Metropolitan News-Enterprise


Thursday, December 8, 2016


Page 1


Court of Appeal Holds:

Filing Claim Against Wrong Entity Can’t Be Excused

Panel Says It Doesn’t Matter That Bench Officer May Have Induced Defendant Into Thinking DDA Was A Deputy City Attorney; Claim Against County Doesn’t Relate Back to One Filed Against City


By a MetNews Staff Writer


The Court of Appeal for this district held yesterday that a criminal defendant who heard the bench officer say the prosecutor was a deputy city attorney and sued the City of Los Angeles for false arrest and imprisonment, learning belatedly that the prosecutor was a deputy district attorney, cannot be excused for the tardiness of her subsequent action against the county.

The failure to file a claim against the county within six months of the accrual of the cause of action, as required by the Government Claims Act, mandated disallowing the action, Justice Laurie Zelon said in her unpublished opinion for Div. Seven. The decisions affirms the action of Los Angeles Superior Court Judge Lisa H. Cole in sustaining a demurrer to the complaint by Rosa Dzubak, without leave to amend, and ordering entry of a judgment of dismissal.

Dzubak said in her complaint that she had worked as a waitress at Nichol’s Restaurant, was falsely accused by the owner, Jim Nichols, of theft, and was arrested and taken into custody.

The complaint said that on June 16, 2011, Los Angeles Superior Court Commissioner Hon. I. Alan Rubin dismissed the case, with prejudice, due to lack of evidence.

Prosecutor Quoted

The pleading continued:

“After the hearing Plaintiff was approached by Mr. Nichols who told her ‘This is not the end of this, no matter what, I am going to make sure this thing gets re-filed against you.’ Plaintiff then saw Nichols speaking with Mr. [Lee Jay] Orquiola, the Deputy DA for Defendant COUNTY and heard him demand ‘action’. Mr. Orquiola then came to speak with Plaintiff and told her ‘No matter what, I will re-file.’ ”

The pleading went on to say that Nichols has admitted that Orquiola “told him that it was unlawful for Plaintiff to be rearrested and charged with the same alleged crimes after such a dismissal,” and that the same charges were re-filed four months later.

On Dec. 5, 2011, Los Angeles Superior Court Judge Mark E. Windham, presiding over a preliminary hearing, dismissed the charges, with prejudice.

Dzubak presented a claim against the county in April of 2013, to which there was no response. Her lawsuit was filed on July 18, 2014.

Undisputed Facts

Zelon wrote:

“Dzubak does not dispute any of the following facts: (1) her claim against the County is subject to the Government Claims Act; (2) her false arrest claim accrued no later than December 5, 2011, which is the date the second set of criminal charges against her was dismissed; (3) the County was the local public entity where she was required to present her claim; (4) she did not file a claim with the County until more than two years after the date of accrual.”

In arguing that Cole should have given her a chance to amend the complaint, Dzubak set forth that she could amend it by stating that Rubin, at preliminary hearings in both February and June of 2011, referred to the prosecutor as a deputy city attorney; that she timely filed a claim against the city on Feb. 25, 2011, to which there was no response; that she sued the city on Aug. 29, 2012; and that it was not until March 15, 2013, that the city revealed that the wrong party had been sued.

The plaintiff asserted that the claim she filed against the county should relate back to the date of her filing a claim with the city.

Zelon said the California Supreme Court’s decision in DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983 is controlling. There, a plaintiff delivered a claim to the Santa Clara County Risk Management Department, which handles claims against the county, rather than the statutorily designated recipient. The high court said “an undelivered or misdirected claim fails to comply with the statute.”

Not Excused

Yesterday’s opinion declared:

“Under the reasoning of DiCampli-Mintz, we reject Dzubak’s suggestion that she was excused from presenting a claim to the County within the six-month period set forth in section 911.2 because the City failed to notify her it was the wrong public entity defendant until after the claims period had expired. Nor do we accept her assertion that she was excused from complying with the claim requirement because the trial court allegedly identified the district attorney was a ‘City Attorney’ during her criminal proceedings. DiCampli-Mintz makes clear that Dzubak had the burden to determine the proper local entity, and neither the City nor the trial court had any duty to apprise her of that fact.

The case is Dzubak v. County of Los Angeles, B266301.

Anthony G. Graham of Graham & Martin LLP represented Dzubak, and Raymond J. Fuentes and Sofia Sarin of Fuentes & McNally acted for the county.


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