Judge Lee S. Arian, Case Number: 22STCV33206, Date: 2023-12-18 Tentative Ruling

ADRIAN BREVARD,

Plaintiff,

vs.

LOS ANGELES CITY COLLEGE,

Defendant.

)

CASE NO.: 22STCV33206

[TENTATIVE] ORDER RE: DEFENDANT LOS ANGELES CITY COLLEGE’S MOTION FOR SUMMARY JUDGMENT

Dept. 27

1:30 p.m.

December 18, 2023

Defendant Los Angeles Community College District (“Defendant”) (erroneously sued as “Los Angeles City College”) moves for summary judgment against Plaintiff Adrian Brevard (“Plaintiff”) on the grounds that Plaintiff failed to comply with Government Claims Act, Gov. Code, § 810 et seq., including Government Code §§ 905, 910, 911.2, 911.4, and 915.

This action arises from a slip and fall suffered by Plaintiff on Defendant’s premises on October 21, 2021. On October 11, 2022, Plaintiff filed a form complaint against Defendant and Does 1-20 (together, “Defendants”), alleging 1) general negligence and 2) premises liability. Plaintiff claims the fall was the result of Defendants’ negligence in maintaining and controlling a dangerous condition on Defendant’s premises. Plaintiff claims to have suffered wage loss, loss of use of property, hospital and medical expenses, general damage, property damage, and loss of earning capacity as a result of the slip and fall. Plaintiff is seeking compensatory damages and damages according to proof.

On March 29, 2023, the Court signed a stipulation between the parties dismissing all causes of action except count two of the premises liability cause of actions for dangerous condition of public property.

On September 29, 2023, Defendant filed the instant motion for summary judgment, along with a separate statement of undisputed facts, a memorandum of points and authorities, the Declarations of Eric Kim and J Jeffrey, and a proposed order. On December 4, 2023, Plaintiff filed an opposition, along with a response to Defendant’s separate statement, objections to evidence in support of the motion, and a proposed order sustaining Plaintiff’s objections. On December 11, 2023, Defendant filed a reply and a response to Plaintiff’s response to the separate statement.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Defendant moves for summary judgment on the grounds that this action is barred by the Government Claims Act because Plaintiff failed to comply with Government Code § 810 et seq., including Government Code §§ 905, 910, 911.2, 911.4, and 915, prior to filing the complaint. In the complaint, Plaintiff stated that he had complied with the applicable claims statutes. (Complaint, Sec. 9a.) However, Defendant contends that Plaintiff improperly sent his government claim to the City of Los Angeles, an entity entirely distinct from Defendant. Consequently, Defendant did not receive the claim until 16 months after the accident (and after the complaint was filed), on February 7, 2023, when Plaintiff’s counsel provided it to Defendant’s counsel.

Defendant anticipates that Plaintiff will contend that Plaintiff substantially complied with the Act by sending a preservation of evidence letter to Los Angeles City College on November 21, 2021, one month after the accident. Defendant contends that this argument is unpersuasive because 1) the letter was sent to a different entity (Los Angeles City College) and 2) it substantively would fall short of meeting the substantial compliance test. On the issue of substance, Defendant contends the letter did not provide any indication that Plaintiff was seeking money damages or if so, the amount of money damages, nor did it state that litigation would ensue if Plaintiff’s demands were not met. For the following reasons, the Court finds that Defendant is entitled to summary judgment.

“ ‘[A] plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act by including a general allegation that he or she timely complied with the claims statute.’ ” (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 552.) “When a pleading states that the plaintiff has complied with the claims statute, it has properly pleaded an ultimate fact—that is, the statement of compliance is not a conclusion of law.” (Id. at 552 n. 4.) Accordingly, “plaintiffs are allowed to plead compliance with the claims presentation requirement in the Government Claims Act using a general allegation.” (Id. at 554 [finding plaintiff properly pled compliance with claim presentation requirement of the Act by checking boxes for items 9.a on Judicial Council form PLD–PI–001].)

In this case, Plaintiff checked the boxes for items 9.a on the FAC complaint. Therefore, the FAC sufficiently pleads compliance with the Act’s presentation requirements on its face.

However, Defendant contends that Plaintiff did not properly present its claim by delivering it to it to the clerk, secretary, auditor, or to the governing body of the public entity Defendant at its principal office, or by mailing it to the clerk, secretary, auditor, or to the governing body at its principal office pursuant to Government Code § 915.

California Government Code § 911.2(a) states, “[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) A claim, any amendment thereto, or an application to the public entity for leave to present a late claim shall be presented to a local public entity by any of the following means:

(2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office.

(3) If expressly authorized by an ordinance or resolution of the public entity, submitting it electronically to the public entity in the manner specified in the ordinance or resolution.

(e) A claim, amendment, or application shall be deemed to have been presented in compliance with this section even though it is not delivered or mailed as provided in this section if, within the time prescribed for presentation thereof, any of the following apply:

(1) It is actually received by the clerk, secretary, auditor, or board of the local public entity.

Furthermore, “the failure to timely present a proper claim … bars a plaintiff from filing a lawsuit against that entity. [Citation.]” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.) Thus, “[e]ven if the public entity has actual knowledge of facts that might support a claim, the claims statutes still must be satisfied. [Citation.]” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990.) “The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 767.)

Here, Defendant’s evidence shows Plaintiff’s claim of damages was sent to the City of Los Angeles rather than Defendant. (Defendant’s SUMF ¶ 2.) Furthermore, the November 21, 2021, preservation of evidence letter was delivered to Los Angeles City College at 855 N. Vermont Avenue, Los Angeles, California 90029. (SUMF ¶ 7.) Defendant’s associate general counsel, Eric Kim, attests that Defendant did not receive actual notice of the letter or Plaintiff’s claim until February 7, 2023, when Plaintiff provided it to defense counsel. (SUMF ¶ 8.) As this was after the action was filed, the filing of this action would appear to be out of compliance with the Government Claims Act.

In opposition, Plaintiff’s counsel contends that he made extensive efforts in order to determine how to comply with the Government Tort act insofar as where to send the claim for damages but that Los Angeles City College made it very unclear where to send a claim against it. (Kremer Decl. ¶ 3.) He stated that he checked the College’s website but that there were no claim forms, addresses for legal departments, or instructions for where to send a claim for damages. (Id.) He also called the only number provided on the website but was not able to obtain an answer. (Id.) Thereafter, Plaintiff’s counsel sent the claim for damages to the City of Los Angeles and the notice letter enclosed with a photograph of the location of the incident and a copy of the claim for damages to Los Angeles City College, directing the latter letter to the “Risk Management/Legal Department.” (Id.) Plaintiff’s counsel claims that since receiving the moving papers for the instant motion, he has again reviewed the websites for Defendant and Los Angeles City College and found that there are no claim forms, instructions for where to send a claim of damages, or direct links to submitting claims digitally. (Id. at ¶ 5.)

Despite these contentions, Plaintiff does not dispute the mailing locations where the claim of damages and preservation of evidence letter were sent. It is uncontested that the claim was never delivered or mailed to the “clerk, secretary or auditor” as required by § 915(a). Likewise, the “clerk, secretary, auditor or board” never actually received the claim in time. (Gov. Code § 915(e)(1).) Consequently, neither § 915(a)'s specific requirements for compliance, nor § 915(e)(1)'s provision deeming actual receipt to constitute compliance, were satisfied.

Section 915(a)(1) reflects the Legislature's intent to precisely identify those who may receive claims on behalf of a local public entity. Section 915(e)(1) reflects the Legislature's intent that a misdirected claim will satisfy the presentation requirement if the claim is “actually received” by a statutorily designated recipient. Thus, compliance with section 915(e)(1) requires actual receipt of the misdirected claim by one of the designated recipients. If an appropriate public employee or board never receives the claim, an undelivered or misdirected claim fails to comply with the statute.

(DiCampli-Mintz, 55 Cal.4th at 992-93.) Accordingly, while Plaintiff contends he substantially complied with the Act’s claim requirements, Plaintiff's contention fails given that there is no substantial compliance unless the misdirected government claim was actually received by the appropriate officials. (Id.) What is more, Plaintiff fails to distinguish, or even acknowledge, the Supreme Court's ruling in DiCampli-Mintz, that a misdirected claim fails to comply with the Act. (See DiCampli-Mintz at 995.)

Thus, Plaintiff cannot show he timely complied with the Act’s claim requirements because he did not deliver his claim to the statutorily designated recipient identified in Gov. Code § 915(a)- that is, the clerk, secretary, or auditor of the public entity- nor are there any allegations showing the claim was actually received by the appropriate person.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.