Department of Water & Power v. Superior Court

Petitioner Department of Water and Power of the City of Los Angeles (DWP) seeks a writ of mandate directing the trial court to vacate its order granting a petition for relief from the claim presentations requirements of the Tort Claims Act under Government Code section 945.4 et seq. which order allowed claimant Sergey Dzhibinyan to file a late claim against the DWP based on a finding of “mistake” in the failure to file a timely government tort claim.

Relief from failure to timely present a government tort claim is available only if the applicant establishes by a preponderance of the evidence the failure was “through mistake, inadvertence, surprise, or excusable neglect.” (§ 946.6, subd. (c)(1).) Following our initial review of the petition and the record, we reached a preliminary conclusion that the so-called mistake was not excusable in view of the fact that Dzhibinyan and his counsel at all relevant times had possession of and/or readily available access to the information necessary to determine the potential liability of the DWP and simply failed to take the steps necessary to protect the right to seek relief.

We therefore notified the trial court and the parties of…