Case Number: BC654125 Hearing Date: October 16, 2018 Dept: 34

SUBJECT: Demurrer to Second Amended Complaint; Motion to Strike

Moving Party: Defendants Los Angeles County Metropolitan Transportation Authority, City of Los Angeles, and County of Los Angeles

Resp. Party: Plaintiff Laura McGhee

The demurrer is SUSTAINED. Because this ruling may lead to the filing of an amended complaint, the motion to strike is taken OFF-CALENDAR.

BACKGROUND:

Plaintiffs commenced this action on 03/15/17 and filed a First Amended Complaint on 12/26/17. On 04/11/18, plaintiff filed a Second Amended Complaint (“SAC”) against defendants for: (1) slip and fall.

ANALYSIS:

Defendants demur to plaintiff’s cause of action for slip and fall on the grounds that the Court lacks jurisdiction, that plaintiff lacks the legal capacity to sue, that the claim fails to state facts sufficient to constitute a cause of action, and that the clam is uncertain. (See Demurrer, p. 3:4-10.)

Plaintiff alleges that on 12/23/15, she “was walking northbound on the west side of Hill Street between First and Second Streets and tripped on a raised sidewalk.” (SAC ¶ 6.) The location “is a block south of the downtown Los Angeles courthouse” and “approximately 100 feet south of the entrance to the Los Angeles County Metropolitan Transportation Authority (“LACMTA”) station at First and Hill Streets.” (Id. at ¶¶ 6, 1.) Plaintiff alleges that she timely filed government claims against both the City and County of Los Angeles. (Id. at ¶¶ 9, 10.) It turns out that the location where plaintiff fell is controlled by LACMTA and not by the City or the County. Plaintiff acknowledges that she did not file a timely government claim against LACMTA but alleges that it is “estopped from relying on the untimeliness of plaintiff pursuing her claim against said defendant.” (Id. at ¶ 11.)

Relevant Law

Pursuant to Government Code section 945.4

“Except as provided in Sections 946.4 and 946.6, 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 in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division 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, in accordance with Chapters 1 and 2 of Part 3 of this division.”

A tort claim for money damages against a public entity must be filed with the public entity within six months of the accrual of the cause of action. (Gov. Code, § 911.2.) “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.” (Gov. Code, § 911.2.) “The timeliness of such actions is governed by the specific statute of limitations set forth in the Government Code, not the statute of limitations applicable to private defendants.” (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.) Timely claim presentation is a condition precedent to filing a lawsuit and complaints that do not allege timely claim presentation or cognizable excuses, are subject to a general demurrer. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.)

“When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.” (Gov. Code, § 911.4(a).) “The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.” (Gov. Code, § 911.4(b).) “The board shall grant or deny the application within 45 days after it is presented to the board. The claimant and the board may extend the period within which the board is required to act on the application by written agreement made before the expiration of the period.” (Gov. Code, § 911.6(a).) “If the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day or, if the period within which the board is required to act is extended by agreement pursuant to this section, the last day of the period specified in the agreement.” (Gov. Code, § 911.6(c).)

“If an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4. The proper court for filing the petition is a superior court that would be a proper court for the trial of an action on the cause of action to which the claim relates. If the petition is filed in a court which is not a proper court for the determination of the matter, the court, on motion of any party, shall transfer the proceeding to a proper court. If an action on the cause of action to which the claim relates would be a limited civil case, a proceeding pursuant to this section is a limited civil case.” (Gov. Code, § 946.6(a).)

“The petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.” (Gov. Code, § 946.6(b).)

Discussion

The SAC alleges that all three defendants “were in possession of, and owned, operated, maintained and controlled” the location where plaintiff slipped and was injured. (SAC ¶ 4.)

Defendants demur to plaintiff’s SAC on the ground that “it is jurisdictionally barred, improper, and fails to state a cause of action against Metro as Plaintiff has not sought and obtained relief for bringing a complaint in Superior Court against Metro.” (Demurrer, p. 4:23-24.) Although plaintiff alleges that she timely filed government claims against the City and the County, her claim against LACMTA was untimely. (See SAC ¶¶ 9-11.) Defendants argue that plaintiff has failed to follow the proper procedures for seeking relief from her untimely claim while plaintiff argues that LACMTA is estopped from arguing that her claim was untimely because it had actual notice of her claim.

Plaintiff alleges that LACMTA is estopped from relying on the untimeliness of her claim because:

“the place where the accident occurred would appear to any reasonable person and to any reasonable attorney to be on property owned and maintained by the City of Los Angeles since it occurred on a City Street. As a matter of fact, the area in question is actually owned by the County of Los Angeles, which has granted an easement over part of the sidewalk to the Lo Angeles County Metropolitan Transportation Authority.” (SAC ¶ 12.)

Based on the complicated relationship, both the City and the County “had a duty to notify plaintiff that the accident site was in fact controlled by the defendant [LACMTA] by reason of its easement, even though the accident location was at least 100 feet south on the sidewalk from the entrance to the Metro station.” (Id. at ¶ 13.) Additionally, plaintiff alleges on information and belief that LACMTA “was in fact apprised of the accident and . . . also owed a duty to advise plaintiff of the fact that it controlled the area where the accident occurred.” (Ibid.) Thus, LACMTA “had full knowledge of the accident and apparently corrected the defective area subsequent to the accident, thereby estopping itself from claiming that plaintiff did not timely file a claim against it.” (Ibid.)

Defendant does not deny that it had actual knowledge of the accident but maintains that the facts alleged are inadequate to constitute estoppel under the relevant provisions of the Government Code. In Pacific Tel. & Tel.Co. v. County of Riverside (1980) 106 Cal.App.3d 183, the court held that “[i]t is well-settled that claims statutes must be satisfied even in the 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.” (Id. at p. 191.) In contrast, courts have held that “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. Estoppel most common results from misleading statements about the need for or advisability of a claim.” (Demurrer, p. 7:17-21 [quoting John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445].) Courts have also recognized that public entities and their agents do not have a duty to forward a misdirected claim to the appropriate agency because “by focusing on the duty of a public employee in receipt of a claim to forward the claim to the proper agency, Jamison inappropriately shifts responsibility for filing a claim with the proper official or body from the claimant to the public entity.” (Demurrer, p. 8:1-9 [citing DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 995].)

Based on the foregoing, defendant argues that plaintiff’s estoppel theory is misplaced. If plaintiff did not timely file a complaint with LACMTA, her remedy is to seek leave from LACMTA to file a late complaint and, if that request is rejected, to file a petition for relief with this Court. (See Demurrer, p. 8:11-9:7; See Gov. Code §§ 911.4(a), 946.6(a).)

Plaintiff’s opposition does not offer any meaningful response to defendant’s arguments. Plaintiff reiterates, without supporting authority, that “MTA or the County had a duty to advise Plaintiff and members of the public that most of the block south of the entrance to the Metro was in fact controlled by Defendant MTA.” (Opp. p. 3:19-21.) Plaintiff fails to distinguish, or even acknowledge, the Supreme Court’s ruling that imposing a duty to assist plaintiff in filing her complaint “inappropriately shifts responsibility for filing a claim with the proper official or body from the claimant to the public entity.” (See DiCampli-Mintz, supra, at p. 995.) Plaintiff also argues that “the question of estoppel is one of fact to be decided by the trier of fact [and] should not be determined on a demurrer.” (Opp. p. 5:3-5.) If plaintiff had alleged facts that could reasonably support an estoppel theory, the Court might be inclined to agree. Here, however, plaintiff relies on John R., supra, which holds that estoppel is appropriate where the agency, “its agents or employees had prevented or deterred the filing of a timely claim or by some affirmative act.” (Opp. p. 5:6-11.) Plaintiff has not alleged that defendants committed any affirmative act to deter her from properly filing her claim. Instead, she has alleged a failure to act based upon a duty that is not properly imposed on defendants. Under these facts, a reasonable trier of fact could not conclude that estoppel is appropriate and so there is no need to delay a determination of the issue.

Finally, plaintiff fails to offer any explanation as to why she is not pursuing the statutory options for seeking relief from her untimely complaint to LACMTA. “Men must turn square corners when they deal with the Government. If it attaches even purely formal conditions to its consent to be sued those conditions must be complied with.” (Rock Island &c. R. R. v. United States (1920) 254 U.S. 141, 143.)

Accordingly, the demurrer is SUSTAINED. Because this ruling may lead to the filing of an amended complaint, the motion to strike is taken OFF-CALENDAR.