Connelly v. County of Fresno

• Decision Date: 22 December 2006
• Docket Number: No. F049021.,F049021.
• Citation: 146 Cal.App.4th 29,52 Cal.Rptr.3d 720
• Parties: Karen CONNELLY, Plaintiff and Appellant, v. COUNTY OF FRESNO, et al. Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

52 Cal.Rptr.3d 720

146 Cal.App.4th 29

Karen CONNELLY, Plaintiff and Appellant, v. COUNTY OF FRESNO, et al. Defendant and Respondent.

No. F049021.

Court of Appeal, Fifth District.

December 22, 2006.

Jacobson, Hansen, Najarian & McQuillan, Jube J. Najarian, Leith B. Hansen, Fresno; Darrel R. Rustigian, Fresno, for Plaintiff and Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth, Brian M. Arax, Todd W. Baxter and Shane M. Cahill, Fresno, for Defendants and Respondents.

OPINION

GOMES, J.

Plaintiff Karen Connelly (Connelly) appeals from the judgment entered after the trial court granted summary judgment in favor of defendants County of Fresno (County) and Kristina Elizabeth Martinez (Martinez) (collectively respondents). We will reverse.

FACTS AND PROCEDURAL HISTORY

Summary of Facts

On October 27, 1999, Connelly was involved in an automobile accident when a County vehicle driven by County employee Martinez hit the pickup Connelly was driving. On December 8, 1999, Connelly served a "Claim for Damages," which was a preprinted County form, on the clerk of the County Board of Supervisors. On the form, Connelly identified the date of the injury or damage as October 27, 1999, stated the location of the accident, listed the police report as the source of witnesses' names, and named Martinez as the County employee involved. The claim form asked how the injury or damage occurred; Connelly responded "County vehicle went through stop sign and hit private owned Chev P-U." The form also asked what action or inaction of the County employee caused her injury or damage; Connelly responded "The County acted negligently] by letting their driver operate a vehicle" and "[i]mproper driving—failure to obey stop sign—unsafe operation." The form also specifically asked "What injuries or damages did you suffer?" Connelly responded, "Damage to my '96 Chevy S-10 pickup—Car Rental until my Truck is Replaced. Unspecified Medical, Lost Income, future Medical." Finally, the form asked "Total Amount Claimed[.]" Connelly responded "Unspecified." Connelly signed and dated the claim form. At the bottom of the form, below her signature, the form stated "Attach & include, with this completed form, any bills for medical treatment and expenses and any estimates or bills for personal property damage." No bills for medical treatment or property damage were attached to the claim form Connelly submitted.

In response to the claim, the County mailed Connelly a letter dated December 13, 1999, which stated her potential claim was "insufficient in that it fails to meet with requirements of Government Code Section 910 for the following insufficient information: [H] No dollar amount and No description of injuries." The letter advised Connelly she "may amend the claim to conform to the Government Code[,]" and failure to do so within 15 days of the notice "will result in its rejection as being insufficient." The letter further advised "[s]uch claim must be received by the County within six months of the incident which gives rise to the claim[,]" and if Connelly had any questions, she should call Tracy Meador.

On December 15, 1999, Connelly's husband, Robert Connelly, spoke with Meador by telephone and asked what they needed to do in response to the County's letter. According to Mr. Connelly, "Ms. Meador said it would be easy to fix the claim form." Meador instructed him to file a written amendment to the claim stating the total amount claimed is "`within the Superior Court limit.'" Mr. Connelly said Meador told him that to receive any settlement "my wife and I would have to submit specific documentation of the nature and amount of the property damage and car rental, and of my wife's personal injury." Mr. Connelly told her they "could provide documentation on the property damage and car rental, but that we did not yet know the nature of my wife's injuries, or what the resulting medical expenses and loss of income would be." Meador told Mr. Connelly "we could promptly settle the property damage and car rental by submitting the supporting documents at that time, while reserving the personal injury claim until we could submit adequate claim documentation to settle." Mr. Connelly asked if the personal injury documentation had to be submitted within 15 days of the letter's date or six months from the date of the incident. Meador responded it should be submitted within six months of the incident. According to Mr. Connelly, Meador instructed him to write in a letter: "I am Claiming only Property Damage, and Car Rental at this time, however, I request and reserve the right to file a claim for Personal Injury at a later time. Notably within 6 Months of the Incident which gave rise to this Claim." Meador also told Mr. Connelly "we could submit additional information regarding my wife's injuries when[] the doctors told us what was wrong with her."

Following this conversation, Mr. Connelly prepared a letter to the County dated December 15,1999, which Connelly signed. The letter stated it was in response to the County's December 13, 1999 letter and the telephone contact with Meador on December 15. The letter further stated, in pertinent part: "Please accept this letter as an amendment to the Original you received on Dec. 7, [19]99. [¶] I am also Enclosing copies of car rental bills to date. [¶] I Calculated the Vehicle as a Total using Fresnobee.com/// cars.com for local prices and have enclosed Copies. [¶] Reply # 1 for TOTAL AMOUNT CLAIMED= "Within The Superior Court limit". [¶] I am Claiming only Property Damage, and Car Rental at this time, however, I request and reserve the right to file a claim for Personal Injury at a later time. Notably within 6 Months of the Incident which gave rise to this Claim. [¶] Is this the Proper information to comply with GC Sec. 910 (insuff.Information)? [¶] Please reply within 5 days. [¶] I would appreciate being notified in advance of any procedure, protocol, or Deadlines that could be Detrimental to the fair conclusion of my claim."

No further amendments or claims were filed with respect to Connelly's claim and she provided no further information. Connelly never spoke with Meador on the telephone. The County paid Connelly's insurance carrier $6,668.77 for the property damage, and a release of all claims for property damage and loss of use was signed on March 7, 2000. Around March 8, 2000, Connelly received a notice of rejection and denial of her claim by the County Board of Supervisors.

According to Connelly, she learned from her doctors in May 2000 that she had serious injuries to her neck that would require surgery. Connelly subsequently had fusion surgery on her neck and later learned she would need back surgery.

This Lawsuit

On August 23, 2000, Connelly filed a complaint which named the County and Martinez as defendants and alleged one cause of action for negligence arising from the automobile accident. Connelly alleged she had complied with the applicable claims statute. Connelly sought damages for wage loss, hospital and medical expenses, general damages and loss of earning capacity. Connelly did not serve the complaint on the County until September 28, 2001. Respondents filed answers generally, denying the complaint's allegations and alleging as an affirmative defense failure to comply with the claims presentation requirements of the Government Tort Claims Act.

Respondents filed a motion for summary judgment, which contended they were entitled to summary judgment because Connelly failed to file a claim for personal injury within the statutory time limits of the Government Tort Claims Act. Connelly opposed the motion, arguing (1) the County was put on notice that she had a personal injury claim against it; (2) there is a triable issue of fact regarding whether Connelly intended to waive or withdraw her personal injury claim; (3) the County admitted in its discovery responses it had no evidence that a claim was not properly filed; and (4) the County is estopped from asserting the personal injury claim was either withdrawn or not made. In their reply brief, respondents asserted that (1) Connelly's claim did not substantially comply with the Tort Claims Act, as it failed to describe her injuries, and therefore was defective on its face; (2) since Connelly never made a valid personal injury claim, Connelly's argument that she never waived that claim is irrelevant; and (3) Connelly's estoppel claim is without merit, as she did not plead estoppel in the complaint and the facts do not support estoppel as a matter of law.

The trial court granted the motion. The court found that although Connelly filed a timely claim asserting property damage and personal injuries as a result of the incident, it was insufficient to support a personal injury claim against the County because it failed to state the nature or extent of Connelly's alleged injuries. The court further found the County's discovery responses did not preclude it from relying on the failure to file a proper claim in support of the summary judgment motion and Connelly's estoppel argument failed because she did not plead estoppel in the complaint and the evidence did not show the County acted unconscionably or frustrated her efforts to comply with the Tort Claims Act. After entry of judgment, Connelly filed a timely notice of appeal.

DISCUSSION

A. Standard of Review

The procedure for making and grounds for granting a motion for summary judgment are set forth in Code of Civil Procedure section 437c. The court must grant the motion if "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc, § 437c, subd. (c).) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (...