Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. INC61055, Harold W. Hopp, Judge.
Law Offices of Kamal A. Bilal and George A. Bilal for Plaintiff and Appellant.
Redwine and Sherrill and Harry C. Carpelan for Defendant and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Plaintiff Carlos Hernandez appeals from a judgment dismissing his complaint following the trial court’s denial of plaintiff’s motion for relief from claim requirements under Government Code section 946.6. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
On November 11, 2005, plaintiff Carlos Hernandez allegedly broke his leg when he fell into a two-foot hole while crossing a grassy strip between a parking lot and the sidewalk; the hole was allegedly concealed by overgrown grass. Plaintiff filed a complaint for personal injuries on August 24, 2006, against the Coachella Valley Water District (Water District), the City of Cathedral City (City), and the owner of the parking lot where plaintiff’s slip and fall allegedly occurred. Plaintiff had previously filed a claim with the City, which the City had rejected.
The City and the property owner are not parties to this appeal.
The Water District filed a demurrer to the complaint. In the opposition to the demurrer, plaintiff’s counsel stated, “On further investigation into this claim, it was determined that the hole is adjacent to some sort of exposed plumbing and/or sprinkling system and meter and that there appeared to have been work performed on the plumbing and/or sprinkling system and/or meter. On or about September 21, 2006, plaintiff made an application to file a late claim against Coachella Valley Water District.” The trial court sustained the Water District’s demurrer to the complaint with leave to amend. Plaintiff filed a first amended complaint on December 28, 2006.
In the application to file a late claim, plaintiff did not set forth any underlying facts explaining the delay but merely quoted Government Code section 911.6, subdivisions (b)(1) and (3), stating, “The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its defense of the claim by failure to present the claim within the time specified in Section 911.2,” and, “The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of such disability failed to present a claim during such time.”
The Water District rejected plaintiff’s application to file a late claim. The Water District stated, “The application for the late claim cites the applicable statutes but provides no facts to show how the claimant was permanently physically or mentally incapacitated and, therefore, prevented from timely complying with a claim presentation or what the claimed mistake, inadvertence or neglect was.”
On December 6, 2006, plaintiff filed a petition for relief from the claim requirements under Government Code section 946.6 and Code of Civil Procedure section 473. The declaration of Plaintiff’s counsel attached to the petition stated that initially he had believed the City and the parking lot owner were liable for plaintiff’s injury; however, “[s]ome months later, as we commenced preparation to file a lawsuit against [the City and the parking lot owner], we learned that [the Water District], [which] has plumbing and/or sprinklers at or near the hole where plaintiff’s [sic] fell, was also a responsible party. By mistake and inadvertence pursuant to [Code of Civil Procedure] [s]ection 473, [the Water District] was added to the complaint as a defendant without first having complied with the governmental claims procedures. After the complaint had been filed on August 24, 2006, it was determined that a claim had not been made.”
The Water District filed an opposition, pointing out that the petition “fail[ed] to provide any explanation for the failure to present a claim” and “completely fail[ed] to state what mistake, surprise, inadvertence or excusable neglect occurred to justify relief.” Plaintiff’s counsel filed a reply to the opposition and attached a declaration stating that “after the claims period had passed but before the complaint was filed, it was determined” that the Water District was involved, and “[a] complaint was prepared and filed in order to toll the statute of limitations as to [the City] and by mistake and inadvertence [the Water District] was named as a defendant, though a claim had not yet been presented to that public entity.” The declaration continued, “Plaintiff immediately presented a claim, though the claim was not presented until after plaintiff had filed his complaint, a mistake and inadvertence which plaintiff has explained and which is an excusable human error, especially since more than one public entity is involved and a timely claim had been presented to the other public entity.”
The trial court held a hearing on the petition. At the hearing, the court stated, “[T]he concern I had was . . . the moving papers just weren’t detailed enough about when they discovered what they discovered and what . . . investigation they had done before the clock had run out. And without that explanation, I can’t tell whether it was reasonable that they didn’t discover the facts until too late.” The trial court therefore denied the petition for relief based upon the plaintiff’s failure to present evidence establishing due diligence, and judgment of dismissal was entered.
III. DISCUSSION
A. Standard of Review
Without citing authority, plaintiff asserts the trial court’s denial of his petition for relief from the claim statute is subject to de novo review on appeal. However, we review the denial of a petition for relief under Government Code section 946.6 under an abuse of discretion standard. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.)
B. Analysis
A personal injury claim against a public entity must be filed within six months after the claim accrues. (Gov. Code, § 911.2.) The purpose of the claims procedure is to “give the public entity the opportunity to evaluate the merit and extent of its liability and determine whether to grant the claim without the expenses of litigation.” (Crow v. State of California (1990) 222 Cal.App.3d 192, 202.)
If the public entity denies a party’s application for leave to file a late claim, the claimant must obtain a court order for relief from the requirements of the statutory claims procedures. To obtain such relief, the plaintiff must show (1) that an application was made to the public entity under Government Code section 911.4 and was denied or deemed denied; (2) the reason for failing to present the claim within the time specified in Government Code section 911.2; and (3) the information required by Government Code section 910. (Gov. Code, § 946.6.) And the petitioner must show both that he did not discover facts until the filing period had expired and that he used reasonable diligence in pursuing discovery. (Greene v. State of California (1990) 222 Cal.App.3d 117, 121.)
Plaintiff relies on Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529 (Kaslavage), Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270 (Bettencourt), and Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480 (Flores), to support his argument that the trial court abused its discretion in denying his motion for relief. All those cases are distinguishable.
In Kaslavage, the plaintiff was injured when he dove from a pipe into a canal. He hired an attorney who, within the claims period, sent an investigator to investigate the accident. (Kaslavage, supra, 84 Cal.App.3d at p. 533.) Following the investigation, the attorney presented a timely claim to the water district and other public entities identified through the investigation. (Id. at pp. 533-534.) After the claims period had elapsed, however, the attorney discovered that a different water district owned the pipe. The attorney filed a petition for relief from the claim requirements, which the trial court denied. The Court of Appeal reversed. The court held that although the investigator had made an “unartful” attempt to obtain information from the property owner and had failed to inquire of the firm that owned the land through which the canal and pipe ran, “[o]n the other hand, he did spend part of two days in investigation, including an on-site inspection and a check of the official records of the assessor’s office. He also questioned four different public agencies in an attempt to obtain information.” (Id. at p. 535.) The court concluded that the investigator had “made a substantial investigation,” and although “[h]is investigation was not sufficient, . . . neither was it inexcusable.” (Id. at p. 536.)
Here, declarations of plaintiff’s counsel stated he did not discover the Water District’s involvement until after the claims period had ended but prior to filing the lawsuit. However, the declarations failed to provide any explanation about why counsel had not presented a late claim petition before filing the lawsuit. And neither of plaintiff’s counsel’s declarations provided any information about what investigation had been performed as to the Water District’s involvement. Thus, Kaslavage does not support plaintiff’s position.
In Flores, the attorney’s explanation for failing to file a timely claim with the public entity was that, although he was aware of the deadline, he had failed to open a file which would have reminded him of the deadline. (Flores, supra, 13 Cal.App.3d at p. 483.) The court noted that the plaintiffs “had taken every action to present their claim in a timely fashion” — within the statutory period, they had consulted counsel, retained them and remitted the cost of copying records to support their claim. (Id. at p. 485.) The court stated that “[o]nly a relatively minor error of their attorneys, allegedly flowing from an ignorance of a nonstatutory rule of practice” prevented the plaintiffs from litigating their claim. (Ibid.) Significantly, the court in Flores found the case before it distinguishable from a line of cases in which “nothing but an entirely conclusory allegation of inadvertence was before the court.” (Id. at p. 484.) Here, we have nothing but such a conclusory allegation of inadvertence; thus, Flores does not support the plaintiff’s position.
In Bettencourt, supra, the court considered whether an attorney’s error in suing the wrong public entity was excusable in the light of the attorney’s “overall diligence or lack thereof.” (Bettencourt, supra, 42 Cal.3d at p. 278.) The court noted that “although counsel made an erroneous assumption, which led him to sue the wrong public entity, he was otherwise diligent. [¶] Plaintiffs’ counsel recognized that defendant was a public entity and moved swiftly to file a tort claim within the [statutory] period. He started investigating plaintiffs’ case the same day he was retained. He promptly spoke to defendant’s legal advisor to request further information about the accident and immediately hired an investigator to work on the case. Within four days counsel had compiled enough information to file a claim. Since counsel’s mistake here was reasonable under the circumstances and he was otherwise diligent, his neglect was excusable.” (Ibid., fn. omitted.) Here, in contrast, the record is silent as to the diligence of plaintiff’s attorney in investigating the complaint. Thus, Bettencourt does not support plaintiff’s position.
Plaintiff states in his opening brief that he retained his counsel in January 2006, and that after interviewing plaintiff and receiving photographs of the site, plaintiff’s counsel believed the grassy strip was the property of the City. However, plaintiff provides no citation to the record where such information may be found, and we have therefore disregarded it. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
We conclude the trial court did not abuse its discretion in denying plaintiff’s petition.
IV. DISPOSITION
The judgment is affirmed. Costs to Respondent.
We concur: MCKINSTER J., GAUT J.