Demurrer
Late Opposition OCTA contends that Del Cerro’s opposition was untimely and should be disregarded. Specifically, OCTA asserts that any opposition was due no later than May 14, 2026, and Del Cerro did not serve its opposition until May 15, 2026.
While a paper may not be rejected for filing on the ground that it was untimely submitted for filing, the court, in its discretion, may refuse to consider a late filed paper. (California Rules of Court, rule 3.1300(d).) If the court does so, the minutes or order must so indicate. (Ibid.) In determining whether to receive an untimely filed document, “trial courts must consider the specific contexts in which such motions arise and should employ a flexible rather than rigid or formalistic approach to decisionmaking.” (Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32-33.) “An attorney’s neglect in untimely filing opposing papers must be evaluated in light of the reasonableness of the attorney’s conduct. [Citation.]” (Id. at p. 33.) “Also pertinent are the effects of strict enforcement on the rights of the parties and the furtherance of justice. [Citations.]” (Ibid.)
Here, the opposition was filed and served one day late. As OCTA has filed a timely and substantive reply, the Court considers Del Cerro’s opposition.
Compliance with Government Tort Claims Act OCTA contends Del Cerro has neither alleged nor can truthfully allege timely compliance with the Government Claims Act or whether Del Cerro was served with Defendant/Cross- Complainant Placentia-Yorba Linda Unified School District’s (“PYLUSD”) cross-complaint on May 13 or May 15, 2024, its claims are procedurally deficient and legally barred
Del Cerro contends that the FAXC adequately pleads compliance with the Government Claims Act as it accurately states that timely claims were filed in January and September 2025, that the date of service of the PYLUSD Cross-Complaint on Del Cerro was incorrectly alleged in the FAXC, that in fact, Del Cerro was served with PYLUSD’s Cross-Complaint
on May 20, 2025, and thus, that the written claim Del Cerro submitted in September 2025 was timely and in compliance with the Government Tort Claims act based on the May 20, 2025 date on which Del Cerro was served with PYLUSD’s Cross-Complaint.
“Suits for money or damages filed against a public entity are regulated by statutes contained in division 3.6 of the Government Code, commonly referred to as the Government Claims Act.” (
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
The Fourth District Court of Appeal in J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214 explained the claims presentation requirement as follows:
“The Government Claims Act (§ 810 et seq.) ‘establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. (§ 945.4.)’ (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237[13 Cal.Rptr.3d 534, 90 P.3d 116].) ‘[T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action....’ [Citation.] ‘The policy underlying the claims presentation requirements is to afford prompt notice to public entities. This permits early investigation and evaluation of the claim and informed fiscal planning in light of prospective liabilities.’ (Ibid.)
“Claims for personal injury must be presented not later than six months after the accrual of
the cause of action.... (§ 911.2, subd. (a).) Timely claim presentation is not merely a procedural requirement, but is a condition precedent to the claimant’s ability to maintain an action against the public entity. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209 [64 Cal.Rptr.3d 210, 164 P.3d 630].) ‘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.’ (Ibid.)
“The failure to timely present a claim to the public entity bars the claimant from filing a lawsuit against that public entity. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454[115 Cal.Rptr. 797, 525 P.2d 701].) Moreover, because the purpose of the claims is not ‘to prevent surprise [but rather] 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][,] ... [i]t is well-settled that claims statutes must be satisfied even in face of the public entity’s actual knowledge of the circumstances surrounding the claim.
Such knowledge— standing alone—constitutes neither substantial compliance nor basis for estoppel.’ (Id. at p. 455[115 Cal.Rptr. 797, 525 P.2d 701].)” (California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591–1592, 126 Cal.Rptr.3d 160.)
Government Code section 911.2 states, in part: “[a] claim relating to a cause of action for death or for injury to person or to personal property . . . shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” (Govt. Code § 911.2.)
“For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be
deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon. However, the date upon which a cause of action for equitable indemnity or partial equitable indemnity 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.” (Gov. Code § 901, emphasis added.) “The limitation period is itself triggered by service of the complaint against which indemnity would be sought.” (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485.)
“A plaintiff suing the state or local public entity must allege facts demonstrating either compliance with the claims presentation requirement or an excuse for noncompliance as an essential element of the cause of action. [Citations.]” (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 65.) “The plaintiff must prove compliance with the claim presentation requirement, or establish an excuse for noncompliance, to establish the defendant’s liability. [Citation.]” (Ibid.)
Here, the FAXC alleges that “previously”, a Complaint was filed by Plaintiff, Julian Celestino Hernandez, which alleges that Plaintiff was riding a bicycle and was struck by a vehicle operated by Defendant Moises Cuevas, identified by Plaintiff as an employee of the County of Orange, City of Placentia, and PYLUSD, and the FAXC incorporates Plaintiff’s Complaint without admitting the truth of any allegations set forth therein. (FAXC, ¶ 12.) It is alleged that “[o]n or about May 13, 2024, Del Cerro was served with the Cross-Complaint of PYLUSD, thereby tendering claims which in whole or in part sought to impose derivative liability upon Cross-Complainant arising out of the subject incident.” (FAXC, ¶ 13.)
It is also alleged that on July 22, 2024, Del Cerro filed its original cross-complaint for indemnity and contribution against OCTA for loss or damage that may be incurred as a result of the claims
by Plaintiff or the claim of PYLUSD against Del Cerro. (FAXC, ¶ 14.) It is additionally alleged, “[w]ithout conceding the necessity of a claim, on or about January 7, 2025, and again on September 19, 2025, [Del Cerro] presented to OCTA a written claim pursuant to Government Code sections 910 and 911.2 in order to comply with any statutory requirements which Cross-Defendants may seek to apply to this Cross-Complainant, and timely made such claims . . . .” (FAXC, ¶ 17.) It is further alleged, “[w]ithout conceding the application of Government Code sections 901 and 911, or any other provision of the Government Code, or that a claim was or is required prior to actual loss or damage(s) incurred, and in the alternative, Cross- Complainant alleges that OCTA is estopped from asserting any alleged untimeliness of claim presentation.” (FAXC, ¶ 18.)
First, there is no dispute that OCTA is a public entity. Del Cerro asserts that the FAXC erroneously alleges that the service of the PYLUSD Cross-Complaint was made in May 2024, and that, in fact, Del Cerro was served with PYLUSD’s Cross-Complaint on May 20, 2025, such that the written claim Del Cerro submitted in September 2025 was timely and in compliance with the Government Tort Claims act based on the May 20, 2025, date on which Del Cerro was served with PYLUSD’s Cross-Complaint.
However, Plaintiff refers to extrinsic evidence, i.e., an email by counsel for PYLUSD, which cannot be considered on demurrer. Plaintiff’s opposition cites to a “Request for Judicial Notice” but none is filed.
In addition, Del Cerro’s assertion appears to be contradicted by the record. The proof of service of summons that was filed on May 21, 2024, reflects that PYLUSD’s Cross-Complaint asserting claims for negligence, indemnity, contribution, and declaratory relief was served on “CIRILLO INVESTMENTS, LLC dba DEL CERRO MOBILE ESTATES, a California Limited Liability Corporation” on May 15, 2024. (See Nos. 6-7 to OCTA’s Request for Judicial Notice (“RJN”).) Del Cerro does not establish service was not effectuated on Del Cerro on May 15, 2024. The Court also notes
and takes judicial notice that the Court’s records reflect that on July 22, 2024, Cirillo Investments, LLC, dba Del Cerro Mobile Estates, Eileen Cirillo, and Star Mobile Home Sales filed their Answer to PYLUSD’s Cross- Complaint. (See ROA 93.) The court may take judicial notice on its own volition. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752.) This further suggests that Del Cerro was served on May 15, 2024. Therefore, Del Cerro had until November 15, 2024, to submit a claim against OCTA and comply with the Government Claims Act. Del Cerro’s claims presented on January 7, 2025, and September 19, 2025 [or September 26, 2025 per No. 14 to OCTA’s RJN], are untimely. As such, Del Cerro failed to meet a condition precedent to its ability to maintain an action against OCTA.
Based on the allegations of the FAXC and records for which the Court takes judicial notice, Plaintiff’s written claims against OCTA were untimely. Plaintiff does not argue or show that it has alleged facts demonstrating an excuse for noncompliance with the Government Claims Act.
Further, and even assuming a claim was submitted within six months of service of PYLUSD’s Cross-Complaint, Del Cerro did not present its claim until after it had already filed suit against OCTA. The record reflects that Del Cerro filed its original Cross- Complaint on July 22, 2024, and that an Amendment to the Cross-Complaint dated September 30, 2024, named ZOE 1 as OCTA. (Nos. 10 and 11 to OCTA’s RJN.) The Court takes judicial notice that the Court’s record reflects that this Amendment was filed on August 27, 2024. (See ROA 108.)
Yet, the FAXC alleges that Del Cerro submitted written claims on January 7, 2025, and September 19, 2025 [or September 26, 2025 per No. 14 to OCTA’s RJN], well after September 30, 2024 [and August 17, 2024]. The judicially noticeable court records and the allegations in the FAXC therefore establish that Del Cerro did not submit a claim until after it had filed its cross-complaint against OCTA, such that Del Cerro did not comply with the Government Claims Act. “ ‘ “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.]” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118; see Lowry v. Port San Luis Harbor Dist. (2020) 56 Cal.App.5th 211, 215, 221 [finding that Government Claims Act was not satisfied by filing a complaint before rejection of a claim, and that lawsuit against Port San Luis Harbor District was precluded because it was not preceded by rejection of a claim as well as that noncompliance with the Act could not be cured by amending the complaint to allege plaintiff complied].)
Based on the foregoing, Del Cerro did not comply with the mandatory claims requirement under the Government Claims Act as a timely government claim was not presented after Del Cerro was served with PYLUSD’s Cross-Complaint, and as Del Cerro did not present a government claim until after initiating suit against OCTA. As Del Cerro did not comply with the claims presentation requirement that is a condition precedent to filing a lawsuit against a public entity, Del Cerro’s claims in the FAXC against OCTA are barred.
In the face of the record, it does not appear that Plaintiff can add allegations that would rectify this defect. If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) “The burden of showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. [Citations.]” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 44 [demurrer].)
OCTA’s demurrer to the entirety of Del Cerro’s FAXC is SUSTAINED, without leave to amend.
In light of the Court’s ruling above, the Court need not, and declines to, address OCTA’s additional arguments as to the deficiencies as
to each of the five causes of action and uncertainty.
OCTA’s Request for Judicial Notice in Reply The Court considers the documents from OCTA’s request for judicial notice as they are responsive to arguments made in the opposition.
OCTA requests that the Court take judicial notice of the following documents: 1. Del Cerro Mobile Estates’ State of California, Office of the Secretary of State, Certificate of Limited Partnership, dated June 24, 2025, executed by Eileen J. Cirillo.
2. Orange County Clerk-Recorder records reflect that Cirillo Investments, LLC registered the fictitious business name “Del Cerro Mobile Estates” on September 28, 2020 and is still active.
3. State of California, Office of the Secretary of State, Statement of Information for Cirillo Investments, LLC.
4. Plaintiff’s Complaint dated October 5, 2023. (ROA No. 2) 5. Plaintiff’s Amendment to Complaint (DOE 1) dated May 8, 2024. (ROA No. 65).
6. PYLUSD’s Cross-Complaint dated May 13, 2024 (ROA No. 70).
7. PYLUSD’s Proof of Service of Summons on Del Cerro Mobile Estates dated May 21, 2024 (ROA No. 76).
8. Plaintiff’s Proof of Service of Summons on Del Cerro Mobile Estates dated June 5, 2024. (ROA No. 86).
9. Del Cerro Mobile Estates’ Answer to Plaintiff’s Complaint dated July 22, 2024 (ROA No. 90).
10. Del Cerro Mobile Estate’s Cross-Complaint dated July 22, 2024. (ROA. No. 92.)
11. Del Cerro Mobile Estate’s Amendment to Cross-Complaint dated August 27, 2024. (ROA No. 108.)
12. Del Cerro Mobile Estates’ Claim for Damages dated January 7, 2025.
13. Del Cerro’s First Amended Cross- Complaint dated September 19, 2025 (ROA No. 205).
14. Del Cerro Mobile Estates’ Claim for Damages dated September 26, 2025. The Court DENIES the request for judicial notice as to Nos. 1 through 3 as these
materials are not relevant to the determination of the issues.
The Court GRANTS the request for judicial notice as to Nos. 4 through 11, and 13 pursuant to Evidence Code section 452(d) as court records but declines to take judicial notice of the truth of hearsay statements therein.
The Court GRANTS the request for judicial notice as to Nos. 12, and 14. “The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim. [Citations.]” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368, fn. 1.) “If a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity’s records do not show compliance. [Citations.]” (Id. at p. 376.)
The Case Management Conference is taken off-calendar. OCTA is ordered to prepare a judgment of dismissal.
OCTA to give notice. 107 Panico vs. Laing, 24-01404358 Motion to Compel Deposition Defendants Oscar Laing and Robert Laing (“Defendants”) move to compel Plaintiff Cory Panico (“Plaintiff”) to appear for deposition.
Over a period of seven months, Defendants served Plaintiff with three separate notices of deposition. (Mosier Decl. ¶¶3-9.) The most recent deposition notice was served on September 12, 2025 with a deposition date of October 16, 2025. (Mosier Decl. ¶ 7.) Plaintiff did not appear for deposition on October 16, 2025, and the defense took a certificate of non-appearance. (Mosier Decl. ¶ 7, Exh. A.)
Plaintiff has not filed an opposition to this motion.
The motion is GRANTED. Plaintiff is ordered to appear for deposition within twenty days of service of this notice of ruling.