SUSAN MULLOY vs. TOWN OF FAIRFAX

“(1) The failure to present the 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 if the court relieves the petitioner from the requirements of Section 945.4.

(2) The person who sustained the alleged injury, damage, or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim. (3) The person who sustained the alleged injury, damage, or loss was a minor during any of the time specified in Section 911.2 for the presentation of the claim, provided the application is presented within six months of the person turning 18 years of age or a year after the claim accrues, whichever occurs first. (4) 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 that disability failed to present a claim during that time. (5) The person who sustained the alleged injury, damage, or loss was physically or mentally incapacitated during any of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time, provided the application is presented within six months of the person no longer being physically or mentally incapacitated, or a year after the claim accrues, whichever occurs first. (6) The person who sustained the alleged injury, damage, or loss died before the expiration of the time specified in Section 911.2 for the presentation of the claim.”

(Gov. Code, § 946.6, subd. (c).)

The showing required of a petitioner seeking leave to file a late claim on the grounds of mistake, inadvertence, surprise, or excusable neglect is the same as that required by Code of Civil Procedure section 473 for relieving a party from default judgment. (People ex rel. Dep't of Transportation v. Superior Ct. (2003) 105 Cal.App.4th 39, 43–44. Internal citations omitted.)

The trial court's decision to grant or deny a petition for relief under Government Code section 946.6 will not be disturbed on appeal except for an abuse of discretion. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) “Abuse of discretion is shown where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief.” (Ibid.)

Discussion

Susan Mulloy’s (“Petitioner”) seeks Relief from Government Code section 945.4 (hereinafter “Petition”) on order to file a late claim against the Town of Fairfax (“the Town” or “Respondent”). Petitioner argues that she was injured in a pedestrian versus vehicle accident while crossing the street on July 23, 2024, that the six (6) month claim period expired on January 23, 2025, and that she failed to submit a timely claim. (See Petition, Ex. A, ¶¶ 1-3.) On or about April 17, 2025, Petitioner made written application to the Town for permission to file a late claim in accordance with the provisions of the Government Code section 911.4. (Petition, ¶ 4.) Petitioner's application for permission to file a late claim was denied by Respondent on or about May 16, 2025. (Id., ¶ 5.) She then filed this Petition to seek relief from the court.

Petitioner’s primary argument of why such relief should be granted is that she was delayed in submitting her claim because of the severity of her injuries. (Petition, Ex. A, ¶ 3.) She argues that she was physically incapacitated for the duration of the six (6) month claim period. (Id., ¶ 3.) She further argues that her attorney was delayed in discovering the basis for the claim against the Town because of the difficulty in obtaining critical evidence. (Ibid.) Her attorney first requested information from the Town on or about October 7, 2024. (Ibid.)

Although some information was sent over on November 18, 2024, video of the incident was not provided until December 10, 2024. (Ibid.) However counsel could not open the video link and requested a copy via portable drive, which was provided December 20, 2024. (Ibid.) Based upon the evidence depicted in the video, Petitioner’s attorney discovered a basis for a potential claim against the Town based upon the possibly negligent and/or defective design, construction, and maintenance of the crosswalk including but not limited to the pavement marking, the lack of pedestrian signaling device, and inadequate lighting. (Ibid.)

On Reply, Petitioner confirms that her primary argument is incapacity under Government Code section 946.6, subdivision (c)(5). (Reply, p. 7:14-23.) While it is true that Petitioner has provided evidence that she was seriously injured and physically and mentally incapacitated, she has not shown that she, “by reason of that disability,” failed to present a timely claim. As the Opposition points out, she had legal representation at least as of October 2024, perhaps sooner. Once legal counsel is retained, it is the responsibility of that attorney to diligently pursue the pertinent facts of the cause of action to identify possible defendants. (People ex rel. Dep't of Transportation v. Superior Ct., supra, 105 Cal.App.4th at pp. 44–45.)

The Petitioner has the burden of proving one of the statutory grounds for relief by a preponderance of the evidence. (Rodriguez v. County of Los Angeles (1985) 171 Cal.App.3d 171, 174.) On the record before the Court, Petitioner has failed to demonstrate that counsel diligently pursued the facts. (People ex rel. Dep't of Transportation v. Superior Ct., supra, 105 Cal.App.4th at p. 44 [“Excusable neglect” is defined as the act or omission that might be expected of a prudent person under similar circumstances. It is not shown by the mere failure to discover a fact until it is too late; the party seeking relief must establish that in the exercise of reasonable diligence, he failed to discover it.”].)

In order to evaluate whether such diligence was exercised, the Court would need to be apprised of when legal representation began, the steps counsel took to investigate Petitioner’s potential claims, and why the facts giving rise to the claim (possibly negligent and/or defective design, construction, and maintenance of the crosswalk including but not limited to the pavement marking, the lack of pedestrian signaling device, and inadequate lighting; See Petition, Ex. A, ¶ 3), could not have been discovered by a site visit, etc. Counsel should also be prepared to address the over one month period between receipt of the video and deadline to file a timely claim and why a claim could not have been submitted during that time period.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in

accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for June, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1

Meeting ID: 160 526 7272 Passcode: 026935

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov