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SUPERIOR COATINGS, INC. v. LOS ANGELES UNIFIED SCHOOL DISTRICT
Court of Appeals of California, Second District, Division Three.
Filed August 23, 2012.
"Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. (Gov. Code, § 911.2; . . . .)" (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208 (Shirk).) A complaint that does not allege facts demonstrating either that a claim was timely presented, or that compliance with the claims statute is excused, is subject to a general demurrer for not stating facts sufficient to constitute a cause of action. (Id. at p. 209.) The purpose of the claims statutes "is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. [Citations.]" (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455, italics added.) "Only after the public entity's board has 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. [Citations.]" (Shirk, supra, 42 Cal.4th at p. 209, italics added.) Here, Superior presented its claim to the District on November 3, 2010, and filed this lawsuit the next day. Under the statutory scheme, the District was entitled to 45 days to consider the claim. (Gov. Code, § 912.4.) By "jumping the gun" in filing this lawsuit, Superior deprived the District of the opportunity to resolve this matter without the expense of litigation. Simply stated, Superior's hasty commencement of this action completely negated the claims statute. Superior asserts that in December 2010, the District denied the claim, and therefore Superior now is capable of amending its pleading to allege compliance with the claims statutes. The contention is meritless. To reiterate, "[o]nly after the public entity's board has 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. [Citations.]" (Shirk, supra, 42 Cal.4th at p. 209, italics added.) Because Superior sued prematurely — before the District had any opportunity to consider the claim, and the claim was denied during the pendency of this lawsuit, Superior is incapable of alleging it brought suit after its claim was rejected or denied by operation of law. In sum, because Superior is incapable of alleging compliance with the Tort Claims Act, the first cause of action for nuisance/trespass was not well pled and cannot be amended to state a cause of action. b. Second cause of action for inverse condemnation not well pled. (1) General principles.
1. At oral argument, this court was advised the school has been completed and was scheduled to open in August 2012.
2. Although Superior contends that environmental contaminants are migrating from the school site to Superior's property, that issue was not enumerated in the tort claim which it presented to the District. We note that in the opening brief, at footnote one, Superior withdrew its cause of action for trespass against the District.
3. Civil Code section 3482 states: "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance."
4. All further statutory references are to the Code of Civil Procedure, unless otherwise specified.
Section 472 provides in pertinent part: "Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party . . . ." (Italics added.) However, as the trial court noted, section 472 does not provide for the filing of a "notice of intent to amend" as an alternative to the filing of an amended complaint.
5. We are mindful the Tort Claims Act does not apply to Superior's cause of action for inverse condemnation (Gov. Code, § 905.1; Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 607) or to its federal civil rights claim. (Williams v. Horvath (1976) 16 Cal.3d 834, 842.)
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