th at pp. 1291-1292.) The trial court granted relief from the claim 

presentation requirement, and DWP sought a writ of mandate. The appellate court held 

“the failure to file a timely tort claim is unreasonable under the circumstances” because 

“[the real party in interest] and his counsel either had actual possession of or readily 

available access to the police report.” (Id. at p. 1296.) The appellate court thus directed 

the trial court to vacate its order granting relief from the claim presentation requirements. 

(Id. at p. 1298.) 

So, too, in this case. The failure to file a timely claim is unreasonable under the 

circumstances. The Report was in Janis’s attorney’s office by December 2021, which is 

approximately three months before the six-month claim presentation period expired on 

March 21, 2022. According to the attorney’s declaration, she ordered the Report in 

November 2021, and she first learned of SHRA’s involvement in April 2022, when 

SHRA called to ask about the status of the claim. It is implicit from her declaration that, 

during this five-month time period, she never followed up with her secretary to ask about 

the status of the Report. A reasonably prudent and diligent attorney would have followed 

up with her secretary within the five-month period after requesting the Report. Had 

Janis’s attorney done so, she would have discovered SHRA’s potential liability in time to 

file a timely claim. Her failure to do so was not excusable within the meaning of section 

946.6. The trial court found “there was no diligence” on the part of the attorney, and, on 

these facts, we cannot say it abused its discretion in so finding.

We need only briefly address Janis’s argument that the failure to file a timely 

claim was caused by a calendaring error, and his citation to cases that hold “ ‘calendar 

errors by an attorney or a member of his staff are, under appropriate circumstances, 
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excusable.’ ” (Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 483; see also 

Nilsson v. Los Angeles (1967) 249 Cal.App.2d 976, 983 [same].) This was not a 

calendaring error case. It would have been a calendaring error case if the attorney had 

instructed her secretary to calendar the claim deadline for six months after the accident 

and the secretary failed to calendar it or mistakenly calendared it beyond the claim 

deadline. The error in this case was the attorney’s failure to follow up after ordering the 

Report, and for the reasons just stated, we find the trial court did not abuse its discretion 

in finding that error was not excusable within the meaning of section 946.6. 

DISPOSITION

The order denying the petition is affirmed. SHRA shall recover its costs on 

appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

 /s/

EARL, P. J.

We concur:

 /s/

ROBIE, J.

 /s/

MESIWALA, J.