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Stevens v. 396 Investment Co.5/17/2005
Code section 911.3, subdivision (a) applied. (Id. at pp. 702, fn. 2, 705, fn. 3.) The court remarked: "Whether or not it decides to provide a notice of insufficiency, the public entity must notify the claimant within 45 days after the claim is presented whether the claim, defective or otherwise, was timely filed. (§ 911.3, subd. (a); see fn. 2, ante.) . . . Failure to provide such notice of timeliness waives a public entity's defense based on untimeliness even if the claim is otherwise insufficient . . . . (§ 911.3, subd. (b); see fn. 2, ante.)" (Id. at pp. 705-706.)
This language, if taken out of context, could be construed as an indication that any time a public entity fails to give notice, within 45 days of the presentation of a claim, that the claim is untimely, it waives any defense based on untimeliness, irrespective of whether the claim is one to which the six-month or the one-year filing deadline applies. But there is no indication in Phillips v. Desert Hospital Dist., supra, 49 Cal.3d 699 that the court intended to rewrite Government Code section 911.3, subdivision (b) in this fashion. The claim under consideration was clearly one to which section 911.3, subdivision (a) applied. Moreover, the quoted language specifically makes reference to section 911.3, subdivision (a), albeit parenthetically. The court simply was not addressing whether the waiver provision of section 911.3, subdivision (b) applies even when the claim in question is one to which the one-year filing deadline applies, and we cannot construe that case as broadly applying to a category of claims that were not at issue.
However, 396 cites another case, Ocean Services Corp. v. Ventura Port Dist. (1993) 15 Cal.App.4th 1762, which applied in dictum some of the broad language from Phillips v. Desert Hospital Dist., supra, 49 Cal.3d 699. In Ocean Services, a port district was estopped from asserting that the claim before it was untimely when it had engaged in extensive discussions and negotiations with respect to the subject matter of the plaintiff's claim and had made many representations to the plaintiff in order to induce it to refrain from pursuing legal recourse. In the alternative, the court also determined that the plaintiff had substantially complied with the Tort Claims Act. (Ocean Services Corp. v. Ventura Port Dist., supra, 15 Cal.App.4th at p. 1776.) These were the two bases for upholding the judgment in favor of the plaintiff.
However, the court in Ocean Services Corp. v. Ventura Port Dist., supra, 15 Cal.App.4th 1762 also commented: "Where, as here, a public entity fails to give notice of defects regarding the content or timeliness of the claim, it ` . . . waives any defenses based on those insufficiencies.' (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 702 [263 Cal.Rptr. 119, 780 P.2d 349], fn. omitted.) Although Phillips v. Desert Hospital Dist., supra, involved a personal injury claim that was subjected to a 100-day claims presentation requirement (id. at p. 705, fn. 3), the same principle applies here[, where the one-year claim provision of section 911.2 applies]." (Ocean Services Corp. v. Ventura Port Dist., supra, 15 Cal.App.4th at p. 1777.) We disagree with this dictum from Ocean Services. As we explained above, a careful reading of Phillips v. Desert Hospital Dist., supra, 49 Cal.3d 699 discloses no intention on the part of the Supreme Court to rewrite Government Code section 911.3, subdivision (b) to apply to claims as to which the one-year filing deadline of section 911.2 applies. Moreover, the quoted language from Ocean Services is unnecessary to the resolution of that case. The court's decision in Ocean Services was not based upon waiver under section 911.3, subdivision (b). It was
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