Asbury v. City of Ukiah

• Decision Date: 24 October 2022
• Docket Number: A164615
• Parties: JAMES ASBURY, Plaintiff and Appellant, v. CITY OF UKIAH, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

JAMES ASBURY, Plaintiff and Appellant, v. CITY OF UKIAH, Defendant and Respondent.

A164615

California Court of Appeals, First District, Third Division

October 24, 2022

NOT TO BE PUBLISHED

Mendocino County Super. Ct. No. 21CV00519

RODRIGUEZ, J.

James Asbury sued the City of Ukiah (City) for negligence. The trial court sustained the City's demurrer without leave to amend on the ground of noncompliance with the claim presentation requirements of the Government Claims Act (Gov Code, § 810 et seq.; Act).^[1] We affirm.

BACKGROUND

On July 17, 2020, Asbury and City employee Thomas Sheffer went to the City's wastewater treatment facility on Sheffer's invitation. Sheffer got into the driver's seat of an all-terrain vehicle (ATV) owned by the City. Asbury sat in the passenger seat, where the seat belt was caked with mud and did not fasten properly. Sheffer drove at an unsafe speed; as he made a sudden turn the ATV rolled over, and Asbury was ejected and suffered serious injuries. Sheffer was fired and charged with several crimes, including driving under the influence of alcohol causing injury.

On July 14, 2021 - almost a year later - Asbury filed a complaint against the City alleging a negligence cause of action. He also contemporaneously lodged with the superior court a "Claim For Money Or Damages Against The City Of Ukiah" (claim) with the word "Amended" handwritten above the title. (Notwithstanding the "amended" designation, there was no initial claim.) Asbury served the City with the complaint and claim about a week later. In mid-September, the City demurred, asserting the complaint failed to allege compliance with the Act's claim presentation requirements. The City noted the claim - lodged more than six months after the incident - was untimely, and it was not presented to the City before the complaint was filed. Thus, the complaint failed to state a cause of action against the City. The trial court agreed and sustained the demurrer with leave to amend as to the presentation requirements.

Asbury filed a first amended complaint (amended complaint) alleging he served the City with the initial complaint and the claim in July 2021, and by failing to notify him of the defects in the claim, the City waived any defense based on his failure to comply with the claim presentation requirements. He also alleged the City had actual notice of the incident as it had terminated Sheffer's employment. Again the City demurred, arguing the amended complaint failed to allege facts demonstrating compliance with the presentation requirements. The City offered a declaration from the City clerk stating Asbury did not present a claim to the City before filing the lawsuit.

Over Asbury's opposition, the trial court sustained the demurrer without leave to amend. It concluded Asbury had not alleged compliance with the claim presentation requirements, which require a claim "be filed and served on the public entity prior to filing any action." The reason for these requirements, the court explained, was "obvious. The public entity needs to be put on notice of the claim, have an opportunity to investigate the claim, and accept or reject the claim. If rejected, the [plaintiff] then can file his action." By filing the claim with the court - and serving it on the City together with the complaint - Asbury prevented the City from reviewing the claim and deciding whether to accept or reject it. The court also determined the claim was untimely and Asbury "failed to avail himself of the appropriate procedures to file a 'late' claim." Finally, the court found no reasonable possibility these defects could be cured by an additional amendment.

DISCUSSION

The Act establishes conditions precedent to the filing of lawsuits against public entities. (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1219.) Subject to exceptions not relevant here, a plaintiff must present a claim for "money or damages" - which includes a personal injury claim arising from negligence - to the public entity no later than six months after the cause of action accrues. (§§ 905, 911.2, subd. (a); State of California v. Superior Court (2004) 32 Cal.4th 1234 1239.) The purpose of this requirement is to allow the entity to investigate the claim and, if appropriate, settle it without litigation. (Simms v. Bear Valley Community Healthcare Dist. (2022) 80 Cal.App.5th 391, 397.) The claim must be presented to the entity by delivering or mailing it to the entity's clerk, secretary, or auditor.

(§ 915, subds. (a)(1)-(2).) Only after the entity has acted on - or has deemed to have rejected - the claim may the plaintiff file a lawsuit alleging a tort cause of action. (J.J., at p. 1219.)

Compliance with the claim presentation requirements is mandatory (Castaneda v. Department of Corrections &Rehabilitation (2013) 212 Cal.App.4th 1051, 1061), even when the public entity has actual knowledge of the circumstances of the claim. (J.J. v. County of San Diego, supra, 223 Cal.App.4th at p. 1219.) Failure to timely present a claim bars the plaintiff from filing a lawsuit against the entity.^[2] (Ibid.) A complaint that fails to allege facts demonstrating or excusing compliance with the presentation requirements is vulnerable to a demurrer. (Lowry v. Port San Luis Harbor Dist. (2020) 56 Cal.App.5th 211, 218.)

The trial court concluded the lawsuit was barred by Asbury's failure to comply with the claim presentation requirements. Reviewing the order de novo, we find no error. (2710 Sutter Ventures, LLC v. Millis, supra, 82 Cal.App.5th at p. 850.) Asbury's negligence cause of action accrued on July 17, 2020, when the incident occurred. (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 778-779.) He had six months from that date to present a claim. The deadline came and went - Asbury did not present a claim. Indeed, Asbury never properly presented a claim at all. Lodging the claim with the superior court did not satisfy the presentation requirements because the county superior court and the City are separate and distinct entities; the superior court is not a statutorily designated recipient for claims against the City. (See DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 989, 991; Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 203-204.) The City eventually received the claim on July 22, 2021 - well beyond the six-month deadline - when Asbury served the City with the complaint and the claim. By serving the claim contemporaneously with the complaint, Asbury deprived the City of an opportunity to investigate the dispute and settle it without litigation. (See Lowry v. Port San Luis Harbor Dist., supra, 56 Cal.App.5th at pp. 219-221; J.J. v. County of San Diego, supra, 223 Cal.App.4th at p. 1219.)

Asbury does not argue to the contrary. Instead, he insists the City waived this defense by failing to timely notify him of the deficiencies in the claim pursuant to sections 910.8 and 911.3. Section 910.8 requires the board of a public entity or its designee to give written notice of a defective claim within 20 days after the claim is presented; failure to do so waives the defect. (§ 911.) Section 911.3 requires the board or its designee to give written notice the claim is...