Letter ReceivedCal. Super. - 6th Dist.May 19, 2020SANJOSE . Ofiice of the CityAttomgy CAPn'AL 0F SELICON VALLEY RICHARD DOYLE, CITY ATI'ORNEY Geoff Miranda Legal Analyst I Investigator Direct Line: 408-535-1970 August 4, 2020 Santa Clara County Superior Court Small Claims Division, Dept 15. 191 North First Street San Jose, CA 951 13 Re: _ Case No.: 208C083367 Plaintiff: Mondragon, Frida Dear Honorable Commissioner: The City of San Jose (“City”) respectfully requests that the Court dismiss Plaintiff's instant lawsuit because Plaintiff allowed the statute of limitations, as prescribed by the Government Code, to run on her action against the City. Thus, Plaintiff’s lawsuit is barred as a matter of law. l 1. The Government Code Governs the Statute of Limitations on Plaintiff’s Action; Compliance with the Government Claims Act is a mandatory prerequisite t0 maintaining an action. against a'public entity or public'employee for,mpney or damages: [N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefore has been presented to the public entity and has been acted upor‘l by the board, or has been deemed to have rejected by the board[.] (Gov’t Code § 945.4; see also Gov’t Code § 905 (listing exceptions to the claim requirement, none of which apply to the instant case). ~A suit for “money or damages” includes “all actions where the plaintiff is seeking-monetary relief” regardlessrof whether the action is founded in tort, contract, or some other theory. (Hart v. County ofAlameda 200 East Santa Clara Street, 16m Floor Tower, San José, CA 951 13-1905 tel (408) S35-1900fax (408) 998-3 131 1736518 Re: August 5, 2020 Page 2 (1999) 7'6 Cal.App.4th 7'66, 778; see also Illerbrun v. Conrad (1963) 216 Cal.App.2d 521 [in damages action against police officers for alleged civil rights violations, filing of Elaim for damages was condition precedent t0 plaintiff‘s maintaining action].) Where a cause of action is subject to the Government Claims Acts and the claimant submits a claim to the governmental entity alleged to be at fault, the governmental entity shall act on the claim within 45 of presentation. (Gov. Code § 912.4(a).) If the governmental entity does not act on the claim within the specified 45 days and no extension is agreed Upon by the pa’rties, "the claim shall be deemed to have been rejected . . . on the last day of the period within which the [governmental entity] was required to act upon the claim.” (Gov. Code § 912.4(0).) When a claim is rejected or deemed rejected by a governmental entity, and written notice of the rejection is provided to the claimant in accordance with Government Code section 913, the claimant must file suit against the governmental entity “no later than six months after the date such notice is personally delivered or deposited in the mail.” (Gov. .Code § 945.6.4(a)(1).) Government Code section 913 states: (a) Written notice of the action taken under Section 912.5, 912.6, 912.7, or 912.8 or the inaction that is deemed rejection under Section 912.4 shall be given in the manner prescribed by Section 915.4. The notice may be in substantially the following fon'n: “Notice is hereby given that the claim that you presented to the (insert title of board or officer) on (indicate date) was (indicate whether rejected, allowed, allowed in the amount of$_ and rejected as to the balance, rejected by operation of law, or other appropriate language, whichever is applicable) on (indicate date of action 0r rejection by operation of |aw).” (b) If the claim is rejected, in whole or in part, the notice required by subdivision (a) shall include a warning in substantially the following form: “WARNING "Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or ‘ 1736518 Re: August5,2020 Page3 deposited in the mail to file a court action on this claim. See Government Code Section 945.6. “You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should d0 so immediately." Taken together; these code sections set forth the statute of limitations governing the filing of a lawsuit against a governmental entity. "Where [a] complaint discloses 0n its face that the statute of limitations has run on the Causes of action stated in the complaint, it fails to state facts sufficient to constitute a cause of action." (ABF Capital Corp. V. Berglass' (2005) 130 Cal.App.4th 825, 833 (Citing Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72, review den. Mar. 27, 2002.) r 2. The Statute of Limitations has Run on Plaintiffs Case Against the‘City. In the present case, Plaintiff allowed the statute of limitations to run on her cause of action and, therefore, has failed to state facts sufficient to constitute a cause of action against the City. On February 20, 2019 the City of San José Clerks Office received a Claim from Plaintiff for the injuries she sustained in connection with the September 10, 2018 incident. (Exhibit A.) On March 14, 2019, Plaintiff’s claim was rejected and a Notice of Rejection of Claim, which included the language required under Government Code section 913, was mailed to Plaintiff by San José on March 14, 201 9. (Exhibit B.) Therefore, Plaintiff had six months from the City deposited the notice of rejection in the mail on March 14, 2019 to file her lawsuit. This placed Plaintiff's filing deadline at September-14, 2019. Pl-aintiff did not file her Complaint until May 19, 2020 which is eight months and five days after the statute of limitations on her causes 0f action ran. Given that Plaintiff failed to file her lawsuit against the City in a timely manner, her lawsuit is time barred as a matter of law. For the foregoing reasons, the City respectfully requests that the Court dismiss Plaintiff’s lawsuit against the City. 1736518 Re: August 5, 2020 Page4 lgmm 1736518 Very truly yours, RICHARD DOYLE, City Attorney By: Geoff Mira a, Investigator Re: August5,2020 Page5 1735518 Office of the City Clerk Timestamp EX CLAIM AGAINST THE 0 CITY 0F SAN JOSE, CA ”Wm - t I a E I, . 4,SANJOSE (For Damages to Persons or Personal Property) ” “r‘ “ 03" Cd; mi” CAPITALOF SILICONVALLEY FIEFEB 20 [finiss # C/ 347223467 Office of the City Clerk Received by;M 200 East Santa Clara Street Vla: U.S. Mail 15 Tower 14‘ Floor lnteroffice Mail San José, CA 95113 Over the Counter (Please do not write above this line -for City use only) Generally, a claim against the City 0f San José for damages to persons 0r personal property must be filed with the City Clerk of the City 0f San Jose' within six months after the incident occurred. See Government Code 911 ..2 Completedhclaims must be mailed or delivered to: Office of the City Clerk, City of San José, 200 E. Santa Clara Street, Tower, 14m Floor, San José, CA 95113, telephone. (408) 535-1260. Attach copies of any receipts 0r other documentation to the original claim form. TO THE CITY CLERK of the City of San José, California: The undersigned respectfully submits the following claim and information relative to damage to persons andlor personal property. NAwE 0F CLAIMANT [’Wdfl WWWAWJLAWZ ' DATE 0F BIRTH- ff“{lelilflw ADDRESS 0F CLAIMANT ?Zb WV} K65 A‘VéflCITY SEW? Li STATE {DA ZIP CODE 45l28 HOME WORK DRIVERS LICENSE PHONE (403)5UJ 4 0?} PHONE ( ) STATEAND NUMBER M/fl SEND NOTICES EGARDING THIS CLAIM TO: (List am§,mailing ad ress and hone numberifnotsa ea above.) T Moét/fcchcfl Lauoq Msshra 99W WaxL’M/mus 523 wa-0W8 DA EOFINCIDENT m ,0 lg PLACE(Exactand jbmmwgzgf Gomég 04: 1H“ 5a.), 9,47%, m50R OCCURRENCE fl I t CAUSING CLAIM i??ncéizfer??? m1”MW 07L “@WM CUM"? 3‘3“ CIRCUMSTANCES (Specify the occurrence, event, act, or omission which you claim caused the Injury or damage for which you are submitting ihis ciaim. Where pace is insufficient, attach an a ditional page with the claimant s name on the page. ) I W19 \AML Kivm m m e31 AUALKJJE WMTHA ‘C m 19mm 0r? “Gwcem 0M3" cergm Wtwm W {00+ Laiém m a MOW. Wcmge [1:5 mm? QM DUMB WMSéh/Lér :L Swwmm \OMMSTCM 19/16/1655 70mg which I mm“imam» QQFe-wmg mem fij- _ TM, 'hDNZ Q‘jghowfl MM had rrS W? am Caged 15% LLeéJrraiCmX pmenggee) Ioz/Vr 'Pr difln 1+. CITY’S ACT! N (S ecify action by City r its empioyees which caused alleged dam e qrin“mg CDHM www.nsmwomcmcom DESIGNAHONfiAUTHOBEMIQN To RELEASEWM ~ Dear Six or Madam: Please be advised thatI hzvc xetainai the Law Officés‘ ofRafael Shpelfogel located at 6404 Wilshitc Blvd, Suite 850, L03 Angeles, CA £10048 to represent.me in the {unha- hmdling ofmy claim. Pursuant toW LangafiDm, Title 10, Chaptcr 5, Subchapter 7.5, §26952 (c), I designateammcy Rafael Shpclfogel to mprasentme in the handling of this claim. A You are hareby authorized and requested to pcmnit pbotocoPying and provide these law offices o: their agents With my and all accidentnports, mploymmt x_ccorda, medial Icpbrts, x-Iays, charts, records, financial records, and other , __ .«fliargaqsfisflaegmlflifimeflmbzensnxasgeidgmm -....-..111111.065, p yslcal condition, treatment and cam; including release of all funds to bi; forwarded to this law firm, upon this finn’s x_cquest. Fox your protection, California Law :equites you to be aware ‘oflnsuranca Code Section 18712,The section states: “Anypmwho lmowingly presents a false or fiaudxflnnt claim {om payment ofa logs is guilty ofa mime andmy be Subject to fines 2nd confinemmtiu 131513011” Iflaw W:?fld‘f , _,, do hcxcby authorize thc Law0mm ofnafacl Shpeu‘agel to n flan: any checkPayablé to me in guy settlement ofmy cast 1'11 which the Law Offices ofRafael Shpelfognl represents me, and for said Law Offices to sign any settlommtimtmmant, whethat Release or Settlement Draft «dthaut the necessity ofmypresent: Dam oqmzovt d z: 1 5 4 .. 7 1 nr-IHim #1“! u mam '~u-.3.- hguafir. il- LAW OFFICES OF RAFAEL SHPELFOGEL, PC 6404 WILSHIRE BLVD, SUITE 850 L05 ANGELES, CALIFORNIA 90043 TELEPHONE; (323) 651-0560 FACSIMLua (323) 651-0561 WWWRSLAWOFFICESCDM Febmary 14, 2019 Office of the City Clerk 20.0 East Santa Clara St. Tower 14m Floor ’ San Jose, CA 95113 RE: Our Client(s) : Frida Mondragon Date of Loss : 09/10/2018 Location : 7th st & Santa Clara, NOTICE OF CLAIM CaLCode of Regs, Title 10 Chapt. 5(8) sec. 2695.1 (o) Dear Mr. Rogérs: Please be advised that this office has been retained to repmsent the above-narned individual(s) with respect to her pemonal injudes, Which she sustained as a result on the above date. ‘ Enclosed, please find the claim form along With photographs of the opening 0n the sidewalk she fell onto. ‘ Thank you for~y0ur anticipatéd courtesy and cooperation in this matter. Very truly yours, EXHIM SCHAYOFNJOSE O_fiice of the CityAttomey ‘ CAPITAL OF SWN VALLEY RICHARD DOYLE, cm! ATrORNEY NOTIICJE OF REJECTION OF CLAIM March 14, 2019 Law Offices 0f Rafael Shpelfogel . 6404 Wilshire Blvd. Suite 850 Los Angeles, GA 90048 Re: Clai’m No.: 'c-35703-19 DUI: 9110/2018 Claimant: Frida Mondragon NOTICE IS HEREBY GIVEN that thelclaim which you presented to the'City Clerk of the City of San José on 2/20/2019, was rejected by the City of San José. WARNING ,Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the United States mail to file a court action on the stated causes of action contained within this claim. See California Government Code Section 945 6 This warning'does not apply t0 federal causes of action and does not extend any statutes of limitations for federal causes of action You may seek the advice of an attorney of your choice In connection with this matter. If you desire to consult an attorney, you should do so immediately Very tfuly yours, RICHARD DOYL ,c‘lt Att mey/lfl By Geoff 'anda, nvestigator - PROOF OF SERV E BY MAIL l am a citizen of the Unifed Siates, over 18 years age employed 1n anta Clara County and not a party to the wiihin action. My business address is 200 East S ta Clara Street Sa Jose California 95113-1905 and Is located in the county where the service descn’bed below occurred. | cau to be served a copy of the above notice by MAIL, by depositing it into a sealed enfielope. with po . paid, and causing the envelope to be deposited for collection and mailing on the date indicated below. | fuflher declare ihat | am readily familiar with the business’ pracIiCe for collection and processing of correspondence for mailing with the United States Postal Service. Said correspondence would be deposited with the United States Postal Service that same day in the qrdinary course of business. l declare under penalty of pe 'ury under the laws of the State of California that the foregoing is true and correct. Executed on a - ’ J § , at San Jose, California.W VVMzJéQM M. Nielsen ’\ 200 East Santa Clara Street, 16‘“ Floor Tower, San José. CA 951 1311905 tel (408) 535-1 900 fax (408 99 - 131 1604109 EXHBB! B CITYOF SANJOSE CAPITAL OF SMCON VALLEY Law Offices of Rafael Shpelfogel 6404 WilshireBlvd. Suite 850 Los Angeles, CA 90048 Re: Claimant: Claim‘Nof: DOI: Dear Mr. Shpelfogel: March 14, 2019 Frida Mondragon C13670'3T1'9 _9/1 0/201 8 Cfi’ce ofthe CityAttomey RICHARD DOYLE, CITY ATI'ORNEY NOTICE IS HEREBY GIVEN that our investigation shows that thejurisdiction of this claim lies with San Jose Water Company. ' We ask that you do not require the City of San José to make an appearance in any litigation that might result from this incident, so that we may avoid needless expenditure of public monieS‘for an unnecessary defense. Enclosed is the Notice of Rejection of Claim. Enclosure: Notice of Rejection of Claim Very truly yours, RICHARD DOYL C:\tyfi om By V EXHIBIT B 200 East Santa Clara Street, 15”” Floor Tower, San José, CA 95113-1 905 tel (408) 535-1 900 fax (408) 998-3131 1604081
