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Wong v. 396 Investment Co.5/17/2005
ndemnity accrues shall be the date upon which a defendant is served with the complaint giving rise to the defendant's claim for equitable indemnity or partial equitable indemnity against the public entity." This clinches it, as far as Anaheim is concerned. 396's claim was for either total or partial equitable indemnity. However, 396 waited more than a year after it was served in the litigation to file a claim with Anaheim. Therefore, according to Anaheim, Government Code sections 901 and 911.2 bar the claim. This is because the Government Code section 911.2 one- year period for the presentation of a claim is "comparable . . . to a statute of limitations and the same effect, that is, the claim is barred unless presented within one year." (Myers v. County of Orange (1970) 6 Cal.App.3d 626, 630, 636.)
While 396 asserts that it was unaware that the reservoir was a cause of harm within the one-year period, this assertion is unavailing. The "late discovery rule" is not applied to equitable indemnity claims governed by Government Code section 901. (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485; State of California v. Superior Court (1983) 143 Cal.App.3d 754, 760-761.)
Inasmuch as the parties agree that 396 was served with a dozen or more complaints well over a year before 396 filed its claim with Anaheim, it would appear that 396's claim was not timely filed. However, this is not the end of the analysis.
(c) Waiver of Timeliness Defense: Government Code Section 911.3
On appeal, 396 emphasizes Government Code section 911.3, which provides in pertinent part: "(a) When a claim that is required by Section 911.2 to be presented not later than six months after accrual of the cause of action is presented after such time . . . , the board or other person designated by it may, at any time within 45 days after the claim is presented, give written notice to the person presenting the claim that the claim was not filed timely and that it is being returned without further action. [ ] . . . [ ] (b) Any defense as to the time limit for presenting a claim described in subdivision (a) is waived by failure to give the notice set forth in subdivision (a) within 45 days after the claim is presented . . . ." 396 states that Anaheim failed to give the required notice and therefore it waived its right to assert untimely filing as a defense.
This implies an argument that 396's claim is one "relating to a cause of action for death or for injury to person or to personal property," since it is that category of claims to which the six-month filing deadline of section 911.2 applies. However, in its supplemental letter brief filed December 23, 2004, 396 admits that its claim is one to which the one-year filing deadline of section 911.2 applies. This being the case, Anaheim is correct that the section 911.3, subdivision (b) waiver provision is inapplicable. The subdivision (b) waiver applies by its terms only with respect to claims "described in subdivision (a)." The claims described in subdivision (a) are only those required, under section 911.2, to be filed within six months of accrual. There would appear to be nothing more to say on the point.
396 disagrees. It cites two cases for the proposition that the Government Code section 911.3, subdivision (b) waiver provision applies even as to those claims required by section 911.2 to be filed within one year of the date of accrual. As we shall show, 396 reads those cases too broadly.
The first case is Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699. Phillips had to do with the sufficiency of a medical malpractice claim. The court in Phillips expressly noted that the claim was on
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