Judge Anne Hwang, Case Number: 21STCV18832, Date: 2024-10-22 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment/Memorandum of Points and Authorities

On May 19, 2021, Plaintiffs Tina Tinker and Seven Kovalski filed a complaint for negligence against Defendants Sam Kungval and Los Angeles County Metropolitan Transportation Authority based on a motor vehicle accident. The complaint alleges that on October 13, 2019, at S. Main Street and E. 7th Street in Los Angeles, Plaintiffs were in their vehicle when “a large Metro-Link bus, operated by defendant Sam Kungval, negligently made an unsafe right turn in the intersection and negligently collided with plaintiffs’ vehicle.” (Complaint, 5.)

On May 11, 2023, the Court granted Defendant Los Angeles County Metropolitan Transportation Authority’s (“Defendant”) motion for terminating sanctions and dismissed Plaintiff Seven Kovalski’s action against Defendant. (Min. Order, 5/11/23.)

Defendant now moves for summary judgment arguing that: (1) Plaintiff failed to present a timely claim under Government Code section 911.2; (2) Defendant was not negligent; and (3) video evidence contradicts Plaintiff’s allegations.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The Court grants Defendant’s request for judicial notice of Plaintiff’s complaint and Defendant’s answer. (Exh. 5, 6.) (Evid. Code § 452(d).) The Court denies the remaining, however, the Court considers the evidence absent objection from the Plaintiff.

The Court overrules Defendant’s objection to the Aghabala Declaration, page 2, paragraph 3. (See Forest Lawn Memorial-Park Ass’n v. Superior Court (2021) 70 Cal.App.5th 1, 8 [“A statement lacks foundation if no jury could reasonably find that the witness has personal knowledge of the matter.”] [Citation and alterations omitted, emphasis in original.].)

The Court overrules Defendant’s objection to the Aghabala Declaration, page 2, paragraph 4.

Pursuant to the Government Claims Act, a party with a claim for damages against a public entity must first timely present the claim directly with that entity. “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 . . . 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 . . . not later than one year after the accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).) A claim can be presented to a public entity by “[m]ailing it to the clerk, secretary, auditor, or to the governing body at its principal office.” (Gov. Code, § 915, subd. (a)(2).)

The party may file a lawsuit only if the public entity denies or rejects the claim (either expressly or by operation of law). (Gov. Code §§ 905, 945.4; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894.)¿ The claims presentation requirement provides the public entity with an opportunity to evaluate the claim and decide whether to pay on the claim.¿ (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474.)¿

Government Code section 945.6 “provides two alternative statutes of limitation for causes of action under the Tort Claims Act where a claim filed with a public entity has been rejected. If the public entity gives written notice of rejection of the claim in accordance with section 913, the statute of limitations is six months from the day such notice is personally delivered or deposited in the mail. If such notice is not given in compliance with section 913, the statute of limitations is two years from accrual of the cause of action.” (Dowell v. County of Contra Costa (1986) 173 Cal.App.3d 896, 900.) “[T]he mailed notices of rejection of claim … would trigger application of the six-month statute of limitations if the notices comply with the requirements of Government Code section 913 and they were mailed in the manner prescribed by section 915.2.” (Phay v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 443.)

Section 913(a) provides written notice of rejection of a claim shall be given in the manner prescribed by Section 915.4. (Govt. Code § 913(a).) That section provides that notice shall be given by any of three methods, including by mail to “the address, if any, stated in the claim … as the address to which the person presenting the claim … desires notices to be sent…” (Govt. Code § 915.4, subd. (a)(2).) “The text is not ambiguous… .” (Cavey v. Tualla (2021) 69 Cal.App.5th 310, 345 (finding the address stated on the claim was the plaintiff’s post office box address, and rejecting argument that notice had to be sent to attorney once counsel was retained notwithstanding plain meaning of statute).)

“The two-year period of limitations obtains only when the notice was not served; the six-month rule applies if notice was served, even though not actually received by the claimant.” (Dowell, 173 Cal.App.3d at 901 (citation omitted.) The court’s “focus is on the date of mailing, not the receipt of the notice.” (Phay, 133 Cal.App.4th at 445.) “[E]vidence of nonreceipt [may be] logically probative of nonmailing… absent contrary statutory authority…” (Id.)

Here, based on the allegations in the complaint, because the incident occurred on October 13, 2019, and involved injuries to persons and property, a claim must have been presented to Defendant by April 13, 2020. The complaint was filed May 19, 2021.

Defendant argues that Plaintiff’s action is barred by the statute of limitations because no timely claim was presented. Defendant presents the following relevant facts:

- The subject incident occurred on October 13, 2019, at or near the intersection of 7th Street and Main Street in Los Angeles, California. (UMF 1.)

- On December 11, 2019, Plaintiff’s counsel sent Metro a letter, informing Metro of counsel's representation and requesting preservation of evidence. No Claim for Damages was attached, and the letter did not indicate any enclosures. (UMF 2.)

- On January 17, 2020, Metro sent Plaintiff’s counsel a letter acknowledging the preservation of evidence letter. (UMF 3.)

- On May 3, 2021, Metro was served with Plaintiff’s Petition for Leave to File a Late Claim. However, said Petition was never filed with the Court. (UMF 4.)

- Metro denied Plaintiff’s Application on May 6, 2021. In Metro’s letter noticing the denial, Metro advised Plaintiff “If you wish to file a court action on this matter you must first petition the appropriate court for an order relieving you from the provisions of the Government Code Section 946.4 (Claims Presentation Requirement). See Government Code Section 946.6. Such petition must be filed with the court within six (6) months from the date your Application for Leave to Present a Late Claim was denied.” (UMF 5.)

Defendant has met its initial burden to show that Plaintiff did not send a timely claim within six months after the incident occurred. The burden shifts to Plaintiff.

In opposition, Plaintiff does not dispute sending the preservation letter on December 11, 2019, but argues the claim form was enclosed and also mailed on that day. (Pl. Resp. UMF 2.) Plaintiff claims Defendant erroneously failed to process the claim. Plaintiff provides the following relevant facts:

- On December 11, 2019, Plaintiff’s counsel sent Metro a timely Claim for Damages along with a letter of representation and request for preservation of evidence. The letter and Claim Form were sent via certified mail with USPS tracking. (PAMF 10.)

- On January 17, 2020, Metro sent Plaintiff’s counsel a letter acknowledging the preservation of evidence letter. In response to this letter, Plaintiff’s Counsel sent another letter to Metro, informing them that erroneously Metro had only processed the preservation letter, and had failed to process the Claim Form that was submitted on December 11, 2019. This letter included a copy of the Claim Form and the USPS tracking receipt for the Claim Form that had previously been submitted. (PAMF 11.)

Plaintiff provides a copy of the purported claim form that was sent on December 11, 2019, along with a certified mailing card addressed to Defendant that is date stamped December 16, 2019 and was signed upon delivery. (Aghabala Decl., Exh. 3.) The purported claim forms are signed and dated December 11, 2019. Plaintiff also provides a letter dated April 14, 2021, by Plaintiff’s counsel to Defendant, stating that the claim forms were sent along with the preservation letter on December 11, 2019. In the letter, Plaintiff’s counsel states he was just informed that the claim forms were never processed by Defendant, but that Carl Warren (Defendant’s third-party administrator) opened a claim. (Id., Exh. 4.) Plaintiff then sent copies of the claim forms and the certified mailing card as proof that it was timely.

Based on this evidence, there is a triable issue of fact regarding whether Plaintiff timely mailed the claim forms. If so, and Defendant did not a provide a response, the time to file this action was two years after the incident: October 13, 2021.[1]

The Court will now address Defendant’s final arguments in support of summary judgment—namely, that the video evidence shows Defendant’s driver was not negligent.

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) “‘Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant’s conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.]’ [Citations.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (“Constance”).)

- The Digital Video Recorder (“DVR”) shows the incident shows that Operator Kungval was driving in his lane, while Plaintiff had stopped the Prius over the limit line and over the double-yellow lane lines, in the lane of oncoming traffic. Plaintiff backed up her vehicle to allow the bus to turn, so she was no longer in the crosswalk, but was still over the double-yellow line. (UMF 6.)

Defendant argues that because Plaintiff’s car was over the double yellow lines, she violated Vehicle Code section 21651. However, even if this was negligent, Defendant has not shown how this precludes a finding that Defendant’s driver also acted negligently by maneuvering the turn. Defendant provides no explanation why Plaintiff’s alleged comparative negligence precludes its own negligence as a matter of law. Therefore, Defendant fails to meet its burden to show an absence of a triable issue of fact.

Based on the foregoing, Defendant Los Angeles County Metropolitan Transportation Authority’s Motion for Summary Judgment is DENIED.

Defendant shall provide notice of this ruling and file a proof of service of such.

[1] In reply, Defendant argues that Plaintiff’s counsel should be disqualified since his declaration provides testimony about the merits of this motion. This request is not raised in a proper motion but is raised in reply with no opportunity for Plaintiff to respond, and relies solely on the ABA Model Rules of Professional Conduct, rather than California rules. In any event, it is not clear that Plaintiff’s counsel will likely be a witness at trial, since both parties will likely present testimony by staff members who were directly involved in processing the paperwork.

DEPT:	32
HEARING DATE:	October 22, 2024
CASE NUMBER:	21STCV18832
MOTIONS:	Motion for Summary Judgment
MOVING PARTY:	Defendant Los Angeles County Metropolitan Transportation Authority
OPPOSING PARTY:	Plaintiff Tina Tinker