Cruz v. County of Los Angeles

Opinion

ROTH, P. J.

Appellant Ramon De Cruz allegedly suffered birth injuries at Los Angeles County/USC Medical Center on February 20, 1983. On

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April 19, 1983, a timely claim respecting the same was filed with respondent County of Los Angeles. A complaint for medical malpractice filed by appellant’s guardian ad litem followed on February 6, 1984.

Respondent demurred on the ground the suit was barred by Government Code section 945.6, which requires that an action be filed within six months from the date a notice of rejection of claim is deposited in the mail, the contention being respondent, through its agent Professional Risk Management, Inc., caused such a notice to be mailed on May 20, 1983.

In support of the demurrer respondent requested the trial court to take judicial notice of the preparation and mailing of the rejection, appending to its demurrer as a demonstration thereof a letter purporting to evidence such rejection and a proof of service executed by one Phyllis E. Daigle, an employee of Professional Risk Management, Inc., to the effect Ms. Daigle had personally mailed the letter to appellant’s attorney on the date specified.

The demurrer was sustained with leave to amend. Appellant then filed his first amended complaint, alleging inter alia that the notice of rejection had never been received. Respondent again demurred, on the same ground as before, and repeated its request for judicial notice in a fashion identical to that which it had previously formulated.

Hearing on the demurrer was continued so that appellant’s counsel could take the deposition of Ms. Daigle. That being accomplished, appellant submitted supplemental opposition to the demurrer consisting of a portion of Ms. Daigle’s testimony, which fairly tended to establish that Ms. Daigle had prepared the notice of rejection and had executed the proof of service; that she did not remember the claim to which the rejection related; that in the regular course of business she would have given the notice of rejection to her supervisor for signature; that upon its return to her she would have placed it in an envelope ready for mailing; but that on the date in question, contrary to her declaration of mailing, she would not have mailed it herself, but would have given it in a bundle of similar rejections to a coworker, one Faye Eggan, who consistent with her own custom would have placed the bundle in a mailbox.