In Andrews v. Metropolitan Transit System, published January 31, 2022, the Fourth District Court of Appeal, Division 1 reversed summary judgment granted to the defendant agency based on the statute of limitations. The claimant presented a claim to the agency, seeking damages for personal injuries. The claim listed the claimant's attorney as the contact to whom notices should be sent. The agency rejected the claim. The claim set forth the warning about the six-month statute of limitations prescribed in Government Code section 913, but omitted the statutorily-prescribed warning, "You may seek the advice of an attorney of your choice in connection with this matter.
If you desire to consult an attorney, you should do so immediately." The claimant filed suit almost eight months after the agency mailed the notice of rejection. In her opposition to the motion, the claimant argued the notice denying the claim was defective because it omitted the warning to consult an attorney. The trial court granted the motion. The court ruled that the agency had complied with section 913 by providing a warning that was substantially the same as that provided in section 913 under the circumstances, because it was known the claimant was represented by counsel.
The appellate court rejected this argument. Government Code section 913, subdivision (a) describes the mandatory requirements for delivering a notice denying a claim, and provides language that "may" be used for the text of the notice. Subdivision (b) of section 913 sets forth a warning that "shall" be included if a claim is rejected. The subdivision provides that the warning shall be included "in substantially the following form" and then sets forth both a warning about the six-month statute of limitation and a warning to consult an attorney. The term "shall" indicates the warning is mandatory. Under Government Code section 945.6, the entity's compliance with section 913 determines the applicable statute of limitations: If the entity gives notice in accordance with section 913, the claimant must commence suit within six months after the notice is personally delivered or put in the mail; if notice is not given in accordance with section 913, the claimant has two years from accrual to commence the lawsuit. Compliance with section 913 includes providing the warning required by statute. The notice here did not include the warning about a lawyer. The court rejected the argument that the language substantially complied because the claimant was represented by counsel. Substantial compliance requires actual compliance in respect to the substance essential to every reasonable objective of the statute. A statutory objective of section 913 is to inform the claimant of the desirability of promptly consulting an attorney. Even if a claimant presented a claim through an attorney, the claimant might have retained the attorney only to present a claim, or the attorney may no longer represent the claimant. The appellate court also rejected the argument that the absence of the warning had no influence on the timing of the lawsuit; the claimant's reaction has no bearing on whether the notice of rejection complied with section 913 in the first place. The two-year statute of limitations therefore applied.
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