Opinion
B164686.
7-22-2003
YVETTE LOPEZ, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF INSURANCE, etc., et al., Defendants and Respondents.
Anticouni & Associates; Bruce N. Anticouni and Lauren John Udden, for Appellant. Bill Lockyer, Attorney General; Andrea Lynn Hoch, Chief Assistant Attorney General; Jacob A. Appelsmith, Senior Assistant Attorney General; Silvia M. Diaz, Lead Supervising Deputy Attorney General and Elizabeth Young, Supervision Deputy Attorney General, for Respondents.
Yvette Lopez appeals from a judgment on the pleadings in favor of Jerry Gallardo and the California Department of Insurance (hereafter the Department), respondents. Appellant contends that the trial court erroneously concluded that she had failed to comply with the claim filing requirements of the California Tort Claims Act. (Gov. Code, § 810 et seq., hereafter the Act.) She also appeals from an order denying her petition for relief from failure to timely present a claim to the state. (§ 946.6.) We affirm.
All statutory references are to the Government Code unless otherwise stated.
The order is separately appealable. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1772, fn. 1.).
Facts And Procedural Background
Gallardo was employed by the Department as an investigator. On August 24, 2001, appellants counsel wrote a letter to the Departments chief investigator complaining that Gallardo had sexually harassed appellant. Counsel stated that his client was hopeful "that a non-litigated solution may be reached." He proposed "beginning discussions aimed at a comprehensive resolution of this matter." Counsel said appellant "will immediately proceed to litigation" if "the Department is not interested in treating this matter seriously . . . ."
On September 11, 2001, the Department wrote a letter to appellants counsel requesting a "detailed chronology" of the alleged harassment. The Department stated that it "recognizes that [appellant] must take whatever action she deems necessary to protect her interests." On March 5, 2002, appellants counsel provided the requested chronology to the Department.
On March 14, 2002, appellant filed a sexual harassment complaint against respondents. An amended complaint was filed in April 2002. The amended complaint alleged that Gallardos harassment had begun on December 4, 2000, and had culminated in a police "raid" of appellants office on August 2, 2001. The amended complaint further alleged that, on August 24, 2001, appellant had "submitted a tort claim with the [Department] against [respondents] . . . in satisfaction of . . . section 911.2."
In June 2002 appellant applied to the Victim Compensation and Government Claims Board (hereafter the Board) for leave to present a late claim to the state. (§ 911.4.) The Board denied the application.
The Board was formerly known as the State Board of Control. Its name was changed by legislation effective January 1, 2001. (See §§ 13900 and 13901, as amended by Stats.2000, c. 1016 (A.B.2491), § 1.)
Respondents moved for judgment on the pleadings. They argued that the action was barred because the complaint failed to allege that appellant had timely presented her claim to the state. Respondents contended that appellant was required to file her claim with the Board, not with the Department.
Appellant subsequently filed a petition in the trial court for relief from failure to timely present her claim to the state. (§ 946.6.) The trial court denied her petition and granted the motion for judgment on the pleadings.
Claim Presentation Requirements: Statutory Framework
Claims for damages against the state must be presented in accordance with the Act. (§ 905.2) A claim "for injury to person" must be presented "not later than six months after the accrual of the cause of action." (§ 911.2) Pursuant to section 915, subdivision (b), a "claim shall be presented to the state by either of the following means: [P] (1) Delivering it to an office of the . . . Board. [P] (2) Mailing it to the . . . Board at its principal office." But if a claim is not so delivered or mailed, it "shall be deemed to have been presented in compliance with [the Act] . . . if it . . . is actually received at an office of the . . . Board . . . within the time prescribed for presentation thereof." (Id ., subd. (d).)
If a claim for injury to person is not presented to the state within the six-month time limit, the claimant may apply to the Board for permission to present a late claim. (§ 911.4.) If the Board denies the application, the claimant may file a petition for relief in the superior court. (§ 946.6, subd. (a).) The court "shall" grant relief if the application to the Board was timely and "the failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the [state] establishes that it would be prejudiced in the defense of the claim" if relief were granted. (§ 946.6, subd. (c)(1).)
A claimant is barred from bringing an action for money or damages against the state or its employees unless the claimant has timely presented the claim to the state or has been permitted to present a late claim. (§§ 945.4, 950.2.) "The claim presentation requirement serves several purposes: (1) it gives the public entity prompt notice of a claim so it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so it can better prepare for the upcoming fiscal year. [Citations.]" (Munoz v. State of California, supra, 33 Cal.App.4th at p. 1776.)
Judgment On The Pleadings
A. Standard Of Review
"A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]" (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) " We are not bound by the determination of the trial court, but are required to render our independent judgment on whether a cause of action has been stated. [Citation.]" (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) We accept as true the complaints factual allegations and give them a liberal construction. Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.) "We consider evidence outside the pleadings which the trial court considered without objection. [Citation.]" (Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1721; accord, Baughman v. State of California (1995) 38 Cal.App.4th 182, 187; see also ONeil v. General Security Corp. (1992) 4 Cal.App.4th 587, 594, fn. 1.)
B. Appellants Complaint Failed To State A Cause of Action Because
It Did Not Allege Compliance With The Claim Presentation Requirements
Section 915, subdivision (b), required appellant to timely file her claim with the Board. "The timely filing of a claim is an essential element of a cause of action against a public entity and failure to allege compliance with the claims statute renders the complaint subject to a general demurrer or to a motion for judgment on the pleadings." (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119.) Appellant contends her complaint stated a cause of action because it alleged that, on August 24, 2001, she had submitted a claim to the Department. Appellant argues that her letter of that date to the Departments chief investigator substantially complied with, and therefore satisfied, the claim presentation requirements. Appellant relies on Jamison v. State of California (1973) 31 Cal. App. 3d 513, 107 Cal. Rptr. 496, and Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal. App. 3d 70, 135 Cal. Rptr. 621.
1. Although Jamison Supports Appellant, We Decline To Follow It
In Jamison v. State of California, supra, 31 Cal. App. 3d 513, the plaintiff was injured in a collision with a truck driven by an employee of the State Department of Water Resources. He filed a claim with the department. The trial court granted the states motion for judgment on the pleadings because the claim should have been delivered or mailed to the Board. The Court of Appeal reversed. It concluded that plaintiff had substantially complied with the claim presentation requirements. The appellate court reasoned: "It appears that a claim, valid and proper on its face, was presented within the statutory time period to an officer or employee of the exact state agency which allegedly was responsible for the tort. The presentation was made in good faith for the purpose of apprising the state of the existence of the claim and to enable it to investigate the validity thereof. Under such circumstances, it was incumbent upon the officer or employee served to forward the claim immediately to the [Board] and we hold that the party served had a duty to do so. . . . Here the [Board] may or may not have received the claim. The record is silent with respect to actual receipt thereof. However, regardless of whether the same was received by the board, it should have been. Inasmuch as the claim was in proper form and was timely filed with the agency causing the wrong, plaintiff substantially complied with section 915 . . . ." (Id., at p. 518.)
Jamison is directly on point and supports appellants position. But the rationale of Jamison was expressly rejected in Life v. County of Los Angeles (1991) 227 Cal. App. 3d 894, 278 Cal. Rptr. 196, and Del Real v. City of Riverside (2002) 95 Cal.App.4th 761. It was implicitly rejected in Munoz v. State of California (1995) 33 Cal.App.4th 1767.
In Life v. County of Los Angeles, supra, 227 Cal. App. 3d 894, the plaintiff mailed a medical malpractice claim to a county medical center that had treated him. The claim should have been filed with the county board of supervisors. (Id ., at p. 897.) The appellate court affirmed summary judgment for the county. It found Jamisons analysis unpersuasive: "[Jamison] deems the presentation of a claim to a public employee to amount to substantial compliance, irrespective of whether the claim actually reaches the body responsible for evaluating it. However, Jamisons statement that regardless of whether the [claim] was received by the board, it should have been[,] [citation] is at odds with the substantial compliance doctrine as codified in section 915, subdivision (c) [now subdivision (d)]. [P] . . . Substantial compliance under the statute demands that the misdirected claim be actually received by the appropriate person or board. (§ 915, subd. (c) [now subd. (d)].) If a public employee has failed to fulfill a duty to forward a misdirected claim to the appropriate party, such claim cannot be in substantial compliance because it was not actually received by the appropriate party. Further, Jamisons reliance on a public entitys internal transmittal of a claim conflicts with section 915, which requires the claimant to file with the appropriate official or board. By focusing on the duty of a public employee in receipt of a claim to forward the claim to the proper agency, Jamison inappropriately shifts responsibility for filing a claim with the proper official or body from the claimant to the public entity." (Id., at p. 901, fn. omitted.)
Del Real v. City of Riverside, supra, 95 Cal.App.4th 761, was decided by the same court that had decided Jamison. The plaintiff in Del Real was involved in an automobile collision with a city police officer. Instead of filing a claim with the governing body of the city, plaintiff sent a letter to the police officer. The letter was forwarded to the office of the city attorney, which indicated that it was representing the officer. The appellate court determined that the letter was insufficient to constitute the presentation of a claim to the city under section 915: "[Plaintiff] argues that even if the letter was not actually received by the appropriate person or body, it should have been. She cites [Jamison] for the proposition that [the police officer] was under a duty to transmit the letter to the proper person or agency. . . . We have reconsidered our earlier decision in Jamison and, as did the court in Life v. County of Los Angeles, supra, 227 Cal. App. 3d at pages 900-901, we find that it is at odds with section 915, subdivision (c) [now subdivision (d)]. We therefore decline to follow it." (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 770.)
In Munoz v. State of California, supra, 33 Cal.App.4th 1767, plaintiffs father died while a prisoner at a facility of the State Department of Corrections. Plaintiff mailed to the facility an application for leave to file a late claim for wrongful death. The application was required to be mailed to the Board. (§ 915, subd. (b).) Although the mailing occurred within the statutory one year period (§ 911.4, subd. (b)), the Board did not receive the application until after the period had expired. The Munoz court concluded that the timely mailing did not substantially comply with the claim presentation requirements: "If an application for leave to file a late claim does not reach the appropriate officials or board in a timely fashion, as in the instant case, there is no substantial compliance with the claims statute. Substantial compliance under Government Code section 915, subdivision (c) [now subdivision (d)] demands the misdirected claim be actually received by the appropriate person or board within the time prescribed for presentation thereof." (Id ., at p. 1780.) As authority for its conclusion, the Munoz court cited Life v. County of Los Angeles, supra, 227 Cal. App. 3d at pp. 900-901. (Ibid.)
We find the reasoning of Life, Real, and Munoz persuasive. Section 915, subdivision (d), provides the sole exception to the requirement that a claim against the state be delivered or mailed to the Board. The exception applies only if the claim "is actually received at an office of the [Board] . . . within the time prescribed for presentation thereof." (Ibid.) The time prescribed for presentation of appellants claim was within six months after the accrual of her cause of action. (§ 911.2.) The cause of action accrued no later than August 2, 2001, when the police searched her place of business. The six-month period expired on February 2, 2002. Appellants complaint did not allege that she had delivered or mailed her claim to the Board or that the Board had received it within the six-month period. Nor did the complaint allege that the Board had permitted her to file a late claim. The complaint, therefore, failed to state a cause of action.
2. Elias Is Distinguishable
In Elias v. San Bernardino County Flood Control Dist., supra, 68 Cal. App. 3d 70, the plaintiff was injured on property owned and controlled by the San Bernardino County Flood Control District. Instead of filing a claim with the District, he filed a claim with the county board of supervisors. Although the District and the county were separate legal entities, the appellate court concluded that the plaintiff had substantially complied with the claim presentation requirements. The court noted that the county board of supervisors "are empowered to perform the same duties for the District as they perform for the county. [Citations.] One of the duties . . . is to review and act upon all claims whether they be addressed to the county or to the District." (Id., at p. 75.) Thus, "the claim was actually filed with officials who bear responsibility for evaluating claims against the District as well as the county." (Id., at p. 77.)
Unlike the county board of supervisors in Elias, the Department did not bear responsibility for evaluating and acting upon appellants claim. That responsibility is vested by statute in the Board. (§ 912.8.) We reject appellants contention that the Boards web site shows that it has delegated this responsibility to the Department. According to the website, the Board "refers [the claim] to the involved state agency for review and recommendation . . . ." (Request for Judicial Notice, website, p. 2.) But the Board makes an independent determination of the claims merit: "Following the receipt and review of the involved state agencys response, [the Boards] staff prepares their own claim recommendation and presents it to the three-member Board at a public meeting, during which the Board hears and acts on the claim." (Ibid.)
Section 912.8 provides in relevant part: "In the case of claims against the state, the board shall act on claims in accordance with that procedure as the board, by rule, may prescribe. It may hear evidence for and against the claims and, with the approval of the Governor, report to the Legislature such facts and recommendations concerning the claims as it deems proper. In making recommendations, the board may state and use any official or personal knowledge which any member may have touching any claim. The board may authorize any employee of the State to perform such functions of the board under this part as are prescribed by the board . . . ."
We previously granted appellants request to take judicial notice of a printout from the website.
C. The State Did Not Waive Its Defense That Appellant
Had Failed To Timely File Her Claim With The Board
Appellant argues that the state waived its defense that she had failed to timely file her claim with the Board. The alleged waiver is based on the states failure to notify her that she had mailed the August 24, 2001, letter to the wrong state agency. Appellant relies on the notice and defense-waiver provisions of the Act: sections 910.8, 911, and 911.3. These provisions require the Board "or the person designated by it" to notify the claimant if the "claim as presented" fails to comply with section 910 or 910.2. (§§ 900.2, subd. (b); 910.8; 911.) The Board must also notify the claimant if the claim was untimely because it was presented more than six months after the accrual of the cause of action. (& sect; 911.3.) If the Board does not give the requisite notice, the state waives any defense based on the claims failure to comply with section 910 or 910.2. (§ 911.) It also waives any defense based on the time limit for presenting a claim. (911.3, subd. (b).)
Section 910 provides: "A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:
"(a) The name and post office address of the claimant.
"(b) The post office address to which the person presenting the claim desires notices to be sent.
"(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.
"(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.
"(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.
"(f) The amount claimed if it totals less than ten thousand dollars ($ 10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($ 10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case."
Section 910.2 provides in relevant part: "The claim shall be signed by the claimant or by some person on his behalf."
Section 900.2, subdivision (b), provides: "In the case of the State," "board" means "the Victim Compensation and Government Claims Board."
Section 910.8 provides in relevant part: "If in the opinion of the board or the person designated by it a claim as presented fails to comply substantially with the requirements of Sections 910 and 910.2, . . . the board or such person may, at any time within 20 days after the claim is presented, give written notice of its insufficiency, stating with particularity the defects or omissions therein."
Section 911 provides in relevant part: "Any defense as to the sufficiency of the claim based upon a defect or omission in the claim as presented is waived by failure to give notice of insufficiency with respect to such defect or omission as provided in Section 910.8 . . . ."
Section 911.3 provides in relevant part: "(a) When a claim that is required by Section 911.2 to be presented not later than six months after accrual of the cause of action is presented after such time without the application provided in Section 911.4, the board or other person designated by it may, at any time within 45 days after the claim is presented, give written notice to the person presenting the claim that the claim was not filed timely and that it is being returned without further action. . . . [P] . . . . [P] (b) Any defense as to the time limit for presenting a claim described in subdivision (a) is waived by failure to give the notice set forth in subdivision (a) within 45 days after the claim is presented . . . ."
The notice and defense-waiver provisions do not apply to appellant. Her letter cannot be deemed a "claim as presented" because it was never presented to the state within the meaning of section 915. She neither delivered nor mailed the letter to the Board, and the Board did not receive it. "It is only a `claim as presented [that] fails to comply substantially that triggers sections 910.8, 911 and 911.3. [Citations.]" (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 707, 263 Cal. Rptr. 119, 780 P.2d 349.)
Furthermore, the state has never asserted a defense based on the letters failure to comply with section 910 or 910.2. Section 910 sets forth the required content of a claim. Section 910.2 requires that the claim be signed. Neither section refers to the claim presentation requirements of section 915.
Nor has the state asserted a defense that the letter was untimely because it was presented more than six months after the accrual of appellants cause of action. Rather, the states position is that the letter was not presented because it was mailed to the wrong state agency and the Board did not receive it. The notice and defense-waiver provisions do not require that notice be given to the claimant in these circumstances. Indeed, the Board could not have notified appellant because it was unaware of her letter.
In support of her waiver argument, appellant cites four cases: Phillips v. Desert Hospital Dist., supra, 49 Cal.3d 699; Alliance Finance v. City and County of San Francisco (1998) 64 Cal.App.4th 635; Wilson v. Tri-City Hospital District (1990) 221 Cal. App. 3d 441, 270 Cal. Rptr. 436; and Foster v. McFadden (1973) 30 Cal. App. 3d 943, 106 Cal. Rptr. 685. These cases are of no assistance to appellant. None considered whether the notice and defense-waiver provisions apply when a claim against the state is mailed or delivered to the wrong state agency and the Board does not receive it. In all four cases, the plaintiffs letter put the proper local public entity on notice of a compensable claim against it. Here, in contrast, the state was not put on notice of appellants claim because her letter was not mailed to or received by the Board.
Denial Of Petition For Relief From Failure
To Timely Present A Claim To The State
A. Standard Of Review
"The decision to grant or deny a petition seeking relief under section 946.6 is within the sound discretion of the trial court and will not be disturbed on appeal except for an abuse of discretion. [Citation.]" (Bettencourt v. Los Rios Community College District (1986) 42 Cal.3d 270, 275, 228 Cal. Rptr. 190, 721 P.2d 71.) "The policy favoring trial on the merits is the primary policy underlying section 946.6. [Citation.] In order to implement this policy, any doubts should be resolved in favor of granting relief. [Citation.]" (Id., at p. 276.)
B. The Trial Court Did Not Abuse Its Discretion
Appellant contends she was entitled to relief because her counsels failure to file a claim with the Board constituted excusable mistake or neglect. (§ 946.6, subd. (c)(1).) "In deciding whether counsels error is excusable, [the reviewing] court looks to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. [Citations.] In examining the mistake or neglect, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. [Citations.]" (Bettencourt v. Los Rios Community College District, supra, 42 Cal.3d at p. 276.)
The trial court did not abuse its discretion in concluding that counsels error was not excusable. Reasonably prudent counsel would have filed a claim with the Board. The law on this matter could not have been more straightforward. Section 915, subdivision (b), expressly requires that a claim against the state be filed with the Board. " Ignorance of the law, at least where coupled with negligence in failing to look it up, will not justify a trial court in granting relief [citations] and such facts will certainly sustain a finding denying relief. [Citations.]" (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 476, 58 Cal. Rptr. 249, 426 P.2d 753.)
Moreover, appellants claim was not diligently pursued. On September 11, 2001, the Department wrote to counsel requesting a "detailed chronology" of the alleged harassment. The chronology was not provided to the Department until March 5, 2002, almost six months later. On November 28, 2001, an investigator for the Department wrote to counsel complaining that no one had responded to the investigators telephone messages of November 7 and November 20, 2001. In a letter dated February 13, 2002, counsel informed the Department that it no longer represented appellant. One of appellants attorneys later declared: "We withdrew from our representation agreement with [appellant] on the basis that she had failed to provide the firm with the chronology of alleged events despite being requested to do so since August 2001."
Bettencourt v. Los Rios Community College District, supra, 42 Cal.3d 270, is distinguishable. In Bettencourt counsel made a reasonable mistake of fact, not an unreasonable mistake of law, in filing a tort claim with the wrong public entity. Furthermore, in Bettencourt the claim was diligently pursued.
Disposition
The judgment and order denying the petition for relief are affirmed. Costs on appeal are awarded to respondents.
We concur: COFFEE, J., PERREN, J.