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Filed 3/25/24 Janis v. Sacramento Housing and Re development Agency CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

Th is 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 )

. 1 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 i t. (§ 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.2

cause of action . (§ 911.2, subd. (a).) If it is not, the injured party may file a n 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, p laintiff 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.

FAC T UAL AND PROCEDURAL BACKGROUND In ruling on a petit ion for relief from the claim presentation requirements, the trial

cour t 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).)
T he facts below thus come from these sources.
O n September 21, 2021 , Janis sustained personal injuries when the bicycle he was riding was struck by a motor vehicle driven by Wilfredo Buenaf e

. Janis contend ed the
accident was Buenafe’s fault because he fail ed 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 t raffic c ollision r eport (the Report)

. Janis’s attorney

state d 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 (SH R A)

— that was potentially liable for Janis’s injuries

. 2 Th e

2 In particular, the Report states Buenafe was driving the vehicle that hit Janis, and that the vehicle was owned by SH R A.3

attorney also state d her secretary failed to give her the Report when it was delivered

. The attorney acknowledge d the deadline to p resent a timely claim to SH R A was March 21, 2022, but she state d 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 state d
she first learned of the mistake when “the attorney representing [SH R A] 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

. SH R A denied the application on May 19, 2022.
Janis then filed a petition fo r 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 d eclaration(s) or evidence. The court denied the petition , finding Janis failed to present sufficient evidence
that th e 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
20 21, 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
T he 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 College4

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 i s to decide
these petitions. ( Munoz v. State of California (1995) 33 Cal.App .4 th 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 cou rt 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 i s review ed 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 relie f will be scrutinized more carefully than an order granting relief”]. ) This is true, and, a s 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 standa rd of review , which remains the deferential abuse of
discretion standard. We also note , “The general policy favoring trial on the merits cannot be applied indiscrimina t ely so as to render ineffective the statutory time limits” ( Department of Water & Power v. Superior Court (2000) 82 Cal.App.4 th 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 )

.5 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, inad vertence, 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. ” ( Dep artment Water & Power , supra , 82 Cal.App.4 th at
p. 129 3 , italics omitted .) “Although only ‘neglect’ is qualified by the adjective ‘excusable,’ it is uniformly held that for relief on any or all of the state d grounds it must be shown that one’s misconception was reasonable, or that it might have been the
cond uct 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. Ci ty of L os 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 poss ible 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.4 th at p. 1779 ; see id. at
pp. 1782

- 1783.) In determining whether counsel’s mistake is excusable, we consider6

both “the nature of the mistake or neglect,” and “whether counsel was otherwise diligent in investigating and p ursuing the claim.” ( Bettencourt v. Los Rios Community College
D ist. , 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 t o 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 co uld not have discovered SHRA’s potential liability in time to file a timely claim

. ( Depa rtment of
Water & Power

, supra , 82 Cal.App.4 th at p. 129 6; see id. at p. 129 3 .) 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. ( Depa rtment of Water & Power , supra , 82 Cal.App.4 th at p. 129 6; see id. at p. 129 3

. ) 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, w as 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 other7

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. ( Depa rtment of Water & Power , supra , 82 Cal.App.4 th 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. 1 298.) 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 order ed 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 th e claim. It is implicit from her declaration that,
d uring 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 wi thin the five

- month period after r equesting 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 tr ial 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 th e failure to file a timely claim was caused by a calendari ng error, and his citation to cases that hold “ ‘ calendar errors by an attorney or a member of his staff are, under appropriate circumstances,8

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]. ) Th is 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 secre tary 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 discreti on in finding that error was not excusable within the meaning of section 946.6.
DISPOSITION The order denying the petition is affirmed. SH R A 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.