Metropolitan News-Enterprise


Friday, October 23, 2020


Page 1


Court of Appeal:

Filing Suit Before Governmental Entity Acts on Claim Is Impermissible

Opinion Says Prematurely Filed Complaint Is Infirm Because It Can’t Allege Compliance With Government Claims Act; Contrary Cases Repudiated


By Sandra Hong, Staff Writer


An injured harbor patrol officer who filed a complaint for damages against the Port San Luis Harbor District the same day he applied to file a late claim under the Government Claims Act failed to comply with the claims presentation requirement of the act, the Court of Appeal for this district held yesterday.

The opinion by Justice Martin J. Tangeman of Div. Six affirms a judgment by San Luis Obispo Superior Court Judge Ginger E. Garrett. Garrett granted judgment on the pleadings without leave to amend based on finding former chief harbor patrol officer John Lowry failed to comply with Government Code §945.4, contained in the act.

Section 945.4 provides: “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented…until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board …”

Lowry filed his complaint and late-claim application on March 10, 2017. The district rejected his claim on March 29. It was served with a summons and Lowry’s complaint on June 2.

“While Lowry timely filed his application to file a late claim, he did not wait for the District to take action on it, nor did he wait for the time to expire for it to do so,” Tangeman wrote in the opinion, joined by Presiding Justice Arthur Gilbert and Justice Steven Z. Perren.

“Accordingly, the complaint he filed the same day was premature….Lowry failed to comply with the Act because he filed a complaint before his claim was rejected.”

Late Claim Application

Lowry fell from a ladder while attempting to board a rescue boat on March 11, 2016. He filed his complaint nearly a year later, alleging Jones Act negligence and other causes of action. On the same day, Lowry also filed an application for permission to present a late claim under Gov. Code §911.4, which allows claimants who miss the six-month deadline to submit a written application to a public entity requesting leave to present their claim.

Section 911.4(b) provides:

“The application shall be presented to the public entity … within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.”

Older Cases

Lowry pointed to some Court of Appeal decisions, issued decades ago, that permitted actions to be maintained against public entities although the complaint was filed prior to the rejection of a claim.

“But the rationale of those cases is not consistent with more recent decisions of our Supreme Court,” Tangeman wrote. “We therefore decline to follow them.”

Among the Supreme Court cases he pointed to was State of California v. Superior Court (Bodde), decided in 2004. There, it was held that “failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.”

No Cure or Relief

Tangeman also determined there was no abuse of discretion in Garrett’s denial of leave to amend since Lowry’s noncompliance with the act could not be cured by amending the complaint.

Tangeman added Lowry also could not seek judicial relief from the claims presentation requirement by arguing the district denied his late-claim application, as allowed under §946.6.

“By denying the claim, the District impliedly granted the application to present a late claim,” Tangeman said, determining:

“Accordingly, section 946.6, which allows a petition to seek relief from the failure to comply with the claim requirement after denial of an application for leave to present a claim, did not apply.”

Cost Bill

Lowry also contested the judgment awarding costs of $22,977.98 to the district, arguing the district’s filing of a memorandum of costs before final judgment was premature.

But Tangeman said the premature filing was a “mere irregularity at best” and did not constitute reversible error.

“Lowry has not shown he was prejudiced by the early filing of the memorandum,” Tangeman wrote.

The case is Lowry v. Port San Luis Harbor District, 2020 S.O.S. 4947.

Counsel for Lowry were Jarod A. Krissman and Donna Silver of Krissman & Silver in Long Beach. Representing Port San Luis Harbor District was Jolene R. Rice of Collins Collins Muir + Stewart in Rancho Cucamonga.


Copyright 2020, Metropolitan News Company