Opinion
H043764
09-10-2018
GARY TIGGS, Individually and as Personal Representative, etc., et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CV280317)
Gary Tiggs and Denise Carol Tiggs (plaintiffs) filed this civil action after the death of their son Brenden Tiggs. Brenden was a freshman student attending California State University San Jose and living in an on-campus dormitory when he committed suicide in February 2014. Plaintiffs allege that the Board of Trustees of the California State University (Board of Trustees) and certain employees, including Mikhail Burlyga, (together "defendants") breached legal and contractual duties by failing to provide appropriate care and treatment for Brenden in the hours before his death.
Gary Tiggs brings this action individually and as the personal representative of the Estate of Brenden Tiggs.
The Board of Trustees of California State University was erroneously sued as "Regents of the California State University."
The only issue on appeal is the timeliness of plaintiffs' lawsuit under the Government Claims Act, specifically Government Code section 945.6. The trial court granted defendants' motion for summary judgment on the ground that plaintiffs failed to initiate the action within the six-month limitations period triggered by defendants' written notice rejecting plaintiffs' claim for damages. (§ 945.6, subd. (a)(1).) For the reasons stated herein, we affirm the judgment.
Further unspecified references are to the Government Code.
A claimant filing suit against a public entity that has given written notice rejecting the claim must commence the action "not later than six months after the date such notice is personally delivered or deposited in the mail." (§ 945.6, subd. (a)(1).) If the public entity has not given written notice, the action must be filed "within two years from the accrual of the cause of action." (Id., subd. (a)(2).)
BACKGROUND
I. PLAINTIFFS' CLAIM FOR DAMAGES AND CIVIL ACTION
On July 16, 2014, plaintiffs submitted a claim for damages to the Board of Trustees arising from Brenden's death in February 2014. The claim designated the law office address of plaintiffs' counsel to receive notices on the claim. Shortly after, plaintiffs received written confirmation from the Board of Trustees acknowledging its receipt of plaintiffs' claim. The Board of Trustees formally rejected the claim in a written notice dated July 29, 2014. The attached proof of service, executed on July 29, 2014, by Martha Guiditta, an employee of California State University Office of Risk Management, indicates that the notice was placed in a sealed envelope addressed to plaintiffs' counsel at the designated address and would be deposited in the ordinary course of business with fully prepaid postage in the mail on that same day.
Plaintiffs never received the rejection notice. They filed this action on May 7, 2015, asserting causes of action for negligence and breach of contract. The complaint alleges that other than the Board of Trustees' initial letter confirming receipt of the claim, plaintiffs received no correspondence on their claim and, hence, timely brought the action within two years of the date of Brenden's death.
II. SUMMARY JUDGMENT PROCEEDINGS
Defendants moved for summary judgment, arguing the complaint was time-barred under section 945.6. To demonstrate that the six-month statute of limitations applied, defendants submitted the declaration of Martha Guiditta and copies of the rejection notice and proof of service. Guiditta's declaration explains her duties as a claims examiner in the office of risk management and describes the actions taken in relation to plaintiffs' claim on July 29, 2014. On that day, Guiditta personally prepared the written rejection notice under the direction of two other individuals, as well as the proof of service, placed the original notice and a copy of the proof of service in an envelope that she sealed and addressed to plaintiffs' counsel, and placed the envelope in the office outbox for collection and mailing.
Plaintiffs opposed the motion for summary judgment by citing the two year statute of limitations "[i]f written notice is not given . . . ." (§ 945.6, subd. (a)(2).) They did not challenge the contents of the claim rejection notice proffered by defendants but disputed whether it had been mailed on July 29, 2014, as asserted in defendants' separate statement of facts.
To establish nonreceipt of the claim rejection notice, plaintiffs submitted the declarations of their counsel and their counsel's executive assistant. Carl E. Douglas attested that in his 35 years of law practice involving municipal entities, he had trained his staff to pay particular attention to letters that may contain claims-related correspondence, that he was "well aware" of the filing deadlines in government claim cases, and that in this case he had "personally reviewed every page" in his office's file as well as scanned documents and found "no record of any rejection letter." Kristen Devezin attested that she was responsible for collecting and opening all legal mail, scanning electronic versions for the file, and lodging deadlines, including filing deadlines pursuant to the California Government Code. She confirmed that the office had never received a written notice of rejection of plaintiffs' claim for damages.
The trial court issued a tentative ruling to grant the motion for summary judgment on the statute of limitations defense. The court found defendants' evidence sufficient to show that the claim rejection letter complied with the applicable code sections for notice (§ 913) and mailing (§ 915.2, subd. (a)). It noted that pursuant to section 915.2, subdivision (a), notice by mail is deemed presented and received at the time of deposit in the mail, which proof may be made in the manner prescribed by section 1013a of the Code of Civil Procedure. Although Guiditta's proof of service did not strictly conform to the prescribed methods for mail service under the Code of Civil Procedure, the court concluded that Guiditta's declaration demonstrated substantial compliance, triggering the six-month limitations period pursuant to section 945.6, and that plaintiffs' evidence did not raise a triable issue of fact.
The trial court adopted its tentative ruling without oral argument and granted summary judgment for defendants. The court entered judgment for defendants and against plaintiffs on February 5, 2016. Plaintiffs timely appealed the judgment on March 10, 2016.
Although the clerk's minute order for the hearing on defendants' motion for summary judgment indicates that the tentative ruling was not contested, plaintiffs' counsel clarified at oral argument before this court that trial counsel had attempted to appear telephonically to contest the motion, but was never connected due to a technical malfunction with the trial court's telephonic system.
DISCUSSION
Plaintiffs claim that the evidence in this case fails to establish that the Board of Trustees deposited the claim rejection notice in the mail on July 29, 2014, in order to trigger the six-month statute of limitations under section 945.6. They contend that the proof of service and supporting declaration do not demonstrate "substantial compliance" with the provision for mail service under section 1013a of the Code of Civil Procedure. Defendants respond that the evidence establishes mailing of the notice consistent with the statutory provisions, and furthermore that plaintiffs forfeited their arguments by failing to raise them in the trial court.
I. STANDARD OF REVIEW
We independently review the trial court's granting of summary judgment. In so doing, "we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) Summary judgment is proper only "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has the initial burden of demonstrating that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action. (Id., subd. (p)(2).) If the defendant meets that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or the defense. (Ibid.) The plaintiff opposing summary judgment may not "rely upon the mere allegations or denials of its pleadings" but must set forth "specific facts" beyond the pleadings to show the existence of a triable issue of material fact. (Ibid.)
II. STATUTORY FRAMEWORK FOR WRITTEN NOTICE REJECTING GOVERNMENT CLAIM
Plaintiffs' action comes under the purview of the Government Claims Act, which "establishes certain conditions precedent to the filing of a lawsuit against a public entity." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) In relevant part, a plaintiff may not file a civil complaint without first submitting a timely claim to the public entity. (§§ 910, 911.2, 945.4.) If the entity gives written notice rejecting the claim as specified by section 913, section 945.6 prescribes a six-month limitations period to file suit from the date the notice is personally delivered or deposited in the mail. (§ 945.6, subd. (a)(1).) If written notice is not given, a plaintiff has two years from the accrual of the cause of action to file suit. (Id., subd. (a)(2).)
Section 915.2 provides that notice "given by mail" must be "deposited in the United States post office, a mailbox, . . . or other similar facility, . . . in a sealed envelope, properly addressed, with postage paid." (§ 915.2, subd. (a).) The written notice "shall be deemed to have been presented and received at the time of the deposit." (Ibid.) Also, "proof of mailing may be made in the manner prescribed by Section 1013a of the Code of Civil Procedure." (Id., subd. (c).) Under this framework, the statute of limitations runs according to the date written notice is given, not received. (Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 444-445 (Him).)
Section 1013a of the Code of Civil Procedure describes four methods of service by mail; only the third method is relevant in this case. It provides, "Proof of service by mail may be made by . . . . [¶] . . . [¶] (3) An affidavit setting forth the exact title of the document served and filed in the cause, showing (A) the name and residence or business address of the person making the service, (B) that he or she is a resident of, or employed in, the county where the mailing occurs, (C) that he or she is over the age of 18 years and not a party to the cause, (D) that he or she is readily familiar with the business' practice for collection and processing of correspondence for mailing with the United States Postal Service, (E) that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, (F) the name and address of the person served as shown on the envelope, and the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and (G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices."
It is an exacting statutory scheme for a plaintiff who fails to file suit within the limitations period due to nonreceipt of a duly-mailed notice. As the Court of Appeal recognized in Him, supra, 133 Cal.App.4th 437, the focus of section 915.2 "is on the date of mailing, not the receipt of the notice." (Him, supra, at p. 445.) This means that "[t]he statute of limitations period is triggered 'from the date the notice is deposited in the mail by the public entity, and not the date it is received by the claimant or counsel.' [Citation.] In fact, a claimant is required to comply with the six-month statute of limitations associated with government tort claims upon proof that the notice of rejection was served even if it was not actually received by the claimant. Thus, the Legislature has placed upon the claimant the risk that a properly mailed notice of claim rejection is not delivered due to an error by the postal authorities." (Ibid., italics added.)
The risk that a claimant fails to receive a notice is mitigated, however, by a "corresponding opportunity" (Him, supra, 133 Cal.App.4th at p. 445) to track the status of a claim based on the public entity's obligation to act within 45 days after the claim is presented (§ 912.4, subds. (a), (c)) and to notify the claimant of any rejection (§ 913). (Him, supra, at p. 445.) Under this rubric, a claimant should be aware "following a reasonable time after the expiration of the 45 days . . . that the claim has been denied and the statutory notice of that denial has not been provided." (Ibid.) This creates the opportunity for a claimant "to inquire about the denial and determine, thereby, the limitations period." (Ibid.) The statutory framework does not permit a claimant "to forgo that opportunity and, then, rely on the fact no notice was delivered to extend the limitations period." (Ibid.)
III. ANALYSIS
Application of the six-month statute of limitations in this case hinges on whether defendants have shown, as a matter of law, that the claim rejection notice was deposited in the mail on July 29, 2014, in a manner compliant with section 915.2. Plaintiffs do not reassert the primary argument raised in their opposition to the motion for summary judgment in the trial court, which was that they "never received a claims rejection letter" and so "believed that a two year statute of limitations applied . . . ." In fact, plaintiffs appear to concede that if defendants met their burden to establish mailing in accordance with section 915.2, then plaintiffs' countervailing proof of nonreceipt is insufficient to raise a triable issue of fact as to the mailing of the notice of rejection. (§§ 945.6, subd. (a)(1), 915.2, subd. (a); Him, supra, 133 Cal.App.4th at p. 446 [holding that under § 915.2, "evidence of nonreceipt of the claim rejection notice[] is legally insufficient to raise a triable issue of fact negating the six-month statute of limitations defense"].)
Instead, plaintiffs attack the validity of defendants' purported mail service by citing deficiencies in the proof of service and in Guiditta's declaration. They contend that defendants' attempt to give written notice rejecting the claim for damages did not comply with any valid method of mailing under section 915.2. And they specifically challenge the trial court's conclusion that Guiditta's declaration showed "substantial compliance" with the third method of mail service set forth in Code of Civil Procedure section 1013a. Defendants argue that plaintiffs are barred by the forfeiture rule from applying these arguments on appeal after they failed to raise them in the trial court.
A. Plaintiffs Did Not Forfeit Their Appellate Arguments
Defendants are correct that plaintiffs opposed the motion for summary judgment largely by appealing to the trial court's fairness sensibility: that allowing defendants to escape liability on a "procedural technicality," when plaintiffs never received the notice of claim rejection yet filed suit within months of the six-month deadline, would offend the ideals of justice and the spirit of the noticed claim requirements.
But plaintiffs did not forfeit the argument that defendants failed to carry their burden to establish mail notice of the claim rejection. Plaintiffs' proffer of evidence to establish nonreceipt of the rejection letter—though not sufficient under the statutory scheme to create a triable issue of fact—is relevant to preserve their dispute of defendants' asserted fact that "[o]n July 29, 2014, the Board of Trustees deposited a written notice of rejection of plaintiffs' claims in the United States mail." (Him, supra, 133 Cal.App.4th at p. 445 [rejecting contention that evidence of nonreceipt of the notice is irrelevant].) Furthermore, plaintiffs argued in their opposition papers that defendants had "not met their burden of demonstrating" entitlement to summary judgment, including because defendants had "not provided any evidence confirming that the rejection letter was in fact mailed." Finally, the trial court squarely addressed the contested issue in its order granting the summary judgment motion, forming the basis for this court's de novo review. (In re S.C. (2006) 138 Cal.App.4th 396, 406 [forfeiture rule favors " 'efficient administration of the law' " by first presenting issues or alleged errors to the trial court].)
We conclude that the issue on appeal is not forfeit and turn to it now. Did defendants meet their initial burden to establish notice by mail on July 29, 2014?
B. The Uncontradicted Evidence Demonstrates That the Board of Trustees Deposited the Notice of Claim Rejection for Collection and Mailing on July 29 , 2014
The relevant items submitted in support of defendants' initial burden as the moving party are (1) the declaration of Martha Guiditta, (2) a letter dated July 29, 2014, from Zachary Gifford, California State University, Systemwide Risk Management, to plaintiffs' counsel, and (3) a proof of service dated July 29, 2014 and signed by Guiditta under penalty of perjury.
Valid notice by mail requires the notice to be "deposited in the United States post office, a mailbox, sub-post office, . . . or other similar facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid." (§ 915.2, subd. (a).) Proof of mailing may be made in the manner prescribed by section 1013a of the Code of Civil Procedure. (§ 915.2, subd. (c).) Code of Civil Procedure section 1013a, subdivision (3) provides that proof of service by mail may be made by an affidavit setting forth, among other things, "(F) . . . the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and (G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices."
In Him, the court noted that section 915.2 "does not mandate strict compliance with the proof of service requirements of Code of Civil Procedure section 1013a. Instead, it provides that proof may be made in compliance with this statute. . . . [E]ven where proof of service must conform to the requisites of Code of Civil Procedure section 1013a, only substantial compliance is required." (Him, supra, 133 Cal.App.4th at p. 443.) Plaintiffs question this authority, citing to cases like Dobrick v. Hathaway (1984) 160 Cal.App.3d 913, 921 and Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509 for the proposition that mail service must strictly comply with the mandates of Code of Civil Procedure section 1013.
The cases that plaintiffs reference are inapposite to the question before us because they do not interpret the notice provisions of the Government Claims Act. It is the act of mailing the notice of claim rejection consistent with sections 913 and 915.2, not the specific form of proof that is determinative. (See, e.g., Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211, 1213-1214 (Katelaris) [declarations by the county's assistant claims manager and office technician constituted admissible evidence in support of motion for summary judgment and were sufficient to establish mailing of the claim rejection notice]; Dowell v. County of Contra Costa (1985) 173 Cal.App.3d 896, 900 [county's mailing of claim notice complied with § 913, triggering six-month statute of limitations, even though the mailed notice did not indicate the date or manner of delivery and was not accompanied by a proof of service]; Call v. Los Angeles County Gen. Hosp. (1978) 77 Cal.App.3d 911, 916 [rejecting notion that " '[n]on-compliance with CCP 1013(a) precludes the application of Government Code Section 915.2' "].)
Thus in Him, the court found the proofs of service executed by the city's claims adjuster had "substantially compl[ied] with Code of Civil Procedure section 1013a" based on express representations that included the date that the claims adjuster sealed each notice in a postage-paid envelope addressed to the attorney for plaintiffs, deposited them in the United States Mail, and executed the proofs of service. (Him, supra, 133 Cal.App.4th at p. 444.) The court rejected the argument that the proofs of service were deficient for failing to state the precise location where they were deposited in the mail, as required by Code of Civil Procedure section 1013a, subdivision (1), reasoning that "[t]hese representations raise a reasonable inference the claims adjuster deposited the envelopes containing the claim rejection notices in the United States mail within the boundaries of San Francisco." (Him, supra, at p. 444.)
Plaintiffs correctly distinguish the case at bar from Him insofar as concerns the sufficiency of the proof of service. Whereas the proofs of service in Him contained sufficiently detailed information to substantially comply with Code of Civil Procedure, section 1013a, the proof of service executed by Guiditta indicates only that on July 29, 2014, Guiditta placed the notice in a sealed envelope addressed to plaintiffs' counsel, and that under the collection and mailing practices of the office, it would be deposited with United States postal service on that same day with postage fully prepaid. It says nothing to indicate that the notice was actually "placed for deposit in the United States Postal Service" (Code Civ. Proc., § 1013a, subd. (3)(F)) or that the envelope "was sealed and placed for collection and mailing on that date . . . ." (Id., subd. (3)(G).) Nor does it indicate that she placed postage on the envelope or deposited it in a facility maintained by the United States government. (§ 915.2, subd. (a).) Drawing all reasonable inferences about the evidence in plaintiffs' favor, we conclude that the proof of service alone does not comply with the manner of proof prescribed by Code of Civil Procedure section 1013a.
The proof of service states in pertinent part that, on July 29, 2014, Guiditta served the notice of claim rejection "by placing a true copy thereof enclosed in sealed envelopes addressed" to the designated address for plaintiffs' counsel. Also checked on the proof of service is the following statement: "I am readily familiar with my employer's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California in the ordinary course of business." --------
But our inquiry does not end with the proof of service. We also must consider whether triable issues of fact emerge from Guiditta's declaration. (See Code Civ. Proc., § 437c, subd. (c) [court deciding motion for summary judgment considers all evidence set forth in the papers except that to which objections have been made and sustained].) In Katelaris, the court upheld the admissibility of government employee declarations submitted in support of a motion for summary judgment to show that a claim rejection notice had been given, triggering the six-month statute of limitations under section 945.6, subdivision (a). (Katelaris, supra, 92 Cal.App.4th at p. 1214.) The court rejected the argument that the government clerk lacked personal knowledge to testify about mailing. It explained that the clerk's statement indicates "he followed the normal business practice for collecting and processing mail on the date of the notice. That was sufficient. Proof of service by mail does not require personal knowledge. Rather, it is enough for an individual to testify to the business practice for collecting and processing outgoing mail. (Code Civ. Proc., § 1013a.) That is what was done here." (Id. at p. 1216.)
Here, defendants submitted the sworn declaration of Guiditta, which describes in paragraph 8 how she prepared and executed the proof of service on July 29, 2014, "at or near the time I intended to deposit the rejection letter and proof of service in the mail." In paragraph 9 of the declaration, Guiditta states that she "then" prepared an envelope affixed with the designated address for plaintiffs' counsel, printed and signed the proof of service, then placed the rejection letter and a copy of the proof of service into the labeled envelope and "deposited the envelope into our office outbox in the ordinary course of CSU business." The declaration goes on to state that Guiditta is readily familiar with the business practice for collecting and processing envelopes for mailing, and "[o]n the same day that the envelope is placed in the office outbox for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid."
Plaintiffs deride the declaration as a self-serving, after-the-fact effort that fails to cure the defective proof of service. They contend that the declaration ambiguously refers only to "intended" conduct and fails to specify a date connected with the act of placing the envelope into the office outbox as described in paragraph 9. While declarations in support of a motion for summary judgment must be strictly construed (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761), we find that plaintiffs' interpretation of the Guiditta declaration strains the bounds of reasonable construction.
The declaration, together with the proof of service, establishes Guiditta's familiarity with the office's practice for collecting and processing correspondence. The declaration describes in detail how Guiditta prepared and executed the proof of service on July 29, 2014, at or near the same time that she intended to mail it with the claim rejection notice, "then" prepared and addressed the envelope and placed it in the office outbox for collection and mailing, which would cause it to be deposited that same day, in the ordinary course of business, with postage fully prepaid with the United States Postal Service. The paragraph break in this description does not create ambiguity any more than Guiditta's reference to the business practice for collecting and processing mail from the office outbox. To the contrary, Guiditta's representations are consistent with the proof of service and letter rejecting the claim.
The cases that plaintiffs rely on merely confirm that Guiditta's process substantially complied with the manner of mail service prescribed by Code of Civil Procedure section 1013a, subdivision (3). For example, in Simplon Ballpark, LLC v. Scull (2015) 235 Cal.App.4th 660, the court reiterated the requirements for proving mail service "where correspondence is placed in an outgoing mail bin from which it is picked up, . . . and then deposited with the United States Postal Service (USPS) that same day in the ordinary course of business." (Id. at p. 662; id. at p. 664.) Nothing in Guiditta's declaration departs from the statutory standard discussed in the case.
And in Humane Society of the U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1247-1250 (Humane Society), the court expressly distinguished its analysis of defects in service based on the use of an overnight delivery service outbox under Code of Civil Procedure section 1013, subdivision (c) (at issue in that case), from proof of mail service under Code of Civil Procedure section 1013a, subdivision (3) (at issue in this case). Specifically, it noted that "Code of Civil Procedure section 1013a, proof of service by mail, . . . states in subdivision (3) that the proof of service may be based on the affiant's averment of familiarity with the business's practice for collecting and processing mail with the United States Postal Service, and an averment that the affiant followed that practice. There is no statutory analogue for overnight delivery services." (Humane Society, supra, at p. 1250.) Indeed, in this case the proof of service and the Guiditta declaration both attest to Guiditta's familiarity with the collection and processing of outgoing mail, and the declaration further establishes that Guiditta followed that practice. (Cf. Ibid.)
We conclude that defendants met their initial burden on summary judgment to show that a university representative substantially complied with the mail notice procedures specified in section 915.2 by depositing the claim rejection notice for collection and mailing on July 29, 2014. Because the evidence in opposition to the motion failed to create a triable issue of fact as to that compliance with the mail notice procedures, plaintiffs' complaint—filed more than nine months later on May 7, 2015—exceeded the six-month limitations period. (§ 945.6, subd. (a)(1).)
DISPOSITION
The judgment is affirmed. Defendants are entitled to recover their costs on appeal.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.