Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. VC048980, Raul A. Sahagun, Judge.
David Hoffman, for Plaintiffs and Appellants.
Raymond G. Fortner, Jr., County Counsel, Roger H. Granbo, Assistant County Counsel, and Adrian G. Gragas, Deputy County Counsel, for Defendant and Respondent.
RUBIN, ACTING P. J.
Plaintiffs and appellants Robert and Nancy Amezcua appeal from the order denying their petition to permit them to file a lawsuit against the County of Los Angeles and/or the County of Los Angeles Police and to excuse their non-compliance with Government Code section 945.4. They contend the trial court abused its discretion in denying the petition. We affirm.
All undesignated statutory references are to the Government Code.
FACTUAL AND PROCEDURAL BACKGROUND
We glean the facts from the operative second amended complaint and the pleadings filed in connection with the petition. On November 26, 2006, Harley-Davidson Motorcycle of Los Angeles (Harley) and the Los Angeles County Police Department (County Police or respondent) cosponsored the “Holiday Toy Run,” an organized 12-mile motorcycle ride along a set route beginning at the Harley dealership in South Gate and ending at the Los Angeles County Harbor-UCLA Medical Center in Torrance. Appellants, husband and wife, were two of more than one hundred motorcycle riders participating in the event. They did not see any police escorts along the route, which included a portion of the Harbor Freeway.
Sergeant Bradley Sheffield of the County Police was the coordinator of the 2006 Holiday Toy Drive and led the procession of motorcyclists from the dealership to the hospital. On the day of the event, he was dressed in a County Police uniform and was driving a marked County Police vehicle; three other marked County Police vehicles were parked at the Harley dealership. According to Sheffield, uniformed County Police officers in marked County Police vehicles blocked traffic intersections along the route so that the motorcyclists could pass through without stopping.
Sergeant Sheffield refers to the event as “2006 Pursuit For Kids Toy Drive.”
During the ride, appellants were injured in a multivehicle collision occurring on the Harbor Freeway. They were transported to the hospital for treatment and Sergeant Sheffield, once again in uniform, visited them there the next day. During that visit, Sheffield gave one of the appellants his County Police business card, with his name, rank and telephone number on it, and told them to call him if they needed anything. Sheffield had no further contact with appellants. Neither appellant recalls seeing Sheffield in the hospital after the collision.
Appellant’s attorney, David Hoffman, retained investigators to identify, locate, and obtain “copies of permits; copies of policies and procedure; promotional material; sponsor information; and any additional documentation filed with the City or County of Los Angeles” relevant to the event. A letter to Hoffman from the investigators dated January 26, 2007, states that a representative of the California Highway Patrol (CHP) “advised that he would contact the [County Police] in order to verify any escort of, or documentation regarding, the Holiday Toy Run on November 26, 2006.” The letter also states that, based on information from the CHP, the investigators contacted Sergeant Sheffield of the County Police to “inquire regarding any permits, requests, or documents that had been processed, through their department, relevant to” the Holiday Toy Ride. Sheffield told the investigators “that he would not provide any information without a subpoena.” When the investigator contacted Sheffield a second time, Sheffield stated: “ ‘There are no documents that are handled through the department [County Police]. All we do for [Harley] during the Holiday Toy Run is escort them on their ride.’ He then confirmed that the [County Police] did, in fact, escort the riders on the Holiday Toy Run on November 26, 2006.” Sheffield reiterated that he had no documents regarding the escort. The investigators spoke to other County Police employees, but each person they spoke to referred them back to Sheffield.
On June 27, 2007, appellants filed an action against Harley and Does 1 through 50, the gravamen of which was that appellants were injured as a result of Harley’s negligence in planning, executing and managing the event. A second amended complaint was filed on October 26, 2007.
At the time they filed their complaint, appellants aver they had never heard of the “Los Angeles County Police.” Notwithstanding the letter to Attorney Hoffman from his investigator describing their contacts with Sergeant Sheffield and other County Police employees, Hoffman alleges that he was familiar with the Los Angeles county (the county) Office of Public Safety and understood “Los Angeles County Police” as “a general reference to one of many different law enforcement agencies that have jurisdiction in Los Angeles County.” Later, he discovered that “Los Angeles County Police” is now the name for what Hoffman knew as the county’s Office of Public Safety.
Hoffman realized that the County Police was a specific public entity on November 8, 2007, when Harley produced in discovery a copy of a press release dated November 22, 2006, which states: “Last year, the [County Police] and [Harley] had a very successful Toy Drive. With the gracious assistance of [Harley], we collected and distributed thousands of toys during the holidays.... [¶]... The ride is jointly sponsored by [Harley].... The [County Police] will escort the riders, and the CHP will also provide a motorcycle escort.” The press release identifies Sergeant Sheffield as the person to contact for further information about the event.
On November 14, 2007, appellants presented the county and the County Police with a petition to present a late claim against the county and County Police based on mistake, inadvertence and excusable neglect. The petition summarized appellants’ claim against the county and County Police as follows: “According to a press release by [County Police, the County Police was] to provide escorts for the riders.... As a result of [Harley’s and County Police’s] negligent planning and execution of the ride... there was an inadequate buffer between riding participants and third-party vehicles that led to confusion, distraction, and an accident involving claimants....” The petition states that until claimants received a copy of the press release “there was no evidence from or by [County Police] that it was specifically involved in the Holiday Toy Run of November 26, 2006.... Moreover, the moniker of [County Police] is confusing in that it was formerly known as the Los Angeles County Office of Public Safety, and thus its new name was not immediately recognizable as a government entity as distinguished by a general reference to police in Los Angeles County, which implicates numerous entities and agencies.” The county denied the petition a few days later.
On December 17, 2007, appellants filed a petition with the trial court to permit them to bring this action against the county and County Police and to excuse their non-compliance with sections 911.2 and 945.4. The county opposed the petition on the ground that appellants failed to exercise the requisite diligence to discover the county’s participation in the Holiday Toy Drive. The county’s opposition was supported by photographs of the event route showing various marked County Police vehicles and by Sergeant Sheffield’s declaration stating: he was in uniform that day and driving a marked County Police vehicle; County Police officers in marked County Police vehicles blocked traffic intersections during the event; Sheffield visited appellants in the hospital the next day and gave them his County Police business card.
Alternatively, the county argues that it has been prejudiced by the delay in bringing it into the litigation because it will be “virtually impossible to conduct a thorough investigation as to the many potential witnesses who were present during the” Holiday Toy Ride. The argument appears disingenuous as Harley has brought the county into the litigation with a cross-complaint for indemnity filed against the “Los Angeles County Office of Public Safety aka Los Angeles County Police.” We grant appellants’ request that we take judicial notice of Harley’s cross-complaint, Harley’s second amended cross-complaint and the county’s answer to the second amended cross-complaint.
At the January 23, 2008 hearing on the petition, the trial court’s written tentative opinion was to deny the petition because appellants “failed to establish that any attempt was made to ascertain [County Police’s] involvement in the rally....” and thus appellants did not make the requisite showing that their failure to present a timely claim was due to mistake or excusable neglect. Hoffman argued that at the time they filed their complaint, appellants had no “evidence that any law enforcement entity was specifically involved with this.” He elaborated: “So there was no evidence that we could reasonably get a hold of until we received [in discovery the press release that identified] Officer Sheffield as the person in charge and responsible.” The trial court granted Hoffman’s request to continue the hearing to February 6, 2008, so that Hoffman could file additional evidence showing that appellants exercised due diligence. That day, Hoffman filed a copy of the January 26, 2007 letter from the investigators.
At the hearing, the trial court observed that the investigator’s letter “states that Sheffield says he then confirmed that the [County Police] did, in fact, escort the riders on the Holiday Run on November 26.” Thus, appellants had knowledge of the County Police’s involvement in the event. The trial court concluded: “Well, I think you were diligent, and I think you were successful in your diligence. Seems to me that you were diligent. The investigation revealed that the [County Police] escorted.” The trial court denied the petition. Appellants filed a timely notice of appeal.
Appellants ask us to augment the record with depositions taken during the trial; because the depositions were not before the trial court in ruling on the preliminary judgment motion, the request to augment is denied.
DISCUSSION
1. Standard of Review
“On appeal from the denial of a petition for relief from the provisions of section 945.4 pursuant to section 946.6, the standard of review is abuse of discretion. [Citation.] ‘[T]he trial court’s discretion to grant relief is not “unfettered.” [Citation.] It is “ ‘to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” [Citation.]’ [Citation.]” (Favorite v. County of Los Angeles (1998) 68 Cal.App.4th 835, 839.)
2. Denial of the Petition Was Not an Abuse of Discretion
Appellants contend the trial court’s denial of its petition was an abuse of discretion. They argue that the county’s participation in the events that resulted in appellant’s injuries was not discovered until Harley turned over the press release in discovery and that Sergeant Sheffield “could have prevented the misunderstanding when he was contacted by appellants’ investigators.” We disagree.
Generally, “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented... until a written claim therefor has been presented to the public entity” and has been rejected or deemed rejected by that entity. (§ 945.4.) A claim for personal injury must be presented within six months after accrual of the cause of action. (§ 911.2, subd. (a).) A written application for leave to present a claim more than six months after the cause of action has accrued may be made to the public entity “within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.” (§ 911.4, subd. (b).) The public entity shall grant the application where failure to timely 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 the failure to present the claim within the time specified in Section 911.2.” (§ 911.6, subd. (b)(1).)
If the public entity denies the application to file a late claim, the claimant may petition the superior court for an order relieving him or her from section 945.4. (§ 946.6, subd. (a).) The trial court makes an independent determination of the petition on the basis of the petition, any affidavits filed in support or opposition to it, and any additional evidence received at the hearing. (Id., subd. (e).) It may relieve the petitioner from the requirements of section 945.4 if it finds the application was made within a reasonable time not to exceed six months (in the case of a personal injury claim) and “[t]he failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect....” (§ 946.6, subd. (c)(1).)
“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. 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.]” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) A claimant is required to show “within the statutory time period he ‘ “did not know or have reason to know” ’ that a government entity is involved. [Citation.]” (Id. at p. 1294, italics omitted.) It is the claimant’s burden to make this showing by a preponderance of the evidence. (Id. at p. 1293.) “When there is a readily available source of information from which the potential liability of a government entity may be discovered, a failure to use that source is deemed inexcusable.” (Id. at p. 1294.)
Here, the issue is whether appellants knew or had reason to know that County Police was involved and potentially liable. Appellants’ own evidence submitted in supported of their petition in the trial court establishes that they did. Appellants’ theory of liability was the County Police failed to provide an adequate escort for the riders resulting in “an inadequate buffer between riding participants and third-party vehicles” that led to the accident. The investigator’s letter to Hoffman established that as early as January 2007, some 11 months before submitting a claim, appellants’ counsel knew that County Police was responsible for providing the motorcyclists with an escort over the public highways. This should have been enough to alert appellants that County Police was an entity and to its potential liability. That appellants did not know until months later that County Police may have been a “joint sponsor” of the event with Harley did not materially change appellants’ theory that the County Police was negligent in the manner it escorted the motorcycle drivers.
DISPOSITION
The order is affirmed. Each side shall bear their own costs on appeal.
WE CONCUR: BIGELOW, J. BAUER, J.
Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.