Him v. City and County of San Francisco

In Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, the key issue was whether the defendant had mailed notice to the plaintiffs that their governmental tort claim had been rejected; if it had mailed the notice on the date that it claimed, the action was time-barred. The defendant filed a motion for summary judgment, supported by evidence that the notice had been mailed. (Him v. City and County of San Francisco, supra, 133 Cal.App.4th at p. 440.) The plaintiffs, however, introduced evidence that they had never received it. (Id. at pp. 441, 444-445.) The appellate court held that the defendant was entitled to summary judgment. It began by acknowledging, in the language quoted above, that "normally" and "absent contrary statutory authority," evidence of nonreceipt would raise a triable issue of fact as to mailing. (Him v. City and County of San Francisco, supra, 133 Cal.App.4th at p. 445.) It reasoned, however, that there was contrary statutory authority. It cited Government Code section 915.2 (Him, at p. 445), which provided that such a notice "must be 'deposited in the United States post office or a mailbox . . . or other similar facility . . . , in a sealed envelope, properly addressed, with postage paid. The . . . notice shall be deemed to have been presented and received at the time of the deposit. . . .'" (Him, at pp. 442-443.) It added: "The statute of limitations period is triggered 'from the date the notice is deposited in the mail by the public entity, and not the date it is received by the claimant or counsel.' In fact, a claimant is required to comply with the six-month statute of limitations associated with government tort claims upon proof that the notice of rejection was served even if it was not actually received by the claimant. Thus, the Legislature has placed upon the claimant the risk that a properly mailed notice of claim rejection is not delivered due to an error by the postal authorities." (Id. at p. 445.) The court "concluded plaintiff's evidence of nonreceipt of the claim rejection notices is legally insufficient to raise a triable issue of fact negating the . . . statute of limitations defense. In view of the defendant's evidence of proof of mailing, the trial court was correct to conclude that plaintiffs' lawsuit was barred." (Him v. City and County of San Francisco, supra, 133 Cal.App.4th at p. 445.)