Filed 9/23/20 Hansen v. City and County of San Francisco, Muni CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

RONALD HANSEN,

Plaintiff and Appellant,

v.

CITY AND COUNTY OF SAN FRANCISCO, MUNI et al.,

Defendants and Respondents.

A157652

(City & County of San

Francisco Super. Ct. No.

CGC-16-553991)

Ronald Hansen appeals from a summary judgment for defendant City and County of San Francisco (the City) on the ground he failed to comply with the claims requirements of the Government Tort Claims Act. (Gov. Code, §§ 900 et seq. (the Act).) Hansen asserts overlapping theories of estoppel, waiver and substantial compliance to excuse his failure, but none of his arguments have merit. Undisputed evidence establishes that this action is barred for Hansen’s failure to satisfy the Act’s claims presentation requirements, so summary judgment was proper.

BACKGROUND

Our factual discussion accepts as true Hansen’s evidence in opposition to summary judgment and any reasonable inferences that can be drawn from it. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805 (Horn).)

On March 9, 2016 Hansen was riding on a San Francisco Municipal Transit Agency (Muni) cable car when it collided with a garbage truck. Two days later, on March 11, he called Muni by dialing 311 and told a customer service operator he wished to lodge a claim for compensation for injuries sustained in the collision. The operator informed him his claim would be processed and that a Muni representative would contact him.

According to a Muni passenger service report generated that day, Hansen described the incident as follows: “ ‘We got on the cable car at the Powell street station and proceeded on the rout we turned onto the Jackson and at the Intersection and the driver was using his bell. The light turned green, the driver released his break and we came around the corner pretty quickly, and struck garbage truck. When we hit the truck I was thrown violently to the right. We were asking to fill out a contact card which we did. There were a number of individuals in florescent vests who were taking pictures. I asked if there would be a bus sent but they did not seem to know. To my knowledge, the police were not called nor were the fire department. Because my party and I had reservations we decided to walk to our destination. My lower back Immediately began to hurt and over the past few days It is still hurt. I believe there should have been some sort of protocol for this sort of situation but it did not seem to be followed.’ ”

On March 16, 2016, Hansen received an email from “SFMTA Revenue Operations.” The email stated his passenger service report had been “disseminated to several departments and superintendents of several divisions for review. [¶] Our division handles refunds for cable car disruptions, which this would definitely qualify. We would like to extend a refund for the cable car tickets which you purchased for that ride.” Hansen did not respond, and he heard nothing further from the City. On August 31, 2016, he filed a complaint seeking compensation for injuries sustained in the accident.

The City’s answer alleged Hansen’s failure to comply with the Act among other affirmative defenses. On March 22, 2017 the City notified Hansen that he had failed to file a tort claim as required by the Act and the deadline for seeking late claims relief had passed. Hansen responded through counsel that he had filed a claim and it had been denied. He identified the March 16, 2016 email as “the only response [he] received from the City after he filed his complaint,” and stated, “[w]e do not have a copy of the complaint as it was taken over the phone.”

The City moved for summary judgment on the ground the action was barred by Hansen’s failure to file a government tort claim. In opposition, Hansen argued the City had waived any deficiencies in his claim by failing to inform him of the asserted defects and that it was estopped from asserting the defense by the representations made in the March 11 phone call and March 16 email.

The court found it was undisputed that (1) Hansen did not file a written claim within the statutory time; (2) the City had no duty to notify him that his March 11 telephone call did not satisfy the requirements for a governmental tort claim; and (3) there were no triable issues as to an estoppel to raise the claims defense. Accordingly, it granted the City’s motion. Hansen filed this timely appeal from the judgment.

DISCUSSION

I. Summary Judgment Standards

“ ‘To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff’s cause of action [citations] or show that an element of the cause of action cannot be established [citations]. [Citation.] The defendant “must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.” [Citation.] [¶] The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial. [Citation.] . . . Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is any triable issue of fact as to any essential element of a cause of action.’ ” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.)

“In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. [Citation.] The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law.” (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703-704.) “We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ‘ “specific facts,” ’ and cannot rely upon the allegations of the pleadings.” (Horn, supra, 72 Cal.App.4th at p. 805.) “While ‘[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact’ [citation], it is also true ‘[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.’ [Citation.] ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.’ ” (M.B. v. City of San Diego, supra, at p. 704.)

II. Government Claims Requirements

“Suits for money or damages filed against a public entity are regulated by statutes contained in division 3.6 of the Government Code, commonly referred to as the Government Claims Act. We have previously noted that ‘[s]ection 905 requires the presentation of “all claims for money or damages against local public entities,” subject to exceptions not relevant here. Claims for personal injury and property damage must be presented within six months after accrual; all other claims must be presented within a year. (§ 911.2.) “[N]o 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 . . . or has been deemed to have been rejected. . . .” (§ 945.4.) “Thus, under these statutes, failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990) and the timely filing of a claim is an element to be proved by the plaintiff. (Ibid.)

A claim must be signed by the claimant (§910.2) “and shall show all of the following: [¶](a) The name and post office address of the claimant. [¶] (b) The post office address to which the person presenting the claim desires notices to be sent. [¶] (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. [¶] (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. [¶] (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. [¶] (f) The amount claimed if it totals less than ten thousand dollars ($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 ten thousand dollars ($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.)

Here, Hansen does not dispute that he failed to present the City with a written claim. Instead, he asserts theories of estoppel, substantial compliance with the claims filing requirements, and waiver to argue this failure is not fatal to his action. We disagree.

III. Analysis

Hansen asserts the City should be equitably estopped from asserting the Act as a defense because he relied on Muni’s statements on March 11 and March 16, 2016 that his claim was being disseminated and “he did not need to do anything further to pursue his claim for injuries.” The trial court found there was no triable issue of fact regarding this assertion because undisputed evidence established that “[t]he Muni representatives made no affirmative representation to Mr. Hansen that he need not file a written claim in compliance with the Act, or that his telephonic complaint would be sufficient to satisfy the Act’s requirements.” Moreover, even if Hansen could reasonably have relied on either communication as an implied representation to that effect, “his attorney could not have done so. It is undisputed that plaintiff filed the complaint in this action on August 31, 2016, and that the City filed its answer raising the affirmative defense of Plaintiff’s failure to comply with the claims statute well within the one-year period for Plaintiff to file an application for leave to present a late claim.” Accordingly, Hansen could not establish an equitable estoppel.

We reach the same conclusion. “ ‘Estoppel as a bar to a public entity’s assertion of the defense of noncompliance arises when the plaintiff establishes by a preponderance of the evidence: (1) the public entity was apprised of the facts, (2) it intended its conduct to be acted upon, (3) plaintiff was ignorant of the true state of facts, and (4) [the plaintiff] relied upon the conduct to his detriment.” [Citation.] ‘Reliance by the party asserting the estoppel on the conduct of the party to be estopped must have been reasonable under the circumstances.’ ” (Santos v. Los Angeles Unified School Dist. (2017) 17 Cal.App.5th 1065, 1076.) Moreover, the doctrine “will not be applied against one who is blameless. [Citation.] Estoppel applies only if there is ‘some element of fraud or blame on the party against whom the estoppel is asserted.” (Getty v. Getty (1986) 187 Cal.App.3d 1159, 1185.)

Hansen presented no evidence that the City or its personnel told him or otherwise gave him any basis to reasonably believe his call satisfied the Act’s claims requirements. But even if we could infer as much from the March 11 call or March 16 email, there is no evidence the City intended Hansen would rely on those statements to forgo filing a claim or that there was anything blameworthy in its employees’ conduct or intent. As the trial court observed, even if as a nonlawyer Hansen could reasonably have believed he need do nothing more to preserve his right of action, his attorney could not have. Hansen’s reliance on the principle that attorneys may generally commence litigation in reliance on their clients’ factual representations without liability for malicious prosecution (ARB 15-16)~ has nothing to do with whether an attorney may reasonably conclude the Act’s claims requirements were satisfied by a telephone call to a customer service representative. The court properly found Hansen could not establish the City was estopped to assert the Act as a defense.

Alternatively, Hansen argues his March 11, 2016 telephone call to Muni constituted substantial compliance with the Act because it provided the City notice and information sufficient to investigate his claim. As he maintains, he “provided all of the essential elements to [the City’s] agent except that he did not sign the claim because he made the claim verbally to [the City’s] agent.” The trial court rejected this argument as well. “Plaintiff’s telephonic report of his accident to the Muni customer service line did not constitute substantial compliance with the Act because it did not satisfy the express delivery provisions language of the statute, even if it was sufficient to place the City on notice of the general nature (if not amount) of his claim.”

We agree. “ ‘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.] There is a two-part test for determining whether there has been substantial compliance. [Citation.] The court must determine: ‘Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance?’ [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. 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.” (Garber v. City of Clovis (E.D. Cal. 2010) 698 F.Supp.2d 1204, 1214-1215.) Thus, “where there is a complete failure to serve any responsible officer of the entity, the doctrine does not apply.” (Id. at p. 1215.)

Hansen has not identified a single case in which substantial compliance was found despite the plaintiff’s complete failure to serve a written claim. Nor does it suffice that Hansen’s call to Muni’s customer service placed the City on notice of the underlying facts and his intent to pursue a claim. “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. Such knowledge—standing alone—constitutes neither substantial compliance nor basis for estoppel.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455.)

Next, Hansen contends the City waived its defense under the Act because it failed to notify him that his 311 call was insufficient to constitute a claim. This contention also fails, because Hansen never presented the City with a “claim” that, although defective, was sufficient to trigger its statutory duty to notify him of its defects.

Under section 910.8, “[i]f, in the opinion of the board or the person designated by it, a claim as presented fails to comply substantially with the requirements of Sections 910 and 910.2, . . . the board or the person may, at any time within 20 days after the claim is presented, give written notice of its insufficiency, stating with particularity the defects or omissions therein.” Thus, “[a] public entity’s receipt of written notice that a claim for monetary damages exists and that litigation may ensue places upon the public entity the responsibility, and gives it the opportunity, to notify the potential plaintiff pursuant to [Government Code] sections 910.8 and 911 of the defects that render the document insufficient under [Government Code] sections 910 and 910.2 and thus might hamper investigation and possible settlement of the claim.’ . . .” (Alliance Financial v. City and County of San Francisco (1998) 64 Cal.App.4th 635, 643-644.) Under section 911, “[a]ny 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.)

Hansen argues his telephone call of March 11 was sufficient to trigger the waiver provision of section 911. It was not. It is undisputed that Hansen never presented the City with “written notice that a claim for monetary damages exists and that litigation may ensue” (Alliance Financial v. City and County of San Francisco, supra, 64 Cal.App.4that p. 644), defective or not. By no stretch of the imagination can a purported “claim” that was never put in writing be deemed one that merely “fails to comply substantially” (§910.8) with the Act’s claim filing requirements. Here again, none of Hansen’s cited authorities support (or even hint at) an interpretation of the Act to excuse the presentation of a written notice of claim. (See Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699 [written 90-day notice of intent to sue]; Green v. State Center Community College Dist. (1995) 34 Cal.App.4th 1348 [letter by plaintiff’s counsel to defendant]; City of Stockton v. Superior Court (2007) 42 Cal.4th 730 [written correspondence]; Martinez v. County of Los Angeles (1978) 78 Cal.App.3d 242 [timely written claim]; Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228 [written claim].)

In sum, Hansen failed to present evidence of any triable issue of fact regarding his failure to comply with the claims requirements of the Act. Summary judgment was proper.

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Jackson, J.

Hansen v. CCSF, A157652