Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00113576, Geoffrey T. Glass, Judge.
Sariol Legal Center, Frank R. Sariol and Edward L. Solomon for Plaintiff and Appellant.
Joseph W. Fletcher, City Attorney, and Laura A. Rossini, Assistant City Attorney, for Defendants and Respondents.
OPINION
O’LEARY, J.
Jose Jimenez appeals from a judgment in favor of the City of Santa Ana and Theron Reed (collectively the City) entered after the trial court granted its motion for summary judgment. He contends there were triable issues of material fact as to whether a six-month or two-year statute of limitations period applied to Jimenez’s tort claim under Government Code section 945.6. We reject his contentions and affirm the judgment.
All further statutory references are to the Government Code, unless otherwise indicated.
FACTS
Jimenez’s complaint alleged that on January 13, 2007, one of the City’s police officers, Reed, collided with him as a result of Reed’s negligent operation of his police vehicle. Jimenez alleged that while making a turn, Reed swerved, lost control, and collided with a parked tow truck Jimenez was standing by, causing him physical injury.
The City filed a motion for summary judgment on the grounds Jimenez’s complaint was barred by a six-month statute of limitations. The City’s statement of undisputed material facts set forth the following facts. On March 5, 2007, attorney Farrah Mirabel filed a civil claim with the City on behalf of Jimenez and Jose Amaro, the owner of the parked tow truck. The claim alleged both Jimenez and Amaro sustained damages during the collision on January 13, 2007, at 9:58 a.m., at the intersection of Clara Street and 3rd Street in Santa Ana. The claim listed the Law Offices of Farrah Mirabel as the address to which notices regarding the claim should be sent. The claim alleged Reed’s police department vehicle collided with Amaro’s tow truck while it was preparing to tow another vehicle, “causing property damage [and] bodily injuring [sic] our client.” The claim indicated the amount of alleged damages was undetermined and injuries included a “left wrist & right leg.” The claim listed the name Dr. Salvador Saldana at Coastal Community Hospital and his telephone number. Lastly, the claim stated pictures were available upon request.
On May 4, 2007, attorney Shu Jung Wong filed a separate claim with the City on behalf of Jimenez. The claim pertained to the same occurrence from which the first claim arose, and directed notices to be sent to Wong’s office. The May 4 claim described the accident in greater detail, but regarding injuries, damages, witnesses, and other possibly helpful information, the second claim stated all were unknown but information would be forwarded when available.
Zachary Gifford, the City’s liability claims coordinator, sent a letter to Wong stating the City had already received a claim on Jimenez’s behalf. Wong responded, indicating her office now represented Jimenez and enclosed a letter from Mirabel confirming the change in representation.
On October 1, 2007, Gifford sent Wong a letter rejecting Jimenez’s claim submitted on March 5, 2007. The rejection letter contained this warning: “Subject to certain exceptions, you have only six (6) months from the date this notice is personally delivered or deposited in the mail to file a state court action on this claim. See... [s]ection 945.6.” Jimenez filed his complaint on October 20, 2008, more than one year after the mailing of the letter rejecting his claim.
In his opposition to the City’s motion, Jimenez contended the May 4 amended claim submitted by Wong was the proper claim and not a mere copy of the March 5 claim filed by Mirabel because the March 5 claim was a joint claim and failed to indicate who suffered property damage and who suffered personal injury. He further contended Gifford’s letter was only a notice of rejection, not an actual rejection, because the amended claim submitted on May 4 was rejected by law 45 days after it was presented. Jimenez argued the City failed to reject his second claim, thereby triggering the two-year limitations period under section 945.6, subdivision (a)(2), rendering his suit timely filed.
Jimenez also asserted Gifford’s October 1 letter of rejection failed to comply with section 913 by falsely stating the date of rejection of the March 5 claim was October 1, 2007, when in fact the claim was rejected by operation of law on April 19, 2007. He argued the letter of rejection also failed to comply with section 915.4 because it was addressed to Jimenez’s current attorney, Wong, whereas the section mandates the notice of rejection be mailed to either the person (and at the address) on the claim form or the claimant himself.
The trial court found Jimenez’s March 5 and May 4 claims to be legally identical. “[T]he later claim did not change the facts related to liability..., nor did it change the theory of liability..., nor did it change the claimed injuries.... There was no amendment as contemplated by the statute.” The court “[found] that the City met its initial burden of showing that the present lawsuit is barred by the limitations of suit statute.” The trial court went on to explain, “While the City would have to reject separately any amendments that either corrected a deficient claim or alleged new facts or injuries, there is no issue as to the sufficiency of the first claim and therefore there is no requirement that resubmission of an existing claim has to be separately rejected.”
With regard to whether the City could effectively reject a claim, thereby triggering the six-month limitation period, after the 45-day period for automatic rejection passed, the court noted, “[T]he law also allows a public entity to reject a claim at any time, even if the claim had already been rejected by operation of law. The statute of limitations would be six months after the denial, even if the two years had not run.... [¶]... ‘The two-year statute only applies when no written notice is sent. Written notice given at any time triggers the six-month limitations period, even if it is beyond the 45-day period in which a public entity is supposed to act upon claims.’ [Citation.]”
Finally, the court rejected Jimenez’s contention the rejection letter did not comply with the statute. “[The rejection letter] complied with the requirements of... section 913. The rejection date was properly stated to be [October 1, 2007] because the City does not waive its right to deny a claim once the 45 day period has passed.... The claim was properly sent to the correct address because attorney Wong had informed the City that he had taken over representation of... Jimenez as of [June 6, 2007, ] and provided a statement signed by [Jimenez] to that effect.”
“Based on the foregoing, as a matter of law, the complaint was not filed within [six] months of the notice of rejection of the claim and the action is therefore time barred.” The court granted the City’s motion for summary judgment and entered judgment in favor of the City.
DISCUSSION
“Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant seeking summary judgment bears the initial burden of proving the ‘cause of action has no merit’ by showing that one or more elements of plaintiff’s cause of action cannot be established or there is a complete defense. [Citations.] Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. [Citation.]” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.)
The trial court’s ruling on a motion for summary judgment is reviewed de novo. “[W]e independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. [Citation.]” (Weiner v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]” (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1249-1250.)
Before a civil action for damages based on personal injury may be brought against a public entity, a written claim must be presented to the entity within six months of the accrual of the cause of action. (§ 911.2) “‘The public entity [then] has 45 days to grant or deny the claim; if the claim is not acted upon within 45 days, it is deemed rejected by operation of law. (§ 912.4.) If written notice of rejection is sent, suit must be brought within six months. (§ 945.6, subd. (a)(1).) If no written notice is given, the claimant is allowed two years from the accrual date to file the suit. (§ 945.6, subd. (a)(2).)’ [Citation.]” (Schaefer Dixon Associates v. Santa Ana Watershed Project Authority (1996) 48 Cal.App.4th 524, 531.) If a public entity rejects a claim, to trigger the shorter six-month limitations period, section 913 requires notice be sent to the claimant with this warning: “[s]ubject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See [section] 945.6.”
Section 915.4 requires notice under section 913 either be “[p]ersonally [delivered]... to the person presenting the claim or making the application” or “[mailed]... to the address, if any, stated in the claim or application as the address to which the person presenting the claim or making the application desires notices to be sent or, if no such address is stated in the claim or application, by mailing the notice to the address, if any, of the claimant as stated in the claim or application.”
Section 910.6, subdivision (a), states “[a] claim may be amended at any time before the expiration of the period designated in [s]ection 911.2 or before final action thereon is taken by the [public entity], 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.”
In connection with his arguments, Jimenez has requested that we take judicial notice of various dictionary definitions of the word “amend” pursuant to Evidence Code section 451, subdivision (e). The motion is granted.
Here, the following facts are undisputed: Jimenez’s March 5 and May 4 claims were filed with the City within six months of the accident; the City mailed a notice to Wong on October 1, 2007, rejecting Jimenez’s March 5 claim; and Jimenez did not file suit until October 20, 2008, more than one year after the rejection notice’s mailing. However, the parties disagree as to whether Jimenez timely filed suit. Jimenez argues the two-year limitations period applies under section 945.6 because his May 4 claim was an amended claim (or amendment to the first claim) and the rejection notice did not properly notice the rejection of the second claim. Jimenez contends this means the City’s rejection did not substantially comport with the requirements of sections 913 or 915.4.
We first consider whether the second claim filed May 4 amounted to an amended claim that had to be separately rejected. It did not.
“To qualify as an amendment, the document submitted by the claimant should be carefully labeled as such and should be formulated in amendatory language.” (Cal. Gov. Tort Liability Prac. (4th ed. Cal. CEB 1999) Preparation, Presentation, and Consideration of Claim, § 6.34, p. 297.) Otherwise claimants could execute an end-run around the statute of limitations by re-filing claims with unchanged or only slightly changed information. Jimenez’s second claim is more like the “revised statement” of damages not deemed to be an amended claim in Isaacson v. City of Oakland (1968) 263 Cal.App.2d 414, 418. The trial court correctly found Jimenez’s first and second claims to be legally identical for the purpose of putting the public entity on notice he was attempting to file a valid claim. Neither the facts, theory of liability, nor the injuries claimed varied between the two claims; in fact, the second claim had less information than the first.
Jimenez cites Mandjik v. Eden Township Hospital District (1992) 4 Cal.App.4th 1488 (Mandjik), for the proposition that if no notice or improper notice was given as to the second of two claims presented within the claims filing period, a claimant has two years from the accrual of the cause of action within which to sue. His reliance is misplaced.
In Mandjik, plaintiffs’ first claim letter was returned as untimely. (Mandjik, supra, 4 Cal.App.4th at pp. 1494-1495.) The public entity’s letter in response stated the plaintiffs’ only recourse was to apply for leave to present a late claim. (Id. at p. 1495.) Plaintiffs then submitted an application for leave to present a late claim to defendant, accompanied by a “Claim for Damages.” (Ibid.) The public entity wrote plaintiffs their application for leave to present a late claim was denied and their “claim itself [had] not been considered and [could not] be considered....” (Ibid.)
“Neither letter sent by defendant to plaintiffs contained any of the warnings set forth in section 913. The first letter treated plaintiffs’... notice as a claim and returned it as untimely; the letter specifically stated ‘no action was taken on the claim.’ The second letter denied plaintiffs’ application for leave to present a late claim; like the first letter, it specifically stated ‘the claim itself has not been considered and cannot be considered.’” (Mandjik, supra, 4 Cal.App.4th at p. 1499.) “[D]efendant’s failure to give specific written notice of rejection under section 913 entitle[d] plaintiffs to a two-year statute of limitations under section 945.6, subdivision (a)(2).” (Id. at p. 1501.)
Unlike Mandjik, here the City evaluated Jimenez’s claim for damages and sent a letter of notice of rejection to his attorney, Wong. The letter contained the warning required by section 913 stating Jimenez had only six months to file suit against the City. Jimenez did not file suit against the City until October 20, 2008, more than one year after the notice’s mailing. Jimenez’s suit is time barred as he failed to file within the six-month period designated by section 945.6.
Jimenez also relies upon Norwood v. Southern California Rapid Transit District (1985) 164 Cal.App.3d 741 (Norwood) to support his contention the May 4 claim is the only proper claim and therefore had to be separately rejected. Again, his reliance is misplaced.
In Norwood, plaintiff timely filed a claim of wrongful death with the public entity, which responded by mailing notice of rejection of the claim. (Norwood, supra, 164 Cal.App.3d at p. 743.) However, plaintiff was not the decedent’s sole heir, and together with her siblings, she timely filed an amended claim for damages on behalf of all decedent’s heirs. (Ibid.) The amended claim was denied by operation of law 45 days after receipt by the board per section 911.6. (Ibid.) Plaintiff and her siblings then filed suit for wrongful death. (Ibid.) The trial court granted the public entity’s motion for summary judgment on the grounds the six-month statute of limitations began to run when the first claim was rejected, rendering the suit untimely filed. (Ibid.)
In reversing, the court concluded the first claim was defective because it did not include all heirs: “The proper claim was the amended claim, which notified respondent for the first time of the legally correct plaintiffs to the action.” (Norwood, supra, 164 Cal.App.3d at p. 744.) Former Code of Civil Procedure section 377, under which the claim was filed, has been found to preclude wrongful death actions brought by some but not all heirs to a decedent. (See Watkins v. Nutting (1941) 17 Cal.2d 490, 498; Perkins v. Robertson (1956) 140 Cal.App.2d 536, 542.)
Here, there was no similar defect in Jimenez’s March 5 claim. It listed claimants’ names, their contact information, the damage resulting from the collision, and the phone number of the doctor who appears to have treated Jimenez. As aptly noted by the court below, “there is no issue as to the sufficiency of the first claim and therefore there is no requirement that resubmission of an existing claim has to be separately rejected. Any other ruling would allow a claimant to obtain unlimited extensions of time for filing suit by the simple expediency of refiling his claim every so often.”
Jimenez contends even if the City rejected the correct claim, the notice of rejection sent to Wong did not comply with the requirements of section 915.4. We disagree. Section 915.4 requires notices of rejection be either personally delivered to the person presenting the claim or “[mailed]... to the address, if any, stated in the claim or application as the address to which the person presenting the claim or making the application desires notices to be sent or, if no such address is stated in the claim or application, by mailing the notice to the address, if any, of the claimant as stated in the claim or application.” Jimenez’s March 5 claim stated notices should be sent to his attorney, Mirabel. Wong subsequently provided the City with documentation she was now Jimenez’s attorney. Accordingly, the City mailed the notice of rejection to Wong’s office in full compliance with the address requirement of section 915.4.
Finally, we reject Jimenez’s contention the two-year limitations period applied because the City did not reject his claim within 45 days after receipt. Jimenez argues his March 5 claim was rejected by law on April 19, 2007. He asserts the notice of rejection sent to Wong was defective because it misrepresented the date and type of rejection.
A public entity may “give notice of rejection of a claim at any time and thereby commence the running of a six-month statute of limitations.” (Glorietta Foods, Inc. v. City of San Jose (1983) 147 Cal.App.3d 835, 838, italics added.) The two-year limitations period only applies in situations where the public entity fails to give notice of rejection of the claim. (Ibid.) Section 913 does not require a public entity to indicate whether a claim has been rejected by operation of law. (Chalmers v. County of Los Angeles (1985) 175 Cal.App.3d 461, 465 (Chalmers).)
Here, the six-month limitations period applies because the City sent notice of rejection to Wong on October 1, 2007, in accordance with section 915.4. The City did not waive its right to deny a claim 45 days after receipt. The City reserved the right to send notice of rejection and trigger the six-month limitations period at any time. (Glorietta Foods, Inc. v. City of San Jose, supra, 147 Cal.App.3d at p. 838.) The failure to indicate the manner of rejection of Jimenez’s claim did not render the notice defective. (Chalmers, supra, 175 Cal.App.3d at p. 465.)
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.