Jordan v. City of Sacramento

Defendant City successfully moved for summary judgment on the ground that plaintiff 'did not file her action until more than six months from the date of the notice of the rejection of her claim. (Gov. Code, §§ 905, 910, 911.2, 912.4, 913, 945.6.) Plaintiff has appealed in timely fashion from the judgment, contending defendant City should be estopped from asserting the limitations period as a defense. We shall affirm.

Liability for Sidewalk Injuries

The liability of an abutting property owner for injuries resulting from a' defective sidewalk was apparently a source of confusion for the parties and their lawyers. We shall therefore provide a summary of the relevant principles.

Under the common law, a landowner does not have any duty to repair abutting sidewalks along a public street, and does not owe any duty to pedestrians injured as a result of a defect in the sidewalks. (Schaefer v. Lenahan (1944) 63 Cal.App.2d 324 , 326 [ 146 P.2d 929 ] (Schaefer).)

Under a statute whose origins are nearly a century old, “The owners of lots . . . fronting on any portion of a public street. . . when that street... is improved . . . , shall maintain any sidewalk . . . .” (Sts. & Hy. Code, § 5610; see Williams v. Foster (1989) 216 Cal.App.3d 510 , 516-517 & fn. 8 [ 265 Cal.Rptr. 15 ] (Williams).) This imposes a duty of repair on the abutting property owners for defects in sidewalks, regardless of who created the defects, but does not of itself create tort liability to injured pedestrians or a duty to indemnify municipalities, except where a property owner created the defect or exercised dominion or control over the abutting sidewalk. (Schaefer, supra, 63 Cal.App.2d at pp. 327-328, 331-332; Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320 , 1331-1335 [ 96 Cal.Rptr.2d 364 ]; Williams, supra, 216 Cal.App.3d at pp. 515-517, 521-522; Jones v. Deeter (1984) 152 Cal.App.3d 798 , 803-805 [ 199 Cal.Rptr. 825 ] (Jones); Low v. City of Sacramento (1970) 7 Cal.App.3d 826 , 834 [ 87 Cal.Rptr. 173 ] [county (the abutting property owner) liable because it exercised control over city easement for sidewalk and parking strip, thus exclusion in Gov. Code, § 830, subd. .(c) does not apply; cited with apparent approval on point that control is more important than title in Alcaraz v. Vece (1997) 14 Cal.4th 1149 , 1159 [ 60 Cal.Rptr.2d 448 , 929 P.2d 1239 ]]; see Gonzales v. City of San Jose (2004) 125 Cal.App.4th , 1127, 1137 [ 23 Cal.Rptr.3d 178 ] (Gonzal.es); 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1092, pp. 421-423.) This limitation on tort liability to third parties is often referred to as the

Streets and Highways Code or those set forth in this article, or some combination thereof.” (City Code, § 12.32.050.)

In light of the above settled law, a reasonable attorney should be aware at the outset of a claim for injuries from a defective sidewalk that both a property owner and a municipality can each be at least partially liable to a plaintiff (including a public agency with notice of the defect). We now turn to the circumstances of the present case.

Scope of Review

Summary judgment provides a court with a procedure to pierce pleadings in order to determine whether a trial is truly necessary to resolve the dispute between the parties. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 , 844 [ 107 Cal.Rptr.2d 841 , 24 P.3d 493 ].)

Under the “historic paradigm” for our de novo review of a motion for summary judgment (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732 , 734—735 [ 60 Cal.Rptr.2d 710 ]), we first identify the material issues as framed in the pleadings. If the movant has established a prima facie entitlement to judgment in its behalf on these issues, we consider whether the opponent has produced evidence creating a factual conflict with respect to one of these issues that can be resolved only at trial. (Ibid.)

■ Pleadings

Given the basis for defendant City’s motion, our focus is narrow. Plaintiff, as noted, filed her claim with defendant City in October 2003, a little over a month after the incident on September 9. According to the claim (incorporated by reference in the amended pleading), the 61-year-old plaintiff was walking north on the east side of 15th Street in downtown Sacramento at 9:45 a.m. when she caught her left toes on an upraised portion of the sidewalk in front of 1317 15th Street, an “apartment and general office complex,” and fell injuring her left wrist, shoulder, and knee. She sought damages of $75,000. She claimed that the condition of the sidewalk was the result of growing roots “or some other natural occurrence,” and it “had existed for a long enough period of time” to give defendant City constructive notice of the defect.

On November 24, 2003, a representative of defendant City “informed plaintiff’s counsel that, pursuant to City Code section 12.32.040, the .. . . defendant was not responsible for the maintenance of the sidewalk” and

would submit the claim to the property owner (CADA). Plaintiff’s lawyer relied on this representation that defendant City was not responsible, and after receiving notice of the rejection of the claim against the City by operation of law, the lawyer filed a claim with CADA in February 2004 (now seeking $150,000). After CADA rejected the claim by operation of law in April 2004, plaintiff filed her original complaint in August 2004 solely against CADA.

Defendant’s Showing

In its evidence in support of its motion for summary judgment, in addition to the various pleadings and the claim form, defendant City included a copy of the November 24 communication from its independent claims administrator (Bragg & Associates) to plaintiff’s lawyer. The claims representative “advis[ed him] that the City does not own the property where [the] incident occurred.” In addition to denying that the City had any notice of the defect in the sidewalk (and therefore was not liable under the Tort Claims Act; see Gov. Code, § 800 et seq.), the letter referred to City Code section 12.32.040 and its purported imposition of civil liability for sidewalk defects solely on the property owner. The letter stated that the claims representative would submit a copy of the claim “to the property owner for [its] review and handling,” along with “the photographs.”

Defendant City also included a copy of the affidavit of plaintiff’s lawyer filed in connection with his motion to amend the complaint to add the City as a defendant. In this affidavit, the lawyer stated that he had also received a phone call a week before the November 24 letter, during which the City’s representative stated that the City Code imposed liability on the abutting property owner (whom she identified as CADA). The lawyer also noted that the November 24 letter had included copies of the pertinent portions of the City Code and a form letter sent to property owners to notify them of the need to repair a sidewalk identified as defective. In January 2004, after being told defendant City would no longer investigate the matter because it had “turned it over to CADA,” plaintiff’s attorney sent a letter to CADA stating that defendant City had disclaimed liability, and asking CADA to identify any other “ ‘entities/persons responsible for the maintenance and control of the . . . property.’ ” A different claims representative with Bragg & Associates, which also had CADA as a client, contacted plaintiff’s lawyer. In December 2004, an attorney for CADA sent a letter to plaintiff’s lawyer, asserting that CADA was not liable and should be dismissed from the action because the City was the responsible party.

he would dismiss CADA from the action and pursue only the City as a defendant. This letter also stated that plaintiff would rely on estoppel to defeat any defense based on the statute of limitations.

Plaintiff included the depositions of the two claims representatives for defendant City and CADA. The only facts premised on these depositions were the “purpose” of defendant City’s claims representative in sending the November 24 letter, which was to show the liability of CADA as the abutting property owner, and the failure of CADA’s claims representative ever to communicate a belief that defendant City was solely liable.

The supplemental declaration of plaintiff’s lawyer described his legal research after receiving the November 24 letter asserting defendant City’s nonliability. “I promptly looked the ordinance up on the City’s website to verify both the language . . . and that [it] was still an active city code. . . . [|] I next conducted research to determine if an appellate court.. . had found the [ordinance] to be unconstitutional. I was unsuccessful in finding any such published decision. I had no other reason to believe that- the City’s own ordinance was not valid in limiting the liability of the City for- injuries occurring on sidewalks within the City.” He thus relied on the letter to pursue only CADA. Until the CADA attorney referred him to the unpublished decision of this court in December 2004, he did not have any basis to believe that CADA was not liable as an abutting property owner.

Ruling

The trial court found the evidence was undisputed that the original complaint was untimely as to the claim against defendant City. As for estoppel, “she is essentially arguing that her lawyer was misled as to the law by a claim form submitted by a non-lawyer. Furthermore, there is no evidence that counsel diligently researched the legal position asserted in the form letter, nor is there any evidence that the City did anything other than send the form letter.” The trial court rejected as “[unsupported and speculative” any assertion of a conspiracy between defendant City and CADA to delay her claim against defendant City. It also found immaterial that neither claims representative responded to the request of plaintiff’s lawyer to identify responsible parties.

Discussion

As the evidentiary showings of the parties demonstrate, the material facts are not in dispute in the present matter. Rather, it is the legal significance to be accorded them. We therefore proceed to the question of whether defendant City is entitled to. judgment in its favor.

As with any other question of fact, estoppel presents only a question of law that we review de novo if there are undisputed facts. (Cal. Cigarette Concessions v. City of L. A. (1960) 53 Cal.2d 865 , 868 [ 3 Cal.Rptr. 675 , 350 P.2d 715 ] (Cal. Cigarette).)

Estoppel has a number of elements, all of which must be present. (13 Witkin, Summary of Cal. Law, supra, Equity, § 191, p. 528.) The estopped party must either misrepresent or conceal material facts with knowledge of the true facts (or gross negligence as to them) and with the intent that another who is ignorant of the facts will rely on the misrepresentation or concealment; an intent to deceive is not necessary. (Id. at pp. 527-528, § 192, p. 530; Cedars-Sinai Medical Center v. Shewry (2006) 137 Cal.App.4th 964 , 987 [ 41 Cal.Rptr.3d 48 ]; Henry v. City of Los Angeles (1962) 201 Cal.App.2d 299 , 307 [ 20 Cal.Rptr. 440 ] (Henry).)

A public agency is subject to estoppel from the assertion of either the time limits for filing tort claims, or the statute of limitations on a cause of action. (13 Witkin, Summary of Cal. Law, supra, § 200(1), pp. 541-542; Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353 , 357 [ 99 Cal.Rptr. 13 , 491 P.2d 805 ] (Fredrichsen).)

Estoppel generally involves misrepresented or concealed facts. (Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142 , 1152 [ 113 Cal.Rptr.2d 70 , 33 P.3d 487 ] [insurer’s legal conclusions regarding coverage do not create estoppel; there must be misrepresentation of facts underlying the claim]; Neff v. New York Life Ins. Co. (1947) 30 Cal.2d 165 , 174-175 [ 180 P.2d 900 ] [same]; Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136 , 1145 [ 271 Cal.Rptr. 246 ] [same]; Kunstman v. Mirizzi (1965) 234 Cal.App.2d 753 , 757 [ 44 Cal.Rptr. 707 ] (Kuntsman) [for estoppel, “ 1 “it must appear that the misrepresentation was one of fact” ’ ”].)

Plaintiff■ ineffectually attempts to distinguish these cases as involving insurance. To the contrary, these cases simply reflect the black-letter principle that (in the absence of a confidential relationship) where the material facts are known to both parties and the pertinent provisions of law are equally accessible to them, a party’s inaccurate statement of the law or failure to remind the other party about a statute of limitations cannot give rise to an estoppel. Some cases assert that this simply amounts to a “mutual mistake of law” and others remark that the estoppel elements of ignorance and reasonable reliance are absent. (Cal. Cigarette, supra, 53 Cal.2d at p. 871; People v. Stuyvesant Ins. Co. (1968) 261 Cal.App.2d 773 , 783-784 [ 68 Cal.Rptr. 389 ] (Stuyvesant Ins.); Henry, supra, 201 Cal.App.2d at pp. 307-308, 310; Gilbert v. City of Martinez (1957) 152 Cal.App.2d 374 , 377-378 [ 313 P.2d 139 ]; Joseph George, Distr. v. Dept. Alc. Control (1957) 149 Cal.App.2d 702 ,

faith, purported to “advise and direct” the claimant rather than merely “inform and respond,” and acted with certitude in dispensing the advice. (Id. at p. 307.) The advice must be negligent at the time it is made, rather than becoming inaccurate only in light of later legal developments. (Id. at pp. 306-307.) Under the other category, the factors include the existence of a confidential relationship between the agency and the claimant (Driscoll specifically distinguishing this broader term from a fiduciary relationship), the nature of the right asserted, and whether the “claimant is one who purports to have no knowledge or training which would aid him in determining his rights and the public agency purports to be informed and knowledgeable [on the subject].” (Id. at pp. 308-309 & fn. 11.)

In estopping the public agency from asserting the statute of limitations, Driscoll cited the pension board’s certainty in advising and directing the claimants as to their rights to a pension (acknowledging that the advice at the time was riot negligent), described the relationship between the pension board and the claimant as confidential, and placed particular emphasis on the right at issue (the entitlement of a widow to a pension). (Driscoll, supra, 67 Cal.3d at pp. 310-311.) However, iii allowing the widows to pursue their entitlement despite the expiration of the statute of limitations, the court did not find the right to retroactive compensation beyond the city’s six-month time limit for claims against it to be sufficiently fundamental to warrant estoppel (given that the pension board’s advice had been in good faith and was not unreasonable). (Id. at p. 311.)

Fredrichsen applied these factors in the context of a tort claim against a public agency. (Fredrichsen, supra, 6 Cal.3d at pp. 355-356, 358.) Despite the fact that the city exercised control over the maintenance of ,a sidewalk where the unrepresented claimant fell, its clerk made the implicit representation that the property owner was the responsible party (sending the claimant a copy of the city’s letter to the property owner regarding its responsibility for maintenance of the defective sidewalk rather than the claim form that she had requested). The claimant consequently pursued settlement unsuccessfully with the property owner, and retained an dttomey to file suit just short of a year after her injuries (the attorney found out that the city was indeed the party maintaining the sidewalk). (Id. at pp. 355-356.) In estopping the city from asserting the statute of limitations, Fredrichsen found the city’s implicit representation to be negligent (as it should have known whether or not it maintained the sidewalk) and to be an attempt to advise and direct the plaintiff (in a direction away from itself). While a confidential relationship did not exist, the plaintiff would not have any way of knowing the identity of the party that maintained the sidewalk and the letter to the property owner “held [the city] out as haying such special knowledge.” (Id. at pp. 358-359.) It also described the right to sue as “fundamental” (without analysis). (Ibid.)

Disposition

The judgment is affirmed.

Nicholson, J., and Robie, J., concurred.

On April 11, 2007, the opinion was modified to read as printed above.