Opinion
B228965
11-14-2011
MARIA VALENZUELA, Plaintiff and Appellant, v. CITY OF PASADENA, Defendant and Respondent.
Law Offices of Moisés Vazquéz and Moisés Vazquéz for Plaintiff and Appellant. Michele Beal Bagneris, City Attorney, and Frank L. Rhemrey, Assistant City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GC044855)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph F. DeVanon, Judge. Reversed.
Law Offices of Moisés Vazquéz and Moisés Vazquéz for Plaintiff and Appellant.
Michele Beal Bagneris, City Attorney, and Frank L. Rhemrey, Assistant City Attorney, for Defendant and Respondent.
Maria Valenzuela appeals from the judgment of dismissal entered after the trial court sustained without leave to amend the City of Pasadena's demurrer to her complaint alleging causes of action for general negligence and dangerous condition of public property. Valenzuela contends that, in ruling she had failed to file her complaint within the six-month limitation period established by Government Code section 945.6, the trial court improperly relied on the declaration of the City of Pasadena's claims coordinator to determine the date of mailing of the written notice of rejection of her claim. We agree and reverse.
Statutory references are to the Government Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Valenzuela alleges on February 14, 2009 she tripped on a raised, uneven portion of the sidewalk on the east side of El Molino Avenue in the City of Pasadena and fell. As a result of the fall, she fractured her left patella, requiring surgery, sustained abrasions to her right elbow and knee and was jarred and shaken throughout her body. According to Valenzuela's complaint the City knew, or reasonably should have known, that the roots of nearby trees had grown to such a size as to raise portions of the sidewalk, creating a dangerous condition; she also alleged the City knew or reasonably should have known of the sidewalk's dangerous condition a sufficient time prior to February 14, 2009 to have taken measures to correct the dangerous condition.
Pursuant to section 911.2 Valenzuela, through her counsel, Moisés Vazquez, filed a claim for damages (Government Tort Claim) with the City dated July 15, 2009. The claim stated Valenzuela's damages, based on her medical expenses to date, were $95,000. In a letter dated September 14, 2009 the City notified Valenzuela her claim "was rejected by operation of law on September 7, 2009." The rejection letter also contained a warning that, subject to certain exceptions, Valenzuela had six months from the date the notice was personally delivered or deposited in the mail to file a state court action on her claim. The rejection letter was signed by Robert P. Hays, claims coordinator.
Although dated July 15, 2009, Valenzuela's claim was apparently sent by certified mail to the City on July 22, 2009 and received on July 24, 2009.
Section 915, subdivision (a)(2), provides a claim may be "presented" to a local public entity by mailing it to the clerk, secretary, auditor or governing body at its principal office. Section 912.4, subdivision (a), requires the governing board of the local public entity to act on a claim within 45 days after the claim has been presented. Section 912.4, subdivision (c), provides, if the board fails or refuses to act on a timely filed claim within 45 days after the claim has been presented, "the claim shall be deemed to have been rejected by the board on the last day of the period within which the board was required to act upon the claim."
Valenzuela, still represented by Vazquez, filed her complaint for damages on March 16, 2010. The complaint attached as an exhibit a copy of the July 15, 2009 claim letter but not the September 14, 2009 rejection letter. On August 2, 2010 the City demurred to the complaint on the ground the entire action was barred by the applicable six-month statute of limitations, which, according to the City, expired on March 14, 2010. In support of its demurrer the City provided a declaration from Hays authenticating copies of Valenzuela's claim letter and the City's September 14, 2009 rejection letter, both of which were attached, and noted that Code of Civil Procedure section 430.70 authorized the use of judicial notice pursuant to Evidence Code sections 452 and 453 for purposes of ruling on a demurrer. The City also contended the first cause of action was improper because an action for public property defects cannot be pleaded in general negligence and the second cause of action failed to allege sufficient facts to plead a dangerous condition of public property under the Government Code.
In her opposition to the demurrer, Valenzuela acknowledged the rejection letter bore a date of September 14, 2009 but asserted, "It is unknown when the letter was actually mailed as no Proof of Service or Declaration of Mailing is attached or was submitted with defendant's demurrer." Valenzuela noted that, if the mailing was not completed until September 15, 2009, the complaint was timely and argued, in any event, the purported limitations defect did not appear on the face of the complaint and was not properly raised by demurrer. She also contended that the six months limitation period, triggered by personal delivery or mailing the notice of rejection, should be extended for five days pursuant to Code of Civil Procedure 1013, subdivision (a), when, as here, the notice was given by mail.
In its reply in support of the demurrer, the City provided a supplemental declaration from Hays in which he stated, "This notice of rejection by operation of law was written by me and mailed to the claimant's attorney on September 14, 2009, by posting the notice in the U.S. Mail."
At the hearing on the demurrer Vazquez argued it was improper to consider factual issues (when the rejection letter was mailed) on a demurrer and particularly evidence presented only in the demurring party's reply papers. In any event, he insisted, Hays's supplemental declaration did not say he mailed the notice on September 14, 2009, but rather that it was "posted" on that date, an ambiguous term that could include leaving it to be picked up for mailing the following day.
The court sustained the demurrer without leave to amend, explaining in its minute order, "The action is barred by Government Code 945.6, which requires a complaint to be filed within 6 months of the rejection of the tort claim. In this case, plaintiff's claim was rejected by the City on September 14, 2009. Under GonzaIe[s] v. County of Los Angeles (1988) 199 CA 3d 601, Plaintiff had either 6 calendar months or 182 days to file a lawsuit, whichever was longer. Six months after the rejection was March 14, 2010. This means that plaintiff had until March 15, 2010, which was 182 days from the rejection, to file this lawsuit. The action was not filed until March 16, 2010. There is no five-day extension for mailed notices. CCP 1013(a) does not apply to notices of rejection of claims. [Citation.]"
DISCUSSION
1. Standard of Review
On appeal from an order dismissing an action after the sustaining of a demurrer, we independently review the pleading to determine whether the facts alleged state a cause of action under any possible legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We may also consider matters that have been judicially noticed. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; see Serrano v. Priest (1971) 5 Cal.3d 584, 591) We give the complaint a reasonable interpretation, "treat[ing] the demurrer as admitting all material facts properly pleaded," but do not "assume the truth of contentions, deductions or conclusions of law." (Aubry, at p. 967; accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; see Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20 [demurrer tests sufficiency of complaint based on facts included in the complaint, those subject to judicial notice and those conceded by plaintiffs].) We liberally construe the pleading with a view to substantial justice between the parties. (Code Civ. Proc., § 452; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
'""A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred. [Citation.] In order for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint [and matters subject to judicial notice]; it is not enough that the complaint shows the action may be barred."'" (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, supra, 48 Cal.4th at p. 42; Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781; Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 224; see also Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421 [although general demurrer does not ordinarily reach affirmative defenses, it "'will lie where the complaint "has included allegations that clearly disclose some defense or bar to recovery"'"].)
2. Gonzales v. County of Los Angeles and the Limitations Period for Filing an Action Against a Public Entity
Section 945.6, subdivision (a), provides, with several exceptions not pertinent here, "[A]ny suit brought against a public entity on a cause of action for which a claim is required to be presented . . . 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. . . ." In Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601 (Gonzales) this court interpreted the six-month period specified in section 945.6 to mean six calendar months or 182 days after the claims rejection notice is mailed, whichever is longer. (Id. at pp. 604, 605.)
Section 913 specifies the required content of the written notice of an inaction that is deemed a rejection under section 912.4, including the warning that a court action must be filed within six months from the date the notice was personally delivered or deposited in the mail (§ 913, subd. (b)), and directs the notice be given in the manner prescribed by section 915.4 (§ 913, subd. (a)). Section 915.4, subdivision (a), in turn, requires notice be given either by personally delivering it to the person presenting the claim or by mailing notice to the address, if any, stated in the claim as the address to which the person presenting the claim desires notices to be sent or by mailing the notice to the address, if any, of the claimant as stated in the claim. Although Valenzuela questions the date on which the City's notice was mailed, she does not contend the form of the notice or method of delivery was improper.
As the trial court ruled, it has long been established that the six-month limitations period in section 945.6 starts when the notice of rejection, if not personally served, was deposited in the mail; the time is not extended by five additional days by Code of Civil Procedure section 1013, subdivision (a). (Smith v. City and County of San Francisco (1977) 68 Cal.App.3d 227, 231-232 ["Code of Civil Procedure section 1013 does not operate to extend the time, following deposit in the mail of a written rejection of a claim against a public entity under the Tort Claims Act, within which an action on the claim must be commenced"]; Edgington v. County of San Diego (1981) 118 Cal.App.3d 39, 46; Cole v. Los Angeles Unified School Dist. (1986) 177 Cal.App.3d 1, 4.) Although Valenzuela argued in the trial court she was entitled to Code of Civil Procedure section 1013's five-day extension of the six-month limitation period, she has abandoned that contention on appeal.
In Gonzales summary judgment had been granted by the trial court in favor of defendant Los Angeles County on the sole ground that plaintiffs' action, filed 182 days after notice of the county's rejection of their claim, was barred by the six-month statute of limitations of section 945.6: The rejection notice was mailed on January 20, 1983; the complaint for damages asserting various tort theories was filed July 21, 1983. (Gonzales, supra, 199 Cal.App.3d at p. 603.) Justice Thompson explained in his opinion for our court, "The basic problem with the computation of the limitation period herein arises from the irregularity in the number of days in a month in our calendar. As a result, although six calendar months always equals one half year, the number of days contained in six calendar months varies, ranging from 181 to 184 days." (Id. at p. 604.) This latent ambiguity created by the variation in the length of a calendar month was compounded by the possible inconsistency between section 6804, which provides '"[m]onth' means a calendar month, unless otherwise expressed" and section 6803, which provides '"[y]ear' means a period of 365 days; 'half year,' 182 days . . . ," when, in ordinary usage, "'half a year must be the equivalent of six months.'" (Gonzales, at p. 604., quoting Davis v. Thayer (1980) 113 Cal.App.3d 892, 902 [construing the term "six months" in Code Civ. Proc., § 473 in light of Gov. Code, § 6803 to mean 182 days and on that basis finding motion to set aside default timely].) Accordingly, we held a governmental tort claims action is timely if filed within six calendar months or 182 days after the claims rejection notice is mailed, a conclusion that "not only harmonizes sections 6803 and 6804 but also comports with the strong public policy in favor of giving a litigant his day in court." (Gonzales, at p. 605; cf. City of Los Angeles v. Superior Court (1993) 14 Cal.App.4th 621, 629 [suit filed more than six months or 182 days after written denial of claim was untimely].)
As we noted in Gonzales, by counting the actual days in specific months, a plaintiff whose claim rejection notice was mailed in March has 184 days in which to file a lawsuit. (Gonzales, supra, 199 Cal.App.3d at p. 606.) Valenzuela's suggestion, based on this calendar anomaly, that we give all plaintiffs 184 days in which to file their civil actions against a public entity—that is, interpret the term "six months" as used in section 945.6 to always mean 184 days—conflicts not only with the holding and rationale of Gonzales but also with the language of the governing provisions of the Government Code.
3. The Trial Court Improperly Resolved a Factual Issue When Sustaining the City's Demurrer to Valenzuela's Complaint
"The statutory period of limitations for actions against a public entity are mandatory and must be strictly complied with. [Citations.] A failure to start the action within the statutory time period is a valid ground for dismissal of the action." (Cole v. Los Angeles Unified School Dist. (1986) 177 Cal.App.3d 1, 5 [affirming motion for judgment on the pleadings]; accord, Smith v. City and County of San Francisco (1977) 68 Cal.App.3d 227, 231-232 [affirming summary judgment].)
Valenzuela's lawsuit was filed on Tuesday, March 16, 2010, 183 days and more than six calendar months after the September 14, 2009 date of the City's claims rejection notice. If the notice was deposited in the mail on September 14, 2009, the lawsuit is untimely and is properly dismissed. Notwithstanding the date on the notice itself, however, if it was not deposited in the mail until the following day, September 15, 2009, Valenzuela's lawsuit is timely.
March 14, 2010, six calendar months after September 14, 2009, was a Sunday. Pursuant to Code of Civil Procedure section 12a, subdivision (a), if Valenzuela were required to file her civil action within six calendar months of September 14, 2009, the period would have been extended to Monday, March 15, 2010.
In concluding Valenzuela's lawsuit was untimely, the trial court necessarily found the claims rejection notice had been deposited in the mail on September 14, 2009, as the City asserts. The City certainly may be able to prove its contention; but that fact is not alleged in the complaint and has not been admitted by Valenzuela, who acknowledges only that her counsel received the notice on September 16 or 17, 2009, which she argues would be consistent with it actually having been mailed on September 15, 2009. Moreover, at least in the absence of a proof of service that complies with the requirements of Code of Civil Procedure section 1013a, the date of mailing of a document is not a proper matter for judicial notice under Evidence Code section 452, subdivision (h), which permits judicial notice of facts that are "widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like . . . ." (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) Depending as it does here on the testimony of one of the City's employees, the date of mailing of the claims rejection notice is neither a fact "not reasonably subject to dispute" nor one "capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy."
Hays's supplemental declaration regarding the date of mailing of the claims rejection notice does not state that he was the person who actually deposited (or "posted") the notice in the mail (although he does aver the notice "was written by me") or that he was readily familiar with his office's practices for collection and processing of correspondence for mailing and that under those practices the notice would be deposited with the United States Postal Service that same day in the ordinary course of business. (See Code Civ. Proc., § 1013a, subds. (1), (3); see also Evid. Code, § 702, subd. (a) [testimony of witness inadmissible unless he or she has personal knowledge of the matter].) In addition, the declaration does not identify the "place of deposit in the mail," as required by Code of Civil Procedure section 1013a.
Evidence Code section 452 provides, in part, "Judicial notice may be taken of the following matters . . . . [¶] . . . [¶] (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy."
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Valenzuela's complaint may well be time-barred. Because this defect does not clearly and affirmatively appear on the face of the complaint or by virtue of matters properly subject to judicial notice, however, the City's demurrer on that ground should have been overruled. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, supra, 48 Cal.4th at p. 42; Geneva Towers Ltd. Partnership v. City and County of San Francisco, supra, 29 Cal.4th at p. 781.)
DISPOSITION
The judgment is reversed and the matter remanded for further proceedings not inconsistent with this opinion. Valenzuela is to recover her costs on appeal.
PERLUSS, P. J. We concur:
WOODS, J.
JACKSON, J.