Case Name: Tracy DeBorba v. Wei Zheng, et al.
Case No.: 18CV325190

This is a premises liability lawsuit. Tracy DeBorba (“Plaintiff”) alleges a garage door collapsed on her at a home owned by defendant Wei Zheng in San Jose, California. Plaintiff asserts causes of action against Wei Zheng for (1) negligence and (2) premises liability.

Additionally, Plaintiff alleges the house had been inspected and deemed safe by the Santa Clara County Housing Authority (the “Housing Authority”), which she claims is a “branch and/or agency” of the County of Santa Clara (the “County”). (Compl. at p. 7.) She also alleges the County should have corrected or warned her of the dangerous condition. On this basis, Plaintiff asserts the third cause of action for negligence against the Housing Authority and the County.

The demurrer by the County was sustained on August 21, 2018.

Presently before the Court is Plaintiff’s petition for leave to file late claim as to Housing Authority. Plaintiff did not timely present a government claim to the Housing Authority, based on her claim that she relied on information from the City of Santa Clara that the claim should be presented to the County. Also before the Court is Housing Authority’s demurrer and motion to strike, based largely on its argument that the complaint is fatally defective because it does not allege compliance with the Government Tort Claims Act.

Petition for Leave to File Late Claim

A plaintiff must present a public entity with an administrative claim prior to commencing a lawsuit against it for money or damages. (City of Stockton v. Super. Ct. (2007) 42 Cal.4th 737-38, citing Gov. Code, §§ 905, 945.4.) The claim must contain, among other things, the date, location, and “general description of the indebtedness, obligation, injury, damage or loss incurred. . . .” (Gov. Code, § 910.) A plaintiff must timely present the claim to the “pertinent” public entity. (See Spencer v. Merced County Office of Ed. (1997) 59 Cal.App.4th 1429, 1435 [plaintiff did not satisfy requirement when she presented claim to the wrong public entity].) When separate and distinct public entities are involved, a claim must be presented to each. (Jackson v. Bd. of Ed. of City of L.A. (1967) 250 Cal.App.2d 856, 858-59; see also Santee v. Santa Clara County Office of Ed. (1990) 220 Cal.App.3d 702, 713-14.)

“‘[F]ailure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.’” (City of Stockton, supra, 42 Cal.4th at p. 737, quoting State of California v. Super. Ct. (“Bodde”) (2004) 32 Cal.4th 1234, 1239.) A plaintiff must plead facts demonstrating he or she complied or was excused from complying with the claim presentation requirement, and his or her failure to do so renders the complaint subject to demurrer on the ground of failure to state facts sufficient to constitute a cause of action. (Bodde, supra, 32 Cal.4th at p. 1237.)

Contrary to the allegations in the Complaint and in arguments made by Plaintiff, the Housing Authority is a separate legal entity from the County. Health and Safety Code section 34200, et seq. (the “Housing Authorities Law”) was enacted to remedy the shortage of safe and sanitary housing available to individuals with low incomes in California. The Legislature authorized the formation of “public corporation[s]” known as housing authorities to carry out this policy goal. (Health & Saf. Code, § 34203.) A housing authority is indisputably a separate “corporate and politic public body, exercising public and essential governmental functions, and having all the powers necessary or convenient to carry out the purposes and provisions of [the Housing Authorities Law].” (Health & Saf. Code, § 34310.) A housing authority is a separate entity from and is not an agent of the city or county in which it operates. (People v. Holtzendorff (1960) 177 Cal.App.2d 788, 798-99; see also Housing Authority of City of L.A. v. City of L.A. (1952) 38 Cal.2d 853, 861-68.)

Plaintiff has not complied with the prerequisites for a petition filed with the Court for leave to present a late claim, as set forth in Government Code Sections 911.4 and 946.6. Section 911.4, governing applications to present late claim provides that: “(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. (b) 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. The proposed claim shall be attached to the application.”

Only after the application to the government entity to file a late claim is denied, may the Plaintiff then file a petition with the court for relief under Government Code Section 946.6.
Here, the Plaintiff never filed a tort claim or a request to file a late claim with the Housing Authority. Even after the Housing Authority filed its Demurrer and Motion to Strike the Complaint on April 26, 2018 arguing that Plaintiff had failed to timely file a government tort claim with the Housing Authority, the Plaintiff made no attempt to remedy the error by filing a request to file a late tort claim with the Housing Authority, but instead waited until just days before the one year statute of limitations ran, and two weeks before the hearing on demurrer to seek relief from the Court. As noted above, Plaintiff did not file her request for late claim with the Housing Authority first, as required by the Code section she relies on, Government Code section 946.6.

Plaintiff claims that she relied on the statements by the City of Santa Clara, who directed her to the County, and her mistaken belief that the County and the Housing Authority were the same entity. However, mistake of counsel is not a basis to grant a motion for relief from claim requirements. (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288.) As noted above, counsel’s failure to present a tort claim to the correct entity is not excusable neglect. (See Spencer v. Merced County Office of Ed., supra, 59 Cal.App.4th 1429, 1435 [plaintiff did not satisfy requirement when she presented claim to the wrong public entity].)

The complaint filed on March 20, 2018 names both “Housing Authority of Santa Clara County” and “The County of Santa Clara,” suggesting that Petitioner’s counsel was aware that they were separate entities. The declaration filed in support of the petition does not explain when Plaintiff’s counsel learned that Housing Authority and County were two separate entities, and does not explain why Plaintiff’s counsel waited until two days before the mandatory one-year statute of limitations to file the petition. Here, counsel failed to investigate before filing the lawsuit to identify who were proper defendants, and still failed to investigate even after told of the defect in the complaint by the Housing Authority. Counsel waited another two and a half months after Housing Authority’s demurrer was filed to seek relief from this court, without first filing the late claim with the Housing Authority as required. (See Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39.) The Court finds that counsel’s mistake or neglect was not excusable.

As the deadline for Plaintiff to present any claim, late or not, has expired (at the latest, one year from her injury as stated in section 911.4), her petition for leave to file late claim is DENIED.

Demurrer and Motion to Strike

In light of the Court’s order denying the motion for leave to file late claim, Plaintiff’s failure to comply with claim requirements is fatal to her claims against the Housing Authority. As noted above, “‘failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.’” (City of Stockton, supra, 42 Cal.4th at p. 737, quoting State of California v. Super. Ct. (“Bodde”), supra, 32 Cal.4th at 1239.)

Accordingly, the demurrer of Housing Authority is SUSTAINED. If a court sustains a demurrer based on the plaintiff’s failure to plead compliance with the claim presentation requirement, it may deny leave to amend if the complaint “is incapable of amendment.” (City of Stockton, supra, 42 Cal.4th at p. 747.) For example, if the statutory deadline for presenting a claim has passed such that the plaintiff cannot possibly amend the complaint to allege compliance with the claim presentation requirement, a court need not give leave to amend. (Meester v. Davies (1970) 11 Cal.App.3d 342, 348.) Here, the statutory deadline has passed. As the complaint cannot be amended to state a valid claim, the demurrer is sustained WITHOUT LEAVE TO AMEND.
Based on this ruling, the motion to strike is moot.

After Housing Authority has served notice of entry of the order signed by the Court, Housing Authority shall submit a proposed judgment after compliance with Rules of Court, Rule 3.1312.

The Court will prepare the order.