Filed 5/5/20 Edna Center v. City of Los Angeles CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

EDNA CENTER et al.,

Plaintiffs and Appellants,

v.

CITY OF LOS ANGELES,

Defendant and Respondent.

B294239

(Los Angeles County

Super. Ct. No. BC639829)

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark C. Kim, Judge. Affirmed in part and dismissed in part.

Edna Center and Michael Center, in pro. per., for Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Blithe S. Bock, Assistant City Attorney, Scott Marcus, and Shaun Dabby Jacobs, Deputy City Attorneys, for Defendant and Respondent.

____________________

Plaintiffs and appellants Edna and Michael Center (the Centers) filed a notice of appeal from a judgment dismissing their lawsuit against the City of Los Angeles (the City) on the grounds that they failed to comply with the Government Tort Claims Act. (Gov. Code, § 810 et seq.)

We dismiss Michael’s appeal on the grounds that he failed to file an opening brief or offer any arguments on appeal. We affirm the judgment against Edna.

FACTUAL AND PROCEDURAL BACKGROUND

The First Amended Complaint

A. Factual Allegations
B.
On November 4, 2016, the Centers filed a complaint against the City alleging negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium. They later filed a first amended complaint, asserting the same causes of action, based upon the following facts:

On July 11, 2015, Edna called a Los Angeles Fire Department ambulance because she was having contractions and was only 10 weeks pregnant. According to the first amended complaint, while en route to the hospital, Edna was having trouble answering the responders’ questions because of her contractions. At one point, she asked one of the responders to “give her a minute to allow” the contraction “to pass in order for her to answer” his questions. “At that moment, the ambulance abruptly stopped and [the responder] became hostile and told [Edna] ‘we are not going no mother fucking where until you answer my questions.’” Both responders were hostile and harassed her until they completed their transport to the hospital.

According to Edna, as a result of the City’s responders’ conduct, she miscarried, hemorrhaged, and is afraid to call 911.

C. Procedural Allegations
D.
In the first amended complaint, the Centers allege that on July 20, 2015, Edna telephonically initiated an administrative misconduct complaint with the Professional Standards Division regarding the responders’ alleged mistreatment of her. She also claims that she “faxed the written complaint” that day “to the number provided” by the “specialist investigator.” That document is not attached to the first amended complaint.

On August 31, 2015, Edna alleges that she called the Professional Standards Division for a status report of her complaint; she was told that her complaint was received and that she would receive a letter soon.

On September 2, 2015, Edna received a letter confirming receipt of her complaint.

On September 24, 2015, Edna scheduled a formal interview for November 5, 2015; she completed that formal interview with Captain Kenneth Knight on November 5, 2015. Even though she was supposed to receive a final written determination of her claim within 45 days, she heard nothing between November 5, 2015, and December 15, 2015. Thus, on December 15, 2015, Edna left a message for Captain Knight to follow up. When he returned her call a few days later, “Captain Knight assured Edna that the investigation was underway and that she should expect a letter with the investigation results.”

Edna continued to follow up over the next several months in order to obtain a status of the investigation.

She was finally able to speak with Captain Knight in July 2016, when he assured Edna that the investigation was almost complete and that she would get a letter with the results of the investigation.

“On August 17, 2016, over a year after submitting the complaint, Edna received a letter advising her the claim was closed for a lack of facts to support the claim within the statute of limitations despite the fact that Edna provided all of the information requested by Professional Standards and no further information was requested.” The first amended complaint further alleged that this action was filed within six months of the denial of her administrative claim.

Claim for Damages

On August 29, 2016, Edna filed a claim for damages regarding the responders’ conduct. In her claim, Edna alleges that she miscarried, hemorrhaged, had blood transfusions, has epilepsy, and is afraid to call 911 again as a result of the responders’ mistreatment of her in the ambulance.

The City did not respond to Edna’s claim.

Pleadings in this Lawsuit

As set forth above, the Centers filed a complaint against the City on November 4, 2016. On December 20, 2016, they filed their first amended complaint.

On January 19, 2017, the City filed an answer to the Centers’ first amended complaint. As an affirmative defense, the City alleged that the Centers’ claims were barred for “failure to comply with the provisions of the California Tort Claims Act, Government Code § 910 et seq.”

Trial; Motion to Dismiss; Judgment

The case was set for trial. Prior to trial, the parties submitted trial briefs. In the City’s trial brief, it argued that Michael’s case should be dismissed because he failed to file a timely tort claim. The brief does not mention Edna.

Before opening statements, the City made an oral motion to dismiss on the grounds that the Centers failed to file a proper government claim. The trial court entertained oral argument, and then ruled as follows: “Due to Plaintiff Michael Center’s failure to file any type of claim, the motion is granted.” After hearing additional argument regarding Edna’s compliance with the Government Tort Claims Act, the trial court granted the motion to dismiss Edna’s claims against the City.

Judgment of dismissal was entered in favor of the City and against the Centers.

Appeal

The Centers timely filed a notice of appeal.

DISCUSSION

I. Michael’s Appeal

Both Edna and Michael Center filed a notice of appeal from the trial court’s judgment dismissing their lawsuit. But Michael did not file an opening brief; Edna’s brief was filed on her behalf only. Since Michael did not make any arguments on appeal, we deem all of his objections forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.) His appeal is dismissed.

II. Edna’s Appeal

A. Standards of review

We review the trial court’s legal conclusions and its application of the law to undisputed facts de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) Similarly, “[t]he proper interpretation of a statute, and its application to undisputed facts, presents a question of law that is subject to de novo review.” (Compulink Management Center, Inc. v. St. Paul Fire & Marine Ins. Co. (2008) 169 Cal.App.4th 289, 295.)

We review the trial court’s conclusions of fact under the familiar substantial evidence standard of review. Under this standard, we resolve all conflicts in the evidence in support of the judgment. (Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447, 1454.)

B. Relevant law

According to section 815, subdivision (a), all governmental liability is governed by statute. (§ 815, subd. (a); Creason v. Department of Health Services (1998) 18 Cal.4th 623, 630.) “[G]overnmental entities are immune from being sued unless the Legislature has specifically provided otherwise. The [Government Tort Claims] Act sets forth the limited circumstances under which the state and other political subdivisions may be sued and the applicable procedural requirements.” (Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1414.)

Section 900 et seq., part of the Government Tort Claims Act, “prescribes the manner in which public entities may be sued.” (Chalmers v. County of Los Angeles (1985) 175 Cal.App.3d 461, 464.) Section 945.4 provides that “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 . . . 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.” The purposes of the claim filing requirement are: “(1) to give notice to the public entity so it will have a timely opportunity to investigate the claim and determine the facts; and (2) to give the public entity an opportunity to settle meritorious claims thereby avoiding unnecessary lawsuits.” (San Diego Unified Port Dist. v. Superior Court (1988) 197 Cal.App.3d 843, 847; see also Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.)

Section 911.2 requires that personal injury claims against a public entity be filed “not later than six months after the accrual of the cause of action.” The date of accrual of a cause of action marks the starting point for calculating the claims presentation period. (§ 901; Mosesian v. County of Fresno (1972) 28 Cal.App.3d 493, 500.) “The general rule for defining the accrual of a cause of action sets the date as the time ‘when, under the substantive law, the wrongful act is done,’ or the wrongful result occurs, and the consequent ‘liability arises.’ [Citation.] In other words, it sets the date as the time when the cause of action is complete with all of its elements [citations]—the elements being generically referred to by sets of terms such as ‘wrongdoing’ or ‘wrongful conduct,’ ‘cause’ or ‘causation,’ and ‘harm’ or ‘injury’ [citations].” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)

C. Analysis

Applying the foregoing legal principles, we conclude that the trial court properly dismissed Edna’s lawsuit. Edna’s alleged injury occurred on July 11, 2015. Thus, she had until January 10, 2016, to file a written claim. (§ 911.2, subd. (a).) Because she did not do so, the trial court properly dismissed her complaint.

1. Substantial compliance

In urging us to reverse, Edna seems to argue that she substantially complied with the notice requirements of section 910 by providing notice to the Professional Standards Division of her complaint within six months of the July 11, 2015, incident.

Section 910 lists the information that must be included in a notice of claim, including (1) the name and address of the claimant; (2) the address to which the person presenting the claim desires notices to be sent; (3) the date, place, and other circumstances of the occurrence that gave rise to the asserted claim; (4) a general description of the indebtedness, obligation, injury, damage, or loss incurred; (5) the names of the public employees who caused the injury, if known; and (6) “[t]he amount claimed if it totals less than [$10,000] as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds [$10,000], no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.” (§ 910, subds. (a)-(f).)

“Where a claimant has attempted to comply with the claim requirements but the claim is deficient in some way, the doctrine of substantial compliance may validate the claim ‘if it substantially complies with all of the statutory requirements . . . even though it is technically deficient in one or more particulars.’ [Citation.] ‘The doctrine is based on the premise that substantial compliance fulfills the purpose of the claims statutes, namely, to give the public entity timely notice of the nature of the claim so that it may investigate and settle those having merit without litigation. [Citations.]’ [Citation.] The doctrine of substantial compliance, however, ‘cannot cure total omission of an essential element from the claim or remedy a plaintiff’s failure to comply meaningfully with the statute.’ [Citation.] The test for substantial compliance is whether the face of the filed claim discloses sufficient information to enable the public entity to make an adequate investigation of the claim’s merits and settle it without the expense of litigation. [Citation.]” (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 38.)

Here, we cannot determine whether Edna substantially complied with the requirements of section 910. We do not have a copy of the written complaint that she purportedly faxed to the Professional Standards Division on July 20, 2015. Nor do we have any sort of transcript of the telephone call she initiated that same day. Absent this evidence, we are unable to determine whether Edna substantially complied with the statutory notice requirements. (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412 [error cannot be presumed from an incomplete record]; Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 [“if it is not in the record, it did not happen”].)

At best, the evidence suggests that Edna complained that the responders engaged in misconduct by mistreating her while transporting her by ambulance to the hospital. But that is not enough for us to find that she substantially complied with the statutory notice requirements. Even in her interview with Captain Knight, Edna did not indicate that she planned to sue the City or the amount of damages that she allegedly incurred. It follows that her communication with the Professional Standards Division cannot amount to substantial compliance with the claims presentation requirement. (See, e.g., Green v. State Center Community College Dist. (1995) 34 Cal.App.4th 1348, 1356 (Green) [nothing in a letter from the plaintiff’s attorney to the governmental entity allowed the court to “infer that a claim was being made . . . or that litigation would follow if the matter was not resolved”]; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1082–1083.)

Because communication on July 20, 2015, did not constitute a claim, “the notice-waiver provisions of sections 910.8, 911 and 911.3 do not apply to this case. There is nothing in the [alleged faxed written complaint or alleged telephonic conversation] that makes it readily discernible that [Edna] was making a compensable claim against the [City] or that the failure to satisfy it would result in litigation.” (Green, supra, 34 Cal.App.4th at p. 1359.)

2. Estoppel

Alternatively, Edna argues that the City is estopped from relying upon her failure to file a proper claim because she was lulled into a false sense of security by Captain Knight, thereby excusing her from the time and notice requirements of the Government Tort Claims Act. After all, there is evidence that Captain Knight told Edna that her complaint was being investigated and he was trying to complete the investigation to get to a resolution that would make Edna feel comfortable. There is also evidence that Captain Knight may have told Edna not to hire an attorney while the Professional Standards Division investigation was pending.

Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. (Cedars-Sinai Medical Center v. Shewry (2006) 137 Cal.App.4th 964, 987.) Whether an estoppel exists is a question of fact. (Industrial Indem. Co. v. Industrial Accident Commission (1953) 115 Cal.App.2d 684, 690 (Industrial Indem.).)

Here, the doctrine of estoppel does not apply. First, there is no evidence that when Edna complained to the Professional Standards Division, the City knew that she intended to file a lawsuit if her complaint was not satisfactorily resolved. At best, the evidence shows nothing more than the fact that Edna intended to complain about the responders’ rudeness and unprofessional treatment of her. (Tyus v. City of Los Angeles (1977) 74 Cal.App.3d 667, 673 (Tyus) [trial court could properly find that the plaintiff’s complaint was a citizen’s complaint of misconduct rather than a claim for monetary damages].)

Second, there is no evidence that the City took any steps or made any representations to Edna regarding the need or lack thereof to file a proper claim. (John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, 445 [“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”; “[e]stoppel most commonly results from misleading statements about the need for or the advisability of a claim”]; Cole v. City of Los Angeles (1986) 187 Cal.App.3d 1369, 1374 [“[a] governmental entity may be estopped from asserting noncompliance with the statutory claim filing requirements where a claimant has been misled by the entity’s agents with regard to the procedural or time requirements of the claim statutes”].) There is no evidence that anyone told Edna not to file a proper claim or prevented her from filing such a claim.

The fact that Captain Knight allegedly told Edna that she did not need to hire an attorney while the investigation was pending does not change our conclusion. He was “under no duty to advise [Edna] of the claims statutes or to consult an attorney.” (Tyus, supra, 74 Cal.App.3d at p. 673.) Rather, under the facts presented, “[t]he trial court could reasonably conclude that [Edna] failed to act with reasonable diligence in determining the proper procedure if [s]he wished to file a claim for monetary damages. [Citations.] [Her] ignorance of the law will not alone create an excuse or an estoppel.” (Ibid.)

The cases cited by Edna in her appellate briefs are readily distinguishable. Industrial Indem., supra, 115 Cal.App.2d 684 is not a Government Tort Claims Act case. Setting that aside, the case is factually different. In Industrial Indem., an employee was injured at work and submitted a claim to her employer’s insurer. Instead of timely processing the employee’s claim or providing medical treatment, the insurer (over many months) repeatedly told the employee that she would hear from the insurer regarding her claim and that she did not need an attorney because the insurer would “‘take care of this. Don’t worry about it.’” (Id. at p. 687.) After the statute of limitations had expired, the employee filed a claim with the Industrial Accident Commission (the commission); the insurer argued that the employee’s claim was time-barred. (Id. at p. 686.) The commission made an award in favor of the employee, finding that the insurer was estopped from raising the statute of limitations as a defense. (Ibid.) The insurer sought appellate review, and the Court of Appeal affirmed the commission’s decision. (Id. at p. 692.)

The Court of Appeal reasoned that the insurer lulled the employee into a false sense of security through its repeated comments to the employee. (Industrial Indem., supra, 115 Cal.App.2d at p. 690.) “Its efforts were directed solely to building a defense to [the employee’s] claim” and the evidence showed “a studied effort . . . to cause [the employee] to delay filing a claim with the commission.” (Id. at p. 691.) In so ruling, the Court of Appeal found that the insurer gave the employee a “‘runaround’” and “deliberately misled her.” (Ibid.) Thus, the commission rightly determined that the insurer was estopped from arguing that the employee’s claim with the commission was time-barred. (Id. at pp. 691–692.)

In contrast, Edna complained here to the Professional Standards Division. But unlike the insurer in the Industrial Indem., the Professional Standards Division was not the proper entity to handle any tort claim Edna intended to file. All that entity did was investigate a claim of alleged employee misconduct and, based upon the evidence presented, the trial court had ample evidence to determine that that was all Edna sought—an investigation into how the responders treated her. And, while Captain Knight may have told Edna that she did not have to hire an attorney, there is no evidence that he made those comments as part of a “studied effort” to cause Edna not to file a proper tort claim. (Industrial Indem., supra, 115 Cal.App.2d at p. 691.)

Edna’s reliance upon Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353 is also misplaced. In that case, the plaintiff was injured when she fell on a defectively maintained sidewalk in the City of Lakewood (Lakewood). (Id. at p. 355.) Within days of her injury, the plaintiff telephoned the Lakewood city clerk and asked for the “necessary claim form so that she could properly assert her claim for damages against it.” (Ibid.) Lakewood never sent her the claim form; instead, it sent her a letter directing her to resolve her claim with Purex Corporation. “Relying on this representation, [the] plaintiff did not pursue her claim against [Lakewood] but instead immediately began negotiations with Purex Corporation.” (Id. at p. 356.)

After the plaintiff’s claim with Purex Corporation was denied, the plaintiff learned that the defective sidewalk was maintained by Lakewood; thus, she attempted to pursue a claim against Lakewood. Lakewood asserted that her claim against it was time-barred. The California Supreme Court found otherwise; it determined that Lakewood was estopped from arguing that the plaintiff failed to file a timely government tort claim, reasoning that she “immediately inquired as to the proper procedure and form for filing her claim” and that “[s]he was deterred from supplying the necessary information by [Lakewood’s] action. [Lakewood] cannot frustrate [the] plaintiff’s attempt to comply with a statute enacted for its benefit and then assert noncompliance as a defense.” (Fredrichsen v. City of Lakewood, supra, 6 Cal.3d at p. 360.)

That is not what occurred here. There is no evidence that Edna ever asked the Professional Standards Division if it was the correct entity to file her claim. There is no evidence that anyone from the Professional Standards Division ever gave her advice about how to pursue a claim for damages.

Similarly, Boas v. County of San Diego (1980) 113 Cal.App.3d 355 also does not aid Edna on appeal. In that case, the plaintiffs’ daughter died in an area along the San Diego River. The plaintiffs contacted their County of San Diego (County) supervisor’s office and were told “to forego any other action pending County’s investigative report.” (Id. at p. 357.) The County supervisor later sent a letter to the plaintiffs “implying the County did not own the accident site.” (Ibid.) After the statutory time to file a timely tort claim had lapsed, the plaintiffs learned that the County did in fact own the subject property and filed an application to present a late claim; they also filed a petition for relief from the claims presentation requirement on the grounds of excusable neglect. (§ 946.4.) The trial court denied their petition, and the plaintiffs appealed. (Boas v. County of San Diego, supra, 113 Cal.App.3d at p. 357.)

The Court of Appeal reversed, finding that the County had been timely notified of the plaintiffs’ claim; thus, the purpose of the claims statute was satisfied. (Boas v. County of San Diego, supra, 113 Cal.App.3d at p. 358.) Moreover, the plaintiffs had demonstrated excusable neglect. After all, they had been told to refrain from contacting anyone pending the County’s investigation and that the County did not own the subject property. Moreover, the plaintiffs had reasonably relied upon these assurances. “In light of the County’s request [that the plaintiffs] forego other action pending the County’s investigation and the County’s supplying inaccurate information regarding ownership of the property, [the plaintiffs’] neglect to file a timely claim [was] excusable.” (Ibid.)

This case is both factually and procedurally different. Procedurally, unlike the plaintiffs in Boas v. County of San Diego, Edna did not file an application to file a late claim or petition the court to be relieved from the claim filing requirements. Factually, here there is no evidence that Edna was told not to pursue a tort claim or that she was provided with false information.

3. Waiver

Edna argues that because the City neglected to raise her failure to comply with the Government Tort Claims Act in its trial brief, the City waived the right to assert this defense at trial. But the City raised this affirmative defense in its answer to the Centers’ first amended complaint.

“When the answer pleads that the action is barred by the statute of limitations . . . or sets up any other defense not involving the merits of the plaintiff’s cause of action but constituting a bar or ground of abatement to the prosecution thereof, the court may, either upon its own motion or upon the motion of any party, proceed to the trial of the special defense or defenses before the trial of any other issue in the case.” (Code Civ. Proc., § 597.)

That is exactly what occurred here. The City asserted as an affirmative defense Edna’s failure to comply with the Government Tort Claims Act. The trial court rightly determined this issue before litigating any and all other issues. The issue was not waived for failure to raise it in the City’s trial brief.

DISPOSITION

Michael’s appeal is dismissed. The judgment against Edna is affirmed. The City is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

ASHMANN-GERST

We concur:

__________________________, P. J.

LUI

__________________________, J.

HOFFSTADT