Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV048468
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
This action arises from an accident on premises owned by respondent Los Gatos Saratoga Community Education and Recreation (LGSCER). Appellant Shirley Peterson was walking to her grandson’s baseball game at Blossom Hill Elementary School on May 13, 2004, when she passed by the Blossom Hill Clubhouse and was struck by an emergency exit door opened by a child. Peterson was knocked over and hit her head on an adjacent stone wall. She subsequently filed a personal injury action against defendants Blossom Hill Elementary School and LGSCER. LGSCER brought a summary judgment motion on the ground that the action was time-barred under Government Code section 945.6, the statute of limitations applicable to personal injury actions against a public entity. The trial court granted the motion and a judgment of dismissal was entered as to LGSCER.
Only defendant LGSCER is a party to this appeal.
All further statutory references are to the Government Code unless otherwise indicated.
On appeal, Peterson contends that the summary judgment should be reversed because triable questions of fact exist with respect to whether LGSCER triggered the six-month limitations period provided by section 945.6, subdivision (a)(1) by complying with the statutory requirements for mailing a notice of rejection of claim. Alternatively, Peterson contends that triable questions of fact exist as to whether LGSCER should be estopped from asserting a statute of limitations defense. For reasons that we will explain, we agree with Peterson’s first contention and therefore we will reverse the judgment without reaching the estoppel issue.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Appellant Shirley Peterson is a resident of South Africa who was visiting her daughter’s family in Los Gatos at the time of the May 13, 2004 accident. The accident took place when Peterson and her daughter Mary van Niekerk were on their way to attend a baseball game at Blossom Hill Elementary School in which Peterson’s grandson was participating. As Peterson, age 80, was walking towards the baseball field on a concrete walkway, a child suddenly opened an emergency exit door. The door struck Peterson and knocked her over, causing her head to hit a stone wall adjacent to the walkway. The accident occurred on premises owned by LGSCER.
Peterson filed a claim against LGSCER on June 8, 2004, in which she asserted that she had suffered severe physical injuries and sought compensatory damages in excess of $10,000. Marizel Bajao, a claims representative for the joint powers authority of which LGSCER is a member, handled Peterson’s claim. On June 14, 2004, Peterson’s attorney, her son-in-law Marc van Niekerk, requested a $10,000 advance to pay for Peterson’s travel to her home in South Africa and also to pay her medical costs. On July 16, 2004, and August 23, 2004, van Niekerk also requested reimbursement for out-of-pocket payments for Peterson’s care and medical expenses. On July 30, 2004, Bajao asked for documentation in support of Peterson’s medical bills. On August 10, 2004, and September 8, 2004, Bajao sent checks to van Niekerk in accordance with his requests for advancement of monies to pay Peterson’s expenses.
Van Niekerk inquired of Bajao whether there had been any progress or decisions made on Peterson’s claim in an email he sent on August 24, 2004. Bajao responded in an email dated August 24, 2004, that “[w]e are actually just waiting for progress from you. There will not be a ‘decision’ made until you are ready to conclude or close the case.” Bajao also advised van Niekerk on August 24, 2004, that she had approval to pay Peterson’s out of pocket expenses up to $10,000.
Shortly thereafter, Bajao instructed Michelle Varno, LGSCER’s supervisor of administrative operations, to prepare a notice of rejection for Peterson’s claim. Varno prepared a notice of rejection on September 28, 2004. According to Varno’s declaration, on September 28, 2004, she “personally placed a copy of the rejection letter in an envelope addressed to Ms. Peterson’s attorney, Marc G. Niekerk at 55 Almaden Blvd., Suite 400, San Jose, California, 95113-2225. On the same date I placed a copy of the letter in an envelope addressed to Marizel Bajao, claims representative . . . . I sealed both envelopes. On that date I personally went to the post office and after waiting in line, I personally handed the envelopes to a postal worker so that they could be placed in the mail. I then personally paid the required postage amount to this postal worker.”
Varno also sent the September 28, 2004 notice of rejection addressed to Marc van Niekerk at 55 Almaden Boulevard, San Jose via certified mail, return receipt requested. The return receipt for the September 28, 2004, notice of rejection was returned to Varno by the post office, but it was returned with Bajao’s signature.
On October 12, 2004, Bajao, after reviewing a copy of the rejection notice, advised Varno that the notice of rejection had been sent to the previous address for Peterson’s attorney. Varno, according to her declaration, then sent a copy of the notice of rejection to van Niekerk’s current address, without correcting either the date of the notice or van Niekerk’s address on the notice. In Varno’s words, “I put a copy of the [September 28, 2004] letter in an envelope that was addressed to Mr. Van Niekerk at his new address of 303 Almaden Blvd., Suite 500, San Jose, California. I put another copy of this letter in an envelope addressed to his previous address of 55 Almaden Blvd., Suite 400, San Jose, California, 95113-2225. I personally sealed both envelopes. I then personally ran each letter through our postage meter at work so that postage was paid for each letter. I then personally deposited both envelopes in the United States Postal mailbox that was located across the street from my office . . . .”
Varno did not send the notice of rejection that she asserts was sent to the correct address of 303 Almaden Boulevard on October 12, 2004, via certified mail or return receipt requested. She also did not make copies of the envelopes in which the rejection notices were mailed. On October 12, 2004,Varno faxed the notice of rejection to the number that Bajao had advised her was van Niekerk’s fax number. She did not put a fax cover sheet on the notice of rejection
According to Varno’s declaration, she documented her October 12, 2004, mailing of the notice of rejection by placing a note in her file on which she wrote, “Resent ltr [sic] to 55 Almaden & also copy to 303 Almaden Blvd. Ste 500, SJ address. [¶] Faxed copy to . . . (same fax # on both [law firm] docs.) MV 10/12/04.” Varno further stated that none of the rejection notices she had mailed to van Niekerk were ever returned by the post office, nor did she receive any indication that the fax transmission was incomplete. Bajao testified in her deposition that one rejection notice sent to the 55 Almaden Blvd. address was returned by the post office. Van Niekerk stated in his declaration that he never received a notice of rejection of Peterson’s claim either by mail or by fax, and his law firm’s files did not contain any “written communication purporting to reject the Peterson claim.” Van Niekerk also stated that he had received other correspondence from LGSCER at the correct address of 303 Almaden Boulevard, including a notice of rejection of the claim by his wife, Mary van Niekerk. Jan Silva, the executive director of Bergeson, LLP, van Niekerk’s law firm, stated in her declaration that the law firm’s records showed that the law firm did not receive a fax from LGSCER’s fax number on October 12, 2004, or on the day before or the day after that date.
Thereafter, in a letter dated February 24, 2005, van Niekerk advised Bajao that he hoped to “resolve this matter through negotiation, but if that is to occur, we need to move forward without delay.” Bajao requested a written settlement demand in a letter dated February 24, 2005, without advising van Niekerk that Peterson’s claim had been rejected. Van Niekerk responded by sending a settlement demand letter dated March 16, 2005, in which he stated that a lawsuit would be filed against LGSCER unless the claim was resolved. Bajao did not respond to Peterson’s settlement demand or advise van Niekerk that Peterson’s claim had been rejected. On September 6, 2005, Peterson filed the instant personal injury action against LGSCER.
B. Procedural Background
1. The Complaint
In her complaint, Peterson alleges that her accident was caused by LGSCER’s failure to bar access to the walkway, failure to ensure that the walkway was wide enough to avoid the swing arc of the Blossom Hill clubhouse doors, failure to mark the outward swing arc of the doors, and failure to warn pedestrians that the doors of the Blossom Hill Clubhouse could swing onto the walkway.
Peterson also alleges that she filed a timely claim with LGSCER on June 8, 2004, and that LGSCER, through its claims administrator, failed to properly and timely reject her claim. According to Peterson, the notice of rejection was incorrectly addressed and never received by Peterson or her attorney.
Additionally, Peterson asserts that LGSCER, through its claims administrator, maintained an ongoing dialog with van Niekerk on behalf of Peterson commencing in July 2004. She also asserts that after her claim was rejected by operation of law on July 23, 2004, LGSCER’s claims administrator made advance payments on two occasions. The complaint further alleges that van Niekerk reasonably believed that because Peterson’s medical records had been requested and supplied, the only issue to be determined was the amount of Peterson’s settlement.
Finally, Peterson claims that “[t]he overall conduct of George Hills Company, Inc. [LGSCER’s claims administrator] in conjunction with non-receipt of any rejection of the Peterson claim by plaintiff [Peterson] or her attorney Marc van Niekerk, lulled both into a false sense of security that the statute of limitations would not serve as a bar to the Peterson claim, would not be asserted in any litigation which ensued and that the filing of a formal complaint on behalf of plaintiff [Peterson] would not be necessary.”
Based on these allegations, Peterson states causes of action for negligence and premises liability.
2. The Motion for Summary Judgment
Defendant LGSCER filed a motion for summary judgment on the ground that the undisputed facts showed that Peterson’s claim was barred by section 945.6, the applicable statute of limitations. In pertinent part, section 945.6, subdivision (a)(1) provides, “(a) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced: [¶] (1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.”
Section 913 provides, “(a) Written notice of the action taken under Section 912.6, 912.7, or 912.8 or the inaction which 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 form: [¶] ‘Notice is hereby given that the claim which 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 or rejection by operation of law).’ [¶] (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: [¶] ‘Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. ‘WARNING [¶] ‘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.’ ”
LGSCER argued that it was undisputed that on October 12, 2004, Michelle Varno had properly addressed, sealed, stamped and deposited in the mail the notice of rejection of Peterson’s claim, in accordance with the requirements of section 915.2, and therefore the six-month limitations period commenced on October 12, 2004, and Peterson’s complaint was untimely filed more than six months later on September 6, 2005. Section 915.2 provides in pertinent part that a notice of rejection of claim “shall be deposited in the United States post office, a mailbox, sub-post office, substation, mail chute, or other similar facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid. The claim, amendment, application, or notice shall be deemed to have been presented and received at the time of the deposit.”
Further, LGSCER argued that it was immaterial that Peterson and her attorney had not received the notice of rejection and did not know that her claim had been rejected. Relying on the decision in Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437 (Him), LGSCER contended that evidence showing that a claimant did not receive the notice of rejection is not sufficient to raise a triable question of fact regarding the mailing of the notice and the corresponding commencement of the section 945.6, subdivision (a)(1) six-month limitations period, because the claimant bears the risk that a properly mailed notice of rejection will not be delivered due to post office error.
LGSCER also contended that as a matter of law it could not be estopped from raising the statute of limitations defense, because Peterson could not make the showing required to estop a public entity. According to LGSCER, it was undisputed that LGSCER and its claims administrator did not know that Peterson’s attorney had not received the notice of rejection; no affirmative acts on their part would have caused a reasonably prudent person to refrain from filing a timely court action; Peterson’s attorney was aware that her claim had been rejected by operation of law on July 23, 2004, as stated in her complaint; and, absent any affirmative conduct on defendant’s part that would have caused a reasonably prudent person to refrain from filing a timely court action, Peterson could not have relied on defendant’s conduct to her detriment.
3. Opposition to Motion for Summary Judgment
In her opposition to LGSCER’s motion for summary judgment, Peterson contended that triable questions of fact existed both as to the proper mailing of the notice of rejection and whether LGSCER should be estopped from asserting a statute of limitations defense because her attorney reasonably relied on conduct by LGSCER indicating her claim would be resolved informally.
Regarding the mailing of the notice of rejection, Peterson argued that triable questions of fact existed as to whether Michelle Varno actually mailed the notice of rejection on October 12, 2004, because (1) the notice was improperly addressed to van Niekerk’s old address; (2) the notice was not sent by certified mail or return receipt requested, as initially instructed by Bajao, the claims representative; (3) the only written evidence that the notice of rejection was mailed on October 12, 2004, was Varno’s handwritten note; (4) there was no copy of the envelope, no copy of the contents of the envelope, no proof of mailing, no fax confirmation, no fax cover letter, no correctly addressed or dated rejection notice, and no rejection notice returned by the post office from van Niekerk’s old address; and (5) van Niekerk did not receive any of the mailed notices of rejection or faxed notices of rejection.
Additionally, Peterson asked the trial court to exercise its discretion under Code of Civil Procedure section 437c, subdivision (e) to deny summary judgment on the ground that Varno was the sole witness to the purported October 12, 2004, mailing of the notice of rejection. Peterson argued that Varno’s credibility was in doubt due to the discrepancies between her account of the mailing of the rejection notice on October 12, 2004, and the relevant evidence. In particular, Peterson noted that while Varno claimed that she had faxed a copy of the rejection notice to van Niekerk at his law firm on October 12, 2004, the law firm had confirmed that no such fax was received. Varno also stated that there was no LGSCER custom or practice of retaining fax confirmation sheets although in an email to Bajao she had mentioned that she was usually careful to keep a fax confirmation sheet in the file. Further, Peterson’s claim was the first government claim that Varno had handled and she had received no training on how to handle claims.
Code of Civil Procedure section 437c, subdivision (e) provides, “If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.”
Peterson also contended that summary judgment should be denied because triable questions of fact existed as to whether LGSCER should be estopped from raising a statute of limitations defense due to its conduct in inducing van Niekerk to refrain from filing a complaint on Peterson’s behalf. According to Peterson, LGSCER’s conduct included requesting copies of Peterson’s medical bills after her claim was rejected by operation of law; advancing payment of medical bills on two separate occasions; failing to discuss with van Niekerk the rejection of Peterson’s claim and the commencement of the limitations period when he inquired as to the status of Peterson’s claim; suggesting that Michelle Varno send a notice of rejection in order to commence the limitations period; failing to inform van Niekerk that a notice of rejection had been mailed on October 12, 2004; and instructing van Niekerk to submit a settlement demand and then failing to respond when a demand was made.
Further, Peterson argued that van Niekerk was justifiably unaware that LGSCER intended to commence the limitations period on Peterson’s claim. She pointed to the evidence showing that Van Niekerk had acknowledged receipt of the notice rejecting the claim filed by his wife, Mary van Niekerk, when he expressed a desire to avoid litigation of Peterson’s claim, while “[m]ention of Shirley Peterson’s rejection was noticeably missing.” According to van Niekerk, he delayed the filing of Peterson’s claim because he had not received a rejection of claim and LGSCER’s conduct implied that the claim was still pending.
4. The Trial Court’s Order and Judgment
The trial court granted the summary judgment motion in its order of May 22, 2006, on the ground that Peterson’s action was barred by the statute of limitations. The court found that LGSCER had provided a proof of service substantially in compliance with Code of Civil Procedure section 1013a, as set forth in Michelle Varno’s declaration. Additionally, the court rejected Peterson’s estoppel argument, finding that Peterson had failed “to present any admissible evidence of any affirmative/calculated conduct or representation by the public entity or its agents to induce [her] to remain inactive and not to comply with the claims requirements.”
Code of Civil Procedure section 1013a provides, “Proof of service by mail may be made by one of the following methods: [¶] (1) An affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid. [¶] (2) A certificate setting forth the exact title of the document served and filed in the cause, showing the name and business address of the person making the service, showing that he or she is an active member of the State Bar of California and is not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid. [¶] (3) An affidavit setting forth the exact title of the document served and filed in the cause, showing (A) the name and residence or business address of the person making the service, (B) that he or she is a resident of, or employed in, the county where the mailing occurs, (C) that he or she is over the age of 18 years and not a party to the cause, (D) that he or she is readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service, (E) that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, (F) the name and address of the person served as shown on the envelope, and the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and (G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices. Service made pursuant to this paragraph, upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit. [¶] (4) In case of service by the clerk of a court of record, a certificate by that clerk setting forth the exact title of the document served and filed in the cause, showing the name of the clerk and the name of the court of which he or she is the clerk, and that he or she is not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid. This form of proof is sufficient for service of process in which the clerk or deputy clerk signing the certificate places the document for collection and mailing on the date shown thereon, so as to cause it to be mailed in an envelope so sealed and so addressed on that date following standard court practices. Service made pursuant to this paragraph, upon motion of a party served and a finding of good cause by the court, shall be deemed to have occurred on the date of postage cancellation or postage meter imprint as shown on the envelope if that date is more than one day after the date of deposit for mailing contained in the certificate.”
Judgment of dismissal was entered on July 3, 2006. Peterson filed a timely notice of appeal on August 7, 2006.
III. DISCUSSION
A. The Standard of Review
The standard of review for an order granting a motion for summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001)25 Cal.4th 826, 860 (Aguilar.) The trial court’s stated reasons for granting summary judgment are not binding on the reviewing court, which reviews the trial court’s ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
In performing our independent review, we are guided by the California Supreme Court’s decisions addressing summary judgment procedure. A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, 25 Cal.4th at p. 850.) If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (§ 437c, subd. (p)(2); Aguilar, 25 Cal.4th at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
Appellate courts have noted that “[t]he burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiff’s cause of action cannot be established.” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) This is because “ ‘the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense.’ [Citations.]” (Ibid.; Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 467-468.)
In determining whether the parties have met their respective burdens, the court must “ ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, 25 Cal.4th. at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.) Thus, a party “cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)
In the present case we will therefore independently determine whether LGSCER’s summary judgment motion should be granted on the ground that Peterson’s action is barred by the section 945.6, subdivision (a)(1) six-month statute of limitations. Our analysis begins with a discussion of the relevant provisions of the statutory scheme governing claims against a public entity as set forth in the Government Claims Act, section 900 et seq.
B. The Relevant Provisions of the Government Claims Act
“In the [Government] Claims Act (§ 900 et seq.), the Legislature has carefully prescribed the time and manner of filing claims against public entities, and the conditions under which they may be sued.” (Edgington v. County of San Diego (1981) 118 Cal.App.3d 39, 43 (Edgington).) Thus, “[c]ompliance with the governmental claims statutes is mandatory [citations] and failure to follow the statutory requirements is fatal to the cause of action against the public entity. [Citations].” (County of Sacramento v. Superior Court (1980) 105 Cal.App.3d 898, 900-901.)
The statutory requirements of the Government Claims Act include a limitations period for filing an action against a public entity. Where the claim is presented and the public entity gives written notice of the rejection of the claim in compliance with section 913, suit must be brought not later than six months after the date such written notice was either personally delivered or deposited in the mail to the claimant, pursuant to section 945.6, subdivision (a)(1). (Edgington, supra, 118 Cal.App.3d at p. 43; Javor v. Taggart (2002) 98 Cal.App.4th 795, 804.) If written notice of rejection is not given in compliance with section 913, the limitations period is two years from the accrual of the cause of action. (§ 945.6, subd. (a)(2); Dowell v. County of Contra Costa (1985) 173 Cal.App.3d 896, 900.)
Section 913, subdivision (a) specifies the form for the notice of rejection of claim and also requires a notice of rejection to “be given in the manner prescribed by Section 915.4.” Subdivision (a)(2) of section 915.4 provides that the notice of rejection may be given by “[m]ailing the notice to the address, if any, stated in the claim or application as the address to which the person presenting the claim or making the application desires notices to be sent or, if no such address is stated in the claim or application, by mailing the notice to the address, if any, of the claimant as stated in the claim or application.” (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1268.)
Mailing the notice of rejection triggers the six-month limitations period provided by section 945.6, subdivision (a)(1) where the mailing complies with section 915.2. (Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211, 1214.) Section 915.2 provides as follows: “The . . . notice shall be deposited in the United States post office, a mailbox, sub-post office, substation, mail chute, or other similar facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid. The . . . notice shall be deemed to have been presented and received at the time of the deposit. . . . Proof of mailing may be made in the manner prescribed by Section 1013a of the Code of Civil Procedure.”
Having reviewed the applicable statutes, we turn to our determination of whether, as LGSCER contends, the undisputed material facts show that Peterson’s personal injury action was untimely filed under section 945.6, subdivision (a)(1).
C. Analysis
1. The Parties’ Contentions
Peterson’s first contention on appeal is that triable questions of fact exist as to whether LGSCER mailed a notice of rejection of her claim in compliance with the statutory requirements for mailing a notice of rejection that commences the six-month limitations period provided by section 945.6, subdivision (a)(1).
In making this argument, Peterson emphasizes the evidence showing that her attorney, Marc van Niekerk, never received a copy of the notice of rejection of her claim. She rejects LGSCER’s argument that evidence of nonreceipt of a notice of rejection cannot be used to prove that the notice was not properly mailed or raise a triable question of material fact. Peterson relies on Him, supra, 133 Cal.App.4th at page 445 for the proposition that evidence of nonreceipt of an item shows that the item was not mailed and thus is sufficient to raise a triable question of fact and defeat summary judgment. While Peterson acknowledged that the decision in Him also held that nonreceipt of a rejection notice alone was insufficient to overcome the claimant’s obligation to inquire as to whether a rejection notice had been sent, she distinguished Him on the facts. According to Peterson, in Him there was no evidence that the claimant had made any inquiry as to whether the claim had been rejected, while in the present case van Niekerk made more than one inquiry as to whether LGSCER had made a decision about Peterson’s claim.
Further, Peterson contends that there is sufficient evidence for a jury to find that the notice of rejection of her claim was not properly mailed on October 12, 2004. Peterson points specifically to the evidence showing that LGSCER has no contemporaneous proof of service of the mailing on October 12, 2004; Varno did not follow Bajao’s instructions to keep copies of the envelopes used to mail the rejection notices and copies of the fax cover sheet or fax confirmation for faxed rejection notices; the fax logs kept by van Niekerk’s law firm showed that no fax was received from Varno’s fax machine during the period of October 11, 2004, through October 13, 2004; there is no copy of a rejection notice properly addressed to van Niekerk’s address of 303 Almaden Boulevard; the only existing copy of the rejection notice in LGSCER’s records is addressed to van Niekerk’s previous address of 55 Almaden Boulevard; the handwritten note that Varno says she placed in her file to confirm mailing of the rejection notice on October 12, 2004, does not contain the complete address for van Niekerk; and van Niekerk received other correspondence from LGSCER properly addressed to the 303 Almaden Boulevard address, including the notice of rejection for Mary van Niekerk’s claim.
Finally, with respect to the mailing of the rejection notice on October 12, 2004, Peterson contends that triable questions of fact exist because LGSCER never advised van Niekerk that Peterson’s claim had been rejected and instead informed him that no decision would be made on her claim until he was ready to conclude or close the claim.
LGSCER responds that no genuine issue of material fact exists in regard to the October 12, 2004, mailing of the notice of rejection of Peterson’s claim. LGSCER maintains that it is undisputed that Michelle Varno complied with the statutory requirements for commencing the section 945.6, subdivision (a)(1) six-month limitations period by placing the rejection notice in an envelope addressed to Peterson’s attorney at 303 Almaden Boulevard; running the envelope through the postage meter; and depositing the addressed, sealed, and stamped envelope in a United States mailbox.
Further, LGSCER emphasizes the rule that a notice of rejection is deemed to have been presented and received at the time of deposit, as stated in Edgington, supra, 118 Cal.App.3d at page 47. LGSCER also relies on Evidence Code section 641, which provides that “a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.” Thus, LGSCER argues that where, as here, the evidence establishes that the notice of rejection was properly mailed, the plaintiff cannot create a triable question of fact by showing nonreceipt of the notice. LGSCER also notes dicta in Him, supra, 133 Cal.App.4th at page 445, indicating that a claimant should inquire about the status of the claim where the claimant does not receive a rejection notice within the 45-day period provided by section 912.4 for a public entity to act on a claim.
LGSCER also contends that it was not required to keep a proof of service for Peterson’s rejection notice because section 915.2 provides only that proof of service “may be made in the manner prescribed by Section 1013a of the Code of Civil Procedure.” With respect to the evidence showing that LGSCER failed to keep copies of the envelopes in which the rejection notices were sent or the fax cover sheets for the faxed rejection notices, and the lack of a complete address on Varno’s handwritten note, LGSCER dismisses these omissions as “what plaintiff perceives are [LGSCER’s] bureaucratic deficiencies,” and therefore insufficient to create a triable question of material fact.
2. Triable Questions of Fact Exist
Because we consider the issue of whether triable questions of material fact exist as to the mailing of the notice of rejection of Peterson’s claim on October 12, 2004, to be dispositive, we will address that issue without reaching Peterson’s second contention that LGSCER should be estopped from raising the statute of limitations defense.
As we have discussed, section 945.6, subdivision (a)(1) provides a six-month statute of limitations applicable to the filing of an action against a public entity, which commences when a notice of rejection of claim is mailed in accordance with the requirements set forth in sections 913, 915.4, and 915.4. If the notice of rejection is sent in the proper form (§ 913) to the correct address (§ 915.4) by enclosing the notice in a sealed, postage paid envelope and depositing the envelope in a United States mailing facility (§ 915.2), then the notice is “shall be deemed to have been presented and received at the time of the deposit.” (§ 915.2.) Thus, section 915.2 creates a conclusive presumption that a notice of rejection mailed in compliance with the statutory requirements was received by the recipient at the time of deposit. For that reason, the section 945.6, subdivision (a)(1) limitations period “begins to run when the written rejection notice is deposited in the mail to the claimant . . . but not when it is delivered by the postal employee . . . .” (Edgington, supra, 118 Cal.App.3d at p. 46.) The date a notice of rejection was deposited in the mail is a question of fact. (Childs v. State of California (1983) 144 Cal.App.3d 155, 163.)
We therefore agree with LGSCER that under the relevant provisions of the Government Claims Act it is immaterial that van Niekerk, Peterson’s attorney, states in his declaration that he never received a notice of rejection for Peterson’s claim. Evidence Code section 641 does not persuade us otherwise. Under Evidence Code section 641, the presumption that a letter “correctly addressed and properly mailed” was received may be rebutted by evidence of nonreceipt. (Bear Creek Master Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 1486) But Evidence Code section 641 does not apply here, because section 915.2 specifically provides a conclusive presumption that a properly mailed notice of rejection is deemed to be received at the time of deposit. It is axiomatic that “a more specific statute controls over a more general one [citations] . . . .” (Lake v. Reed (1997) 16 Cal.4th 448, 464.)
Moreover, we are not convinced by the decision in Him, supra, 133 Cal.App.4th 437 that Peterson’s evidence of nonreceipt of the notice of rejection is sufficient to create a triable question of fact as to whether the notice was properly mailed. We read Him to reject the application of the rebuttable presumption provided by Evidence Code section 641 in the context of the mailing of a notice of rejection of a government claim. The court in Him states that “[i]f, 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.” (Him, supra, 133 Cal.App.4th at p. 445.) The Him court goes on to observe that contrary statutory authority exists: “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.’ [Citation.]” (Ibid.) Thus, in Him summary judgment was upheld on the ground that the plaintiff’s action was time-barred under section 945.6, subdivision (a)(1) because the defendant’s evidence of proof of mailing of the notice of rejection was not overcome by the plaintiff’s evidence of nonreceipt of the notice. (Him, supra, 133 Cal.App.4th at p. 446.)
The first question in the present case, therefore, is whether LGSCER met its initial burden on summary judgment to make a prima facie showing that it mailed a notice of rejection of Peterson’s claim in compliance with the statutory requirements on October 12, 2004, thereby commencing the section 945.6, subdivision (a)(1) six-month limitations period for Peterson to file her personal injury action against LGSCER. Having independently reviewed the record, we determine that LGSCER met its initial burden because the evidence submitted in support of its summary judgment motion, including the declaration of Michelle Varno, showed that Varno properly mailed the notice of rejection on October 12, 2004.
The burden then shifted to Peterson to raise a triable question of fact regarding the date of mailing or whether the notice of rejection had been properly mailed. We emphasize that to determine whether Peterson met her burden, we must consider all of the evidence and the reasonable inferences drawn from the evidence in the light most favorable to her as the party opposing summary judgment. (Aguilar, 25 Cal.4th. at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.)
For several reasons, we determine that Peterson met her burden to create a triable question of material fact regarding LGSCER’s mailing of the notice of rejection of claim. While Varno testified that she properly mailed the notice of rejection on October 12, 2004, and confirmed her mailing with a handwritten note kept in her file, Peterson’s evidence showed that there was no documentation of the type that a public entity could be expected to keep in the regular course of business. In contrast to her procedure for mailing the rejection notice on September 28, 2004, Varno did not, when resending the notice on October 12, 2004, to van Niekerk’s correct office address of 303 Almaden Boulevard, send a copy of the notice to Marizel Bajao, the claims representative, nor did she send the notice via certified mail or return receipt requested
Moreover, the only copy of the notice of rejection in LGSCER’s files was dated September 28, 2004, not October 12, 2004, and addressed to van Niekerk’s previous address. There are no copies of an envelope with a postage meter date of October 12, 2004 or the correct mailing address. The only existing documentation for Varno’s mailing of the rejection notice on October 12, 2004, is a handwritten note that she placed in her file, with the following very informal notation: “Resent ltr [sic] to 55 Almaden & also copy to 303 Almaden Blvd. Ste 500, SJ address. [¶] Faxed copy to . . . (same fax # on both [law firm] docs.) MV 10/12/04.”
Therefore, when the evidence is viewed in the light most favorable to Peterson, we find that a triable question of fact exists as to whether the notice of rejection was properly mailed on October 12, 2004. As we have observed, the evidence shows that LGSCER lacks any formal documentation confirming that Varno sent the rejection notice on October 12, 2004. Varno also failed to follow the procedure by which she sent the notice for the first time on September 28, 2004 when she resent the rejection notice on October 12, 2004. Additionally, the evidence shows that LGSCER’s agent, Marizel Bajao, did not mention that a notice of rejection of Peterson’s claim had been mailed on October 12, 2004, when she subsequently solicited a settlement demand from van Niekerk in February 2005. Based on this evidence, the trier of fact could reasonably infer that the notice of rejection was not properly mailed on October 12, 2004, despite Varno’s declaration.
We recognize that Code of Civil Procedure section 437c, subdivision (e) provides that where summary judgment is otherwise proper the motion may not be denied “on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment . . . .” Thus, the “bare assertion of the existence of credibility issues” is insufficient to create a triable question of fact. (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1371.) However, subdivision (e) of section 437c also provides that “summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact . . . .” (Aguilar, supra, 25 Cal.4th at p. 852; Burkle v. Burkle (2006) 141 Cal.App.4th 1029, 1037 (Burkle).)
In Burkle, supra, 141 Cal.App.4th 1029, the appellate court concluded that the trial court had erred in granting summary judgment in a case in which the plaintiff daughter alleged that her father had improperly repaid himself from her account after making an investment on her behalf without her knowledge. Although the defendant father had submitted a declaration in support of his summary judgment motion in which he stated that the funds he advanced to his daughter were a loan, not a gift, the appellate court determined that “[a] fact-finder could reasonably infer--from the absence of any evidence of the terms of the loan, from [the father’s] failure to tell [his daughter] he was lending her funds she would be obligated to repay with interest, and from the lack of any agreement to loan terms--that [the father] intended a gift at the time he made the investment.” (Id. at p. 1037.)
Accordingly, the appellate court in Burkle found the father’s declaration did not compel the court to grant his summary judgment motion. The court found that “[t]he only evidence of a loan is [the father’s] declaration that he made the capital contribution for [his daughter] ‘in the form of a loan . . . .’ A trier of fact, however, might disbelieve [the father’s] testimony. (See Code Civ. Proc., § 437c, subd. (e) . . . .” (Burkle, supra, 141 Cal.App.4th at p. 1037.) For that reason, the Burkle court ruled that “the evidence presented in the summary judgment proceeding does not compel the conclusion that [the father] lent, rather than gave, [his daughter] funds for her one percent investment . . . . That question is for the trier of fact, and the trial court therefore erred in granting summary judgment to [the father].” (Id. at p. 1038.)
In the present case, we believe that Varno’s declaration similarly does not compel the conclusion that she properly mailed the notice of rejection on October 12, 2004, in light of the evidence presented by Peterson from which a trier of fact could reasonably infer that the notice was not so mailed. We therefore determine that LGSCER did not establish as a matter of law that the six-month limitations period provided by section 945.6, subdivision (a)(1) commenced when the notice of rejection was properly mailed on October 12, 2004, and Peterson’s complaint was untimely filed more than six months later. For these reasons, we conclude that LGSCER’s summary judgment motion should be denied and the judgment reversed.
IV. DISPOSITION
The judgment is reversed. Appellant is awarded her costs on appeal.
WE CONCUR: Mcadams, J., duffy, J.