Opinion
D070792
08-24-2017
EVA CASTILLO, Plaintiff and Appellant, v. COUNTY OF IMPERIAL, et al., Defendants and Respondents.
Law Offices of Francisco Javier Aldana and Francisco Javier Aldana for Plaintiff and Appellant. Schwartz, Hyde & Sullivan and Laurel Lee Hyde for Defendant and Respondent County of Imperial. Dennis H. Morita for Defendant and Respondent Niland Sanitary District.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. ECU08882) APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed. Law Offices of Francisco Javier Aldana and Francisco Javier Aldana for Plaintiff and Appellant. Schwartz, Hyde & Sullivan and Laurel Lee Hyde for Defendant and Respondent County of Imperial. Dennis H. Morita for Defendant and Respondent Niland Sanitary District.
Plaintiff Eva Castillo and her daughter Claudia are co-owners of a piece of property in Imperial County. Plaintiff's counsel initially filed an action with respect to that property on behalf of Claudia. Defendants successfully demurred to the complaint on grounds that any claim possessed by Claudia was barred by the applicable statute of limitations, which runs from the date of the denial of a governmental claim.
Due to the identical last names, we will refer to Eva and Claudia by their first names. We intend no disrespect.
Later, counsel claimed he had made an error in naming the right plaintiff and sought leave to substitute Eva in place of Claudia. By now, however, the statute of limitations had also run on Eva's separate cause of action. The trial court allowed the substitution and permitted Eva to file an amended complaint, but reserved judgment on Eva's contention that her claim related back to the date Claudia's first complaint was filed. After defendants again demurred, the court concluded that Eva's first amended complaint was barred by the statute of limitations because Eva's claim was independent of Claudia's and did not relate back.
We agree with the court's implicit finding that the substitution of Eva for Claudia was not merely the correction of a "scrivener's error." Indeed, plaintiff's counsel presented no evidence to support such a finding. Rather, the substitution of plaintiffs added a separate claim for Eva that was independent of any that might have been possessed by Claudia. Under these circumstances, the initiation of Eva's separate claim does not relate back to the initial filing of Claudia's complaint. Accordingly, we affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
This action was originally commenced by Claudia against defendant County of Imperial (County) and another public entity. Claudia's action alleged claims for negligence and fraud based on her contention that certain fees, which were billed by County on the annual real property tax bills on behalf of Niland and assessed against a parcel of real property co-owned by Claudia and her mother Eva, were determined and assessed in a discriminatory and unfair manner.
Claudia's complaint named "City of Niland" as the defendant. However, it appears the challenged assessments were levied by a different public entity (the Niland Sanitary District) and it was the Niland Sanitary District (Niland) that appeared and defended the underlying proceeding.
Claudia's complaint filed in August 2015 alleged she was required to and did comply with applicable claims statute. County and Niland (together, the "Agencies") demurred to the complaint asserting (1) the complaint was uncertain and (2) the complaint failed to state a cause of action because the pleaded claims were barred by the one-year statute of limitations under Government Code section 911.2 and the six-month statute of limitations under Government Code section 945.6. The latter statute was applicable, asserted the Agencies, because Claudia's only compliance with the claims statute was a claim that had been filed and rejected over one year before the present action was filed, and hence was barred by the six-month period specified in Government Code section 945.6.
In response to the demurrer, plaintiff's counsel did not inform the court or opposing counsel of any mistake in naming Claudia as the plaintiff. The court sustained the demurrer but granted Claudia leave to amend. When Claudia failed to file an amended pleading within the time allowed, the Agencies applied ex parte for an order dismissing the action. At the ex parte hearing, plaintiff's counsel for the first time raised the "mistaken plaintiff" issue, seeking leave to (1) file a First Amended Complaint (FAC) and (2) substitute Eva in place of Claudia as the plaintiff. The court granted the request for leave to file the FAC, and also ordered that Eva be substituted for Claudia as the named plaintiff. Eva thereafter filed the FAC.
The "[Proposed] First Amended Complaint for Damages" still identified Claudia as plaintiff. It also added four additional parcels that were allegedly assessed improper fees.
The Agencies then demurred to the FAC asserting a number of defects, including that the pleaded claims were barred by the statute of limitations. The Agencies' statute of limitations argument asserted that, although Eva had filed a claim in March 2015, notice of the denial of the claim was sent on May 20, 2015 and the six-month time period specified by Government Code section 945.6 expired on November 20, 2015. They argued that Eva failed to file suit within the allotted period and that the court's permission to allow Eva to intervene and replace Claudia as a plaintiff did not mean Eva's action could be deemed to "relate back" to the date of Claudia's original complaint.
At the hearing on the demurrer, Eva argued the substitution of herself for Claudia as the named plaintiff should relate back to the original filing date of the Complaint because it was merely a "scrivener's error" that was properly corrected. The court observed that, while it had permitted Eva to substitute herself for Claudia at the time it permitted her to file the amended complaint, it "made it clear that no ruling was being made on the statute of limitations, potential effect of that." The court ultimately concluded that because Claudia was the original plaintiff, replacing Claudia with Eva as the plaintiff did not permit Eva's FAC to relate back to the date Claudia's original Complaint was filed. Because Eva's action was not commenced within six months of the date of denial of her claim, the action was untimely. Accordingly, the court sustained the Agencies' demurrer without leave to amend and dismissed the complaint.
Although the Agencies' demurrer devoted significant argument to the inapplicability of the "relation back" doctrine, Eva's written opposition was entirely silent on whether this doctrine applied to render Eva's action timely.
DISCUSSION
Because the sole issue on appeal is whether Eva's action against these government entities was timely filed, we begin with the well-established principle that "[t]he failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity." (California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591.) Compliance with the claim presentation requirement is an element of a cause of action against a public entity for money or damages (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209) and the "failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
Government Code section 945.6 provides that, when notice of rejection of a claim is given, the time within which a claimant must file suit is six months from the date the notice is deposited in the mail or any action will be time barred. (Glorietta Foods, Inc. v. City of San Jose (1983) 147 Cal.App.3d 835, 838 (Glorietta Foods).) When a plaintiff fails to file the action within the six-month period allowed by law, the action is time barred as a matter of law (Martell v. Antelope Valley Hosp. Medical Ctr. (1998) 67 Cal.App.4th 978, 981-984) and may properly be dismissed on demurrer. (Cf. Tubbs v. Southern Cal. Rapid Transit Dist. (1967) 67 Cal.2d 671, 675-677.)
"On appeal from a dismissal after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law." (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) We must treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When assessing the propriety of a demurrer, a court may also consider matters of which judicial notice may be taken (ibid.), because "[u]nder the doctrine of truthful pleading, the courts 'will not close their eyes to situations where a complaint contains . . . allegations contrary to facts that are judicially noticed.' " (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400 (Hoffman).)
The parties appear to recognize several things: (1) the only claim that could support the present action is Eva's March 17, 2015 claim; (2) the Agencies gave notice of rejection of that claim on May 20, 2015; and (3) any suit by Eva would be time barred unless filed within six months from May 20, 2015, the date the notice was deposited in the mail. (Glorietta Foods, supra, 147 Cal.App.3d at p. 838.) Accordingly, the court was required to assess whether Eva's claims in the FAC were barred by the statute of limitations, which began to run on May 20, 2015. It is undisputed that Eva's FAC was not filed within six months of May 20, 2015, but that the original complaint filed by Claudia was filed within the six-month period. The dispositive issue, therefore, is whether Eva's FAC "relates back" to the date of Claudia's complaint for purposes of the statute of limitations.
The FAC alleged in conclusory fashion that Eva "filed a timely tort claim", but contained no additional allegations as to when her claim was filed or when (if ever) the claim was rejected. However, the judicially noticed records of the Agencies showed that the only claim filed by Eva with the Agencies was filed on or around March 17, 2015, and that she was given written notice (dated May 20, 2015) that her claim had been rejected. Eva's form complaint allegation that she "filed a timely tort claim" appears to meet the minimum standards for alleging compliance with the claims requirement. (See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1237 [plaintiff may allege compliance with the claims requirements "by including a general allegation that he or she timely complied with the claims statute"].) Even so, the court had to assess that allegation in light of judicially noticeable facts (Hoffman, supra, 179 Cal.App.4th at p. 400), and the Agencies sought judicial notice of (1) Eva's Claim for Damages filed with the Agencies on March 17, 2015, and (2) the Agencies' May 20, 2015, notice of claim rejection letter. Judicial notice of such documents appears to be proper (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, fn. 1 ["[a] court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim"]), and Eva does not contend otherwise. Nor does she identify anything in the record suggesting she timely objected below to the court's taking judicial notice of either of those documents, which waives any objection to the propriety of taking judicial notice of those documents. (See Younan v. Caruso (1996) 51 Cal.App.4th 401, 406, fn. 3 ["failure to timely object to the propriety of judicial notice in opposition to [a] dismissal motion is deemed a waiver of that objection"].)
"The relation-back doctrine has been used to determine the time of commencement of an action for the purpose of the statute of limitations" (Barrington v. A.H. Robbins Co. (1985) 39 Cal.3d 146, 150) in order "[t]o avoid the operation of the statutes of limitations . . . ." (Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1503.) This court has explained when the relation-back doctrine will and will not apply to avoid the bar of the statute of limitations:
"The relation-back doctrine typically applies where an amendment identifies a defendant previously named as a Doe defendant [citation] or adds a new cause of action asserted by the same plaintiff on the same general set of facts. [Citations.] An amended pleading will also relate back if it makes a mere technical change in the capacity in which the plaintiff sues on the same cause of action [citations] or substitutes a plaintiff with standing in place of a plaintiff who lacks standing. [Citations.] [¶] In contrast, an amended pleading that adds a new plaintiff will not relate back to the filing of the original complaint if the new party seeks to enforce an independent right or to impose greater liability against the defendants." (San Diego Gas & Elec. Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1549-1550 (SDG&E).)
In Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468 (Diliberti), the court addressed the applicability of the relation-back doctrine when the attorney "filed suit naming the wrong person as the plaintiff." (Id. at p. 1469.) There, two sisters (Francine and Mary Jo) were involved in a car accident. Only Mary Jo was injured, but the timely filed lawsuit named only Francine as a plaintiff. When the mistake was discovered (after the statute of limitations had run on Mary Jo's claim), plaintiff's counsel sought leave to substitute Mary Jo as the named plaintiff in place of Francine. The motion was denied and the appellate court framed the issue on appeal: "[t]he precise question we face here is whether a party may be substituted after the statute of limitations has expired." (Id. at pp. 1469-1470.) And the answer to that question "depends on whether the mistake is merely a misnomer in the description of the party or 'a substitution or entire change of parties.' " (Id. at p. 1470.)
The Diliberti court noted that "[w]e would have no trouble permitting the substitution of Mary Jo for Francine if the body of the complaint sounded as a claim for a passenger. Changing the caption would be nothing more than correcting an obvious mistake in form." (Diliberti, supra 4 Cal.App.4th at p. 1470.) But "where the additional party plaintiff . . . seeks to enforce an independent right, the amended pleading does not relate back, so as to render substitution permissible." (Id. at p. 1471, quoting Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 533 (Italics added, original italics omitted).) Diliberti concludes that leave to amend was properly denied because the proposed amendment sought to substitute a plaintiff who possessed a time-barred claim (Mary Jo) for a plaintiff who had no claim (Francine), and this was not a mere misnomer in the description of the party but an entire change of parties and claims. (Diliberti at p. 1471; accord Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1278 (Quiroz) ["a new plaintiff cannot be joined after the statute of limitations has run where he or she seeks to enforce an independent right or to impose greater liability upon the defendant"].)
Diliberti cites Kerr-Mcgee Chem. Corp. v. Superior Court (1984) 160 Cal.App.3d 594 (Kerr-Mcgee), another case that addresses the "misnomer" concept. Kerr-Mcgee indicates that a "mistake in the name of a party" can be rectified such that the correction relates back if the "misnomer is evident" and the amendment amounts to the correction of an "honest mistake in the naming of a party," in effect a "clerical error." (Id. at p. 599.) Amendment and relation back are not appropriate, however, where " 'the correctly named party is actually being joined in the litigation for the first time under the guise of a claim of misnomer.' " (Ibid., quoting 1 Chadbourn, Grossman & Van Alstyne, California Pleading (1961) § 686.)
Here, a misnomer is in no way "evident." In fact, plaintiff's counsel provided no evidence to suggest that the inclusion of Claudia's name on the initial complaint was an "honest mistake." There was not even a declaration from counsel explaining how this supposed mistake occurred. Clearly the fact that he waited until nearly a month after the court's ruling on the initial demurrer—which was almost two months after the demurrer papers provided clear notice of the alleged misnomer—fully supported the court's implicit finding that this was not a "clerical error."
Moreover, Eva does not dispute that she and Claudia each had an independent right to contest the Niland sewer charges insofar as those charges were assessed against a property in which each held an undivided interest. Each could have filed a separate claim under Government Code section 900, et seq., and each could have independently pursued a lawsuit if they had complied with the claims statute. (State of California v. Superior Court, supra, 32 Cal.4th at p. 1239.) Here, Claudia commenced such an independent action, but her action failed to state a cause of action against the Agencies because it was not commenced within six months of the Agencies' rejection of her claim. Eva's FAC was necessarily independent of Claudia's time-barred claim because, while Eva did file a 2015 claim, Claudia did not. Any alleged wrongful rejection of Eva's 2015 claim was the basis for a separate cause of action possessed only by Eva independent of Claudia's nonexistent claim. Because "an amended pleading that adds a new plaintiff will not relate back to the filing of the original complaint if the new party seeks to enforce an independent right" (SDG&E, supra, at p. 1550) the court correctly refused to apply the relation-back doctrine to avoid the time bar of limitations applicable to Eva's FAC.
As the Agencies' demurrer to Claudia's action pointed out, and which was not contested below, Claudia did submit a claim challenging a tax bill, but that claim was rejected in March 2014, rendering Claudia's action filed in August 2015 untimely under the six month limitations period provided by Government Code section 945.6, and Claudia had filed no other claim upon which her action could have been predicated.
Although it is unnecessary to our decision, Eva's FAC also violated the rule that " 'a new plaintiff cannot be joined after the statute of limitations has run where he or she seek . . . to impose greater liability upon the defendant.' " (Quiroz, supra, 140 Cal.App.4th at p. 1278.) Claudia's complaint only claimed injury from an improper assessment for a single property she owned; Eva's FAC purported to expand the claim to encompass improper assessments on four additional properties apparently owned by Eva.
Indeed, at the time the original complaint was filed, Claudia had no viable cause of action (because she had no rejected claim that was not time-barred) while Eva did. In analogous circumstances, one court observed that "[g]oing from nothing to something is as much at odds with the rationale for allowing an amended pleading to relate back to the filing of the original documents as changing from one set of facts to a different set." (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 416.) Here, Claudia's action was essentially a nullity because any claim asserted by Claudia in her complaint was conclusively time-barred, and Eva's intervention sought to take the only timely filed complaint "from nothing to something." (Ibid.)
Eva's arguments challenging the court's evaluation of the relation back doctrine are unpersuasive. She asserts under Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, that the relation-back doctrine applies to avoid the bar of the statute of limitations when the amended pleading (1) rests on the same general set of facts, (2) involves the same injury, and (3) refers to the same instrumentality. While Norgart correctly stated these general principles in dicta as to the addition of Doe defendants to an otherwise timely filed complaint (id. at 408-409), it did not purport to address the addition of a new plaintiff pursuing an independent claim against the same defendant, issues that are more comprehensively and persuasively evaluated by SDG&E and Diliberti.
Eva's appellate brief also asserts we must reverse because matters outside the complaint were improperly considered when the court ruled on the demurrer. However, Eva does not cite to the record to identify what improper matter was considered, or explain how such improperly considered matter was prejudicial. Accordingly, we do not further consider that appellate claim. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [failure of party to support argument with the necessary citations to the record permits appellate court to deem argument waived]; Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956 [failure to support assertion with reasoned argument permits appellate court to deem argument waived].)
Eva also relies on Guenter v. Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460 for the proposition that, because courts should display "a liberal attitude toward allowing amendments of pleadings to avoid the harsh result imposed by a statute of limitations" (id. at p. 467) the relation-back theory should be applied to this case. But after acknowledging that the substitution of plaintiffs is permitted to relate back when " . . . there was a technical defect in the plaintiff's status," the Guenter court expressly recognized that " 'the doctrine of relation-back does not apply where the cause of action in the complaint is in favor of one plaintiff whereas the cause of action in the amended complaint is in favor of another plaintiff [citation].' " (Id. at p. 468, emphasis added.) As previously discussed, Eva's FAC sought to replace both Claudia and Claudia's time-barred cause of action with Eva and with Eva's independent causes of action. Guenter's observations support, rather than undermine, the court's ruling.
We conclude the trial court correctly sustained the demurrer to Eva's FAC and dismissed the action.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
DATO, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.