Thursday, May 23, 2019
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C.A. Won’t Depart From 2005 Decision On Non-Receipt of Claim Rejection
Segal Says Action Against Governmental Entity Must Be Filed Within Six Months of Mailing Claim Denial, Received or Not
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed summary judgment in favor of a school district because the action on behalf of a minor was brought more than six months after the defendant mailed a rejection of the claim, rejecting the contention that untimeliness of the action was excused because the boy’s lawyer never received the notice.
A 2005 Court of Appeal case law precludes such a defense, Justice John Segal of Div. Seven wrote, spurning a request from the appellant’s lawyers to depart from that decision.
The negligence action was brought on Feb. 18, 2016, by Luis Gonzales, then 16, through his guardian ad litem, Rosario Fernandez, his grandmother. The plaintiff’s lawyer was John A. Girardi of Girardi|Keese.
Rejection Sent
On Aug. 14, 2015, a claims administrator for the district wrote to Girardi notifying him of the claim rejection and advising that according to Government Code §945.6, he had “only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action in the State of California on this claim.” A proof of service established that the notice was mailed.
The action was filed four days late.
Los Angeles Superior Court Judge Robert Broadbelt III held that under the First District Court of Appeal’s 2005 decision in Him v. City and County of San Francisco, a declaration by Girardi that he did not receive the rejection notice was “legally insufficient to raise a triable issue of fact negating the six-month statute of limitations defense.”
Segal said “the trial court correctly ruled.”
Won’t Repudiate Decision
He was unpersuaded by an assault on Him. He wrote:
“L.G. contends the Him case ‘was wrongly decided’ because, according to L.G., ‘longstanding California case law hold[s] that evidence of non-receipt of a written notice is sufficient to rebut proof of mailing.’ None of the cases cited by L.G., however, involved section 945.6 or the Government Claims Act.”
The jurist quoted the appellant as asserting that “nothing” in the Government Claims Act “suggests that the Legislature intended to deviate from the usual rules for determining whether something was or was not ‘deposited in the mail.’ ”
Segal’s Response
He responded:
“Nothing, that is, except section 945.6, which commences the six-month limitations period upon the mailing of the notice, [Government Code] section 915.2, subdivision (c), which permits the District to prove proper mailing by showing compliance with Code of Civil Procedure section 1013a, and section 915.2, subdivision (a), which begins the period at the time of mailing, not at the time of receipt.”
Section 915.2(a) provides that the “notice shall be deemed to have been presented and received at the time of the deposit.”
The opinion recites that according to Girardi, having received no notice of action on the claim, he instructed a law clerk to make inquiry but did not tell her the matter was “urgent” and, after filing the complaint, told the employee not to bother following through.
The complaint alleges:
“14. PLAINTIFF was set to participate in a wrestling match on Thursday, January 8, 2015. Luis typically wrestled at the 132 lbs. weight level. However, just days before the match, PLAINTIFF’S coach and district employee, Rene Olague…instructed PLAINTIFF to fight at the 126 lbs. weight level. This instruction contradicted tests done at the outset of the season that limited the amount of weight that should be lost to no more than two pounds in one week. This instruction placed PLAINTIFF at risk of suffering severe injury. PLAINTIFF complied with his coach to fight at the 126 lbs. weight level.”
As a result, it is averred, “PLAINTIFF suffered severe injury, inter alia, a stroke and brain injury” with “permanent residual impairment of his neurological skills, both physical and cognitive.:
The complaint states that no notice had been received of action on the governmental claim and that the apparent non-action meant the suit was timely as having been brought within two years of the injury.
The case is L.G. v. Hacienda La Puente Unified School District, B286177.
Martin N. Buchanan and Girardi represented Luis. Jeffrey A. Smith and Steven J. Lowery of Declues Burkett & Thompson acted for the school district.
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