Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 477846
McGuiness, P.J.
Appellant Jeynitha Richardson appeals from a judgment dismissing her negligence claim against respondent City and County of San Francisco (City). Richardson contends the trial court erred in concluding that her complaint arose out of different factual allegations than the government claim she submitted as a prerequisite to filing suit. We reject her contention and affirm.
Factual and Procedural Background
On December 20, 2007, Richardson filed a government claim with the City on a standard claim form. That form contains a box entitled, “Basis of Claim, ” which instructs the claimant to “[s]tate in detail all facts and circumstances of the incident, ” including “[s]tating why [the claimant] believe[s] the City is responsible for the alleged injury....”
Richardson wrote the following as the basis for her claim: “Bus driver neglected to phone 911 after I, Jeynitha, son, Kali Richardson had fallen on Muni bus. [I]njurie [sic] to face, mouth, nose, head, and body areas. Once I confronted him about it, he still had not even phoned 911 and/or Supervisor.” The incident was alleged to have occurred on December 6, 2007. Richardson’s claim contained no other allegations and made no reference to the alleged cause of her fall. In particular, the claim did not contain any allegation the driver caused or played any role in causing her to fall.
After the City denied her claim, Richardson filed a complaint against the City containing two causes of action, one for negligence and one for an intentional tort. In the negligence cause of action, Richardson alleged the bus driver made a “quick and violent stop” before she and her small child were seated, causing her to fall to the floor of the bus and suffer injury. In the intentional tort cause of action, she alleged the bus driver “deliberately failed and refused to assist” her after she fell and injured herself, aggravating her injuries and causing her “great stress and humiliation.” She sought punitive damages in addition to other relief.
Before the City filed a pleading responding to the complaint, Richardson amended her complaint. Her first amended complaint (hereafter, the complaint) omits the intentional tort cause of action and the claim for punitive damages, leaving only a cause of action for negligence premised upon the bus driver’s alleged failure to wait until Richardson and her child were seated before making an abrupt stop.
The City moved for judgment on the pleadings, claiming Richardson failed to comply with the Tort Claims Act (Gov. Code, § 810 et seq.) by premising her lawsuit on a different set of facts from those contained in her government claim. The trial court granted the motion “based on [the] variance between [Richardson’s] government claim and complaint.” The court found “no reasonable probability that the defect can be cured by amendment.” Following entry of judgment in favor of the City, Richardson filed a timely appeal.
All further statutory references are to the Government Code unless otherwise specified.
Discussion
I. Standard of Review
“The standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer: We treat the pleadings as admitting all of the material facts properly pleaded, but not any contentions, deductions or conclusions of fact or law contained therein. We may also consider matters subject to judicial notice. We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any theory. [Citation.]” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.)
“Denial of leave to amend after granting a motion for judgment on the pleadings is reviewed for abuse of discretion. [Citation.]” (Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448.) To show an abuse of discretion, the plaintiff has the burden of demonstrating that “there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
II. Variance Between Government Claim and Complaint
Under the Tort Claims Act, no action for damages may be commenced against a public entity unless a government claim that satisfies section 910 has been submitted and denied. (§ 945.4; Blair v. Superior Court (1990) 218 Cal.App.3d 221, 224.) Section 910 requires that the claim state the “date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted” and provide “[a] general description of the... injury, damage or loss, insofar as it may be known at the time of the presentation of the claim.” (§ 910, subds. (c) & (d).)
The purpose of the Tort Claims Act is “ ‘to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.’ [Citation.]” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446 (Stockett).) “[A] claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’ [Citations.]” (Ibid.) When comparing the complaint to the government claim that preceded it, the touchstone of the analysis is whether the allegations in the complaint are “ ‘fairly reflected’ ” in the government claim. (See Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434 (Fall River); Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 275-278.)
A complaint is subject to dismissal “ ‘if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ [Citation.]” (Stockett, supra, 34 Cal.4th at p. 447; see also Fall River, supra, 206 Cal.App.3d at p. 435.) This is so because a complaint that seeks to impose liability based on a set of facts entirely different from those contained in the claim subverts “the purposes of the claims act, which is intended to give the governmental agency an opportunity to investigate and evaluate its potential liability....” (Fall River, supra, at pp. 435-436.) Although a complaint may provide a “fuller exposition of the factual basis beyond that given in the claim, ” a complaint will be barred when there is a “ ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim’....” (Stockett, supra, at p. 447.) “Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint. [Citation.]” (Ibid.; see also White v. Superior Court (1990) 225 Cal.App.3d 1505, 1510-1511.)
Richardson contends her government claim-which alleged solely that the bus driver failed to call 911 after she fell-fairly reflected the factual allegation that the driver caused her to fall, thus providing the City with an opportunity to investigate the cause of her fall. We disagree.
The government claim submitted by Richardson did not give the City any reason to investigate why she fell. It did not remotely suggest the City or the driver played any role in causing her to fall. Instead, it merely indicated the driver failed to call 911, thereby aggravating injuries Richardson suffered in her fall. A claim the driver caused the fall does not “merely elaborate” upon the factual allegation that the driver failed to summon help. (See Stockett, supra, 34 Cal.4th at p. 447.) Rather, it predicates liability upon an entirely different wrongful act and thus creates a fatal variance between the facts alleged in the government claim and those alleged in the complaint.
A fair reading of the claim would not lead one to believe the City was responsible for Richardson’s fall. It is true, as Richardson contends, that she identified the bus driver as the “City Employee who allegedly caused injury or loss” in the box on the claim form designated for that purpose. However, merely identifying the bus driver as the responsible party does not suggest the driver caused the fall, a factual allegation that appears nowhere in the claim. Viewed in context, the identification of the driver simply confirmed who was responsible for aggravating Richardson’s injuries by failing to call 911.
The mere fact that Richardson fell on a City bus does not mean the City was responsible for the fall. There are any number of reasons a person could fall on a bus. A fellow passenger’s negligent or intentional conduct might cause a person to fall, or a passenger’s own negligence might be to blame. Absent some allegation that the fall was caused by the bus driver’s actions, a dangerous condition on the bus, or some other condition or event for which the City bears liability, there was no reason for the City to investigate the cause of the fall. It is not enough simply to allege injury on City property; there must be some factual allegation that predicates liability for the injury on an act, omission, or condition attributable to the City.
The analysis in Donohue v. State of California (1986) 178 Cal.App.3d 795 is instructive. There, the plaintiff was injured when his car was struck by a vehicle driven by a minor taking the driving portion of the driver’s license examination. (Id. at p. 798.) The plaintiff filed a government claim alleging the State should not have allowed an uninsured motorist to take the driving test. (Id. at p. 799.) After that claim was denied, he sued the State, arguing the examiner failed to properly supervise the minor during the examination. (Id. at pp. 798-799.) The appellate court affirmed dismissal of the complaint, reasoning that “[t]he act of permitting an uninsured motorist to take a driving test is not the factual equivalent of the failure to control or direct the motorist in the course of his examination.” (Id. at p. 804.) Put a different way, the allegation in the government claim that the plaintiff should never have been allowed to take the test did not fairly reflect a claim that the plaintiff was negligently supervised during the exam itself: “By presenting a claim wherein defendant’s liability was predicated solely on its negligence in allowing an uninsured motorist to take a driving test, plaintiff thwarted the purpose of the claims act and forced defendant to defend a lawsuit based on an entirely different set of facts.” (Id. at p. 804.) Just as in Donohue v. State of California, the core allegation in Richardson’s government claim-that the driver failed to call 911 after she fell-is not the factual equivalent of the core allegation in her complaint-that the driver caused her to fall. (See also Fall River, supra, 206 Cal.App.3d at p. 434 [student who alleged a dangerous condition after being injured by a closing door did not provide notice that school negligently failed to supervise children engaged in horseplay].)
Richardson contends she is not required to state in the government claim the particular act or omission that is alleged to have caused the injury, citing Blair v. Superior Court, supra, 218 Cal.App.3d at p. 225. We agree that a claim “need not specify each particular act or omission later proven to have caused the injury. [Citation.]” (Stockett, supra, 34 Cal.4th at p. 447.) However, a claim must contain some factual predicate for imposing liability on a governmental entity for an injury. (Cf. ibid.) A complaint may elaborate upon or add detail to the claim, but only if the additional detail “is predicated on the same fundamental actions or failures to act” that are alleged in the claim. (Ibid.) In this case, the allegations contained in the complaint were not predicated on the same actions or failure to act alleged in the claim. While Richardson was not required to identify the particular act or omission that caused her fall, she was nonetheless required to give the City some notice that she believed the City bore responsibility for her fall and not just the driver’s failure to call 911 after she suffered injury.
Richardson contends that because the government claim and the complaint both identify the bus driver as the wrongdoer, the claim must have put the City on notice of the possibility that the driver caused Richardson’s fall. The contention lacks merit. There is simply no logical connection between an allegation the driver failed to call 911 and an allegation the driver’s negligence caused Richardson to fall. By contrast, in the case on which Richardson relies, White v. Superior Court, where the court observed that the government claim and the lawsuit identified the same “principal actor, ” the court emphasized that both the complaint and the government claim were predicated on the same fundamental facts. (White v. Superior Court, supra, 225 Cal.App.3d at p. 1511.) In that case, a plaintiff who alleged in her government claim that she was falsely arrested and mistreated by a City police officer included causes of action in her complaint for negligent supervision and intentional failure to train, supervise, and discipline the officer. (Id. at p. 1507.) The appellate court stressed that the plaintiff did not shift the fundamental fact that the officer allegedly mistreated her. Instead, she merely sought to demonstrate that the City was directly responsible for the officer’s conduct. (Id. at p. 1511.) Here, even though the bus driver is the principal wrongdoer in both the claim and the complaint, the facts that give rise to potential liability are fundamentally different in the claim and complaint.
The cases on which Richardson relies generally involve situations in which the complaint simply added allegations elaborating upon the wrongful act (or acts) described in the government claim. For example, in Stockett, the plaintiff filed a government claim alleging he had been wrongfully terminated in violation of public policy, including an allegation he had been terminated for supporting a female employee’s sexual harassment claim. (Stockett, supra, 34 Cal.4th at p. 444.) In the operative complaint, the plaintiff added additional grounds on which he was terminated in violation of public policy, including that he had objected to a conflict of interest and exercised his free speech rights in objecting to certain practices. (Id. at pp. 444-445.) In concluding that the variation between the claim and the complaint was not fatal, the Supreme Court reasoned that “the free speech and conflict of interest theories simply elaborated and added detail to his wrongful termination claim by alleging additional motivations and reasons for [the defendant’s] single action of wrongful termination.” (Id. at p. 448.) Thus, unlike here, the complaint alleged liability on the “same wrongful act” as was stated in the government claim. (Ibid.)
Likewise, in Stevenson v. San Francisco Housing Authority, also relied upon by Richardson, the complaint simply added details to the facts alleged in the government claim. There, the government claim alleged that the defendant negligently maintained and operated premises in which the plaintiff’s father died during the 1989 Loma Prieta earthquake. (Stevenson v. San Francisco Housing Authority, supra, 24 Cal.App.4th at pp. 273, 276 & fn. 2.) The claim also contained allegations that the defendant was negligent in failing to search the premises after the earthquake for injured persons. (Id. at p. 276, fn. 2.) In the complaint, the plaintiff alleged causes of action premised upon the defective condition of the building as well as the failure to discover plaintiff’s injured father. (Id. at p. 276.) The defendant argued the plaintiff’s written claim focused on events occurring after the earthquake whereas the complaint focused on a failure to inspect and warn of defects before the earthquake. (Ibid.) The appellate court rejected the distinction urged by the defendant, concluding that “[a]lthough the legal theories in [plaintiff’s] complaint were more detailed, the written claim referenced [the father’s] fall in his apartment during the earthquake and negligent maintenance of the premises.” (Id. at p. 278.) The additional detail regarding the condition of the building was just an elaboration on the facts contained in the government claim. According to the court, “[t]hese additional allegations were not based on a different set of facts from those set out in the claim and are fairly included within the facts first noticed in the claim.” (Ibid.) Whereas the claim in Stevenson included a theory on which the defendant could be held liable for the decedent’s fall, as well as a theory on which the defendant was liable for the events that occurred after the fall, the claim here was limited to a theory that the City was liable for what transpired after Richardson’s fall, i.e., the failure to summon help.
We conclude the allegations in the complaint regarding the bus driver’s negligence in causing Richardson’s fall are not fairly reflected in the claim she submitted to the City. Accordingly, the trial court properly dismissed the complaint.
By amending her complaint to omit the cause of action for intentional tort, Richardson abandoned her claim premised on the bus driver’s failure to call 911.
III. Significance of “Demand Package” Sent Before Filing Suit
In her opening brief, Richardson makes a number references to a letter, also referred to as a “demand package” or a “settlement package, ” which she sent to the City before filing suit. According to Richardson, the demand package “clarified and elaborated on the two theories of liability contained in the claim, one for failure of a common carrier to assist a passenger and one for negligent driving on the part of the Muni bus driver.” In the conclusion of her opening brief, she asks for leave to amend her complaint to show substantial compliance with the claims statutes by alleging the contents of the 4-page demand letter she wrote to the City.
The demand package was included as part of a request for judicial notice submitted to the trial court by Richardson. However, because Richardson failed to designate her request for judicial notice for inclusion in the record on appeal, it was not contained in the appellate record at the time she filed her opening brief. After the City filed its respondent’s brief, in which it pointed out that the demand package was not included in the record on appeal, Richardson filed a motion to augment the record on appeal to include her request for judicial notice, which contains the demand package. Richardson contends the demand package, which she claims was inadvertently omitted from the record on appeal, is necessary to show that the City had adequate notice of her claims before she filed suit. The City opposed the motion, arguing that the request is untimely and that Richardson failed to show good cause for the delay in augmenting the record. We deferred consideration of the motion pending a determination of the merits of the appeal.
We exercise our discretion to grant Richardson’s belated motion to augment the record with the judicial notice request that incorporates her demand package. As we explain, the existence of the demand package does not change the outcome of this appeal.
The materials attached to Richardson’s judicial notice request disclose the following. Richardson filed a government claim on December 20, 2007, with respect to an incident that was alleged to have occurred on December 6. By letter dated January 25, 2008, the City denied the claim and provided warning that Richardson had six months in which to file suit under the Tort Claims Act. The City’s denial letter indicated that if Richardson was “interested in pursuing settlement discussions at the claim stage, ” she could provide the City with copies of medical records tending to support a claim for damages.
More than four months later, Richardson’s attorney prepared a demand package dated June 11, 2008. In addition to detail concerning the damages Richardson incurred, the demand package included the allegation that she “was not allowed to go to her seat before the driver of the bus took off and then abruptly and suddenly stopped the bus as she approached her seat.” Richardson claimed “[h]er body was tossed two [sic] and fro before she fell to the floor of the bus.” There is no indication in the record that the City responded to Richardson’s demand package. Richardson filed her initial complaint against the City on July 23, 2008.
Unlike Richardson’s government claim submitted in December 2007, her demand package dated June 11, 2008, included factual allegations indicating that the bus driver was responsible for her fall. Unfortunately for Richardson, she cannot rely on her demand package to argue she complied with the Tort Claims Act.
A claim may be amended at any time within six months of accrual of the cause of action for personal injury or before the entity takes final action on the claim, whichever is later, but only if the amended claim relates to the same transaction or occurrence that gave rise to the original claim. (§§ 910.6, subd. (a), 911.2.) Even were we to consider Richardson’s demand package to be an amendment to the original claim, it was submitted too late. The City had already taken final action on the claim by denying it, triggering a six-month statutory period within which to file suit. Further, the demand package is dated more than six months after the date of the incident, when Richardson’s cause of action accrued. Thus, the City had no obligation to consider the demand package as an amended claim, even if it had been presented as such.
Although the City’s denial letter invited Richardson to submit evidence of damages incurred for purposes of pursuing settlement, it did not invite an amendment of the claim or suggest that Richardson was free to allege new or different grounds for her claim.
Richardson argues she should be allowed to amend her complaint to allege substantial compliance with the claims statutes. She contends she substantially complied with the claims statutes by submitting a demand package that put the City on notice of her claims before she filed suit. We are not persuaded.
In Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 33-34 (Dilts), the court considered whether a series of letters discussing a claimant’s contentions and seeking a settlement could collectively be considered a government claim to which the doctrine of substantial compliance applies. The court ruled that a series of letters does not “constitute a claim within the meaning of the Tort Claims Act, and the doctrine of substantial compliance cannot be applied.” (Id. at p. 36.) According to the court, the “Tort Claims Act envision[s] the filing of a single claim with the public entity so that public entity may investigate the claim, consider settlement and formally approve or reject the claim.” (Ibid.) The court’s discussion of the practical difficulties of treating a series of correspondence as part of a single claim is particularly apt here: “If a series of letters received over a period of time could collectively constitute a claim, it would be impossible to ascertain whether a claim had been presented within [the time limitations] specified in section 911.2.... It would be difficult for the public entity to identify whether a particular letter were a claim and which letter triggered its obligation to accept or deny a claim if a series of correspondence could be considered collectively to constitute a claim. If an agency was unable to determine whether a claim had been filed or when the claim had been filed, it would be equally difficult for the court to determine which statute of limitation applied or when the statute of limitation began to run.” (Ibid.)
The doctrine of substantial compliance provides that a defective claim will be considered sufficient for purposes of the claims statutes if there is an attempt to comply and sufficient information is disclosed on the face of the filed claim to allow the public entity to make an adequate investigation of the claim’s merits. (Dilts, supra, 189 Cal.App.3d at p. 33.) Fall River and its progeny make clear that the doctrine of substantial compliance does not apply to a situation in which a claim and a subsequent complaint arise out of a different set of facts. (Fall River, supra, 206 Cal.App.3d at pp. 435-436; Donohue v. State of California, supra, 178 Cal.App.3d at p. 804.)
For the reasons cited in Dilts, Richardson’s demand package cannot be considered part of her government claim, which had already been denied. Thus, she may not avail herself of the substantial compliance doctrine.
We conclude Richardson’s submission of a demand package shortly before she filed suit against the City does not constitute substantial compliance with the claims statutes. There was no abuse of discretion in denying leave to amend the complaint to include allegations regarding the demand package.
Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: Siggins, J., Jenkins, J.