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This case was last updated from Los Angeles County Superior Courts on 06/12/2021 at 01:58:15 (UTC).

KEITH ROGERS, ET AL. VS COUNTY OF LOS ANGELES, ET AL.

Case Summary

On 03/29/2019 KEITH ROGERS filed a Personal Injury - Motor Vehicle lawsuit against COUNTY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3152

  • Filing Date:

    03/29/2019

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiffs

PAYTON MIESHA

ROGERS KEITH

Defendants

FLORES DANIEL

COUNTY OF LOS ANGELES

Attorney/Law Firm Details

Plaintiff Attorney

BERSHATSKI ERIC S

Defendant Attorney

THOMAS ALLEN

 

Court Documents

Notice (name extension) - Notice of Entry of Judgement

6/2/2021: Notice (name extension) - Notice of Entry of Judgement

Notice (name extension) - Notice of Errata

4/16/2021: Notice (name extension) - Notice of Errata

Minute Order - Minute Order (Hearing on Motion for Summary Judgment; Hearing on Motion to ...)

5/25/2021: Minute Order - Minute Order (Hearing on Motion for Summary Judgment; Hearing on Motion to ...)

Order (name extension) - Order Proposed Order

5/26/2021: Order (name extension) - Order Proposed Order

Minute Order - Minute Order (Hearing on Motion for Order Appointing Plaintiff Miesha Payto...)

2/8/2021: Minute Order - Minute Order (Hearing on Motion for Order Appointing Plaintiff Miesha Payto...)

Notice of Ruling - Notice of Ruling

2/10/2021: Notice of Ruling - Notice of Ruling

Minute Order - Minute Order (Hearing on Motion for Order Appointing Plaintiff Miesha Payto...)

3/11/2021: Minute Order - Minute Order (Hearing on Motion for Order Appointing Plaintiff Miesha Payto...)

Minute Order - Minute Order (Hearing on Motion for Summary Judgment; Hearing on Motion to ...)

4/1/2021: Minute Order - Minute Order (Hearing on Motion for Summary Judgment; Hearing on Motion to ...)

Motion for Order (name extension) - Motion for Order Notice of Motion and Motion for Order Appointing Plaintiff Miesha Payton as Successor in Interest to Plaintiff/Decedent Keith Rogers

1/6/2021: Motion for Order (name extension) - Motion for Order Notice of Motion and Motion for Order Appointing Plaintiff Miesha Payton as Successor in Interest to Plaintiff/Decedent Keith Rogers

Notice of Posting of Jury Fees - Notice of Posting of Jury Fees

4/9/2020: Notice of Posting of Jury Fees - Notice of Posting of Jury Fees

Separate Statement - Separate Statement

4/28/2020: Separate Statement - Separate Statement

Notice (name extension) - Notice of Continuance of Motion for Summary Judgment

5/14/2020: Notice (name extension) - Notice of Continuance of Motion for Summary Judgment

Minute Order - Minute Order (Hearing on Ex Parte Application FOR AN ORDER CONTINUING (1) H...)

7/29/2020: Minute Order - Minute Order (Hearing on Ex Parte Application FOR AN ORDER CONTINUING (1) H...)

Ex Parte Application (name extension) - Ex Parte Application FOR AN ORDER CONTINUING (1) HEARING ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT, (2) HEARINGS ON PLAINTIFFS MOTIONS TO QUASH DEPOSITION SUB

7/29/2020: Ex Parte Application (name extension) - Ex Parte Application FOR AN ORDER CONTINUING (1) HEARING ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT, (2) HEARINGS ON PLAINTIFFS MOTIONS TO QUASH DEPOSITION SUB

Notice of Ruling - Notice of Ruling

7/29/2020: Notice of Ruling - Notice of Ruling

Answer - Answer

5/6/2019: Answer - Answer

Summons - Summons on Complaint

3/29/2019: Summons - Summons on Complaint

First Amended Standing Order - First Amended Standing Order

3/29/2019: First Amended Standing Order - First Amended Standing Order

36 More Documents Available

 

Docket Entries

  • 04/01/2022
  • Hearing04/01/2022 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 10/07/2021
  • Hearing10/07/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 06/07/2021
  • DocketMemorandum of Costs (Summary); Filed by: COUNTY OF LOS ANGELES (Defendant); As to: KEITH ROGERS (Plaintiff); MIESHA PAYTON (Plaintiff); Total Costs: 3740.00

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  • 06/03/2021
  • DocketUpdated -- Judgment Proposed Judgment: Filed By: COUNTY OF LOS ANGELES (Defendant); Result: Granted; Result Date: 06/03/2021

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  • 06/03/2021
  • DocketUpdated -- Judgment Proposed Judgment: Status Date changed from 06/01/2021 to 06/03/2021; Result Date changed from 06/03/2021 to 06/03/2021; As To Parties: removed

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  • 06/02/2021
  • DocketNotice of Entry of Judgement; Filed by: COUNTY OF LOS ANGELES (Defendant)

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  • 05/27/2021
  • DocketNotice of Ruling; Filed by: COUNTY OF LOS ANGELES (Defendant)

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  • 05/25/2021
  • DocketMinute Order (Hearing on Motion for Summary Judgment; Hearing on Motion to ...)

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  • 05/25/2021
  • DocketHearing on Motion for Summary Judgment scheduled for 05/25/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 05/25/2021; Result Type to Held - Motion Granted

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  • 05/25/2021
  • DocketHearing on Motion to Quash Plaintiff Keith Rogers's Notice of Motion and Motion to Quash Defendant County of Los Angeles's Deposition Subpoenas for Production of Business Records scheduled for 05/25/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 05/25/2021; Result Type to Held - Motion Denied

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62 More Docket Entries
  • 05/06/2019
  • DocketAnswer; Filed by: COUNTY OF LOS ANGELES (Defendant); As to: KEITH ROGERS (Plaintiff); MIESHA PAYTON (Plaintiff)

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  • 04/02/2019
  • DocketNon-Jury Trial scheduled for 09/25/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 04/02/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/01/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 04/02/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 03/29/2019
  • DocketComplaint; Filed by: KEITH ROGERS (Plaintiff); MIESHA PAYTON (Plaintiff); As to: MIESHA PAYTON (Plaintiff); COUNTY OF LOS ANGELES (Defendant); DANIEL FLORES (Defendant)

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  • 03/29/2019
  • DocketDemand for Jury Trial; Filed by: KEITH ROGERS (Plaintiff); MIESHA PAYTON (Plaintiff); As to: MIESHA PAYTON (Plaintiff); COUNTY OF LOS ANGELES (Defendant); DANIEL FLORES (Defendant)

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  • 03/29/2019
  • DocketCivil Case Cover Sheet; Filed by: KEITH ROGERS (Plaintiff); MIESHA PAYTON (Plaintiff); As to: MIESHA PAYTON (Plaintiff); COUNTY OF LOS ANGELES (Defendant); DANIEL FLORES (Defendant)

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  • 03/29/2019
  • DocketSummons on Complaint; Issued and Filed by: KEITH ROGERS (Plaintiff); As to: MIESHA PAYTON (Plaintiff); COUNTY OF LOS ANGELES (Defendant); DANIEL FLORES (Defendant)

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  • 03/29/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/29/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC03152    Hearing Date: May 25, 2021    Dept: 25

HEARING DATE: Tue., May 25, 2021 JUDGE /DEPT: Chilton/25

CASE NAME: Rogers, et al. v. County of Los Angeles, et al.

CASE NUMBER: 19STLC03152 COMP. FILED: 03-29-19

NOTICE: OK DISC. C/O: 09-07-21

DISC. MOT. C/O: 09-22-21

TRIAL DATE: 10-07-21

PROCEEDINGS: (1) MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant County of Los Angeles and Daniel Flores

RESP. PARTY: Plaintiff Miesha Payton, individually and as Successor-in-Interest for Keith Rogers

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

PROCEEDINGS: (2 & 3) MOTIONS TO QUASH DEFENDANT COUNTY OF LOS ANGELES’ DEPOSITION SUBPOENAS

MOVING PARTY: Plaintiff Miesha Payton, individually and as Successor-in-Interest for Keith Rogers

RESP. PARTY: Defendant County of Los Angeles

MOTION TO QUASH SUBPOENA

(CCP § 1987.1)

TENTATIVE RULING:

Defendants’ Motion for Summary Judgment is GRANTED. For this reason, Plaintiffs’ Motions to Quash Subpoenas are DENIED AS MOOT.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

Motion for Summary Judgment

OPPOSITION: Filed on March 17, 2020 [ ] Late [ ] None

REPLY: Filed on March 25, 2020 [ ] Late [ ] None

Motions to Quash

OPPOSITION: Filed on March 18, 2021 [ ] Late [ ] None

REPLY: Filed on March 24, 2021 [ ] Late [ ] None

ANALYSIS:

I. Background

On March 29, 2019, Plaintiffs Keith Rogers (“Rogers”) and Miesha Payton (“Payton”) (collectively, “Plaintiffs”) filed an action for general negligence and motor vehicle negligence against Defendants County of Los Angeles and Daniel Flores (“Flores”). Defendant County of Los Angeles filed an Answer on May 6, 2019 and Defendant Flores filed his Answer on May 13, 2019.

On April 9, 2020, Plaintiffs each filed a Motion to Quash (the “Motions to Quash”) subpoenas issued by Defendant County of Los Angeles to various medical providers. Defendant County of Los Angeles filed oppositions to the Motions to Quash on March 18, 2021 and Plaintiffs filed reply briefs on March 24.

On April 20, 2020, Defendants filed the instant Motion for Summary Judgment (the “MSJ”). Plaintiffs filed an opposition on March 17, 2021 and Defendants filed a reply on March 25.

On March 11, 2021, the Court granted Plaintiff Payton’s motion to be appointed as Plaintiff Rogers’ Successor-in-Interest. (3/11/21 Minute Order.)

The initial April 1, 2021 hearing was continued to give the parties an opportunity to submit supplemental papers. (4/1/21 Minute Order.)

Defendants filed a Notice of Errata on April 16 and Plaintiff Payton filed a response on May 17.

II. Motion for Summary Judgment

A. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

B. Discussion

Defendants move for summary judgment on the basis that Plaintiffs’ claims are barred by the applicable statute of limitations. (MSJ, pp. 1-2.) Specifically, Defendants argue that because notices of rejection for Plaintiffs’ claims were mailed on February 21, 2018, the six-month statute of limitations to file an action expired no later than August 22, 2018. (MSJ, p. 3:1-8.) Because the action was not filed until March 29, 2019, they argue, it is time-barred. (Id.)

1. Requirements for Government Claims

A plaintiff seeking to sue a local public entity for money or damages must first present a government claim to that local public entity within six months after the accrual of the cause of action. (Gov’t Code § 905; § 915, subd. (d); § 911.2, subd. (a).) A claim presented must include:

“(a) The name and post office address of the claimant.

(b) The post office address to which the person presenting the claim desires notices to be sent.

(c) The date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted.

(d) A general description of the indebtedness, obligation, injury, damage, or loss, if known.

(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.

(f) The amount claimed if totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.”

(Gov’t Code, § 910.)

No suit for money damages may be brought against a public entity on a cause of action if no government claim has first been presented and acted upon by the governing body of the local public entity (the “Board”) or has been deemed rejected. (Gov’t Code, §§ 900.2; 945.4.)

The Board must act within 45 days of receiving a claim, and if the Board fails or refuses to do so, then the claim is deemed to have been rejected by the Board on the last day of the period within which the Board was required to act on that claim. (Gov’t Code, § 912.4, subds. (a), (b).)

If a claim is rejected, the notice of rejection must include specific language, including a warning that the claimant generally only has six months from the date the notice is personally delivered or deposited in the mail to file a court action. (Gov’t Code, § 913, subds. (a), (b).) If a rejection notice is mailed or personally delivered in accordance with Section 913, then a suit against a public entity must be filed not later than six months after the date on the rejection notice. (Gov’t Code, § 945.6, subd. (a).) If notice of the rejection is not mailed or personally delivered to the claimant, then the action must be filed within two years from the accrual of the cause of action. (Id.)

As the Court in Dowell v. County of Contra Costa (1985) 173 Cal.App.3d 896, 901 observed:

“ ‘[A] claimant who fails to receive notice of a public entity’s action on the claim within reasonable time after the end of the 45-day period for its consideration, should make inquiry to determine whether and, if so, when, the notice was in fact served. The two-year period of limitations obtains only when the notice was not served; the six-month rule applies if notice was served, even though not actually received by the claimant.’ [Citation.]”

2. Plaintiffs’ Claims

It is undisputed that Plaintiff Rogers presented a government claim for damages to Defendant County of Los Angeles on May 1, 2017 for his alleged injuries sustained in a traffic accident that occurred on April 6, 2017. (UMF No. 7.) It is also undisputed that Plaintiff Payton apparently presented her government claim on or about May 1, 2017 for injuries allegedly sustained as a result of that same April 6, 2017 accident. (UMF. No. 12.) It is further undisputed that on April 25, 2017, Jasmine De Luna (“De Luna”), a legal assistant at Plaintiffs’ counsel’s office, sent the Executive Officer, Board of Supervisors, a letter indicating counsel’s office was representing Plaintiff Rogers and Payton, as well as Richard Payton, Tim’Mia Gasaway and Ry’Air Evens who are not parties to this lawsuit but were allegedly involved in the same accident. (UMF No. 6.) Plaintiffs’ counsel’s office address was noted on this correspondence as 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Mot., Chipp Decl., pp. 20:21-21:1, Exh. 1.) (Emphasis added.)

Defendants present the declaration of Tamatha Chipp (“Chipp”) attesting that on May 2, 2017, she sent a letter to De Luna at Plaintiffs’ counsel’s office regarding the claims filed by Plaintiffs as well as those filed by Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens. (Mot., Chipp. Decl., pp. 9-16, Exh. 10.) After determining Defendant County of Los Angeles was not liable for the claims filed by Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens, on July 14, 2017, Chipp executed rejection notices for each of them. (Id. at pp. 21:17-22:11, Exhs. 11, 12.) These notices were addressed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Id.) (Emphasis added.) The proofs of service, executed by Martha Arnds, attached to each of these three notices of rejection, attest the envelope containing the rejection notices were mailed to 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401 on July 14, 2017. (Id.) (Emphasis added.) Defendants also provide the declaration of Sylvia Hernandez-Schweitzer (“Hernandez-Schweitzer”) attesting that on July 24, 2017, she reviewed and approved the rejection notices and accompanying proofs of service for Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens. (Mot., Hernandez-Schweitzer Decl., p. 26:13-26.) Hernandez-Schweitzer further states she caused Martha Arnds to place the rejection notices for Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens in a postage pre-paid envelope and mail said documents to Plaintiffs’ counsel at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91402 that same day. (Id.) (Emphasis added.) Although Hernandez-Schweitzer’s declaration states the correspondence regarding the claims filed by Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens’ were mailed to a slightly different zip code (i.e., 91402 instead of 91401), Plaintiffs’ evidence demonstrates Plaintiffs’ counsel received copies of the rejections for Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens. (See Oppo., Bershatski Decl., ¶ 5 [“…having earlier received the July 14, 2017 notice of rejection for [Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens]…”].)

Chipp also attests that on February 21, 2018, she prepared rejection notices, one for each of Plaintiffs’ claims. (Mot., Chipp Decl., pp. 23:10-25, Exhs. 3, 4.) The February 21 rejection notices advised that although Plaintiffs’ claims were rejected by operation of law on June 25, 2017, they had six months from the date the notice was deposited in the mail to file an action. (Id.) Each notice was addressed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Id.) (Emphasis added.) The proofs of service, executed by Martha Arnds, attached to the notices of rejection for Plaintiffs’ claims, attest the envelopes containing the rejection notices were mailed to 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401 on February 21, 2018. (Id.) (Emphasis added.) Like the rejection notices for Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens, Hernandez-Schweitzer attests that she reviewed and approved the rejection notices for Plaintiffs’ claims as well as the accompanying proofs of service. (Id., Hernandez-Schweitzer Decl., p. 27:12-24.) She further attests she caused Martha Arnds to place the notices of rejection for Plaintiffs’ claims in a postage pre-paid envelope and mail said documents to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91402. (Id.) (Emphasis added.)

Plaintiffs’ counsel denies ever having received the rejection notices for Plaintiffs’ claims and argues summary judgment must be denied because the presumption of receipt of the notices of rejection is rebutted by his unimpeachable declaration. (Oppo., 6:7-8:6.) As a result, Plaintiffs’ argue, a two-year statute of limitations applies. (Id., p. 3:3-7.) Plaintiffs’ counsel submits his declaration stating that his office never received the February 21, 2018 notices of rejection for Plaintiffs’ claims. (Id., Bershatski Decl., ¶ 4.) He further states his office manager at the time, Edward Koron, would have flagged any correspondence that required an immediate response, such as the subject notices of rejection of Plaintiffs’ claims. (Id.) Plaintiffs’ counsel further states that according to Koron’s training, he would have brought the notices of rejection, had they been received, to his attention and that in the four years Koron worked in Plaintiffs’ counsel’s office, he never once mishandled mail or failed to flag important correspondence. (Id. )

However, receipt of a notice of rejection is not the event that triggers the running of the six-month statute of limitations; mailing of the notice of rejection does. (Gov’t Code, § 945.6, subd. (a).) The Court of Appeal considered a similar argument to Plaintiffs’ in Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437.)

In Him, the city defendant moved for summary judgment on the basis that the plaintiffs’ action was filed beyond the six-month period and thus was time-barred. (Him v. City and County of San Francisco, supra, 133 Cal.App.4th at p. 440.) To establish the notices of rejection of the plaintiffs’ claims were mailed, the city defendant submitted the claim rejection notices with attached proofs of service as well as the declaration of the claims adjuster stating she had mailed the notices of rejection. (Id.) Plaintiffs argued that their declarations attesting the rejection notices were never received and an email to potential referral counsel discussing nonreceipt of such rejection notices was sufficient to create a triable issue of material fact and defeat summary judgment. (Id. at p. 445.) In rejecting the plaintiffs’ argument, the court noted that the focus was on the date of mailing, not receipt of the notice. (Id.) The court further reiterated that “a claimant is required to comply with the six-month statute of limitations associated with government tort claims upon proof that the notice of rejection was served even if it was not actually received by the claimant.” (Id.) (Emphasis added.) The claims statutes provide that the government entity must act on the claim within 45 days of receipt. (Id.) If no action is taken within a reasonable time after the 45 days, “a claimant should be aware that the claim has been denied…, [that] the statutory notice of that denial has not been provided” and should inquire about the denial and determine the limitations period. (Id.) However, a claimant should not be permitted to “forgo that opportunity and, then, rely on the fact no notice was delivered to extend the limitations period.” (Id.) Thus, the Court of Appeal held that the plaintiffs’ evidence of nonreceipt was insufficient to create a triable issue of material fact and that the city defendant had established the lawsuit was time-barred. (Id. at p. 446.)

As discussed above, the notices of rejection for Plaintiffs’ claims as well as the proofs of service both indicate the correspondence was mailed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Mot., Chipp Decl., pp. 23:10-25, Exhs. 3, 4; Hernandez-Schweitzer Decl., p. 27:12-24.) (Emphasis added.) However, Hernandez-Schweitzer states the notices of rejection were mailed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91402. (Id.) (Emphasis added.) Plaintiffs argue that because the proofs of service attached to the notices of rejection are correctly addressed and because the declaration provided by Hernandez-Schweitzer contradicts the proof of service, namely, by stating the rejection notices were mailed to a different zip code than that stated on the proofs of service, Defendants themselves have created a triable issue of material fact that precludes summary judgment. (Oppo., p. 9:14-26.)

Government Code section 915.2 provides that any notice given by mail “shall be deposited in the United States post office, a mailbox, sub-post office, substation, mail chute, or other similar facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid.” (Gov’t Code § 915.2, subd. (a).) (Emphasis added.) The notice is deemed to be received at the time of deposit. (Id.)

In Reply, Defendants explain the use of “91402” is a typographical error that should not preclude summary judgment. (Reply, pp. 4:12-5:10.) Indeed, based on the totality of the evidence presented, it appears that Hernandez-Schweitzer’s use of “91402” is a typographical error. Notably, Hernandez-Schweitzer’s declaration also states that the July 14, 2017 rejection notices for the claims filed by Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens were mailed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91402. (Mot., Hernandez-Schweitzer Decl., p. 26:13-26.) (Emphasis added.) Yet, Plaintiffs’ counsel admits to having received those notices. (See Oppo., Bershatski Decl., ¶ 5 [“…having earlier received the July 14, 2017 notice of rejection for [Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens]…”].) Importantly, the rejection notices themselves and the proofs of service all contain the right address, which is 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Mot., Chipp Decl., pp. 23:10-25, Exhs. 3, 4.) (Emphasis added.)

On April 16, 2021, Defendants filed a Notice of Errata and a supplemental declaration from Defendants’ counsel, Allen Thomas. Counsel Thomas attests that he prepared the supporting declarations for this Motion and accepts responsibility for the typographical errors therein. (Notice of Errata, Thomas Decl., pp. 3-4.) He explains that he misspelled the declarant’s name as “Sylvia Hernandez-Schweitzer” but should have been “Sylvia Hernandez Schweizer.” (Id.) He also states that when he drafted the supporting declaration, he mistakenly typed 91402 instead of 91401. (Id.) The corrected Hernandez-Schweizer declaration states that all rejection notices were mailed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Id., Hernandez-Schweizer Decl., pp. 26-27.)

Plaintiffs argue the only legal support for Defendants’ Motion is the rebuttable presumption under Evidence Code section 641 that the rejection notices were mailed to Plaintiffs’ counsel. (5/17/21 Plf. Response, p. 2.) As explained both at the previous hearing and above, however, the Court relies on Government Code section 915.2 which deems a notice of rejection received at the time it is deposited in the mail.

Plaintiffs also take issue with the fact that Hernandez-Schweizer does not state she reviewed the envelopes in which the rejection letters were sent. (Id. at p. 2.) However, as discussed above, the proofs of service for Plaintiffs’ rejection notices include a declaration from Martha Arnds under penalty of perjury that the rejection notices were mailed to the correct address.

Thus, the Court finds that Defendants carried their burden to show this action is time-barred, and that Plaintiffs did not carry their burden to show a triable issue of material fact exists as to the timeliness of this action.

Accordingly, the Motion is GRANTED.

III. Motions to Quash Subpoena

As the Motion for Summary Judgment has been granted, the Motions to Quash Subpoena are DENIED AS MOOT.

IV. Conclusion & Order

For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED. For this reason, Plaintiffs’ Motions to Quash Subpoenas are DENIED AS MOOT.

Moving parties are ordered to give notice.

Case Number: 19STLC03152    Hearing Date: April 1, 2021    Dept: 25

HEARING DATE: Thu., April 1, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Rogers, et al. v. County of Los Angeles, et al.

CASE NUMBER: 19STLC03152 COMP. FILED: 03-29-19

NOTICE: OK DISC. C/O: 05-03-21

DISC. MOT. C/O: 05-18-21

TRIAL DATE: 06-02-21

PROCEEDINGS: (1) MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant County of Los Angeles and Daniel Flores

RESP. PARTY: Plaintiff Miesha Payton, individually and as Successor-in-Interest for Keith Rogers

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

PROCEEDINGS: (2 & 3) MOTIONS TO QUASH DEFENDANT COUNTY OF LOS ANGELES’ DEPOSITION SUBPOENAS

MOVING PARTY: Plaintiff Miesha Payton, individually and as Successor-in-Interest for Keith Rogers

RESP. PARTY: Defendant County of Los Angeles

MOTION TO QUASH SUBPOENA

(CCP § 1987.1)

TENTATIVE RULING:

Defendants’ Motion for Summary Judgment is CONTINUED TO MAY 25, 2021 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must submit a notice of errata and corrected declaration for Sylvia Hernandez-Schweitzer as requested herein. Failure to do so could result in the denial of Defendants’ Motion. In addition, because it is likely the Motion for Summary Judgment will be granted upon Defendants’ filing of a corrected declaration, the Motions to Quash are also CONTINUED TO MAY 25, 2021 at 10:30 a.m.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

Motion for Summary Judgment

OPPOSITION: Filed on March 17, 2020 [ ] Late [ ] None

REPLY: Filed on March 25, 2020 [ ] Late [ ] None

Motions to Quash2

OPPOSITION: Filed on March 18, 2021 [ ] Late [ ] None

REPLY: Filed on March 24, 2021 [ ] Late [ ] None

ANALYSIS:

  1. Background

On March 29, 2019, Plaintiffs Keith Rogers (“Rogers”) and Miesha Payton (“Payton”) (collectively, “Plaintiffs”) filed an action for general negligence and motor vehicle negligence against Defendants County of Los Angeles and Daniel Flores (“Flores”). Defendant County of Los Angeles filed an Answer on May 6, 2019 and Defendant Flores filed his Answer on May 13, 2019.

On April 9, 2020, Plaintiffs each filed a Motion to Quash (the “Motions to Quash”) subpoenas issued by Defendant County of Los Angeles to various medical providers. Defendant County of Los Angeles filed Oppositions to the Motions to Quash on March 18, 2021 and Plaintiffs filed Replies on March 24.

On April 20, 2020, Defendants filed the instant Motion for Summary Judgment (the “MSJ”). Plaintiffs filed an Opposition on March 17, 2021 and Defendants filed a Reply on March 25.

Finally, on March 11, 2021, the Court granted Plaintiff Payton’s motion to be appointed as Plaintiff Rogers’ Successor-in-Interest. (3/11/21 Minute Order.)

  1. Motion for Summary Judgment

A. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

B. Discussion

Defendants move for summary judgment on the basis that Plaintiffs’ claims are barred by the statute of limitations. (MSJ, pp. 1-2.) Specifically, Defendants argue that because notices of rejection for Plaintiffs’ claims were mailed on February 21, 2018, the six-month statute of limitations to file an action expired no later than August 22, 2018. (MSJ, p. 3:1-8.) Because the action was not filed until March 29, 2019, it is time barred. (Id.)

1. Requirements for Government Claims

A plaintiff seeking to sue a local public entity for money or damages must first present a government claim to that local public entity within six months after the accrual of the cause of action. (Gov’t Code § 905; § 915, subd. (d); § 911.2, subd. (a).) A claim presented must include:

“(a) The name and post office address of the claimant.

(b) The post office address to which the person presenting the claim desires notices to be sent.

(c) The date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted.

(d) A general description of the indebtedness, obligation, injury, damage, or loss, if known.

(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.

(f) The amount claimed if totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.”

(Gov’t Code, § 910.)

No suit for money damages may be brought against a public entity on a cause of action if no government claim has first been presented and acted upon by the governing body of the local public entity (the “Board”) or has been deemed rejected. (Gov’t Code, §§ 900.2; 945.4.)

The Board must act within 45 days of receiving a claim, and if the Board fails or refuses to do so, then the claim is deemed to have been rejected by the Board on the last day of the period within which the Board was required to act on that claim. (Gov’t Code, § 912.4, subds. (a), (b).)

If a claim is rejected, the notice of rejection must include specific language, including a warning that the claimant generally only has six months from the date the notice is personally delivered or deposited in the mail to file a court action. (Gov’t Code, § 913, subds. (a), (b).) If a rejection notice is mailed or personally delivered in accordance with Section 913, then a suit against a public entity must be filed not later than six months after the date on the rejection notice. (Gov’t Code, § 945.6, subd. (a).) If notice of rejection is not mailed or personally delivered to the claimant, then an action must be filed within two years from the accrual of the cause of action. (Id.)

As the Court in Dowell v. County of Contra Costa (1985) 173 Cal.App.3d 896, 901 observed:

“ ‘[A] claimant who fails to receive notice of a public entity’s action on the claim within reasonable time after the end of the 45-day period for its consideration, should make inquiry to determine whether and, if so, when, the notice was in fact served. The two-year period of limitations obtains only when the notice was not served; the six-month rule applies if notice was served, even though not actually received by the claimant.’ [Citation.]”

2. Plaintiffs’ Claims

It is undisputed that Plaintiff Rogers presented a government claim for damages to Defendant County of Los Angeles on May 1, 2017 for his alleged injuries sustained in a traffic accident that occurred on April 6, 2017. (UMF No. 7.) It is also undisputed that Plaintiff Payton apparently presented her government claim on or about May 1, 2017 for injuries allegedly sustained as a result of that same April 6, 2017 accident. (UMF. No. 12.) It is further undisputed that on April 25, 2017, Jasmine De Luna (“De Luna”), a legal assistant at Plaintiffs’ counsel’s office, sent the Executive Officer, Board of Supervisors, a letter indicating counsel’s office was representing Plaintiff Rogers and Payton, as well as Richard Payton, Tim’Mia Gasaway and Ry’Air Evens who are not parties to this lawsuit but were allegedly involved in the same accident. (UMF No. 6.) Plaintiffs’ counsel’s office address was noted on this correspondence as 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Mot., Chipp Decl., pp. 20:21-21:1, Exh. 1.) (Emphasis added.)

Defendants present the declaration of Tamatha Chipp (“Chipp”) attesting that on May 2, 2017, she sent a letter to De Luna at Plaintiffs’ counsel’s office regarding the claims filed by Plaintiffs as well as those filed by Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens. (Mot., Chipp. Decl., pp. 9-16, Exh. 10.) After determining Defendant County of Los Angeles was not liable for the claims filed by Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens, on July 14, 2017, Chipp executed rejection notices for each of them. (Id. at pp. 21:17-22:11, Exhs. 11, 12.) These notices are addressed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Id.) (Emphasis added.) The proofs of service, executed by Martha Arnds, attached to each of these three notices of rejection, state the envelope containing the rejection notices were mailed to 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401 on July 14, 2017. (Id.) (Emphasis added.) Defendants also provide the declaration of Sylvia Hernandez-Schweitzer (“Hernandez-Schweitzer”) attesting that on July 24, 2017, she reviewed and approved the rejection notices and accompanying proofs of service for Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens. (Mot., Hernandez-Schweitzer Decl., p. 26:13-26.) Hernandez-Schweitzer further states she caused Martha Arnds to place the rejection notices for Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens in a postage pre-paid envelope and mail said documents to Plaintiffs’ counsel at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91402 that same day. (Id.) Although Hernandez-Schweitzer’s declaration states the correspondence regarding the claims filed by Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens’ were mailed to a slightly different zip code (i.e., 91402 instead of 91401), Plaintiffs’ evidence demonstrates Plaintiffs’ counsel received copies of the rejections for Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens. (See Oppo., Bershatski Decl., ¶ 5 [“…having earlier received the July 14, 2017 notice of rejection for [Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens]…”].)

Chipp also attests that on February 21, 2018, she prepared rejection notices, one for each of Plaintiffs’ claims. (Mot., Chipp Decl., pp. 23:10-25, Exhs. 3, 4.) The February 21 rejection notices advised that although Plaintiffs’ claims were rejected by operation of law on June 25, 2017, they had six months from the date the notice was deposited in the mail to file an action. (Id.) Each notice is addressed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Id.) (Emphasis added.) The proofs of service, executed by Martha Arnds, attached to the notices of rejection for Plaintiffs’ claims, state the envelopes containing the rejection notices were mailed to 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401 on February 21, 2018. (Id.) (Emphasis added.) As with the rejection notices for Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens, Hernandez-Schweitzer attests that she reviewed and approved the rejection notices for Plaintiffs’ claims as well as and accompanying proofs of service. (Id., Hernandez-Schweitzer Decl., p. 27:12-24.) She further attests she caused Martha Arnds to place the notices of rejection for Plaintiffs’ claims in a postage pre-paid envelope and mail said documents to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91402. (Id.) (Emphasis added.)

Plaintiffs’ counsel disputes ever having received the rejection notices for Plaintiffs’ claims and argues summary judgment must be denied because the presumption of receipt of the notices of rejection is rebutted by his unimpeachable declaration. (Oppo., 6:7-8:6.) As a result, Plaintiffs’ argue, a two-year statute of limitations applies. (Id., p. 3:3-7.) Plaintiffs’ counsel submits his declaration stating that his office never received the February 21, 2018 notices of rejection for Plaintiffs’ claims. (Id., Bershatski Decl., ¶ 4.) He further states his office manager at the time, Edward Koron, would have flagged any correspondence that required an immediate response, such as the subject notice of rejection of Plaintiffs’ claims. (Id.) Plaintiffs’ counsel further states that according to Koron’s training, he would have brought the notices of rejection, had they been received, to his attention and that in the four years Koron worked in Plaintiffs’ counsel’s office, he never once mishandled mail or failed to flag important correspondence. (Id. )

However, receipt of a notice of rejection is not the event that triggers the running of the six-month statute of limitations; mailing of the notice of rejection does. (Gov’t Code, § 945.6, subd. (a).) The Court of Appeal considered a similar argument to Plaintiffs’ in Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437.)

In Him, the city defendant moved for summary judgment on the basis that the plaintiffs’ action was filed beyond the six-month period and thus was time-barred. (Him v. City and County of San Francisco, supra, 133 Cal.App.4th at p. 440.) To establish the notices of rejection of the plaintiffs’ claims were mailed, the city defendant submitted the claim rejection notices with attached proofs of service as well as the declaration of the claims adjuster stating she had mailed the notices of rejection. (Id.) Plaintiffs argued that their declarations attesting the rejection notices were never received and an email to potential referral counsel discussing nonreceipt of such rejection notices was sufficient to create a triable issue of material fact and defeat summary judgment. (Id. at p. 445.) In rejecting the plaintiffs’ argument, the court noted that the focus was on the date of mailing, not receipt of the notice. (Id.) The court further reiterated that “a claimant is required to comply with the six-month statute of limitations associated with government tort claims upon proof that the notice of rejection was served even if it was not actually received by the claimant.” (Id.) (Emphasis added.) The claims statutes provide that the government entity must act on the claim within 45 days of receipt. (Id.) If no action is taken within a reasonable time after the 45 days, “a claimant should be aware that the claim has been denied…, [that] the statutory notice of that denial has not been provided” and should inquire about the denial and determine the limitations period. (Id.) However, a claimant should not be permitted to “forgo that opportunity and, then, rely on the fact no notice was delivered to extend the limitations period.” (Id.) Thus, the Court of Appeal held that the plaintiffs’ evidence of nonreceipt was insufficient to create a triable issue of material fact and that the city defendant had established the lawsuit was time-barred. (Id. at p. 446.)

As discussed above, the notices of rejection for Plaintiffs’ claims as well as the proofs of service both indicate the correspondence was mailed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Mot., Chipp Decl., pp. 23:10-25, Exhs. 3, 4; Hernandez-Schweitzer Decl., p. 27:12-24.) (Emphasis added.) However, Hernandez-Schweitzer states the Notices of Rejection were mailed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91402. (Id.) (Emphasis added.) Plaintiffs argue that because the proofs of service attached to the notices of rejection are correctly addressed and because the declaration provided by Hernandez-Schweitzer contradicts the proof of service, namely, by stating the rejection notices were mailed to a different zip code than that stated on the proofs of service, Defendants themselves have created a triable issue of material fact that precludes summary judgment. (Oppo., p. 9:14-26.)

Government Code section 915.2 provides that any notice given by mail “shall be deposited in the United States post office, a mailbox, sub-post office, substation, mail chute, or other similar facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid.” (Gov’t Code § 915.2, subd. (a).) (Emphasis added.) The notice is deemed to be received at the time of deposit. (Id.)

In Reply, Defendants explain the use of “91402” is a typographical error that should not preclude summary judgment. (Reply, pp. 4:12-5:10.) Indeed, based on the totality of the evidence presented, it appears that Hernandez-Schweitzer’s use of “91402” is a typographical error. Notably, Hernandez-Schweitzer’s declaration also states that the July 14, 2017 rejection notices for the claims filed by Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens were mailed to Plaintiffs’ counsel’s office at 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91402. (Mot., Hernandez-Schweitzer Decl., p. 26:13-26.) (Emphasis added.) Yet, Plaintiffs’ counsel admits to having received those notices. (See Oppo., Bershatski Decl., ¶ 5 [“…having earlier received the July 14, 2017 notice of rejection for [Richard Payton, Tim’Mia Gasaway, and Ry’Air Evens]…”].) Importantly, the rejection notices themselves and the proofs of service all contain the right address, which is 6320 Van Nuys Blvd., Suite 220, Van Nuys, CA 91401. (Mot., Chipp Decl., pp. 23:10-25, Exhs. 3, 4.)

Nevertheless, Defendants’ evidence must be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

Defendants ask for the opportunity to file a notice of errata with a corrected declaration. Given that it strongly appears that Hernandez-Schweitzer’s use of “91402” was a typographical error, and in the interest of resolving this matter on the merits, Defendants’ request to continue the hearing for an opportunity to submit the corrected declaration is granted.

  1. Motions to Quash Subpoena

Plaintiffs each filed a Motion to Quash subpoenas issued by Defendant County of Los Angeles to several of Plaintiffs’ medical service providers. Because it is likely the Motion for Summary Judgment will be granted upon Defendants’ filing of a corrected declaration, the Motions to Quash subpoenas are likely moot. In the event the Motion for Summary Judgment is not granted at the continued hearing, the Court will address Plaintiffs’ Motions to Quash Defendant’s Subpoenas at that time.

  1. Conclusion & Order

For the foregoing reasons, Defendants’ Motion for Summary Judgment is CONTINUED TO MAY 25, 2021 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must submit a notice of errata and corrected declaration for Sylvia Hernandez-Schweitzer as requested herein. Failure to do so could result in the denial of Defendants’ Motion. In addition, because it is likely the Motion for Summary Judgment will be granted upon Defendants’ filing of a corrected declaration, the Motions to Quash are also CONTINUED TO MAY 25, 2021 AT 10:30 a.m. Should the Motion for Summary Judgment not dispose of the action, the Court will issue a ruling on the merits for the Motions to Quash at that time.

Moving party is ordered to give notice.

Case Number: 19STLC03152    Hearing Date: March 11, 2021    Dept: 25

HEARING DATE:    Thu., March 11, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Rogers, et al. v. County of Los Angeles, et al.

CASE NUMBER: 19STLC03152  COMP. FILED: 03-29-19

NOTICE: OK DISC. C/O: 05-03-21

DISC. MOT. C/O:    05-18-21

TRIAL DATE: 06-02-21

PROCEEDINGS    MOTION FOR ORDER APPOINTING PLAINTIFF MIESHA PAYTON AS SUCCESSOR IN INTEREST TO PLAINTIFF/DECEDENT KEITH ROGERS

MOVING PARTY:   Plaintiff Miesha Payton

RESP. PARTY: None

MOTION TO SUBSTITUTE SUCCESSOR-IN-INTEREST

(CCP § 377.32)

TENTATIVE RULING:

Plaintiff Miesha Payton’s Motion for Order Appointing her as Successor in Interest to Plaintiff/Decedent Keith Rogers is GRANTED.

SERVICE

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of March 9, 2021 [   ] Late [X] None

REPLY: None filed as of March 9, 2021 [   ] Late [X] None

ANALYSIS:

  1. Background

On March 29, 2021, Plaintiffs Keith Rogers (“Rogers”) and Miesha Payton (“Payton”) (collectively, “Plaintiffs”) filed an action for general negligence and motor vehicle against Defendants County of Los Angeles (“County”) and Daniel Flores (“Flores”). Defendant County filed an Answer on May 6, 2019 and Defendant Flores filed his Answer on May 13, 2019.

On January 6, 2021, Plaintiff Payton filed the instant Motion for Order Appointing Plaintiff Payton as Successor in Interest to Plaintiff/Decedent Keith Rogers (the “Motion”).

At the initial February 8 hearing, the Court found that the required supporting declaration did not meet the content requirements of Code of Civil Procedure section 377.32. (2/8/21 Minute Order.) The matter was continued and Plaintiff Payton was ordered to file a supplemental declaration satisfying those requirements. (Id.)

On February 16, 2021, Plaintiff Payton filed the requested supplemental declaration. No opposition has been filed.

  1. Legal Standard & Discussion

“Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.31.)

Code of Civil Procedure section 377.32 provides:

“(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(1) The decedent's name.

(2) The date and place of the decedent's death.

(3) “No proceeding is now pending in California for administration of the decedent's estate.”

(4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest.

(5) Either of the following, as appropriate, with facts in support thereof:

(A) “The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.”

(B) “The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding.”

(6) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.”

(7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.

(c) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.”

Having reviewed Plaintiff Payton’s supplemental declaration, the Court finds it meets the content requirements of Section 377.32. The declaration also includes a certified copy of decedent Plaintiff’s death certificate. Thus, the unopposed Motion is GRANTED.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Miesha Payton’s Motion for Order Appointing her as Successor in Interest to Plaintiff/Decedent Keith Rogers is GRANTED.  

Moving party is ordered to give notice.

Case Number: 19STLC03152    Hearing Date: February 08, 2021    Dept: 25

HEARING DATE: Mon., February 8, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Rogers, et al. v. County of Los Angeles, et al.

CASE NUMBER: 19STLC03152 COMP. FILED: 03-29-19

NOTICE: OK DISC. C/O: 05-03-21

DISC. MOT. C/O: 05-18-21

TRIAL DATE: 06-02-21

PROCEEDINGS: MOTION FOR ORDER APPOINTING PLAINTIFF MIESHA PAYTON AS SUCCESSOR IN INTEREST TO PLAINTIFF/DECEDENT KEITH ROGERS

MOVING PARTY: Plaintiff Miesha Payton

RESP. PARTY: None

MOTION TO SUBSTITUTE SUCCESSOR-IN-INTEREST

(CCP § 377.32)

TENTATIVE RULING:

Plaintiff Miesha Payton’s Motion for Order Appointing her as Successor in Interest to Plaintiff/Decedent Keith Rogers is CONTINUED TO APRIL 12, 2021 AT 10:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff Payton must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of February 4, 2021 [ ] Late [X] None

REPLY: None filed as of February 4, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

On March 29, 2021, Plaintiffs Keith Rogers (“Rogers”) and Miesha Payton (“Payton”) (collectively, “Plaintiffs”) filed an action for general negligence and motor vehicle against Defendants County of Los Angeles (“County”) and Daniel Flores (“Flores”).

On January 6, 2021, Plaintiff Payton filed the instant Motion for Order Appointing Plaintiff Payton as Successor in Interest to Plaintiff/Decedent Keith Rogers (the “Motion”). To date, no opposition has been filed.

  1. Legal Standard

“Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.31.)

Code of Civil Procedure section 377.32 provides:

“(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(1) The decedent's name.

(2) The date and place of the decedent's death.

(3) “No proceeding is now pending in California for administration of the decedent's estate.”

(4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest.

(5) Either of the following, as appropriate, with facts in support thereof:

(A) “The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.”

(B) “The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding.”

(6) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.”

(7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.

(c) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.”

  1. Discussion

As decedent Plaintiff Rogers’ surviving spouse, Plaintiff Payton seeks an order appointing her as Plaintiff Rogers’ successor in interest. (Mot., p. 2:2-12; Payton Decl., ¶ 6, Exh. A.)

Having reviewed the attached declaration, the Court finds it does not meet the content requirements of Code of Civil Procedure section 377.32. Plaintiff Peyton is ordered to file and serve supplemental papers that satisfy the requirements of Section 377.32.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Miesha Payton’s Motion for Order Appointing her as Successor in Interest to Plaintiff/Decedent Keith Rogers is CONTINUED TO APRIL 12, 2021 AT 10:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff Payton must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

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