Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NS016892. Joseph E. DiLoreto, Judge.
Law Office of Thomas G. Martin and Thomas G. Martin for Plaintiff and Appellant.
Robert E. Shannon, City Attorney, and Belinda R. Mayes for Defendant and Respondent.
ASHMANN-GERST, J.
Appellant Sarah Badel (Badel) appeals from a trial court order denying her petition for an order permitting a late claim against respondent City of Long Beach (the City). We find no abuse of discretion. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Badel’s petition for order permitting late claim against governmental agency
Badel initiated this action by filing a petition for order permitting a late claim against the City. According to her petition and supporting declaration, Badel worked in the City’s auditor’s office. In March 2005, she complained to the City’s human resources department about being subjected to a hostile work environment and about derogatory and sexually harassing comments made by former City Auditor, Gary Burroughs (Burroughs).
Badel is laid off on July 1, 2005
Within two weeks of her complaint, Burroughs informed Badel that she would be laid off at the end of the fiscal year (Sept. 30, 2005) due to “‘budget cut backs.’”
Badel claims to discover retaliation in October 2005
Despite being taken off the City auditor’s payroll on July 1, 2005, Badel purportedly did not discover the City’s retaliatory termination until October 2005. Specifically, on October 1, 2005, she learned that no other City auditor employee had been laid off, that raises had been awarded to the staff, and that a temporary employee had been hired to a full time position to replace her. At this time, she suspected that she had been laid off in retaliation for complaining to human resources about the hostile work environment and about Burroughs.
In March 2006, Badel meets with City personnel regarding her claim
Approximately five months later, on March 10, 2006, Badel met with City Attorney Robert E. Shannon (Shannon) regarding her claim of a hostile work environment. At the conclusion of the meeting, Shannon informed her that he wanted her to talk to human resources to investigate her claims. On the following business day, Badel met with Sherriel Murry (Murry) in the City’s human resources department.
Neither Shannon nor Murry advised Badel of “any impending claim filing deadline nor that [she] even had to file a claim with the City.”
At the end of March 2006, Badel followed up with Dora Hogan (Hogan), Murry’s supervisor. Hogan informed her that the human resources department was going to investigate the matter.
Badel spoke with Hogan again in mid-April 2006. At that time, Hogan informed Badel that the City believed that an investigation was unnecessary because Burroughs had lost his bid for reelection. It was at this time that Badel suspected, for the first time, that the human resources department “was not objectively approaching an investigation of [her] claims,” prompting Badel to retain counsel.
On May 1, 2006, Badel sent an e-mail, titled “Claim against Auditor’s Office,” to Hogan. In it, she confirmed that the City intended to investigate her “very serious charges . . . regarding abuses [that she had] been subjected to as a result of [her] employment in [the City auditor’s] office.”
Badel files her belated claim for damages on May 26, 2006; her claim is returned
On May 26, 2006, Badel belatedly filed her claim for damages against the City, alleging that on July 1, 2005, she had been laid off in retaliation for complaining about a hostile work environment consisting of derogatory and sexually harassing comments made by Burroughs. On the same date, Badel filed a complaint of discrimination under the provisions of the California Fair Employment and Housing Act (FEHA), again alleging that on July 1, 2005, she had been laid off for complaining “about a hostile work environment of sexually harassing comments.”
In her petition, Badel concedes that her claim for damages was filed late.
On July 6, 2006, her claim was “returned because it was not presented within six months after the event or occurrence as required by law.”
Badel’s application for late claim; her application is denied
On July 12, 2006, Badel informed the City that she intended her belated claim for damages to constitute an application for permission to file a late claim. In any event, she explained that she had put the City on notice of her claims in March 2006, when she met with Shannon and Murry. At that time, the City indicated that it would investigate Badel’s claims.
Badel’s application for permission to file a late claim was denied on July 21, 2006, prompting her to file a petition for an order permitting a late claim.
The City’s opposition to Badel’s petition
The City opposed Badel’s petition. Citing Government Code section 911.2, the City pointed out that Badel had six months to present her claim for damages to the City. Badel did not comply with that strict time requirement. Although any potential causes of action accrued on July 1, 2005, the date set forth in both her claim for damages and her FEHA complaint, she did not file her claim for damages until May 26, 2006. Moreover, the fact that Badel met with City personnel in March 2006 did not change the statutory time in which she had to file her claim for damages.
All further statutory references are to the Government Code unless otherwise indicated.
Not only was her claim for damages late, but Badel’s application for a late claim also was untimely. Pursuant to section 911.4, a claimant may file a written application for leave to file a late claim. “The application shall be presented to the public entity . . . within a reasonable time not to exceed one year after the accrual of the cause of action.” (§ 911.4, subd. (b).) Badel’s claim accrued on July 1, 2005, but she did not file her application for a late claim until July 12, 2006, more than one year later. Accordingly, her application for a late claim was properly denied, and the trial court lacked jurisdiction to grant her relief.
Finally, because Badel had failed to establish that her late filing resulted from “mistake, inadvertence, surprise or excusable neglect” (§ 946.6, subd. (c)(1)), the City was not required to prove prejudice from the late presentation of Badel’s claim.
Badel’s reply
Badel offered a reply brief in support of her application. In it, she noted the policy in favor of permitting claimants to have their claims heard on the merits. She then went on to explain that her claim did not accrue until October 2005, at which time she discovered that Burroughs had lied to her regarding the reason for her July 1, 2005, termination. Because she filed her application for a late claim within a reasonable time of, and less than one year from, when her claim accrued, she was entitled to the relief sought.
Moreover, her failure to file a timely claim was the result of excusable neglect, namely her belief that she had put the City on notice of her claims in March 2006, when she met with Shannon and Murry. And, Badel asserted that the City would suffer no prejudice as a result of her late claim. Aside from the fact that it had not presented evidence of prejudice, it had, in fact, hired an independent investigator to gather documents and interview witnesses regarding Badel’s claims.
Trial court order denying Badel’s petition; Badel’s appeal
On October 17, 2006, the trial court denied Badel’s petition. It found that Badel had simply waited too long in filing her claim and no excusable neglect.
Badel’s timely appeal ensued.
DISCUSSION
I. The Tort Claims Act
Section 900 et seq., part of the Tort Claims Act, “prescribes the manner in which public entities may be sued.” (Chalmers v. County of Los Angeles (1985) 175 Cal.App.3d 461, 464.) Section 945.4 provides that “‘no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with . . . [s]ection 910 . . . until a written claim therefor[e] has been presented to the public entity and has been acted upon by the [public entity’s] board, or has been deemed to have been rejected by the board . . . .’” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 445 (Stockett).) The purposes of the claim filing requirement are: “(1) to give notice to the public entity so it will have a timely opportunity to investigate the claim and determine the facts; and (2) to give the public entity an opportunity to settle meritorious claims thereby avoiding unnecessary lawsuits.” (San Diego Unified Port Dist. v. Superior Court (1988) 197 Cal.App.3d 843, 847; accord Stockett, supra, at p. 446.)
Section 911.2 requires that personal injury claims against a public entity be filed “not later than six months after the accrual of the cause of action.” (§ 911.2, subd. (a).) Absent legislative intent to supplant the applicable statute of limitations, “the date of the accrual of a cause of action . . . is the date upon which the cause of action would be deemed to have accrued . . . if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon.” (§ 901.)
In the alternative, a claimant who fails to timely file his claim with the public entity may apply to the public entity to file a late claim within a reasonable time after accrual, not to exceed one year. (§ 911.4.) If the public entity denies the claimant’s application to file a late claim, then the claimant may petition the superior court for relief from the Tort Claims Act filing requirements.
“Before a court may relieve a claimant from the statutory tort claim filing requirements, the claimant must demonstrate by a preponderance of the evidence both that the application to the public entity for leave to file a late claim was presented within a reasonable time and that the failure to file a timely claim was due to mistake, inadvertence, surprise or excusable neglect.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.)
“The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief. Relief on grounds of mistake, inadvertence, surprise or excusable neglect is available only on a showing that the claimant’s failure to timely present a claim was reasonable when tested by the objective ‘reasonably prudent person’ standard. The definition of excusable neglect is defined as ‘neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.’” (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1293.)
If the superior court denies the petition for relief, the claimant may appeal the superior court’s decision. (Gurrola v. County of Los Angeles (1984) 153 Cal.App.3d 145, 150.) On appeal from the superior court’s order denying relief, the Court of Appeal will review the lower court’s decision for abuse of discretion. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1778.) “Abuse of discretion is shown where uncontradicted evidence or affidavits of the plaintiff establish adequate cause for relief. [Citation.] [¶] [Section 946.6] is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary. The remedial policy underlying the statute is that wherever possible cases should be heard on their merits. Thus, a denial of such relief by the trial court is examined more rigorously than where relief is granted and any doubts which may exist should be resolved in favor of the application. [Citations.] [¶] Relief from the six-month limit is granted under the same showing as is required for relief under Code of Civil Procedure section 473.” (Munoz v. State of California, supra, at p. 1778.) However, “[t]he general policy favoring trial on the merits cannot be applied indiscriminately so as to render ineffective the statutory time limits.” (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1293.)
The superior court has no jurisdiction to grant relief if the late claim application was filed later than one year after the date of accrual. (Munoz v. State of California, supra, 33 Cal.App.4th at p. 1779.)
II. The Trial Court Properly Denied Badel’s Application to Present a Late Claim
Applying the foregoing principles, we conclude that the trial court did not abuse its discretion in denying Badel’s application to present a late claim.
A. Badel’s claim accrued on July 1, 2005
Preliminarily, we must determine when Badel’s retaliation claim accrued. According to the City, her claim accrued on July 1, 2005, when she was laid off from the City’s auditor’s office. According to Badel, her claim accrued on October 1, 2005, when she first discovered the wrongful motivation for her termination. Based upon the evidence and argument presented, we agree with the City.
Ordinarily, a cause of action accrues “‘when, under the substantive law, the wrongful act is done,’ or the wrongful result occurs, and the consequent ‘liability arises.’ . . . In other words, it sets the date as the time when the cause of action is complete with all of its elements [citations]—the elements being generically referred to by sets of terms such as ‘wrongdoing’ or ‘wrongful conduct,’ ‘cause’ or ‘causation,’ and ‘harm’ or injury.’” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) The “delayed discovery” doctrine modifies that rule, and protects a plaintiff who is “blamelessly ignorant” of his or her cause of action by postponing accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 406–408, disapproved on another ground by Trope v. Katz (1995) 11 Cal.4th 274, 292; Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397.)
For purposes of the Tort Claims Act, “the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon.” (§ 901.) Thus, if the delayed discovery rule applies to the statute of limitations on Badel’s action for damages against the City, it also applies to the limitations period for her tort claim.
“In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[the] plaintiff . . . must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)
Quite simply, Badel did not satisfy her burden of showing that the delayed discovery rule applies. While she averred that she did not discover Burroughs’s misrepresentation until October 1, 2005, she did not set forth any facts regarding her inability to have made the discovery earlier despite reasonable diligence. Certainly a reasonable person’s suspicions would have been aroused given (1) the short time frame between the time she complained to human resources and the time in which Burroughs notified her that she would be laid off; and (2) the fact that she actually was laid off on July 1, 2005, before the end of the fiscal year, as Burroughs had previously represented.
B. Because Badel’s claim accrued on July 1, 2005, her application for leave to present a late claim is untimely
As set forth above, Badel had no more than one year to submit her application for leave to present a late claim. (§ 911.4, subd. (a).) Thus, she had until July 1, 2006, to submit her application. Unfortunately for Badel, she did not submit her application to the City until July 12, 2006, more than one year later. Accordingly, her application was untimely, and the trial court lacked jurisdiction to grant her the relief sought. (Munoz v. State of California, supra, 33 Cal.App.4th at p. 1779.)
C. Even if Badel’s claim accrued on October 1, 2005, the trial court still did not err in denying her petition for relief
Even if we were to agree with Badel that her claim did not accrue until October 1, 2005, we would still affirm the trial court’s order denying her petition for relief. As Badel concedes, her claim was not timely filed. (§ 911.2.) Thus, we must turn our attention to the timeliness of her application for leave to file a late claim.
As set forth above, an application for leave to file a late claim must be filed within a reasonable time, but no more than one year after the accrual of the cause of action. (§ 911.4, subd. (b).) Badel’s application for leave to file a late claim was filed within one year after the accrual of the cause of action: For purposes of discussion only, her cause of action accrued on October 1, 2005, and her application was filed on July 12, 2006.
That being said, the trial court did not abuse its discretion in determining that her claim was not filed in a reasonable time. She offers no explanation for delaying months in pursuing a claim against the City. Moreover, Badel fails to demonstrate mistake, inadvertence, surprise, or excusable neglect. (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1293.) In this regard, her attempt to liken this case to Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432 (Bertorelli) fails.
Because the trial court did not err in finding that Badel’s failure to submit her application timely was not the result of excusable neglect, we need not address whether the City was prejudiced by the delay. (Department of Water & Power v. Superior Court, supra, 82 Cal.App.4th at p. 1297.)
In Bertorelli, the parties engaged in “continuous settlement negotiations,” which reasonably led the plaintiff to believe that there was no need to file a formal claim. (Bertorelli, supra, 180 Cal.App.3d at p. 441.) In fact, the plaintiff in Bertorelli was even approached by the defendant city’s insurance adjuster, the very entity under contractual obligation to settle the plaintiff’s claim. (Ibid.) In contrast, Badel here merely met with human resources personnel and Shannon. The parties never engaged in any settlement conversations, let alone “ongoing settlement discussions” (id. at p. 436) that reasonably would have led her to believe that she was relieved of her duty to file a proper and timely tort claim.
It follows that we reject Badel’s estoppel argument. It is well-established that “[a] public entity may be estopped from asserting noncompliance with the claims statutes where its agents or employees have deterred the filing of a timely claim by some ‘affirmative act.’ [Citation.]” (Christopher P. v. Mojave Unified School Dist. (1993) 19 Cal.App.4th 165, 170.) “Estoppel most commonly results from misleading statements about the need for or advisability of a claim. [Citations.] Estoppel may also be invoked where conduct on behalf of the public entity induces a reasonably prudent person to avoid seeking legal advice or commencing litigation. [Citation.] Finally, acts of violence or intimidation on the part of the public entity that are intended to prevent the filing of a claim may create an estoppel. [Citation.]” (Ibid.)
Here, there is no evidence to support Badel’s assertion that the City should be estopped from asserting untimely compliance with the claims statutes. There is no evidence, for example, that the City prevented Badel from filing a proper and timely claim. (Christopher P. v. Mojave Unified School Dist., supra, 19 Cal.App.4th at p. 172.) Likewise, there is no evidence that Badel was assured that she did not need to take any further action to protect her potential claim against the City. (See, e.g., Ocean Services Corp. v. Ventura Port Dist. (1993) 15 Cal.App.4th 1762, 1776.)
In arguing for estoppel, Badel directs us to evidence regarding her conversations with human resources representatives and with Shannon. While she did convey her concerns to City employees, she was never advised that she did not need to take any further steps to protect her legal rights. (See, e.g., Schaefer Dixon Associates v. Santa Ana Watershed Project Authority (1996) 48 Cal.App.4th 524, 536.) The fact that the City indicated its intent to investigate Badel’s claims does not compel us to reach a different conclusion. It is not surprising that the City represented that it would investigate Badel’s allegations; certainly, we would expect the City to investigate any claim of sexual harassment. Thus, such a comment did not relieve Badel of her responsibility to file a proper claim.
Nor does Badel point us to any legal authority to support the proposition that upon complaining to human resources, the City was required to notify Badel of her obligation to file a timely tort claim. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) Since this issue was not sufficiently developed, we could treat it as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Finally, in her appellate briefs, Badel urges us to reverse the trial court’s order on the grounds that the trial court erroneously commented that she complained of sexual harassment in 2003. This misstatement of the facts does not compel reversal. All evidence indicates that Badel complained of a hostile work environment in March 2005. The parties’ arguments below focused on the correct relevant dates in 2005 and 2006. Thus, there is no reason to believe, as Badel suggests, that the trial court found Badel’s claim untimely because it was filed years after she first complained of harassment.
DISPOSITION
The order of the trial court is affirmed. The City is entitled to costs on appeal.
We concur: DOI TODD, Acting P. J., J.CHAVEZ