Birdsong vs. City of Newport Beach

16 Birdsong vs. City of Motion – Other (Petition for Order Newport Beach Relieving petitioner from the Claim- Presentation Requirement of 2026-01560089 Government Code § 945.4)

Petitioner/plaintiff Phillip Birdsong’s petition for relief from the claims presentation requirement of Government Code section 945.4 is DENIED.

Petitioner has failed to demonstrate that “[t]he failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect....” (Gov. Code, § 946.6, subd. (c)(1).) “

‘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.” ’ [Citations.]” (Renteria v. Juvenile Justice, Department of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 910; Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293, 1296 (DWP).) Because a reasonably prudent person would exercise reasonable diligence in pursuing a claim, “[t]he party seeking relief based on a claim of mistake must establish he was diligent in investigating and pursuing the claim.” (DWP, at p. 1293.)

In other words, “[a] person seeking relief must show more than just failure to discover a fact until too late; or a simple failure to act. He must show by a preponderance of the evidence that in the use of reasonable diligence, he could not discover the fact or could not act upon it.” (DWP, at p. 1296; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1777 (Munoz); Greene v. State of California (1990) 222 Cal.App.3d 117, 121.)

Petitioner has not shown that he exercised reasonable diligence but nonetheless was unable to identify the County of Orange as the owner of the subject trail in time to present a timely government claim to the County. Petitioner has not submitted any evidence of the efforts that he or his counsel undertook to identify the responsible public entity. Nothing shows he undertook an investigation or even performed a simple internet search to determine which public entity or entities owned, controlled, and/or maintained the Bayview Trail/Back Bay Loop, the subject trial where petitioner fell. Instead, both petitioner and his counsel admit they erroneously assumed the City of Newport Beach was the responsible entity because the subject trail is located within the City, apparently ignoring the fact it is also located within the County. (See Foroozandeh Decl. ¶ 4; Birdsong Decl. ¶ 4.)

This is insufficient. California courts have repeatedly held that the failure of a claimant or claimant’s attorney to conduct a reasonable investigation into the identity of the owner of a governmental property is not excusable neglect. (See, e.g., DWP, supra, 82 Cal.App.4th at pp. 1295-1296 [there is no basis for relief where counsel fails to exercise reasonable diligence to discover the true owner of the site where the accident occurred; Greene v. State of California, supra, 222 Cal.App.3d at pp. 122-123 [same]; DeYoung v.

Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 864-865 [claimant and her counsel should have conducted an investigation into whether any other entity had any responsibility for the injury, even where the plaintiff was informed by a representative of the race track where she fell that the track was solely responsible for the injury; reliance on an adversary’s statements in the face of a statute of limitations is inexcusable neglect]; Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 157 [“a petitioner or his [or her] attorney must show more than that they did not discover a fact until too late; they must establish that in the use of reasonable diligence they failed to discover it. [Citations.]

There is a total absence of evidence that petitioner or her attorney exercised reasonable diligence (or any diligence) in an effort to ascertain the public status of [the defendant]”]; City of Fresno v. Superior Court (1980) 104 Cal.App.3d 25, 33 [where identity of public entity’s ownership of garage was readily ascertainable with minimal investigation but attorney simply assumed parking garage was privately owned, excusable neglect not shown because attorney “did nothing to ascertain the possible defendants that should be joined in his client’s suit”]; Black v.

County of Los Angeles (1970) 12 Cal.App.3d 670, 676-677 [“A petitioner must show more than that he did not discover a fact until too late; he must establish that in the use of reasonable diligence he failed to discover it”; “ ‘It stretches one’s credulity to believe that this information could not have been ascertained through the exercise of reasonable diligence. ...’ ”].)

Petitioner contends Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 278 (Bettencourt) supports relief, but that case is distinguishable. In Bettencourt, a student drowned while on a field trip sponsored by a community college. Less than four weeks before the claims statute was to expire, the attorney was hired. On being hired, he immediately investigated the accident, retained an investigator, and contacted the community college. Within four days of being hired, the attorney filed a claim with the state under the mistaken impression the employees of the community college were state employees.

Six weeks later, after the claims statute had expired, the attorney learned the employees of the community college were actually employed by a different public entity, and within three days, he sought leave to file a late claim. The Bettencourt court concluded the mistaken assumption was one a reasonably prudent person would have made because of the “confusing blend of state and local control and funding” for community colleges and their employees, and the attorney had otherwise shown diligent pursuit of the action. (Id. at pp. 276-278.)

Here, there is no indication petitioner or his counsel ever investigated who might be responsible for the subject trail. Petitioner and his counsel simply assumed the City was responsible for the trail just because it was located in the City, apparently without looking into the matter. (See Foroozandeh Decl. ¶ 4; Birdsong Decl. ¶ 4; see also Foroozandeh Decl., in passim; Birdsong Decl., in passim.) They then sat back and “reli[ed]” on the City’s claims handling process (see Foroozandeh Decl. ¶¶ 5-6), but it was not the City that was required to determine the proper public entity—that responsibility remained with petitioner at all times.

Relying on an adversary to conduct an investigation into the proper defendant for petitioner and/or the adversary’s claims handling process to alert them to the proper defendant in the face of a statute of limitations is inexcusable neglect. (See DWP, supra, 82 Cal.App.4th at p. 1296 & fn. 6.) “Where the lateness of the claim is attributable to the failure of the claimant or his counsel to conduct a reasonably prudent investigation of the circumstances of the accident, relief from the claims filing statute is not available.” (Id. at p. 1296.)

Defendant shall give notice.