Real v. City of Riverside

• Decision Date: 10 January 2002
• Docket Number: No. E029238.,E029238.
• Citation: 95 Cal.App.4th 761,115 Cal.Rptr.2d 705
• Court: California Court of Appeals Court of Appeals
• Parties: Maria DEL REAL, Plaintiff and Appellant, v. CITY OF RIVERSIDE et al., Defendants and Respondents.

115 Cal.Rptr.2d 705

95 Cal.App.4th 761

Maria DEL REAL, Plaintiff and Appellant, v. CITY OF RIVERSIDE et al., Defendants and Respondents.

No. E029238.

Court of Appeal, Fourth District, Division 2.

January 10, 2002.

William C. Kennedy & Associates and William C. Kennedy, Riverside, for Plaintiff and Appellant.

Hyland & Watson, Charles J. Hyland; Gregory P. Priamos, Interim City Attorney; Greines, Martin, Stein & Richland, Timothy T. Coates and Carolyn Oill, Beverly Hills, for Defendants and Respondents.

OPINION

RAMIREZ, P.J.

Maria Del Real (Del Real) appeals from a judgment¹ entered in favor of City of Riverside (City) and Eric Charrette (Charrette, collectively Defendants), after their motion for summary judgment was granted. The trial court based its order granting summary judgment on a finding that Del Real had failed to file a timely government tort claim as required by Government Code section 900 et seq.,² and therefore could not maintain her action. She claims that this was error. We disagree and affirm.

FACTS AND PROCEDURAL HISTORY

This case arises out of an automobile accident that occurred on November 22, 1997 (the accident), between vehicles driven by Del Real and Charrette, a police officer. Del Real alleges that Charrette was acting within the course and scope of his employment with City at the time of the accident.

On March 10, 1998, Del Real's attorney sent a letter to Charrette, indicating that he had been consulted about the accident and that he was in the process of investigating it. The letter requests Charrette's account of the accident and seeks information about witnesses. It also requests that the letter be forwarded to Charrette's insurance company "so that we can deal directly with them and minimize further inconvenience to you." In the alternative, it requests a signature certifying that there was no insurance coverage for the accident. On March 19, 1998, the office of the city attorney for the City responded to the March 10 letter indicating that Charrette was represented by that office and would not be providing any statement concerning the accident. It also indicated that all further contact with Charrette should be made through the city attorney's office.

On August 7, 1998, City received an application from Del Real for permission to present a late claim, along with a proposed claim for injuries sustained in the accident. The application asserted that the claim was not timely filed due to a mistake as to the appropriate time for filing and due to the mistaken belief that the injuries would subside. On August 20, 1998 City notified Del Real that her application for leave to present a late claim was denied, and advised her that should she desire to file a court action, she would need to seek relief from the claims filing requirements of the Government Code within six months. Del Real filed a petition, but it was not received by the court until September 9, 1999. Then, according to her own admission, the petition was withdrawn before it was ruled upon.

On or about November 20, 1998, the date in the record is unclear, Del Real, and two others not parties to this appeal, filed a complaint against Defendants seeking recompense for property damage, personal injury, emotional distress and also seeking punitive damages as a result of the accident. She alleged compliance with the claims filing requirements. Defendants subsequently filed a motion for summary judgment or in the alternative summary adjudication of each of Del Real's causes of action, based upon Del Real's failure to comply with the mandatory claims filing provisions of the Government Code. Del Real opposed the motion on the ground that her March 10, 1998, letter to Charrette was sufficient to constitute a claim under the Government Code. The trial court was not convinced and summary judgment was granted after a hearing on February 28, 2001. Judgment was entered for defendants on March 19, 2001. This appeal followed.

DISCUSSION

A. Del Real's Jurisdictional Argument Lacks Merit

In her reply brief, Del Real argues for the first time that the trial court lacked jurisdiction to rule on Defendants' motion for summary judgment because her counsel refused to stipulate that the motion for summary judgment could be heard by a temporary judge. The California Constitution, article VI, section 21 provides that "[o]n stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause." Absent a valid stipulation, a temporary judge has no jurisdiction to act and any actions purportedly taken are therefore void. (In re Horton (1991) 54 Cal.3d 82, 90, 284 Cal.Rptr. 305, 813 P.2d 1335.)

The only evidence in the record that has anything at all to do with this issue is a brief colloquy between counsel and the trial court at the time of the hearing. The trial court stated that "the stipulation does indicate it's for all matters, and so I believe since you did stipulate before that I have no ability to send this to another department." Counsel responded, "I understand. I just wanted to preserve [the objection] for the record." Although the record does not contain the stipulation that the trial court was apparently referring to, Del Real's assertions in her reply brief support the conclusion that her counsel had previously signed a stipulation authorizing the temporary judge to hear and rule on "all matters," including the instant motion for summary judgment.

The reply brief points to the "vehement" and "powerful" objections, characterizations that are belied by the record, made at the commencement of the hearing, and asserts that they should have led to counsel being afforded the opportunity to withdraw his stipulation pursuant to California Rules of Court, rule 244(f) (which the brief incorrectly identifies as rule 244(g)). The suggestion that the trial court was under some obligation to inform counsel of his right to petition to withdraw his stipulation and then, of its own accord, offer him additional time to do so is utterly lacking in support and in merit. It has long been held that counsel is presumed to know the law. (King v. Superior Court (1936) 12 Cal.App.2d 501, 509, 56 P.2d 268.) Further, there is no evidence in the record that counsel ever requested, either orally or in writing, that he be allowed to file a motion to withdraw his stipulation. The record demonstrates that counsel was aware, well in advance of the hearing, that it would be presided over by a temporary judge. Still, it does not appear that he undertook any effort to comply with the provisions of California Rules of Court, rule 244(f), regarding the withdrawal of stipulations to temporary judges. The record before us does not reflect any good cause that might have been present to support the withdrawal, and counsel has not alleged any such good cause. Unless the presiding or designated judge, in his or her discretion, relieves a party from his or her stipulation, the party and the courts are bound by it. (Robinson v. Workers' Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 790, 239 Cal.Rptr. 841.)

It is the appellant's burden to demonstrate the existence of reversible error. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal App.4th 608, 626, 49 Cal.Rptr.2d 494.) Del Real has failed in that burden by failing to provide any evidence that there was not a valid stipulation to the commissioner in effect at the time of the hearing. On the record before us, we cannot conclude that the trial court acted outside its jurisdiction in hearing and ruling on the motion for summary judgment.

B. Standard of Review on Summary Judgment

The purpose of summary judgment "is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Our de novo review is governed by Code of Civil Procedure section 437c, which provides in subdivision (c) that a motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit. The pleadings govern the issues to be addressed. (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121, 84 Cal. Rptr.2d 361.) A defendant moving for summary judgment bears the burden of persuasion that there is no triable issue. Meeting this burden is accomplished by producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it. Once that has been accomplished, the burden shifts to the plaintiff to show, by producing evidence of specific facts, that a triable issue of material fact exists as to the cause of action or the defense. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849-851, 854-855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

C. Defendants' Showing Was Adequate to Shift the Burden

With certain enumerated exceptions that do not apply in this case, "no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented ... until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board ...."(§ 945.4.) The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail. (Wood v. Riverside General...