Case Name: Tien Yu Wong, et al. v. City of Saratoga, et al.
Case No.: 19CV343956

I. Background

This is a wrongful death action. On January 3, 2017, a vehicle operated by nonparty Storer Transportation Services (Storer) struck and killed Xiaolan Luo as she walked across an intersection on the college campus operated by defendant West Valley Mission Community College District (the District) in the City of Saratoga (the City). Luo’s husband Tien Yu Wong and son Linhan He (collectively, Plaintiffs) survived her.

Plaintiffs first commenced an action against Storer on April 6, 2017, several months after the fatal collision. (Case No. 17CV308243.) In 2018, Plaintiffs seemingly decided they wanted to name the City and the District as defendants, but had not presented these public entities with an administrative claim. Acknowledging that their deadline for doing so was July 3, 2017, Plaintiffs applied to the District and the City to present a late claim in August 2018. Several weeks later, both the District and the City denied Plaintiffs’ applications to present late claims and informed them that their next remedy was to petition the Court for relief. And so, on October 31, 2018, Plaintiffs filed a petition for relief in this court.

The Court heard Plaintiffs’ petition in December 2018 and denied the petition in March 2019. In doing so, the Court concluded Plaintiffs waited more than a year after their cause of action accrued to apply to the City and the District to present a late claim. The Court also rejected Plaintiffs’ argument that their cause of action belatedly accrued in May 2018 upon the release of the collision report because they did not establish that, despite reasonable diligence, they could not discover potential liability on the part of the District and the City between the date of the collision and August 2018, when they submitted their applications. And so, the Court concluded Plaintiffs were not entitled to relief.

In the interim, in February 2019, Plaintiffs commenced this action against the City and the District. In other words, before the Court ruled on their petition in the Storer action, Plaintiffs turned around and sued these public entities in this separate action. In the operative first amended complaint (FAC), Plaintiffs assert causes of action against the City and the District for: (1) dangerous condition on public property; (2) premises liability; and (3) public nuisance. In May 2019, at the same time Plaintiffs served the City and the District, they appealed the order denying their petition. Plaintiffs initially defaulted, and the Sixth District dismissed their appeal; but the appeal was subsequently reinstated in July and remains pending.

Currently before the Court are demurrers by the City and the District to the FAC, which are accompanied by requests for judicial notice.

II. Requests for Judicial Notice

The City and the District filed requests for judicial notice of court records from this action, the Storer action, and the appeal of the Court’s previous order denying Plaintiffs’ petition for relief. When a court takes judicial notice, it recognizes and accepts “the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [internal citations and quotation marks omitted].) A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) In doing so, a court does not take judicial notice of the truth of statements or allegations in the records; rather, it takes judicial notice of the fact the records say what they say. (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1608, fn. 3; accord Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) Consequently, with this scope in mind, both requests for judicial notice of court records are GRANTED.

III. Demurrers

The City demurs to the FAC as a whole as well as to the first cause of action asserted therein, but it does not clearly articulate the statutory grounds for its demurrer. “The grounds for a demurrer are those listed in Code of Civil Procedure section 430.10,” which “differ from the reasons for sustaining a demurrer on a particular ground.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.) Notwithstanding how the City frames its position in its demurrer, it is apparent it is demurring to the pleading as a whole and the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action. It additionally demurs to the first cause of action on the ground of uncertainty. Finally, it asks the Court to stay the action in the alternative.

The District demurs to each cause of action asserted on the grounds there is a lack of subject-matter jurisdiction, another action pending, and insufficient facts to state a cause of action. The District additionally demurs to the second cause of action on the ground of uncertainty.

Because the District and the City present nearly identical arguments about Plaintiffs’ noncompliance with the claim-presentation requirement of the Government Claims Act, the Court addresses their claim-presentation arguments collectively before turning to their remaining points.

The City and the District argue this entire action is barred because Plaintiffs failed to timely present an administrative claim as required by the Government Claims Act and are not excused from complying with the claim-presentation requirement. They additionally argue the Court has already decided these issues and treat the previous order as controlling. In opposition, Plaintiffs essentially argue the Storer action and this action are separate proceedings such that this action may proceed notwithstanding this Court’s previous decision denying their petition for relief in the Storer action. They additionally argue they complied or were excused from complying with the claim-presentation requirements based on the facts now alleged in the FAC.

No suit for money or damages may be brought against a public entity until a written claim has been presented to the public entity and either acted upon or deemed rejected. (Gov. Code, §§ 905, 945.4.) “If a complaint does not allege facts showing that a claim was timely made, or that compliance with the claims statutes is excused, it is subject to demurrer.” (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 652; accord State of California v. Super. Ct. (2004) 32 Cal.4th 1234, 1243; Nasrawi v. Buck Consultants, LLC (2014) 231 Cal.App.4th 328, 338.)

“[T]he claims statutes impose time limits but also provide safe harbors.” (J.M., supra, 2 Cal.5th at p. 655.) First, an administrative claim “for personal injury and property damage must be presented within six months after accrual….” (City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 738, citing Gov. Code, § 911.2.) “For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon.” (Gov. Code, § 901.) In other words, “to calculate the claim presentation deadline, [a court] must determine the date the cause of action accrued under the applicable statute of limitations.” (City of Pasadena v. Super. Ct. (2017) 12 Cal.App.5th 1340, 1347.) Next, if the plaintiff misses the six-month deadline for presenting a claim, he or she can apply to the public entity for permission to present a late claim. (Gov. Code, § 911.4, subd. (a).) But this application to belatedly present a claim must be presented within a reasonable time not to exceed one year. (Gov. Code, § 911.4, subd. (b).) Finally, if the public entity denies the application, the plaintiff may then petition the court for relief. (J.M., supra, 2 Cal.5th at pp. 655–56, citing Gov. Code, § 946.6.) If a court denies a petition for relief, the plaintiff cannot ordinarily turn around and sue the public entity anyway. (See J.M., supra, 2 Cal.5th at p. 658; see also Reyes v. County of Los Angeles (1988) 197 Cal.App.3d 584, 596, fn. 6.) The plaintiff may appeal the order or file an appropriate post-trial motion if the statutory prerequisites for such a motion are satisfied. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1502 & fn. 4.) But the California Supreme Court seems to have rejected the proposition that a plaintiff may elect to sue and litigate the issue of claim-presentation in the context of a main action in lieu of or as an alternative to filing a petition for relief under Section 946.6. (See J.M., supra, 2 Cal.5th at pp. 654–55.)

With this context in mind, the Court first considers the import of the previous order. Courts of superior jurisdiction have been split on and have yet to decide the significance and preclusive effect of an order on a petition for relief for the purpose of evaluating compliance with the Government Claims Act in a subsequent action for damages. (See DeVore v. Dept. of California Highway Patrol (2013) 221 Cal.App.4th 454, 460, citing Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 65.) “One strand of authority asserts that in the proceeding for relief, the issue of whether a claim was timely filed is not properly before the trial court; the court may consider only whether a plaintiff qualifies under one of the four categories (e.g., inadvertence, mistake, surprise, or excusable neglect).” (DeVore, supra, 221 Cal.App.4th at p. 460.) “The second strand finds that a trial court can properly consider accrual in a proceeding on a petition for relief if necessary to its ruling, but this ruling does not preclude a second court from coming to a different conclusion in a legal action for damages that alleges a timely presentation of the claim.” (Ibid.) “The third strand concludes that the trial court can properly consider timeliness, and its ruling on this issue in a petition proceeding has preclusive effect in the independent action for damages.” (Ibid.)

Although Plaintiffs do not provide a reasoned discussion of this issue, they do seem to rely on this first strand of authority. (See Opp. at p. 5, fn. 22.) But this strand has been criticized as anomalous because “the date of accrual can be a necessary subsidiary finding in deciding whether a party qualifies for relief….” (Ibid., citing Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 711–712.) For example, “filing a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779.) “When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court, pursuant to Gov. Code, § 911.4, is without jurisdiction to grant relief under Gov. Code, § 946.6.” (Ibid.; accord Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 34.) In reliance on this rule, this court previously concluded it could not grant Plaintiffs’ petition for relief because they applied to present a late claim more than a year after the date their claim admittedly accrued. And so, the Court declines to follow this first strand of authority. As courts of superior jurisdiction have pointed out, and as is the case here, the Court necessarily had to make a subsidiary finding about the date of accrual in ruling on Plaintiffs’ petition for relief.

Accepting that a court can, as the Court did here, determine the date of accrual in the context of a petition for relief, the issue is whether this finding should be given preclusive effect (the third strand) or be subject to renewed evaluation (the second strand). Unfortunately, while the parties dispute the significance and the preclusive effect of the previous order, they do not acknowledge or adequately address the split of authority on this issue. Additionally, they do not address any of the different doctrines of preclusion that have been considered by courts addressing similar disputes. And so, the parties must appear at the hearing to address this issue.

The parties should be prepared to discuss why the Court should follow a particular line of cases, which cases are compiled and summarized in Ovando and DeVore. In particular, they should address the impact, if any, of the California Supreme Court’s 2017 decision in J.M. (discussed above). Additionally, it will be helpful to hear the parties’ positions on particular principles of preclusion, either as applied to the facts of this case or more broadly as they inform the ultimate determination of what approach should be taken in light of the split discussed in Ovando and DeVore. To illustrate, there are a number of doctrines that operate to preserve the integrity of the courts, prevent gamesmanship, maintain judicial economy, and facilitate repose that may be implicated here or may inform the formulation of a rule in light of the split of authority. (See, e.g., Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 483–84 [discussing policy informing issue preclusion].) One example is issue preclusion, which applies: “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.) Courts have held a plaintiff who first puts a fact in issue by filing a petition for relief may be collaterally estopped from alleging delayed discovery and accrual of a claim in his complaint. (Gurrola v. County of Los Angeles (1984) 153 Cal.App.3d 145, 153.) Another example is the doctrine of judicial estoppel, which seeks to prevent the miscarriage of justice and to protect the integrity of the courts when a party takes a position inconsistent with a position previously taken and adopted or accepted as true by a court. (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 169.) Similarly, the sham pleading doctrine, while allowing corrections of errors or ambiguities, does not allow for the mere suppression or omission of an allegation against one’s interest. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426.) Finally, courts have rejected the proposition that a court can reconsider an order on a petition for relief through a ruling on a subsequent demurrer unless the prerequisites for reconsideration set forth in Code of Civil Procedure section 1008 are satisfied. (Gilberd, supra, 32 Cal.App.4th at pp. 1500–02; see also Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104 [discussing purpose of Section 1008].) In summary, because the parties dispute the preclusive effect of the Court’s previous order—particularly the conclusion as to the date of accrual—they should be prepared to address which if any of these doctrines is implicated or, alternatively, whether some or all of these principles collectively establish that a certain line of authority should be followed in light of the policies that inform these principles as well as the policies that inform the claim-presentation requirement.

With all of that said, and irrespective of the previous order, Plaintiffs do not allege compliance or an excuse for noncompliance with the claim-presentation requirement in the FAC.

As a threshold matter, Plaintiffs indisputably did not timely present a claim to the extent their claim accrued on the date of the collision, namely on January 3, 2017. As reflected in documents Plaintiffs filed in the Storer action—which they now attach to their FAC in this action—Plaintiffs historically took the position that their claim accrued on the date of the collision, namely January 3, 2017, such that they had until July 3, 2017, to present a claim to the City and the District. Plaintiffs, by their own admission, did not timely present a claim. And, they subsequently failed to timely apply to the City and the District for leave to present a late claim. Thus, Plaintiffs’ action is barred for failure to comply with the Government Claims Act based on an accrual date of January 3, 2017. And, the Court did not excuse their compliance when they petitioned for relief.

As for Plaintiffs’ new May-2018 date of accrual, which they advanced for the first time in support of their petition for relief in the Storer action, they still fail to allege they timely presented a claim. Plaintiffs admit that they did not attempt to timely tender a claim to the City and the District once their claim purportedly accrued in May 2018. Instead, they presented the City and the District with an application for leave to file a late claim with a proposed claim attached that identified the date of accrual as the date of the collision. (FAC, ¶ 27 & Ex. B.) Plaintiffs assert the presentation of their application and accompanying proposed claim constitutes substantial compliance under Jenkins v. County of Contra Costa (1985) 167 Cal.App.3d 152. As the City and the District point out, Jenkins does not support the proposition that Plaintiffs substantially complied here. In Jenkins, the plaintiff timely presented both a claim and an application to present a late claim roughly three weeks after her claim accrued. (Id. at pp. 154–56.) Because she timely presented her claim, her application to present a late claim was unnecessary. (Ibid.) And so, Jenkins does not support the proposition that an untimely application to present a late claim to which a proposed claim is attached, standing alone, is a sufficient substitute for timely presenting a claim. Moreover, because Plaintiffs’ proposed claim identifies the date of accrual as January 3, 2017, it is unclear how Plaintiffs expect the Court to reconcile their new theory of timely presentation with their own inconsistent representation. In sum, Plaintiffs still fail to allege compliance even accepting their May-2018 date of accrual.

Finally, the parties dispute whether Plaintiffs may rely on the doctrine of equitable estoppel as an excuse for their noncompliance. The doctrine of equitable estoppel has been applied in the government claims context. (J.M., supra, 2 Cal.5th at pp. 656–57.) “‘(1) [T]he 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.” (Ibid., quoting Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.) “Equitable estoppel generally requires an affirmative representation or act by the public entity.” (J.M., supra, 2 Cal.5th at p. 657, original italics.) Plaintiffs do not allege facts to support application of the doctrine of equitable estoppel as to the District or the City. With respect to the City, Plaintiffs simply do not allege any facts reflecting the City made any statement or engaged in any conduct upon which Plaintiffs relied. As for the District, Plaintiffs similarly do not allege it induced them to act in a particular manner. While Plaintiffs discuss the time it took for the District’s police department to finalize and release a collision report in the portion of their pleading that bears a heading “Defendants are equitably estopped from asserting timely filing requirements” (FAC at p. 4:1–2), Plaintiffs do not identify and it is fundamentally unclear what conduct related to the preparation and release of the report could support equitable estoppel. In fact, Plaintiffs attach emails to the pleading in which the District’s police department repeatedly informed Storer’s counsel and their counsel that it could not release the report or any part of the report before it was completed and finalized and that there was no estimated date of completion. And so, although not especially clear, to the extent Plaintiffs’ theory is that the District induced them to wait for the report by making inaccurate promises about when it would be released, the documents they attach to the pleading clearly undercut that theory.

For all of these reasons, while the Court expects the parties to appear at the hearing to address the significance and preclusive effect of the previous order, Plaintiffs do not adequately plead compliance or an excuse for noncompliance with the claim-presentation requirement in the FAC irrespective of the previous order on their petition for relief. For this reason, the Court is inclined to sustain the demurrers to the entire pleading and each cause of action therein by the City and the District, respectively, on the ground of failure to state facts sufficient to constitute a cause of action. The issue of whether Plaintiffs should be granted leave to amend necessarily depends on the resolution of the issue of the significance and effect of the previous order.

In light of this conclusion, the Court is not inclined to stay this action on the ground “[t]here is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).) A demurrer on this ground is also known as a plea in abatement. (County of Santa Clara v. Escobar (2016) 244 Cal.App.4th 555, 564.) “To ‘abate’ a right of action is to suspend its prosecution due to some impediment that, without defeating the underlying cause of action, prevents the present maintenance of [the] suit.” (Ibid., italics omitted.) Thus, a demurrer on this particular statutory ground is a request to suspend or stay a lawsuit based on the pendency of another lawsuit. (Ibid.; see also Childs v. Eltinge (1973) 29 Cal.App.3d 843, 855–56.)

This particular ground for demurrer arises from the prohibition of splitting a cause of action as defined by the primary right theory. (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1145–47.) “The primary right theory is a theory of code pleading that has long been followed in California.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) “It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” (Ibid.) “The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action.” (Ibid.) And so, a plaintiff may not “divide a primary right and enforce it in two suits.” (Ibid.) “The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement (Code Civ. Proc., § 430.10, subd. (c); [citation]); or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata [citation].” (Crowley, supra, 8 Cal.4th at p. 682.)

With this context in mind, a demurrer on the ground there is another action pending is sustainable when the demurring party shows: “‘(1) That both suits are predicated upon the same cause of action; (2) that both suits are pending in the same jurisdiction; and (3) that both suits are contested by the same parties.’ [Citation].” (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 176.) The procedural posture of this action and the Storer action are somewhat unusual. Technically, Plaintiffs have yet to sue and assert causes of action against the City and the District in the Storer action despite the fact that the Court issued an order that effectively bars them from doing so. And, because Plaintiffs did not commence a separate, special proceeding and filed their petition in the Storer action, the petition is no longer pending despite the pendency of the Storer action as a whole. The criteria for a demurrer on the ground of another action pending are not satisfied. The District’s demurrer on that ground is OVERRULED.

Notwithstanding this conclusion, this court is sensitive to both the need to preserve the jurisdiction of the appellate court and avoid duplicative or futile acts. (See generally Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 188–89.) But the parties do not cite and it is not apparent to the Court that there is authority for staying this proceeding. Indeed, the caselaw reflects a petition for relief would ordinarily be commenced as a separate action and Plaintiffs’ claims against Storer, the City, and the District would proceed together as an ordinary civil action. (See Santee, supra, 220 Cal.App.3d at pp. 710–11.) It follows that the ordinary civil action against the defendants would not necessarily or automatically be stayed during the pendency of an appeal in the separate, special proceeding for relief. And so, even if the Court consolidated the actions or Plaintiffs had originally joined their claims in a more traditional manner, it is not self-evident the appeal of the order denying the petition for relief requires staying the main action. Additionally, it seems Plaintiffs could simply name the City and the District as parties in the Storer action in the event Plaintiffs prevail on appeal such that this separate proceeding is not otherwise necessary. And, while Plaintiffs technically commenced this action before the Court denied their petition for relief, it is somewhat concerning that they have both undertaken an appeal and sought to collaterally attack, reargue, or seek reconsideration of the order on appeal. Thus, on the other hand, a stay may not be necessary or appropriate, particularly in light of J.M., supra. If the parties have any points or authority on this case-management issue, separate and distinct from the demurrer on the ground of another action pending, they may raise them at the hearing.

Finally, the City and the District demur to the first and second causes of action, respectively, on the ground of uncertainty. Despite attacking different claims, they advance similar arguments about how both of the claims are pleaded. They take issue with Plaintiffs’ organization of these causes of action into two separate counts. The City points out that Plaintiffs do not identify a statutory basis for liability in the first cause of action and appear to misidentify the survival statute (Code of Civil Procedure section 377.6) as the statutory basis for liability when, in fact, the claim is seemingly based on Government Code section 835 like the second cause of action. The District simply focuses on the fact that both causes of action appear to be predicated on Government Code section 835 such that they should not be separately pleaded. While Plaintiffs’ organization of their allegations into two counts may be unnecessary or inapt, this does not justify sustaining the demurrer. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38; see also Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889–90.) And, as for the City’s additional argument about the omission of a statutory basis for liability, this argument does not justify sustaining the demurrer on the ground of uncertainty because a demurrer on that ground “is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–46.) And so, the demurrers on the ground of uncertainty are OVERRULED.

That said, it is true that a public entity can only be held liable to the extent “provided by statute.” (Gov. Code, § 815.) In other words, a claim against a public entity must be based on a statutory duty and not a common law duty. (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 895–96.) Statutory claims must be pleaded with particularity, and so a plaintiff must specifically allege the statute upon which his or her claim against a public entity is based. (Ibid., citing Brenneman v. State of California (1989) 208 Cal.App.3d 812, 816–17.) Accordingly, the City’s argument does provide additional justification for sustaining the demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action.

In conclusion, the Court is inclined to sustain the demurrers on the ground of failure to state facts sufficient to constitute a cause of action because Plaintiffs do not allege compliance or an excuse for noncompliance with the claim presentation requirement. But to more completely evaluate and resolve this issue and determine whether leave to amend is warranted, the parties are ordered to appear at the hearing on the demurrers to weigh in on the significance and preclusive effect of the previous order on the petition for relief as well as the management of this related cases in light of the appeal of the previous order.