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This case was last updated from Los Angeles County Superior Courts on 10/29/2020 at 02:17:20 (UTC).

JANE DOE ET AL VS CITY OF BURBANK ET AL

Case Summary

On 10/03/2018 JANE DOE filed a Personal Injury - Other Personal Injury lawsuit against CITY OF BURBANK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD L. FRUIN, RANDOLPH M. HAMMOCK, DEBRE KATZ WEINTRAUB and SAMANTHA JESSNER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4027

  • Filing Date:

    10/03/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RICHARD L. FRUIN

RANDOLPH M. HAMMOCK

DEBRE KATZ WEINTRAUB

SAMANTHA JESSNER

 

Party Details

Plaintiffs, Petitioners and Appellants

DOE 2 JANE

DOE 1 JANE

DOE 3 JANE

DOE 4 JANE

Defendants and Respondents

MONTANO ARTURO PONCE

DOES 1 TO 30

BURBANK CITY OF

CITY OF BURBANK

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SOLOMON AMY FISCH

URZUA CARLOS

Defendant Attorney

JACKSON CHARMAINE

 

Court Documents

Notice of Filing of Notice of Appeal (Unlimited Civil) - NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED CIVIL) NOA:4/22/20

5/8/2020: Notice of Filing of Notice of Appeal (Unlimited Civil) - NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED CIVIL) NOA:4/22/20

Notice Re: Continuance of Hearing and Order

3/20/2020: Notice Re: Continuance of Hearing and Order

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

1/13/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Other - - OTHER - FINAL RULING RE: DEFENDANT CITY OF BURBANK'S MOTION FOR SUMMARY JUDGMENT

1/14/2020: Other - - OTHER - FINAL RULING RE: DEFENDANT CITY OF BURBANK'S MOTION FOR SUMMARY JUDGMENT

Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

11/15/2019: Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Opposition - OPPOSITION TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION

11/8/2019: Opposition - OPPOSITION TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION

Response - RESPONSE PLAINTIFF'S RESPONSE TO DEFENDANT'S CITY OF BURBANK'S SEPARATE STATEMENT

11/8/2019: Response - RESPONSE PLAINTIFF'S RESPONSE TO DEFENDANT'S CITY OF BURBANK'S SEPARATE STATEMENT

Declaration - DECLARATION OF CARLOS URZUA IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

11/8/2019: Declaration - DECLARATION OF CARLOS URZUA IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Motion for Summary Judgment

9/9/2019: Motion for Summary Judgment

Minute Order - MINUTE ORDER (DEMURRER OF DEFENDANT CITY OF BURBANK TO PLAINTIFF'S THIRD AM...)

8/14/2019: Minute Order - MINUTE ORDER (DEMURRER OF DEFENDANT CITY OF BURBANK TO PLAINTIFF'S THIRD AM...)

Request for Judicial Notice

5/10/2019: Request for Judicial Notice

Notice of Posting of Jury Fees

5/13/2019: Notice of Posting of Jury Fees

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

5/16/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Notice of Ruling

4/11/2019: Notice of Ruling

Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10)) OF 04/03/2019

4/3/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10)) OF 04/03/2019

Notice - Notice Of Related Case

11/5/2018: Notice - Notice Of Related Case

Minute Order - Minute Order (Court Order re C.C.P. 170.6)

11/21/2018: Minute Order - Minute Order (Court Order re C.C.P. 170.6)

Notice of Related Case

11/5/2018: Notice of Related Case

80 More Documents Available

 

Docket Entries

  • 10/27/2020
  • Docketat 08:30 AM in Department 78; Order to Show Cause Re: Dismissal (as to the remaining defendant) - Held - Continued

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  • 10/27/2020
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal as to the remaining defendant)); Filed by Clerk

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  • 08/18/2020
  • Docketat 10:00 AM in Department 78; Order to Show Cause Re: Dismissal (as to the remaining defendant) - Held - Continued

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  • 08/18/2020
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal as to the remaining defendant)); Filed by Clerk

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  • 06/11/2020
  • DocketAppellate Order Reinstating Appeal (NOA: 04/22/20 B305835); Filed by Clerk

    Read MoreRead Less
  • 06/11/2020
  • DocketAppeal - Remittitur - Appeal Dismissed (B305835); Filed by Clerk

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  • 06/04/2020
  • Docketat 08:30 AM in Department 78; Order to Show Cause Re: Dismissal (as to the remaining defendant) - Not Held - Advanced and Continued - by Court

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  • 05/08/2020
  • DocketNotice of Filing of Notice of Appeal (Unlimited Civil) (NOA:4/22/20); Filed by Clerk

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  • 04/23/2020
  • Docketat 10:11 AM in Department 78; Court Order

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  • 04/23/2020
  • DocketCertificate of Mailing for ((Court Order) of 04/23/2020); Filed by Clerk

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101 More Docket Entries
  • 11/06/2018
  • Docketat 08:30 AM in Department 15, Richard L. Fruin, Presiding; Court Order - Held

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  • 11/06/2018
  • DocketMinute Order ((Court Order) of 11/06/2018); Filed by Clerk

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  • 11/06/2018
  • DocketCertificate of Mailing for (Minute Order (Court Order) of 11/06/2018); Filed by Clerk

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  • 11/05/2018
  • DocketNotice of Related Case; Filed by Doe 1, Jane (Plaintiff); Doe 2, Jane (Plaintiff)

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  • 11/05/2018
  • DocketNotice (Of Related Case); Filed by Doe 1, Jane (Plaintiff)

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  • 10/04/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 10/03/2018
  • DocketSUMMONS

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  • 10/03/2018
  • DocketCOMPLAINT FOR DAMAGES

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  • 10/03/2018
  • DocketComplaint; Filed by Doe 1, Jane (Plaintiff); Doe 2, Jane (Plaintiff)

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  • 10/03/2018
  • DocketNOTICE OF CASE ASSIGNMENT

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Tentative Rulings

Case Number: BC724027    Hearing Date: January 06, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

JANE DOE 1, et al.;

Plaintiffs,

vs.

CITY OF BURBANK, et al.;

Defendants.

Case No.:

BC724027

Hearing Date:

January 6, 2020

[TENTATIVE] RULING RE:

Defendant City of Burbank’s MOTION FOR SUMMARY JUDGMENT

Defendant City of Burbank’s Motion for Summary Judgment is GRANTED.

Factual Background

This is an action for sexual harassment. The Complaint alleges as follows. Plaintiffs Jane Does 1 and 2 (“Plaintiffs”) worked as locker room attendants and lifeguards for Defendant City of Burbank (“Burbank”). (Complaint ¶¶ 11–13.) The lifeguard changing room or office was left opened such that the door was opened many times, and people saw Plaintiffs in various stages of undress. (Complaint ¶ 14.) In June 2016 it was discovered that Defendant Arturo Ponce Montano (“Montano”) had secretly used his cell phone camera to record minor girls and women, including Plaintiffs, undressing in the office. (Complaint ¶ 15.)

procedural history

Plaintiffs filed the Complaint on October 3, 2018, alleging 16 causes of action:

  1. FHEA Sex Discrimination

  2. FEHA Sexual Harassment

  3. FEHA Retaliation

  4. Failure to Prevent FEHA Discrimination, Harassment, and Retaliation

  5. Sexual Harassment (Civ. Code § 51.9)

  6. Intentional Infliction of Emotional Distress

  7. Violation of Privacy (Cal. Const., art. I, § 1)

  8. Invasion of Privacy

  9. Intrusion of Seclusion

  10. Public Disclosure of Private Facts

  11. Violation of Civil Code § 1708.8

  12. Negligence (against Burbank)

  13. Negligent Retention, Hiring, or Training

  14. Negligence (against Montano)

  15. Negligent Infliction of Emotional Distress

  16. Dangerous Condition of Public Property

On December 6, 2018, this case was related to LASC Case No. BC690359.

Plaintiffs filed what they called a Second Amended Complaint on February 27, 2019, evidently after the court’s electronic filing system would not allow them to file a First Amended Complaint. They did so in the lead case of BC690359, and no SAC was filed in LASC Case No. BC724027. Burbank then filed a Demurrer, styled a demurrer to the original Complaint, which was the only Complaint on file in BC724027.

This Court on April 3, 2019, sustained Burbank’s Demurrer to the Complaint, with leave to amend.

Plaintiffs then filed what they called a Third Amended Complaint (“TAC”) on April 12, 2019, alleging the same causes of action, but once more in LASC Case No. BC690359, and no such pleading appears in the filing for BC724027.

Burbank filed a Demurrer to the TAC on May 10, 2019 on the grounds that the TAC is barred by the statute of limitations. This Court overruled the Demurrer.

On September 9, 2019, Burbank filed the instant Motion for Summary Judgment.

On November 8, 2019, Plaintiffs filed an Opposition.

On November 15, 2019, Plaintiffs filed a Reply.

Discussion

  1. REQUEST FOR JUDICIAL NOTICE

Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure §438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)). Judicial notice may be taken of “(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452.)

Burbank requests that this Court take judicial notice of various documents. The Court grants the request as to Nos. A-C, E-I, K-L, and denies the remainder as items not the proper subject for judicial notice.

  1. OBJECTIONS

Plaintiffs Objection No. 1 to the Declaration of Minera Castro is OVERRULED because the statement in question contains an admission against plaintiff’s interest.

Plaintiffs Objection No. 1 to the Declaration of Carolyn Barnes is SUSTAINED because the paragraphs in question provide no basis for Ms. Barnes’ personal knowledge on the subject addressed.

Burbank objects to the Declaration of Carlos Urzua. Objections 1-7 are OVERRULED. 

  1. MOTION FOR SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden, inter alia, by proving that for each cause of action alleged, Plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc. § 437c(p)(2).) What this means in practice is that if a cause of action, such as fraud, for example, requires proof of five elements, one of which is reliance, and if Defendant sets forth a prima facie case that reliance cannot be proven (either by citation to plaintiff’s deposition testimony, written discovery responses or other means), then Defendant has met its burden.

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Burbank, here, moves for summary judgment on the Complaint and Amended Complaints on the grounds that they are barred by the statutes of limitations.

  1. Other Procedural History

Burbank previously filed a Demurrer to the Second Amended Complaint[1] arguing that the Complaint was time-barred pursuant to the Government Code section 945.6, which requires suits against public entities under the Claims Act to be initiated within six months after the entity’s notice of denial of the claim. (Burbank Evid., Exh. H, p. 3.) Burbank further argued that even if its notice of denial was defective, Government Code section 945.6 requires a suit to be brought within two years from the accrual of the cause of action if notice was not given. (Burbank Evid., Exh. H, p. 4.) Burbank argued that that Plaintiffs filed the Complaint in this action late under both statutes. (Burbank Evid. Exh. H, pp. 3-4.) This Court sustained the Demurrer with leave to amend.

After Plaintiffs filed the TAC Burbank filed a Demurrer again asserting that Plaintiffs Complaint/TAC is time-barred pursuant to Government Code section 945.6. (Burbank, Evid., Exh. I, p. 3.) In Opposition, Plaintiffs argued in response that the doctrines of equitable tolling and equitable estoppel tolled the statutes of limitations due to settlement negotiations with Burbank while the limitations period was pending. (Burbank Evid. Exh. I, p. 4.) The Court found that the Complaint did not state a claim for equitable estoppel, but that equitable tolling could be available depending on the facts as developed during discovery on the subject of whether Plaintiffs acted reasonably and in good faith in delaying filing this action following the settlement negotiations. The Court held that this was a question of fact that could not be resolved on demurrer. (Burbank Evid. Exh. I, p. 6.)

In the instant Motion Burbank pursues the same arguments, asserting that there are no material issues of disputed fact that (1) Plaintiffs’ complaints are barred by the Government Tort Claims Act statute of limitation, requiring the action to be filed within six months of rejection of the claim (2) That Plaintiffs’ claims are also barred by the two year Statute of Limitations, (3) that the Plaintiffs are not entitled to equitable estoppel because the City did not engage in any conduct that precluded the Plaintiffs from timely filing suit; and (4) Plaintiffs are not entitled to equitable tolling because there were no ongoing settlement negotiations and Plaintiffs filed to respond to Burbank’s requests to discuss settlement. (Motion at p. 5.)

  1. Factual Timeline

On June 22, 2016, it was discovered that a former City of Burbank lifeguard used his cell phone to record female lifeguards while they were dressing/undressing at an aquatic center in Burbank. (UMF ¶ 1. ) On December 9, 2016, Allyson Young filed a Government Tort Claim for damages with Burbank, and on December 21, 2016, Katrina Whaley filed a Government Tort Claim for damages with Burbank. (UMF ¶ 2; Barnes Decl. ¶ 4.)

In or about April 2017, Burbank called Young and Whaley’s attorney, Carlos Urzua (“Urzua”), to discuss the possibility of settling the claims and Urzua indicated that he would have to talk with his supervising partner. (Barnes Decl. ¶ 5.) In or about May 2017, Burbank called Urzua to discuss settling the claims and Urzua again said that he would have to talk with his supervising partner. (Barnes Decl. ¶ 6.) Plaintiffs do not dispute the facts regarding the April or May 2017 phone calls, stating only that after filing the claims with Burbank for damages “Plaintiffs began prelitigation settlement discussions with Defendant by and through its counsel, Carolyn Barnes, Senior Assistant Risk Management City Attorney.” (UMF ¶¶ 7-8.)

On June 12, 2017, Burbank sent a letter to Urzua offering to settle the claims in the amount of $35,000 each and asked Urzua to contact Burbank to discuss the settlement. (Barnes Decl. ¶ 7, Exh. D3; Urzua Decl. ¶ 7.) Plaintiffs allege that Urzua confirmed receipt of the settlement offers with Burbank and said that the offers would be discussed with Jane Doe 1 and Jane Doe 2. (Urzua Decl. ¶¶ 7-8.)

On August 3, 2017, Burbank sent an email to Urzua regarding the settlement offers. (Barnes Decl. ¶ 8, Exh. J.) Plaintiffs allege that Urzua responded to the August 3, 2017 email reporting that he had settlement authority for Jane Doe 1 and was still attempting to contact Jane Doe 2. (Urzua Decl. ¶ 9.)

On August 24, 2017, Burbank alleges that it sent a letter to Urzua, rejecting the claims. (UMF ¶ 3; Barnes Decl. ¶ 9.) They allege that the rejection letter indicated that Plaintiffs had only six months to file suit pursuant to relevant Government Code sections, and that the letter renewed the $35,000 settlement offers to each Young and Whaley. (UMF ¶ 3; Barnes Decl. ¶ 9.) Plaintiffs dispute this and argue that Plaintiffs’ counsel’s (Urzua) office did not receive the notice of rejection. (Urzua Decl. ¶¶ 10-11.)

Plaintiffs allege that in December 2017, Urzua called Burbank and left a message that Jane Doe 2 had changed her phone number but that they now had settlement authority for both Plaintiffs. (Urzua Decl. ¶ 15.)

On September 5, 2018, Urzua called Burbank regarding the status of the claims and mentioned that he thought the case was still pending settlement offers. (Castro Decl. ¶ 4; Urzua Decl. ¶ 18.)

Plaintiffs filed the Complaint in this case on October 3, 2018. (UMF ¶ 5.)

  1. Statutes of Limitation

Burbank argues that this action is time-barred by the statutes of limitation provided by Government Code section 945.4 and 945.6.

Government Code section 945.4 provides that:

“no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with [the relevant chapters] […] until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board[.]” (Gov. Code, § 945.4.)

Further, Government Code section 945.6, subdivision (a) provides that any suit brought against a public entity on a cause of action required to be brought as a claim pursuant to section 945.4 must be commenced:

  1. If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.

  2. If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action. (Gov. Code, § 945.6(a).)

Here, the incident at the aquatic center is alleged to have taken place on June 22, 2016, and the claims for Doe 1 and Doe 2 (Young and Whaley) were alleged to have been filed with Burbank on December 9, 2016 and December 21, 2016. (UMF ¶¶ 1-2.) Burbank alleges that a letter denying both claims was mailed to Urzua on August 24, 2017. (UMF ¶ 3.) The Complaint in this action was filed on October 3, 2018.

Burbank argues in the instant motion that Plaintiffs had six-months from the August 24, 2017 letter to file this case pursuant to section 945.6, subdivision (a)(1), which would have been February 24, 2018. (Motion at p. 6.) Burbank contends that Plaintiffs’ allegations that Urzua did not receive the letter are not credible. (Motion at p. 6.) Burbank has provided copies of the denial letter dated August 24, 2017 (Burbank Evid. Exhs. D1-D2.) Burbank has also provided a copy of the Proof of Service indicating that the letters were placed in the mail on August 24, 2017 to Urzua and has provided a copy of the U.S. Postal Service tracking results for the denial letter. (Burbank Evid. Exhs. D4-D5.) The tracking number on the tracking results page matches the tracking number that was provided on the letter and indicates that the letter arrived at the USPS facility at 6:21 a.m. on August 25, 2017 and was delivered to the front desk/reception area at 2:59 p.m. on August 25, 2017. (Burbank Evid. Exh. D2.)

In Opposition, Plaintiffs contend that the USPS tracking results website print-out does not provide the delivery address nor does the letter indicate the method of delivery. (Urzua Decl. ¶ 31.) and, as discussed above, that the Barnes declaration attempting to prove the notices were mailed is not competent to prove this fact.

The Court has sustained the objection to the Barnes Declaration and the Court therefore cannot find that it undisputed that the letters were in fact mailed and delivered. The letters include the USPS tracking number stamped on it, plus Burbank has provided a Proof of Service indicating the name and address of Urzua’s law firm. Further, the letter is properly addressed to the address which Urzua provides in his declaration as the correct address for his law firm. (Urzua Decl. ¶ 31; Burbank Evid., Exhs. D1-D2.) Additionally, in matters regarding mail, the act of placing the package in the mailbox effectuates service or is presumed delivered. (See, e.g. Code of Civ. Pro. § 1013(a) [“Service is complete at the time of the deposit”].) Further, pursuant to Evidence Code section 641, “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.”

Presumptions, however, can be overcome by contrary evidence and Urzua’s declaration that he did not receive the letters along with the exhibits attached to his declaration showing that his law firm’s calendar system did not reflect any deadlines for these claims in February 2018 (Urzua Decl. ¶ 13, Exh. 5) are sufficient to raise a triable issue of fact on this issue.

Accordingly, there is a disputed issue of material fact on whether the six-month statute of limitations provided by Government Code section 945.6, subdivision (a)(1) bars plaintiffs’ claims and summary judgment cannot be granted on this basis. Absent some countervailing policy, however, the two-year statute of limitations provided by Government Code section 945.6, subdivision (a)(2)does bar these claims since plaintiff’s claims accrued in June 2016 and the complaint was not filed until October 3, 2018. Plaintiff, however, argues that there is a countervailing policy in this case for not barring the action on statute of limitations grounds: Equitable Estoppel and Equitable Tolling. These will be discussed below

  1. Equitable Estoppel

The general doctrine of equitable estoppel has been codified: “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” (Evid. Code, § 623.) “To create an equitable estoppel, ‘it is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss.’ ” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384, as modified (Aug. 27, 2003).) If the plaintiff’s delay in commencing a legal action is a result of the defendant’s conduct, then the defendant cannot assert the statute of limitations as a defense. (Id.)

However, as this Court discussed its order on Burbank’s Demurrer to the TAC (Burbank Evid. Exh. H) and as continues to be true here, Plaintiffs have not alleged or offered facts sufficient to create a triable issue of material fact on this issue. While sporadic settlement discussions did occur, there is absolutely no evidence that Burbank induced Plaintiffs to delay in filing their complaint and no evidence that Plaintiffs in fact delayed filing suit because of any act of Burbank.

Plaintiffs do not present any opposition to the estoppel argument.

Accordingly, Plaintiffs have not established a material issue of disputed fact on its claim that equitable estoppel is a bar to the statute of limitations.

  1. Equitable Tolling

“Equitable tolling is a judge-made doctrine ‘which operates independently of the literal wording of the Code of Civil Procedure’ to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” (Lantzy v. Centex Homes, supra, 31 Cal.4th at 370.) The effect of equitable tolling is that the limitations period stops running during the tolling event and begins to run again only when the tolling event has concluded. (Id.)

The doctrine of equitable tolling requires timely notice, and lack of prejudice, to the defendant, and reasonable and good faith reliance on the part of the plaintiff.

(Addison v. State of California (1978) 21 Cal.3d 313, 319.) The doctrine of equitable tolling may be applied in cases involving government entities pursuant to Government Code section 945.6. (Id.)

In Addison v. State of California, the court allowed equitable tolling where the plaintiffs filed an action in federal court and, to avoid duplicitous litigation, delayed filing their action in state court. (Id.)

The court held that there are three factors to be considered when deciding whether the equitable tolling doctrine should be applied: (1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim. (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924.)

Plaintiffs rely on these elements in their Opposition. (Opposition at pp. 9-13.) However, these elements were found to support a claim of equitable tolling in the context of a plaintiff who has several legal remedies and choses in good faith to pursue one remedy over another by filing the action in federal court, thus equitably tolling the statute of limitations for the action in the state court. (Addison v. State of California, supra, 21 Cal.3d at 319.) Plaintiffs’ only claim here, however, is that the act of filing their government claim in December 2016 tolled the statute of limitations. (Opposition at p. 9.)

This argument is inapplicable to the statute of limitations because the act of filing a claim as by provided by Government Code section 945.6, subdivision (a)(1) could not possibly be deemed to be the filing of a “first claim” because that would result in a tolling in every case despite the clearly set forth deadline contained in Government Code section 945.6, subdivision (a)(1). For another “legal action” to equitably toll the statute of limitations under the doctrine of equitable tolling, that legal action, such as filing an action is federal court, must have been filed during the limitations period. (Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1505.) There was no such court action” filed here.

California courts have found that acts in connection with settlement negotiations may toll a limitations period. (Union Oil Co. of California v. Greka Energy Corp. (2008) 165 Cal.App.4th 129, 138.) However, in the Union Oil case the plaintiff not only requested settlement negotiations. It asked the Plaintiff to withdraw it legal claims pending a promised offer of settlement. (Id.) The court found that it was reasonable for the plaintiffs to delay litigation because the defendant promised the remedy a portion of the damages and it would be unreasonable to expect the plaintiff to jeopardize the possibility of repair by filing a lawsuit. (Id.)

Here, Plaintiffs have produced no evidence that Defendants urged them not to file any legal action during the statute of limitations period. In fact, the denial letter specifically informed Plaintiffs regarding the statute of limitations for filing a legal action.

Accordingly, Plaintiffs have not raised a triable issue of material fact on the question of whether they are entitled to assert equitable tolling of the statute of limitations.

The Motion for Summary Judgment is GRANTED.

Defendant to provide notice.

DATED: January 6, 2020

______________________________

Hon. Robert S. Draper

Judge of the Superior Court


[1] The First Amended Complaint is entitled the “Second Amended Complaint” because Plaintiffs alleged that the court’s electronic filing system would not allow them to file a First Amended Complaint. (Burbank Evid., Exh. I, p. 2.)

Case Number: BC724027    Hearing Date: November 22, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

JANE DOE 1, et al.;

Plaintiffs,

vs.

CITY OF BURBANK, et al.;

Defendants.

Case No.:

BC724027

Hearing Date:

November 22, 2019

[TENTATIVE] RULING RE:

Defendant City of Burbank’s MOTION FOR SUMMARY JUDGMENT

Defendant City of Burbank’s Motion for Summary Judgment is GRANTED.

Factual Background

This is an action for sexual harassment. The Complaint alleges as follows. Plaintiffs Jane Does 1 and 2 (“Plaintiffs”) worked as locker room attendants and lifeguards for Defendant City of Burbank (“Burbank”). (Complaint ¶¶ 11–13.) The lifeguard changing room or office was left opened such that the door was opened many times, and people saw Plaintiffs in various stages of undress. (Complaint ¶ 14.) In June 2016 it was discovered that Defendant Arturo Ponce Montano (“Montano”) had secretly used his cell phone camera to record minor girls and women, including Plaintiffs, undressing in the office. (Complaint ¶ 15.)

procedural history

Plaintiffs filed the Complaint on October 3, 2018, alleging 16 causes of action:

  1. FHEA Sex Discrimination

  2. FEHA Sexual Harassment

  3. FEHA Retaliation

  4. Failure to Prevent FEHA Discrimination, Harassment, and Retaliation

  5. Sexual Harassment (Civ. Code § 51.9)

  6. Intentional Infliction of Emotional Distress

  7. Violation of Privacy (Cal. Const., art. I, § 1)

  8. Invasion of Privacy

  9. Intrusion of Seclusion

  10. Public Disclosure of Private Facts

  11. Violation of Civil Code § 1708.8

  12. Negligence (against Burbank)

  13. Negligent Retention, Hiring, or Training

  14. Negligence (against Montano)

  15. Negligent Infliction of Emotional Distress

  16. Dangerous Condition of Public Property

On December 6, 2018, this case was related to LASC Case No. BC690359.

Plaintiffs filed what they called a Second Amended Complaint on February 27, 2019, evidently after the court’s electronic filing system would not allow them to file a First Amended Complaint. They did so in the lead case of BC690359, and no SAC was filed in LASC Case No. BC724027. Burbank then filed a Demurrer, styled a demurrer to the original Complaint, which was the only Complaint on file in BC724027.

This Court on April 3, 2019, sustained Burbank’s Demurrer to the Complaint, with leave to amend.

Plaintiffs then filed what they called a Third Amended Complaint (“TAC”) on April 12, 2019, alleging the same causes of action, but once more in LASC Case No. BC690359, and no such pleading appears in the filing for BC724027.

Burbank filed a Demurrer to the TAC on May 10, 2019 on the grounds that the TAC is barred by the statute of limitations. This Court overruled the Demurrer.

On September 9, 2019, Burbank filed the instant Motion for Summary Judgment.

On November 8, 2019, Plaintiffs filed an Opposition.

On November 15, 2019, Plaintiffs filed a Reply.

Discussion

  1. REQUEST FOR JUDICIAL NOTICE

Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure §438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)). Judicial notice may be taken of “(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452.)

Burbank requests that this Court take judicial notice of various documents. The Court grants the request as to Nos. A-C, E-I, K-L, and denies the remainder as items not judicially noticeable.

  1. OBJECTIONS

Plaintiffs Objection No. 1 to the Declaration of Minera Castro is DENIED because the statement in question contains an admission against plaintiff’s interest.

Plaintiffs Objection No. 1 to the Declaration of Carolyn Barnes is SUSTAINED because the paragraphs in question provide no basis for Ms. Barnes’ personal knowledge on the subject addressed.

Burbank objects to the Declaration of Carlos Urzua. Objections 1-7 are DENIED. 

  1. MOTION FOR SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden, inter alia, by proving that for each cause of action alleged, Plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc. § 437c(p)(2).) What this means in practice is that if a cause of action, such as fraud, for example, requires proof of five elements, one of which is reliance, and if Defendant sets forth a prima facie case that reliance cannot be proven (either by citation to plaintiff’s deposition testimony, written discovery responses or other means), then Defendant has met its burden.

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Burbank, here, moves for summary judgment on the Complaint and Amended Complaints on the grounds that they are barred by the statutes of limitations.

  1. Other Procedural History

Burbank previously filed a Demurrer to the Second Amended Complaint[1] arguing that the Complaint was time-barred pursuant to the Government Code section 945.6, which requires suits against public entities under the Claims Act to be initiated within six months after the entity’s notice of denial of the claim. (Burbank Evid., Exh. H, p. 3.) Burbank further argued that even if its notice of denial was defective, Government Code section 945.6 requires a suit to be brought within two years from the accrual of the cause of action if notice was not given. (Burbank Evid., Exh. H, p. 4.) Burbank argued that that Plaintiffs filed the Complaint in this action late under both statutes. (Burbank Evid. Exh. H, pp. 3-4.) This Court sustained the Demurrer with leave to amend.

After Plaintiffs filed the TAC Burbank filed a Demurrer again asserting that Plaintiffs Complaint/TAC is time-barred pursuant to Government Code section 945.6. (Burbank, Evid., Exh. I, p. 3.) In Opposition, Plaintiffs argued i response that the doctrines of equitable tolling and equitable estoppel tolled the statutes of limitations due to settlement negotiations with Burbank while the limitations period was pending. (Burbank Evid. Exh. I, p. 4.) The Court found that the Complaint did not state a claim for equitable estoppel, but that equitable tolling could be available depending on the facts as developed during discovery on the subject of whether Plaintiffs acted reasonably and in good faith in delaying filing this action following the settlement negotiations. The Court held that this was a question of fact that could not be resolved on demurrer. (Burbank Evid. Exh. I, p. 6.)

In the instant Motion Burbank pursues the same arguments, asserting that there are no material issues of disputed fact that (1) Plaintiffs’ complaints are barred by the Government Tort Claims Act statute of limitation, requiring the action to be filed within six months of rejection of the claim (2) That Plaintiffs’ claims are also barred by the two year Statute of Limitations, (3) that the Plaintiffs are not entitled to equitable estoppel because the City did not engage in any conduct that precluded the Plaintiffs from timely filing suit; and (4) Plaintiffs are not entitled to equitable tolling because there were no ongoing settlement negotiations and Plaintiffs filed to respond to Burbank’s requests to discuss settlement. (Motion at p. 5.)

  1. Factual Timeline

On June 22, 2016, it was discovered that a former City of Burbank lifeguard used his cell phone to record female lifeguards while they were dressing/undressing at an aquatic center in Burbank. (UMF ¶ 1. ) On December 9, 2016, Allyson Young filed a Government Tort Claim for damages with Burbank, and on December 21, 2016, Katrina Whaley filed a Government Tort Claim for damages with Burbank. (UMF ¶ 2; Barnes Decl. ¶ 4.)

In or about April 2017, Burbank called Young and Whaley’s attorney, Carlos Urzua (“Urzua”), to discuss the possibility of settling the claims and Urzua indicated that he would have to talk with his supervising partner. (Barnes Decl. ¶ 5.) In or about May 2017, Burbank called Urzua to discuss settling the claims and Urzua said that he would have to talk with his supervising partner. (Barnes Decl. ¶ 6.) Plaintiffs do not dispute the facts regarding the April or May 2017 phone calls, stating only that after filing the claims with Burbank for damages “Plaintiffs began prelitigation settlement discussions with Defendant by and through its counsel, Carolyn Barnes, Senior Assistant Risk Management City Attorney.” (UMF ¶¶ 7-8.)

On June 12, 2017, Burbank sent a letter to Urzua offering to settle the claims in the amount of $35,000 each and asked Urzua to contact Burbank to discuss the settlement. (Barnes Decl. ¶ 7, Exh. D3; Urzua Decl. ¶ 7.) Plaintiffs allege that Urzua confirmed receipt of the settlement offers with Burbank and said that the offers would be discussed with Jane Doe 1 and Jane Doe 2. (Urzua Decl. ¶¶ 7-8.)

On August 3, 2017, Burbank sent an email to Urzua regarding the settlement offers. (Barnes Decl. ¶ 8, Exh. J.) Plaintiffs allege that Urzua responded to the August 3, 2017 email reporting that he had settlement authority for Jane Doe 1 and was still attempting to contact Jane Doe 2. (Urzua Decl. ¶ 9.)

On August 24, 2017, Burbank alleges that it sent a letter to Urzua, rejecting the claims. (UMF ¶ 3; Barnes Decl. ¶ 9.) They allege that the rejection letter indicated that Plaintiffs had only six months to file suit pursuant to relevant Government Code sections, and that the letter renewed the $35,000 settlement offers to each Young and Whaley. (UMF ¶ 3; Barnes Decl. ¶ 9.) Plaintiffs dispute this and argue that Plaintiffs’ counsel’s (Urzua) office did not receive the notice of rejection. (Urzua Decl. ¶¶ 10-11.)

Plaintiffs allege that in December 2017, Urzua called Burbank and left a message that Jane Doe 2 had changed her phone number but that they now had settlement authority for both Plaintiffs. (Urzua Decl. ¶ 15.)

On September 5, 2018, Urzua called Burbank regarding the status of the claims and mentioned that he thought the case was still pending settlement offers. (Castro Decl. ¶ 4; Urzua Decl. ¶ 18.)

Plaintiffs filed the Complaint in this case on October 3, 2018. (UMF ¶ 5.)

  1. Statutes of Limitation

Burbank argues that this action is time-barred by the statutes of limitation provided by Government Code section 945.4 and 945.6.

Government Code section 945.4 provides that:

“no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with [the relevant chapters] […] until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board[.]” (Gov. Code, § 945.4.)

Further, Government Code section 945.6, subdivision (a) provides that any suit brought against a public entity on a cause of action required to be brought as a claim pursuant to section 945.4 must be commenced:

  1. If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.

  2. If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action. (Gov. Code, § 945.6(a).)

Here, the incident at the aquatic center is alleged to have taken place on June 22, 2016, and the claims for Doe 1 and Doe 2 (Young and Whaley) were alleged to have been filed with Burbank on December 9, 2016 and December 21, 2016. (UMF ¶¶ 1-2.) Burbank alleges that a letter denying both claims was mailed to Urzua on August 24, 2017. (UMF ¶ 3.) The Complaint in this action was filed on October 3, 2018.

Burbank argues in the instant motion that Plaintiffs had six-months from the August 24, 2017 letter to file this case pursuant to section 945.6, subdivision (a)(1), which would have been February 24, 2018. (Motion at p. 6.) Burbank contends that Plaintiffs’ allegations that Urzua did not receive the letter are not credible. (Motion at p. 6.) Burbank has provided copies of the denial letter dated August 24, 2017 (Burbank Evid. Exhs. D1-D2.) Burbank has also provided a copy of the Proof of Service indicating that the letters were placed in the mail on August 24, 2017 to Urzua and has provided a copy of the U.S. Postal Service tracking results for the denial letter. (Burbank Evid. Exhs. D4-D5.) The tracking number on the tracking results page matches the tracking number that was provided on the letter and indicates that the letter arrived at the USPS facility at 6:21 a.m. on August 25, 2017 and was delivered to the front desk/reception area at 2:59 p.m. on August 25, 2017. (Burbank Evid. Exh. D2.)

In Opposition, Plaintiffs contend that the USPS tracking results website print-out does not provide the delivery address nor does the letter indicate the method of delivery. (Urzua Decl. ¶ 31.) and, as discussed above, that the Barnes declaration attempting to prove the notices were mailed is not competent to prove this fact.

The Court has sustained the objection to the Barnes Declaration and the Court therefore cannot find that it undisputed that the letters were in fact mailed and delivered. The letters include the USPS tracking number stamped on it, plus Burbank has provided a Proof of Service indicating the name and address of Urzua’s law firm. Further, the letter is properly addressed to the address which Urzua provides in his declaration as the correct address for his law firm. (Urzua Decl. ¶ 31; Burbank Evid., Exhs. D1-D2.) Additionally, in matters regarding mail, the act of placing the package in the mailbox effectuates service or is presumed delivered. (See, e.g. Code of Civ. Pro. § 1013(a) [“Service is complete at the time of the deposit”].) Further, pursuant to Evidence Code section 641, “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.”

Presumptions, however, can be overcome by contrary evidence and Urzua’s declaration that he did not receive the letters along with the exhibits attached to his declaration showing that his law firm’s calendar system did not reflect any deadlines for these claims in February 2018 (Urzua Decl. ¶ 13, Exh. 5) are sufficient to raise a triable issue of fact on this issue.

Accordingly, there is a disputed issue of material fact on whether the six-month statute of limitations provided by Government Code section 945.6, subdivision (a)(1) bars plaintiffs’ claims and summary judgment cannot be granted on this basis. Absent some countervailing policy, however, the two-year statute of limitations provided by Government Code section 945.6, subdivision (a)(2)does bar these claims since plaintiff’s claims accrued in June 2016 and the complaint was not filed until October 3, 2018. Plaintiff, however, argues that there is a countervailing policy in this case for not barring the action on statute of limitations grounds: Equitable Estoppel and Equitable Tolling. These will be discussed below

  1. Equitable Estoppel

The general doctrine of equitable estoppel has been codified: “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” (Evid. Code, § 623.) “To create an equitable estoppel, ‘it is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss.’ ” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384, as modified (Aug. 27, 2003).) If the plaintiff’s delay in commencing a legal action is a result of the defendant’s conduct, then the defendant cannot assert the statute of limitations as a defense. (Id.)

However, as this Court discussed its order on Burbank’s Demurrer to the TAC (Burbank Evid. Exh. H) and as continues to be true here, Plaintiffs have not alleged or offered facts sufficient to create a triable issue of material fact on this issue. While sporadic settlement discussions did occur, there is absolutely no evidence that Burbank induced Plaintiffs to delay in filing their complaint and no evidence that Plaintiffs in fact delayed filing suit because of any act of Burbank.

Plaintiffs do not present any opposition to the estoppel argument.

Accordingly, Plaintiffs have not established a material issue of disputed fact on its claim that equitable estoppel is a bar to the statute of limitations.

  1. Equitable Tolling

“Equitable tolling is a judge-made doctrine ‘which operates independently of the literal wording of the Code of Civil Procedure’ to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” (Lantzy v. Centex Homes, supra, 31 Cal.4th at 370.) The effect of equitable tolling is that the limitations period stops running during the tolling event and begins to run again only when the tolling event has concluded. (Id.)

The doctrine of equitable tolling requires timely notice, and lack of prejudice, to the defendant, and reasonable and good faith reliance on the part of the plaintiff.

(Addison v. State of California (1978) 21 Cal.3d 313, 319.) The doctrine of equitable tolling may be applied in cases involving government entities pursuant to Government Code section 945.6. (Id.)

In Addison v. State of California, the court allowed equitable tolling where the plaintiffs filed an action in federal court and, to avoid duplicitous litigation, delayed filing their action in state court. (Id.)

The court held that there are three factors to be considered when deciding whether the equitable tolling doctrine should be applied: (1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim. (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924.)

Plaintiffs rely on these elements in their Opposition. (Opposition at pp. 9-13.) However, these elements were provided in the context of a plaintiff who has several legal remedies and choses in good faith to pursue one remedy over another by filing the action in federal court, thus tolling the statute of limitations for the action in the state court. (Addison v. State of California, supra, 21 Cal.3d at 319.) Plaintiffs’ only claim here, however, is that the act of filing their government applies their government claim filed in December 2016 as the first legal remedy that tolls the right to file suit. (Opposition at p. 9.)

This argument is inapplicable to the statute of limitations because the act of filing a claim as by provided by Government Code section 945.6, subdivision (a)(1) could not possibly be deemed to be the filing of a “first claim” because that would result in a tolling in every case despite the clearly set forth deadline contained in Government Code section 945.6, subdivision (a)(1). For another “legal action” to tolls the statute of limitations must under the doctrine of equitable tolling, that legal action, such as filing an action is federal court, must have been filed during the limitations period. (Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1505.) There was no such court action” filed here.

California courts have found that acts in connection with settlement negotiations may toll a limitations period. (Union Oil Co. of California v. Greka Energy Corp. (2008) 165 Cal.App.4th 129, 138.) However, Union Oil case, in that case the plaintiff not only requested settlement negotiations. It asked the Plaintiff to withdraw it legal claims pending a promised offer of settlement. (Id.) The court found that it was reasonable for the plaintiffs to delay litigation because the defendant promised the remedy a portion of the damages and it would be unreasonable to expect the plaintiff to jeopardize the possibility of repair by filing a lawsuit. (Id.)

Here, Plaintiffs have produced no evidence that Defendants urged them not to file any legal action during the statute of limitations period. In fact, the denial letter specifically informed Plaintiffs regarding the statute of limitations for filing a legal action.

Accordingly, Plaintiffs have not raised a triable issue of material fact on the question of whether they are entitled to assert equitable tolling of the statute of limitations.

The Motion for Summary Judgment is GRANTED.

Defendant to provide notice.

DATED: November 22, 2019

______________________________

Hon. Robert S. Draper

Judge of the Superior Court


[1] The First Amended Complaint is entitled the “Second Amended Complaint” because Plaintiffs alleged that the court’s electronic filing system would not allow them to file a First Amended Complaint. (Burbank Evid., Exh. I, p. 2.)

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