On 02/07/2018 a Personal Injury - Motor Vehicle case was filed by DONALD ELQUIST against LA COUNTY METRO TRANS AUTHORITY in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LOS ANGELES COUNTY METROPOLITAN TRANS
DOES 1 TO 100
TURNER KEVIN DARNELL
6/18/2018: PROOF OF SERVICE SUMMONS
6/21/2018: SUBSTITUTION OF ATTORNEY
7/27/2018: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; ORDER
10/3/2018: Notice of Ruling
12/18/2018: Separate Statement
5/28/2019: Minute Order
7/5/2019: Certificate of Mailing for
7/5/2019: Minute Order
6/1/2018: NOTICE OF ASSOCIATION OF COUNSEL
4/20/2018: NOTICE OF RULING ON METRO'S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT
4/6/2018: Minute Order
4/9/2018: PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION ON DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; ETC
4/10/2018: METRO'S REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT
3/8/2018: PROOF OF SERVICE SUMMONS
2/7/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
Motion to Compel (Notice of Motion and Motion to Compel Witness, Ryan Boyd to Appear at Deposition and Request for Sanctions); Filed by MONICA BOEN (Cross-Complainant)Read MoreRead Less
at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to Compel (Compliance with Depo Subpoena (for a witness))Read MoreRead Less
at 08:09 AM in Department 5, Stephen I. Goorvitch, Presiding; Ruling on Submitted MatterRead MoreRead Less
Minute Order ( (Ruling on Submitted Matter: DEFENDANTS? MOTION FOR SUMMARY JU...)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Ruling on Submitted Matter: DEFENDANTS? MOTION FOR SUMMARY JU...) of 07/05/2019); Filed by ClerkRead MoreRead Less
at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion for Summary Judgment - Held - Taken under SubmissionRead MoreRead Less
Minute Order ( (Hearing on Motion for Summary Judgment)); Filed by ClerkRead MoreRead Less
Reply (Reply Brief to Plaintiff's Opposition to Motion for Summary Judgment); Filed by Los Angeles County Metropolitan Trans- (Defendant)Read MoreRead Less
Separate Statement; Filed by Los Angeles County Metropolitan Trans- (Defendant)Read MoreRead Less
Response (Response to Plaintiff's Separate Statement of Undisputed Material Facts and Supporting Evidence in Support of Defendant's Reply to Opposition to Motion for Summary Judgment); Filed by Los Angeles County Metropolitan Trans- (Defendant)Read MoreRead Less
NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAPT; MEMORANDUM OF POINTS AND AUTHORITLES; DECLARATION OF LINDSAY P. LANG; [PROPOSEDI ORDERRead MoreRead Less
NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LINDSAY P. LANG; [PROPOSED] ORDERRead MoreRead Less
Proof-Service/Summons; Filed by Donald Elquist (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
First Amended Complaint; Filed by Donald Elquist (Plaintiff)Read MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Complaint; Filed by Donald Elquist (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC693262 Hearing Date: October 30, 2019 Dept: 5
los angeles county metropolitan transporation authority, et al.,
Case No.: BC693262
Hearing Date: August 15, 2019
[TENTATIVE] order RE:
defendants’ MOTION FOR reconsideration
Plaintiff Donald Elquist (“Plaintiff”) filed this action following a motor vehicle collision with a bus owned and operated by the Defendant Los Angeles County Metropolitan Transportation Authority and Kevin Darnell (“Defendants”). Defendants moved for summary judgment, arguing that the notice of rejection of the government claim was served on April 13, and Plaintiff filed this action after the statute of limitations ran on October 11, 2017. The Court denied the motion, as Defendants’ evidence was unclear whether the notice of rejection was properly served. Now, Defendants seek reconsideration of the Court’s order, proffering purportedly new evidence establishing that service was proper, which Plaintiff opposes. The Court denied Defendants’ motion for reconsideration. Instead, the Court elected to reconsider its ruling on its own authority based on the evidence proffered by Defendants. The Court continued the hearing on this motion to October 30, 2019, to afford Plaintiff the required 75 days’ notice and an opportunity to file a new opposition brief before granting summary judgment. The Court now grants its own motion for reconsideration and grants summary judgment to Defendant.
Code of Civil Procedure section 1008 requires a party seeking reconsideration to “state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown” in the current motion. (Code Civ. Proc., § 1008, subd. (b).) The moving party on a motion for reconsideration “must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time . . . .” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations and citations omitted.) A party may file a motion for reconsideration based only on “new or different facts, circumstances, or law.” Code Civ. Proc. § 1008, subd. (a). (See Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839-40 [352 P.3d 391, 397, 189 Cal.Rptr.3d 824, 830-31] (collecting cases).) The purpose of section 1008 is to “conserve judicial resources by constraining litigants who would endlessly bring the same motions over and over, or move for reconsideration of every adverse order and then appeal the denial of the motion to reconsider.” (Ibid. (citing Sen. Comm. on Judiciary, Analysis of Assem. Bill No. 1067 (2011-2012 Reg. Sess.), as amended Apr. 25, 2011, p. 4.) Regardless, the Court has inherent authority to reconsider any of its own rulings on its own motion provided that it gives the parties notice and a reasonable opportunity to litigate the issue. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1109.)
Per the Government Claims Act, a party with a claim for damages against a public entity must first file claim directly with that entity. The party may file a lawsuit only if the public entity denies or rejects the claim. (Gov. Code §§ 905, 945.4; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894.) A party must file a claim within six months of accrual of that cause of action. (Gov. Code, § 911.4.) The public entity is required give written notice of its rejection of a claim within 45 days. (Gov. Code, § 912.4, subd. (a).) Of the public entity gives notice of its rejection of a claim, the party must commence a lawsuit within six months of delivery or mailing of the notice of rejection. (Gov. Code, § 945.6, subd. (a)(1).) “[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. Thus, the Legislature has placed upon the claimant the risk that a properly mailed notice of claim rejection is not delivered due to an error by the postal authorities.” (Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 445.)
In support of their motion for summary judgment, Defendants proffered evidence that the claim was rejected on April 10, 2017, and that the notice of rejection was served by certified mail on April 11, 2017. Defendants relied on a return receipt, purportedly reflecting delivery to Plaintiff’s counsel on April 13, 2017. However, the return receipt was illegible, so the Court could not determine whether the notice was delivered to the correct office suite.
Defendants sought reconsideration based on “new” evidence that Defendants properly serve the notice of rejection on Plaintiff via counsel. The Court denied Defendants’ motion for reconsideration because the evidence is not “new” within the meaning of section 1008. However, the Court decided to reconsider this issue on its own motion based on this evidence, which appears to resolve whether the notice of rejection was served at the correct address. Therefore, the Court continued the hearing on this motion to October 30, 2019 to afford Plaintiff the required 75 days’ notice and an opportunity to file a new opposition brief before granting summary judgment. The Court authorized Plaintiff to continue to conduct discovery on this issue and to file an opposition within statutory time periods. The Court authorized Defendant to file a reply brief within statutory time periods.
The Court has reviewed and considered Plaintiff’s opposition to the Court’s motion for reconsideration. Plaintiff argues that the Court may not entertain a motion for reconsideration absent a showing of new or different facts, law, or circumstances, per Code of Civil Procedure section 1008(e). However, Plaintiff ignores clear case law stating that section 1008 does not prevent the Court from reconsidering any of its own rulings on its own motion. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1109.) Therefore, the Court has jurisdiction to reconsider this issue.
Reaching the merits, Plaintiff argues that there is insufficient evidence that the notice of rejection was properly served on Plaintiff. Plaintiff is incorrect. Alberto Vazquez states that he personally prepared and mailed the notice of rejection. (Declaration of Alberto Vazquez, ¶ 3.) Vazquez states that he mailed the notice to Suite #704 (which was the correct address). (Id., ¶ 4.) Vazquez proffers the Certified Mail Receipt showing that the notice was mailed to Suite #704. (Id., Exh. F.) Most important, Vazquez states that the envelope would have been mailed to the address listed on the letter itself because that address shows through the clear address window on the front of the envelope. (Id., ¶¶ 4-5.) Vazquez even provided an example. (Id., Exh. D.) There can be no dispute that the letter was properly addressed. (Id., Exh. D.) This evidence is sufficient to establish that the rejection notice was properly served.
Plaintiff argues that Defendant did not include a copy of the actual envelope, as referenced in the Court’s order of July 5, 2019. Plaintiff misinterprets the Court’s order. The Court denied Defendant’s motion for summary judgment because there was no evidence based on which the Court “might have been able to determine whether the notice [of rejection of the claim] was properly mailed.” (Court’s Order of July 5, 2019.) While a copy of the actual envelope would be one such means of proving that the notice was properly served, the Court’s order did not state that this was an exclusive list. The evidence cited above demonstrates that the notice was properly served on Plaintiff via counsel and that the Court’s decision of July 5, 2019 to deny the motion for summary judgment was incorrect.
Because the notice was properly served, it matters not if Plaintiff’s counsel did not actually receive it. (Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 445; County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1268.) Following presentation of the claim, the public entity must act within 45 days. (Gov. Code § 912.4, subd. (a).) Following a reasonable period of time after the expiration of this 45-day period, Plaintiff should have been on notice that the claim had been denied or that there was a problem in receiving notice. (Him, supra, 127 Cal.App.4th at 1268.) Therefore, Plaintiff’s arguments are without merit.
Finally, Plaintiff’s counsel states in her declaration that Vazquez stated on March 27, 2017, that Defendant would not dispute liability. (Declaration of Mary Terterov, ¶ 3.) Plaintiff’s counsel also represents that Vazquez agreed to make a settlement offer. (Id., ¶ 4.) Even if true, Plaintiff’s counsel should have known to obtain a tolling agreement or file her action before the statute of limitations ran.
CONCLUSION AND ORDER
The Court grants its own motion for reconsideration of its ruling on Defendant’s motion for summary judgment. The Court now grants summary judgment for Defendant. The Court’s clerk shall provide notice.
DATED: October 30, 2019 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court