Yet another notice-of-claim case, this one involving waiver-by-litigation.

Ponce’s house burned down a few days after the house next door did. He blamed un-extinguished embers that escaped through openings made by the firefighters. He filed a notice of claim but did so 16 days late – 196 days rather than 180. Then he filed suit. The fire district litigated it for a year before moving for summary judgment on the notice issue. The trial court granted it.

The Court of Appeals reverses. Although the District had not initiated any discovery it had participated in a lot of it, much of it having nothing to do with the notice issue. It also did such things as to move for change of venue. And although it claimed that it needed Ponce’s deposition to support its notice defense, it argued the motion in such a way that what he said didn’t matter. It also contended that it needed the deposition of Ponce’s expert in aid of another argument it made in its motion for summary judgment. But the notice issue didn’t have to wait for that; there was no reason that it could not have been resolved promptly.

So the District said that summary judgment was proper on that other argument, a fact-dependent claim that Ponce’s expert wasn’t qualified. The Court of Appeals disagrees. Judgment reversed.

(link to opinion)