Luers v. Smith

• Citation: 941 F.Supp. 105
• Decision Date: 07 October 1996
• Docket Number: No. EDCV 96-0266 RT (VAPx).,EDCV 96-0266 RT (VAPx).
• Parties: Mark LUERS, et al., Plaintiffs, v. Larry SMITH, et al., Defendants.
• Court: U.S. District Court — Central District of California

941 F.Supp. 105

Mark LUERS, et al., Plaintiffs, v. Larry SMITH, et al., Defendants.

No. EDCV 96-0266 RT (VAPx).

United States District Court, C.D. California, Eastern Division.

October 7, 1996.

Stephen Yagman and Marion R. Yagman, Yagman & Yagman, Venice, CA, for Plaintiff.

John M. Porter & Aaron Hancock, Roberts & Morgan, Riverside, CA, for Defendant.

COURT DETERMINATION THAT IT DOES NOT HAVE JURISDICTION TO DECIDE PLAINTIFFS' MOTION FOR AN ORDER RELIEVING THEM FROM THE PROVISIONS OF CALIFORNIA GOVERNMENT CODE SECTION 945.4

TIMLIN, District Judge.

The motion of plaintiffs Mark Luers and Michael Luers, minors, by their next friend, Diana Luers (plaintiffs), for an order relieving them from the provisions of California Government Code section 945.4 (motion) was submitted for decision.

Marion Yagman, Yagman & Yagman, appeared for plaintiffs. Aaron Hancock, Roberts & Morgan, appeared for defendants.

The court, the Honorable Robert J. Timlin, has reviewed the moving, opposing and reply papers. Based on such review, the court concludes as follows:

Plaintiffs are the minor sons of Edward Luers, who was allegedly shot and killed on February 22, 1995 by Riverside County (County) deputy sheriffs, whom plaintiffs allege were also employed by the City of Moreno Valley (City) at the time of the shooting. Plaintiffs also have sued a number of County and City legislative and administrative officials, City and County in connection with that shooting for damages for violations of 42 U.S.C. section 1983, as well as for negligence, battery and wrongful death, which are state claims supplemental to their federal civil rights claim.

California Government Code section 945.4 requires that before a 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, a written claim for money or damages must be presented to the public entity and acted upon by its board, or have been deemed rejected by the board. A claim relating to a cause of action for death or injury to a person must be presented no later than six months after the accrual of the cause of action. Cal.Gov.Code, § 911.2.

If such claim is not presented within that time, the claimant may make written application to the public entity for leave to present a claim late. Cal.Gov.Code, 911.4. Such late claim shall be presented 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." Cal.Gov.Code, § 911.4. In computing this one year period, the time during which the person who sustained the injury is a minor shall be counted.

The board of the public entity "shall" grant or deny the application to present a late claim within 45 days after it is presented, unless it and the claimant make a written application to extend such period. If the board fails to act, the application is deemed denied on the 45th day or if the period is extended on the last day of the period within which the board could act on the application. Cal.Gov.Code, § 911.6(c). The board "shall" grant the application if the person who sustained the injury was a minor during all of the time specified in section 911.2 for presentation of the claim. Cal.Gov.Code, § 911.6(b)(2).

If an application to present a claim pursuant to section 911.6 is denied or deemed denied, the would-be claimant may petition a court for an order relieving the petitioner from section 945.4. "The proper court for filing the petition is a court which would be a competent court for the trial of an action on the cause of action to which the claim relates and which is located in a county or judicial district which would be a proper place for the trial of the action, and if the petition is filed in a court which is not a proper court for the determination of the matter, the court, on motion of any party, shall transfer the proceeding to a proper court." Cal.Gov.Code, § 946.6(a). The granting of the petition does not then require the petitioner to present the claim to the public entity, but instead allows the petitioner to bypass the claims procedure altogether and proceed with the civil action. Los Angeles City School Dist. v. Superior Court, 9 Cal.App.3d 459, 467-468, 88 Cal. Rptr. 286 (1970).

Plaintiffs' claim accrued on February 22, 1995 when their parent was shot and killed. Knight v. City of Los Angeles, 26 Cal.2d 764, 768, 160 P.2d 779 (1945). Therefore, under section 911.2, plaintiffs had until six months after February 22, 1995, i.e., until August 24, 1995, to present a written claim as required by section 945.4. They did not do so, but they had one year from February 22, 1995, i.e., until February 22, 1996, to present an application for leave to present a late claim, pursuant to section 911.4. Plaintiffs did...