Case Number: EC062006 Hearing Date: June 06, 2014 Dept: A

Grand Oaks Lofts v City of Pasadena

DEMURRER

Calendar: 5
Case No: EC062006
Date: 6/6/14

MP: Defendant, City of Pasadena
RP: Plaintiff, Grand Oaks Lofts, LLC

ALLEGATIONS IN COMPLAINT:
In October of 2008, the Plaintiff submitted constructions plans and plan fees of $139,596 to the Defendant for the purpose of construction at 2191 E. Colorado Blvd. The Defendant failed to review the plans. On September 21, 2012, the Plaintiff submitted a demand for reimbursement but received only $11,831.40. The Plaintiff brought this action because the refund was short by $127,764.60.

CAUSES OF ACTION IN FIRST AMENDED COMPLAINT:
1) Breach of Implied Contract
2) Money Had and Received
3) Unjust Enrichment

RELIEF REQUESTED:
Demurrer to Complaint.

DISCUSSION:
This hearing concerns the demurrer filed by the Defendant, City of Pasadena. The Defendant argues that the Plaintiff did not comply with the Government Claims Act. Under California law, the failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. State of California v. Superior Court (2004) 32 Cal. 4th 1234, 1239. The general rule under the Government Claims Act is that any party with a claim for money or damages against a public entity must first file a claim directly with that entity; only if that claim is denied or rejected may the claimant file a lawsuit. City of Ontario v. Superior Court (1993) 12 Cal. App. 4th 894, 898. Further, compliance with the claims statute is mandatory and failure to file a claim is fatal to the cause of action. Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106 Cal. App. 3d 183, 188.
Further, in order to state a cause of action for government tort liability, every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. Zuniga v. Housing Authority (1995) 41 Cal. App. 4th 82, 96. Since the duty of a public entity can only be created by statute, the statute claimed to establish the duty must be identified. Id.

The Plaintiff does not allege that it complied with the Government Claims Act. Instead, the Plaintiff alleges in paragraph 10 that it sent a written demand on March 28, 2013 for the return of the remainder of the fees. This allegation is insufficient because it does not allege with particularity the facts essential to the existence of statutory liability, i.e., that the Plaintiff presented a claim and that the claim was denied. Accordingly, it does not plead the particular facts needed to demonstrate compliance with the claims statute.

In its opposition, the Plaintiff argues that it pleaded substantial compliance with the requirements. California law holds that when there has been an attempt to comply but the compliance is defective, the test of substantial compliance controls. Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106 Cal. App. 3d 183, 188. Under this test, the Court must ask whether sufficient information is disclosed on the face of the filed claim “to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit.” Id. However, it has repeatedly been held that “‘[substantial] compliance cannot be predicated upon no compliance.'” Id. It is well-settled that claims statutes must be satisfied even in face of the public entity’s actual knowledge of the circumstances surrounding the claim. Id. at 191.
Most cases dealing with “substantial compliance” concerns disputes over whether the contents or form of the claim was adequate, not whether the filing was properly presented. DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal. 4th 983, 994-995. A complete failure to serve any responsible officer of the entity will not constitute substantial compliance. Id. When the claims statute provides for the person upon whom the claim is to be served, service upon another is insufficient. Id.
For example, in DeCampli-Mintz, it was uncontested that the claim was never delivered or presented to the recipient designated in the claims statute. The Court of Appeal found that there was substantial compliance. The Supreme Court held that this was an error because when the claims statute identifies the person upon whom the claim is to be served, service upon another is insufficient to establish substantial compliance.

Under Government Code section 915, a claim must be presented by delivering or mailing it to the clerk, secretary, or auditor of the public entity at its principal officer or to the governing body, which is the Pasadena City Council. Under California law, service upon someone other than these identified individuals is insufficient to demonstrate substantial compliance.

The Plaintiff alleges in paragraph 10 that it sent a written demand to the office of the City attorney for the Defendant. This is not the clerk, secretary, or auditor of the public entity or the Pasadena City Council. Since the letter was not served upon the individuals identified in Government Code section 915, it cannot be substantial compliance.

The Plaintiff argues that a case has found that service on a city attorney is sufficient. In Alliance Financial v. City and County of San Francisco (1998) 64 Cal. App. 4th 635, 646, the Court of Appeal found that a letter that had been delivered to the city attorney’s office was sufficient because it stated the existence of a debt, asserted a right to payment, spoke of avoiding litigation, pointed out that a failure to pay will result in interest and “possible future court costs,” and asked for information so that litigation might be avoided. The Court of Appeal did not expressly hold that delivering the letter to the city attorney’s office was sufficient, i.e., whether it complied with Government Code section 915, which identifies the mandatory recipients of a claim. Instead, the holding in Alliance concerns the content of the letter sent to the city attorney’s office, i.e., whether the letter complies with the requirements of Government Code section 910, which identifies the contents of a claim. Also, Alliance involved moneys due on a contract.
Further, the Court of Appeal issued the opinion in Alliance in 1998. Fourteen years later, in DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal. 4th 983, 994, the Supreme Court held that it was an error to find substantial compliance when it was uncontested that the claim was never delivered or presented to the recipient designated in the claims statute, i.e., Government Code section 915. When the claims statute identifies the person upon whom the claim is to be served, service upon another is insufficient to establish substantial compliance.
Here, the Plaintiff did not deliver its letter to the recipients designated in Government Code section 915. Accordingly, the Plaintiff does not plead substantial compliance under the principle articulated by the Supreme Court in DiCampli-Mintz.

Therefore, there are grounds to sustain a demurrer to the entire Complaint because the Plaintiff did not plead sufficient, particular facts to demonstrate that it complied with the Government Claim Act by presenting a claim before filing this lawsuit. Since this is the original Complaint, the Court will grant the Plaintiff one opportunity to amend.

RULING:
SUSTAIN demurrer to entire Complaint with leave to amend.