Opinion
H050498
05-06-2024
TATIANA SHEVERTALOVA, Plaintiff and Appellant, v. CITY OF SARATOGA, Defendant and Respondent.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 19CV348222
Grover, J.
Plaintiff Tatiana Shevertalova was injured when she tripped and fell on a public road in the City of Monte Sereno. She timely presented claims under the Government Claims Act (Gov. Code, § 810 et seq.) to the City of Monte Sereno (Monte Sereno) and the California Department of Transportation (Caltrans). More than a year after her injury, plaintiff presented a claim to defendant City of Saratoga upon learning Saratoga was involved in the road improvement work that created the dangerous condition plaintiff alleges caused her injury. The operative complaint contains a single cause of action for injury caused by a dangerous condition of public property. The trial court sustained Saratoga's demurrer to that complaint without leave to amend because plaintiff had not timely presented a claim to that city. Finding no error, we will affirm the judgment of dismissal.
I. TRIAL COURT PROCEEDINGS
According to the operative fourth amended complaint, in August 2018 plaintiff left a friend's home in the Monte Sereno and jogged toward a rideshare car at the intersection of Rose Avenue and Los Gatos-Saratoga Road. Plaintiff tripped over a "warning-surface pad" that had been installed as part of the "Highway 9 Safety Improvement Project." Plaintiff alleged the pad created a dangerous condition because "instead of laying [sic] flat in level with the road's surface, it was installed elevated on top of the road's surface, and, following its installation, had since disfigured, further raised and curled up, creating a tripping hazard."
The operative complaint describes the warning surface pad as "29 by 35 inches in size, which purportedly serve[s] as a ground surface indicator, designed to assist and warn pedestrians, who are blind or visually impaired, of the sidewalk's end."
Plaintiff presented a claim about the injury to Monte Sereno in October 2018, which was rejected. Plaintiff presented a claim about the injury to Caltrans in January 2019. (The operative complaint does not state that Caltrans rejected the claim, but the record does not suggest otherwise.) Plaintiff filed suit in May 2019, against only Monte Sereno and Caltrans as named defendants.
The operative complaint alleges plaintiff did not learn about the City of Saratoga's (Saratoga) involvement in installing the pad she tripped on until October 2019. Plaintiff learned at an unspecified time of the" 'Highway 9 Safety Improvement Project,'" which was jointly conducted by Caltrans, Monte Sereno, Saratoga, and the Town of Los Gatos (Los Gatos). Plaintiff alleged she saw nothing in her independent research to indicate Saratoga might be responsible for construction or maintenance of the sidewalks located within the city limits of Monte Sereno. A company called "Technical Consultants, Inc." reviewed the "documents and information provided in the claim and conducted a site inspection where the injury occurred." That company's report allegedly showed only Monte Sereno and Caltrans as the entities that constructed the pedestrian path where plaintiff was injured. The operative complaint alleges plaintiff learned about Saratoga's involvement in October 2019 when counsel for Caltrans sent plaintiff's counsel a copy of a Caltrans encroachment permit for improvement work on Highway 9 in Monte Sereno, Saratoga, and Los Gatos. Saratoga is the permittee, and the permit provides that "Saratoga, Monte Sereno, and [the] Town of Los Gatos shall be responsible, in perpetuity, for future maintenance [of] the newly installed sidewalk, curb and gutter/landscape and irrigation facilities under this permit."
The consultant report was not attached to the operative complaint and is not part of the record on appeal. The operative complaint's allegations about the entities involved in the project are inconsistent with those in the first amended complaint, where plaintiff alleged the same consultant "reported findings which show City of Monte Sereno, Santa Clara Valley Transportation Authority, MTC [undefined in the complaint], and Caltrans contributed to the construction of the asphalt pedestrian path [plaintiff] used." (Capitalization omitted.)
The operative complaint alleges plaintiff presented multiple claims to Saratoga in March 2020, two of which are in the record on appeal. One claim, dated March 6 and apparently submitted using an online form, lists August 2, 2018 as the incident date. Another claim, file-stamped March 9, lists August 2, 2018 as the incident date and also states plaintiff "found out about an Encroachment Permit ... on 10/11/2019 only. This filing falls within 6 month [sic]."
Nothing on the face of the March 9 claim indicates that it was presented to Saratoga. The file stamp shows simply "Government Claims Program" and is on a state Department of General Services form; however, we treat the claim as having been delivered for purposes of the demurrer because plaintiff alleges it was presented, and nothing conclusively contradicts that allegation.
The city of Saratoga rejected plaintiff's claim by letter dated May 26, 2020. (We see no proof of service or proof of mailing; the copy in the record on appeal is attached to a January 2021 email from Saratoga's counsel to plaintiff's counsel and the operative complaint alleges plaintiff received the denial letter in January 2021.) The letter states plaintiff's claim for damages was "rejected by operation of law (45th day) on April 20th, 2020." Consistent with Government Code section 913, it advises plaintiff that "you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action." The letter does not advise about late claims procedures under Government Code section 911.3.
The trial court granted plaintiff's ex parte application to amend her second amended complaint to substitute the city of Saratoga in place of a Doe defendant. By stipulation, plaintiff filed a third amended complaint that included allegations about Saratoga. The trial court sustained Saratoga's demurrer to the third amended complaint, finding that an untimely government claim to Saratoga barred plaintiff's suit against that city, and that plaintiff had not alleged sufficient facts to support application of the delayed discovery rule.
Plaintiff then filed the operative fourth amended complaint with the additional allegations we have summarized about discovering Saratoga's involvement in the Highway 9 Safety Improvement Project. Saratoga again demurred, which the trial court sustained by written order. The trial court determined that plaintiff's cause of action accrued on the date of her injury, and that the claim she presented to Saratoga was untimely because it was presented more than a year after that date. The court rejected plaintiff's argument that the accrual date was tolled until October 2019 when she discovered Saratoga's involvement in the joint project. The court reasoned that the identity of a defendant is not essential to a claim and therefore will not toll its accrual.(Citing Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932 (Bernson).)
This court issued an order to show cause why the appeal should not be dismissed as premature because the judgment of dismissal referenced but did not adjudicate a crosscomplaint involving the city of Saratoga. The order to show cause was discharged after plaintiff submitted information indicating that the subject cross-complaint had since been dismissed such that all issues between plaintiff and Saratoga had been adjudicated. Plaintiff's unopposed request for judicial notice of pleadings filed in the trial court in this action related to the order to show cause is granted.
II. DISCUSSION
We review de novo a judgment of dismissal based on a sustained demurrer. (Organizacion Comunidad de Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 790.) We will reverse the dismissal if the allegations of the petition state a cause of action under any legal theory. (Ibid.) We assume the truth of all facts alleged in the complaint (id. at pp. 790-791), but we do not consider conclusory factual or legal allegations. (B &P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 953.) "The plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action and overcoming all of the legal grounds on which the trial court sustained the demurrer." (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.) "We will affirm if there is any ground on which the demurrer can properly be sustained." (Ibid.)
A. The Claim to Saratoga was Untimely
"Government Code section 905 requires that 'all claims for money or damages against local public entities' be presented to the responsible public entity before a lawsuit is filed." (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734; unspecified statutory references are to the Government Code.) A personal injury claim must be presented to the responsible public entity "not later than six months after the accrual of the cause of action." (§ 911.2, subd. (a).) "[F]ailure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
A cause of action accrues under the Government Claims Act on the "date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations" if there was no claim presentation requirement. (§ 901.) A cause of action generally accrues when the "cause of action is complete with all of its elements." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 389 (Norgart).) "An exception is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action." (Ibid.) But a "plaintiff may discover, or have reason to discover, the cause of action even if" a specific defendant's identity is unknown because the "identity of the defendant is not an element of any cause of action." (Id. at p. 399; accord Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).) Where a plaintiff knows the identity of at least one defendant, the plaintiff must proceed. (Norgart, at p. 399.)
Plaintiff contends she adequately pleaded facts to support accrual of a cause of action against Saratoga in October 2019 when her counsel received from Caltrans a copy of the encroachment permit listing Saratoga as the permittee for the Highway 9 Safety Improvement Project. Plaintiff argues the "relevant discovery is the fact of Saratoga's responsibility for the premises in question," and contends the operative complaint adequately alleged her diligence in discovering Saratoga's involvement. (Underscoring omitted.) But the discovery rule pertains to the date a plaintiff knows of a cause of action, not the date a plaintiff knows a defendant's identity. The operative complaint alleges plaintiff was injured by a dangerous condition of public property in August 2018, and it is undisputed that she presented a claim to Monte Sereno in October 2018. The record here demonstrates that plaintiff knew or had reason to know not later than October 2018 of a cause of action against one or more public entities for an injury occurring on public property.
Plaintiff correctly notes that Fox was not a Government Claims Act case. But she points to nothing indicating the rule of Fox and Norgart does not apply to government claims presentation. And those authorities have been applied in a Government Claims Act case with procedural facts similar to this one. (See Estill v. County of Shasta (2018) 25 Cal.App.5th 702, 707-709 [discovery rule did not delay accrual of invasion of privacy cause of action against public entity related to jail staff improperly receiving information about the claimant (an employee at the jail); claimant "had reason to suspect that someone had done something wrong to her long before" the date she claimed to have discovered the defendants' identities].) We acknowledge that the commonplace procedural mechanism of suing a fictitious Doe defendant and later using Code of Civil Procedure section 474 to amend the complaint to name a private party defendant is not available as to a public entity defendant without timely presentation of a government claim. But the Supreme Court has recognized the" 'special status of public entities'" and the protections afforded by the Government Claims Act's presentation requirements because public entities" 'will incur costs that must ultimately be borne by the taxpayers.'" (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991, fn. 8 [summarizing "public policies supporting strict application of the claims presentation requirements"].)
Plaintiff also rightly points out that "one simply may not present a claim if the entity's identity is unknown." But she has not alleged in the trial court or on appeal that Saratoga intentionally concealed its identity. (See Bernson, supra, 7 Cal.4th at p. 936 ["a defendant may be equitably estopped from asserting the statute of limitations when, as the result of intentional concealment, the plaintiff is unable to discover the defendant's actual identity"].) Plaintiff had six months from October 2018 to identify and present a claim to Saratoga; she failed to do so. Following Fox and Norgart, given that the identity of a particular defendant is not an element of a cause of action, we conclude that the latest accrual date supported by the operative complaint's allegations is October 15, 2018-the date plaintiff presented her claim to Monte Sereno. Because plaintiff's March 2020 claim was presented to Saratoga more than six months after her cause of action accrued, it was untimely and the trial court was correct to sustain a demurrer on that basis.
B. Saratoga Did Not Waive Timely Claim Presentation
Plaintiff asserts that Saratoga waived its untimeliness defense by not providing the notice described in section 911.3, subdivision (a) in its letter rejecting plaintiff's claim. We previously granted the application of the League of California Cities and the California State Association of Counties to participate as amici, joining Saratoga in urging us not to find waiver here.
Section 911.3, subdivision (a) provides that 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." That notice must indicate that no action was taken on the claim because it was filed late, and must inform the claimant that the "only recourse at this time is to apply without delay to [the 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." (§ 911.3, subd. (a).) Section 911.3, subdivision (b) (hereafter, section 911.3(b)) states: "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." Of particular significance under the facts here, section 911.4 describes the process for applying to a public entity for leave to present a late claim and states an application must be presented "within a reasonable time not to exceed one year after the accrual of the cause of action." (§ 911.4, subd. (b).)
Whether the section 911.3(b) waiver applies when a claim is presented more than one year after the cause of action accrues and the public entity's response letter does not include the section 911.3, subdivision (a) advisement is a question of statutory interpretation, which we review de novo. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) "As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose." (People v. Murphy (2001) 25 Cal.4th 136, 142.) "We begin by examining the statute's words, giving them a plain and commonsense meaning." (Ibid.) We "consider the language of the entire scheme and related statutes, harmonizing the terms when possible." (Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 632.) "When the language of a statute is clear, we need go no further." (People v. Flores (2003) 30 Cal.4th 1059, 1063.) When language is susceptible of more than one reasonable interpretation, "we may 'look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.'" (In re M.M. (2012) 54 Cal.4th 530, 536.)
The section 911.3(b) waiver applies when a public entity fails to give the required notice in response to a "claim described in [section 911.3,] subdivision (a)." (§ 911.3(b).) Section 911.3, subdivision (a) describes a "claim that is required by Section 911.2 to be presented not later than six months after accrual of the cause of action [that] is presented after such time without the application provided in Section 911.4." Section 911.3 does not itself include a time limit but it incorporates section 911.4, which limits the time to apply for leave to present a late claim to one year. Section 911.3-including its waiver provision-applies unambiguously to a claim presented after the six-month time limit set out in section 911.2, subdivision (a) and before the one-year time limit described in section 911.4, subdivision (b). Here, however, plaintiff's claim was already more than a year old by the time it was presented. Whether the section 911.3 notice and waiver apply beyond the one-year time limit is unclear when the two statutes are considered together: Although we acknowledge that the three requirements described in section 911.3 appear to have been met, an application under section 911.4 could provide no relief where more than a year has passed since accrual.
We look to extrinsic aids to resolve the ambiguity. The Legislature's purpose in enacting section 911.3 was described in Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817. The Rason court explained that before section 911.3, public entities were not required to specify whether a claim was rejected or returned as untimely, which meant claimants could be "misled as to the available remedy when the public entity returned the claim as 'rejected' when in fact it was returned as untimely." (Rason, at p. 830.) Section 911.3 was enacted to "assure that the claimant distinguishes between a claim rejected on its merits and one returned as untimely," which allows the claimant to determine the correct procedure to pursue. (Rason, at p. 830; see also Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 706 [the "possibility of waiver encourages public entities to investigate claims promptly, and to make and notify claimants of their determinations, thus enabling the claimants to perfect their claims"].)
Section 911.3 was thus enacted to help claimants determine how to proceed when a claim is returned by a public entity. The section 911.3, subdivision (a) advisement informs a claimant that the "only recourse at this time is to apply without delay ... for leave to present a late claim" and cites section 911.4. (§ 911.3, subd. (a).) Leave to present a late claim can be granted only when a claimant applies "within a reasonable time not to exceed one year after the accrual of the cause of action." (§ 911.4, subd. (b).) Requiring the section 911.3 notice where a claim is filed more than one year after a cause of action accrues does not serve the purposes of the statute because it would advise about a late claim application procedure no longer available to the would-be claimant. When considered in the context of the statutory scheme and the Legislature's purpose in enacting section 911.3, we conclude that a public entity is not required to provide a section 911.3, subdivision (a) notice when a claim is presented more than one year after the cause of action accrues. As a result, the section 911.3(b) waiver does not apply to a failure to include the advisement under those circumstances.
Plaintiff points to no case where the section 911.3(b) waiver has been applied to a claim presented more than one year after the cause of action accrued. She cites Roger v. County of Riverside (2020) 44 Cal.App.5th 510. Although the Roger court concluded the county had waived its untimeliness defense by not complying with section 911.3 (Roger, at p. 525), we note the claim in that case was presented less than one year after the incident. The Roger court was therefore not presented with the issue we must decide here. (Id. at p. 524.) Plaintiff also cites to Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520 as involving a claim over one year old. Bastian was a newspaper photographer who photographed a car crash victim lying next to an alcohol bottle. Outcry from publication of the photograph caused Bastian to lose his job with the newspaper. (Id. at p. 525.) A deputy sheriff later admitted during a deposition that he had placed the bottle near the crash victim. Bastian presented a claim to the county four days after learning about the deputy's admission of wrongdoing, and later filed suit. (Id. at p. 526.) Bastian's claim was therefore timely presented in relation to a cause of action against the county and the deputy-which accrued when he discovered the deputy's wrongdoing that supported a cause of action-even if the claim was presented more than a year after the photo was taken. Section 911.3 is neither cited nor discussed in Bastian.
In her response to amici, plaintiff argues that requiring a section 911.3, subdivision (a) advisement for all late claims would allow disputes about accrual dates to be resolved through a section 911.4 late-claim presentation application and section 946.6 trial court petition process. We acknowledge that disputes involving accrual, tolling, and similar issues do sometimes exist. But a public entity must be able to rely on the date or dates referenced in the claim itself, and different advisements will apply to different filing windows. This case illustrates the issue: Plaintiff's March 9, 2020 claim referred to both the injury date and the date plaintiff received the encroachment permit listing Saratoga as a permittee. Saratoga was thus presented with a claim that facially was either over one year old (using the August 2018 incident date) or timely (using the October 2019 date). An entity presented with such a claim could reasonably conclude that the section 911.4 procedure described in the section 911.3 advisement would not have applied to either scenario. Indeed, giving the section 911.3 advisement in that situation could ultimately be more confusing for the claimant, not less.
Plaintiff further argues Saratoga's rejection letter was misleading because the city did not return the claim as untimely and instead rejected the claim with the section 913 advisement that, "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." We see nothing misleading in that standard advisement, which merely informs a claimant of the general limitations period to commence litigation.
C. Denying Leave to Amend was Not an Abuse of Discretion
We review the denial of leave to amend for abuse of discretion. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 971.) Leave to amend should be granted where it is reasonably possible an amendment would cure the defect that caused a demurrer to be sustained. (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 145.) The plaintiff bears the burden to show how a complaint can be amended to state a cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
The operative complaint demonstrates that plaintiff knew of her cause of action for an injury alleged to have been caused by a dangerous condition of public property no later than when she presented a claim to Monte Sereno in October 2018. It is undisputed that she presented claims to Saratoga in March 2020, more than a year after she was aware of the cause of action. Plaintiff has not demonstrated a reasonable possibility that any amendment would cure the untimeliness. The trial court therefore did not abuse its discretion by denying leave to amend.
Because Saratoga's demurrer to the operative complaint was properly sustained without leave to amend based on plaintiff's failure to timely present a claim to Saratoga, we do not reach the parties' arguments about Code of Civil Procedure section 474 and the relation-back doctrine. We likewise do not reach the parties' arguments about whether it was proper for the trial court to grant Saratoga's request for judicial notice of certain documents from Monte Sereno's website, as those documents do not relate to issues within the scope of our decision.
III. DISPOSITION
The judgment of dismissal is affirmed. As the prevailing party on appeal, the City of Saratoga is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
I CONCUR: Greenwood, P. J.
Lie, J., Dissenting:
The interpretation of a statute begins with its plain language, "because the words of a statute are generally the most reliable indicator of legislative intent." (In re C.H. (2011) 53 Cal.4th 94, 100.) When the language is clear, there is no resort to construction. (In re R.V. (2015) 61 Cal.4th 181, 192 (R.V.).) "A court may not, 'under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.'" (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 992 (DiCampli-Mintz), quoting California Fed. Savings &Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.) Because I read the plain language of Government Code section 911.3 to compel a determination that the City of Saratoga waived its untimeliness defense, I respectfully dissent.
Undesignated statutory references are to the Government Code.
When plaintiff Tatiana Shevertalova presented her personal injury claim to the City of Saratoga more than six months after accrual of her cause of action, without applying for leave to file a late claim, the City could have rejected her claim as untimely by notifying her in writing within 45 days as described in section 911.3, subdivision (a).But it did not. When the City eventually responded (on day 81), it omitted the two points section 911.3, subdivision (a) unambiguously prescribes-(1) "that the claim was not filed timely" and (2) that her" 'only recourse . . . is to apply without delay . . . for leave to present a late claim.'" It also omitted the statutorily prescribed instruction to "[s]ee Sections 911.4 to 912.2, inclusive, and Section 946.6," which provides for judicial relief from section 945.4's time-bar. (§ 911.3, subd. (a).) And the express consequence of "failure to give the notice set forth in subdivision (a) within 45 days" after presentation of the claim is that "[a]ny defense as to the time limit for presenting [the] claim . . . is waived." (§ 911.3, subd. (b).) The majority, the City, and amici curiae League of California Cities and California State Association of Counties all concede as much. (Maj. opn. ante, at p. 9.) Where I differ is in taking "[a]ny defense as to the time limit for presenting a claim" at face value, encompassing untimeliness of any degree.
Section 911.3, subdivision (a) provides written notice specifying that "the claim was not filed timely and . . . it is being returned without further action." The language for the notice, provided in section 911.3, subdivision (a), includes the advisement that the claimant's" 'only recourse at this time is to apply without delay to (name of public entity) for leave to present a late claim. [Citations.] Under some circumstances, leave to present a late claim will be granted. [Citation.]'" The provision requires that the public entity's notice be in "substantially the . . . form" set forth in the statute.
The plain language of the statute offers the public entity no relief from waiver for claims presented more than a year after accrual. And if there remained a need for textual construction, it is instructive that the Legislature has specified only one narrow exception to section 911.3's broad waiver provision, inapplicable here: "[N]o 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." (§ 911.3, subd. (b); see also § 911 [same].) The inclusion of this limited exception to the broad waiver of "[a]ny defenses as to the time limit" suggests the exclusion of any others:"' "[W]e must assume that the Legislature knew how to create an exception if it wished to do so ...." [Citation.]'" (DiCampli-Mintz, supra, 55 Cal.4th at p. 992; see also Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 514 [explaining expressio unius est exclusio alterius as a canon of construction].) And when the Legislature chose not to exempt from waiver untimeliness defenses to claims presented more than one year late, the California Supreme Court reminds us that a court may not "[rewrite] the statute to read as the court believe[s] it should provide." (DiCampli-Mintz, at p. 992.)
The majority, however, deems it "unclear" whether section 911.3 waiver applies "beyond [section 911.4's] one-year time limit . . . when [sections 911.3 and 911.4] are considered together . . . [because] an application under section 911.4 could provide no relief where more than a year has passed." (Maj. opn. ante, at p. 9.) I dispute both the premise and the claimed lack of clarity the majority draws from that premise.
The premise that section 911.4 can provide no relief when more than a year has passed since accrual overlooks the same section's express provisions for tolling of the one-year limit. (See § 911.4, subd. (c)(1), (2), &(3).) The one-year period excludes, for example, time during which the applicant is mentally incapacitated and does not have a guardian or conservator. (§ 911.4, subd. (c)(1).) The majority's vision of the rule would risk leaving claimants who might have a basis for tolling the one-year period uninformed of the basis for rejection of their claim and the mechanism for disputing that basis.
The Legislature had reason to discourage public entities from, in effect, preemptively denying section 911.4 applications by depriving claimants notice of the procedure. A proper claim gives the public entity basic information about the claimant, the event giving rise to the claim, and "the indebtedness, obligation, injury, damage or loss incurred." (§ 910, subd. (d).) An application for leave to present a late claim, on the other hand, supplies "the reason for the delay in presenting the claim." (§ 911.4, subd. (b).) The very purpose of the application is to inform the public entity about possible justifications for tardy presentation, which may include the statutory grounds for tolling section 911.4's one-year deadline.
Shevertalova, I agree, has pleaded no facts that would suggest any basis for tolling section 911.4's one-year limit in her case. But the City at the time it rejected her claim could not have conclusively determined that on the basis of her claim alone. If the City revised the legislatively mandated notice to omit material information because it decided on the face of Shevertalova's claim that section 911.4 could be of no use to her, then it engaged in precisely the sort of blinkered and premature analysis that the statutory process is structured to discourage.
To preserve its untimeliness defense, the City was required to give timely notice because Shevertalova submitted "a claim that is required by Section 911.2 to be presented not later than six months after accrual . . . after such time without the application provided in Section 911.4." (§ 911.3.) But although the Legislature expressly provided for one exception from the public entity's notice requirement (see § 911.3, subd. (b)), it did not provide an exception where the original claim is too late to benefit from section 911.4. The statute plainly applies here even though the record does not indicate Shevertalova could have benefitted from section 911.4.
As for the majority's determination that the unlikelihood of succeeding in an application under section 911.4 makes section 911.3's waiver provision "unclear," this is not an ambiguity in the language of the statute, so "we need go no further." (People v. Flores (2003) 30 Cal.4th 1059, 1063; see also R.V., supra, 61 Cal.4th at p. 192.) The lack of clarity the majority perceives relates not to language but to the judgment it reflects-the legislative choice to incentivize notice to the claimant of both the public entity's untimeliness determination and the opportunity to dispute it under section 911.4, even where the process may prove of no use. Yet this legislative focus on process is explicit in the Government Claims Act. Indeed, the legislatively prescribed text for the mandatory notice warns claimants that a section 911.4 application may not help them, as "leave to present a late claim" is only granted in "some circumstances." (§ 911.3, subd. (a).) Notice under section 911.3 allows the claimant to make an informed decision whether to pursue leave to present a late claim-it does not promise claimants that they can obtain relief by a section 911.4 application. Despite the pragmatism of the majority's utilitarian construction, "judicially crafted exceptions" like what the majority today cobbles onto section 911.3 "are appropriate only when literal interpretation of a statute would yield absurd results or implicate due process." (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 158.)
Literal interpretation yields no absurdity here. Notice compliant with section 911.3 ensures that claimants "know[] which procedure to pursue" upon a public entity's rejection of their claim. (Rason v. Santa Barbara City Hous. Auth. (1988) 201 Cal.App.3d 817, 830.) The potential fallibility of a public entity's determination that a claim is untimely, based solely on the face of the claim presented, is implicit in section 911.4's direction that the claimant show "the reason for the delay" in the application for leave to file a late claim, as it is in section 946.6's provision for a petition for judicial relief following the public entity's denial of the application. (§§ 911.4, subd. (b), 946.6, subd. (b)(2).)
Amici curiae League of California Cities and California State Association of Counties protest that "[p]ublic entities should not be forced to provide notice of the late claim application process . . . for public entities to avoid the doctrine of waiver for claims beyond the one-year outside limit." If the species of waiver here at issue required the intentional relinquishment of a known right, I would agree. But the defect in amici's argument is their conflation of "the doctrine of waiver" with statutory waiver. (See, e.g., Mandjik v. Eden Township Hospital Dist. (1992) 4 Cal.App.4th 1488, 1503-1504 [recognizing that entity's waiver by noncompliance with technical requirements of § 911.3 may "unintentionally" result in waiver].) Section 911.3 does not "force" public entities to provide notice so much as strongly incentivize notice by (1) scripting the content of that notice and (2) providing that a public entity failing to give notice will be subject to litigation much as a private defendant would be. (Cf. § 911 [providing for waiver of "[a]ny defense as to the sufficiency of the claim . . . by failure to give notice of . . . the defect or omission" in the claim, but stopping short of providing specific language for notice and explanation for the available means of responding].) Just as a claimant's untimely presentation of a claim bars a future action on that claim, a public entity's failure to timely notify a claimant bars the untimeliness defense under section 945.4.
While the majority's statutory interpretation turns exclusively on the content of the City's belated written notice, it supplies no reason to second-guess the Legislature's extension of waiver under section 911.3 to otherwise compliant written notice that a public entity issues late. In both section 911.3 and section 911.4, the Legislature defined 45 days as the time within which a public entity wishing to preserve any defenses as to the time limit for presenting a claim must act. I can see nothing absurd in a legislative judgment that an entity intending to enforce section 945.4's requirement of timely claim presentation should be required to notify the claimant promptly of a rejection not involving investigation of the merits. Despite this 45-day limit, the City allowed 81 days to pass without responding to Shevertalova's claim, and this lapse alone waived the defense the majority now revives.
The majority suggests that giving the statutorily prescribed notice of section 911.3, subdivision (a) "could ultimately be more confusing for the claimant, not less." (Maj. opn. ante, at p. 12.) Even if debatable policy questions were properly before us, I do not think the Legislature's language creates a significant risk of confusion. The language directs claimants to a statutory procedure, with citations, encourages claimants to apply without delay, and alerts claimants that not all applications are granted. While this may instill some modicum of false hope in some cases, the narrative is bolstered by statutory citations that provide a means for claimants to evaluate their rights (in tandem with language urging them to consult with an attorney "immediately.") (§ 911.3, subd. (a).)
The statutory notice presents less risk of confusion and no more false hope than the City's notice here: "[T]he claim for damages you presented . . . is rejected by operation of law . . . [¶] WARNING [¶] 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. 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." Comparing the advisement prescribed in section 911.3, subdivision (a) to what the City issued, I do not view their relative clarity or risk of confusion as the majority does.
"(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. [¶] (2) If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action. If the period within which the public entity is required to act is extended pursuant to subdivision (b) of Section 912.4, the period of such extension is not part of the time limited for the commencement of the action under this paragraph. [¶] (b) When a person is unable to commence a suit on a cause of action described in subdivision (a) within the time prescribed in that subdivision because he has been sentenced to imprisonment in a state prison, the time limit for the commencement of such suit is extended to six months after the date that the civil right to commence such action is restored to such person, except that the time shall not be extended if the public entity establishes that the plaintiff failed to make a reasonable effort to commence the suit, or to obtain a restoration of his civil right to do so, before the expiration of the time prescribed in subdivision (a). [¶] (c) A person sentenced to imprisonment in a state prison may not commence a suit on a cause of action described in subdivision (a) unless he presented a claim in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division." (§ 945.6.)
The Legislature provided a bright-line rule of uniform application that is easy for public entities to follow. Public entities need only give timely notice that tracks the language of the statute. A public entity that follows the plain requirements of the statute in all covered cases is at no risk of waiver. It need not gauge the extent of untimeliness: all untimely claims warrant the same notice, whether or not the public entity believes the notice to be "an idle act," as amici curiae insists is always the case where a claim is presented more than a year after accrual.
By categorically conditioning preservation of the untimely presentation defense on notice of the provisions for submitting a late claim in a broad swath of cases, whatever its utility to any given claimant, the Legislature discourages the public entity from gambling on the presumed futility of a nonexistent section 911.4 application, in favor of an actual application and judicial review under section 946.6 or a claimant's informed decision not to pursue an application.
Amici curiae also argue that claimants should not be forced to go through the section 911.4 process where their claims are irretrievably tardy. But nothing in the statute forces claimants to submit an application; the notice simply permits claimants to make an informed decision.
At bottom, the result compelled by the plain language of the statute is defensible. The Legislature requires public entities to give certain claimants notice of their statutory rights, whether or not those rights will ultimately benefit them in their specific circumstances. If public entities fail to give the required notice, they waive a complete defense that would otherwise be available to them; just as plaintiffs who fail to present their claims otherwise subject themselves to that complete defense. This encourages public entities to give notice in all cases, protecting claimants whose entitlement to file a late claim may not be obvious. This also reduces the burden of compliance on public entities-to preserve the untimeliness defense they may use the language drafted by the Legislature in all section 911.2 cases they reject as untimely without conducting any further analysis. Rewriting the statute to reach what we perceive to be a fairer result in an individual case may undermine the broader incentive structure in a statutory scheme intended to apply to many cases.