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Defendant Not Estopped From Asserting Time Bar Where Plaintiff Sued Wrong Entity, C.A. Declares
1983 Case Where Relief Was Mandated Is Distinguished
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal on Tuesday affirmed a judgment of dismissal in a case where a plaintiff filed a claim against a public entity, which was rejected with the admonishment that any suit had to be brought within six months, and two months later sued a non-public entity with a similar name, bringing suit against the public entity after the limitations period had expired.
Justice Richard D. Huffman authored the unpublished opinion rejecting the contention by plaintiff Jeffrey Nelson that the public entity, the Eastern Municipal Water District, is estopped from asserting the time bar. In rejecting Nelson s position, Huffman distinguished the facts from those present in a 1983 decision where an estoppel was found.
Nelson contended that an excavation on land owned by the water district about 1,000 feet from his home led to his exposure to harmful chemicals and other hazardous materials. A claim was filed pursuant to the Government Claims Act; it was rejected; he sued the Eastern Municipal Water District Facilities Corporation, a mutual non-profit public benefit corporation created by the district, which played a role in the excavation; he apparently thought he had sued the district.
Although attorney Harvey W. Wimer III, of the firm of Graves & King LLP, purporting (mistakenly) to be representing the district, sent Snarr a letter setting forth in detail why a cause of action had not been stated against the district. The plaintiff s lawyer, Gregory G. Snarr of Best Best & Krieger, did appreciate that he had erred until the Facilities Corporation demurred to the first amended complaint.
By then, more than six months had passed since the claim had been rejected. After further pleading, Riverside Superior Court Judge Carol A. Greene sustained a demurrer without leave to amend.
1983 Decision
Huffman noted that the error did not entail suing one entity thinking that another entity a proper defendant had actually been sued. That was the circumstance in the 1983 case of Kleinecke v. Montecito Water District where Div. Six of this district s Court of Appeal found that estoppel applied.
There, the plaintiff sued a sanitary district where a water district should have been sued.
Then-Justice (now Presiding Justice) Arthur Gilbert said:
When an attorney serves the wrong party with a summons and complaint, he usually receives a telephone call advising him of the error. Counsel for plaintiff did not receive such a call.
An answer was filed by the erroneously named party which, Gilbert recited, generally denied the allegations in the complaint and failed to mention that Sanitary District was the wrong party served. By the time the plaintiff s lawyer learned of his mistake, the six-month period for bring suit had expired.
Equitable estoppel as a bar to asserting the statute of limitations will have its place in the case at bench., Gilbert declared.
Kleinecke Differentiated
Huffman wrote:
Here, two significant differences stand out between Kleinecke and the instant action. First, in Kleinecke, it is undisputed that the plaintiff sued the wrong public entity. He mistakenly sued Montecito Sanitary District but meant to sue Montecito Water District .In contrast, here, it appears that Nelson intended to sue Facilities Corporation and the District. The instant matter is still proceeding against Facilities Corporation. And there is no indication in the original complaint that Nelson intended to sue a public entity. He clearly knew that Facilities Corporation was not a public entity as he alleged it was a California nonprofit mutual benefit corporation. Further, there was no allegation in the original complaint (or even the first amended complaint) that Nelson had complied with the claim presentation requirement under the Act, which is an essential allegation for a plaintiff bringing a claim against a public entity.
He went on to note that in Kleinecke, the lawyer who represented both the water district and the sanitary district lulled the plaintiff s lawyer into a sense of security that the correct entity had been served while, in the present case, Wimer detailed over four pages why the original complaint did not state a valid claim against a public entity.
Huffman s Counseling
Huffman counseled in the opening paragraph of his opinion:
This case highlights the importance of a critical skill for all attorneys attention to detail. For a plaintiffs counsel, it is essential to make sure you sue the correct party. True, there may be times when it is difficult for a plaintiff to identity the entity that is causing injury. This is not one of those cases. On the other side of the coin, a defense counsel must carefully read the complaint to ensure he or she knows what entity has been sued. This may sound like a most basic task (and it is), but, in this case, it did not happen. Not surprisingly, confusion permeated the dispute, and this appeal is now before us.
The case is Nelson v. Eastern Municipal Water District, D083321.
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