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Court of Appeal:
Notice Ineffective for Failing to Warn of Right to Lawyer Though Party Had a Lawyer
Public Entity’s Failure to Warn in Rejecting Claim Preludes Reliance
On
Six-Month Time Bar, Opinion Says; Two-Year Statute AppliesBy
a MetNews Staff Writer
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has held that an action that was filed more than six months after a claim against a governmental entity was denied was timely because the notice of denial lacked statutorily required language advising that contacting a lawyer might be a good idea, rejecting the agency’s contention that the omission didn’t matter because the claimant was already represented by counsel.
Justice Patricia Guerrero authored the opinion, filed Monday. It reverses a summary judgment granted in favor of the San Diego’s Metropolitan Transit System (“MTS”) and others based on an injury plaintiff Treasure Andrews received while a passenger on a bus.
The plaintiff, an octogenarian, fell and injured her hip, attributing the injury to the driver having “negligently accelerated” before she had taken a seat.
Her claim pursuant to the Government Claims Act was rejected on Nov. 14, 2017. Andrews brought suit nearly eight months later.
Government Code Provisions
Government Code §945.6(a)(1) provides that if “written notice” of the rejection of a claim “is given in accordance with Section 913,” suit must be brought “not later than six months after the date such notice is personally delivered or deposited in the mail.” Absent written notice, the time within which to sue is two years.
Sec. 913(b) provides that if a claim is denied, the notice must set forth a warning conforming “substantially” to this wording:
“Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6.
“You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.”
Superior Court Ruling
MTS included the first paragraph, but not the second. That omission, San Diego Superior Court Judge Richard S. Whitney ruled, was inconsequential.
He said, in granting summary judgment, that MTS “complied with....section 913 by providing a warning that was substantially the same as that provided in...section 913 under the circumstances because it was known Plaintiff was represented by counsel and the notice of rejection was sent to Plaintiff’s counsel.”
In her opinion reversing the summary judgment, Guerrero concluded that the 2017 notice of rejection was a nullity for purpose of determining when a lawsuit had to be filed. The fact that Andrews already had a lawyer, she declared, does not mean that there was substantial compliance with §913.
Guerrero explained:
“[E]ven considering Andrews’s representation, the attorney advisement still has meaning. A represented claimant like Andrews could have representation only for the limited purpose of submitting a claim, or the representation could otherwise have ended by the time the public entity delivered its notice of rejection. The attorney advisement would still serve a useful purpose under such circumstances. We will not lightly disregard the notice expressly mandated by statute.”
Matter of ‘Substance’
MTS contended that the second paragraph of the warning does not relate to a “matter of ‘substance’ ” and the omission of it lacks significance. Guerrero responded:
“This claim is unpersuasive. The suggestion that a claimant seek the advice of an attorney, and do so promptly, has the potential to alter a claimant’s behavior and affect the outcome of her subsequent lawsuit. The Legislature determined that such a suggestion should be included, and the California Law Revision Commission comments confirm its importance. It is substantive; it is not a matter of form or a mere technicality.”
The case is Andrews v. Metropolitan Transit System, 2022 S.O.S. 453.
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