Asbury v. City of Ukiah CA1/3

Filed 10/24/22 Asbury v. City of Ukiah CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
JAMES ASBURY,
Plaintiff and Appellant, A164615
v.
(Mendocino County
Super. Ct. No. 21CV00519)
CITY OF UKIAH,
Defendant and Respondent.
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
Undesignated statutory references are to the Government Code.
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In the interest of judicial efficiency and lacking prejudice to the City, we
deem the order — which is not appealable — to incorporate a judgment
of dismissal, and we construe the notice of appeal as encompassing the
judgment. (O’Grady v. Merchant Exchange Productions, Inc. (2019)
41 Cal.App.5th 771, 776, fn. 3.) In reciting the factual background, we accept
as true the well-pled allegations of the operative complaint (2710 Sutter
Ventures, LLC v. Millis (2022) 82 Cal.App.5th 842, 850), and we recite only
those facts necessary to resolve the appeal.
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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
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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.
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(§ 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
2 A plaintiff who has failed to present a claim during the six-month
period may make “a written application . . . to the public entity for leave to
present that claim.” (§ 911.4, subd. (a).) The application must be made
“within a reasonable time not to exceed one year after the accrual of the
cause of action and shall state the reason for the delay in presenting the
claim.” (Id., subd. (b).) Asbury did not avail himself of this procedure.
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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 untimely within 45 days after the claim is presented, else
a timeliness defense is waived. These statutes do not assist Asbury. Asbury
never presented a claim to the City prior to initiating litigation; accordingly,
the City was not required to notify him of the claim’s deficiencies or
untimeliness before filing a demurrer. (See Castaneda v. Department of
Corrections & Rehabilitation, supra, 212 Cal.App.4th at p. 1069.) The City
raised the claim presentation requirement defense “at the earliest
opportunity by demurring to the complaint on that ground.” (Donohue v.
State of California (1986) 178 Cal.App.3d 795, 805; see also City of Stockton
v. Superior Court (2007) 42 Cal.4th 730, 746 [no waiver where public entity
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raised presentation defense on demurrer]; Lowry v. Port San Luis Harbor
Dist., supra, 56 Cal.App.5th at p. 221 [defendant timely asserted defense in
its responsive pleading].)
We conclude the trial court properly determined the lawsuit is barred
by Asbury’s failure to comply with the claim presentation requirements. We
therefore need not decide whether the amended complaint states a cause of
action for negligence, and we reject Asbury’s suggestion that his failure to
comply with the presentation requirements may be excused because the City
had actual notice of the incident. Likewise, we do not consider whether leave
to amend should have been granted because Asbury does not raise the issue.
(California Business & Industrial Alliance v. Becerra (2022) 80 Cal.App.5th
734, 741.)
DISPOSITION
The order sustaining the demurrer to the amended complaint without
leave to amend is affirmed. The parties are to bear their own costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(5).)
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A164615
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