Hernandez v. City of Barstow

1

RONNIE HARLEY HERNANDEZ, Plaintiff and Appellant, v. CITY OF BARSTOW et al., Defendants and Respondents.

E075780

California Court of Appeals, Fourth District, Second Division

October 26, 2021

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County, No CIVDS2003864 John M. Pacheco, Judge. Affirmed.

Law Offices of Kevin O'Connell & Associates and Kevin O'Connell for Plaintiff and Appellant.

Ferguson Praet & Sherman, Peter Ferguson; Pollak, Vida & Barer, Daniel P. Barer and Anna L. Birenbaum for Defendants and Respondents.

OPINION

MILLER, J.

Plaintiff and appellant Ronnie Harley Hernandez (Hernandez) sued the defendants and respondents City of Barstow (the City) Barstow Police Officer Jose Barrientos (Officer Barrientos), and the County of San Bernardino (the County). Hernandez petitioned the trial court for an order relieving him of the requirement that his claim be presented to the City prior to filing the lawsuit. (Gov. Code, § 946.6, subd. (a).)^[1] The trial court denied Hernandez's petition. Hernandez contends the trial court erred because he demonstrated that his attorney, Mr. Kevin O'Connell (O'Connell), failed to present the claim to the City due to mistake, inadvertence, surprise, or excusable neglect. (§ 946.6, subd. (c)(1).) We affirm the order denying the petition.

FACTUAL AND PROCEDURAL HISTORY

A. PETITION FOR RELIEF

On May 24, 2019, Officer Barrientos allegedly used excessive force when arresting Hernandez. Hernandez hired O'Connell to represent him in the excessive force case. It is unclear when exactly Hernandez hired O'Connell. On September 12, 2019, O'Connell sent the Barstow Police Department (the Department) a notice of Hernandez's excessive force claim. The notice was sent via certified mail. The Department did not respond to the notice.

On February 5, 2020, O'Connell filed the original complaint in the case. The defendants were the County and Officer Barrientos. In the complaint, it was alleged that Officer Barrientos "was employed by Defendant County of San Bernardino as a Barstow Police Officer." On March 10, 2020, when O'Connell's attorney service attempted to serve the Department with the complaint, the process server was "informed that the Police Department was governed by the City of Barstow and that the City of Barstow was to be named and served."

On March 16, 2020, Hernandez filed a First Amended Complaint (FAC) adding the City as a defendant. In the FAC, Hernandez alleged that Officer Barrientos "was employed by Defendant County of San Bernardino and/or City of Barstow." From March 16 to June 1, 2020, the City's offices were closed due to the pandemic. The City was served with the FAC on June 3, 2020. On June 10, 2020, the City's attorney sent O'Connell a letter reflecting the excessive force claim was time-barred because it had not been timely served on the City.

On June 22, 2020, Hernandez applied to the City for leave to present a late claim. The application was mailed to the City. In the application, which was styled as O'Connell's declaration, O'Connell asserted, "The police report [for the alleged excessive force incident] does not state the name of the City of Barstow on its letterhead. Instead it has the County of San Bernardino logo and name on the letterhead. [¶] As a result, claimant[']s counsel believed that the Barstow Police Department was governed by the County of San Bernardino." O'Connell further explained that he "believed that the Barstow Police Department was is [sic] its own government agency and an obvious agent for the City of Barstow."

It is unclear if O'Connell believed the Department was an independent agency before or after being informed that it "was governed by the City of Barstow." On June 30, 2020, the City denied the application for leave to present a late claim.

On July 24, 2020, Hernandez petitioned the trial court for an order relieving him of the requirement that his claim be presented to the City prior to filing a lawsuit. In the petition, Hernandez asserted that O'Connell sent the September 12, 2019, notice of claim to the Department because O'Connell "believe[ed] that the Barstow Police Department was its own government agency and an obvious agent for the City of Barstow." Hernandez contended "that the failure to present the claim was through mistake, inadvertence, surprise, and/or excusable neglect."

B. OPPOSITION

In opposing the petition, the City raised two arguments. First, the City contended the trial court lacked jurisdiction to grant relief because Hernandez's application for leave to file a late claim was submitted to the City more than one year after May 24, 2019. The City contended Hernandez could have submitted a timely application, while the City's walk-in services were closed, via (1) mail, (2) a private delivery service, such as UPS, (3) a mail slot in the wall of the City's offices, or (4) an appointment for in-person assistance. During the shutdown, the City could also be contacted via telephone regarding how to serve the City. The City further asserted that the Governor's Executive Order N-35-20, which extended the deadline for presenting a government tort claim (§§ 910-911.2), did not extend the deadline for submitting an application for leave to file a late claim (§ 911.4).

The City's second argument was that O'Connell's negligence was inexcusable because O'Connell failed to establish that he "exercised any diligence in determining within the claim period whether the City of Barstow governs the Barstow Police Department." The City asserted, "An attorney has an affirmative duty to investigate to determine [the] proper parties to a cause of action," and the failure to conduct that investigation is inexcusable neglect. The City contended O'Connell never explained why he believed the Department was the proper agency to present with the tort claim. For example, it was unclear if O'Connell conducted research or based his belief on past cases against other police departments.

C. REPLY

In Hernandez's reply to the City's opposition, he asserted the trial court had jurisdiction to grant relief because the Governor's Executive Order N-35-20 extended, by 60 days, the deadline for submitting an application for leave to file a late claim. Hernandez contended the Executive Order cited" 'section 911 et seq., '" (emphasis in Hernandez's opposition), and that "et seq." included section 911.4 pertaining to applications for leave to file late claims. Thus, Hernandez contended he had one year and 60 days to file his application, which meant his application was timely, which meant the trial court had jurisdiction to grant relief.

In regard to excusable neglect, Hernandez contended that O'Connell "believed that the Barstow Police Department was its own government authority and, based on that belief, [Hernandez] submitted a claim to the Barstow Police Department." Upon learning "that the Barstow Police Department could not accept service of the lawsuit, he immediately amended the lawsuit by adding the City of Barstow as a defendant, believing that the Barstow Police Department was the agent for the City." Hernandez asserted that O'Connell "did not sit idly by and take no action. He prosecuted his client's case against the entity he believed was liable."

D. SUPPLEMENTAL OPPOSITION

On August 24, 2020, during a hearing on Hernandez's petition, O'Connell argued that the City should be equitably estopped from asserting Hernandez's claim was untimely because Officer Barrientos filed an answer in the case. Also during the hearing, O'Connell asserted that Bettencourt v. Los Rios Community College District (1986) 42 Cal.3d 270 (Bettencourt) held that failing to present the claim to the proper entity is "very minor excusable neglect." The trial court permitted the City to file a supplemental opposition concerning Bettencourt.

In its supplemental opposition, the City asserted the Bettencourt case involved an attorney who made a mistake after making diligent efforts to identify the proper defendant, whereas O'Connell failed to demonstrate any diligence in identifying the proper defendant. The City contended that the lack of evidence of O'Connell's diligence meant relief should not be granted.

E. RULING

The trial court reached the merits of the petition. The trial court explained that Hernandez's late application for leave to file a late claim could be explained by "the COVID-19 confusion."

In regard to the issue of excusable neglect, the trial court found, "[T]here are no facts in the declaration of [O'Connell] establishing his diligence within six months from the date of accrual. Mr. O'Connell's declaration begins with his September 12, 2019 presentation of his claim to the Police Department. But it is completely silent as to what occurred for the prior four months (after which the claims accrued). There is no indication of when he was hired, or what actions he took in relation to the City of Barstow. There is certainly no indication he was in contact with the City Attorney at any time within the 6-month presentation period."

The trial court found that O'Connell failed to explain why" 'he believed the Barstow Police Department was its own Government entity.'" The trial court wrote "Did he conduct some research, or was that just an assumption? As explained by the Fourth District Court of Appeal, Division One, 'an attorney's ignorance has never been held to be a sufficient excuse to justify an exception to a claims requirement.' [Citation] [¶] In short, the only evidence submitted by [Hernandez] relating to his failure to present a claim to the City within the 6-month presentation period is the declaration of his counsel establishing ignorance of the claims presentation requirement. [Hernandez] has...