Opinion
G054071
08-11-2017
ORANGE COUNTY FIRE AUTHORITY, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; MEDIX AMBULANCE SERVICE, INC., Real Party in Interest.
Woodruff, Spradlin & Smart and M. Lois Bobak for Petitioner. No appearance for Respondent. Law Offices of Michael Leight, Michael Leight and John Gloger for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00773054) OPINION Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, John C. Gastelum, Judge. Petition granted. Woodruff, Spradlin & Smart and M. Lois Bobak for Petitioner. No appearance for Respondent. Law Offices of Michael Leight, Michael Leight and John Gloger for Real Party in Interest.
I. INTRODUCTION
An ambulance service and a county fire authority became embroiled in a dispute about the terms of a 2004 contract - actually a number of contracts made with various cities serviced by the authority. The county fire authority believed the contracts required the ambulance service to dedicate a certain number of ambulances to each city in the county who had contracts with the service. The ambulance service, on the other hand, believed that the contracts allowed it to use a "fluid deployment approach" which meant ambulances could circulate among several cities. The difference was that under the service's interpretation it didn't have to deploy as many ambulances as it had to under the fire authority's interpretation. (See Medix Ambulance Service v. Orange County Fire Authority, Inc. (May 25, 2010, G042031) [nonpub. opn.] at p. 2 (Medix I).)
In 2007, the ambulance service sued the fire authority, but not for damages. It sought only various forms of injunctive relief to establish that its interpretation of the contracts, allowing the fluid approach, was the correct one. (See id. at pp. 1-2.) Failing to obtain a preliminary injunction at the beginning of the litigation, the ambulance service appealed, only to have this court dismiss its appeal in 2010. We noted that all the contracts had expired by August 2009, so there was no remedy by way of injunctive relief that a court could provide the ambulance service in May of 2010. (See id. at pp. 2-3.)
Five years later, in 2015, the ambulance service sued the county authority for damages in a new action. The authority demurred on the ground that the ambulance service had not complied with the Government Tort Claims Act (Gov. Code, §§ 810 et seq., especially § 911.2, subdivision (a)) in failing to present a claim prior to filing the lawsuit. (See Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208 (Shirk) ["Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity."].) The trial court overruled the demurrer on the rationale that certain "communications in the prior action of Plaintiff's intent to amend the complaint to allege a cause of action for monetary damages constitute[d] a 'claim as presented,'" triggering a duty on the authority to notify the ambulance service of the defects in that claim, thus obviating the need for notice.
All statutory references in this opinion are to the Government Code unless otherwise indicated. All references to the "Tort Claims Act" to the sections 810 et seq.
The fire authority sought writ relief. We scheduled an order to show cause to explore whether these "communications in the prior action," either collectively or individually, rose to the level of being a "claim as presented."
We now explain that those communications - all statements of intention to amend the prior and now defunct injunctive relief action to add a claim for damages - did not constitute a cognizable claim. Accordingly, we grant the fire authority's petition for a writ of mandate to require the trial court to vacate its order overruling the demurrer and enter a new order sustaining the demurrer without leave to amend.
II. BACKGROUND
In 2004, Medix Ambulance Service (Medix) entered into exclusive contracts with 11 Orange County cities serviced by the Orange County Fire Authority (the Fire Authority, sometimes the "OCFA"). In 2007, a dispute arose between Medix and the Fire Authority as to whether Medix could use a fluid deployment system which allowed its ambulances to circulate in several of the cities rather than having a certain number of ambulances dedicated to a given city. The dispute meant the difference between having to deploy 24 ambulances rather than the 16 Medix had been using.
In February 2009, Medix filed an action for injunctive and declaratory relief ("the 062 action") seeking a declaration that its fluid response approach was not in conflict with any of the 11 contracts, and an injunction restraining the Fire Authority from taking any action predicated on Medix being in breach of those contracts. Medix asserted in its complaint that it had "no adequate remedy at law" because the Fire Authority's position would completely destroy its business, and "it will be unreasonably difficult or impossible for Medix to determine the precise amount of damage that Medix will suffer thereby." Medix also sought a preliminary injunction, which it did not obtain because the trial court thought Medix had not shown a probability of prevailing on the merits. (Medix I, supra, at p. 2.) Medix then appealed from the order denying that injunction.
Orange County Superior Court case number 30-2009-00118062.
But the 11 contracts were set to expire August 31, 2009, of their own accord. By the time the appeal was heard, the contracts had expired. We reasoned that in the wake of their expiration, the only "possible" order that might get Medix relief was an order to prevent the Fire Authority "from failing to extend the contracts," but even then Medix's "remedy is not an injunction." Reversal of the denial of the preliminary injunction still would not give Medix "the right to resume providing ambulance services under the contracts." We dismissed the appeal as moot.
It appears one contract - with Mission Viejo - was renewed.
Medix dismissed the 062 action without prejudice in March 2011. But prior to that dismissal it had made four statements in documents filed with the trial court which Medix now points to as "claims" presented to the Fire Authority for damages:
(1) A case management statement filed June 17, 2009, while the appeal in Medix I was pending. In that case management statement the description of the "Type of case" on page 1 mentioned only equitable relief. But under item 16, "Other motions," Medix wrote: "Medix may file a motion for leave to file a First Amended Complaint adding an additional cause of action for damages against OCFA."
(2) A status report filed in mid-June 2010, almost a year later, in the aftermath of this court's opinion in Medix I, and while Medix's petition for rehearing was yet pending. Under the heading "Medix's Intentions," this status report said that if the rehearing petition were denied and if Medix decided not to petition the Supreme Court for review (or if it did and the petition for review were denied), then Medix "will first seek a stipulation from defendant Orange County Fire Authority (OCFA) for leave to file an amended pleading stating a claim for damages against OCFA and others." It next said, "If OCFA will not stipulate to the filing of an amended pleading, Medix will file a motion seeking leave to file an amended pleading stating additional causes of action and, potentially, adding parties."
(3) A declaration of Medix's attorney filed in mid-October 2010, the purpose of which was to inform the trial court of the status of the appeal in preparation for a trial court status conference scheduled for October 13, 2010. In that declaration the attorney noted that remittitur had issued the previous July, so the order dismissing the appeal was now "final and non-appealable," but then added: "Medix intends to proceed with the case but will first seek a stipulation from OCFA for leave to file an amended pleading stating a claims for damages against OCFA and others." The next paragraph went on: "If OCFA will not stipulate to the filing of an amended pleading, Medix will file a motion seeking leave to file an amended pleading stating additional causes of action and, potentially, adding parties." The main point of the declaration was that Medix needed more time: "Consequently, Medix asks that the court give Medix to and including 1 December 2010 to either seek and obtain the stipulation and file and serve the amended pleading, or, if OCFA will not stipulate, that the court give Medix to and including 1 December 2010 to file its motion seeking leave to file a First Amended Complaint."
(4) A second declaration from Medix's attorney filed in late October 2010 - this one in direct response to an order to show cause (OSC) issued by the trial judge at the October 13, 2010 status conference - for monetary sanctions and terminating sanctions "for failure to prosecute this case." After outlining the chronology of the litigation to date (and averring that the delay in prosecution was largely the result of the appeal), the declaration ends with the attorney's statement: "My client and I ask that the court dismiss the OSC, that it set a date for my client's motion seeking leave to amend its pleading to state a cause of action for monetary damages against OCFA and others and that it set a trial date giving the parties time to conduct discovery and prepare the case for trial."
For reasons not apparent in our record, Medix dismissed the 062 action without prejudice in 2011. Four years after that, it filed the instant suit for damages against the Fire Authority (the "054 action"). The Fire Authority demurred, based on its assertion Medix had failed to comply with the Government Tort Claims Act. As far as our record shows, there had been no communication between Medix and the Fire Authority in the period between the March 2011 dismissal of the 062 action by Medix and the 2015 filing of the 054 action, so the issue rested entirely on the four filings made in the course of the 062 action. The trial court reasoned that those "communications" of Medix's "intent to amend the complaint to allege a cause of action for monetary damages" constituted a "claim as presented" under section 911, which meant the Fire Authority was under a duty to notify Medix of any defects in its claim. Not having done so, the trial court reasoned, the Fire Authority had waived the Tort Claims defense. The trial court thus overruled the Fire Authority's demurrer. This writ proceeding followed.
Orange County Superior Court case number 30-2015-00773054.
III. DISCUSSION
A. The Threshold Section 946 .4 Problem
We first deal with a complete technical defense to a complete technical defense. A statute, section 946.4, eliminates the need to make any sort of claim to a public agency at all if the agency against which the claim is made has not filed a statement "as required by Section 53051." Under section 53051 public agencies are required, within 70 days of their coming into legal existence, to file a document containing certain facts about the agency with both the Secretary of State and the county clerk in each county in which the agency maintains an office. This statement must contain certain information. In this writ proceeding, Medix asserts that the Fire Authority never complied with sections 946.4 and 53051, hence there is no need for us to reach the issue of whether the four filings in the 062 action amounted to claims or not. For Medix, section 946.4 provides a complete refutation of the Fire Authority's Tort Claims Act defense.
Section 946.4 provides: "(a) Where provision is made by or pursuant to law that no suit may be brought against a public agency as defined in Section 53050 unless and until a claim is presented to the agency, the failure to present a claim does not constitute a bar or defense to the maintenance of a suit against such public agency if, during the 70 days immediately following the accrual of the cause of action: [¶] (1) No statement pertaining to the public agency is on file, or is placed on file, in the Roster of Public Agencies in the office of the Secretary of State and of the county clerk of each county in which the public agency then maintains an office, as required by Section 53051; or [¶] (2) A statement or amended statement pertaining to the public agency is on file, or is placed on file, in the Roster of Public Agencies in the office of the Secretary of State and of the county clerk of each county in which the public agency then maintains an office, but the information contained therein is so inaccurate or incomplete that it does not substantially conform to the requirements of Section 53051. [¶] (b) On any question of fact arising within the scope of paragraphs (1) and (2) of subdivision (a), the burden of proof is upon the public agency. [¶] (c) This section is inapplicable where the presentation of a claim is required by a claims procedure established by agreement made pursuant to Section 930.2 unless the procedure so prescribed requires that the claim be presented to the governing body of the public agency or to a person listed in Section 53051." (Italics added.)
Section 53051 provides: "(a) Within seventy (70) days after the date of commencement of its legal existence, the governing body of each public agency shall file with the Secretary of State on a form prescribed by the Secretary of State and also with the county clerk of each county in which the public agency maintains an office, a statement of the following facts: [¶] 1. The full, legal name of the public agency. [¶] 2. The official mailing address of the governing body of the public agency. [¶] 3. The name and residence or business address of each member of the governing body of the public agency. [¶] 4. The name, title, and residence or business address of the chairman, president, or other presiding officer, and clerk or secretary of the governing body of such public agency. [¶] (b) Within 10 days after any change in the facts required to be stated pursuant to subdivision (a), an amended statement containing the information required by subdivision (a) shall be filed as provided therein. The information submitted to the Secretary of State shall be on a form prescribed by the Secretary of State. [¶] (c) It shall be the duty of the Secretary of State and of the county clerk of each county to establish and maintain an indexed 'Roster of Public Agencies,' to be so designated, which shall contain all information filed as required in subdivisions (a) and (b), which roster is hereby declared to be a public record."
The obvious purpose of section 946.4 is simply stated: You can't forfeit your lawsuit against an agency because you didn't send it a claim if you don't know where and to whom to send it. (See Rogers v. Board of Education (1968) 261 Cal.App.2d 355, 359 [basis of section 946.4 "is to provide the means for identifying public agencies and the names and addresses of their designated officers, to enable prospective claimants to comply with the applicable claims procedures"].)
We agree with the trial court's conclusion the Fire Authority did comply with section 946.4. In its minute order overruling the demurrer, the trial court took judicial notice of filings of "Statements of Facts Roster of Public Agency Filing" forms (California Secretary of State form N/PSF 405 (REV. 05/09) complete with cover letters to the Secretary of State's special filings unit dated August 8, 2014 and July 28, 2015, plus corresponding postal receipts to the Orange County Clerk/Recorder. The trial court also, though impliedly, took judicial notice of the same filing cover letter and postal receipts for the Fire Authority's statement filed August 1, 2013.
Those documents were submitted in the Fire Authority's reply papers and are not explicitly mentioned in the trial court's minute order. But except for the dates (and changes in the various city officers listed in the 22 city members of the authority), they are the same as the documents the trial court did take notice of.
Medix proffers two arguments in favor of its section 946.4 argument. First, it relies on Edna Valley Assn. v. San Luis Obispo County etc. Coordinating Council (1977) 67 Cal.App.3d 444 (Edna Valley) for the blanket proposition that courts can't take judicial notice of the acts of public agencies that are the creations of city or county governments. But the proposition is the product of too broad a reading of Edna Valley, and in any event is an untenable one.
Edna Valley arose out of a challenge to an environmental impact report (EIR) adopted by a city and county planning and coordinating council in regard to a regional transportation plan. (Edna Valley, supra, 67 Cal.App.3d at p. 446.) The trial court had sustained the council's demurrer on the ground its transportation plan was exempt from any requirement to prepare an EIR at all. After first rejecting that argument (the plan did require an EIR) the appellate court turned to the council's argument that the contents of the council's EIR could be judicially noticed and found "sufficient as a matter of law." (Id. at p. 449.) The Edna Valley court rejected that idea on the premise the "only authorization" for taking judicial notice of the EIR was Evidence Code section 452, subdivision (c), which allows judicial notice of the official acts of the legislative department of any state (including obviously California). (Ibid.) Relying on a 1973 opinion that had refused to take judicial notice of city police review board records (Marino v. City of Los Angeles (1973) 34 Cal.App.3d 461, 465 (Marino)) on the theory cities' official actions cannot be judicially noticed, Edna Valley reasoned that because the respondent council was itself the "creature of the County of San Luis Obispo and of the incorporated cities of that county," the council's acts could not be "deemed to be acts of either the State of California or of one of its subdivisions." (Edna Valley, supra, 67 Cal.App.3d at p. 450.)
The provision states: "Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: [¶] . . . [¶] (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States."
The Marino court worked on the assumption that while the official acts provision of Evidence Code section 452 includes counties, it doesn't include cities. (See Marino, supra, 34 Cal.App.3d at p. 465.)
The Edna Valley court appears to have overlooked (or the parties did not bring to the court's attention) subdivision (b) of section 452, which allows judicial notice of "legislative enactments issued" by "any public entity in the United States." Since the coordinating council in Edna Valley was obviously the legislative creation of public entities (i.e., local city and county governments) in California, Edna Valley's rationale that the "acts" of the incorporated cities of a certain county were beyond judicial notice seems at best overinclusive. And indeed, courts regularly take judicial notice of legislative actions on the part of cities (e.g., Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) 245 Cal.App.4th 1265, 1269, fn. 2; Geraghty v. Shalizi (2017) 8 Cal.App.5th 593, 602, fn. 4.)
The provision states: "Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: [¶] . . . [¶] (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States." (Italics added.)
According to Medix's own complaint, the Fire Authority is a "government entity" consisting of 22 member cities and the county. The Fire Authority could not have come into existence without some sort of legislative act on the part of the public agencies (i.e., the county and member cities) to create it as a joint powers authority. (§ 6502; e.g., McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.App.4th 354, 361, fn. 3.) We therefore decline to follow Edna Valley to the degree it is read for the proposition that the acts of a public agency which is itself a "creature" of city and county action is on that basis off limits to judicial notice.
The case that is dispositive for our purposes is the one the trial judge cited in his minute order, Elmore v. Oak Valley Hospital Dist. (1988) 204 Cal.App.3d 716 (Elmore). Unlike Edna Valley, Elmore involved a section 946.4 issue. In Elmore, a hospital district was sued for negligent medical treatment of an injured patient, and asserted a Tort Claims Act defense. The patient asserted the hospital district had not complied with section 53051, hence the Tort Claims Act defense had been lost. The appellate court affirmed the trial court's sustaining of the demurrer rejecting the patient's section 946.4 "cause of action" after taking judicial notice, inter alia, of the copies of the district's statements filed with the Secretary of State that contained each of the items required by section 53051. (Elmore, supra, 204 Cal.App.3d at pp. 722-723.)
To be sure, Elmore was not a complete win for the hospital district - the judgment for the hospital district was reversed on appeal - but that was because the hospital district had made the mistake of listing itself as a "district hospital" rather than a "hospital district." Thus when the patient's attorney tried to find the district hospital's section 53051 filing, he was told it didn't exist. The appellate court held that the error allowed the patient to assert an estoppel against the hospital district's Tort Claims Act defense. (Elmore, supra, 204 Cal.App.3d at p. 724.) In the instant case, however, Medix has made no claim that it was misled by false information in the Fire Authority's section 53051 filings. Quite the contrary: Medix's whole argument is that there was no section 53051 filings whatsoever.
Medix tries to refute the applicability of Elmore here by asserting that the materials of which the court could properly take judicial notice do not, strictly speaking, show the Fire Authority's section 53051 filings were on file, only that those filings were sent to the Secretary of State and the county clerk's office. The argument founders because courts must presume official duty has been performed. (Evid. Code, § 664.) In Elmore, the appellate court pointed out that subdivision (c) of section 53051 imposes a duty on the Secretary of State to maintain an index of public agencies. (Elmore, supra, 204 Cal.App.3d at p. 722.) We are required, under Evidence Code section 664, to presume the same thing. The technical defense fails. B. Compliance With, or Excuse from, the Tort Claims Act
1. The Long Argument
There is no question that persons who seek contract damages from public entities must comply with the Tort Claims Act. "In short, unless specifically excepted, any action for money or damages, whether sounding in tort, contract or some other theory, may not be maintained until a claim has been filed with the relevant public entity and either the public entity acts on it or it is deemed to have been denied by operation of law." (Alliance Financial v. City and County of San Francisco (1998) 64 Cal.App.4th 635, 642 (Alliance).) For this reason Medix's reliance on Long v. City of Los Angeles (1998) 68 Cal.App.4th 782 (Long), a bird seizure case, for the idea it was excused from the Tort Claims Act, is unfounded. The point of Long, as well as Holt v. Kelly (1978) 20 Cal.3d 560 on which it was based, is that the government cannot profit from its own wrong by confiscating property, losing that property, making it impossible to recover the property because of its "own negligence," and then turn around and contend that the "resulting action, necessarily limited to monetary damages, is subject to the Government Tort Claims Act." (Long, supra, 68 Cal.App.4th at p. 786, italics added.)
Medix's claim as put forward in the current (the 054 action) case does not involve lost chattels which physically cannot be returned due to the Fire Authority's own negligence. Long is therefore inapposite, and we turn to the question of whether Medix's four filings during the pendency of the 062 action constituted a "claim."
2. Claim Presentation
Preliminarily, we note that California has had some form of claim presentation requirement for suits against public entities since 1857. (See State of California v. Superior Court (2004) 32 Cal.4th 1234, 1242 and 1242, fn. 10 (Bodde).) The current legislative claim presentation scheme attempts a balancing between two sets of competing concerns. On the one hand, there is the need for government entities to be put on notice of claims so they can investigate and budget for them. (See Shirk, supra, 42 Cal.4th at p. 213 ["Fresh notice of a claim permits early assessment by the public entity, allows its governing board to settle meritorious disputes without incurring the added cost of litigation, and gives it time to engage in appropriate budgetary planning."].) On the other hand, the Legislature recognizes that a possibly meritorious cause of action should not be forfeited if a claimant submits a writing "readily identifiable as a claim," even if that writing doesn't substantially comply with the Tort Claim Act. (See Foster v. McFadden (1973) 30 Cal.App.3d 943, 947-948 (Foster); see also Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1234 [purpose of Tort Claims Act is not to "snare the unwary"].))
And because of the need to balance respective interests, the same legislation that makes a claim a "condition precedent" of suing a public entity (§§ 911.2 and 945.4) also sets forth several "notice and defense-waiver" statutes - sections 910.8, 911, and 911.3 - which impose on the public entity an affirmative duty to notify claimants of the defects in their claims. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 708-709 (Phillips).) It was in light of the fact the Fire Authority did not notify Medix of any defects in its statements made in the 054 action that the trial judge here overruled OCFA's demurrer.
There are four categories into which a writing can fall for purposes of ascertaining compliance with, or excuse from, the Tort Claims Act:
(1) Those which successfully run the six-point gauntlet set up by sections 910 and 910.2. (Phillips, supra, 49 Cal.3d at p. 707 ["a 'claim' is a notice which complies with sections 910 and 910.2"].) Obviously such statements pose no issue for us here; no one contends there was such compliance.
Section 910 provides: "A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: [¶] (a) The name and post office address of the claimant. [¶] (b) The post office address to which the person presenting the claim desires notices to be sent. [¶] (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. [¶] (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. [¶] (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. [¶] (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case."
Section 910.2 provides: "The claim shall be signed by the claimant or by some person on his behalf. Claims against local public entities for supplies, materials, equipment or services need not be signed by the claimant or on his behalf if presented on a billhead or invoice regularly used in the conduct of the business of the claimant."
(2) Those which substantially comply with the Tort Claims Act and are therefore sufficient, even if there is some technical defect. (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 38.) If a claim substantially complies with sections 910 and 910.2, the notice and defense-waiver provisions of the Tort Claims Act are not even implicated. (Phillips, supra, 49 Cal.3d at p. 709 ["If a claim complies substantially with sections 910 and 910.2, however, sections 910.8, 911 and 911.3 do not come into play."].)
(3) Those which do not substantially comply with the Tort Claims Act but which are still sufficiently cognizable as claims so as to require the public entity to comply with the notice and defense-waiver statutes of the Tort Claims Act. These statements are called "claims as presented." (Phillips, supra, 49 Cal.3d at p. 707, quoting § 910.8 and Foster, supra, at p. 947 ["the notice and defense-waiver provisions, sections 910.8 and 911, use the phrase 'claim as presented' to identify a 'claim' which is defective due to its failure to comply substantially with sections 910 and 910.2 and, contrary to the hospital's position, it is only a 'claim as presented [that] fails to comply substantially' that triggers sections 910.8, 911 and 911.3."].)
(4) Those that are not sufficiently identifiable as claims at all and thus impose no requirement on the part of the public entity to comply with the notice and defense-waiver statutes. (E.g., Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 30 (Dilts) [series of letters between attorneys did not constitute a claim]; Schaefer Dixon Associates v. Santa Ana Watershed Project Authority (1996) 48 Cal.App.4th 524, 536-537 (Schaefer Dixon) [letters between contractor and flood control district did not constitute a claim].)
The great gulf in these categories is between (3) and (4). It is the difference between having a case or losing it at an early stage.
3. The Three Criteria
A review of the case law has turned up three primary criteria which courts have used historically to divine the difference between a "claim as presented" and no claim at all: intent, ready identifiability as a claim, and function. To make matters more difficult, the cases sometimes invoke more than one of these tests to explain their conclusions.
(1) The Intent Test. In Stromberg, Inc. v. Los Angeles County Flood Control Dist. (1969) 270 Cal.App.2d 759 (Stromberg), a storm drain contractor first served a complaint for declaratory relief on the county flood control district defendant. That complaint was later dismissed on the ground the contractor failed to allege a claim having been first filed with the county (id. at p. 761), so the contractor brought a second action a few months later, again for declaratory relief, alleging the complaint in the first action itself constituted a claim to the county. (Ibid.) Not so, said the Stromberg court. After canvassing the case law to that point, the court noted the contractor had not "made a bona fide attempt to comply" with the "mandates of the claim statute" by preparing the complaint in the first lawsuit. (See id. at pp. 762-763.) Because of its similarity to the instant case (trying to characterize filings in a first lawsuit as claims to justify compliance with the Tort Claims Act in a second lawsuit), the Fire Authority stresses the applicability of Stromberg here.
The "bona fide attempt to comply" formulation was apparently unworkable and was impliedly rejected - at least as formulated - by our high court some two decades later in Phillips. There, a patient who alleged medical malpractice on the part of a public hospital served on the hospital what is known as a "364 notice" (after the provision in the Code of Civil Procedure that makes 90 days' prior notice to defendants in medical malpractice actions a condition precedent to such an action). The patient and her attorney obviously hadn't intended the 364 notice to comply with the Tort Claims Act - they weren't even aware the hospital was a public hospital when they served it. (See Phillips, supra, 49 Cal.3d at p. 704.) But the court said their intent wasn't the "relevant inquiry." Rather, the proper inquiry was "whether their 364 notice disclosed to the hospital that they had a claim against it which, if not satisfactorily resolved, would result in their filing a lawsuit." (Id. at pp. 709-710.)
Code of Civil Procedure section 364 provides in pertinent part: "(a) No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action. [¶] (b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered."
But intent was not fully abandoned, as shown six years after Phillips in Schaefer Dixon, supra, 48 Cal.App.4th 524. In Schaefer Dixon, a letter from the lawyer for a contractor on a wastewater project to a watershed project authority demanding the contractor's "full invoiced fees" was held not to be a claim at all, because it was "never intended and never treated as the functional equivalent of a formal claim." (Id. at pp. 528, 533.) In addressing what Phillips had said about subjective intent, the Schaefer Dixon court distinguished Phillips on the ground it involved "different circumstances" because the 364 notice in Phillips "was itself a notice of impending litigation." (Id. at p. 537, italics added.)
(2) Ready Discernibility. Another criterion - which we find important - used by the courts is whether the writing is "readily discernible" as a claim qua claim. This test can be traced back to Professor Arvo Van Alstyne's report to the California Law Revision Commission back in 1959 (helpfully quoted in Foster, supra, 30 Cal.App.3d at pp. 947-948.) Professor Van Alstyne's report, in fact, animated the current statutory scheme. The professor thought there was a need to include notice and defense-waiver provisions for cases where a person had presented something "readily identifiable" as a claim, but had still fallen short of substantial compliance with the Tort Claims requirements.
Here is the relevant passage from Foster: "The commission's consultant, Professor Arvo Van Alstyne, explained inferentially in his report to the commission that the requirement of notice of insufficiency of presented claims was introduced to protect claimants whose claims did not substantially comply with the claims act, but which, nevertheless, were readily identifiable as claims." (Foster, supra, 30 Cal.App.3d at p. 948, italics added.)
Ready "identifiability" would be later renamed ready "discernibility," and, in that form, became the rationale in another post-Phillips Court of Appeal opinion, Green v. State Center Community College Dist. (1995) 34 Cal.App.4th 1348 (Green). Green involved injuries sustained by a walker on a community college campus when she stepped in a hole that was deceptively covered. Her attorney wrote a letter to the college "relative to the personal injuries" sustained from "that certain accident which occurred on October 7, 1991." (Id. at p. 1351.) Was the letter a claim at all? The Green court examined the 364 notice in Phillips and a letter that had passed muster as a claim in Foster, and from that comparison announced a ready discernibility test: "From Phillips and Foster we distill the following legal standard to apply in determining whether correspondence is a claim that triggers the notice-waiver provisions of the Act. We hold that to be sufficient to constitute a trigger-claim under section 910.8, the content of the correspondence to the recipient entity must at least be of such nature as to make it readily discernible by the entity that the intended purpose thereof is to convey the assertion of a compensable claim against the entity which, if not otherwise satisfied, will result in litigation." (Id. at p. 1358, italics added.)
Ready discernibility was also invoked by the Schaefer Dixon court, quoting Green. (Schaefer Dixon, supra, 48 Cal.App.4th at p. 534, quoting Green.) The Schaefer Dixon court's point was that the letter at issue was so opaque that neither its recipient nor its sender perceived it as any kind of claim whatsoever: "It is entirely unworkable to expect the public entity to discern that this letter, unlike the others, was to be treated as a 'claim,' particularly in view of the fact that the contractor itself never treated any of its letters as if they were a claim. [¶] . . . [¶] . . . If a governmental entity cannot be expected to recognize a particular letter in the midst of a series of letters as a 'claim,' there is no reason to believe it should have advised the sender of the letter's defects to operate as a 'claim.'" (Id. at p. 536, italics added.)
(3) The Function Test. Function had been the explicit rationale in Foster. The case involved a plaintiff injured by a bulldozer driver working for a sanitation district. The plaintiff's attorney wrote a letter to the bulldozer driver, copied to the district itself, complete with the date and place of the accident. (See Foster, supra, 30 Cal.App.3d at p. 945, fn. 2.) The letter asked the driver to forward the letter to the driver's insurer and have the insurer contact the attorney's office. The Foster court held the letter was sufficient to trigger the notice and claim-waiver provisions of the Tort Claims Act because it "performed the function of a claim." (Id. at p. 948.) Elaborating, the court said: "The letter under consideration accomplished the two principal purposes of a sufficient claim. It afforded the district the opportunity to make a prompt investigation of the accident occasioning the letter and it gave to the district the opportunity to settle without suit, if it so desired." (Id. at p. 949.)
Phillips is also a function case, though the word is only used once in the opinion. (Phillips, supra, 49 Cal.3d at p. 709.) There, the court held the 364 notice functioned as a claim because it imparted sufficient information to the public entity, namely that hospital had "a claim against it which, if not satisfactorily resolved, would result in their filing a lawsuit." (Id. at pp. 709-710.)
Another example of the function criteria may be found in a case decided in the immediate aftermath of Phillips, Wilson v. Tri-City Hospital Dist. (1990) 221 Cal.App.3d 441 (Wilson). Wilson involved the claim of a hospital administrator who was fired on a specific date. Within a month of his firing, his attorney sent a letter to the hospital's board of directors saying the termination was unlawful and seeking a meeting to reach an "amicable solution." (Id. at p. 444.) Another letter followed several months later in which the attorney made it clear he would "'most certainly'" be asking "for substantial money,'" and requesting the hospital waive administrative procedures so its ex-employee could get on with filing a lawsuit. (Id. at p. 445.) After recapping the Phillips and Foster cases (see id. at pp. 446-448), the Wilson court pointed to this later letter as constituting a claim as presented, because "in the most unequivocal terms it advised the district both that Wilson had a claim for money damages and a lawsuit would result if he was not paid." (Id. at p. 449.)
4. The Two Indicia or Factors
In addition to the three major criteria courts have used to draw the line between claims as presented and no claims at all, several cases have pointed to - for want of a better word - two "indicia" that help courts draw the line. What is remarkable about these indicia is that they have what scientists call predictive value. That is, their presence, or absence, explains the bottom line result in a number of cases even where they were not explicitly mentioned.
(1) The Accruability Indicia. Courts have not forgotten that the Tort Claims Act operates like a statute of limitations. Claims involving contract actions, like the one at bar, must be made "not later than one year after the accrual of the cause of action." (§ 911.2.) Because of the need to ascertain the date the claim accrues, a number of appellate courts have reasoned that writings that did not provide sufficient information for the agency to ascertain the date of accruability did not amount to a claim as presented.
The case that most exemplifies the use of accruability is Dilts, supra, 189 Cal.App.3d 27. Dilts involved a dispute between a teacher and a school district over the renewal of the teacher's contract. A half-dozen letters were exchanged between the teacher's attorney and the school district's attorney. Could those letters collectively constitute some sort of claim? The court, pointing to the statutory need to ascertain when a claim accrues, held they did not. (Id. at p. 36.) Said Dilts: "If a series of letters received over a period of time could collectively constitute a claim, it would be impossible to ascertain whether a claim had been presented within the 100 days or one-year time limitation as specified in section 911.2. The act provides that if a claimant files a timely claim, the public entity has 45 days within which to grant or deny the claim. (§ 911.6.) If the claim is denied by way of written notice, the claimant has six months within which to file a court action. (§ 913.) If the claim is not acted upon by the public agency within 45 days, it is deemed denied by operation of law and the claimant has 2 years within which to file a court action. (§ 945.6.) It would be difficult for the public entity to identify whether a particular letter were a claim and which letter triggered its obligation to accept or deny a claim if a series of correspondence could be considered collectively to constitute a claim." (Ibid., italics added.)
About a decade after Dilts, the Schaefer Dixon court also pointed to accruability when it concluded a particular "single letter," dated November 15, involving a change order on a construction project, did not amount to a claim: "Why should not the March 9 or March 26 letters, which, unlike the November 15 letter, did threaten suit, better be considered 'claims'? How is the agency to know whether a claim is timely presented whenever a supplier or contractor asks for or complains about a change order? How is the court to determine which statute of limitations applies and whether it has run?" (Schaefer Dixon, supra, 48 Cal.App.4th at p. 536, italics added.) The absence of the ability to ascertain the accruability of the claim thus put it into the no claim at all category.
Nor is the predictive trait of accruability a one-way street. The ability to ascertain the date a claim accrues has been present in those cases which concluded a given writing was indeed a claim as presented. In Foster, the attorney's letter gave a specific accident date. (Foster, supra, 30 Cal.App.3d at p. 945, fn. 2.) Likewise the 364 letter in Phillips gave a specific "Date of Incident." (Phillips, supra, 49 Cal.3d at p. 703.) In Alliance, the particular letter which the court pointed to as a claim as presented, one dated May 10, set forth the "substance of" the janitor company's claims "in detail," (Alliance, supra, 64 Cal.App.4th at pp. 646-647), which presumably included some reference to the notices and invoices that the claimant had previously sent requesting payment for work. Invoices typically reference what was billed when, and for what - that is, those invoices presumably would have given specific dates that would have allowed the public entity to ascertain the dates of claim accrual. And even the series of letters in Wilson involved a discrete date of termination known to the parties. (Wilson, supra, 221 Cal.App.3d at p. 444.)
(2) The Presentation Indicia. The court in Schaefer Dixon also noted the absence of anything that resembled the "presentation" of a claim, as otherwise statutorily required in section 915. (See Schaefer Dixon, supra, 48 Cal.App.4th at p. 534.) The court pointed out that the letter at issue was not presented to the "proper person" but rather to the construction project's general manager for purposes of enlisting his "'help'" in getting paid for invoiced work. (Ibid.)
While the "presentation" indicia should be employed with caution in light of cases that have considered correspondence between attorneys (Wilson), or including attorneys (Alliance), to be claims as presented, we believe the person to whom a given writing is directed should be given some weight. At the very least a presentation indicia bears on the readily discernible test, as shown in a comparison of Foster and Schaefer Dixon. In Foster the court emphasized that the subject letter in that case, though only copied to the district, was still perceived by the district "for what it was - an unlabeled and deficient claim[.]" (Foster, supra, 30 Cal.App.3d at p. 948.) On the other hand, in Schaefer Dixon, the court emphasized the opaque quality of two letters the claimant contended amounted to claims as presented: "If a governmental entity cannot be expected to recognize a particular letter in the midst of a series of letters as a 'claim,' there is no reason to believe it should have advised the sender of the letter's defects to operate as a "claim." (Schaefer Dixon, supra, 48 Cal.App.4th at p. 536.)
Moreover, to point out the obvious that can still be overlooked, the Foster and Phillips opinions themselves constitute glosses on the Legislature's use of the phrase "claim as presented" as it is used in sections 910.8 and 911. And the third statute in the notice and defense-waiver trilogy, section 911.3, in both subdivisions (a) and (b), uses the phrase "the claim is presented," further indicating the legislative intent that there be something at least that resembles a "presentation" in order to have a claim, even if only a "claim as presented." C. Application of the Criteria and Indicia
By isolating and identifying the respective criteria used by the courts over the years, we do not mean to suggest that they are mutually exclusive or compete with each other. The most we will say is that an intent-to-comply-with-the-statute criteria, found in Stromberg, is not reconcilable with Phillips. But beyond that, we believe the criteria can be harmonized with each other, as illustrated by the fact that in Phillips the plaintiff surely intended to serve notice of a claim of some sort in preparing the 364 notice. After all, he titled his claim a "364 notice," thereby specifically referring to a statute which is intended to give notice of an impending lawsuit.
As applied to the present case, it seems safe to say that under the intent and ready discernibility criteria, the four litigation filings in the present case, or any of them individually, simply do not amount to any kind of "claim" at all. The four filings were certainly not intended in any way to constitute claims of any kind - they were all necessitated by the need, in ongoing litigation, to let the trial court know what was happening in that litigation. For the same reason they were hardly "readily discernible" as claims. Readers should note, for example, the contingent nature of each of the four filings. Each one was predicated on either inveigling the Fire Authority to agree to an amendment in existing litigation, or the trial court granting such an amendment in the face of opposition. In the status report filed in mid-June 2010, for example, there are no less than four separate "ifs" in the statement concerning an amendment. And the point of the declaration in late October 2010, was merely to ask the trial court not to dismiss the 062 action for lack of prosecution or otherwise sanction Medix's attorney.
The functionality criteria appears to offer Medix its best hope for a conclusion that the filings constituted a "claim as presented." The basis for such a hope is broad language in the Phillips case (and mostly repeated in Wilson) that Medix reads for the overbroad proposition that all you need for a claim as presented is some writing that threatens litigation seeking some monetary recovery which somehow finds its way to the public agency. We quote that passage in the margin.
From the original Phillips: "In this regard, the hospital attempts to distinguish between defective 'claims' which properly trigger the act's notice and defense-waiver provisions and other notices of possible claims, such as plaintiffs' 364 notice, which, according to the hospital, it was at liberty simply to ignore without consequence. However, we perceive no principled basis for such a distinction and therefore conclude that a notice, such as plaintiffs' 364 notice, which discloses the existence of a claim that if not paid or otherwise resolved will result in litigation, must be treated as a defective 'claim' activating the notice and defense-waiver provisions of the act, sections 910.8, 911 and 911.3." (Phillips, supra, 49 Ca.3d at pp. 707-708, italics added.) Wilson quoted the core of the same passage from Phillips we quoted above, omitting the first sentence and beginning with the words "a notice . . ." in the second. (See Wilson, supra, 221 Cal.App.3d at p. 448.)
Medix reads the language for more than it contains. A careful reading of the passage from Phillips - as shown by the words we have italicized - shows that the Phillips court was focusing its attention on the phrase "such as plaintiffs' 364 notice." (Italics added.) That phrase is employed twice in the passage, which suggests the court was carefully choosing its words so as to not include writings that were unlike notices to medical malpractice defendants pursuant to section 364 of the Code of Civil Procedure. And the four filings here are not notices "such as 364 notices."
But we also note the future tense context in which the Phillips court placed writings "such as plaintiffs' 364 notice." Such writings say that unless the claim is not paid or otherwise resolved, that failure "will result in litigation."
Here, however, the four filings do not threaten any future litigation. At most they warn of a new claim for damages to existing litigation. That temporal anomaly should not be underestimated. It undercuts one of the major oft-stated purposes of the Tort Claims Act, which is to give the public entity the opportunity to head off the expense of litigation in the first place. (E.g., Phillips, supra, 49 Cal.3d at p. 705; Wilson, supra, 221 Cal.App.3d at p. 447.) Here, the public entity was already incurring the expense of litigation. Moreover, there is nothing in the four filings that gives the public agency any way to ascertain the time of the accrual of Medix's cause of action for damages, or resembles a presentation.
At oral argument in this court counsel for Medix stressed a case not otherwise mentioned in Medix's opposition to the petition, Esparza v. Kaweah Delta District Hospital (2016) 3 Cal.App.5th 547 (Esparza). The Esparza case is not relevant here, though. Esparza is a case centered on the use of a Judicial Council form providing that a plaintiff is indeed required to comply with a claims statute, and a box to be checked if the plaintiff alleges he or she has. (See id. at p. 551.) The case holds that "the ultimate fact of compliance with the claims presentation requirement in the Government Claims Act can be pled using a general allegation. (Id. at p. 553.)
Perhaps, had Medix proceeded in its 2015 lawsuit by way of Judicial Council form complaint Esparza would be relevant against the Fire Authority's demurrer, with the concerns we have addressed in this case to await a summary judgment motion. Here, by contrast, Medix choose to fight the battle of whether it complied by way of a detailed complaint that sought to preempt the inevitable challenge by the Fire Authority as to whether Medix had actually complied with the Claims Act.
IV. DISPOSITION
The failure to allege facts that showed Medix either made a claim to the OCFA or was excused from it required that the demurrer be sustained. (See Bodde, supra, 32 Cal.4th 1234, 1237.) We therefore grant the Fire Authority's petition and issue a writ of mandate directing the trial court to vacate its order overruling the Fire Authority's demurrer and to enter a new order sustaining it without leave to amend.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.