Judge: Serena R. Murillo, Case: 21STCV26061, Date: 2022-10-25 Tentative Ruling
Case Number: 21STCV26061 Hearing Date: October 25, 2022 Dept: 29
Sandra Cruz v. City of Azusa
Motion for
Summary Judgment filed by Defendant City of Azusa
TENTATIVE
Defendant City of Azusa’s motion for
summary judgment is GRANTED.
Legal Standard
The function of a motion for summary
judgment or adjudication is to allow a determination as to whether an opposing
party cannot show evidentiary support for a pleading or claim and to enable an
order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP
Section 437c(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 function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal. App. 3d 367, 381-382.)
As to each claim as framed by the
complaint, the defendant moving for summary judgment must satisfy the initial
burden of proof by presenting facts to negate an essential element, or to
establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.” (Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 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 that cause of action
or a defense thereto.
To establish a triable issue of
material fact, the party opposing the motion must produce substantial
responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151,
166.)
Discussion
Defendant requests that the court grant summary judgment in
its favor and against plaintiff on the complaint pursuant to CCP § 437c on the
grounds that there is no triable issue of material fact and defendant is
therefore entitled to judgment as a matter of law. Defendant’s argument is that
the complaint is untimely.
Timeliness of Complaint
“Government Code section 945.4¿requires, as a prerequisite
to maintenance of an action against a public entity for damages arising out of
an alleged tort, the timely filing of a claim, and its rejection.” (Falls
River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d
431, 434.) Government Code section 945.6¿requires “any suit brought against a
public entity” to be commenced no more than six months after the public entity
rejects the claim. The Court of Appeal has interpreted six months, in this
context, as meaning either six calendar months or 182 days, whichever is
longer. (Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601,
604.)
Here, Plaintiff filed a claim for damages
with Defendant on November 24, 2020. (Undisputed Material Fact “UMF” No. 2.) On
December 30, 2020, the City, through its Third-Party Claims Administrator,
rejected Plaintiff’s claim in a letter. (UMF 5.) The Rejection letter was
mailed on December 30, 2020 to the Law Office of Danny Song in c/o Sandra Cruz,
at 100 N. Barranca St., Suite 700, West Covina, CA 91791. (UMF 6.) The
rejection letter did not return as undelivered, refused, or otherwise marked to
be returned to sender. (UMF 7.) Defendant argues that Plaintiff, therefore, had
until June 30, 2021 to file the complaint. Nevertheless, Plaintiff did not file
her complaint until July 15, 2021. (UMF 9.)
Plaintiff argues
there is a triable issue of material fact as to whether Defendant ever mailed
the notice of rejection. Plaintiff’s counsel declares that no such rejection
was ever received. (Soong Decl., ¶ 3.) Plaintiff argues that the claim was thereby deemed rejected, per
the provisions of California Government Code § 912.4, by operation of law on
January 15, 2021. Plaintiff argues she thus had a deadline of July 15, 2021 to
file an action, and she filed on July 15, 2021. Plaintiff additionally argues
that Defendant’s reliance on the presumption of receipt of its notice of
rejection is invalid.
Defendant responds by citation to Him v. City and County
of San Francisco (2005) 133 Cal.App.4th 437. This case is directly on
point. First, the Court of Appeal concluded a proof of service, that
substantially complied with the requirements of CCP § 1013a, was sufficient to
raise a presumption that the notice of rejection had been deposited in the
mail. (Id. at 444.) Then, in addressing Plaintiff’s attempt to raise a
triable issue of material fact regarding whether the notice of rejection had
been deposited by arguing the notice of rejection was never received, the Court
of Appeal stated the following:
Plaintiffs further argue that they
presented sufficient evidence of nonreceipt to create a triable issue of fact
that the claim rejection notices were never sent. Plaintiffs' evidence included
a declaration by the secretary at the law firm representing plaintiffs that stated
the secretary was “responsible for opening and directing mail received,” and
averred that “[a]t no time did [she] receive or ever see [the claim rejection
notices] dated November 19, 2001.” Plaintiffs also presented circumstantial
evidence of nonreceipt by attaching correspondence sent by plaintiffs' trial
counsel (Harold Sullivan) to potential¿referral counsel (Howard Kapp) in May
2002, informing Mr. Kapp that as of that time, Mr. Sullivan's office had not
received any rejection or denial letters for plaintiff's claims.
As Government Code section 912.5
clarifies, our focus is on the date of mailing, not the receipt of the notice.
Even so, we disagree with the City's contention that evidence of nonreceipt of
the notice is irrelevant.¿Evidence is relevant if it has “any tendency in
reason to prove or disprove any disputed fact.” (Evid. Code, § 210.) The law
presumes that items mailed are received (Evid. Code, § 641) because the
presumed fact “is so likely to be true that the law requires it to be assumed
in the absence of contrary evidence. [Citation.]”¿(Craig v. Brown & Root,
Inc. (2000) 84 Cal.App.4th 416, 421, 100 Cal.Rptr.2d 818.)¿If, normally, an
item properly mailed is received, then evidence of nonreceipt is logically
probative of nonmailing and, absent contrary statutory authority, sufficient to
raise a triable issue of fact and defeat summary judgment.
The legislative scheme relating to the
tort claims procedure is instructive. The statute of limitations period is
triggered “from the date the notice is deposited in the mail by the public
entity, and not the date it is received by the claimant or counsel.”¿(Edgington
v. County of San Diego¿(1981) 118 Cal.App.3d 39, 47, 173 Cal.Rptr. 225.)¿In
fact, a claimant is required to comply with the six-month statute of
limitations associated with government tort claims upon proof that the notice
of rejection was served even if it was not actually received by the claimant.
Thus, the Legislature has placed upon the claimant the risk that a properly
mailed notice of claim rejection is not delivered due to an error by the postal
authorities. And, the Legislature has provided a corresponding opportunity for
the claimant to protect itself from this risk. Following presentation of a
claim for personal injury or death (Gov. Code, § 911.2),
the public entity must act within 45 days (§ 912.4, subd. (a)). If the entity
fails to accept or reject the claim within that period, the claim is deemed to
have been rejected. (§ 912.4, subd. (c).) If the claim is rejected by the
public entity expressly or by operation of law, notice must be sent to the
claimant. (§ 913.) Thus, following a reasonable time
after the expiration of the 45 days, a claimant should be aware that the claim
has been denied and the statutory notice of that denial has not been provided.
The claimant then has the opportunity to inquire about the denial and
determine, thereby, the limitations period. (See 1 Van Alstyne et al., Cal.
Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2004) Bringing the
Action, § 8.15, p. 388; cf.¿Dowell v. County of Contra Costa, supra,¿173
Cal.App.3d at p. 901, 219 Cal.Rptr. 341.)¿The claimant should not be permitted
to forgo that opportunity and, then, rely on the fact no notice was delivered
to extend the limitations period.
We conclude plaintiff's evidence of
nonreceipt of the claim rejection notices is legally insufficient to raise a
triable issue of fact negating the six-month statute of limitations defense. In
view of the City's evidence of proof of mailing, the trial court was correct to
conclude that plaintiffs' lawsuit was barred.
(Him v. City and County of San Francisco, supra, 133 Cal.App.4th at
444-46.)
As excerpted above, the Him opinion details why the
specific statutory scheme of Government Code sections 945.4 and 945.6 do not
permit the same minimal evidence of nonreceipt to overcome summary judgment:
the statute is designed to encourage claimants to timely “inquire about the
denial and determine, thereby, the limitations period.” (Id. at 445.)
“The claimant should not be permitted to forgo that opportunity and, then, rely
on the fact no notice was delivered to extend the limitations period.” (Id.)
In other words, plaintiff’s current situation—and this
court’s response to that situation—is governed entirely by the Court of
Appeal’s resolution of this issue in Him v. City and County of San Francisco.
Defendant has provided a proof of service by mail that is entirely compliant
with CCP §1013a. (Raphael Decl. ¶ 5, Exh. D.) Plaintiff’s only objections to
it—that the notice was not made by certified mail, for example, or by email --
are not requirements of CCP § 1013a, or any other relevant code section, to
demonstrate proper service. Based on when notice of denial was served and the
instant complaint was filed, plaintiff’s complaint is untimely. (Gov’t Code §
945.6.) The court concludes this is sufficient to satisfy defendants’ initial
burden “to make a prima facia showing that there are no triable issues of
material fact.” (Scalf v. D. B. Log Homes, Inc., supra, 128
Cal. App. 4th at 1519.)
The burden then shifts to plaintiff to show that a triable
issue of material fact exists. (CCP § 437c(p)(2).) Plaintiff’s argument that a
triable issue exists is to submit the declaration of plaintiff’s counsel that
she did not receive the notice of rejection, and to argue that this nonreceipt,
in and of itself, creates a triable issue. Pursuant to Him v. City and
County of San Francisco, this is simply not enough. Further, Plaintiff’s
argument that Defendant’s
reliance on the presumption of receipt of its notice of rejection is invalid,
is foreclosed by the holding of Him
v. City and County of San Francisco.
The court therefore concludes plaintiff
has not carried her burden on this motion.
Conclusion
Accordingly, the court therefore GRANTS Defendant’s motion
for summary judgment.
Defendant City of
Azusa is ordered to give notice.