Opinion
G059068
07-12-2021
SEPEHR MOJAB, Plaintiff and Appellant, v. ORANGE COUNTY FIRE AUTHORITY, Defendant and Respondent.
Law Offices of Tabone and Derek L. Tabone for Plaintiff and Appellant. David A. Clinton and Daphne B. Hall for Defendant and Respondent.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, No. 30-2019-01070770 Deborah Servino, Judge. Affirmed.
Law Offices of Tabone and Derek L. Tabone for Plaintiff and Appellant.
David A. Clinton and Daphne B. Hall for Defendant and Respondent.
OPINION
FYBEL, ACTING P. J.
Introduction
Appellant Sepehr Mojab appeals from an order denying him leave to present a late personal injury claim against public entity respondent Orange County Fire Authority (OCFA), as well as a subsequent order denying Mojab's motion to reconsider the initial denial. This case implicates the Government Claims Act (Gov. Code, § 810 et seq., all further undesignated statutory references are to the Government Code), generally requiring a prelawsuit claim to be presented against an entity within six months of claim accrual.
Thirty-five days before the six-month deadline, Mojab presented his claim to the County of Orange instead of the OCFA. In response, 13 days before the deadline, the county sent a letter advising Mojab to present his claim to the OCFA. Mojab did not present his claim to the OFCA until six weeks later, a month after the deadline passed.
After the OCFA denied the untimely claim, Mojab filed a petition in the trial court for leave to litigate the claim. Before the hearing on his petition, Mojab filed additional documents attempting to correct deficiencies in the petition. The court denied both Mojab's petition and his subsequent motion for reconsideration. On the initial denial, the trial court found Mojab had not presented evidence his counsel acted with reasonable diligence. On Mojab's motion to reconsider, the court found Mojab had failed to show he could not have presented information earlier through reasonable diligence.
We review the results of the trial court's denial orders for abuse of discretion. No error has been shown. Accordingly, we affirm the trial court's orders.
Chronology of Facts and Procedural History
In October 2018, Mojab and his motorcycle collided with the side of a firetruck operated by the OCFA. A traffic collision report identified the OCFA as the owner of the firetruck and repeated the OCFA's address in the information field for the firetruck's driver.
In March 2019, counsel for Mojab presented a personal injury claim to the County of Orange. The county responded two weeks later, on March 19, with an eight-sentence letter that advised: “your [personal injury] allegations are against the Orange County Fire Authority and not the County of Orange.” Its main paragraph concluded with “Your claim needs to be filed with the Clerk of the [OCFA], ” and provided a mailing address.
Notwithstanding the county's advisement letter, Mojab's counsel failed to present a claim to the OCFA by the six-month deadline of April 1, 2019. Instead, on May 1, he filed an application with a board of the OCFA for leave to present a late claim. The board denied the application the same day and, two weeks later, Mojab filed a personal injury complaint in the trial court that named the OCFA as a defendant.
Other parties Mojab pursued claims against are not discussed in this opinion.
In the trial court, the law firm representing Mojab ultimately submitted three separate filings to obtain court leave to pursue a late claim against the OCFA. First, the attorney who presented Mojab's prelawsuit claim to the county filed a petition for “relief pursuant to [Code of Civil Procedure, ] section 473.” This initial petition erroneously discussed a different personal injury incident-involving a fall from a gurney-instead of Mojab's motorcycle collision incident. The OCFA pointed this out in its opposition brief.
Three days before the hearing on Mojab's petition, the attorney filed an ex parte application (the second filing) for a continuance and “permission to file a corrected second amended petition” to pursue a late claim against the OCFA. The attorney's declaration asserted the incorrect gurney incident information had been included in the initial application “through mistake, inadvertence and excusable neglect, ” but the court denied the ex parte application on the ground the “deficiencies in [the initial petition] were due to inexcusable neglect.”
Notwithstanding the trial court's denial of the ex parte application, on the morning of the hearing for Mojab's initial petition, the managing partner of the law firm representing Mojab filed a proposed “amended petition” for leave to pursue a late claim against the OCFA (the third filing). The proposed petition included a declaration by the partner. It also included other documents that had not been submitted with Mojab's initial petition: the traffic collision report for Mojab's motorcycle collision incident, his erroneous claim to the County of Orange, the county's advisement letter, Mojab's prelawsuit application to the OCFA board for leave to present a late claim, and the board's rejection of the application.
The partner blamed the handling attorney's error on the attorney's October surgery and subsequent medication. The attorney objected to the release of his medical information and denied his treatments affected his performance. The partner's declaration only attempts to explain the initial court petition for relief in October 2019, not the earlier six-week period between the county's March 19 advisement letter and the attorney's May 1 prelawsuit application to the OCFA.
At the hearing, the trial court denied Mojab's petition as initially filed and noted it had not considered Mojab's proposed amended petition. In its minute order, the court found Mojab's reliance on counsel's declaration was “insufficient” and discussed three alternative grounds for its ruling. First, Mojab incorrectly sought relief under Code of Civil Procedure section 473 instead of section 946.6. Second, there was “no evidence” Mojab had satisfied his prelawsuit requirement to first timely apply for leave to the OCFA board before seeking court leave to litigate his untimely claim. Finally, the court found “there [was] no evidence presented to show that [Mojab]'s counsel acted with reasonable diligence.”
Mojab filed a motion to reconsider the trial court's denial of his petition to pursue a late claim against the OCFA. Mojab asserted his counsel's “errors and omissions” had “amounted to ‘positive misconduct' such that [Mojab] had [received] no representation at all.” The managing partner submitted an additional declaration that generally stated “[t]he partners of [the] firm could not have reasonably discovered, or through the exercise of reasonable diligence discovered, the acts and omissions by [Mojab's counsel] that led to the deficiencies in” Mojab's initial court petition for leave to pursue a late claim against the OCFA. Although the declaration discussed events surrounding Mojab's deficient initial petition, it offered no facts about the six-week period between the county's advisement letter in March 2019 and Mojab's prelawsuit application to the OCFA board for leave to present a late claim in May. The court denied the motion to reconsider, finding Mojab had failed to “present any ‘newly discovered facts'” or show he could not have earlier presented his information through “reasonable diligence.”
Discussion
I. Standard of Review
Mojab challenges the trial court's denial of his petition to pursue a late personal injury claim against the OCFA as well as its subsequent denial of Mojab's motion for reconsideration. We review both denials for abuses of discretion (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275 (Bettencourt) [petition to pursue late claim]; Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal.App.5th 239, 243 [motion for reconsideration]) and affirm or reverse based on the correctness of the results and not their reasons. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443).
“The test for abuse of discretion is whether the trial court's decision exceeded the bounds of reason. [Citation.] In applying the abuse of discretion standard, the reviewing court measures the evidence presented to the trial court against the range of options permitted by the established legal criteria. [Citation.] The scope of the trial court's discretion is limited by the governing law, and an action that ‘“‘transgresses the confines of the applicable principles of law'”' constitutes an abuse of discretion. [Citation.] [¶] The trial court's factual findings are reviewed under the substantial evidence standard while the trial court's legal conclusions are reviewed de novo. [Citation.] It is up to the trial court to weigh the evidence, resolve conflicts in it, and assess the credibility of witnesses. [Citation.] The reviewing court resolves any evidentiary conflicts most favorably to the trial court's ruling [citation], and, if more than one reasonable inference can be deduced from the facts, the reviewing court must accept the inference supporting the trial court's decision [Citation].” (Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 789 (Cornerstone).)
II. The Record Shows an Unexplained Error About Why Counsel Failed to Diligently Act on the County's Corrective Instructions
A. Summary of Applicable Law
Under the Government Claims Act, “[a]s a general rule, a plaintiff must present a public entity with a timely written claim for damages before filing suit against it.” (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 652 (J.M.).) The Act provides a “claim [against a public entity] relating to a cause of action... for injury to person... shall be presented [to the entity]... not later than six months after the accrual of the cause of action.” (§ 911.2.) If the deadline is missed, a written application may be made directly to the entity for leave to present a late claim. (§ 911.4, subd. (a).) If the entity denies leave under section 911.6, a petition may be made to a trial court for an order relieving the petitioner from the requirement to present a claim prior to filing suit. (§ 946.6, subd. (a).) The relief section provides in relevant part: “[t]he court shall relieve the petitioner... [if t]he failure to present [a timely] claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim.” (Id., subd. (c)(1).)
If an error underlying a relief request under section 946.6 is based on conduct by a petitioner's counsel, a court must review: “(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. [Citations.] In examining the mistake or neglect, the court inquires whether ‘a reasonably prudent person under the same or similar circumstances' might have made the same error. [Citation.].” (Bettencourt, supra, 42 Cal.3d at p. 276.)
B. Facts Applied to the Law
It is undisputed Mojab's counsel missed his April 1, 2019 deadline to timely present a personal injury claim against the OCFA because he presented the claim to the wrong public entity, the County of Orange. It is also clear that, notwithstanding the county's advisement letter sent to counsel 13 days before the deadline, the record provides no explanation of why counsel did not take any corrective action on the errant claim until six weeks later.
The trial court did not err because it exercised its discretion within “the confines of the applicable principles of law.” (Cornerstone, supra, 56 Cal.App.5th at p. 789 [internal quotations marks omitted].) Mojab failed to show his “counsel was otherwise diligent in investigating and pursuing the claim” such that “‘a reasonably prudent person under the same or similar circumstances' might have made the same error[s]'” committed. (Bettencourt, supra, 42 Cal.3d at p. 276.) In addition to Mojab's deficient petition for leave to pursue a late claim against the OCFA, nothing in his attempts to cure his petition's deficiencies explained why counsel failed to take corrective action for six weeks after the county's advisement letter in March 2019.
Even beyond missing the deadline and failing to explain why, Mojab's petition filings suffered from multiple problems: he discussed an unrelated accident on a gurney and filed a proposed amended petition despite the fact his ex parte application to do so had already been denied. These other problems may not have been dispositive, but they certainly did not help show “excusable neglect” or “reasonable diligence.”
C. Responses to Mojab's Arguments
Mojab incorrectly contends “the facts indicate that the only mistake was not realizing the OCFA is [a] public agency separate from Orange County.” (Italics added.) His appeal rests on an argument this mistake was one which a reasonably prudent person could have made and so should qualify as mistake or excusable neglect under section 946.6 because, “[u]pon discovery of the error[, his counsel] promptly and timely submitted [a petition] to present a late claim to” the OCFA.
Mojab argues his counsel was diligent because counsel acted promptly once he realized Mojab's claim had been presented to an incorrect entity-sometime near May 1, 2019, according to counsel's declaration. The argument is unpersuasive because of his failure to act on the county's March 19 advisement letter that spelled out what counsel needed to do to timely present Mojab's claim to the OCFA. Based on our review of the “nature of the mistake or neglect” (Bettencourt, supra, 42 Cal.3d at p. 276), the record reveals the trial court was at no pointpresented-neither through Mojab's initial petition for relief or any of his subsequent filings-with any explanation for the six-week delay between the county's letter and counsel's attempt at corrective action.
Thus, even including the information in Mojab's last-minute filings that the trial court declined to consider, there is no explanation in the record why it took counsel six weeks to act on the information the county sent 13 days before the lapse of his six-month deadline to present a claim. Based on the information provided, Mojab could have easily and timely presented his claim to the OCFA.
Mojab concedes in his reply brief that his counsel “further erred by not recognizing the mistake from the contents of the county's rejection letter [i.e., the advisement letter], ” but provides no meaningful discussion on the point. Accordingly, all of Mojab's appellate arguments for error fail because they all rest on his incorrect premise that his “only mistake was not realizing the OCFA is [a] public agency separate from Orange County.”
Nothing in the record or parties' briefing contradicts the result of the trial court's ruling that found “there [was] no evidence presented to show that [Mojab]'s counsel acted with reasonable diligence.” The result was correct and well within the court's discretion to conclude Mojab did not show he satisfied section 946.6's requirement that counsel acted with reasonable diligence.
III. Bettencourt
Mojab argues no facts in this case reveal a “lack of diligence” on requesting section 946.6 relief. Although he asserts Bettencourt, supra, 42 Cal.3d 270, is a “strikingly similar” case, it does not support Mojab's position. Bettencourt involved a wrongful death claim by parents whose son drowned during a field trip organized by their son's college. The parents' counsel initially presented a claim to the state of California under the mistaken belief it employed the college's personnel. In reality, the college was a part of a different public entity, a community college district. (Id. at p. 274.)
Before the claim presentation deadline lapsed in Bettencourt (at that time, 100 days instead of six months), the parents' counsel received a cover letter with enclosures from the college's general counsel and director of legal services. (Bettencourt, supra, 42 Cal.3d at pp. 274, fn. 3, 277.) In the letter, the director “listed the materials enclosed [for parents' counsel] and apologized for [a] delay in responding to counsel's request for information.” (Ibid.) The letterhead contained information that “indicated [the college] was part of the” district. (Ibid.)
Twenty-nine days later, parents' counsel “learned [the college's] employees were employees of the [district].” (Bettencourt, supra, 42 Cal.3d at p. 274, 277.) Accordingly, “[t]hree days later and 119 days after accrual of the cause of action, ” counsel “filed an application [with the district] for leave to present a late claim, ” which was rejected. (Ibid.) The parents then requested relief from the trial court, which also denied the request. (Id. at p. 276.)
The California Supreme Court, reversing, held the trial court abused its discretion in denying the parents relief. The high court concluded the error by the parents' counsel had been “well within the range of mistakes” excusable under section 946.6. (Bettencourt, supra, 42 Cal.3d at p. 281.) It analyzed whether counsel's “conduct was reasonable under the circumstances” (id. at p. 277) based on the record of counsel's “overall diligence or lack thereof” (id. at p. 278) and how the defendant college had interacted with the petitioning parents. (Id. at p. 278, fn. 6.) The court also concluded no prejudice to the college would result from granting relief for the parents' late claim, policy interests would not be contradicted by the result (id. at p. 279), and two precedents cited by the college were distinguishable. (Id. at p. 280 [distinguishing Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976 and Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152].)
The Supreme Court rejected the college's contention that the parents' untimely claim should not be excused because the college's predeadline cover letter sent to the parents' counsel contained information showing the district was the proper entity to pursue. (Bettencourt, supra, 42 Cal.3d at p. 277.) The court noted “[t]he body of the cover letter” said nothing about the district, that “[i]t would not be unusual for the reader to devote little, if any, attention to the letterhead, ” and “a reasonable person, after skimming the body of the cover letter, would have focused his primary attention on the [letter's] enclosures.” (Ibid.) In concluding “counsel's failure [] to notice defendant's letterhead was excusable under the circumstances, ” the court pointed out “the letter was merely a cover letter for [] items to which counsel's attention was primarily directed” and the “letterhead [] did not clearly contradict counsel's misapprehension-that [the college's] employees work for the state-because it merely identified the college as part of the [district]. It said nothing about the relationship between the [district] and the state.” (Id. at p. 280.)
Bettencourt does not support Mojab's contention that here the trial court abused its discretion when it denied his petition for leave to pursue a late claim under section 946.6. Indeed, the county's advisement letter to Mojab's counsel presents mirror-opposite circumstances from the letter reviewed in Bettencourt. There, the corrective information included in the defendant's letterhead was tangential to the letter's focus on other topics. In contrast, in this case, the almost exclusive focus of the county's letter was to advise Mojab's counsel he had to take corrective action to present his claim to the correct public entity. Also, the tangential information in Bettencourt “did not clearly contradict” counsel's misunderstanding in that case; here, the county's advisement letter specifically aimed to correct Mojab's counsel's misunderstanding about the correct entity to pursue. (Bettencourt, supra, 42 Cal.3d at p. 280.) Accordingly, although the letter in Bettencourt supported a conclusion that counsel there exercised reasonable diligence despite the information contained in the defendant's letterhead, the county's advisement letter here supports the trial court's conclusion that Mojab's counsel failed to exercise requisite “overall diligence.” (Id. at 278.)
IV. Remaining Contentions
None of Mojab's remaining contentions have merit. He contends we should reverse the trial court's order denying his petition because he was denied a proper hearing when the court did not consider his proposed amended petition filed the morning of the hearing. Mojab asserts if the court had considered the proposed petition, it would have had “before it all of the information required by Sections 911.6 and 946.6.” But as discussed, nothing in Mojab's proposed petition attempted to explain why it took his counsel six weeks to act on the information the county sent 13 days before the lapse of his six-month deadline to timely present a claim to the OCFA. Accordingly, the unconsidered petition provides no ground to conclude the result of the trial court's denial order was error.
Mojab also argues we should reverse because the OCFA's board erred by denying his prelawsuit application for leave to present a late claim under section 911.6. That section uses the same operative language for relief-”[t]he board shall grant the application... [if] failure to [timely] present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced”-as section 946.6. (§ 911.6, subd. (b).) Mojab cites to Dockter v. City of Santa Ana (1968) 261 Cal.App.2d 69, 75 to argue that “if relief should have been granted by the [OCFA's] [b]oard it should also be granted by the [trial c]ourt.” The cited discussion only dealt with a predecessor of section 946.6 and not section 911.6. Accordingly, Mojab's argument fails because it assumes, without demonstrating, that the board should have granted Mojab's application on some analysis other than our review under Bettencourt.
Mojab also contends the OCFA should be estopped from relying on section 946.6. He correctly points out the OCFA summarily denied his prelawsuit application for leave to present a late claim, but cites no authority to support his assertion that a summary denial can somehow create equitable grounds to estop a public entity from maintaining a position in litigation. “The elements of equitable estoppel have been applied in the government claims context. ‘(1) [T]he party to be estopped... must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party... must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.' [Citations.]” (J.M., supra, 2 Cal.5th at p. 656.) Given Mojab shows no evidence supporting grounds for estoppel, his contention fails.
V. Mojab's Reconsideration Motion Failed to Address the Unexplained Error About Why Counsel Did Not Diligently Act on the County's Corrective Instructions
Finally, as with his proposed amended petition for relief that the trial court declined to consider, Mojab asserts his subsequent “motion for reconsideration [of the court's denial of section 946.6 relief] contained all the information necessary to grant [his initial] petition.” A party moving for reconsideration must base their arguments on new or different facts, circumstances, or law and demonstrate reasonable diligence in explaining the absence of the information at the earlier decision point. (See California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 47-48, fn. 15 [discussing case law on Code of Civil Procedure section 1008].)
As noted, the motion's supporting declaration baldly asserted “[t]he partners of [the] firm [representing Mojab] could not have reasonably discovered, or through the exercise of reasonable diligence discovered, the acts and omissions by [Mojab's counsel] that led to the deficiencies in” Mojab's initial petition for leave to pursue a late claim against the OCFA. This was insufficient evidence on why purportedly new information supporting Mojab's reconsideration motion could not have been presented earlier. Moreover, we again note the motion did not present any explanation for the six-week delay between the county's advisement letter and Mojab's counsel's attempt at corrective action.
In sum, Mojab presents no grounds to support a conclusion the trial court erred in denying him relief from his counsel's failure to present a timely personal injury claim against the OCFA.
Disposition
The trial court's order denying Mojab's petition for leave to pursue a late claim against the OCFA and its order denying Mojab's motion for reconsideration are affirmed. The OCFA is entitled to its costs on appeal.
WE CONCUR: THOMPSON, J.GOETHALS, J.