Judge: Loren G. Freestone, Case: 37-2022-00016473-CU-PO-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - November 16, 2023

11/17/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

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 second amended complaint is SUSTAINED IN PART and OVERULED IN PART.

Preliminary Matters The County's objection to the opposition on the ground it was served 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.) In its reply, the Court asserts that it 'requested judicial notice of SanGIS in its noticed motion, and Plaintiff did not oppose this request.' But the County never properly requested judicial notice. 'Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).' (Cal. Rules of Court, rule 3.1113(l).) The party requesting judicial notice must 'provide the court and each party with a copy of the material.' (Id.

at rule 3.1306(c).) Here, the County did not file a separate request for judicial notice, nor did it provide a copy of the pertinent information from SanGIS. Simply referencing material in a supporting memorandum and asserting it is judicially noticeable is not sufficient. As such, judicial notice has not been taken of any information from SanGIS.

Government Claims Act The County demurs to the first and second causes of action based on the 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.) 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.) '[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.) Here, Shaiken's claim accrued on March 27, 2021. Shaiken did not file a claim within six months Calendar No.: Event ID:  TENTATIVE RULINGS

3032645  47 CASE NUMBER: CASE TITLE:  SHAIKEN VS THE CITY OF SAN DIEGO [IMAGED]  37-2022-00016473-CU-PO-CTL 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/late claim application.

As such, Shaiken failed to allege compliance with the Government Claims Act.

However, it is 'settled that the failure to file the required claim, in the proper circumstances, may be excused and the governmental agency estopped from urging strict compliance with the statutory provisions.' (Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353, 357; accord Santos v. Los Angeles Unified School District (2017) 17 Cal.App.5th 1065, 1076.) In Fredrichsen, for example, the plaintiff (Fredrichsen) fell while walking on a defectively maintained sidewalk in the City of Lakewood (City). (Fredrichsen, supra, 6 Cal.3d at p. 355.) Fredrichsen telephoned the City and requested that it supply her with a claim form. (Ibid.) In response, the city clerk sent Fredrichsen a copy of a letter stating that responsibility for maintenance of the sidewalk rested with a third party. (Id. at pp. 355–356.) In reliance on that letter, neither Fredrichsen nor her attorney filed a timely claim with the City. (Id. at p. 356.) However, Fredrichsen's attorney was later informed by the City's public works department that the defective sidewalk was in fact maintained by the City. (Ibid.) The California Supreme Court held these allegations were sufficient for pleading purposes to estop the City from demurring based on Fredrichsen's noncompliance with the Government Claims Act. (Id. at pp.

357–360.) Here, similar to Fredrichsen, Shaiken alleges that he 'failed to file a claim against the County sooner because he detrimentally relied and/or was mislead by the County regarding the identity of the incident site's property owner.' (SAC ¶ 26.) Specifically, Shaiken (via his attorney) allegedly contacted County Assessor's Office 'to identify the owner of the offending sidewalk.' (SAC ¶¶ 12–13.) The Assessor's Office is 'charged with maintaining records and title documents within the County of San Diego.' (SAC ¶ 12.) Intending to induce reliance, the Assessor's Office responded that 'the lawful property owner is and was defendant City [of San Diego]' and that the sidewalk was 'under the jurisdiction of the City,' even though the Assessor's Office knew otherwise. (SAC ¶¶ 13, 18, 27(b)–(c).) Neither Shaiken nor his attorney allegedly 'had any reason to question the accuracy of the information' provided by the Assessor's Office. (SAC ¶¶ 14, 28(a).) In reasonable reliance on the representation by the Assessor's Office, Shaiken and his attorney only filed a timely claim with the City. (SAC ¶¶ 13, 28(b).) It was not until over 1 ½ years later that the City disclosed it was not responsible for the sidewalk. (SAC ¶ 18.) If the Assessor's Office had provided accurate information at the outset, Shaiken would have filed a timely claim with the County. (SAC ¶¶ 20, 27(a).) However, by the time the true information came to light, it was too late. For pleading purposes, this is sufficient to estop the County from asserting Shaiken's noncompliance with the Government Claims Act.

The County argues that Shaiken has not sufficiently alleged the substance of the call with the Assessor's Office, what facts the Assessor's Office knew, and what intent the Assessor's Office had in allegedly providing the incorrect information. The County also argues that Shaiken's reliance on the alleged representation by the Assessor's Office was not reasonable. These are all factual issues that are ill suited for resolution by way of a demurrer. (See Elmore v. Oak Valley Hospital Dist. (1988) 204 Cal.App.3d 716, 724; see also Fredrichsen, supra, 6 Cal.3d at p. 358 [whether an agency should be estopped from asserting noncompliance with the Government Claims Act 'depends on an examination of the totality of the circumstances' and requires courts to consider a variety of factors, none of which is necessarily determinative].) Shaiken has sufficiently alleged facts estopping the County from defending based on his noncompliance with the Government Claims Act. Accordingly, the demurrer to the first and second cause of action on this basis is overruled.

Government Code Section 815.2 The County also demurs to the second cause of action on the ground that Shaiken cannot hold it vicariously liable for its employees' failure to maintain the sidewalk.

Calendar No.: Event ID:  TENTATIVE RULINGS

3032645  47 CASE NUMBER: CASE TITLE:  SHAIKEN VS THE CITY OF SAN DIEGO [IMAGED]  37-2022-00016473-CU-PO-CTL Shaiken's second cause of action for negligence is premised on Government Code section 815.2.

'Government Code section 815.2, subdivision (a), makes a public entity vicariously liable for its employee's negligent acts or omissions within the scope of employment, but section 815.2, subdivision (b), adds the important qualification that a public entity is not liable for injuries committed by an employee who is immune from liability for such injuries.' (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1180, emphasis in original.) Generally, 'a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.' (Gov. Code, § 840; but see id. at § 840.2 [setting forth two narrow situations when a public employee can be held liable for a dangerous condition of public property].) Based on this statutory immunity, in another case involving a sidewalk fall, the court held that 'public entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but rather by the provisions in section 830 and 835.4 of the Government Code.' (Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383; see also Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 824–825.) Shaiken's opposition does not explain how his second cause of action, as currently pled, is viable in light of Government Code section 840 and Longfellow. Nor did Shaiken argue that he could amend this cause of action to render it viable.

Shaiken cannot hold the County vicariously liable under Government Code section 815.2 because, as pled, County employees are statutorily immune from liability under Government Code section 840.

Liability must be premised, if at all, on a theory of direct liability under Government Code section 835 (as pled in the first cause of action). Accordingly, the demurrer to the second cause of action is sustained without leave to amend.

Conclusion The demurrer to the first cause of action is overruled.

The demurrer to the second cause of action is sustained without leave to amend.

The County shall file an answer within 10 days.

Calendar No.: Event ID:  TENTATIVE RULINGS

3032645  47