Filed 3/2/20 Gumm v. County of Stanislaus CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ROBERT GUMM,

Plaintiff and Appellant,

v.

COUNTY OF STANISLAUS,

Defendant and Respondent.

F076713

(Super. Ct. No. 2021535)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge.

Goyette & Associates; Del Rio & Caraway, Charles D. Caraway and Virginia L. Martucci for Plaintiff and Appellant.

Riggio, Mordaunt & Kelly, Michael R. Mordaunt and Richard J. Sordello, Jr., for Defendant and Respondent.

-ooOoo-

Robert Gumm was riding his motorcycle on a road in an unincorporated area of Stanislaus County when he hit a large pothole and fell off and injured himself. Believing the road had been negligently maintained, he mailed two letters, including a purported claim letter, to the Stanislaus County Public Works department’s office. He received no response and filed suit against “Stanislaus County Public Works” for negligence for the injuries he sustained.

The County of Stanislaus (the County) filed an answer to the complaint as “COUNTY OF STANISLAUS sued herein as STANISLAUS COUNTY PUBLIC WORKS.” The County alleged in its affirmative defenses Stanislaus County Public Works is not an independent entity with the capacity to be sued, and further alleged Gumm had failed to properly present a claim to the County under the Government Claims Act (Gov. Code, § 810 et seq.) (the Act), as was required to maintain his lawsuit. The County moved for summary judgment primarily on the basis Gumm had not complied with the Act’s claim presentation requirements. The trial court granted the motion and entered judgment for the County.

On appeal, Gumm contends the trial court erred by not ruling the County was estopped from asserting as a defense his noncompliance with the Act’s claim presentation requirements. The thrust of his estoppel argument was the County actively concealed that he had presented his claim to the wrong recipient until the time had expired to timely do so, and then filed its motion for summary judgment. We reject his argument.

The undisputed evidence demonstrates Gumm did not comply with the Act’s claim presentation requirements. He did not mail or deliver his claim to the County’s secretary, clerk-recorder, auditor, nor deliver his claim to the County’s governing board, and none of those individuals or entities actually received his claim. (§ 915, subds. (a)(2) & (e)(1).) This was fatal to his lawsuit. He also presented no evidence the County or any of its employees engaged in any acts of active concealment or other wrongdoing that would support an estoppel argument. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 16, 2016, Gumm was riding his motorcycle on a road in an unincorporated area of the County when he hit a large pothole and fell off and injured himself. On June 21, 2016, his counsel mailed a letter on his behalf addressed to “Stanislaus County Public Works[’s]” office. The letter stated Gumm was represented by counsel in connection with injuries he sustained in a motor vehicle accident and requested all further communication be directed to his counsel. Gumm explained this letter was mailed to Stanislaus County Public Works because the County of Stanislaus website indicates Public Works is the entity “ ‘responsible for the maintenance of the County’s road system.’ ”

On August 11, 2016, Gumm’s counsel sent a second letter via certified mail to Stanislaus County Public Works at the same address. The certified receipt was signed by County employee, Sylvia Jones, on August 16, 2016. The letter described the date and location of Gumm’s accident as well as the nature of his injuries, and notified the County of Gumm’s intent to sue if the County did not respond to the letter by August 22, 2016. The parties dispute whether the letter contained all the substantive requirements to constitute a claim, but we need not decide this issue because our opinion turns solely on whether the purported claim was properly presented. For convenience, though, we will refer to the August 11, 2016, letter as the “claim letter.”

The claim letter was stamped “received” by the County’s Risk Management department on August 17, 2016. It was the Risk Management department’s practice to forward “Claims for Money or Damages” to the Board of Supervisors. According to Kevin Watson, the Liability Claims Manager of the County’s Risk Management department, Gumm’s claim letter was not entitled as a “claim” so he did not forward it to the County’s Board of Supervisors, clerk/recorder, or the auditor/controller. Watson later received Gumm’s first letter dated June 21, 2016, on August 29, 2016, and did not forward it, either.

Gumm’s counsel did not receive a response to either of his letters. He also did not mail or deliver his claim to the County’s secretary, clerk-recorder, auditor, nor deliver his claim to the County’s governing board, and none of those individuals or entities actually received his claim.

On August 31, 2016, Gumm filed suit in Stanislaus County Superior Court against “Stanislaus County Public Works” alleging a single cause of action for negligence. The complaint did not allege Gumm had complied with the Act’s claim presentation requirements.

On October 7, 2016, the County filed an answer to Gumm’s complaint as “COUNTY OF STANISLAUS sued herein as STANISLAUS COUNTY PUBLIC WORKS.” The answer contained a general denial and alleged 22 affirmative defenses. The 15th affirmative defense read in part as follows:

“[T]his answering defendant specifically alleges that the Complaint fails to state facts sufficient to constitute a cause of action against STANISLAUS COUNTY PUBLIC WORKS in that it is merely an agency of a larger entity, namely, County of Stanislaus. The COUNTY OF STANISLAUS (hereinafter “COUNTY”) is a political subdivision of the State of California. STANISLAUS COUNTY PUBLIC WORKS is an agency of the COUNTY and not in and of itself an independent entity. As such, in order to proceed for an alleged tort committed against Stanislaus County Public Works, a plaintiff must proceed against the COUNTY. A plaintiff cannot directly proceed against STANISLAUS COUNTY PUBLIC WORKS.” (Emphasis added.)

The 17th affirmative defense read in part as follows:

“[T]his answering defendant alleges that the Complaint fails to state a cause of action against COUNTY OF STANISLAUS, a political subdivision of the State of California, or its agents, servants, or employees, in that the Complaint is barred by the claims presentation statute of limitations contained in the Government Tort Claims Act, Government Code Section 800 et seq., inclusive, and Section 900 et seq., inclusive, and specifically Sections 911.2 and 945.4.” (Emphasis added.)

Discovery ensued, and the County responded to a set of Gumm’s special interrogatories. In special interrogatory number 1, Gumm asked the County to provide “the name, address, and telephone numbers of the individuals responsible for maintaining the public roadway” where Gumm’s accident occurred on April 16, 2016. The County initially responded it was “Stanislaus County Public Works.” The County later supplemented its response to list Andrew Malizia, a civil engineer, as the person most knowledgeable of the subject.

On June 27, 2017, the County filed its motion for summary judgment on the dual grounds that Gumm did not comply with section 915’s claim presentation requirements and that his claim letter substantively did not constitute a claim. Gumm opposed the motion, including on the ground the County should be estopped from asserting as a defense his noncompliance with the claim presentation requirements because the County engaged in affirmative acts of concealment that prevented him from properly presenting his claim to an appropriate recipient. The trial court granted summary judgment solely on the ground Gumm did not properly present his claim, and in so doing rejected Gumm’s estoppel argument. Judgment was thereafter entered for the County.

DISCUSSION

Gumm argues the trial court erred in not allowing him to submit new evidence at the hearing—namely, the County’s responses to a set of form interrogatories—that was not included or even mentioned in his opposition papers. He also argues the trial court erred in not ruling the County should be estopped from asserting as a defense Gumm’s noncompliance with the Act’s claim presentation requirements. None of his arguments have merit, and the trial court was correct to grant summary judgment.

A. Standard of Review

A trial court may grant summary judgment upon a showing “that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); Albert v. Mid-Century Ins. Co. (2015) 236 Cal.App.4th 1281, 1289.) The purpose of summary judgment is to “cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

The moving party bears the initial burden of showing that the opposing party cannot establish “[o]ne or more of the elements of [its] cause of action” or by showing a valid affirmative defense. (Code Civ. Proc., § 437c, subds. (o), (p)(2).) If that burden is met, the “burden shifts” to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or [an affirmative] defense.” (Code Civ. Proc., § 437c, subd. (p)(2).) “ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Burgueno v. Regents of University of California (2015) 243 Cal.App.4th 1052, 1057, quoting Aguilar, supra, 25 Cal.4th at p. 850.)

We independently review a grant of summary judgment, “considering all of the evidence the parties offered in connection with the motion (except that which the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

B. Overview of the Government Claims Act

Under the Government Claims Act (Gov. Code, § 900 et seq.), all claims of personal injury for which a public entity, including a local public entity, is responsible must be filed within six months after the cause of action accrues. (§ 911.2, subd. (a).) This six-month time limit applies to negligence and intentional torts. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1238–1239.) Subject to exceptions not applicable here, “all claims for money or damages against local public entities” must be presented in accordance with the Act’s procedural requirements. (§ 905; DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990 (DiCampli).) The Act seeks to “eliminate confusion and uncertainty,” “confine potential governmental liability to rigidly delineated circumstances,” and give the public entity sufficient information to adequately investigate and settle claims. (DiCampli, at pp. 990–991.)

A litigant must present a written claim to the public entity as a condition precedent to filing a lawsuit for money or damages. (§ 945.4.) Presentation of a claim “ ‘is therefore an element that a plaintiff is required to prove in order to prevail.’ ” (DiCampli, supra, 55 Cal.4th at p. 990.) “Even if the public entity has actual knowledge of facts that might support a claim, the claims statutes must still be satisfied.” (Ibid.)

A “claim” does not require the same specificity as a pleading. (Stockett v. Association of California Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447.) It merely requires (1) “[t]he date, place and other circumstances” of the injury, (2) a “general description” of the loss, (3) names of those responsible (if known), (4) if the loss exceeds $10,000, whether the action would be a limited civil case, and (5) a signature. (§§ 910, subds. (c)–(f); 910.2.)

Once it receives a presented claim, a local public entity’s board has 20 days to give written notice of any defects or omissions in the claim. (§ 910.8.) “Any defense as to the sufficiency of the claim based upon a defect or omission in the claim as presented is waived by failure to give notice of insufficiency with respect to the defect or omission as provided in Section 910.8.” (§ 911.)

“Claims for personal injury and property damage must be presented within six months after accrual; all other claims must be presented within a year.” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738; see § 911.2, subd. (a).)

There are two ways to present a late claim. The first is to simply present the late claim without making an application for leave. (§ 911.3, subd. (a).) The public entity’s board or its designee must give written notice within 45 days that the claim was untimely or it waives the limitations defense. (§ 911.3, subds. (a)-(b).) The second method is to file a written application for leave to present a late claim with the public entity within one year from the date that the injury accrues. (§ 911.4, subds. (a)-(b).) If the board takes no action, the application is deemed denied in 45 days. (§ 911.6, subd. (c).) A plaintiff then has six months to petition the superior court for an order relieving him or her from the bar of section 945.4. (§ 946.6, subds. (a)-(b).)

Section 915 sets forth the exclusive means to present a claim. (DiCampli, supra, 55 Cal.4th at pp. 992–993.) A claim must be presented to a local public entity in one of two ways: (1) delivering the claim to the clerk, secretary, or auditor of the local public entity, or (2) mailing it to the clerk, secretary, auditor, or to the governing body at its principal office. (§ 915, subd. (a).) Alternatively, “actual receipt of the misdirected claim” by the “clerk, secretary, auditor, or board of the local public entity” satisfies the claims presentation requirement. (Id. at p. 992; § 915, subd. (e)(1).)

“The claimant bears the burden of ensuring that the claim is presented to the appropriate public entity.” (DiCampli, supra, 55 Cal.4th at p. 991.) Summary judgment in favor of the public entity is proper if a plaintiff fails to timely present a claim to the proper recipients under section 915. (Id. at pp. 991–993.)

C. Summary Judgment was Proper

1. Gumm did not properly present his claim

Gumm was injured on April 16, 2016, and approximately four months later, on August 11, 2016, his attorney mailed the claim letter to the County’s Public Works office address. There is thus no question his claim was timely submitted.

However, the insurmountable hurdle for Gumm is he presented his claim to the wrong recipient. There is no evidence showing Gumm mailed or delivered a claim to one of the statutorily designated recipients listed in section 915, subdivision (a): the County’s clerk, secretary, auditor, or the governing board. Nor is there any evidence that any of those designees actually received a claim to satisfy section 915, subdivision (e)(1). Under DiCampli, summary judgment was proper because Gumm did not strictly comply with section 915 in presenting his claim.

The facts in DiCampli closely parallel the facts in this case. In DiCampli, a patient sued two surgeons and a county hospital for malpractice. (DiCampli, supra, 55 Cal.4th at pp. 987–988.) The patient’s attorney prepared a letter notifying the defendants of her intent to sue them for negligence and personally delivered it to an employee of the medical staffing office in the hospital’s administration building. (Ibid.) Her claim was also never actually received by the County’s clerk, secretary, auditor, or board of supervisors. (Id. at p. 991)

The county filed a motion for summary judgment, contending the patient failed to comply with the Government Claims Act because her claim was never presented to or received by a statutorily designated recipient as required by section 915. (DiCampli, supra, at p. 989.) The trial court granted the motion for summary judgment. (Ibid.) The Court of Appeal reversed the trial court, concluding the patient had substantially complied with the claim presentation requirements of the Government Claims Act. (DiCampli, supra, at p. 989.) The California Supreme Court reversed the Court of Appeal, which reinstated the order granting the county’s motion for summary judgment. (Id. at p. 998.) Applying the plain language of section 915, subdivisions (a) and (e)(1), the court held that the plaintiff failed to meet the Act’s express presentation requirements, making summary judgment proper. (Id. at pp. 989, 991–992.) Thus, the court rejected the patient’s argument that “substantial compliance” with the claim presentation requirement is sufficient. (Id. at p. 992.)

The DiCampli court explained section 915, subdivision (a) “reflects the Legislature’s intent to precisely identify those who may receive claims on behalf of a local public entity.” (DiCampli, supra, 55 Cal.4th at p. 992.) Under section 915, subdivision (e)(1), “a misdirected claim will satisfy the presentation requirement if the claim is ‘actually received’ by a statutorily designated recipient.” (DiCampli, at p. 992.) “If an appropriate public employee or board never receives the claim, an undelivered or misdirected claim fails to comply with the statute.” (Ibid.) Actual receipt satisfies the goals of the claims statutes, which are “to provide entities with sufficient information to investigate and appropriately resolve claims and to plan for potential liabilities.” (Id. at p. 994.)

The Supreme Court emphasized it is the Legislature’s prerogative to determine who the proper persons are to receive a claim. (DiCampli, supra, 55 Cal.4th at p. 994.) A Court of Appeal “cannot override that determination simply because it concludes receipt by others should be considered sufficient.” (Ibid.)

Here, the County offered competent evidence showing that none of section 915’s statutory designees actually received Gumm’s claim letter. Neither delivery of the claim letter to a Public Works department employee nor receipt of the letter by the Risk Management department satisfied section 915’s requirements. The Public Works department is not an independent entity that can be sued; it is only a department of the County, and the County’s Secretary of State filings, pages from the County’s website, and other documents submitted into evidence prove this to be true.

Accordingly, the County met its burden on summary judgment to establish that there was no triable issue of material fact. (Code Civ. Proc., § 437c, subd. (c).) Gumm’s claim letter was never delivered to the County’s “clerk, secretary, or auditor” nor mailed to the “clerk, secretary, auditor, or to the governing body.” (§ 915, subd. (e)(1).) His failure to properly present a claim is fatal to his lawsuit. (DiCampli, supra, 55 Cal.4th at pp. 991–992; § 945.4.)

With the burden shifted to him, Gumm presented no evidence to create a triable issue of material fact and instead constructed waiver and estoppel arguments. Concerning estoppel, he argued the County committed acts of active concealment that prevented his claim from being delivered to a proper recipient. However, as we will explain, the trial court properly rejected his estoppel argument. We do not address waiver because Gumm has not appealed on that ground.

2. Estoppel does not apply

Gumm contends the County actively concealed that he presented his claim letter to an improper person, and argues the County should be estopped from asserting any defenses as to his noncompliance with the Act. As we will explain, Gumm’s arguments demonstrate a misunderstanding of the law of estoppel. The County did nothing to prevent or frustrate his ability to properly present his claim, and, because proper presentation never occurred, the County was never obligated to inform him of his noncompliance with section 915. Estoppel is inapplicable to the facts of this case.

Gumm posits three factual bases for estoppel. First, Watson reviewed his letters and decided they did not constitute a valid claim, and rejected the letters without notifying him and without forwarding the letters to the County’s Board of Supervisors. Second, the County’s response to Gumm’s special interrogatory number 1 only listed “Stanislaus County Public Works” as responsible for maintaining the portion of road where Gumm was injured. Third, the County’s response to form interrogatory 15.1 failed to state all facts relevant to the County’s affirmative defenses. We will address each of these three bases in turn and demonstrate that none of them provides estoppel grounds.

“Estoppel requires, inter alia, a representation or concealment of material facts to a party ignorant, ‘actually and permissibly,’ of the truth.” (Life v. County of Los Angeles (1991) 227 Cal.App.3d 894, 902, emphasis added (Life); see Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 158 (Shank) [“ ‘estoppel requires some affirmative representation or acts by the public agency or its representatives inducing reliance by the claimant’ ”].) “[E]stoppel is also available where the complaint alleges facts which, if true, would establish that the government acted in an unconscionable manner.” (Shank, at p. 158.) However, the plaintiff has the burden “to ascertain the public status of [an entity] and the consequent necessity of filing a claim.” (Ibid.)

As to Gumm’s first basis for estoppel, Watson had no duty to forward Gumm’s claim letter to anyone. Gumm admits as much in his opening brief by stating “[i]t is well settled that Mr. Watson had no duty to forward the claim to the Board of Supervisors, and that the doctrine of substantial compliance only becomes operative when the claim is actually received by the proper statutory officer.”

Despite this concession, Gumm asserts Watson acted wrongfully by “preventing the letter from reaching its intended destination.” This assertion defies the facts and the law. Gumm’s letters were addressed to and received by “Stanislaus County Public Works” and did not request they be forwarded to anyone else. It is therefore indisputable the letters reached their intended recipient. We cannot understand how Gumm can then argue the letters had a different intended destination and that Watson prevented them from getting there. The argument defies the factual record.

Gumm also complains that Watson, despite the Risk Management department’s practice of forwarding claims to the Board of Supervisors, reviewed his claim letter but did not forward it to the County’s Board. However, because he never properly presented his claim, neither Watson nor any other County employee had any duty concerning the claim letter.

Moreover, Gumm had no communication with either Watson or any other County employee prior to filing his lawsuit, and no one from the County misrepresented or concealed any material facts. The County’s website and Secretary of State filings were publicly available and indicated its legal status as a public entity, and showed the Public Works department was not a public entity with the capacity to be sued. That Watson or another County employee did not provide information to help Gumm did not excuse Gumm’s noncompliance with section 915. (Shank, supra, 139 Cal.App.3d at p. 158 [no estoppel because “[t]he burden was upon plaintiff to ascertain the public status of the [entity] and the consequent necessity of filing a claim”].) The law does not allow Gumm to pass onto someone else his responsibility to properly present his claim.

We proceed to address Gumm’s second basis for estoppel, the County’s response to special interrogatory that only listed “Stanislaus County Public Works” as responsible for maintaining the section of road where Gumm was injured. Gumm asserts the County should have additionally listed itself because it is the entity ultimately responsible for maintaining the road, and argues the County’s failure to do so misled him into believing the Public Works department was the entity ultimately responsible for maintaining the road and hence the proper entity to which to deliver the claim letter.

We acknowledge the County could have additionally listed itself in response to special interrogatory number 1. However, in light of other evidence, we do not believe Gumm or his counsel could have reasonably been misled as to whether they had presented their claim to a proper recipient. (See Life, supra, 227 Cal.App.3d at p. 902 [estoppel requires that reliance on purported misrepresentation be reasonable].) As we have explained, the County unequivocally stated in its answer the Public Works department could not be sued and Gumm instead must proceed against the County. The County’s answer further stated Gumm had not complied with the Act’s claim presentation requirements. We also note the six-month period to timely present a claim had not yet expired when the County filed its answer. Thus, the undisputed facts show Gumm was not only advised of his claim presentation defects, but also had time to cure the defects prior to the commencement of discovery. However, he ignores the contents of the County’s answer and focuses our attention instead on the discovery responses. Considering the contents of the County’s answer, Secretary of State filings, and website pages, it is unreasonable to believe Gumm or his counsel were misled into thinking the Public Works department’s office was the correct place to mail the claim letter.

Gumm’s third factual basis for estoppel is the County’s responses to certain form interrogatories that he contends were also misleading. However, we decline to consider the merits of this basis because neither the form interrogatories nor the County’s responses were included—or even mentioned—in Gumm’s summary judgment opposition papers. The record indicates Gumm’s counsel attempted to offer the responses into evidence at the motion hearing, without filing a notice of errata or any affidavit or declaration beforehand. The trial court declined to receive the responses into evidence, and Gumm now asks this court to take judicial notice of the responses. We believe the trial court did not err in refusing to admit the responses into evidence and also deny Gumm’s request to take judicial notice of the County’s responses to the form interrogatories.

On the day of the summary judgment hearing, Gumm sought to supplement the record with evidence to bolster his estoppel argument. Gumm proffered the County’s responses to his first set of form interrogatories, which he contended demonstrated the County had unfairly misled him into believing the Public Works department was the proper department to receive his claim letter. Gumm did not seek to explain why these discovery responses were not included in his opposition papers and did not seek to provide good cause for the court to excuse his tardiness.

“We review the trial court’s evidentiary rulings on summary judgment for abuse of discretion.” (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) The party challenging the court’s decision has the “burden to establish such an abuse, which we will find only if the trial court’s order exceeds the bounds of reason.” (Ibid.) “ ‘Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result of the decision of the trial court.’ [Citation.] We will only interfere with the lower court’s judgment if [the party] can show that under the evidence offered, ‘ “no judge could reasonably have made the order that he did.” ’ ” (Ibid.)

We conclude the court did not abuse its discretion in declining to admit the form interrogatory responses into evidence. “Material not presented in opposition to the summary judgment motion itself is not properly considered by the court in ruling on the motion.” (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054–1055.) “A party must file and serve opposition to a motion for summary judgment ‘not less than 14 days’ prior to the scheduled hearing, ‘unless the court for good cause orders otherwise.’ ” (Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 321; quoting Code Civ. Proc., § 437c, subd. (b)(2).) Civil law and motion rules provide that “[e]vidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Cal. Rules of Court, rule 3.1306.) A party’s discovery responses are not a proper matter for judicial notice. (TSMC North America v. Semiconductor Manufacturing Internat. Corp. (2008) 161 Cal.App.4th 584, 594, fn. 4; Evid. Code, §§ 451, 452.)

Gumm argued at the motion hearing, and maintains here on appeal, that he should have been allowed to introduce the discovery responses into evidence because they were responsive to a point the trial court made in its tentative ruling. However, Gumm did not—and still has not—demonstrated good cause for why the trial court should have allowed him to submit this evidence late. Gumm raised the issue of estoppel in his opposition to the County’s motion and he had the opportunity to include this evidence in his opposition papers to bolster his argument. For whatever reason, he omitted the evidence. The trial court’s tentative ruling was not based on any ground not raised in the parties’ papers. Additionally, the discovery responses were not judicially noticeable.

The trial court did not abuse its discretion in refusing to admit the County’s responses to Gumm’s form interrogatories into evidence, and we deny Gumm’s request that we judicially notice the responses.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal.

SNAUFFER, J.

WE CONCUR:

SMITH, Acting P.J.

DE SANTOS, J.