Filed 10/22/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
JOHN LOWRY, 2d Civ. Nos. B300072,
B302209
Plaintiff and Appellant, (Super. Ct. No. 17CV-0155)
(San Luis Obispo County)
v.
PORT SAN LUIS HARBOR
DISTRICT,
Defendant and Respondent.
Plaintiff missed the statutory deadline to file a claim
against a public entity, so he applied to submit a late claim. He
filed his complaint the same day, not waiting for the public entity
to respond to his application. We hold that the Government
Claims Act (the Act; Gov. Code,1 § 810 et seq.) is not satisfied by
filing a complaint before rejection of a claim.
John Lowry sued the Port San Luis Harbor District
(the District) for injuries he suffered while attempting to board
one of the District’s boats. He appeals from a judgment on the
1 Unless
otherwise noted, all undesignated statutory
references are to the Government Code.
pleadings against him. He contends that he complied with the
Act by filing an application to file a late claim the same day he
filed his complaint. He also challenges certain costs awarded to
the District. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Lowry was a harbor patrol officer employed by the
District. He was injured on March 11, 2016, when he fell from a
ladder while attempting to board a rescue boat.
On the day of the incident, Lowry submitted a
workers’ compensation claim. The claim was granted to provide
for continuation of his salary.
On March 10, 2017, Lowry filed a complaint in
superior court against the District. He alleged Jones Act
negligence (46 U.S.C. § 30104), maintenance and cure, and
unseaworthiness. The complaint included a cause of action by his
wife for loss of consortium. The complaint also included checked
boxes stating: “Plaintiff is required to comply with a claims
statute,” “has complied with applicable claims statutes,” and “is
excused from complying because (specify):” without specifying
why he was excused.
The same day, Lowry faxed the District an
application for permission to present a late claim. (§ 911.4) A
proposed claim was attached to the application. The District’s
harbor manager received the application on March 11. She
presented the claim to the Harbor’s Board of Commissioners on
March 28, 2017.
The District sent Lowry a notice of rejection that
stated, “Notice is hereby given that the claim presented to the
Port San Luis Harbor District on March 11, 2016, was rejected on
March 29, 2017.” The harbor commissioner declared that March
2
11, 2016, was a typographical error, and she meant the date she
received the application, March 11, 2017.
The District was served with the summons and
complaint on June 2, 2017. It filed an answer alleging
affirmative defenses including failure to comply with the Act.
Lowry then filed a first amended complaint (FAC) adding
unseaworthiness pursuant to the Jones Act, and unseaworthiness
and negligence pursuant to the General Maritime Law. The
cause of action for loss of consortium was deleted. No boxes
regarding compliance with claims statutes were marked. Lowry’s
counsel declared that this failure was inadvertent. The District
filed an answer, again alleging failure to comply with the Act.
On June 20, 2019, the trial court issued a ruling on
motion for judgment on the pleadings and motion to bifurcate. It
granted the District’s motion for judgment on the pleadings based
on noncompliance with the Act.2
On June 27, 2019, Lowry filed a motion for
reconsideration of the ruling granting judgment on the pleadings.
On July 15, 2019, the Harbor served Lowry with a purported
notice of entry of judgment, with a copy of the June 20 ruling
attached. On August 13, 2019, the court issued a ruling on
motion for reconsideration, which denied reconsideration of the
June 20 ruling, and stated, “Judgment on the pleadings is
entered for Defendant.”
2A computer print-out entitled “San Luis Obispo Case
Summary” contains an entry for June 20, 2019, which states in
part: “Judgment – Court finding – After court trial.” A computer
print-out entitled “Case Information” contains entries for July 15
and July 29, 2019, that give “Judgment Entered” as the reason a
readiness conference and a jury trial date were cancelled.
3
On November 6, 2019, the court taxed $942.58 from
the District’s costs, and awarded the District costs of $22,977.98.
DISCUSSION
Appealability
We consolidated for appeal three notices of appeal
filed by Lowry. The first notice is from the judgment entered
August 13, 2019. The second is from the order denying the
motion for reconsideration. The third is from the ruling on the
motion to strike/tax costs.
The District contends Lowry did not properly appeal
the judgment. We disagree. The trial court entered judgment on
August 13, 2019. Lowry properly appealed from the judgment,
not from the earlier nonappealable ruling granting the motion for
judgment on the pleadings. (Ellerbee v. County of Los Angeles
(2010) 187 Cal.App.4th 1206, 1212-1213.)
The purported notice of entry of judgment filed by the
District on July 15, 2019, is not effective because no judgment
had been issued yet. “The rendition of a judgment is a judicial
act; its entry upon the record is merely ministerial.” (In re Cook’s
Estate (1888) 77 Cal. 220, 226; In re J.V. (2014) 231 Cal.App.4th
1331, 1335; see Code Civ. Proc., § 438, subd. (h)(3).) References
to a “Judgment” in the court’s computer records for June and
July 2019 are not supported by oral pronouncements or written
orders of the judge. We do not view these notations as the entry
of judgment in the “judgment book” or “permanent minutes.”
(Cal. Rules of Court, rule 8.104(c)(1) & (2).) To the extent the
trial court’s records regarding the date of judgment are unclear,
we liberally construe the notice of appeal to allow the appeal.
(Cal. Rules of Court, rule 8.100(a)(2).)
4
Lowry concedes that appeal of the denial of motion
for reconsideration was neither necessary nor proper. Instead,
we consider the motion for reconsideration as part of the appeal
from the judgment. (Code Civ. Proc., § 1008, subd. (g); Young v.
Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 51.) The
order regarding costs is appealable as an order after judgment.
(Code Civ. Proc., § 904.1, subd. (a)(2); Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 654-655.)
Judgment on the pleadings
In a motion for judgment on the pleadings, the court
accepts as true all material facts alleged in the complaint, and
may consider matters subject to judicial notice. (Code Civ. Proc.,
§ 438, subd. (d); Gerawan Farming, Inc. v. Lyons (2000) 24
Cal.4th 468, 515.) We review de novo an order granting a motion
for judgment on the pleadings. (Gerawan, at p. 515.) We review
the judgment and not the trial court’s reasoning. (Hood v. Santa
Barbara Bank & Trust (2006) 143 Cal.App.4th 526, 535.)
Government Claims Act
Public entities are protected by sovereign immunity
for injuries arising from their acts or omissions, except as
provided in the Government Claims Act or other statutes.
(§ 815.) The Act “was conceived to strictly limit governmental
liability.” (Williams v. Horvath (1976) 16 Cal.3d 834, 842.) The
District is a local public entity subject to the Act. (§§ 900.4, 905,
915; Harb. & Nav. Code, § 6095.)
“A claim relating to a cause of action for death or for
injury to person . . . shall be presented . . . not later than six
months after the accrual of the cause of action.” (§ 911.2, subd.
(a).) A public entity’s knowledge of an incident and injuries does
not excuse the claim requirement. (DiCampli-Mintz v. County of
5
Santa Clara (2012) 55 Cal.4th 983, 990-991 (DiCampli-Mintz).)
“[F]ailure 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.” (State of California v. Superior Court (Bodde) (2004) 32
Cal.4th 1234, 1239 (Bodde).)3
Late claim
A claimant who misses the six-month claim deadline
may apply to file a late claim “within a reasonable time not to
exceed one year after the accrual of the cause of action.”
(§ 911.4.) The trial court took judicial notice of an application
Lowry faxed the District on March 10, 2017, within a year of the
incident.
The harbor manager gave the application to the
Board at a meeting 18 days later, but that did not render Lowry’s
application untimely. This case is unlike Munoz v. State of
California (1995) 33 Cal.App.4th 1767, 1780, where the
application to submit a late claim was untimely because it was
sent to the wrong entity (a prison) and was not forwarded to the
Board of Control until after the deadline.
The District sent Lowry a notice that “the claim
presented to the [District] on March 11, 2016, was rejected on
March 29, 2017.” The District asserts, and Lowry accepts, that
the notice contains a typographical error, and the date the claim
was presented was March 11, 2017.
By denying the claim, the District impliedly granted
the application to present a late claim. (Harvey v. City of
3Although Lowry initially maintained his workers’
compensation claim satisfied the claim requirement, he has
abandoned reliance on that claim on appeal.
6
Holtville (1967) 252 Cal.App.2d 595, 597; Harvey v. City of
Holtville (1969) 271 Cal.App.2d 816, 819-820.) The plain
language of the notice states that the claim was denied, not the
application to file a late claim. The notice contained the warning
required to accompany denial of a claim, i.e., that the claimant
has six months to file a lawsuit. (§ 913, subd. (b).) It did not
include the warning required for denial of an application to file a
late claim, i.e., that the claimant has six months to file a petition
for relief from the claim requirement. (§ 911.8, subd. (b).)
By advising Lowry the claim was denied, the District
was estopped from asserting that it did not grant the application
to file a late claim. 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.
Premature filing
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. (§§ 911.6, subds. (a)
& (c), 912.4.) Accordingly, the complaint he filed the same day
was premature.
Other than exceptions not applicable here, “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.” (§ 945.4.) “Timely claim
presentation is not merely a procedural requirement, but is . . .
‘“‘“a condition precedent to plaintiff’s maintaining an action
against defendant.”’”’ . . . Only after the public entity’s board has
7
acted upon or is deemed to have rejected the claim may the
injured person bring a lawsuit alleging a cause of action in tort
against the public entity.” (Shirk v. Vista Unified School Dist.
(2007) 42 Cal.4th 201, 209, superseded by statute as stated in
Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 914.) Lowry failed
to comply with the Act because he filed a complaint before his
claim was rejected.
Lowry relies on some older Court of Appeal cases that
found compliance with the Act even though complaints were filed
prematurely, before the claims were rejected. But the rationale
of those cases is not consistent with more recent decisions of our
Supreme Court. We therefore decline to follow them.
For example, in Savage v. State (1970) 4 Cal.App.3d
793, 796 (Savage), the plaintiff applied to file a late claim a few
days before the one year anniversary of the injury and filed a
complaint the next day. When the application for late filing was
denied, the trial court granted relief from the requirement of
filing a claim (§ 946.6). The trial court permitted the plaintiff to
file a supplemental complaint alleging the claim requirement had
been excused. The appellate court noted that because section
946.6 “permits the court to allow the bringing of suit without the
necessity of filing a claim at all[,] [i]t is immaterial whether the
right to eliminate the filing of the claim is granted before or after
suit.” (Savage, at p. 796.)
Unlike the circumstances in Savage, section 946.6
does not apply here. Instead, the Board here allowed the late
filing (§ 911.6) and denied the claim (§ 912.6, subd. (a)). Savage
also relied in part on “the attitude of the courts that procedural
requirements should be given liberal interpretations in order not
to deprive a litigant of his day in court because of technical
8
requirements.” (Savage, supra, 4 Cal.App.3d at p. 796.) This
rationale was later rejected by our Supreme Court in DiCampli-
Mintz, which requires that claims “satisfy the express . . .
language of the statute.” (DiCampli-Mintz, supra, 55 Cal.4th at
p. 987.) In DiCampli-Mintz, the court held that delivering a
claim to the public entity’s risk management department violated
the statutory requirement to present it to other specified officers.
The court declined to allow the claim because the intent of the
Act “is ‘not to expand the rights of plaintiffs against
governmental entities,’ but ‘to confine potential governmental
liability rigidly delineated circumstances.’” (Id. at p. 991.)
In another case relied on by Lowry, Cory v. City of
Huntington Beach (1974) 43 Cal.App.3d 131, 135-136 (Cory), the
plaintiff filed a timely claim, but then filed a complaint two days
later, before the city had taken action on the claim. In allowing
the case to proceed, the court reasoned that “the waiting period
requirement is not part of the cause of action but a procedural
condition precedent to suit.” (Id. at p. 135.) Our Supreme Court
has since rejected this theory as well. (DiCampli-Mintz, supra,
55 Cal.4th at p. 983; Bodde, supra, 32 Cal.4th at p. 1244.) Cory
also “applied a test of substantial compliance” (id. at p. 136),
which our Supreme Court has rejected. (DiCampli-Mintz, at p.
987.) Accordingly, we decline to follow Cory.
Finally, this case is unlike Taylor v. City of Los
Angeles (1960) 180 Cal.App.2d 255 (Taylor), another case relied
on by Lowry. The plaintiff there submitted a claim as required
by the city charter but filed the lawsuit before the claim was
rejected. The appellate court reversed the dismissal because (1)
the city charter provisions were preempted by state law (id. at
pp. 261-262), and (2) the city was estopped because it waited
9
until trial to raise the issue (id. at pp. 263-264). Here, the claim
requirements are dictated by state law, and the District timely
asserted the defect in its answers to the initial complaint and
FAC.
In Bodde, the court listed cases allowing premature
filing of a complaint after the plaintiff submitted a timely claim
or the petition to file a late claim, including Savage, Cory, and
Taylor. (Bodde, supra, 32 Cal.4th at pp. 1243-1244.) However,
the discussion of these cases is dictum because the court found
them not relevant to the issue before it, i.e., whether the
complaint must allege compliance, or circumstances excusing
compliance, with the statute. (Id. at p. 1244.) A general
statement of law unnecessary to the decision “is not the ‘true
holding’ of a case when it becomes unmoored from its factual
underpinnings.” (People v. Mazumder (2019) 34 Cal.App.5th 732,
743; Santa Monica Hospital Medical Center v. Superior Court
(1988) 203 Cal.App.3d 1026, 1033.)
Leave to amend
We review denial of leave to amend for abuse of
discretion. (Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1126.) “‘[O]n a motion for judgment on the pleadings, leave
to amend should be granted if there is any reasonable possibility
that the plaintiff can state a good cause of action.’” (Gami v.
Mullikin Medical Center (1993) 18 Cal.App.4th 870, 876-877.)
“The burden of proving such reasonable possibility is squarely on
the plaintiff.” (Zelig, at p. 1126.)
Lowry offered to amend the complaint to state he
complied with the applicable claims statutes. But the lawsuit is
precluded because it was not preceded by rejection of a claim.
10
Lowry’s noncompliance with the Act cannot be cured by
amending the complaint to allege he complied.
Costs
A memorandum of costs must be filed “within 15 days
after the date of service of the notice of entry of judgment . . . or
within 180 days after entry of judgment, whichever is first.” (Cal.
Rules of Court, rule 3.1700(a)(1).) The District filed a
memorandum of costs on July 30, 2019. Lowry objected that the
application was premature because judgment had not been
entered.
A prematurely filed memorandum of costs is “‘a mere
irregularity at best’ that does not constitute reversible error
absent a showing of prejudice” and is treated “as being timely
filed.” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153
Cal.App.4th 863, 880.) After judgment was entered, the trial
court held a hearing regarding costs and issued its order taxing
and granting costs. Lowry has not shown he was prejudiced by
the early filing of the memorandum.
The prevailing party is entitled to costs as a matter of
right. (Code Civ. Proc., § 1032, subd. (b).) Allowable costs
include service of process. (Code Civ. Proc., § 1033.5, subd.
(a)(4).) Costs must be “reasonably necessary to the conduct of the
litigation rather than merely convenient or beneficial to its
preparation” and “reasonable in amount.” (Code Civ. Proc.,
§ 1033.5, subd. (c)(2) & (3).) “If the items appearing in a cost bill
appear to be proper charges, the burden is on the party seeking to
tax costs to show that they were not reasonable or necessary. On
the other hand, if the items are properly objected to, they are put
in issue and the burden of proof is on the party claiming them as
costs.” (Ladas v. California State Automobile Assn. (1993) 19
11
Cal.App.4th 761, 774.) We review for abuse of discretion the trial
court’s determination that costs were reasonably necessary.
(Ibid.)
Lowry challenges the inclusion of $9,816.78 for
service of process of 22 subpoenas for medical records on the basis
that he was not treated by those providers, or they were not
related to his claimed injuries. Through a public records request,
the District obtained Lowry’s Workers’ Compensation Appeals
Board file that contained the names of approximately 20 medical
providers whom he had not disclosed in discovery. The District
served subpoenas based on this information and on providers’
identification of additional providers.
The District alleged as affirmative defenses
preexisting conditions, superseding and intervening causes
including failure to follow medical advice, and unfitness for duty
by misrepresenting or concealing prehiring medical facts. The
District was entitled to subpoena records to prepare its defense of
the case. The trial court concluded, “Nothing in Plaintiff’s
opposition shows that these costs were unreasonable or
unnecessary.” There was no abuse of discretion in awarding
these costs.
DISPOSITION
The judgment is affirmed. Respondent shall recover
its costs on appeal.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J. PERREN, J.
12
Ginger E. Garrett, Judge
Superior Court County of San Luis Obispo
______________________________
Krissman & Silver, Jarrod A. Krissman and Donna
Silver for Plaintiff and Appellant.
Collins Collins Muir + Stewart and Jolene R. Rice for
Defendant and Respondent.