Judge Loren G. Freestone, Case 37-2022-00016473-CU-PO-CTL 2023-08-11 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2022-00016473-CU-PO-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - July 13, 2023

07/14/2023 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00016473-CU-PO-CTL SHAIKEN VS THE CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant County of San Diego's demurrer to Plaintiff Steven Shaiken's first amended complaint is SUSTAINED WITH LEAVE TO AMEND.

Preliminary Matters The County's objection to the opposition on the ground it was filed one court day late is overruled. The court exercises its discretion to reach the merits of the dispute. (See Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162.)

The County's objection to the declaration of Richard Prager is sustained, in part. The declaration may not be considered when evaluating the sufficiency of the complaint, but it may be considered when evaluating whether there is a reasonable possibility that any defects could be cured by amendment.

(See Autonomous Region of Narcotics Anonymous v. Narcotics Anonymous World Services, Inc. (2022) 77 Cal.App.5th 851, 962.) The County's request for judicial notice of a county website titled 'Geographic Information System (GIS)' and results from the San Diego GIS website is denied. New evidence may not be submitted for the first time in reply. (See Nirschl v. Schiller (2023) 91 Cal.App.5th 386, 406, fn. 10.) Government Claims Act 'The Government Claims Act (§ 810 et seq.) establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity.' (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1219.) '[F]ailure to allege facts demonstrating or excusing compliance with the claim presentation requirements subjects a claim against a public entity to a demurrer for failure to state a claim.' (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) Personal injury claims be presented within six months of accrual. (Gov. Code, § 911.2.) When such a claim is not presented within six months, the claimant has up to one year from accrual to apply for leave to present a late claim. (Id. at § 911.4.) If an application for leave to present a late claim is denied, the claimant has six months to petition the court for relief. (Id. at § 946.6.) The court can only grant relief only if, among other things, the application for leave to present a late claim with made within one year of Calendar No.: Event ID: TENTATIVE RULINGS

2981248 37 CASE NUMBER: CASE TITLE: SHAIKEN VS THE CITY OF SAN DIEGO [IMAGED] 37-2022-00016473-CU-PO-CTL the date the claim accrued. (Id. at subd. (c); see J.J., supra, 223 Cal.App.4th at p. 1221.) Here, Shaiken's claim accrued on March 27, 2021. Shaiken did not file a claim within six months thereafter, nor did he apply for leave to file a late claim within one year thereafter. It was not until March 26, 2023-nearly two years after his claim accrued-that Shaiken first sent his claim/application. As such, Shaiken failed to allege compliance with the Government Claims Act.

However, there is a reasonable possibility that Shaiken can amend to allege that the County is estopped from asserting noncompliance with the Government Claims Act. Specifically, a 'plaintiff may be entitled to assert equitable estoppel if a public entity or its employee provided misleading information about which entity was responsible on a government claim.' (Santos v. Los Angeles Unified School District (2017) 17 Cal.App.5th 1065, 1076 [estoppel where school district caused claimants to believe that school police department, whose officer crashed into them, was a separate entity]; Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353 [estoppel where city clerk negligently informed claimant that responsibility for maintaining the defective sidewalk where he slipped rested with a third party].) Here, the claim/application that Shaiken's attorney submitted to the County (attached as an exhibit to the first amended complaint) states, in pertinent part: 'Before the six (6) month anniversary date of Mr. Shaiken's claim, I telephone the County of San Diego Assessor/Recorders Office to obtain the property ownership information regarding the subject property upon which Mr. Shaiken was injured. At that time, the County of San Diego Assessor/Recorders Office informed my that the subject property owner is and was the City of San Diego.' 'Based solely upon the representations by the County of San Diego, I timely filed a tort claim and later timely filed a lawsuit against the City of San Diego. Recently, the City of San Diego was served and contacted me regarding this matter.' 'The City of San Diego is alleging that the subject property is owned by the County of San Diego, not the City of San Diego. Upon learning this information, my office made contact with the Office of County Counsel to discuss this issue to confirm the actual ownership information of the subject property that caused my client injury.' 'My office made repeated efforts to discuss the matter with a staff attorney from the Office of County Counsel. Unfortunately, my office never received a return telephone call from an attorney with the Office of County Counsel.' 'Accordingly, Mr. Shaiken hereby files a tort claim with the County of San Diego. Because the County of San Diego Assessor/Recorders Office falsely induced the Plaintiff to sue the City of San Diego, and not the County of San Diego ('County'), the County is now estopped from claiming that Plaintiff's claim is late.' Shaiken's attorney also filed a declaration in opposition to the demurrer similarly describing the facts surrounding his interactions with the County that he intends to allege in a second amended complaint.

The County argues that the facts of this case are distinguishable from cases like Fredrichsen and do not give rise to an estoppel. But whether Shaiken will be able to prove an estoppel is not the issue. For present purposes, the issue is simply whether there is a reasonable possibility that Shaiken can amend to allege an estoppel. Shaiken has demonstrated that possibility exists, and therefore the demurrer is sustained with leave to amend.

Conclusion The County's demurrer to the complaint is sustained based on Shaiken's failure to allege facts demonstrating or excusing compliance with the Government Claims Act. In light of this ruling, it is Calendar No.: Event ID: TENTATIVE RULINGS

2981248 37 CASE NUMBER: CASE TITLE: SHAIKEN VS THE CITY OF SAN DIEGO [IMAGED] 37-2022-00016473-CU-PO-CTL unnecessary to reach the County's alternative challenge to the second cause of action.

There is a reasonable possibility that Shaiken can amend to allege estoppel. Shaiken is therefore granted 10 days leave to file a second amended complaint.

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