Roy-Condron v. Nazario
| Decision Date | 01 February 2017 |
| Docket Number | B263468 |
| Parties | LILIANE ROY-CONDRON, Plaintiff and Appellant, v. EVELYN NAZARIO et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NC057546)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ross M. Klein, Judge. Affirmed.
Curd Galindo & Smith and Alexis Galindo for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Kristin G. Hogue, Assistant Attorney General, Richard J. Rojo and Daniel G. Eskue, Deputy Attorneys General, for Defendant and Respondent the Board of Trustees of California State University.
____________________ Plaintiff and appellant Liliane Roy-Condron appeals the judgment entered after the trial court granted the motion of defendant and respondent Board of Trustees of California State University (CSU) for judgment on the pleadings, based on Roy-Condron's failure to timely present a claim with CSU as required by the Government Claims Act (the Act). We affirm the judgment.
On October 21, 2011, at 7:42 a.m., Roy-Condron was walking eastbound in a crosswalk on Ocean Boulevard in Long Beach.1 Defendant Evelyn Nazario, who was driving her Honda Civic, struck Roy-Condron as Nazario made a left turn. Nazario was allegedly acting in the course and scope of her employment at the time.
On May 2, 2012, Roy-Condron filed an unverified complaint against Nazario and Doe defendants in Los Angeles County Superior Court, alleging a single cause of action for negligence.2
On December 4, 2012, Roy-Condron mailed a "Governmental Tort Claim" (hereinafter Claim) along with an "Application for Late Filing of Governmental Tort Claim" (hereinafter Application for Late Filing) to the State Board of Control. On December 28, 2012, the Victim Compensation and Government Claims Board, which had received the Claim andApplication for Late Filing, informed Roy-Condron's counsel by mail that it lacked jurisdiction to consider the Claim because as of January 1, 2011 all claims against CSU had to be filed with CSU's Office of Risk Management and Public Safety. (See Gov. Code, §§ 912.5, 915, subd. (d).)3
On approximately January 7, 2013, Roy-Condron's counsel mailed the Claim to CSU. The Claim stated that Roy-Condron had discovered on October 3, 2012 that Nazario was employed by CSU and was driving to work when the accident occurred. On November 30, 2012, Roy-Condron discovered that CSU derived a benefit from Nazario's use of her own vehicle, and therefore the "required vehicle exception" applied to exempt Nazario from the "going and coming rule," supporting a theory that CSU was vicariously liable for the accident. The Claim stated, in both the caption and the body of the document, that it was being filed concurrently with the Application for Late Filing.
The Application for Late Filing - which bore the State Board of Control's address, rather than CSU's - reiterated the information in the Claim. Further, it explained that plaintiff had learned through discovery that Nazario used her personal vehicle for CSU travel and as a result CSU received a benefit from her use of her personal vehicle. Plaintiff had no knowledge of Nazario's employment or work-related use of her personal vehicle within the six months following the accident.
The parties disagree about whether the Application for Late Filing was actually included with the Claim sent to CSU. Roy-Condron's counsel averred in a declaration offered inopposition to CSU's motion for judgment on the pleadings that both the Claim and the Application for Late Filing were served on CSU. Zachary Gifford, the Associate Director of CSU's Office of Systemwide Risk Management & Public Safety, stated in his declaration in support of the motion that he received the Claim, but not the Application for Late Filing. Nonetheless, he "considered [the Claim] to be a request for leave to present a late claim."
On January 15, 2013, Gifford informed Roy-Condron's counsel via mail that Roy-Condron's claim had been rejected. The letter stated: The letter did not state that the Application for Late Filing had been denied or that the Claim was being treated as such an application. The letter indicated a copy had been sent to Richard Maynard at the Office of Risk and Insurance Management.
On January 17, 2013, Roy-Condron filed an amendment to her complaint in the trial court, substituting CSU for a Doe defendant.4 She did not amend or seek leave to amend her complaint to allege compliance with the Act.
Plaintiff's counsel received a letter dated January 18, 2013, from Maynard, indicating Maynard had concluded his investigation of Roy-Condron's claim and was denying it on the merits. The letter advised that if Roy-Condron disagreed she had to file and serve the summons and complaint within six months. Maynard requested that counsel forward to him copies of the complaint and Nazario's deposition.
On February 22, 2013, CSU answered the complaint with a general denial and alleged 13 affirmative defenses, including that plaintiff had failed to timely comply with the Act's claim presentation requirements.
On December 23, 2013, the trial court denied CSU's motion for summary judgment.5
On September 18, 2014, CSU moved for judgment on the pleadings (Code Civ. Proc., § 438) on the ground Roy-Condron's complaint failed to plead timely compliance with or excusal of the Act's claim presentation requirements.6 CSU argued that theclaim accrued on the date of the accident, October 21, 2011; Roy-Condron's January 8, 2013 Application for Late Filing was denied; and she thereafter failed to "perfect her right" to sue CSU by petitioning for relief in the superior court pursuant to section 946.6. Roy-Condron opposed the motion, arguing CSU was estopped and had waived its right to assert noncompliance with the claim presentation statutes.
The trial court granted the motion for judgment on the pleadings without leave to amend. It took judicial notice of Roy-Condron's January 9, 2013 Claim, CSU's January 15, 2013 letter rejecting the Claim, and the It found that Roy-Condron alleged the date of the accident was October 21, 2011; failed to allege compliance with the Act; did not present a claim within six months of the accident as required by section 911.2; presented the Application for Late Filing more than one year after the accident; and did not obtain relief pursuant to a section 946.6 petition in the trial court. Section 911.3's waiver provisions were inapplicable, and there was no basis for equitable estoppel.
Roy-Condron's timely notice of appeal was filed on April 13, 2015.7 (Cal. Rules of Court, rule 8.104(a); Code Civ. Proc., §§ 904.1, 581d.)
" 'A motion for judgment on the pleadings, like a general demurrer, challenges the sufficiency of the plaintiff's cause of action and raises the legal issue, regardless of the existence of triable issues of fact, of whether the complaint states a cause of action.' " (Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1060 (Castaneda); Sykora v. State Dept. of State Hospitals (2014) 225 Cal.App.4th 1530, 1534.) On appeal, we apply the same standard of review as with a general demurrer. (Castaneda, at p. 1060; Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298 (Dunn).) We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (DiPirro, supra, 119 Cal.App.4th at p. 972; Castaneda, at p. 1060.)
All properly pleaded material facts alleged in the pleading are deemed to be true; contentions, deductions, and conclusions of law are not. (Dunn, supra, 135 Cal.App.4th at p. 1298; DiPirro, supra, 119 Cal.App.4th at p. 972.) We may also consider matterssubject to judicial notice and evidence outside the pleadings which the trial court considered without objection. (Dunn, at p. 1298; Castaneda, supra, 212 Cal.App.4th at p. 1060; DiPirro, at p. 972; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1773, fn. 2 (Munoz).) Denial of leave to amend after a grant of judgment on the pleadings is reviewed for abuse of discretion. (Rice v. Center Point, Inc. (2007) 154 Cal.App.4th 949, 959; Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448.) To show abuse, the plaintiff has the burden of demonstrating there is a reasonable possibility he or she could cure the defect with an amendment. (Shimmon v. Franchise Tax Bd. (2010) 189 Cal.App.4th 688, 692-693; Rice, at p. 959; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
The Act, sections 810 et seq., requires that "[b]efore suing a public entity, a plaintiff must present a timely written claim for damages to the entity." (E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736, 744.) The Act establishes a uniform claims procedure, including prescribing deadlines for both the filing of claims with public entities and for the commencement of litigation. (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, 480.) The Act's purpose is to provide the public entity with...
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