This case was last updated from Los Angeles County Superior Courts on 09/15/2022 at 16:57:56 (UTC).

LUIS RICARDO TORRES VS CITY OF INDUSTRY, A PUBLIC ENTITY

Case Summary

On 04/01/2020 LUIS RICARDO TORRES filed a Personal Injury - Other Personal Injury lawsuit against CITY OF INDUSTRY, A PUBLIC ENTITY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are KRISTIN S. ESCALANTE and SERENA R. MURILLO. The case status is Pending - Other Pending.
Case Details Parties Dockets

 

Case Details

  • Case Number:

    *******2587

  • Filing Date:

    04/01/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

KRISTIN S. ESCALANTE

SERENA R. MURILLO

 

Party Details

Plaintiff

TORRES LUIS RICARDO

Defendants

CITY OF INDUSTRY A PUBLIC ENTITY

MAJESTIC INDUSTRY HILLS LLC

Attorney/Law Firm Details

Plaintiff Attorneys

RUGA DYLAN ESQ.

HAROUTOUNIAN ALLEN

RUGA DYLAN

POULTER BRIAN

HAROUTOUNIAN ALLEN GABRIEL ESQ.

POULTER BRIAN LEE ESQ.

Defendant Attorneys

CASSO JAMES MARJIL ESQ.

LEWIS ROSEMARIE SUAZO

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 03/06/2023
  • Hearing03/06/2023 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 02/17/2023
  • Hearing02/17/2023 at 10:00 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/16/2022
  • DocketNotice of Ruling; Filed by Majestic Industry Hills, LLC (Defendant)

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  • 08/15/2022
  • Docketat 1:30 PM in Department 29; Hearing on Motion for Terminating Sanctions - Not Held - Taken Off Calendar by Party

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  • 08/15/2022
  • Docketat 1:30 PM in Department 29, Serena R. Murillo, Presiding; Hearing on Motion for Terminating Sanctions - Held

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  • 08/15/2022
  • Docketat 1:30 PM in Department 29; Hearing on Motion for Terminating Sanctions - Not Held - Taken Off Calendar by Party

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  • 08/15/2022
  • Docketat 1:30 PM in Department 29; Hearing on Motion for Terminating Sanctions - Not Held - Taken Off Calendar by Party

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  • 08/15/2022
  • Docketat 1:30 PM in Department 29; Hearing on Motion for Terminating Sanctions - Not Held - Taken Off Calendar by Party

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  • 08/15/2022
  • Docketat 1:30 PM in Department 29; Hearing on Motion for Terminating Sanctions - Not Held - Taken Off Calendar by Party

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  • 08/15/2022
  • DocketMinute Order ( (Hearing on Motion for Terminating Sanctions)); Filed by Clerk

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45 More Docket Entries
  • 08/28/2020
  • DocketDeclaration (Declaration of Adolph Hernandez); Filed by City of Industry, a public entity (Defendant)

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  • 07/15/2020
  • DocketDeclaration (DECLARATION OF MATTHEW M. GORMAN PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(a)(2) RE GOOD FAITH ATTEMPT TO MEET AND CONFER PRIOR TO FILING DEMURRER TO COMPLAINT); Filed by City of Industry, a public entity (Defendant)

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  • 06/17/2020
  • DocketProof of Personal Service; Filed by Luis Ricardo Torres (Plaintiff)

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  • 04/10/2020
  • DocketPI General Order; Filed by Clerk

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  • 04/10/2020
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 04/01/2020
  • DocketCivil Case Cover Sheet; Filed by Luis Ricardo Torres (Plaintiff)

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  • 04/01/2020
  • DocketComplaint; Filed by Luis Ricardo Torres (Plaintiff)

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  • 04/01/2020
  • DocketSummons (on Complaint); Filed by Luis Ricardo Torres (Plaintiff)

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  • 04/01/2020
  • DocketCivil Case Cover Sheet; Filed by Luis Ricardo Torres (Plaintiff)

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  • 04/01/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******2587 Hearing Date: August 15, 2022 Dept: 29

TENTATIVE

Defendant Majestic Industry Hills, LLC’s motion for terminating sanctions is GRANTED. Defendant City of Industry’s joinder to the motion for terminating sanctions is GRANTED. The court orders this action dismissed against Defendant Majestic Industry Hills, LLC, and Defendant City of Industry.

The request for monetary sanctions is DENIED.

Legal Standard

CCP section 2023.030 provides that, "[t]o the extent authorized by the chapter governing any particular discovery method..., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose... [monetary, evidence, and terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process...." CCP section 2023.010 provides that "[m]issues of the discovery process include, but are not limited to, the following:... (d) Failing to respond or to submit to an authorized method of discovery.... (g) Disobeying a court order to provide discovery...."

"The trial court may order a terminating sanction for discovery abuse 'after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.'" (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246).) "Generally, '[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.'" (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

"Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders." (Id. (citing Lang, supra, 77 Cal.App.4th at pp. 1244- 1246); see, e.g., Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal App 3d 481, 491 (disapproved on other grounds in Garcia v. McCucchen (1997) 16 Cal.4th 469, 478, n. 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

Discussion

Defendant Majestic Industry Hills, LLC moves for terminating sanctions against Plaintiff on the ground that Plaintiff failed to comply with the Court's June 1, 2022 order to appear for deposition and pay monetary sanctions.

On June 1, 2022, this Court granted Defendant Majestic Industry Hills, LLC’s motion to compel Plaintiff’s deposition, ordered Plaintiff to appear for deposition, and imposed sanctions in the amount of $717.95 on Plaintiff. (6/1/22 Minute Order.) On June 2, 2022, Defendant filed and served Plaintiff with a Notice of Ruling of the foregoing Court ruling. Defendant served on Plaintiff a second amended notice of taking deposition, scheduled for July 1, 2022. (Lewis Decl., 7.) Defendant attempted to contact Plaintiff by phone and email but received no response. (Id.) Plaintiff again failed to appear for deposition. (Id.) To date, Plaintiff has not appeared for deposition and the payment for the sanctions has not been made. (Id. 8-9.)

The Court finds terminating sanctions action against Plaintiff is appropriate. Plaintiff has failed to appear for deposition, failed to comply with the Court's order to appear for deposition, failed to oppose this motion for terminating sanctions, and failed to pay monetary sanctions imposed against Plaintiff. Thus, it appears imposing less severe sanctions against Plaintiff would not produce compliance, and that Plaintiff is disinterested in prosecuting his case.

As the motion for terminating sanctions is granted, imposing monetary sanctions would be unjust. Thus, the request for monetary sanctions is denied.

Joinder

Although Defendant Majestic Industry Hills, LLC is the one who propounded the discovery, the Court can impose the terminating sanctions on Plaintiff with regards to Defendant City of Industry, even if only one Defendant propounded the discovery, if the court finds it just and that the discovery interests of the Defendant propounding discovery and the other Defendant is closely aligned. (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 301.) “[T]here can be circumstances in which the discovery interests of the propounding party and a co-party are so closely aligned it would be a useless duplication of effort for both parties to pursue the same discovery and invoke the same remedies against an opposing party.” (Id.) Thus, “[i]t is up to the trial court in the exercise of its discretion to determine whether in a particular case the interests of the propounding party and a co-party are sufficiently aligned so that a sanction award to both would be just.” (Id. at 301-302 [emphasis added].)

Here, Defendant City of Industry’s interests are closely aligned with Defendant Majestic Industry Hills because this case stems from the same incident where Plaintiff was allegedly injured when a fence fell onto him, and Plaintiff asserts the same causes of action against both Defendants. Based on that, both Defendants were prejudiced by Plaintiff’s failure to appear for deposition. Moreover, Defendant City of Industry’s counsel was also present at the deposition when Plaintiff failed to appear.

As such, because both defendants’ discovery interests are closely aligned, Defendant City of Industry’s joinder to the motion for terminating sanctions is GRANTED.

Conclusion

Based on the foregoing, Defendant Majestic Industry Hills, LLC’s motion for terminating sanctions is GRANTED. Defendant City of Industry’s joinder to the motion for terminating sanctions is GRANTED. The court orders this action dismissed against Defendant Majestic Industry Hills, LLC, and Defendant City of Industry. The request for monetary sanctions is DENIED.

Moving party is ordered to give notice.



Case Number: *******2587 Hearing Date: June 1, 2022 Dept: 29

TENTATIVE

Defendant Majestic Industry Hills, LLC’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Luis Ricardo Torres is ordered to appear for deposition within 30 days of this order. The request for sanctions is GRANTED. The Court imposes monetary sanctions in the amount of $717.95 against Plaintiff Luis Ricardo Torres and in favor of Defendant Majestic Industry Hills, LLC, to be paid within 30 days of this order.

Legal Standard

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., 2025.010.)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP section 2025.450(a) provides: “If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.” (Code Civ. Proc., 2025.450(a).)

CCP section 2025.450(b) provides: “A motion under subdivision (a)… shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Id., 2025.450(b).)

Discussion

On November 9, 2021, Defendant Majestic Industry Hills, LLC served Plaintiff with a notice of taking deposition to be held on December 1, 2021. (Lewis Decl., Exh. A.) Subsequently, on November 19, 2021, an amended notice of taking deposition was served on Plaintiff, changing the time of the deposition. (Id., Exh. B.) Defendant made numerous efforts to contact Plaintiff to confirm his deposition attendance, with no responses from Plaintiff. (Id., Exh. C.) On December 1, 2021 Counsel for Moving Party and the City of Industry appeared via Zoom for the duly noticed deposition. Plaintiff did not appear, and a Certificate of Non-Appearance was taken. (Id., Exh. D.)

As Plaintiff was properly served with the notice of deposition, did not object under CCP section 2025.410, and failed to appear, the motion to compel Plaintiff to appear for deposition is GRANTED. Plaintiff is ordered to appear for deposition within 30 days of this order.

Sanctions

If a motion under CCP section 2025.450(a) is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP section 2025.450(g)(1).)

As the motion to compel Plaintiff’s deposition is granted, Defendant Majestic Industry Hills, LLC’s request for sanctions is granted, but in a reduced amount due to the simplicity of the motion. Thus, the Court imposes sanctions against Plaintiff and in favor of Defendant Majestic Industry Hills, LLC in the amount of $717.95 ($200 per hour, for 2 hours, plus $251.05 in certificate of non-appearance fees, and $66.90 in filing fees) to be paid within 30 days of this order.

Conclusion

Accordingly, Defendant Majestic Industry Hills, LLC’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Luis Ricardo Torres is ordered to appear for deposition within 30 days of this order. The request for sanctions is GRANTED. The Court imposes monetary sanctions in the amount of $717.95 against Plaintiff Luis Ricardo Torres and in favor of Defendant Majestic Industry Hills, LLC, to be paid within 30 days of this order.

Moving party is ordered to give notice.



b'

Case Number: *******2587 Hearing Date: October 22, 2021 Dept: 29

TENTATIVE

The unopposed Motion to Be Relieved as Counsel for Plaintiff, Luis Ricardo Torres, is GRANTED. Counsel has complied with California Rules of Court 3.1362. The order is effective upon the filing of the proof of service of the order on the Plaintiff. Until then, counsel remains counsel of record.

Moving party is ordered to give notice.

'


b"

Case Number: *******2587 Hearing Date: August 27, 2021 Dept: 29

TENTATIVE

The unopposed Motion to Be Relieved as Counsel for Plaintiff, Luis R. Torres, is DENIED. Counsel did not comply with California Rules of Court 3.1362(d), in that Counsel did not show how it confirmed its client's last known address via FedEx when the instant application was served on Plaintiff by U.S. mail.

Moving party is ordered to give notice.

"


Case Number: *******2587    Hearing Date: December 21, 2020    Dept: 29

Torres v. City of Industry

Demurrer to the Complaint by Defendant City of Industry is OVERRULED. Defendant has 20 days to answer.

In the complaint, Plaintiff alleges that, on May 21, 2019, he was jogging on a pathway in the City of Industry when a large metal fence suddenly and without warning came down on Plaintiff’s person, causing Plaintiff to fall to the ground and suffer severe physical and emotional injuries. Plaintiff sues the City of Industry (“City”) for public entity liability under Government Code sections 815.2, 815.4, 815.6 and dangerous condition of public property under Government Code sections 835, 840.2, 840.4. Plaintiff also asserts a claim for general negligence against non-public entity Does. The City demurs on the ground that the action is time barred under the Government Claims Act.

REQUEST FOR JUDICIAL NOTICE

In ruling on a demurrer involving the presentation of government claims, the court may take judicial notice of the contents of a public entity’s claim file. (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 376.) The court takes judicial notice of the fact that the following documents are in the City’s claims administrator’s file:

A. Letter dated May 29, 2019 from claims examiner to Plaintiff’s former counsel Kevin Danesh, stating that a claim that was received on May 29, 2019 was insufficient because, among other things, it failed to include “a general description of the City’s obligation, what did the City do wrong.”

B. Letter dated June 13, 2019 from Plaintiff’s former counsel to “Field Operations and Legal Department” at the City of Industry, stating that the office had been retained to represent Plaintiff and asking for the City’s insurance information and for any video footage.

C. Letter dated July 2, 2019 from the claims administrator to Plaintiff’s former counsel. The letter states that “notice is hereby given that the claim you presented to the City of Industry on May 29, 2019 was rejected on July 2, 2019 by the City of Industry.” The letter also contained the warning that Plaintiff had six months from notice of rejection for the filing of a complaint.

D. A claim form dated November 6, 2019 submitted on behalf of Luis Torres to the City of Industry regarding an accident that occurred on May 21, 2019. The claim form states, among other things, that “Mr. Torres was jogging on a jogging path when a large metal fence suddenly, and without any warning, came down onto Mr. Torres, causing Mr. Torres to fall to the ground and suffer injury.” It sought recovery for past and future medical treatment, past and future loss of income, loss of earning capacity, and pain and suffering. The claim form lists the address to which notices or communications should be directed as “Allen G. Haroutounian, Stalwart Law Group, 1100 Glendon Ave., Suite 1840, Los Angeles, CA 90024.”

E. Letter dated November 14, 2019, to Plaintiff’s former counsel Kevin Danesh, stating that the claims administrators have completed the initial investigation and determined that the accident was caused by Plaintiff. The letter further states: “We are in receipt of you[r] amended claim. . . . As you are aware your original claim was rejected by the City by letter dated July 2, 2019. This correspondence . .. . does not change the meaning or intent of the rejection or any time limits it may contain.” There is no indication in the file that the notice was sent to Mr. Haroutounian or to the address listed in the claim form as the address to which communications were to be sent.

The court takes judicial notice of the fact that these documents were contained in the court file and takes judicial notice of the contents of the documents. The court does not take judicial notice of the truth of the matters asserted in the documents.

The court notes that the Request for Judicial Notice asks the court only to take judicial notice of these documents. The Request does not ask the Court to take judicial notice of the statements in the declaration of Adolph Hernandez, nor may the court properly do so (other than to the extent that Mr. Hernandez authenticates the documents). For example, among other things, the court does not take judicial notice of the statements in paragraph 2 of the declaration, in which Mr. Hernandez states that he received a letter from Plaintiff’s former counsel on May 29, 2019 and describes its contents. The purported letter is not attached. The court cannot conclude that these statements are not reasonably susceptible to dispute and thus they are not the proper subject of judicial notice.

Nor does the court take judicial notice of Mr. Hernandez’s characterization of documents in the claims file. For example, the court does not take judicial notice of Mr. Hernandez’s statement that the letter dated June 13, 2019 was “in response to” the notice of insufficiency.

DISCUSSION

“Subject to exceptions listed in Government Code section 905, before suing a public entity, the plaintiff must present a timely written claim for damages to the entity.” (Rubenstein v. Doe No. 1 (2017) 3 Cal. 5th 903, 906, as modified on denial of reh'g (Nov. 1, 2017).) “Compliance with the claim requirement is a condition precedent to suing the public entity.” (Id.) The claim must be presented “not later than six months after the accrual of the cause of action.” (Gov. Code, ; 911.2, subd. (a).)

Subject to certain exceptions not applicable here, if a claim is made and the public entity gives notice of rejection of the claim in accordance with section 913, any suit against the public entity must be brought “not later than six months after the date such notice is personally delivered or deposited in the mail.” (Gov. Code ; 945.6, subd. (a)(1).) If written notice of the rejection is not given in accordance with section 913, the claimant has two years from the accrual of the cause of action to file the action. (Id.)

Here, the complaint alleges that the accident occurred on May 21, 2019. The complaint further alleges that on November 6, 2019, Plaintiff “presented to Defendant City of Industry a timely Public Entity Claim Reporting Form for All Persons or Property to Defendant the City of Industry as required pursuant to Government Code section 911.2. Defendant City of Industry took no action within 45 days of receipt of the claim. Thus, pursuant to Government Code section 912.4, the claim was deemed rejected.” The action was filed on April 1, 2020.

Thus, if the issue were to be determined solely on the facts alleged in the complaint, the demurrer would have to be overruled. The November 6, 2019 claim was submitted within six months of the alleged incident and no notice of rejection was provided. Further, the action was filed less than six months after the November 6, 2019 claim was allegedly submitted, and thus the action would be timely regardless whether the six-month or two-year statute of limitations applied.

The City argues, however, that the allegations in the complaint are conclusively controverted by the documents in the City’s claim administration files for which the court may take judicial notice. However, contrary to the City’s argument, the City’s claims file does not reflect that a claim was submitted on May 29, 2019. The City has not presented any document that purports to be such a claim. The City relies on the declaration of Adolph Hernandez to establish that fact, but the court cannot take judicial notice of Mr. Hernandez’s statements regarding the purported claim and the City may not rely on extraneous evidence for which the court cannot take judicial notice in ruling on the demurrer.

Nor may the court take judicial notice of the fact that a claim was submitted on May 29, 2019 merely because the City’s July 2, 2019 letter refers to such a claim. The City’s statement could potentially give rise to an inference that such a claim was, in fact, submitted, but the court cannot take judicial notice of the truth of the City’s statement. (See, e.g., Fowler v. Howell (1996) 42 Cal. App. 4th 1746, 1749 [in analogous context, the court held that the court could take judicial notice of the fact that a government agency had made a finding but could not take judicial notice of the truth of the finding.].) The City’s statement in the letter could reasonably be controverted by evidence (such as testimony by the person purporting to submit such a claim) that no claim was in fact submitted.

In the reply papers, the City appears to recognize that the court cannot take judicial notice of the fact that a claim was submitted in May 2019. Rather, the City suggests that the only thing that matters is that the City sent a rejection notice on July 2, 2019. But the sending of the rejection notice triggers the statute of limitations under section 945.6 only if the rejection notice is sent in response to a claim. (See Gov. Code ;; 945.6 [providing that the triggering event for the six-month statute of limitations period is “written notice in accordance with section 913”]; 913 [section 913 concerns written notice of actions taken under, among other things, section 912.6]; 912.6 [section 912.6 concerns board actions taken on a “claim,” making clear that the presentation of a claim is a necessary predicate to a rejection for which notice may be given under section 913].)

Here, as previously explained, the court cannot take judicial notice that a claim was submitted, and therefore cannot take judicial notice of the fact that the rejection letter sent on July 2, 2019 triggered the commencement of the six-month statute of limitations period. Not every communication with between a potential claimant and a government entity constitutes a “claim” for purposes of the government claims statutes. (See, e.g., Green v. State Center Community College Dist. (1995) 34 Cal. App. 4th 1348.)

Even if the court could somehow take judicial notice of the fact that there was some communication with Plaintiff’s former counsel that was sufficient to constitute a “claim” under the statutes (which the court cannot do), the court cannot determine, based on judicially noticeable facts, that the November 6, 2019 claim was necessarily an amendment that related back to the original claim, such that the purported rejection of the original claim triggered the commencement of the statute of limitations period.

Section 901.6, subd. (a) provides: “(a) A claim may be amended at any time before the expiration of [the six month period for submission of claims] or before final action thereon is taken by the board, whichever is later, if the claim as amended relates to the same transaction or occurrence which gave rise to the original claim. The amendment shall be considered a part of the original claim for all purposes.”

But this rule does not apply where “the first claim was legally deficient and the second claim was necessary to preserve the right to bring” the tort action. (Sofranek v. County of Merced (2007) 146 Cal. App. 4th 1238, 1248 [explaining the holding in Norwood v. Southern California Rapid Transit Distr. (1985) 164 Cal. App. 3d 741].) In Sofranek, the rejection of the amended claim did not restart the limitations period because Sofranek’s “first claim was proper and a new claim was not a necessary predicate to filing a lawsuit”; rather, the amended claim constituted an “unnecessary amendment.” (Sofranek, supra, 146 Cal. App. 4th at p. 1249).

Here, the court cannot determine, based on judicially noticeable facts, that the November 6, 2019 claim was an “unnecessary amendment” rather than a “necessary predicate to filing a lawsuit.” Rather, the documents in the claim file suggest precisely the opposite. The claim administrator’s letter states that the initial communication did not even include a “a general description of the City’s obligation,” or a description of what the City was alleged to have done wrong. It is an open issue as to whether the purported initial claim was sufficient to allow a lawsuit or whether the subsequent claim was a necessary predicate to filing suit.

In sum, the court cannot determine from facts alleged in the complaint or from judicially noticeable facts that the action is time-barred under Government Code section 945.6. The court does not prejudge whether the City will be able to show entitlement to summary judgment on this basis.

Moving party is ordered to give notice.



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