CLAIM PRESENTATION, DANGEROUS CONDITION, AND DESIGN IMMUNITY

CLAIM PRESENTATION CASES Summaries provided by Kimberly Y. Chin, Allen Glaessner Hazelwood & Werth, LLP

CLAIM PRESENTATION

N.G. v. County of San Diego (2020) 59 Cal.App.5th 63

Summary: Trial court did not abuse its discretion in finding that a sexual assault victim had not established mistake or excusable neglect to support her petition for relief from the claim filing requirement. Discussion: On October 5, 2017, Petitioner N.G. (“Petitioner”) was driving to a motel with her daughter after an argument with her husband. San Diego County Deputy Sheriff Richard Fischer (“Fischer”), along with other deputies, pulled her over because Petitioner’s husband had falsely reported that she was driving while under the influence of drugs and alcohol. Fischer later called Petitioner on her cell phone and showed up at her motel room. He told Petitioner to go to the bathroom where he closed the door and hugged her, telling her she was gorgeous. Fischer then left but later called Petitioner and returned to her hotel room where he again directed her to the bathroom and hugged and groped her. Petitioner then submitted a proposed claim for damages to the County of San Diego (“County”) on June 25, 2018, 81 days after the six-month period for filing a claim expired. She also filed an application for leave to file a late claim. The County denied leave to file a late claim. On October 1, 2018, Petitioner filed a petition with the court for relief from the claim presentation requirement, alleging that he failure to present a timely claim was the result of excusable neglect or mistake. Petitioner submitted a declaration in support of the petition in which she claimed she was scared to report Fischer; she was mentally depressed after the incident; and she feared no one would believe her. She also declared that she ultimately contacted a lawyer and filed a claim with the County because she saw a news report about Fischer being accused of hugging and groping other women. Finally, she stated that until she sought legal advice, she was unaware of the six-month claim filing deadline. The trial court denied Petitioner’s petition, finding that she had not presented any evidence that she had a physical or mental disability which limited her ability to function or seek out counsel and thus, had not made the exceptional showing to establish excusable neglect. Petitioner appealed. On review, the appellate court confirmed that relief on the grounds of mistake, inadvertence, surprise or excusable neglect is only available on a showing that the claimant’s failure to present a claim was reasonable and that a showing of reasonable diligence is required to establish that the petitioner acted as a reasonably prudent person. The appellate court further noted that in certain exceptional cases, excusable neglect may be found based on extreme instances of physical or mental disability or on deliberating emotional trauma, but that it took an exceptional showing by establishing that the trauma had substantially interfered with the petitioner’s ability to function in daily life, take care of one’s personal and business affairs, or seek out legal counsel. However, Petitioner had not made such a showing.

Daneshmand v. City of San Juan Capistrano (2021) 60 Cal.App.5th 923

Summary: The one-year claim presentation period applied to claims relating to overpayment of water rates and began to run from the date of last payment due. Discussion: The City of San Juan Capistrano (“City”) approved tiered water rates effective February 1, 2010, which were in effect until June 30, 2014. These tiered water rates were later challenged and found to be unconstitutional. On June 16, 2015, the City approved a water rate fee refund program under which any ratepayer who was overcharged between August 28, 2013 and June 30, 2014 would receive as a refund or utility credit the difference between the amount paid and the amount that would have been paid.

Plaintiffs served their first government claim on the City on September 15, 2015 and their second government claim on December 4, 2015. The City denied both as untimely and not within the Refund Program. Plaintiffs then sued the City on behalf of themselves and a putative class of ratepayers for breach of contract, breach of the implied covenant of good faith and fair dealing, for money had and received, and negligence. The parties stipulated to a bench trial to determine whether the claim presentation requirement and the statute of limitations barred Plaintiffs’ claims. After the bench trial, the court issued a statement of decision finding that Plaintiffs’ claims were untimely and barred by the Government Claims Act and judgment was entered in favor of the City. Plaintiffs appealed. The appellate court held that the trial court’s finding that Plaintiffs’ claims were untimely was supported by substantial facts. First, the court found that Plaintiffs’ claims had to be presented no later than one year after the accrual of the cause of action under Government Code section 911.2. Because the last invoice reflecting the tiered water rates was sent on July 23, 2014 and was due no later than August 19, 2014, the one-year period to submit a claim expired August 19, 2015. Thus, Plaintiffs’ September and December 2015 claims were untimely. Second, the court held that the Plaintiffs had waived their equitable tolling argument because this argument was never raised in the trial court. Finally, the court held that the City had not waived the August 19, 2015 deadline because it allowed ratepayers to participate in the Refund Program until October 1, 2015. The court confirmed that there was no evidence that the City waived a known right, citing to the City Attorney’s advise to the City Council that while the claims would not normally be considered timely, staff recommended approval of certain claims if they sought a refund within the approved period and denial of the remainder. The appellate court agreed with the trial court’s finding that the City had not by word or action extended the one-year period to present a claim under the Government Code.

DANGEROUS CONDITION OF PUBLIC PROPERTY

Tansavadti v. City of Palos Verdes (2021) 60 Cal.App.5th 423* *Note: The Supreme Court has granted review to this decision.

Summary: Design immunity does not per se bar a claim based on failure to warn of a dangerous condition. Discussion: Plaintiff Betty Tansavatdi (“Plaintiff”) brought a wrongful death lawsuit against the City of Rancho Palos Verdes (“City”) arising out of her son’s death as he was riding his bicycle on Hawthorne Boulevard and collided with a turning truck. She sued the city alleging a dangerous condition of public property under Government Code section 835 and failure to warn of that dangerous condition. In particular, she alleged that the absence of a bicycle lane at the site of the accident constituted a dangerous condition which caused her son’s death. The City filed a motion for summary judgment alleging that design immunity codified at Government Code section 830.6 shielded it from liability for the absent bicycle lane. The trial court granted the City’s motion, concluding that the City had shown it was entitled to design immunity, but did not address the failure to warn theory. Plaintiff appealed. On appeal, the appellate court affirmed that the City had shown that it was entitled to the defense of design immunity, but held that “design immunity does not, as a matter of law, preclude liability under a theory of failure to warn of a dangerous condition.” To support this, the court cited to Cameron v. State of California (1972) 7 Cal.3d 318 in which the Supreme Court held that a public entity may be liable for failure to warn of a concealed dangerous condition even if that dangerous condition was covered by design immunity. The appellate court remanded the case back to the trial court for consideration as to whether summary judgment is appropriate as to the failure to warn theory.

Summary: Plaintiff cannot state a cause of action for dangerous condition of public property if her injuries do not arise from the use of the property at issue or any adjacent property. The City is immune from liability for decisions affecting public health under Government Code section 855.4. Discussion: Plaintiff Barbara Wong (“Plaintiff”) sued the City of Los Angeles (“City”) alleging that her husband, a police officer with the Los Angeles Police Department, contracted typhus from unsanitary conditions in and around the Central Community Police Station where he worked. Plaintiff alleges that she later contracted typhus as result of sharing living space with her husband. She sued the City alleging negligence and dangerous condition of public property under Government Code section 835. The City demurred to the complaint alleging that Plaintiff had not had contact with the property at issue and contracted the virus at home, not directly from the allegedly dangerous property. It also asserted it was immune under Government Code section 855.4. The trial court overruled the City’s demurrer and the City filed a petition for writ of mandate. On appeal, the appellate court found that the City could not be held liable under Government Code section 835 nor did it owe a duty to Plaintiff because she had not alleged exposure to any condition of the subject property. The appellate court affirmed that the City had immunity under Government Code section 855.4, which provides, (a) “Neither a public entity nor a public employee is liable for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused” and (b) “Neither a public entity nor a public employee is liable for an injury caused by an act or omission in carrying out with due care a decision described in subdivision (a).” The court determined that the Plaintiff’s allegations fell squarely within the immunity, and she did not alleged facts demonstrating that the immunity did not apply. The appellate court then issued a peremptory writ of mandate directing the trial court to vacate its order overruling the demurrer and to enter a new order sustaining the demurrer.

DESIGN IMMUNITY

Menges v. Department of Transportation (2020) 59 Cal.App.5th 13 By: Erica C. Gonzales and edited by Kimberly Y. Chin, Allen Glaessner Hazelwood & Werth, LLP

Summary: Design immunity available when there is substantial evidence of the reasonableness of the design, even if contradicted by expert opinion. Discussion: Plaintiff Kevyn Menges (“Plaintiff”) suffered catastrophic injuries as a passenger in a motor vehicle accident. As Plaintiff’s vehicle proceeded on a green light to make a left-hand turn from a city street onto the onramp to southbound Interstate 5, her vehicle was struck broadside by a driver exiting the Interstate at 55-60 mph. Plaintiff sued the Department of Transportation (“Caltrans”), alleging negligent construction of its Interstate off-ramp. Plaintiff alleged a dangerous condition existed as a result of the “confusing” and “deceiving” pavement striping and signage on the Interstate off-ramp. Caltrans moved for summary judgment, asserting design immunity. The trial court granted Caltrans’s motion for summary judgment, holding substantial evidence existed in support of the reasonableness of the designs and that Plaintiff failed to establish the project was not built according to plans. On appeal, Plaintiff asserted that the trial court erred because: (1) design immunity should not apply since the approved design plans were unreasonable, and (2) the construction of the interstate off-ramp did not match the previously approved design plans. In a split decision, the 4th District Court of Appeal held both arguments lacked merit, upholding the trial court decision.