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Rivera v. Wrege

California Court of Appeals, Fourth District, First Division
Jul 10, 2008
No. D050878 (Cal. Ct. App. Jul. 10, 2008)

Opinion


ISRAEL RIVERA, Plaintiff and Appellant, v. DAVID WREGE et al., Defendants and Respondents. D050878 California Court of Appeal, Fourth District, First Division July 10, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. GIC866185, John S. Meyer, Judge.

O'ROURKE, J.

Israel Rivera appeals a grant of summary judgment in favor of respondents, Chula Vista police officer David Wrege and the City of Chula Vista. Rivera contends: (1) summary judgment was improperly granted because his lawsuit was filed within the time allowed by section 945.6; and, in the alternative, the applicable statute of limitation was tolled for one year under section 3304, subdivision (d)(6); and, (2) Wrege's conduct exceeded the scope of his employment, and therefore Rivera's lawsuit was not time-barred. We affirm.

BACKGROUND

Rivera filed a claim against the City of Chula Vista, alleging that police officer Wrege testified falsely. On November 15, 2005, the City of Chula Vista Personnel Department sent Rivera a letter denying a claim filed against the City of Chula Vista, and informing him, "[Y]ou have only six (6) months from the date of this notice was [sic] personally delivered or deposited in the mail to file a court action . . . [under] Government Code section 945.6."

All further statutory references are to the Government Code unless otherwise stated. The rejection notice complied with the language proposed for such notices in section 913.

On May 18, 2006, Rivera filed a lawsuit against David Wrege and the City of Chula Vista, alleging "David Wrege, while acting in his capacity as a Chula Vista Police Officer, falsely testified" causing personal injury to Rivera.

Defendants moved for summary judgment, arguing Rivera's lawsuit was barred by the six-month statute of limitation. The only evidence before the trial court regarding the applicable statute of limitation was presented by defendants, who affirmed as an undisputed material fact, "The City provided written notice of rejection of the claim by mail on November 15, 2005." This statement was supported by the declaration of the attorney for defendants, who stated, "The City denied the claim by written denial dated and deposited in the mail on November 15, 2005," attached as an exhibit to the declaration was a copy of the City's letter. Rivera did not file papers in opposition to the summary judgment motion. The trial court granted the motion, and judgment was entered dismissing the case with prejudice.

DISCUSSION

In reviewing the grant of summary judgment, "[W]e determine de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. [Citation.] In other words, we must assume the role of the trial court and reassess the merits of the motion. [Citation.] In doing so, we will consider only the facts properly before the trial court at the time it ruled on the motion." (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) We do not decide the merits of the issues, but limit our review to "determining if 'there is evidence requiring the fact-weighing procedures of a trial.' " (Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 717, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)

Section 945.6, subd. (a)(1) states that "any suit brought against a public entity on a cause of action for which a claim is required to be presented [under the Tort Claims Act] 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." This court stated, "The plain meaning of section 945.6, subdivision (a)(1), is that the statute of limitations therein begins to run when the written rejection notice is deposited in the mail to the claimant, or is personally delivered, but not when it is delivered by the postal employee after having been deposited in the mail pursuant to section 913." (Edgington v. County of San Diego (1981) 118 Cal.App.3d 39, 46.) For purposes of the Tort Claims Act, "Once the claimant has received notice of rejection of a claim informing [him or] her of the time limitation within which a court action must be filed after the date of mailing of the rejection, it is not asking too much to require the claimant to take steps to ascertain the date of mailing." (Dowell v. County of Contra Costa (1985) 173 Cal.App.3d 896, 902.)

The trial court found that the notice of rejection of claim sent to Rivera was dated and deposited in the mail on November 15, 2005. The six-month statute of limitation expired on May 15, 2006. Rivera did not provide any contrary evidence, and the trial court properly relied on defendants' evidence for its factual finding. We are required to rely on that uncontradicted evidence. Accordingly, we conclude that Rivera's lawsuit, filed on May 18, 2006, was barred under section 945.6.

On appeal, Rivera concedes that the City of Chula Vista's rejection notice was dated November 15th, 2005. Nevertheless, he contends — for the first time on appeal — that "the actual stamp from the U.S. postal service on the City of Chula Vista's envelope is dated November 16, 2005." Rivera includes in his appellate filings what he claims is a copy of the envelope with the date stamped November 16, 2005. Defendants correctly point out that this document was never lodged in the trial court; therefore, we may not rely on it.

Rivera relies on Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, which construed the six-month bar in section 945.6 to mean that an action must be filed within six calendar months or 182 days, whichever is longer. (Gonzales, supra, at p. 604.) Rivera concludes his lawsuit was filed on the 182nd day, and therefore it was timely. We must reject this argument. Rivera, in his opening brief, states "[He] had timely presented his damages claims to the county, which had denied them on November 16th, 2005. Not November 15th, 2005, as claimed by respondents. Therefore [he] filed his action 182 days later on May 18th, 2006." We reiterate that the only evidence on this point before the trial court stated that the City of Chula Vista's rejection notice was dated and deposited in the mail on November 15, 2005. Rivera's complaint was untimely because it was filed one day beyond the Gonzales court's interpretation of the statute of limitation's outer limit.

Rivera's other contentions are not properly before us because they were not first raised in the trial court. "[I]n reviewing a summary judgment, ' " . . . the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a 'triable issue' on appeal." ' " (Havstad v. Fidelity National Title Ins. Co. (1997) 58 Cal.App.4th 654, 651.)

DISPOSITION

The judgment is affirmed. David Wrege and the City of Chula Vista are awarded costs on appeal.

WE CONCUR: NARES, Acting P. J., IRION, J.


Summaries of

Rivera v. Wrege

California Court of Appeals, Fourth District, First Division
Jul 10, 2008
No. D050878 (Cal. Ct. App. Jul. 10, 2008)
Case details for

Rivera v. Wrege

Case Details

Full title:ISRAEL RIVERA, Plaintiff and Appellant, v. DAVID WREGE et al., Defendants…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 10, 2008

Citations

No. D050878 (Cal. Ct. App. Jul. 10, 2008)