Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC352276, Richard Fruin, Judge.
Law Offices of Leech & Associates and D. Wayne Leech for Plaintiff and Appellant.
Maranga & Morgenstern, Kenneth A. Maranga, Patricia E. Ellyatt; Pollak, Vida & Fisher and Daniel P. Barer for Defendants and Respondents.
KRIEGLER, J.
Plaintiff and appellant Donald Isaac filed a medical malpractice action against defendants and respondents Los Angeles County-USC Medical Center (hereafter USC Medical Center), Mark Spicer, M.D., and Daniel Hoh, M.D., alleging injuries resulting from a back surgery. The trial court sustained defendants’ demurrer without leave to amend and entered a judgment of dismissal with prejudice on Isaac’s first amended complaint (FAC) on the basis that Isaac had not pled facts sufficient to show compliance with the Government Claims Act (the Act).
The Act is found in Government Code section 810 et seq. (See City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741-742.) All statutory references are to the Government Code, unless indicated otherwise.
Isaac contends the trial court erred in sustaining the demurrer because he pled facts showing timely compliance with the Act and the applicable statute of limitations. Isaac argues he sufficiently pled the filing of his complaint on May 12, 2006, was timely under the two-year statute of limitations in section 945.6, subdivision (a)(2). In addition, Isaac maintains the court improperly took judicial notice of a stipulation between Isaac and the Los Angeles County entered into on March 16, 2006 (“March 16, 2006 stipulation”). We hold that it affirmatively appears from the face of the FAC and the County’s August 4, 2005 denial of claim (“denial of claim”), which was judicially noticed, that the action is barred by the six-month statute of limitations in section 945.6, subdivision (a)(1). Accordingly, we affirm the court’s order sustaining the demurrer to the FAC. Because Isaac’s complaint was barred by the statute of limitations, we do not reach the issue of whether the trial court properly took judicial notice of the March 16, 2006 stipulation.
FACTUAL AND PROCEDURAL BACKGROUND
Allegations of the FAC
On May 12, 2006, Isaac filed his medical malpractice complaint against defendants. The complaint was superseded by the FAC, which was based on the following allegations. Spicer and Hoh were physicians employed by the USC Medical Center. The parties entered into a written stipulation that Isaac was relieved of the late-filing requirements of section 946.6 et seq. In 2002, Isaac consulted defendants concerning a medical condition. On March 4, 2004, defendants performed a lumbar diskectomy at L4-5 on Isaac. They also performed post-surgical treatment and Isaac continued to be under their care. The surgery and post-surgery medical treatment were negligently performed, and defendants failed to properly diagnose and treat Isaac’s condition and provide proper post-surgical care. “As a proximate result of said negligence of defendants[,] [Isaac] sustained personal injuries due to the improper placement of two pedicle screws during the surgery set forth above. Although the surgery was negligently performed by defendants, [Isaac] was unaware of the negligence of the defendants.” After the surgery, Isaac suffered severe paralysis and pain affecting both feet.
On May 5, 2005, Dr. Amir Makoui advised Isaac to undergo surgical removal of the pedicle screws in his back, but did not advise him the pedicle screws were the cause of the radicular symptoms affecting Isaac’s feet or that the screws had been negligently inserted. On May 26, 2005, the pedicle screws were surgically removed at the USC Medical Center. On June 21, 2005, Isaac was advised for the first time that the misplaced pedicle screws were causing the symptoms affecting his feet. On July 8, 2005, Isaac submitted a government tort claim to the County in compliance with section 911.2. On August 4, 2005, the County advised Isaac in writing that it was taking no action on the claim and the claim was untimely.
The County’s response to Isaac’s claim was improper. The placement of the pedicle screws in Isaac’s back was a continuing tort, tolling the Act’s filing requirement and the statute of limitations, until the removal of the screws on May 26, 2005. Isaac did not discover defendants’ negligence until at least May 26, 2005. “Accordingly, [Isaac’s] . . . claim was timely, and Defendants failed to comply with the requirements of [section] 911.6 in that Defendants’ failure to act upon the claim was improper, as Defendants failed to consider [Isaac’s] claim for late discovery of the negligence, and the continuing tort caused by the existence of the misplaced hardware in [Isaac’s] spine. [¶] Because Defendants’ response to [Isaac’s] tort claim of July 8, 2005 was ineffective, . . . section 945.6[, subdivision (a)](2) applies to the filing of this action against Defendants.
“In an abundance of caution, on November 3, 2005, [Isaac] submitted an Application for Leave to Present Late Claim to Defendants, pursuant to . . . section 911.4 [(‘Application to Present Late Claim’)]. [¶] On December 1, 2005, Defendants sent to [Isaac] a notice denying the [Application to Present Late Claim] contending that the claim could not be properly considered, because the application did not satisfy the criteria for presenting a late claim. Said denial was improper as Defendants had no basis in law or in fact for the denial. [¶] On February 10, 2006, [Isaac] filed a Petition for Order for Relief from Claims Requirement of [] Section 945.4, Case No. BS101681 [(‘Petition for Relief from Claims Requirement’)].” On or about March 16, 2006, the parties entered into the March 16, 2006 stipulation, providing that “the issue of whether [Isaac] made a timely governmental tort claim and the statute of limitations defense, thereto, would be reserved for adjudication by the trial court in the lawsuit based upon the tort claim.”
As a result of the injuries caused by defendants’ negligence, Isaac endured extreme pain and suffering due to neuropathy affecting his lower extremities, further diagnostic studies, further surgeries, and other medical procedures; and he continues to suffer from severe bilateral neuropathy of his feet. Isaac suffered permanent injuries.
Defendants’ Demurrer to the FAC
On December 6, 2006, defendants demurred to the FAC on the ground that the complaint failed to state a cause of action in that it was untimely filed under Code of Civil Procedure section 430.10 and sections 945.6, 950.2, and 950.6. In their memorandum of points and authorities in support of the demurrer, defendants stated that, on March 21, 2006, Isaac filed a request to dismiss his Petition for Relief from Claims Requirement (superior court case No. BS101681). Defendants argued that the March 16, 2006 stipulation “set out a new statute of limitations by which time [Isaac] had to file his Complaint and [the] statute of limitations was set at May 1, 2006.” As Isaac did not file the complaint until May 12, 2006, it is time barred. “Alternatively,” defendants argued that the applicable statute of limitations was, pursuant to section 945.6, subdivision (a)(1), six months from the denial of Isaac’s claim. The denial of claim was served on August 4, 2005. The deadline for filing the complaint was February 4, 2006. Defendants contend Isaac admitted that the County denied his claim in writing on August 4, 2005, and does not allege the writing did not comply with section 913. Accordingly, the provisions of section 945.6, subdivision (a)(1) applied. The trial court’s docket in case No. BS101681 reflects that Isaac filed a dismissal of the Petition for Relief from Claims Requirement on March 21, 2006. As there was no ruling on the petition, the deadline for filing the complaint remained at February 4, 2006.
Defendants’ Request for Judicial Notice
Concurrently with the filing of the demurrer to the FAC, defendants asked the trial court to take judicial notice of the following: (1) the denial of claim, pursuant to Evidence Code sections 452, subdivision (d), and 356; (2) the fact that Isaac filed a request for dismissal of the Petition for Relief from Claims Requirement and such dismissal was entered in case No. BS101681, pursuant to Evidence Code section 452, subdivision (d); and (3) the March 16, 2006 stipulation, under Evidence Code section 356 and the “‘incorporation by reference’ doctrine.”
The denial of claim stated: “the claim . . . is being denied because it was not presented within the 6-month period provided by law. See sections 901 and 911.2 of the Government Code. Because the claim was not presented within the time allowed by law, no action was taken on the claim. [¶] WARNING [¶] Government Code section 911.3 provides that when a claim is denied because it was not presented within the time allowed by law, notice to the claimant shall so state and further give notice in substantially the following form: [¶] ‘Your only recourse at this time is to apply without delay to the Los Angeles County Board of Supervisors for leave to present a late claim. See sections 911.4 to 912.2, inclusive, and section 946.6 of the Government Code. Under some circumstances, leave to present a late claim will be granted. See section 911.6 of the Government Code. [¶] ‘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.’ [¶] If you dispute the County’s conclusion that your claim was untimely, the following warning may be applicable: [¶] WARNING [¶] Subject to certain exceptions, you have only six . . . 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 946.6.”
The Civil Case Summary for case No. BS101681 indicates that on March 21, 2006, Isaac filed a request for dismissal of the Petition for Relief from Claims Requirement, and the case was dismissed.
The March 16, 2006 stipulation does not contain a file stamp indicating it was filed in court. According to the March 16, 2006 stipulation: Isaac alleged in his claim, an Application to Present Late Claim and Petition for Relief from Claims Requirement that he “first suspected injury through malpractice on May 5, 2005, and that accrual of his cause of action occurred no earlier than April or May 2005; and [¶] [Isaac contends] his claim for damages is therefore timely; and [¶] [The County] disputes both that date of discovery, and that the claim is timely; and [¶] [Case law] holds that a court hearing a petition [for an order for relief from filing a claim under section] 946.6 has no jurisdiction to resolve . . . whether a claim is timely, and that the timeliness issue should be resolved in the main action rather than in the petition proceeding; and [¶] [T]he parties therefore wish to resolve the issues of the date of accrual and the claim’s timeliness in the action in chief, rather than by a [section] 946.6 petition proceeding.” The parties stipulated as follows: “1. Claimant may proceed to pursue his lawsuit against the County on his claim without the necessity of pursuing and prevailing on a . . . section 946.6 petition. [¶] 2. It is agreed that the County and its employees have not waived any defense that the presentation of the aforementioned claim was untimely under . . . [section] 911.2, or any applicable claim timeliness or statute of limitations defenses. [¶] 3. Claimant shall have until May 1, 2006 to file a lawsuit based on his claim. [¶] 4. Claimant shall dismiss his . . . [section] 946.6 petition, and request that the trial court take the March 30, 2006 petition hearing off-calendar.”
Isaac’s Opposition To Demurrer to the FAC
Isaac contended his claim was timely, in that he did not discover defendants were negligent until May 26, 2005, and the complaint was timely, in that he remained under defendants’ care after he filed the claim and defendants did not tell him the misplaced pedicle screw was the cause of the radicular pain in his feet. He requested that, if the action was found untimely, he be granted leave to amend to allege facts supporting a theory of concealment. He requested, in the alternative, that he be relieved of the excusable neglect of counsel who failed to calendar the May 1, 2006 deadline in the March 16, 2006 stipulation. Counsel’s neglect was excusable because the County’s attorney unilaterally inserted the May 1, 2006 deadline for filing the complaint into the stipulation without telling Isaac’s counsel. Isaac argued that the actual date of discovery of defendants’ negligence was a question of fact for the trial court. Isaac argued that the two-year statute of limitations of section 945.6, subdivision (a)(2) applied because his claim was improperly rejected solely on the ground it was untimely. The March 16, 2006 stipulation is a contract, whose terms are subject to interpretation (Evidence Code, § 452) and it is improper to interpret a contract at the demurrer stage.
Isaac’s Opposition to Request for Judicial Notice
Isaac opposed the request for judicial notice of the March 16, 2006 stipulation on the ground that only the portion of the stipulation that explains the portion referenced in his FAC is admissible under Evidence Code section 356, and the incorporation by reference doctrine does not apply. Isaac did not object to the request for judicial notice of the denial of claim.
Defendants’ Reply to Isaac’s Opposition to Demurrer to the FAC
Defendants argued that Isaac did not, and cannot, allege that the warnings under section 913 were not given. Thus, the six-month statute of limitations in section 945.6, subdivision (a)(2) applied, and the limitation period expired on February 4, 2006. If the entirety of the stipulation is not judicially noticed, then none of it should be considered, and, thus, Isaac has clearly missed the February 4, 2006 statute of limitations deadline to file the complaint.
Ruling
At the hearing on the demurrer held on February 26, 2007, Isaac argued that the denial of claim on timeliness grounds was not proper. The trial court stated, “the County’s denial of the claim was at least doubtful, but the . . . California Tort Claims Act provides in that event you apply [to] the court by a petition to be excused from the notice requirements. [¶] So I think you did the right thing in filing your petition. And that’s where I start, because thereafter you dismiss the petition . . . pursuant to a private agreement that you had with the County, that the [section] 946.6 petition would be decided in a new suit that you would file on . . . the claim itself for medical negligence. [¶] That suit was filed late. That’s the problem.” Defendants argued in response that the six-month statute of limitations applied because the County properly gave warnings under section 913, and the six months started to run on the date of the denial of claim. The trial court concluded, “I think I’m just stuck with the requirements of the California Tort Claims Act,” and sustained the demurrer without leave to amend. The action was ordered dismissed on April 2, 2007. This timely appeal followed.
We infer from the record that the trial court granted defendants’ request for judicial notice in all respects, and the parties do not argue otherwise.
DISCUSSION
Isaac contends the allegations of the FAC show his complaint was timely filed under section 945.6, subdivision (a)(2). The FAC alleged he discovered defendants’ negligence on June 21, 2005, and filed a timely government tort claim on July 8, 2005. The two-year statute of limitations in section 945.6, subdivision (a)(2) for filing suit on a government tort claim applied, because the County denied his claim as untimely and the notice of denial was not given in accordance with section 913. Alternatively, he contends the six-month statute of limitations in section 945.6, subdivision (a)(2) was equitably tolled by his filing of the Application to Present Late Claim and Petition for Relief from Claims Requirement. Lastly, Isaac contends the trial court erred in taking judicial notice of the March 16, 2006 stipulation and erred in interpreting it.
Standard of Review
“‘In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318[.]) ‘To meet [the] burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.] However, such a showing need not be made in the trial court so long as it is made to the reviewing court.’ [Citation.] ‘[W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court.’ [Citation.]” (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.)
“‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]’ (Citation)” (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781; accord, State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 413.)
The FAC Properly Alleges that the Claim Was Timely Presented
As defendants acknowledge for purposes of the demurrer, the FAC sufficiently alleges timely filing of Isaac’s claim on July 8, 2005, a date within six months of when Isaac alleged he reasonably discovered his injury and its negligent cause on June 21, 2005. (§§ 945.4 [no damage action against a public entity, for which a claim is required to be presented, may be brought unless a claim was presented to the public entity], 911.2, subd. (a) [a personal injury claim must be presented no later than six months after the cause of action accrued], 901 [the date of accrual is the date on which the cause of action would be deemed to have accrued within the meaning of the statute of limitations that would be applicable in the absence of a claim requirement]; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 [“[T]he common law rule, that an action accrues on the date of injury[,] applies only as modified by the ‘discovery rule.’ The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. . . . A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her[]”], fn. omitted.)
The Six-Month Statute Of Limitations Applies
Isaac contends the two-year statute of limitations in section 945.6, subdivision (a)(2) for filing suit on a government tort claim applies, because the County denied his claim as untimely and the notice of denial was not given in accordance with section 913. Isaac reasons that his complaint was timely filed on May 12, 2006, less than two years after the cause of action accrued on June 21, 2005. Defendants contend the six-month statute of limitations in section 945.6, subdivision (a)(1) applies, because notice of denial of the claim was given in accordance with section 913. According to defendants, the limitations period ended on February 9, 2006, six months after the notice of denial was issued on August 4, 2005. We conclude that the six-month statute of limitations applies.
Defendants arrive at February 9, 2006, as the deadline by adding five days for mailing to the six months from August 4, 2005.
Under the Act, “The public entity must approve or reject a timely claim within 45 days and provide written notice to the claimant. (§§ 912.4, 912.6, 913.) If a timely claim is rejected in whole or in part, the claimant may file suit for money or damages within six months after the date notice is personally delivered or deposited in the mail. (§§ 945.4, 945.6, subd. (a)(1).) If the rejection is not properly noticed in accordance with section 913 however, the action may be filed in court within two years from the accrual of the cause of action. (§ 945.6, subd. (a)(2).)” (Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817, 822.)
Section 945.6, subdivision (a), contains a six-month and a two-year statute of limitations. Section 945.6, subdivision (a) provides in pertinent part that “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. [¶] (2) If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action.”
As is apparent from the language of section 945.6, subdivision (a), the six-month statute of limitation applies when a claim is rejected in accordance with section 913. If the rejection is not in compliance with section 913, the two-year statute applies. We thus look to the language of section 913 to determine if Isaac is correct that the two-year statute of limitation applies, which would make his complaint timely.
Section 913 provides: “(a) Written notice of the action taken under Section 912.6 . . . 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.”
Section 912.6 provides in pertinent part: “(a) In the case of a claim against a local public entity, the board may act on a claim in one of the following ways: [¶] (1) If the board finds the claim is not a proper charge against the public entity, it shall reject the claim. [¶] (2) If the board finds the claim is a proper charge against the public entity and is for an amount justly due, it shall allow the claim. [¶] (3) If the board finds the claim is a proper charge against the public entity but is for an amount greater than is justly due, it shall either reject the claim or allow it in the amount justly due and reject it as to the balance. [¶] (4) If legal liability of the public entity or the amount justly due is disputed, the board may reject the claim or may compromise the claim.”
The trial court properly took judicial notice of the denial of Isaac’s claim; Isaac does not contend otherwise. Our review of the denial of the claim establishes “written notice [was] given in accordance with Section 913” (§ 945.6, subd. (a)(1)) and the six-month statute of limitations applies.
The denial of claim gave notice of the action taken under section 912.6—that the claim was “denied”—in “substantially” the form prescribed by section 913. (See § 913, subd. (a).) As required by section 913, the notice stated: (1) when the claim was presented—on July 8, 2005; (2) to whom it was presented—the Los Angeles County Board of Supervisors; and (3) what action was taken—“denied because it was not presented within the 6-month period provided by law.” Section 913, subdivision (a), permits using any “appropriate language” to describe the action taken. The date action was taken, which is required to be stated by section 913, subdivision (a), was not stated in the body of the notice, but was indicated as August 4, 2005, by the date on the notice.
The denial of claim also advised Isaac both what he had to do if his claim was late (see section 911.3) and what he had to do if he disagreed that his claim was late (see § 913). The denial of claim specifically warned Isaac that if he disputed the County’s conclusion that his claim was untimely, Isaac had only six months to file a court action on the claim. The section 913 warnings, concerning consulting an attorney and the six-month limitations period for filing a lawsuit, were given verbatim. (See § 913, subd. (b).) Thus, written notice of rejection of Isaac’s claim was given in accordance with section 913 for the purpose of triggering the six-month statute of limitations in section 945.6, subdivision (a)(1).
Section 911.3 provides in pertinent 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. The notice shall be in substantially the following form: [¶] ‘The claim you presented to the (insert title of board or officer) on (indicate date) is being returned because it was not presented within six months after the event or occurrence as required by law. See Sections 901 and 911.2 of the Government Code. Because the claim was not presented within the time allowed by law, no action was taken on the claim. [¶] Your only recourse at this time is to apply without delay to (name of public entity) for leave to present a late claim. See Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government Code. Under some circumstances, leave to present a late claim will be granted. See Section 911.6 of the Government Code. [¶] 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.’ [¶] (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, except that no notice need be given and no waiver shall result when the claim as presented fails to state either an address to which the person presenting the claim desires notices to be sent or an address of the claimant.”
Isaac contends that notice of denial was not given by the County in accordance with section 913, and, thus, the two-year statute of limitations in section 946.6, subdivision (a)(2) applies, because the denial of claim relied on the ground that the claim was untimely and did not reject the claim on the merits. In support of this contention, Isaac cites Mandjik v. Eden Township Hospital District (1992) 4 Cal.App.4th 1488 (Mandjik) for the proposition that rejection of a government tort claim as untimely triggers the two-year statute of limitations, not the six-month statute. Isaac overstates the holding of Mandjik.
The plaintiff in Mandjik filed a claim for damages, and in the alternative, a late claim application. The public entity defendant rejected the claim only on the basis that it was untimely, without considering the merits of the claim. Mandjik held that “where a claim submitted along with an application for leave to present a late claim alleges facts which, if true, would make that claim timely, the public entity must give specific written notice of rejection under section 913. If the public entity fails to do so, the claimant has two years from the accrual of his cause of action to file his complaint. [Citation.]” (Mandjik, supra, 4 Cal.App.4th at p. 1500.) The notice of rejection on timeliness grounds in Mandjik did not contain any of the warnings set forth in section 913. (Mandjik, supra, at p. 1409.) Since the claim in Mandjik was timely on its face, “failure to give specific written notice of rejection under section 913 entitles plaintiffs to a two-year statute of limitations under section 945.6, subdivision (a)(2).” (Mandjik, supra, at p. 1501.)
Mandjik did not hold that the two-year statute of limitations applies whenever a public entity rejects a claim as untimely without consideration of the merits. To the contrary, Mandjik indicates the six-month statute of limitations applies if proper notice is given under section 913, which it was in this case. Unlike the instant case, the public entity in Mandjik rejected a claim as untimely but did not give proper notice under section 913. Issac, however, was specifically warned that the six-month statute of limitations for filing suit might apply if he disagreed with the finding that his claim was not timely. Under Mandjik, as written notice of denial of Isaac’s claim was given in accordance with section 913, the six-month, not the two-year, statute of limitations applied.
“The purpose of the section 911.3 notice is to assure that the claimant distinguishes between a claim rejected on its merits and one returned as untimely. The claimant thus knows which procedure to pursue. (See Notice of Rejection of Late Claim Against Public Entity (Nov. 1982) 19 Cal. Law Revision Com. Rep. (1982) pp. 2251, 2255.)” (Rason v. Santa Barbara City Housing Authority, supra, 201 Cal.App.3d at p. 830.) By giving Isaac notice that his claim was denied as untimely, and expressly advising him that if he disagreed with that conclusion he must file an action within six months, the County clearly identified the procedure Isaac needed to pursue. (Compare Scott v. County of Los Angeles (1977) 73 Cal.App.3d 476, 481-482 [claim denied as untimely without the notice required in section 913 brought the two-year statute of limitations under section 945.6 into play].)
Isaac did not file his complaint until May 12, 2006, well beyond the six-month period following denial of his claim, which passed on February 9, 2006. The demurrer was therefore properly sustained without leave to amend.
The Six-Month Limitations Period Was Not Tolled
Isaac contends that, if the six-month statute of limitations in section 945.6, subdivision (a)(1) applies, the limitation period, which began on August 4, 2005, was equitably tolled from November 3, 2005, when he filed an Application to Present Late Claim, until March 21, 2006, when his Petition for Relief from Claims Requirement was dismissed. Under this theory, the lawsuit was timely filed within six months, as tolled, of the denial of claim. Referring to the warnings in the denial of claim that were given under section 911.3 concerning late-filed claims, he simply argues: “[b]ecause plaintiff reasonably relied upon the representation contained in the response to the tort claim, the County is equitably estopped from asserting that the statute of limitations was triggered by the response letter.”
We disagree with the contention. First, the argument is not supported by controlling authority. Although Isaac says the theory is gleaned from Mandjik, the fact is that Mandjik never discusses equitable tolling and is not authority for that proposition. Second, the contention is without merit, because the denial of claim specifically warned Isaac that he had only six months to file suit if he disagreed with the conclusion his claim was untimely. Given the explicit warnings given in the notice as to how Isaac could proceed, there is simply no basis for tolling of the statute of limitations in this action.
Because we conclude the six-month statute of limitations barred Isaac’s complaint, we need not address whether the trial court properly took judicial notice of the March 16, 2006 stipulation, or whether Isaac’s action was barred by the content of the stipulation.
DISPOSITION
The judgment affirmed. Defendants are awarded costs on appeal.
We concur: TURNER, P.J., MOSK, J.