John Hesch, et al. v. County of Santa Barbara, et al

Case Number

25CV01798

Case Type

Hearing Date / Time

Wed, 11/26/2025 - 10:00

Nature of Proceedings

Petition For Order Relieving Petitioners from The Claim-Filing Provisions Of Government Code Section 945.4

Tentative Ruling

For John Hesch and Sheila Hesch: John R. Contos.

For County of Santa Barbara, Clerk of the Santa Barbara County Board of Supervisors, Cachuma Operation and Maintenance Board, and Parks Division of Community Services: Kristen M. Cortez.

For Cachuma Operation and Maintenance Board: Jeffrey Oneal.

RULING

For all reasons discussed herein, the petition of John Hesch and Sheila Hesch for an order relieving Petitioners from the claim filing provisions of Government Code section 945.4, and allowing Court action on the claim, is denied.

Background

On March 24, 2025, Petitioners John Hesch (John) and Sheila Hesch (Sheila) (collectively, Petitioners) filed a petition against Respondents the County of Santa Barbara (the County), the Clerk (the Clerk) of the Santa Barbara County Board of Supervisors (the Board), Cachuma Operation and Maintenance Board (COMB), and Parks Division of Community Services (Parks) (collectively, Respondents.) (Note: To avoid confusion due to common surnames, the Court will refer to Petitioners individually by their first names. No disrespect is intended.) The petition requests an order relieving Petitioners from the claim filing requirements of Government Code section 945.4. As alleged in the petition:

On September 17, 2023, John and Sheila, who is John’s wife, were visitors to the recreational areas surrounding Lake Cachuma, when John sustained serious injuries after John fell trying to reach the shoreline and the Mohawk Fishing Pier by using a poorly maintained trail near a designated parking area at the lake. (Pet., p. 2, ll. 4-7.) John was rendered unconscious for an unknown period of time, and when he awakened, he was unable to move his arms or legs. (Pet., p. 2, ll. 21-23.) After calling out to Sheila who dialed emergency services, John was airlifted to Cottage Hospital in Santa Barbara where he was diagnosed with herniated discs, which a later diagnosis revealed will require laminectomy, foraminotomy, and discectomy. (Pet., p. 2, ll. 23-26.) As a result of his injuries, John was placed on short term disability beginning on December 10, 2023, and long term disability beginning on December 20, 2024. (Pet., p. 2, ll. 27-28.)

On September 17, 2024, Petitioners presented to the Board an “Application for Leave to Present Late Claim” (the Application) made pursuant to Government Code section 911.4. (Pet., p. 3, ll. 4-6; p. 4, ll. 1-4.) (Note: Though Petitioners allege that a copy of the Application is attached to the petition, that document is not attached to the Court’s copy of the petition.) The Application states that John sustained severe injuries which will require major orthopedic surgery and which caused John to be placed on short and long term disability. (Pet., p. 6, ll. 15-19.) As to Sheila’s claim, the Board was made aware in the Application that Sheila was incapacitated with a brain tumor during all or some of the six-month claim period. (Pet., p. 6, ll. 25-27.)

On September 23, 2024, the Board provided notice (the Board Notice) of its denial of the Application. (Pet., p. 4, ll. 7-9.) (Note: A copy of the Board Notice is also not attached to the Court’s copy of the petition.) Although the Board could have taken 45 days or more to consider the Application, it issued its denial of the Application without citing any insufficiency, deficiency, or omission in the Application, including as to its timeliness. (Pet., p. 4, ll. 17-19; p. 5, ll. 12-14.)

Attached to the petition is a declaration of Petitioner’s counsel, John R. Contos (Contos), who states that on September 16, 2024, he was contacted and advised by Petitioners that Petitioners had just learned that there was a requirement to file a government tort claim. (Contos Decl., ¶ 2.) After agreeing to obtain information and perform research, Contos was able to assemble and serve a government tort claim and the Application by September 17, 2024. (Contos Decl., ¶ 3.) Contos received the Board Notice in the latter part of September 2024. (Contos Decl., ¶ 4.)

Contos further asserts that, at the time of the events described above, Contos was undergoing medical complications and providing care to his wife who was diagnosed with pancreatic cancer and hospitalized through January 10, 2025. (Contos Decl., ¶¶ 5-7.) Contos’ wife passed away on March 21, 2025. (Contos Decl., ¶ 7.)

On March 25, 2025, Petitioners filed an errata to which is attached a copy of the Application and Board Notice described in the petition and above, and a proof of service in which Contos declares, under penalty of perjury, that on the same date, Contos served the petition by email on Madeleine Orr (Orr), who is a Liability Analyst at the County’s Risk Management office. (Errata at pdf p. 13, Exh. A [Application] & Exh. B [Notice].)

On August 29, Petitioners filed a notice (the Hearing Notice) of the hearing on the petition which was scheduled for September 24, 2025. In the Hearing Notice, Petitioners state that on April 28, 2025, Samantha Francis (Francis), who is a Liability and Insurance Manager in Risk Management, advised Contos by email that service copies must be sent to the Clerk. (Aug. 29, 2025, Notice at p. 1, ll. 21-28 & p. 2, ll. 1-2.) The Hearing Notice includes a proof of service stating that on April 29, 2025, Contos served that notice, by mail, on the Clerk and the County’s Executive Office.

On September 24, 2025, the Court, after a hearing at which no appearances were made, entered a minute order (the Order) adopting its tentative ruling as follows:

“Government Code section 946.6 requires that “[a] copy of the petition and a written notice of the time and place of hearing shall be served before the hearing as prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure on (1) the clerk or secretary or board of the local public entity, if the Respondent is a local public entity....” (Gov. Code, § 946.6, subd. (d).) Service of the petition must be “effected in the same manner as service of summons in order to give the Court jurisdiction to enter an order against the public entity.” (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 200.) Code of Civil Procedure section 413.10 et seq. sets forth the manner of service of a summons within this state.

The Court has no record showing that Petitioners have served the petition or the Hearing Notice on each of the Respondents named in the petition, in the manner set forth in Code of Civil Procedure section 413.10 et seq. Therefore, and for all reasons discussed above, the Court has not obtained jurisdiction over Respondents.

For all reasons discussed above, the Court will continue the hearing on the petition to permit Petitioners to effect valid and compliant service of the petition on each of the Respondents, in the manner set forth in Code of Civil Procedure section 413.10 et seq., and Government Code section 946.6. The Court will also require Petitioners to serve each of the Respondents with an appropriate written notice of the hearing on the petition as required by Government Code section 946.6, and a copy of the Court’s ruling herein, and to file an appropriate proof of service of these documents.”

Pursuant to the Order, the Court continued the hearing on the petition to November 19, 2025, an ordered Petitioners to, on or before October 10, effect service of the petition, the Hearing Notice, and copy of the Order, on each of the Respondents named in the petition. The Court further ordered Petitioners to file a proof of such service on or before October 24.

On October 22, Petitioners filed three proofs of service signed under penalty of perjury by Colleen M. Dennis, who is ostensibly a registered process server, on October 20. (Oct. 22, 2025, Proof at pp. 2-4.) In these proofs of service, Dennis declares that on October 20, Dennis personally delivered copies of the petition, the Hearing Notice, and other supporting documents to Katherine Douglas, the Deputy Clerk of the Board and of Santa Barbara County Community Services, and Ed Lyons, the “CFO” of COMB. (Ibid.)

On November 5, 2025, COMB filed an opposition to the petition. On the same date, the County, the Clerk, and Parks (collectively, the County Defendants), separately filed an opposition to the petition.

The opposition of COMB is supported by a declaration of Edward Lyons (Lyons), who is the Administrative Manager and Chief Financial Officer of COMB. (Lyons Decl., ¶ 1.) Lyons states that COMB is an independent public California Joint Powers Agency formed in 1956 under Government Code section 6500 et seq., and not a subdivision of the County. (Lyons Decl., ¶ 3.) According to Lyons, COMB is an agent of the United States Bureau of Reclamation (USBR) pursuant to an agreement with USBR, and in that role, is responsible for the operation and maintenance of certain facilities and activities related to the federal Cachuma Project, which includes the delivery of water from Lake Cachuma to COMB’s Member Agencies through the Tecolote Tunnel. (Ibid.) COMB also operates and maintains the South Coast Conduit or “SCC” pipeline, including flow control valves, and meters and instrumentation at control stations and turnouts along the SCC and four regulating reservoirs. (Ibid.) COMB coordinates with USBR and the staff of COMB’s Member Agencies to ensure that water supplies meet daily demands. (Ibid.) COMB does not own, control or maintain Lake Cachuma or its surrounding recreational facilities. (Ibid.)

Lyons further states that on October 20, 2025, COMB was served with the Hearing Notice described above. (Lyons Decl., ¶ 4.) Lyons asserts that this was the first and only notice of any claim against COMB relating to the purported incident which occurred on September 17, 2023, and that prior to this date, COMB had not received any claim or application to present a late claim from Petitioners or anyone on their behalf relating to that incident. (Ibid.)

Lyons has also reviewed the allegations of the petition and states, from the facts alleged, that it appears COMB does not own, control or maintain the location of the purported incident. (Lyons Decl., ¶ 5.)

The opposition of COMB is also supported by a declaration of its counsel, Jeffrey F. Oneal, who states that on October 23, 2025, Oneal sent Petitioners’ counsel correspondence asserting that the petition is procedurally defective due to Petitioners’ ostensible failure to present a claim or an application to present a late claim to COMB and, requesting that Petitioners dismiss the petition as to COMB. (Oneal Decl., ¶ 3 & Exh. A.) Oneal further states that no response to this correspondence was received from Petitioners. (Id. at ¶ 4.)

The County Defendants do not submit declarations or other materials in support of their opposition.

On November 18, 2025, the Court entered an order continuing the hearing on the petition to November 26. On this same date, Petitioners filed a request for dismissal of the action, with prejudice as to COMB only.

As of this writing, Petitioners have not filed any additional documents in support of the petition, and have not responded to the opposition of the County Defendants.

Analysis

Subject to exception, “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 in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.” (Gov. Code, § 945.4.) The claim presentation requirement set forth in Government Code section 945.4 applies to “tort claims arising out of negligence, nuisance, breach of statutory duties, and intentional wrongs...” and “all actions where the plaintiff is seeking monetary relief, regardless whether the action is founded in ‘ “tort, contract or some other theory.” ’ [Citation.]” (Baines Pickwick Ltd. v. City of Los Angeles (1999) 72 Cal.App.4th 298, 307; Hart v. Alameda County (1999) 76 Cal.App.4th 766, 778.)

“A claim relating to a cause of action ... for injury to person or to personal property ... shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).) “When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.” (Gov. Code, § 911.4, subd. (a).) “The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) 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.” (Gov. Code, § 911.4, subd. (b).)

Relevant here, “[i]f an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the Court for an order relieving the Petitioner from Section 945.4.” (Gov. Code, § 946.6, subd. (a).) A petition made under Government Code section 946.6 “shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.” (Gov. Code, § 946.6, subd. (b).) “The clock for filing a petition begins to run from the date of denial or ‘deemed’ denial by the public entity, not from the date of personal delivery or mailing of the notice.” (Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817, 826 (Rason).) “This section 946.6, subdivision (b) language operates as a statute of limitations. It is mandatory, not discretionary.” (D.C. v. Oakdale Joint Unified School Dist. (2012) 203 Cal.App.4th 1572, 1582 (D.C.).)

The Board Notice described in the petition and attached as exhibit B to the errata described above, is dated September 23, 2024. (Errata, Exh. B at pdf p. 11.) The Board Notice states that the Application was denied on that date. (Ibid.) The Board Notice also states, as required by Government Code section 911.8, that any petition for an order relieving Petitioners from the provisions of Government Code section 945.4 “must be filed with the Court within six (6) months from the date your [Application] was denied.” (Ibid.; see Gov. Code, § 911.8, subd. (b).)

“The plain meaning of section 946.6, subdivision (b), is that the six-month clock began to run on [September 23, 2024], the actual date of denial.” (Rason, supra, 201 Cal.App.3d at p. 823.) Petitioners filed the present petition on March 24, 2025, which the County Defendants concede is the first Court day after the six month time period expired on March 23, 2025. Excluding the last day to file the petition, which the parties here do not appear to dispute fell on a holiday (i.e., Sunday), the Court finds, for all reasons discussed above, that the petition was timely filed. (Code Civ. Proc., § 12; Tran v. Fountain Valley Community Hospital (1997) 51 Cal.App.4th 1464, 1466.)

A petition brought under Government Code section 946.6 must be filed in “a superior Court that would be a proper Court for the trial of an action on the cause of action to which the claim relates.” (Gov. Code, § 946.6, subd. (a).) The parties also do not appear to dispute that the petition was filed in the proper Court for a trial of any causes of action to which Petitioner’s claim relates. (See also Super. Ct. Santa Barbara County, Local Rules, rules 200-203.)

As noted in the Order, “[a] copy of the petition and a written notice of the time and place of hearing shall be served before the hearing as prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure on (1) the clerk or secretary or board of the local public entity, if the Respondent is a local public entity....” (Gov. Code, § 946.6, subd. (d).) Service of the petition must be “effected in the same manner as service of summons in order to give the Court jurisdiction to enter an order against the public entity.” (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 200.)

In their opposition to the petition, the County Defendants contend, and the record described above reflects, that service of the petition and Hearing Notice was made by Petitioners on the County after the deadline prescribed in the Order set forth above.

By substantively contesting the merits of the petition, the County Defendants have made a general appearance in this action. (Code Civ. Proc., § 1014; California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, 351-352 [general discussion].) “A general appearance by a party is equivalent to personal service of summons on such party.” (Code Civ. Proc., § 410.50, subd. (a).) A general appearance also “ ‘operates as a consent to jurisdiction of the person, ... curing defects in service.’ [Citation.]” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.) For these reasons, any defects in service of the petition or Hearing Notice on the County Defendants have been cured, or were waived or forfeited by the County Defendants. (Id. at p. 1147.)

“The petition shall show each of the following:

“(1) That application was made to the board under Section 911.4 and was denied or deemed denied.

“(2) The reason for failure to present the claim within the time limit specified in Section 911.2.

“(3) The information required by Section 910.” (Gov. Code, § 946.6, subd. (b)(1)-(3).)

The petition, on its face, shows that the Application was made to, and denied by, the County Defendants. The County Defendants do not appear to dispute that the petition states the reasons Petitioners failed to present a claim within the time limit specified in Government Code section 911.2, or that the petition includes information required by section 910. For these reasons, the undisputed record shows that the petition is procedurally compliant.

“In ruling on the petition, the trial Court ‘shall relieve the Petitioner from the requirements of Section 945.4’ to timely file a claim if two requirements are met. [Citation.]” (N.G. v. County of San Diego (2020) 59 Cal.App.5th 63, 72 (N.G.).) First the Court must find “that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6....” (Gov. Code, § 946.6, subd. (c).)

The petition, including matters shown in the errata, shows, without dispute by the County Defendants, that the incident at issue which purportedly caused injury to John occurred on September 17, 2023; that the Application was made on September 17, 2024, or within the one year limit prescribed in Government Code section 911.4; and that the Application was denied by the Board on September 23, 2024, pursuant to Government Code section 911.6. For these reasons, the Court finds that the Application was timely made within the time prescribed in section 911.4.

“Second, one of the [six] circumstances set forth in section 946.6, subdivision (c) must be shown by a preponderance of the evidence.” (N.G., supra, 59 Cal.App.5th at p. 72.) In their opposition to the petition, the County Defendants assert that the petition fails to show that Petitioners acted with diligence during the sixth month claim presentation period prescribed in Government Code section 911.2.

The County Defendants also assert that the petition does not allege any inability of John to communicate, comprehend, or authorize any action on his behalf notwithstanding that the petition asserts that John was disabled and requires surgery. In addition, the County Defendants assert that the petition shows that Sheila’s glioblastoma diagnosis occurred five months after the incident and is not alleged to have impaired her ability to understand, communicate, or direct others, and instead shows that Sheila was able to contact counsel on September 16, 2024.

The County Defendants further assert that delay by Petitioners has prejudiced the County’s ability to investigate and defend against the claim because the public coastal walkway where the incident occurred is subject to frequent maintenance, environmental changes, and heavy public use which, according to the County Defendants, makes an accurate reconstruction of the scene impossible. The County Defendants also contend that the County’s ability to locate witnesses, preserve evidence, and assess causation has been impaired.

For the reasons discussed above, the County Defendants argue, the petition fails to show that the failure to present a timely claim, a fact which is not reasonably disputed by Petitioners here, was not due to mistake, inadvertence, surprise, or excusable neglect, including as to whether Petitioners were physically or mentally incapacitated or disabled during all or any of the time specified in Government Code section 911.2, or whether the failure by Petitioners to present a timely claim was by reason of any incapacity or disability. (Opp. at pp. 5-6, 7-8 & 10-11.)

Based on the arguments advanced by the County Defendants and described above, and the allegations of the petition discussed herein, the circumstances at issue in this case include: “(1) [t]he 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[]”; “(4) [t]he 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[]”; and “(5) [t]he 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.” (Gov. Code, § 946.6, subd. (c)(1) & (4)-(5).)

“In this type of petition proceeding, a Petitioner has the burden of proving by a preponderance of evidence the necessary elements for relief.” (Rodriguez v. County of Los Angeles (1985) 171 Cal.App.3d 171, 175 (Rodriguez).) To decide the petition, “[t]he Court shall make an independent determination ... upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.” (Gov. Code, § 946.6, subd. (e).) “The granting or denial of a petition for relief under section 946.6 rests within the discretion of the trial Court....” (Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 156.)

“To obtain relief under section 946.6, subdivision (c)(1), ‘[t]he mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief. 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.’ [Citation.] ” Under the reasonably prudent person standard, ‘[e]xcusable neglect is that neglect which might have been the act of a reasonably prudent person under the circumstances.’ [Citation.] When relief is sought based on mistake, because of the reasonably prudent person standard ‘it is not every mistake that will excuse a default, the determining factor being the reasonableness of the misconception.’ [Citation.]

“A showing of reasonable diligence is required to establish that the Petitioner acted as a reasonably prudent person. When excusable neglect is claimed based on ignorance of a fact or failure to act on it, ‘[a] person seeking relief must show more than just failure to discover a fact until too late; or a simple failure to act. He [or she] must show by a preponderance of the evidence that in the use of reasonable diligence, he [or she] could not discover the fact or could not act upon it.’ [Citation.] Similarly, when mistake is claimed, ‘[t]he party seeking relief based on a claim of mistake must establish he [or she] was diligent in investigating and pursuing the claim ....’ [Citation.] Under this standard, ‘ “[f]ailure to discover the alleged basis of the cause of action in time is ... not a compelling showing in the absence of reasonable diligence exercised for the purpose of discovering the facts.” ’ [Citation.] Further, ‘the mere ignorance of the time limitation for filing against a public entity is not a sufficient ground for allowing a late claim.’ [Citation.]

“In most cases, ‘ “a Petitioner may not successfully argue excusable neglect when he or she fails to take any action in pursuit of the claim within the six-month period,” ’ including making an attempt to retain counsel. [Citation.]” (N.G., supra, 59 Cal.App.5th at pp. 73-74, original italics, fn. omitted; see also Ebersol v. Cowan (1983) 35 Cal.3d 427, 435 (Ebersol) [“the showing required for relief under section 946.6 because of mistake, inadvertence, surprise or excusable neglect is the same as required under Code of Civil Procedure section 473 for relieving a party from a default judgment”].)

Noted above, the only information, evidence, or arguments offered by Petitioners to show the necessary elements for relief appears in the petition, which includes the errata. Absent further information or evidence, it can be inferred from the petition that Petitioners undertook no effort to obtain counsel prior to September 16, 2024, or nearly a year after the incident at issue occurred. The petition also shows that, at the time they contacted Contos on September 16, 2024, Petitioners had been reading about statutes of limitation and learned that there was a requirement for filing a government claim.

“[A] Petitioner must show more than his or her failure to discover a fact until too late; the Petitioner must establish that in the use of reasonable diligence he or she failed to discover it.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1784.) “Moreover, a Petitioner may not successfully argue excusable neglect when he fails to take any action in pursuit of the claim....” (Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432, 439, original italics.)

Though the petition shows that Contos briefly investigated Petitioner’s claim after being contacted by Petitioners, and prepared and presented the Application one day later, wholly absent from the petition is any information or evidence, apart from the matters described above, showing when or by what means Petitioners undertook to read or learn about the necessity of presenting a claim within the time prescribed in Government Code section 911.2 before contacting Contos. Also absent from the petition is any information or evidence showing what, if any, investigation Petitioners undertook, or whether that investigation occurred within the time limit specified in section 911.2. Instead, the petition shows, expressly and by inference, that Petitioners undertook no efforts in pursuit of their claim until effectively one year after the incident at issue occurred.

For all reasons discussed above, the petition fails to show that Petitioners acted with reasonable diligence to discover facts in regard to the requirement that Petitioners present their claim within the time prescribed in Government Code section 911.2, or that in the use of any diligence, failed to discover that requirement. For these same reasons, the petition shows, at best, Petitioners’ mere ignorance of the claims presentment requirements which, without more, does not afford sufficient grounds for the relief sought in the petition.

The petition also includes no information or evidence showing that “within the statutory time period [Petitioners] ‘ “did not know or have reason to know “ ’ that a government entity is involved. [Citation.]” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1294 (Water & Power), original italics.) For example, the available information and evidence described above suggests that Petitioners were aware that a public entity was involved at the time they contacted Contos. (See, e.g., Contos Decl., ¶ 2 [stating that Petitioners learned that there was “a requirement to file a government tort claim.”].) Petitioners also present no evidence or information to show that they did not know a government entity was involved before they contacted Contos on September 16, 2024. Moreover, to the extent the petition shows that Petitioners were aware that the County Defendants were potentially liable, any “failure to use that source is deemed inexcusable.” (Water & Power, supra, 82 Cal.App.4th at p. 1294.)

Petitioners also include no facts showing that there did not exist any “readily available source of information from which the potential liability of [the County Defendants] may be discovered....” (Water & Power, supra, 82 Cal.App.4th at p. 1294.)

“[I]n certain exceptional cases, excusable neglect may be found based on extreme instances of physical or mental disability, or on debilitating emotional trauma, even if the Petitioner failed to take any action whatsoever in the initial six-month period.

“Under this line of cases, ‘[i]f a claimant can establish that physical and/or mental disability so limited the claimant’s ability to function and seek out counsel such that the failure to seek counsel could itself be considered the act of a reasonably prudent person under the same or similar circumstances, excusable neglect is established.’ [Citation.]” (N.G., supra, 59 Cal.App.5th at pp. 74-75.)

“To establish incapacity as a justification for relief from the [Tort Claims Act, codified as Government Code section 905 et seq.] requirements, a claimant must establish that he or she ‘was physically or mentally incapacitated during all of the [six-month period] for the presentation of the claim and by reason of that disability failed to present a claim during that time.’ [Citation.] The inquiry focuses only the state of the claimant; it is not relevant if others could have voluntarily filed a claim on the claimant’s behalf. [Citations.] However, if the claimant’s condition was such that the claimant could have authorized another to file the claim on his or her behalf, the claimant was not incapacitated from filing the claim. [Citation.] In other words, the type of disability which justifies relief from the [Tort Claims Act] on the grounds of incapacity is an all-encompassing disability which prevents the claimant from even authorizing another to file a claim for the claimant.” (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1384 (Barragan), original italics.)

The petition asserts that John was incapacitated and disabled during some part of the six-month claims period following the incident, as a result of herniated discs requiring surgery. (Pet. at p. 6, ll. 20-22.) The petition also shows that Sheila had a brain tumor during some or all of the six-month claims period. (Pet. at p. 6, ll. 25-27.) Apart from alleging that John was placed on short term disability from December 10, 2023, through June 2024, and on long term disability in December 2024, more than a year after the date of the incident (see Pet. at p. 2, ll. 27-28 & p. 6, ll. 17-19), the petition fails to set forth any dates of any incapacity or disability of Sheila.

The petition also fails to show that any physical or mental incapacity or disability of either John or Sheila was “all encompassing” such that Petitioners were prevented or unable to authorize another to file a claim on their behalf. (Barragan, supra, 184 Cal.App.4th at p. 1384 [discussing “the type of disability which justifies relief ... on the grounds of incapacity”].) For example, the petition fails to state facts showing the nature of any short or long term incapacity of John, including when or how long John was hospitalized, when or whether John was confined to bed or under medication, the extent of any assistance John required in attending to basic tasks and when, or when any surgery substantially interfered with John’s ability to seek out counsel prior to September 16, 2024. (Id. at p. 1385-1386.) Apart from generally asserting that Sheila had a brain tumor, the petition also includes no information or evidence showing when Sheila became incapacitated, or why any such incapacity prevented Sheila from authorizing another to file a claim on Petitioners’ behalf.

“Excusable neglect can be the result of disability. [Citation.] When a claimant is disabled, even if not so limited as to satisfy the incapacity basis for relief, that disability could justify a trial Court in concluding that the claimant’s failure to contact an attorney was itself excusable neglect.” (Barragan, supra, 184 Cal.App.4th at p. 1384, original italics.)

Even if the petition is sufficient to show that, during the time limit set forth in Government Code section 911.2, John and Sheila were physically disabled, wholly absent from the petition is any information or evidence showing why or in what manner these physical conditions or disabilities “so limited the [Petitioners’] ability to function and seek out counsel such that the failure to seek counsel could itself be considered the act of a reasonably prudent person under the same or similar circumstances....” (Barragan, supra, 184 Cal.App.4th at p. 1385.)

The Application attached to the errata, which was ostensibly prepared by Contos (see, e.g., Errata, Exh. A at pdf p. 5 [signature page]), also fails to show sufficient grounds for relief for the same reasons discussed above.

For example, in the Application, Contos states that John suffered “severe injuries” which let to John being eligible for short and long term disability, and that John’s disability is such that John requires assistance with daily living activities, ongoing medical care, and surgery. (Errata, Exh. A at pdf p. 4, ¶ 1.) The Application also states that, following the incident, Sheila underwent lung surgery in December 2023, and was diagnosed with glioblastoma in February 2024 necessitating radiation, surgery, and chemotherapy. (Errata, Exh. A at pdf p. 4, ¶ 2.) For the same reasons further discussed above, and considering that the date of Sheila’s alleged physical disability occurred three months after the incident, these assertions are also, without more, insufficient to establish excusable neglect.

For all reasons discussed above, and considering that the Application effectively restates the matters alleged in the petition, even if the Court “were to examine the [Application] to the County [Defendants] for permission to file a late claim in order to bolster up [Petitioners’] lack of valid evidentiary material in the petition..., this does not improve [Petitioners’] position.” (Rodriguez, supra, 171 Cal.App.3d at p. 176.)

In addition, the Court notes that the petition is not verified or signed by John or Sheila and does not include a declaration made by John or Sheila, that the Application does not appear to have been made or signed by John and Sheila, and that both the petition and Application appear to instead have been made and signed by Contos, only, “with no showing that [Contos] had any percipient knowledge of any of the facts, or that counsel was qualified to give his opinion as an expert witness.” (Rodriguez, supra, 171 Cal.App.3d at p. 175.) Under these circumstances, “there [is] simply no competent evidence before the trial Court upon which it could exercise its discretion.” (Ebersol, supra, 35 Cal.3d at p. 437.)

The petition also asserts that the Board has waived any defense to the petition by failing to cite in the Board Notice any insufficiency, defect, or omission in the Application.

As further detailed above, the Application is made pursuant to Government Code section 911.4, and requests that the Board grant Petitioners leave to present a late claim. (Errata, Exh. A at p. 1.) Government Code section 911.6 requires that the Board grant or deny the application within 45 days after it is presented, and that the Board grant the application if one or more of the conditions set forth in subdivision (b) of that section apply. Government Code section 911.8 sets forth the requirements for written notice of the Board’s action, including the warning that must be included in that notice if the Application is denied.

Based on the information and evidence described above, the present record is sufficient to show that the County Defendants complied with the provisions of Government Code section 911.6 and 911.8. Though a failure by a public entity to include the date of the board’s action on an application seeking leave to file a late claim may estop that public entity from relying on the time limits set forth in Government Code section 946.6, subdivision (b) (D.C., supra, 203 Cal.App.4th at p. 1581), the Board Notice includes the date of the Board’s denial of the Application. Petitioners fail to present any reasoned legal or factual argument showing why the Board was required to cite in the Board Notice any deficiencies in the Application.

For all reasons discussed above, Petitioners have failed to meet their burden to show, by a preponderance of the evidence, that their failure to present a claim was through mistake, inadvertence, surprise, or excusable neglect. As Petitioners have not met their burden, the Court need not reach the issue of prejudice raised in the opposition of the County Defendants. (DeVore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454, 459 [the Court must decide if granting the petition would be prejudicial “[u]pon finding an adequate showing that warrants relief...”]; N.G., supra, 59 Cal.App.5th 63, 73, fn. 5.) Therefore, and for these reasons, the Court will deny the petition.