NATURE OF PROCEEDINGS: Hearing on Defendant's Demurrer

 

Defendant's Demurrer is sustained without leave to amend.

 

BACKGROUND

Plaintiff Abel Venegas, Jr. (Plaintiff) filed this action against Los Angeles County Metropolitan Transportation Authority (Defendant) and the State of California (collectively “Defendants”), alleging that a bus owned and operated by Defendants crashed into his vehicle.

The causes of action are: (1) Motor Vehicle Negligence; and (2) General Negligence.

 

Defendant filed a Demurrer. Plaintiff filed an Opposition.

 

REQUEST FOR JUDICIAL NOTICE

Defendant requests that Court take judicial notice of Los Angeles County Metropolitan Transportation Authority’s Rejection of Plaintiff’s Governmental Claim, dated September 11, 2024. The Court grants Defendant’s request but does not accept as true the declaration of Candice Ureta as to the date the notice was deposited. See Childs v. Cal. (1983) 144 Cal.App.3d 155, 162-163 (“[J]udicial notice could not be taken of the truth of the matter at issue here: the date of deposit of the notice [of claim rejection] to plaintiff. …The date of deposit is a question of fact in the case before us which is simply not subject to resolution by demurrer.”).

LEGAL STANDARD

When considering demurrers, courts read the allegations liberally and in context. Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. As such, courts assume the truth of the complaint’s properly pleaded or implied factual allegations. Ibid. However, it does not accept as true deductions, contentions, or conclusions of law or fact. Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538. “To the extent the factual allegations conflict with the content of the exhibits to the complaint, [courts] rely on and accept as true the contents of the exhibits and treat as surplusage the pleader's allegations as to the legal effect of the exhibits.” Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”). The burden is on the complainant to show the Court that a pleading can be amended successfully. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

 

ANALYSIS

Defendant argues that this action is time-barred under the applicable statute of limitations.

“‘[A] demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred. It must appear affirmatively that, upon the facts stated, the right of action is necessarily barred.’” Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 313 (quoting Baright v. Willis (1984) 151 Cal.App.3d 303, 311) (citations omitted) (internal quotation marks omitted). However, “[w]hen a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory.” Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.

The parties agree that the statute of limitations in this case is governed by Government Code section 945.6, yet disagree on whether it is governed under subdivision (a)(1) or (a)(2).

“Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented … must be commenced: [¶] (1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail. [¶] (2) If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action. If the period within which the public entity is required to act is extended pursuant to subdivision (b) of Section 912.4, the period of such extension is not part of the time limited for the commencement of the action under this paragraph.” Gov. Code, § 945.6, subd. (a).

Government Code section 912.4, subdivision (a), states in relevant part, “[t]he board shall act on a claim in the manner provided in Section 912.6, 912.7, or 912.8 within 45 days after the claim has been presented.”

Here, the Complaint states only that “Plaintiff is required to comply with a claims statute, and has complied with applicable claims statutes.” Compl. ¶ 8. However, Plaintiff concedes that he received the notice of rejection on September 11, 2024. Opp. at p. 3:9. Plaintiff further contends that he filed his claim on May 15, 2024. Opp. at p. 2:24-26 (mistakenly written as “May 15, 2025”).

This case is governed by Glorietta Foods v. City of San Jose (1983) 147 Cal.App.3d 835 (Glorietta). There, San Jose mailed a notice of rejection of the claim to Glorietta, fifty days after the claim was filed. Glorietta, supra,147 Cal.App.3d at p. 836. “Glorietta contend[ed] that it had two years within which it could file the action pursuant to 945.6, subdivision (a)(2), because San Jose failed to accept or reject Glorietta's claim within the 45 days prescribed by 911.6, subdivision (a), and 912.4, subdivision (a).” Id. at p. 837. The Court rejected this argument, holding “a public entity, pursuant to section 945.6, subdivision (a)(1), [may] give notice of rejection of a claim at any time and thereby commence the running of a six-month statute of limitations. If the public entity fails to give notice of rejection of the claim, pursuant to 945.6, subdivision (a)(2), the statute of limitations is two years from the accrual of the cause of action.” Id. at p. 838.

Plaintiff argues that Defendant’s failure to respond to the claim within 45 days extends the statute of limitations from six months to two years. Not so. The two-year statute of limitations applies only when no notice is given, not merely when it is given more than 45 days after the claim was filed. See Gov Code § 945.6, subd (a)(2) (“If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action.” [Emphasis added]); Glorietta, supra, 147 Cal.App.3d at p. 836 (“The time within which a claimant against a public entity must file suit to avoid the bar of the statute of limitations depends upon whether the public entity gives notice of rejection of the claim. If such notice is given, the statute of limitations is six months; if not, the statute of limitations is two years from the accrual of the cause of action.”). Government Code section 913 pertains solely to the form of the notice, not the time. There is no dispute that the notice of rejection complies with Government Code section 913. Therefore, under the plain language of Government Code section 945.6, subd. (a)(1) applies, and the six-month statute of limitations is applicable.

Plaintiff is correct that a government entity is generally required to reject or approve the claim within 45 days; however, he mistakes the effect of the entity’s failure to do so. Failure to respond within 45 days does not apply the statute of limitations of Government Code section 945.6, subd. (a)(1). Rather, it means that the “claim shall be deemed to have been rejected by the board on the last day of the period within which the board was required to act upon the claim.” Gov. Code, § 912.4. This permits a plaintiff to file a complaint as soon as the 45 day period expires. See Gov. Code, § 945.4 (“[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 by the board, or has been deemed to have been rejected.”); see also Law Revision Commission Comment to the 1970 amendment of Gov. Code, § 945.6 (“Section 945.6 does not, of course, preclude the claimant from filing an action at an earlier date after his claim is deemed to have been rejected pursuant to Sections 912.4 and 945.4.”).

Nor is it relevant that Plaintiff did not agree to extend the time for Defendant to act. By agreeing to extend the time for the board to act, as permitted under Government Code section 912.4, subdivision (b), a plaintiff agrees to delay the accrual of their claim in exchange for tolling the limitations period under Government Code section 945.6, subdivision (a) (2). If the board ultimately responds with the notice, the plaintiff still has six months to file the complaint. If the board does not respond, the extension period is added to the two years allowed. With or without an agreement to extend time, if notice of rejection is ultimately filed, it commences the six-month limitations period.

Because Defendant gave notice of rejection, Plaintiff was required to file suit within six months after the date the notice was delivered or deposited in the mail. Gov Code § 945.6. subd. (a). Because Plaintiff received the notice on September 11, 2024, he was required to file his Complaint by March 11, 2025. Plaintiff did not file his Complaint until March 21, 2025. Therefore, Plaintiff’s claims are time-barred. Accordingly, the demurrer is sustained without leave to amend.

CONCLUSION

Defendant's Demurrer is sustained without leave to amend.