Asbury v. City of Ukiah CA1/3

Filed 10/24/22 Asbury v. City of Ukiah CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JAMES ASBURY, Plaintiff and Appellant, A164615 v. (Mendocino County Super. Ct. No. 21CV00519) CITY OF UKIAH, Defendant and Respondent.

James Asbury sued the City of Ukiah (City) for negligence. The trial court sustained the City’s demurrer without leave to amend on the ground of noncompliance with the claim presentation requirements of the Government Claims Act (Gov. Code, § 810 et seq.; Act).1 We affirm. BACKGROUND On July 17, 2020, Asbury and City employee Thomas Sheffer went to the City’s wastewater treatment facility on Sheffer’s invitation. Sheffer got

Undesignated statutory references are to the Government Code. 1

In the interest of judicial efficiency and lacking prejudice to the City, we deem the order — which is not appealable — to incorporate a judgment of dismissal, and we construe the notice of appeal as encompassing the judgment. (O’Grady v. Merchant Exchange Productions, Inc. (2019) 41 Cal.App.5th 771, 776, fn. 3.) In reciting the factual background, we accept as true the well-pled allegations of the operative complaint (2710 Sutter Ventures, LLC v. Millis (2022) 82 Cal.App.5th 842, 850), and we recite only those facts necessary to resolve the appeal.

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into the driver’s seat of an all-terrain vehicle (ATV) owned by the City. Asbury sat in the passenger seat, where the seat belt was caked with mud and did not fasten properly. Sheffer drove at an unsafe speed; as he made a sudden turn, the ATV rolled over, and Asbury was ejected and suffered serious injuries. Sheffer was fired and charged with several crimes, including driving under the influence of alcohol causing injury. On July 14, 2021 — almost a year later — Asbury filed a complaint against the City alleging a negligence cause of action. He also contemporaneously lodged with the superior court a “Claim For Money Or Damages Against The City Of Ukiah” (claim) with the word “Amended” handwritten above the title. (Notwithstanding the “amended” designation, there was no initial claim.) Asbury served the City with the complaint and claim about a week later. In mid-September, the City demurred, asserting the complaint failed to allege compliance with the Act’s claim presentation requirements. The City noted the claim — lodged more than six months after the incident — was untimely, and it was not presented to the City before the complaint was filed. Thus, the complaint failed to state a cause of action against the City. The trial court agreed and sustained the demurrer with leave to amend as to the presentation requirements. Asbury filed a first amended complaint (amended complaint) alleging he served the City with the initial complaint and the claim in July 2021, and by failing to notify him of the defects in the claim, the City waived any defense based on his failure to comply with the claim presentation requirements. He also alleged the City had actual notice of the incident as it had terminated Sheffer’s employment. Again the City demurred, arguing the amended complaint failed to allege facts demonstrating compliance with the presentation requirements. The City offered a declaration from the City