TERESA LEBRON ET AL VS AUGUST JOHNSON

Case Number: BC681773 Hearing Date: June 06, 2018 Dept: 2

Demurrer to the First Amended Complaint by Defendant City of Los Angeles is SUSTAINED without leave to amend. The motion to strike is moot.

On November 2, 2017, Plaintiff Teresa Lebron (“Plaintiff”) filed the instant suit against Defendants August Johnson (“Johnson”), the City of Los Angeles (the “City”), and the Los Angeles Department of Transportation (“LADOT”) (collectively “Defendants”). On April 5, 2018, Plaintiff filed her First Amended Complaint (“FAC”), alleging three causes of action for 1) Vehicular Negligence, 2) Negligence Per Se, and 3) Equitable Estoppel.

The FAC arises from an automobile accident between Plaintiff and Johnson, an employee of LADOT. On September 6, 2016, she was rear ended by Defendants’ vehicle because Johnson was following too closely. (FAC ¶¶ 11-13.) The FAC further alleges that on September 9, 2016, Plaintiff submitted a claim to the City with the claim number C16-7127 (the “first claim”).[1] (FAC ¶ 21.) On October 11, 2016, the City denied the claim, but Plaintiff did not receive the denial letter. (FAC ¶ 22.) Plaintiff subsequently retained counsel and her counsel contacted the City on October 26, 2016 regarding her first claim. (FAC ¶ 22.) On that date, counsel was given the first claim’s claim number. (FAC ¶ 22.) Plaintiff alleges that Defendants knew that the first claim was rejected on October 11, 2016, but purposefully hid this fact from Plaintiff despite telling counsel of the claim number. (FAC ¶¶24-28.) On March 6, 2017, Plaintiff made a second claim with the City regarding the accident with the claim number C17-10194 (the “second claim”) because she was unaware of previous claim she filed. (FAC ¶¶ 29-32.)

The City demurs to the entire complaint on the grounds that Plaintiff’s complaint is barred by the statute of limitations as Plaintiff did not file the instant suit within 6 months of the denial of her first claim. Code of Civ. Proc. § 430.10(e).

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

Meet and Confer

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP § 430.41, 435.5.) If the pleading is amended, the demurring party must meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading. (Ibid.) While the City’s counsel’s declaration demonstrates that the parties met and conferred regarding the original complaint, they did not do so for the FAC. (Sawaf Decl. ¶¶ 2-8, Ex. C.) On this occasion, the Court will proceed to address the merits of the demurrer despite the insufficiency of the meet and confer. The Court cautions the parties that a meet and confer effort is required for each subsequent pleading.

Request for Judicial Notice

The City requests that the Court take judicial notice of the following supplied documents:

Exhibit A – the Claim for Damages filed against the City on September 13, 2016

Exhibit B – Denial Notice;

Exhibit C – Claim for Damages filed against the City on March 6, 2017;

Exhibit D – the original Complaint in the instant case; and

Exhibit E – the FAC in the instant case.

Here, the Complaint and the FAC are court records and judicial notice is properly granted. (Evid. Code § 452(d).) The Claims and Denial are properly subject to judicial notice as “official acts” and records maintained by the City. (Evid. Code § 452(c); see also Commercial Union Assurance Company v. City of San Jose (1982) 127 Cal.App.3d 730, 740; Pan Pacific Properties, Inc. v. County of Santa Cruz (1978) 81 Cal.App.3d 244, 255 fn. 2; Harney v. State of California (1963) 217 Cal.App.2d 77, 86.) Therefore, these requests are GRANTED. (Evid. Code § 452(e)(d).)

Demurrer: Government Claims Statute of Limitations and Equitable Estoppel

Under the Government Tort Claims Act, the general rule is that any party with a claim for money or damages against a public entity must first file claim directly with that entity; only if that claim is denied or rejected may the claimant file a lawsuit. (Govt. Code §§ 905, 945.4; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894.) This provides the public entity with an opportunity to evaluate the claim and decide as to whether it will pay on the claim. (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474.) Failure to allege facts in the complaint demonstrating compliance with the pre-litigation governmental claims presentation requirements subjects the complaint to a general demurrer. (State of Calif. v. Superior Court (2004) 32 Cal.4th 1234, 1239; see also V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509 [affirming trial court decision to sustain demurrer without leave to amend on the ground that V.C.’s failure to timely comply with the requirements of the Tort Claims Act barred her action].)

The public entity is required to give written notice of its rejection or of its inaction. (Gov. Code § 913.) Failure to do so waives the public entity’s defense based on untimeliness even if the claim is otherwise insufficient. (Gov. Code § 911.3(b).) Notice of rejection may be given either by personally delivering the notice to the claimant, or by mailing to the claimant at whatever address is designated in the claim. (Gov. Code §§ 913(a), 915.4.) Proof of mailing is sufficient to trigger the six-month limit for filing suit, and there is no requirement that the notice actually be received. (Him v. City & County of San Francisco (2005) 133 CA4th 437, 444.)

The 6-month period provided for filing suit after notice of rejection supersedes other applicable statutes of limitations. (Gov. Code § 945.6.) Further, if written notice is not given, there is a two year statute of limitations. (Gov. Code § 945.6.) Thus, a suit more than 6 months after a noticed rejection is barred even if the statute of limitations on the claim has not yet run. (Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1202.)

Here, the instant suit was filed on November 2, 2017, more than 6 months after the denial of Plaintiff’s first claim on October 11, 2016. (See RJN Exs. B, D.) The complaint is therefore time barred on its face. Thus, Plaintiff would need to assert sufficient facts to allege tolling or estoppel. Plaintiff asserts estoppel.

“[A] public entity may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act.” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445; City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 744; Santos v. Los Angeles Unified School Dist. (2017) 17 Cal.App.5th 1065, 1077.) Equitable estoppel may be based on misleading statements by a public officer about the need for or advisability of filing a claim and actual fraud or intent to mislead is not required. (John R., supra, 48 Cal.3d at 445.) Generally, whether equitable estoppel applies is a question of fact. (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 708.) However, equitable estoppel may be resolved as to whether the undisputed facts constitute a sufficient legal basis for equitable estoppel. (Ibid.) Additionally, the equitable estoppel doctrine acts defensively only, “there is no stand-alone cause of action for equitable estoppel as a matter of law.” (Joffe v. City of Huntington Park (2011) 201 Cal.App.4th 492, 513 n.15.)

To establish estoppel, a plaintiff needs to allege that: 1) plaintiff was ignorant of the true facts; 2) the public entity was apprised of the true facts; 3) the public entity intended its statements or conduct be relied upon; and 4) plaintiff reasonably relied on the public entity’s statements or conduct to its detriment. (See Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305; Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1044.)

Plaintiff has failed to allege the necessary factual allegations. Fundamentally, no conduct or omission is alleged on the part of the City that induced Plaintiff into inaction. Plaintiff alleges her counsel called the City and “asked for a claim number to refer to in regards to the September 6, 2016 accident involving the parties hereto.” (FAC ¶ 22.) The City employee gave counsel the claim number “without mentioning that the claim had been denied or even had been made.” (FAC ¶ 22.) The FAC further alleges that at “the time Plaintiff’s counsel requested a claim number the claim had already been denied and this fact was purposely withheld and hid from Plaintiff’s counsel.” (FAC ¶ 23.) Further, on October 27, 2016, Plaintiff’s counsel wrote a letter to the City regarding potential video evidence, referring to the first claim number. (FAC ¶ 24.) The FAC re-asserts that Defendants actively hid the fact the claim had been rejected in an attempt to have Plaintiff miss the cut-off period. (FAC ¶ 24.) Plaintiff effectively asserts that the City employee should have informed Plaintiff’s counsel that Plaintiff’s claim was denied without counsel prompting the employee to do so, or making any misleading statements. Plaintiff therefore argues that the City’s employee should have reasonably inferred that Plaintiff did not know that his claim was denied—despite the denial letter—and that the employee’s failure to bring up that fact sua sponte was a purposeful omission. (FAC ¶¶ 22-24.)

Plaintiff asserts that the second claim, which was not acted upon by the City, must be treated as a separate claim and was timely filed within 6 months of the accident. The basis for the second claim is the same September 6 accident that gave rise to the first claim. (FAC ¶ 2.) Therefore, the second claim is admittedly just the first claim, resubmitted. (FAC ¶ 21.) This would neither logically extend the statute of limitations already imposed by the denial of the first claim, nor would it somehow manufacture equitable estoppel. (FAC ¶ 2.) Plaintiff presents no authority that would support either conclusion. (See Opp. pp. 5-6.)

As to estoppel, Plaintiff contends that the City gave Plaintiff a new claim number knowing of the existence of the first claim was intended to confuse Plaintiff into believing there was no previous claim or denial. (Opp. p. 6:9-16; FAC ¶¶ 28-30.) This argument is based on Plaintiff’s allegation that on March 6, 2017, she was somehow “unaware of any previous claims having been made or denied.” (FAC ¶ 29.) This, of course, directly contradicts the facts alleged as to the first claim, where Plaintiff admits that she knew of the original claim since she filed the claim and was given the first claim’s number by the City. (FAC ¶¶ 22-24.) These contradictory allegations should be disregarded, even on demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“The courts… will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents or allegations contrary to facts where are judicially noticed”].)

To sum, Plaintiff does not supply authority that the City had any duty to tell Plaintiff of her denial, beyond the initial denial letter. There are no allegations of active misrepresentations, misleading statements, inducement of delay, or any other conduct attributable to the City. (John R., supra, 48 Cal.3d at 445 [misleading statements]; J.P., supra, 232 Cal.App.4th 323, 334 [inducing delay—school district officials instructed minor pupils’ parents not to discuss sexual molestation by teacher with anyone].) Further, the FAC does not allege any misleading statements or other affirmative act that prevented or deterred Plaintiff from filing of a timely suit. Therefore, there are no factual allegations to support the contention that the City intended the omission to be relied upon, or that Plaintiff reasonably relied upon such an omission. The Court simply cannot interpret the facts alleged as supporting the conclusory allegation that Defendants omitted the denial of the claim at any point and that caused Plaintiff’s delay. As such, the FAC fails to allege the doctrine of equitable estoppel to save itself from the statute of limitations created by the Government Claims Act.

Accordingly, the City’s demurrer is SUSTAINED. Leave to amend will only be granted if Plaintiff provides sufficient facts that demonstrate a reasonable probability of successful amendment given the deficiencies discussed above. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.)

Motion to Strike

The motion to strike is moot per the ruling on demurrer.

Moving party is ordered to give notice.

[1] Note that the FAC alleges that the first claim was submitted on September 9, 2016. However, the claim supplied by Defendant reflects that it was submitted on September 13. Plaintiff’s opposition concedes this minor point.

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