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

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 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, with 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. 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.

These demurrers were originally scheduled to be heard on November 21, 2019. The day before the hearing, the Court issued a tentative ruling and requested the appearance of the parties at the hearing to address several points related to the central issue of whether Plaintiffs complied with the claim-presentation requirement of the Government Claims Act. At the hearing, the Court discussed a schedule for supplemental briefing on the issues and points of law specifically called out in the tentative ruling and continued the hearing on the demurrers to December 19. On November 25, 2019, the Court issued an order setting forth the contemplated course of action and supporting analysis as well as the points to be addressed by the parties in their supplemental briefing. For the reasons already stated by the Court (and incorporated herein) and upon consideration of the parties’ supplemental briefs, the Court remains persuaded that the pleading is subject to demurrer in primary part due to Plaintiffs’ failure to comply with the Government Claims Act and concludes leave to amend is not warranted.

As discussed previously and as further discussed by the District and the City in their supplemental briefs, Plaintiffs’ commencement of this separate action was improper in light of their election to pursue a petition for relief from the claim presentation requirement, which petition was denied. (See J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 652; see also Gurrola v. County of Los Angeles (1984) 153 Cal.App.3d 145, 153; Reyes v. County of Los Angeles (1988) 197 Cal.App.3d 584, 596, fn. 6; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1502 & fn. 4.) This is a sufficient independent basis for sustaining the demurrer. And, irrespective of whether the previous order may ultimately be given preclusive effect upon disposition of the appeal, Plaintiffs’ own pleading and the facts subject to judicial notice reflect Plaintiffs did not comply, were not excused from complying, and cannot allege new and consistent facts, including a May-2018 accrual date, to show compliance or an excuse for noncompliance. Put differently, Plaintiffs’ new theory of accrual is irreconcilable with the facts in their own pleading and the position they historically took. In sum, Plaintiffs should not have commenced this separate action and have not, in any event, pleaded facts that warrant a different outcome here as compared to in the Storer action.

As noted in the interim November 25, 2019 order, the Court first considers the import of the previous order in the Storer case. 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.)

Plaintiffs do not persuade the Court to reach a contrary conclusion. In their supplemental briefing, they primarily advance new and underdeveloped arguments without adequate explanation or legal support on matters the Court did not invite them to address. (See Supp. Opp. at pp. 3:19–10:11.) Plaintiffs’ analysis of the issues to be addressed in their supplemental brief is largely absent and otherwise superficial. The primary point they make is that the order denying their petition has not achieved sufficient finality because they appealed the order. In other words, Plaintiffs do not address the central question posed by the Court, namely whether a finding in an order on a petition for relief has preclusive effect (under the third strand) or is subject to renewed evaluation (under the second strand). (See generally 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.) While it may be true that the previous order in the Storer action is not final during the pendency of the appeal, the demurrer is sustainable irrespective of the previous order in light of the exhibits to the FAC and facts subject to judicial notice. Next, while Plaintiffs also cite to Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817, Rason contains statements of law that are against the weight of authority and involves facts that are materially distinguishable. In Rason, the trial court dismissed the petition for relief based on its untimeliness and did not resolve the disputed question of when the claim accrued. (Id. at pp. 820–21, 827.) Here, Plaintiffs historically admitted their claim was untimely based on the January-2017 date of accrual, and the Court necessarily had to address the date of accrual to evaluate their petition. And so, Rason is distinguishable. The Court does not follow it here. In sum, Plaintiffs do not persuade the Court that it is generally permissible to take the approach they took here, namely electing to pursue the proper remedy, a petition for relief, and then commencing a separate proceeding to see if they could obtain a different result. Also, Plaintiffs do not persuade the Court that they have or will be able to plead around their historic position on accrual and admission of untimely presentation to allege compliance or an excuse for noncompliance with the claim-presentation requirement.

In conclusion, Defendants’ demurrers on the ground of failure to state facts sufficient to constitute a cause of action are SUSTAINED WITHOUT LEAVE TO AMEND. As stated previously, the demurrers on the grounds of lack of subject matter jurisdiction, another action pending, and uncertainty are OVERRULED.

The Court will prepare the order.

After this signed order has been served, Defendants shall submit judgments consistent with this order.