HARRIS v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT

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Court of Appeal, Second District, Division 5, California.

Pamela HARRIS et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, Defendant and Respondent.

No. B057976.*

Decided: August 23, 1993

Hall, Vargas & Norkin, Joseph E. Hall, Los Angeles, for plaintiffs and appellants. Ivie, McNeill & Wyatt, Kenneth W. Johnson, Los Angeles, for defendant and respondent.

I. INTRODUCTION

Plaintiffs, Pamela Harris and Lloyd Hawkins, appeal the grant of a summary judgment motion in their personal injury suit against defendant, Southern California Rapid Transit District.   Because we determine there was a triable issue of fact as to whether suit was timely filed, we reverse the judgment.

II. FACTUAL AND PROCEDURAL MATTERS

The parties agree as to certain of the pertinent factual matters.   On December 4, 1987, plaintiffs were purportedly injured in an accident involving a bus owned and operated by defendant.   The incident occurred when one of defendant's busses was “sideswiped” by a truck.   On February 17, 1988, claims for damages pursuant to Government Code section 910 1 were mailed by plaintiffs' counsel to defendant's offices.   On February 19, 1988, the claim forms were received by defendant.   On February 23, 1988, plaintiffs' counsel's offices received conformed copies of the filed claims with an unaddressed letter which was unsigned.2

It is at this point in the factual scenario the parties disagree as to what transpired next.   Defendant, in support of its summary judgment motion, filed a declaration indicating that a notice of rejection of plaintiffs' claims pursuant to section 913 3 was mailed on March 2, 1988.   The notice of rejection, which fully complied with the requirements of section 913, was addressed to plaintiffs' counsel's office and signed by Dianne Holder, an employee of defendant's claims management agent.4  Attached to the notice of rejection was an under oath proof of service indicating the document was mailed on March 2, 1988.   This was the same date as the rejection of the claim.   Also filed in support of the summary judgment motion was a declaration of the person who executed the proof of service, identified only as C. de la Cruz, which stated that the rejection notice was in fact mailed on March 2, 1988.

Plaintiffs dispute that the rejection notice was ever mailed.   In support of their position, they filed three declarations and several exhibits.   Pilar Gardea, a calendar clerk at plaintiffs' counsel's law offices stated:  “My responsibility as a calendar clerk, is to receive the incoming mail every afternoon when the post man delivers it to us[.]  I open the mail, date stamp the mail, and then separate the mail.   I make duplicate copies of all incoming mail which have [sic ] a due date for responses, hearings, etc[.]  I am also responsible for setting appointments, depositions, etc.   When a pleading response is due I pull the tickeler [sic ] and staple it to the response, when the response is due and it has not been received, I then forward the tickler and forward it to Ms. Hall, who designates the office work and files to be worked on by other staff memebers [sic ].”  Ms. Gardea stated that she had received conformed copies of the filed claims which were returned by defendant along with the unsigned cover letter on February 23, 1988.   Ms. Gardea then stated, “Furthermore, I declare under Penalty of Perjury that I did not receive the letter of rejection from HCM or RTD regarding these claims of the plaintiffs as represented by the defendants in March 1988.”

Additionally, a declaration was filed by Loretta Hall, the head secretary and paralegal with the law firm representing plaintiffs.   She stated:  “My responsibilities and duties consist of typing for all the attorneys on the staff, designating work to each staff member, I diary the files and do case status documenting each and every pleading, incoming, outgoing, medical and memos to the file.   I have the file clerk pull the file when there is incoming mail, and if the mail has to be filed I simply have the file clerk file the mail.   When a file is pulled, the mail is placed on the outside of the file, I review the file and either respond to the mail, or designate that file to be worked on by one of the attorneys.”   Ms. Hall continued:  “I am very familiar with the file of Harris and Hawkins vs. Southern California Rapid Transit District.   I opened the file, and have worked on it from the inception.   I prepared the claims and typed the letter to the SCRTD Customer Service, requesting conformed copies.   I also documented receipt of same, and prepared the Summons, Complaint, Certificate of Assignment, form S44, and attorney service instruction for filing.  [¶] ․ At no time from the opening of this file up to and including February 1990, did we receive any rejection letter from the defendants.”   Plaintiffs' counsel filed a declaration which confirmed Ms. Gardea's and Ms. Hall's statements that the rejection notice was not received.

However, plaintiffs' evidence disputing whether the March 2, 1988, rejection pursuant to section 913 was mailed was not limited to a denial that the document was received.   The following constitute undisputed facts concerning communications between plaintiffs' attorney and defendant's representatives.   On November 1, 1988, plaintiffs' counsel wrote Hertz Claims Management.   He requested information concerning the truck which was involved in the accident with the bus.   On November 14, 1988, suit was filed.   The complaint alleged defendant had not rejected the claim and by operation of law it was deemed denied.5  Having received no response to his November 1, 1988, letter concerning the unidentified truck which had been involved in the accident, plaintiff's counsel telephoned Daniel Jimenez, who worked for Hertz Claims Management.   Plaintiffs' attorney asked for information concerning the truck which hit defendant's bus.   In the telephone discussions, Mr. Jimenez made no mention of the March 2, 1988, rejection notice.   On January 5, 1989, Mr. Jimenez wrote plaintiffs' counsel and stated in writing:  “Thank you for your courteous phone call.   Here is a copy of the vehicle registration of the vehicle responsible for your clients['] alleged injuries.”   Again, no mention was made of the March 2, 1988, rejection letter.

On January 13, 1989, a demand letter was sent to Mr. Jimenez listing plaintiffs' damages.   On August 9, 1989, Mr. Jimenez wrote plaintiffs' attorney.   Mr. Jimenez indicated he wanted to discuss the case.   Again, no reference was made to the March 2, 1988, rejection notice.   On February 27, 1990, plaintiffs' attorney wrote Mr. Jimenez raising a question concerning the accuracy of the identification of the truck which struck defendant's bus.  Additionally, plaintiffs' counsel stated that if there was no rational basis for settling the suit, efforts would be made within 30 days to serve the complaint.   On April 23, 1990, Mr. Jimenez responded to the February 27, 1990, letter.   Mr. Jimenez's letter discussed the circumstances of the accident, denied liability, and declined to make any voluntary payments to plaintiffs.   In the last sentence of the letter, Mr. Jimenez wrote, “This or any other communication with this office will not alter the statute of limitation initiated by our rejection letter of March 2, 1988.”   This was the first time, according to plaintiffs' counsel, that he was informed of the March 2, 1988, rejection notice.   On August 28, 1990, Mr. Jimenez wrote plaintiffs' counsel requesting a copy of “all medical special[s] for both of your clients.”

III. DISCUSSION

 A motion for summary judgment will be granted if the moving papers establish that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.  (Code Civ.Proc., § 437c, subd. (c).)  The standard for appellate review of a summary judgment motion was set forth by our Supreme Court as follows:  “Summary judgment is a drastic measure that deprives the losing party of a trial on the merits.  [Citation.]   It should therefore be used with caution, so that it does not become a substitute for trial.  [Citation.]   The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed.  [Citation.]   Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.  [Citation.]  [¶] A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.  [Citation.]   To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial.  [Citation.]”  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   An appellate court determines de novo whether there is a genuine issue of material fact and whether the moving party was entitled to summary judgment as a matter of law.  (Wilson v. Blue Cross of So. California (1990) 222 Cal.App.3d 660, 670, 271 Cal.Rptr. 876.)

 In the present case, there is a triable issue of material fact as to whether the six month statute of limitations set forth in section 945.6. subdivision (a)(1) bars plaintiffs from any recovery.  Section 945.6, subdivision (a)(1) provides in pertinent part:  “[A]ny suit brought against a public entity on a cause of action for which a claim is required to be presented ․ must be commenced:  [¶] (1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally ․ deposited in the mail.”   Decisional authority holds that once the rejection notice is placed in the mail, the six month period of limitations commences to run.  (Childs v. State of California (1983) 144 Cal.App.3d 155, 159, 192 Cal.Rptr. 526;  Edgington v. County of San Diego (1981) 118 Cal.App.3d 39, 47, 173 Cal.Rptr. 225.)   However, if the truth is that the claim rejection was not mailed within the 45 day time period set forth in section 912.4, subdivision (a) 6 then the claim would be denied by operation of law (Potstada v. City of Oakland (1973) 30 Cal.App.3d 1022, 1027, 106 Cal.Rptr. 705) but the considerably longer period of limitations in which to file suit set forth in section 945.6, subdivision (a)(2) would apply.  Section 945.6, subdivision (a)(2) permits suit to be filed within two years after the cause of action accrued if the written notice of rejection is not served.  (County of Alameda v. Superior Court (1987) 195 Cal.App.3d 1283, 1286, 241 Cal.Rptr. 312;  Wheeler v. County of San Bernardino (1978) 76 Cal.App.3d 841, 847, 143 Cal.Rptr. 295.)

 When the foregoing body of law is applied to the facts in this case, if the notice of rejection was served on March 2, 1988, as defendant argues, then plaintiffs' complaint filed more than six months later on November 14, 1988, was untimely.   On the other hand, if the notice of rejection was not mailed, as plaintiffs contend, then the filing of suit on November 14, 1988, was within two years after their causes of action accrued as a result of the December 4, 1987, truck and bus accident.   As the moving party in this motion decided prior to the 1992 amendments to the summary judgment law (Stats.1992, ch. 1348, No. 12 West's Cal. Legis. Service, p. 5722), defendant had the burden of negating plaintiffs' right to prevail on the statute of limitations issue.  (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1050–1051, 282 Cal.Rptr. 726;  University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036, 272 Cal.Rptr. 264.)   Defendant sustained its initial burden as the moving party in this respect.   As a result, in order to avoid the grant of the summary judgment motion, it became incumbent upon plaintiffs to demonstrate the existence of a triable controversy as to whether the notice was mailed.  (Id. at pp. 1036–1037, 272 Cal.Rptr. 264.)   We determine that plaintiffs presented sufficient evidence the notice of rejection was not mailed to require denial of the summary judgment motion.

Defendant argues that the disposition in this case is controlled by the holding in Dowell v. County of Contra Costa (1985) 173 Cal.App.3d 896, 901, 219 Cal.Rptr. 341.   In Dowell, on November 16, 1981, the plaintiff's husband was killed in an automobile accident.   She filed a timely claim pursuant to section 913 which was denied by the local board of supervisors on March 23, 1982.   The manner of service of the rejection notice was as follows:  “A clerk deposited written notice of rejection of Dowell's claim in the mail on March 24, 1982.   The County kept in its files an affidavit of mailing signed by the clerk which showed the notice of rejection was served by mail and when it was mailed, and a longer version of the notice of rejection which included the date Dowell's notice was deposited in the mail.   The County did not, however, send a copy of the proof of service to Dowell or her attorney.   The notice of rejection her attorney received indicated only the date her claim was rejected by the board, and stated neither when nor how it was served.”  (Id. at p. 899, 219 Cal.Rptr. 341.)   Despite the fact that the rejection notice was mailed on March 24, 1982, suit was not filed until more than six months later on November 12, 1982.  (Ibid.)

After summary judgment was granted in the trial court because the six month statute of limitations set forth in section 945.6, subdivision (a) was violated, the issue presented on appeal by the plaintiff was as follows:  “Dowell contends that in mailing a notice which indicated neither the date nor manner of delivery and which was unaccompanied by a proof of service, the County failed to comply with section 913.”  (Dowell v. County of Contra Costa, supra, 173 Cal.App.3d at p. 900, 219 Cal.Rptr. 341.)   Later, the Court of Appeal synthesized the issue on appeal in the following manner, “The central issue on this appeal is whether section 913 or procedural due process require that a written notice of rejection specify the date of mailing or be accompanied by a proof of service.”  (Ibid.)  Quite obviously, the Court of Appeal rejected these contentions.

Because the issue before the Court of Appeal and the holding in Dowell is directly pertinent to our holding in this case, we quote at length from that opinion as follows:  “The County properly urges that Dowell must be charged with knowledge of the six-month statute of limitations because she filed a timely government tort claim.  [Citations.]  ‘[A] claimant who fails to receive a written notice of the public entity's action on the claim within a reasonable time after the end of the 45–day period for its consideration, should make inquiry to determine whether, and if so, when, the notice was in fact served.   The two-year period of limitations obtains only when the notice was not served;  the six-month rule applies if notice was served, even though not actually received by the claimant.’  (Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 5.72, pp. 563–564, italics added.)  [¶] Dowell does not claim that notice was not served by the County.   The notice served on her contained a warning of the six-month statute of limitations and it clearly informed her the board of supervisors had rejected her claim on March 23, 1982.   Having filed a timely claim and received a notice of rejection, Dowell must be charged with knowledge of the six-month statute of limitations.   It was her duty to investigate the exact date on which the rejection was mailed.”  (Id. at pp. 901–902, fn. omitted, 219 Cal.Rptr. 341.)

In the present case, defendant reasons that plaintiffs were likewise under a duty to investigate whether the claims adjuster employed by it had denied the claim and mailed a rejection notice pursuant to section 913.   Defendant argues that Dowell establishes the rule if the public entity proves it mailed the rejection notice, a plaintiff's proof it was never received is insufficient to create a triable issue concerning the failure to file suit within the six months specified in section 945.6, subdivision (a)(1).   However, Dowell is distinguishable in several material respects.   To begin with, in Dowell, the plaintiff's attorney received the rejection notice.   The Dowell court emphasized that plaintiff was not contending the rejection notice was not mailed.  (Dowell v. County of Contra Costa, supra, 173 Cal.App.3d at p. 901, 219 Cal.Rptr. 341.)   By contrast in this case, plaintiffs contend the notice was never mailed.   Defendant, in essence, asks us to read Dowell to require summary judgment to be entered whenever a public entity establishes in its moving papers, as was done here, that the notice of rejection was mailed and the complaint was filed more than six-months thereafter.   However, Dowell involved a far different issue—whether the failure of the notice of rejection which was unaccompanied by a proof of service to indicate the date or mode of service so violated section 913 that the plaintiff was entitled to the benefit of the two year statute of limitations.   That was the question in Dowell (id. at p. 900, 219 Cal.Rptr. 341) and that decision cannot be relied upon as controlling authority for a proposition not considered therein.  (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65–66, 2 Cal.Rptr.2d 389, 820 P.2d 613;  People v. Harris (1989) 47 Cal.3d 1047, 1071, 255 Cal.Rptr. 352, 767 P.2d 619.)   Simply stated, Dowell does not stand for the proposition that a plaintiff who contends that a section 913 rejection notice was not mailed, despite public entity records indicating it was, can never prevail as the responding party at the summary judgment stage.7

Further, in the present case, although there was evidence the rejection notice was mailed, there was likewise evidence it was not sent.   Three employees of the law firm representing plaintiffs offered under oath evidence of the systematic manner in which documents such as a rejection notice with a time limit for the filing of a complaint would be processed in the normal course of business.   These three employees stated that their records indicated they received no notice of rejection.   The failure to have received the notice is circumstantial evidence it was not sent.

California courts have consistently held that if a party testifies a letter was never received, that is circumstantial evidence it was not mailed.   Although many of these cases arise in the context of whether the presumption of receipt of mail in Evidence Code section 641 8 and former Code of Civil Procedure section 1963, subdivision 24 (repealed by Stats.1965, ch. 299, § 110, p. 1363 and reenacted at Stats.1965, ch. 299, § 2, p. 1309) 9 could be overcome, common sense warrants their application to the present case.   For example, in Lucas v. Hesperia Golf & Country Club (1967) 255 Cal.App.2d 241, 246–247, 63 Cal.Rptr. 189, the issue involved whether golf club memberships had terminated because bills had been mailed by a bookkeeper to members who had failed to pay their dues.   The Court of Appeal held:  “Defendant's bookkeeper testified to the office procedure and practice in billing members and by referring to a card file, deduced the fact that notices to pay dues were mailed to plaintiffs.   This testimony was sufficient to give rise to an inference that bills in fact had been mailed to plaintiffs.  [Citations.]   Plaintiffs testified, however, that they never received any bills for dues.   Plaintiffs' denial raised an inference that notices were never mailed to plaintiffs and, thus, presented a conflict in the evidence to be resolved by the jury.  [Citations.]”  (Id. at p. 247, 63 Cal.Rptr. 189.)   In Savarese v. State Farm Etc. Ins. Co. (1957) 150 Cal.App.2d 518, 521, 310 P.2d 142, the Court of Appeal held that an insured's denial that he received a notice from an insurance company was sufficient to prove the document was never mailed.  (Accord, Berger v. Limon (1963) 214 Cal.App.2d 149, 151–152, 29 Cal.Rptr. 483;  Idaho Maryland Mines Corp. v. Industrial Accident Commission (1959) 174 Cal.App.2d 693, 695–696, 345 P.2d 109;  Tremayne v. American SMW Corp. (1954) 125 Cal.App.2d 852, 854, 271 P.2d 229;  Carl v. Thomas (1931) 116 Cal.App. 294, 300, 2 P.2d 872.)

However, there was more evidence the notice was not sent than merely the fact it was not received.   For example, plaintiffs' counsel mailed letters to Hertz Claims Management on November 1, 1988, and to its employee Mr. Jimenez on January 13, 1989.   Neither Hertz Claims Management nor Mr. Jimenez responded to those letters by indicating anything about the rejection notice.   Further, on January 5, 1989, plaintiffs' attorney spoke directly with Mr. Jimenez.   Despite the opportunity to do so, Mr. Jimenez did not mention the notice of rejection.   Likewise, on January 5, 1989, Mr. Jimenez wrote a brief note which omitted any reference to the rejection notice.   On August 9, 1989, Mr. Jimenez sent a letter to plaintiffs' counsel and, again, there was no mention of the rejection notice.   It was not until April 23, 1990, two years, one month, and three weeks after the notice of rejection defendant claims was mailed that Mr. Jimenez, acting on behalf of defendant and Hertz Claims Management, mentioned it.   Coupled with the fact that plaintiffs established they never received it, the unexplained failure to raise the notice in the three letters and one conversation during the aforementioned over two year period after March 2, 1988, is sufficient to create a triable dispute as to whether it was ever mailed as argued by defendant.10

Similar circumstances were held sufficient to raise a factual question which required resolution by a jury in Jensen v. Traders & Gen. Ins. Co. (1956) 141 Cal.App.2d 162, 163–165, 296 P.2d 434.   In Jensen, the issue involved whether a notice of cancellation was mailed to the insured.   The insurer proved that it mailed the notice.   Nonetheless, the Court of Appeal focused upon several inferences which were present in determining that this was an issue for the trier of fact.   The Court of Appeal held:  “This was competent evidence of mailing but not the only evidence on that subject.   Plaintiffs John and Jim Di Matteo testified positively that no cancellation notice was received and that they had no inkling of any cancellation until three months later, when the accident occurred and they reported it to the insurance company.   A circumstance tending inferentially to support their testimony is the fact that the Di Matteos sought no new insurance and continued to make the monthly payments on their car to the auto dealer who sold it to them on a conditional sales contract which included an item by way of premium upon the policy in each monthly installment.   There was the added circumstance that the father, who made the down payment on the car, signed the sales contract and joined in the application for the policy, would not allow the son, who was under 21, to drive without insurance coverage.  [¶] This furnishes a substantial basis for an inference that notices of cancellation were not mailed, and thus presented a conflict in the evidence to be weighed and resolved by the jury.”  (Id. at p. 164, fn. omitted, 296 P.2d 434.)   In the present case, there was also circumstantial evidence the rejection notice was not mailed.   Not only were there three declarations which indicated it was never received, but for over two years after the purported mailing, the parties conducted themselves as though no rejection notice was ever mailed.

Accordingly, there is a triable issue as to whether the complaint was subject to the six-month statute of limitations.   Since the complaint would have been timely if the two year period of limitation in section 945.6, subdivision (a)(2) applied, the summary judgment motion should have been denied.

IV. DISPOSITION

The judgment is reversed.   Plaintiffs Pamela Harris and Lloyd Hawkins shall each recover their costs on appeal from defendant Southern California Rapid Transit District.

FOOTNOTES

FOOTNOTE.  

1.   Government Code section 910 provides:  “A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:  [¶] (a) The name and post office address of the claimant.  [¶] (b) The post office address to which the person presenting the claim desires notices to be sent.  [¶] (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.  [¶] (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.  [¶] (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.  [¶] (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.   If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim.   However, it shall indicate whether jurisdiction over the claim would rest in municipal or superior court.”Unless otherwise indicated, all future statutory references are to the Government Code.

2.   The unsigned and unaddressed letter on defendant's stationary stated:  “Enclosed is a copy of your Claim for Damages for your personal records.  [¶] Your claim has been sent to our insurance adjusters for investigation and settlement.   That organization will handle all aspects of the claim from this point forward and allowing for normal processing time, should be in contact with you in approximately ten working days.   Determinations made by our adjuster with respect to liability are considered final by the District.   Therefore, we recommend that any further inquiries you may have concerning this matter be directed to:  [¶] Hertz Claims Management (HCM) [¶] Post Office Box 7857 [¶] Burbank, California 91510–7857 [¶] Telephone:  (213) 301 9723 [¶] Please know that we sincerely regret any unpleasantness in connection with the operation or use of our services and hope that all future contacts with the RTD will be incident free.”   Despite the fact there was a space for the signature of a “Passenger Services Manager,” the letter was unsigned.

3.   Section 913 provides:  “(a) Written notice of the action taken under Section 912.6 or 912.8 or the inaction which is deemed rejection under Section 912.4 shall be given in the manner prescribed by Section 915.4.   Such notice may be in substantially the following form:  [¶] ‘Notice is hereby given that the claim which you presented to the (insert title of board or officer) on (indicate date) was (indicate whether rejected, allowed, allowed in the amount of $_ and rejected as to the balance, rejected by operation of law, or other appropriate language, whichever is applicable) on (indicate date of action or rejection by operation of law).’  [¶] (b) If the claim is rejected in whole or in part, the notice required by subdivision (a) shall include a warning in substantially the following form:  [¶] ‘WARNING’ [¶] Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim.   See Government Code Section 945.6.  [¶] ‘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.’ ”

4.   Section 935.4 permits a public entity to delegate the duties of resolving claims to an employee.  (Cal. Government Tort Liability Practice (Cont.Ed.Bar 1992) § 6.62, pp. 715–716.)   Plaintiffs do not contend Ms. Holder or Hertz Claims Management did not have the authority to reject the claim on defendant's behalf.

5.   Section 912.4 requires the public entity to “act on a claim” within 45 days of its filing.   In the present case, defendant was required to act on plaintiffs' claims by Monday, April 4, 1988.   Had defendant not acted on the claim, it would be deemed denied by operation of law on that date.  (§ 912.4, subd. (c).)  The effect of failing to give notice of rejection is that the time in which to file suit is thereby extended.   As will be noted later in the body of this opinion, if the notice specified in section 913 is not given, the time in which to file suit is extended to two years after the cause of action accrued.  (§ 945.6, subd. (a)(2).)

6.   As noted previously, section 912.4, subdivision (a) provides in relevant part, “The board shall act on a claim in the manner provided in Section 912.6 or 912.8 within 45 days after the claim has been presented.”

7.   In other contexts, courts have held that issues concerning mailing of claims or notices of rejection can be questions of fact.   (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134, 219 Cal.Rptr. 661 [whether practices concerning filing of rejection notices were complied with was a question of fact];  Childs v. State of California, supra, 144 Cal.App.3d at p. 163, 192 Cal.Rptr. 526 [date of deposit of rejection notice is question of fact not resolvable at the demurrer stage];  Call v. Los Angeles County Gen. Hosp. (1978) 77 Cal.App.3d 911, 917, 143 Cal.Rptr. 845 [whether a claim was mailed was a factual rather than legal issue].)

8.   Evidence Code section 641 provides, “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.”

9.   Former Code of Civil Procedure section 1963, subdivision 24 established a presumption that “a letter duly directed and mailed was received in the regular course of the mail.”

10.   We are not holding in this opinion that the failure of Hertz Claims Management or Mr. Jimenez to mention the March 2, 1988, rejection notice created an estoppel to assert the six-month statute of limitations or defendant has waived the right to argue the complaint was untimely filed.   Rather, all we are determining is that the failure to raise the issue for over two years in written and oral communications when coupled with plaintiffs' counsel's failure to receive the notice raised a triable controversy as to whether it was mailed at all.   Plaintiffs have not contended there was a waiver or an estoppel.   Those issues are not before us and we have not addressed them.

JACKSON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

TURNER, P.J., and BOREN, J.,* concur.