Judge Michael Shultz, Case Number: 20STCV38387, Date: 2024-06-04 Tentative Ruling

INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:

1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all parties entitled to receive service.

If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.

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20STCV38387 Elaina Redmond v. County of Los Angeles, dba Martin Luther King Outpatient Center, Benjamin Edmands

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT BY DEFENDANT, COUNTY OF LOS ANGELES

The complaint alleges that Defendant, Benjamin Edmands, employed by the County of Los Angeles (“County”) as a physical therapist, made inappropriate sexual and demeaning comments to Plaintiff, who was being treated for a sciatic condition at the time. The alleged inappropriate conduct occurred between May 9, 2018, and July 5, 2018. Plaintiff alleges claims for sexual harassment, sexual battery, gender violence, negligent hiring/supervision/ training/retention; negligence; and intentional infliction of emotional distress.

Defendant County moves for summary judgment of the entire complaint in its favor based on Plaintiff’s failure to comply with claims filing requirements of the Government Code. Plaintiff’s former attorney, Michael Yadegari, emailed Plaintiff’s government claim to Tito Rodriguez, an employee of the Los Angeles County Department of Health, who was not authorized to accept the claim on behalf of Defendant. Mr. Yadegari then sent a “notice of claim letter” on September 16, 2018, to the Board of Supervisors as directed by Mr. Ruiz, and later filed a government claim with the County of Los Angeles on May 21, 2019. County contends the September 16 “notice” did not comply with statutory requirements. There is no proof of mailing or receipt by County.

In opposition, Plaintiff argues that she substantially complied with claims filing requirements by filing numerous complaints which were forwarded to and investigated by County officials. Plaintiff then sent a notice of claim on September 16, 2018, to the Board of Supervisors. Assuming that Mr. Yadegari’s notice letters were insufficient, the County failed to give Plaintiff notice of the defects.

In reply, County contends that the Yadegari declaration is a “sham” and should not be considered since it is “significantly” different from a declaration previously submitted in support of Plaintiff’s Motion to File a Late Claim. Defendant contends that Plaintiff’s emails prior to September 16 were not claims as they were not presented to the correct body.

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc., § 437c subd. (c).) The court strictly construes the moving party's supporting evidence while the opposing party’s evidence is liberally construed. Doubts as to the propriety of granting the motion should be resolved in favor of denying the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20.) The court does not evaluate the credibility of testimony. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832, 840.)

The court applies the three-step analysis to motions for summary judgment or adjudication: (1) identify the issues framed by the pleading, (2) determine whether the moving party established facts which negate the opponents’ claim, (3) if a defendant meets its threshold burden of persuasion and the burden shifts, determine whether the opposing party has controverted those facts with admissible evidence. (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)

As this action is against a government entity, Plaintiff is required to present a tort claim to the public entity within six months after accrual of the cause of action. (Gov. Code, § 911.2.) Presentment of a tort claim is a condition precedent to filing suit, which cannot be commenced until the public agency expressly denies the claim, or the claim is deemed denied by operation of law. (Gov. Code, § 945.4.) Plaintiff must comply with claims filing requirements even if the public entity has actual knowledge of the circumstances surrounding the claim. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455 [“knowledge—standing alone—constitutes neither substantial compliance nor basis for estoppel.”].) County contends that Plaintiff did not comply with these requirements.

Plaintiff did not submit objections to evidence. The document entitled “Plaintiff’s Responses and Objections to Defendant’s Separate Statement” does not object to any evidence.

County objects to the declaration of Mr. Yadegari, Plaintiff’s former counsel. The County argues that Mr. Yadegari’s declaration submitted in opposition to the motion is a “sham” as it contains a “significant change in testimony.” (Def’s Obj., 2:9-16. Def'’s RJN, Ex. C.) Defendant argues that Mr. Yadegari’s first declaration filed with the Court in support of Plaintiff’s Motion to File a Late Claim avers that he “sent” the notice of claim, while the present declaration states he “mailed” the Notice of Claim.

Defendant has not shown that Mr. Yadegari’s first declaration contains an “admission” contradicted by his current declaration. The word “mailed” is more specific than “sent,” but does not constitute a “significant change” sufficient to render the current declaration a “sham.” (Def.’s Obj. 2:3-5.) Accordingly, Defendant’s objection to the Yadegari declaration is OVERRULED.

Plaintiff’s email of July 10, 2018, does not comply with statute as Plaintiff is required to present the claim by (1) delivering it to the clerk, secretary, or auditor thereof; (2) mailing it to the clerk, secretary, auditor, or to the governing body at its principal office; or (3) submitting it electronically to the public entity if an ordinance or resolution expressly authorizes (Gov. Code, § 915.) Plaintiff emailed communication to Dr. Perlita Perez-Marcia. (PAF[1] 3.) The subsequent email threads between Ms. Perez-Macia and others, including the assignment of Tito Rodriguez, Investigator of the County’s Health Services Performance Management Unit, does not establish “presentment” of the claim to the clerk, secretary, or auditor of the public entity, here the County. (PAF 4-15.)

Plaintiff did not hire an attorney until August 28, 2018, when Plaintiff retained Michael Yadegari. (PAF 16.) On September 16, 2018, the County’s risk management division advised Mr. Yadegari that it was not authorized to accept claims against the County and advised Mr. Yadegari to send his letter to the Executive Office of the Board of Supervisors (“Board.”) (PAF 19.)

The parties dispute whether Plaintiff presented her claim to the County. Defendant asserts that Plaintiff did not “deliver or mail” the September 18 Notice of Claim to the County. Ruben Khosdikian, Defendant’s Deputy Clerk of the Board of Supervisors, custodian of records of claims submitted to the Board asserts that he conducted a search of the County’s database under the name of “Elaina Redmond” and found one government claim received on May 21, 2019. (Khosdikian decl., Motion, .pdf p. 19.)

The inference is that Plaintiff did not comply with claims presentation requirements because Defendant’s search of its database did not reflect receipt of the September 18 Notice. Mr. Yadegari declares that he “mailed” the Notice and did not receive any denial of the claims presented. (Yadegari Decl., ¶ 5, Plt.’s Ev., Ex. S.) A claim “shall be deemed to have been presented and received at the time of the deposit.” (Gov. Code, § 915.2.) Whether Plaintiff can produce evidence of that mailing goes to the weight of Mr. Yadegari’s testimony. The court does not weigh the evidence proffered in a motion for summary judgment. (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 539, ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.").) Accordingly, whether Plaintiff complied with the requirements for presentment of a claim remains in dispute. (Fact 10.)

D. Whether the September 16 claim “substantially complied” with claims presentation requirements.

The September 16 claim is defective in that it does not contain the required information including the name and address of the Plaintiff; the date, place, and circumstances that give rise to the claim; the amount claimed as of the date the claim was presented; and how that amount is calculated. (Gov. Code, § 910.) Plaintiff did not describe the circumstances giving rise to the claim, only a vague reference to “an incident that occurred in your outpatient center” and the relevant time period. (Def.’s RJN, Ex. G.)

A claim substantially complies with presentment requirements if it "puts the public entity on notice both that the claimant is attempting to file a valid claim and that litigation will result if the matter is not resolved." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 769.) The September 16 notice is identified as a “Notice of Claim,” concerning a May-July 2018 incident at Defendant’s outpatient center resulting in personal injuries, and for which Plaintiff retained an attorney to assist in the investigation of her claim. (Def.’s Ex. G.)

While the September 16 letter does not contain all required information, it is sufficient to trigger the application of notice and defense-waiver provisions of the Government Code. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 707.) If a claim presented to a government agency is defective due to its failure to comply substantially, the public agency is required to give written notice of its insufficiency. (Gov. Code, § 910.8.) Any defense to the sufficiency of a claim is waived by failure to give notice of insufficiency. (Gov. Code, § 911.)

The motion rests on whether Plaintiff presented the claim to the Board on September 16. For the foregoing reasons, the issue remains a triable issue of fact. Therefore, Defendant’s Motion for Summary Judgment is DENIED.

[1] “Plaintiff’s Additional Fact”

[2] A government claim requires the name and address of the Plaintiff, the mailing address where the Plaintiff desires notices to be sent; the date, place, and circumstances that give rise to the claim; the amount claimed as of the date the claim was presented; and how that amount is calculated. (Gov. Code, § 910.)