Judge Mark A. Young, Case Number: 23SMCV01284, Date: 2023-10-23 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV01284, Date: 2023-10-23 Tentative Ruling

Case Number: 23SMCV01284 Hearing Date: February 6, 2024 Dept: M

CASE NAME: Magdalene Monterroso v. City of Santa Monica, et al.

CASE NO.: 23SMCV01284

MOTION: City of Santa Monica Motion for Summary Judgment

HEARING DATE: 02/06/2024

Background

Plaintiff Magdalena Monterroso filed a complaint against defendants City of Santa Monica, Heidi Marie Brumbach, and Does 1 – 50 for negligence arising out of a motor vehicle collision.

Basis for motion

City of Santa Monica Defendant argues that there are no triable issues of material fact in this action and defendants are entitled to judgment of issues, and in the alternative, summary adjudication, as a matter of law because Plaintiff did not file her lawsuit within six months of service of the notice of claim rejection.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.” (Code Civ. Proc., § 437b, subd. (b)(3).)

“On a motion for summary judgment [or summary adjudication], the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) The moving party is entitled to summary judgment or summary adjudication if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In analyzing motions 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.)

When deciding whether to grant summary judgment, the Court must consider all the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

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).)

EVIDENTIARY OBJECTIONS

Plaintiff’s objections

Plaintiff submitted evidentiary objections in her responses to the defendant’s separate statement. These objections were not stated correctly. “Each written objection must be numbered consecutively and must: (1) Identify the name of the document in which the specific material objected to is located; (2) State the exhibit, title, page, and line number of the material objected to; (3) Quote or set forth the objectionable statement or material...” (Cal. Rules of Court, Rule 3.1354(b).) Since Plaintiff did not state the exhibit, title, page, and line number of the material objected to or quote or set forth the objectionable statement or material, the Court declines to rule on the written objections.

Analysis

Defendant seeks summary judgment and, in the alternative, summary adjudication. The Court grants summary judgment for the reasons set forth below.

Statute of Limitations

A judge may permit a defendant to raise an affirmative defense for the first time in its summary judgment motion absent a showing of prejudice to the plaintiff. (Nieto v Blue Shield of Cal. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 75.) Here, the Court permits defendant to raise the six-month statute of limitations affirmative defense for the first time in its summary judgment motion.

The plaintiff must file suit within six months after the date the public entity serves the notice of rejection of the claim. (Gov. Code, § 945.6, subd. (a)(1).) If the public entity does not serve a notice of rejection within 45 days of the presentation of the claim, the action may be filed within two years from the accrual of the cause of action. (Govt. Code, §945.6, subd. (a)(2).) Government Code section 915.2 states that “proof of mailing may be made in the manner prescribed by Section 1013a of the Code of Civil Procedure.”

Code of Civil Procedure section 1013a, subdivision (1) provides that proof of service by mail may be made by “(1) an affidavit setting forth the exact title of the document served and filed in the case, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.” Only substantial compliance is required. (Him v. City & Cnty. of San Francisco (2005) 133 Cal.App.4th 437, 443.)

Defendant relies upon the declaration of City Risk Management Adjuster (“CMA”) Michael Mack (“Mack”). Defendant asserts that on October 15, 2021, Mack sent the plaintiff a notice of rejection of the claim, affixed with a proof of service signed under penalty of perjury, which warned plaintiff she had “only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim” pursuant to Government Code § 945.6(a)(1). (UMF 3-4.) Defendant further asserts that the rejection letter was addressed to plaintiff’s counsel at Law Offices of David P. Kashani, 3780 Selby Ave., Los Angeles California 90034, the same address listed on plaintiff’s claim as the preferred address for future correspondence. (UMF 5.) Defendant also asserts that Mack attests in the proof of service that the rejection was deposited in the mail on October 15, 2021. (UMF 3.)

Defendant argues that based on the above, the six-month clock began to run on October 15, 2021, and the plaintiff had to file her complaint in this action within 182 days of October 15, 2021, which is on or before April 15, 2022. Defendant asserts that she did not file this action for general negligence until March 23, 2023, and therefore, her action is untimely.

As stated, Government Code section 915.2 does not mandate strict compliance with the proof of service requirements of Code of Civil Procedure section 1013a. Instead, it provides that proof may be made in compliance with this statute, and that compliance need only be substantial. (See Call v. Los Angeles County Gen. Hosp. (1978) 77 Cal.App.3d 911, 917; Him, 133 Cal. App. 4th at 444.) Here, defendant substantially complied with the requirements of Code of Civil Procedure section 1013a. The proof of mailing included express representations by CMA Mack that on a specific day, he deposited in the U.S. Mail the rejection notice in a sealed, postage-paid envelope addressed to the attorney for the plaintiff. Further, the proof of service specified that the claims adjuster's business address was in Santa Monica, and he had executed the proof of service on that same day in Santa Monica. These representations raise a reasonable inference the CMA deposited the envelope containing the claim rejection notice in the United States mail within the boundaries of Santa Monica.

Based on the foregoing, the defendant met its burden on summary judgment. The burden shifted to the plaintiff to create a triable issue of material fact. In opposition, the plaintiff does not present any triable issues of fact, but argues that the defendant has not met its burden in this summary judgment motion. (Opp. Mot., pgs. 6-7.) As stated, defendant did meet its initial burden. Since there is no dispute of material fact, the Court GRANTS defendant’s motion for summary judgment.

Defendant to prepare a proposed judgment.