Judge Anne Hwang, Case Number: 22STCV21091, Date: 2024-03-06 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.

On June 29, 2022, Plaintiff Levon Mkheyan (“Plaintiff”) filed a complaint against Defendants Glendale Fire Department, Connor James Crampton, Gregory Wyatt Kupka, Nancy E. Kupka, and Does 1 to 25 for injuries related to a motor vehicle accident that occurred on January 14, 2022.

On December 16, 2022, Cross Complainants Gregory Wyatt Kupka and Nancy E. Kupka (“Cross Complainants”) filed an answer and cross complaint against Cross Defendants Glendale Fire Department and Connor James Crampton (“Cross Defendants”) for indemnity and contribution. On December 7, 2023, Cross Defendants filed an answer to the cross complaint.

Cross Defendants now move for judgment on the pleadings arguing that Cross Defendants have not alleged compliance with the Government Claims Act. Cross Complainants oppose and Cross Defendants reply.

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

When the moving party is a defendant, he must demonstrate either of the following exist:

i.The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

ii.The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B)(i)-(ii).)

“[I]n order for judicial notice to support a motion for judgment on the pleadings by negating an express allegation of the pleading, the notice must be of something that cannot reasonably be controverted…The same is true of evidentiary admissions or concessions.” (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.)

A motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.) Here, the Declaration of Edward B. Kang states that he attempted to meet and confer with counsel for Cross Complainants but received no response. (Kang Decl. ¶ 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.¿ 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.)¿¿¿

A party must file a claim based on “a cause of action for death or for injury to person” within six months. (Gov. Code, §§ 911.4, 911.2, subd. (a).) A party may apply for leave to present an untimely claim (Govt. Code § 911.4), which the board “shall grant or deny … 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).) “The board shall grant the application if one of more of the following is applicable: (1) The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect and the public entity was not prejudiced in its defense of the claim by the failure to present the claim within the time specified in Section 911.2.” (Gov. Code § 911.6(b).)¿¿

“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 45^th 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).) “In all circumstances, a late claim application is deemed denied after 45 days, even though section 911.6(b)(2) would entitle the [individual] to relief if the application had merit. By placing this limitation on the entity’s time to act, the Legislature ensured that applications would not languish.” (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 653.)

“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.” (Gov. Code § 946.6(a).) The petition shall show each of the following: (1) the application was denied or deemed denied, (2) the reason for the failure to present a timely claim, and (3) information required in section 910. (Gov. Code § 946.6(b).) “The applicant has six months to seek relief in court ‘after the application to the [entity] is denied or deemed to be denied.’ The six-month period ‘operates as a statute of limitations. It is mandatory, not discretionary.’” (J.M., supra, 2 Cal.5^th at 653 (alterations and emphasis in original, citations omitted).)

The court must grant a petition for relief from the claims filing requirements of the Government Claims Act if the court finds, by a preponderance of the evidence, that the petitioner filed an application within a reasonable time after the cause of action accrued, which may not exceed one year, it was denied or deemed denied pursuant to Section 911.6, and that the petitioner’s failure to present a timely claim was due to minority, incapacity or death, or “mistake, inadvertence, surprise or excusable neglect[.]”¿ (Gov. Code, § 946.6(c); El Dorado Irrigation Dist. v. Superior Court¿(1979) 98 Cal.App.3d 57, 62.) “Relief from the six-month limit is granted under the same showing as is required for relief under Code of Civil Procedure section 473.” (Munoz v. State of California¿(1995) 33 Cal.App.4th 1767, 1778.)

The excusable neglect standard assumes that there has been some sort of inattention or carelessness and asks “whether a reasonably prudent person might have made the same error under the same or similar circumstances.”¿ (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1783.) In applying this standard, a court must also examine whether the party or her counsel were “otherwise diligent in investigating and pursuing the claim.”¿ (Id.)¿“To obtain relief under section 946.6, subdivision (c)(1), ‘[t]he mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief. Relief on grounds of mistake, inadvertence, surprise or excusable neglect is available only on a showing that the claimant's failure to timely present a claim was reasonable when tested by the objective ‘reasonably prudent person’ standard.’ [Citation.]”¿ (N.G. v. County of San Diego (2020) 59 Cal.App.5th 63, 73-74.)¿¿¿

If the petitioner proves grounds for relief, the burden shifts to the entity to demonstrate prejudice “in the defense of the claim[.]” (Gov. Code, § 946.6, subd. (c)(1).)¿¿¿

As an initial matter, the Court on its own motion takes judicial notice that Cross Defendant is a public entity as defined by the California Government Code. (Gov. Code § 811.2 [“’Public entity includes . . . a county city, district, public authority, public agency, and any other political subdivision or public corporation in the State.”].) The Court also takes judicial notice of the proofs of service of the summons and complaint on Cross Complainants, filed with the Court on December 7, 2022. (Evid. Code § 452(d).) The proofs of service show that Cross Complainants were served Plaintiff’s summons and complaint via substitute service on November 16, 2022; on that same date, the service papers were mailed to Cross Complainants.

A cause of action for equitable indemnity or partial equitable indemnity starts to accrue on the date which a defendant is served with the complaint giving rise to the defendant's claim for indemnity. (Gov. Code § 901.) Therefore, because Cross Complainants were served by substitute service, service is complete on the tenth day after the summons and complaint were mailed. (See Code Civ. Proc. § 415.20.) Therefore, since the summons and complaint were mailed on November 16, 2022, November 26, 2022 is the operative date when the cause of action began to accrue.

Here, Cross Defendants argue that Cross Complainants have failed to allege any compliance with the government claims act prior to filing this cross complaint. Upon reviewing the Cross Complaint, the Court finds there are no allegations that a claim was submitted to the City of Glendale Fire Department prior to filing the cross complaint.

In opposition, Cross Complainants appear to concede that a claim was not timely filed, and instead ask for relief under Government Code section 946.6(c) and for equitable relief. (See Opp., 5.)

As described above, the Court may only grant relief upon a petition from the moving party. There is no indication that a petition has been filed with the Court. The Court will not hear a petition for relief within an opposition to this motion. Moreover, as discussed above, before a petition may be granted, Cross Complainant must first show that it applied to the government agency for leave to submit a late claim. (Gov. Code §§ 946.6(c); 911.4.) According to Cross Complainant’s opposition, there is no indication that an application to submit a late claim was submitted within one year after accrual of the cause of action, which started accruing on November 26, 2022. (See Gov. Code § 911.4(b).)

Next, Cross Complainants argue that the doctrine of laches should be applied against Cross Defendants for waiting seven months to file an answer to the cross complaint, when the accrual period for filing a government claim expired on November 16, 2023.[1] (Opposition at pp. 6-7 [People v. Department of Housing & Community Dev. (1975) 45 Cal.App.3d 185, 195–96].) To the extent that the doctrine of laches applies in this context, Cross Complainants have not established that there was an “unreasonable delay plus either acquiescence or prejudice.” (Department of Housing & Community Dev., supra, 45 Cal.App.3d at 195.)

Accordingly, Cross Defendants’ motion for judgment on the pleadings is GRANTED with leave to amend.

Cross Defendants shall give notice of the Court’s order and file a proof of service of such.

[1] The parties appear to agree that the accrual period expired on November 16, 2023. However, under Code Civ. Proc. § 415.20, the accrual period expired on November 26, 2023, unless the parties can point to contrary authority.

DEPT:	32
HEARING DATE:	March 6, 2024
CASE NUMBER:	22STCV21091
MOTIONS:	Motion for Judgment on the Pleadings
MOVING PARTY:	Cross Defendants Glendale Fire Department and Connor James Crampton
OPPOSING PARTY:	Cross Complainants Gregory Wyatt Kupka and Nancy E. Kupka