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Stevens v. 396 Investment Co.5/17/2005
based upon estoppel and substantial compliance. We cannot apply Ocean Services to extend the waiver provision of section 911.3, subdivision (b) to fit the facts of this case.
(d) Waiver of defense based on trial court proceedings
396 contends that Anaheim has waived its right to challenge the timeliness of 396's claim filing because Anaheim did not raise the issue at the appropriate point during the trial proceedings. 396 argues that all affirmative defenses to liability for slope failure were required by stipulation to be tried in the Phase I trial. It further asserts that the defense of untimeliness was in essence a defense to liability, such that it was required to be raised in Phase I.
Anaheim made a motion for non-suit on April 27, 2001, after about 17 days of trial in Phase I. One of the grounds for the motion was "the failure of all parties to present evidence of the filing of a claim" under the Tort Claims Act. However, the motion did not address the issue of whether 396's claim was timely filed. The court overruled the motion.
Anaheim later got around to arguing that 396's filed claim was untimely. In December 2001, after the jury had rendered its special verdict and the court had rendered its statement of decision as to the Phase I trial, and before commencement of the Phase II trial, Anaheim filed a motion for summary judgment based on the failure of 396 to file its claim in a timely fashion. The court apparently denied the motion without explanation.
Finally, on May 10, 2002, Anaheim filed a brief on certain Phase II issues. In that brief, Anaheim again asserted that 396's indemnity claims were barred for failure to timely file a claim under the Tort Claims Act. The court ruled against Anaheim on that point.
As the foregoing shows, Anaheim raised Tort Claims Act issues a number of times, even though it did not address the timeliness aspect of 396's claim filing either on the first occasion it raised claims filing issues or during the Phase I trial. The parties have provided us with extensive briefing as to whether Anaheim waived its right to raise the issue either because it failed to raise timeliness the first time it raised claims filing issues or because it failed to raise timeliness in the Phase I trial. However, as we shall show, we need not delve into all the complexities.
As far as Anaheim is concerned, whether it raised timeliness the first time it addressed claims filing issues or whether it raised timeliness in the Phase I trial is irrelevant. Anaheim maintains that 396's failure to comply with the claim filing requirements is jurisdictional and can be raised at any time. Anaheim is in error. The "failure to comply with the claim presentation requirement [does not divest] the court of jurisdiction over a cause of action against a public entity [citation] . . . ." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239, fn. 7; see also Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 281 (Smith) [issue of compliance cannot be raised for first time on appeal when issue may not be determined as a matter of law on record with disputed facts].)
Just because the question is not one of jurisdiction, however, does not mean that Anaheim was not on the right track with respect to its underlying argument that, irrespective of the manner in which the issue was raised in the trial court and the timing concerns, the issue can be addressed on appeal. In this particular case, since Anaheim has raised a pure question of law, based on undisputed facts, this court is at liberty to address the issue. This would be true even if the question had been raised for the first time on appeal. (See
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