Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS028545
Ruvolo, P. J.
I.
Introduction
Philip D. Evans (appellant) filed a petition in the trial court seeking relief from the government claim filing requirement (Gov. Code, § 911.2) pursuant to Government Code section 946.6. He appeals from the denial of the petition, contending that: (1) the government claim which he filed for wrongful termination on February 10, 2006, was timely under the doctrine of equitable tolling, and (2) in any event he was relieved of any obligation to file an administrative claim based on respondent’s noncompliance with Government Code section 53051 (Section 53051).
The denial of a petition for relief under Government Code section 946.6 is appealable. (Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 710.)
We conclude that both arguments have been waived by appellant’s failure to raise them in the trial court. Therefore, we affirm the lower court’s denial of the petition.
II.
Factual and Procedural Background
On October 10, 2006, appellant filed a petition for order permitting late claim against governmental entity (petition), pursuant to Government Code section 946.6. In the petition, appellant averred that while he was respondent’s employee, he reported “questionable accounting practices and/or perceived misconduct” by his supervisor, respondent’s acting executive director Julie Peterson (Director Peterson), to the Solano County Grand Jury and the United States Department of Housing and Urban Development. He claims that in retaliation for his reporting, he was subsequently subjected to on-the-job harassment and was ultimately terminated on or about June 16, 2005.
Appellant wrote to Director Peterson on June 24, 2005, requesting a meeting to discuss his termination pursuant to the grievance procedure set forth in respondent’s “Personnel Policies and Procedures Manual.” A meeting was scheduled for July 7, 2005. Following the meeting, Director Peterson wrote to appellant on July 12, 2005, indicating that nothing occurred at the July 7, 2005 meeting which changed the decision to terminate him.
Three days later, appellant filed a formal grievance with Director Peterson seeking to address his termination and “the hostile work environment and harassment caused by you.” In the grievance, appellant sought rescission of his termination, making clear his view that the disciplinary action taken against him was retaliatory, resulting from his cooperation with the grand jury, respondent’s auditors, and respondent’s commission. The grievance was denied by letter from Director Peterson dated July 21, 2005, and appellant appealed this denial.
Appellant sent the appeal to the state Employment Development Department, and raised the same issues as those presented to respondent. At the same time, appellant also appealed the denial of his request for unemployment benefits.
While the grievance appeal was pending appellant received a letter from respondent’s counsel dated August 12, 2005. In her letter, counsel took the position that appellant could be terminated with or without cause because he was an at-will employee, “so long as it is not an illegal reason.” According to counsel, “[t]here is no allegation of an illegal reason for the termination of which I am aware.” The letter also advised appellant that because he was an at-will employee, reinstatement was not a proper remedy under the applicable grievance procedure, and he was limited to “clear[ing] your name from the contention that you were insubordinate or misleading with your supervisor.”
At this juncture, appellant’s counsel apparently became involved, and, during the months of August and September 2005, counsel for both sides engaged in letters and telephone calls “pertaining to a possible global settlement of issues relating to [respondent’s] termination of [appellant’s] employment, including the right to unemployment benefits and issues relating to allegations of wrongful termination.” These discussions led to a “global settlement” offer by respondent’s counsel, which proved to be unacceptable.
Over the next few months, appellant’s counsel became ill, and a member of her immediate family died. In November 2005, appellant suffered a heart attack for which he was hospitalized and underwent a period of convalescence lasting several weeks. The unemployment benefit appeal was finally resolved in appellant’s favor in January 2006.
All further dates are in 2006 unless otherwise indicated.
On February 10, appellant’s counsel presented an administrative claim to respondent pursuant to Government Code section 910, seeking damages as a result of his wrongful termination. The claim was subsequently rejected on March 23 as untimely. Appellant requested respondent’s permission to file a late claim on April 19, which was denied on May 23.
Appellant conceded below that the applicable time period for filing an administrative claim based on alleged wrongful termination is six months. The petition, and the accompanying memorandum of points and authorities, sought relief from the claim filing deadline on two grounds. First, appellant argued that any failure to file within six months was the results of counsel’s excusable neglect and mistake of law pertaining to the applicable claim filing time deadline. In addition, citing Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432 (Bertorelli), appellant took the position that the six-month period had been “tolled” from June to September 2005, based on the efforts made by the parties at first, and later with the assistance of counsel, to achieve a “resolution of all issues” and a “global settlement.”
The hearing on the petition took place on November 27, and a written “Decision on Petition for Order Permitting Late Claim Against Government Entity” (Decision) was filed by the court on January 11, 2007. The Decision denied the relief sought by the petition on the ground that appellant had failed to meet his burden of showing excusable neglect in not timely filing his administrative claim. No mention was made in the Decision of appellant’s alternative equitable argument for relief. This timely appeal followed.
On appeal appellant does not contest the court’s determination that appellant had failed to show excusable neglect. Instead, appellant argues that the petition should have been granted on the alternative ground of “equitable tolling.” Moreover, appellant claims for the first time on appeal that he was excused from the administrative filing requirement because, during the pertinent timeframe, respondent was not in compliance with Section 53051.
Respondent contends that appellant has waived both claims because they were not raised in the trial court. Alternatively, respondent asserts that it substantially complied with Section 53051, and therefore, appellant was not excused from timely filing an administrative claim. It also argues that appellant was not entitled to relief under the equitable tolling doctrine.
III.
Legal Discussion
A. Appellant Waived His Contention that Noncompliance with Section 53051 Excused Him From Having to Submit a Timely Administrative Claim as a Prerequisite to His Wrongful Termination Action
Appellant admits that his first contention relating to Section 53051 was not raised in the trial court. Nevertheless, appellant asks that we entertain the claim arguing that it is a “pure question of law.” Section 53051 requires that certain identifying information about all public agencies and their key personnel be provided to the Secretary of State. This requirement includes updating the information within 10 days of any change, including providing the names, business and residence addresses of any new officers or governing body members. However, substantial compliance with the statute by the public agency is all that is required. (Wilson v. San Francisco Redevelopment Agency (1977) 19 Cal.3d 555.) If a public agency does not file the information required by this statute, one wishing to sue the public agency need not comply with the time limitation contained in Government Code section 911.2, and the failure to file an administrative claim under this latter section does not constitute a bar or defense to a suit against such public agency. (Hovd v. Hayward Unified Sch. Dist. (1977) 74 Cal.App.3d 470.)
In material part, Section 53051 provides: “(a) Within seventy (70) days after the date of commencement of its legal existence, the governing body of each public agency shall file with the Secretary of State on a form prescribed by the Secretary of State and also with the county clerk of each county in which the public agency maintains an office, a statement of the following facts:
Ordinarily, “ ‘issues not raised in the trial court cannot be raised for the first time on appeal.’ [Citations.]” (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) This rule applies so an appealing party “ ‘may not deprive his opponent of an opportunity to meet an issue in the trial court by changing his theory on appeal . . . .’ [Citations.]” (Resolution Trust Corp. v. Winslow (1992) 9 Cal.App.4th 1799, 1809.) “ ‘[W]hether the [waiver] rule shall be applied is largely a question of the appellate court’s discretion.’ [Citations.]” (Id. at p. 1810.)
We disagree with appellant that his Section 53051 argument is a “pure question of law.” While the legal effect of noncompliance with Section 53051 is a question of law, a determination of whether the public entity has failed to comply with that section involves factual determinations. For example, in order to resolve the issue, we would be required to ascertain the facts as to the accuracy and exactness of respondent’s filing with the Secretary of State.
There are no facts appearing in the trial court record from which we could determine if respondent was out of compliance with Section 53051. For that reason, appellant has filed a request for judicial notice on appeal, appending documents appellant contends show such noncompliance. For its part, respondent had raised several objections to the request for judicial notice, including that appellant has failed to show that respondent was not in “substantial compliance” with the filing requirement. Addressing this issue, too, would involve this court in determining factual matters not presented in the trial court. In light of the respective positions of the parties, we can hardly consider the issue as a “pure question of law,” or one based on undisputed facts. Also, this issue is not one involving significant public interest, or a question of public policy might otherwise weigh in favor of deciding the issue. (Resolution Trust Corp. v Winslow, supra, 9 Cal.App.4th at p. 1810.)
For all of these reasons, we decline to entertain appellant’s claim that he was excused from having to file a timely administrative claim because respondent was not in compliance with Section 53051. Because we decline to entertain this issue on appeal, appellant’s request for judicial notice is denied as moot.
B. Appellant Has Waived Any “Equitable Tolling” Argument
Respondent makes the same assertion of waiver with respect to appellant’s equitable tolling claim, arguing that he only made a claim for equitable estoppel in the trial court, and did not argue equitable tolling.
On appeal, appellant makes an alternative equitable argument based on the doctrine of equitable tolling. As accurately summarized by appellant in his appellate brief, equitable tolling “provides that when an injured person has several legal remedies and reasonably and in good faith pursues one, the running of the [statute of] limitations period on the other remedy is tolled, regardless of whether exhaustion of the first remedy was a prerequisite to the pursuit of the other remedy.” (See Addison v. State of California (1978) 21 Cal.3d 313, 317.)
The parties agree that equitable tolling requires that three “core elements” be satisfied by the party seeking the tolling: “(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim.” (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924, fn. omitted (Collier).)
On appeal, appellant argues that the filing of his grievance and the appeal from its denial: (a) put respondent on notice of his wrongful termination claim, (b) because of such notice, respondent had the opportunity to investigate this claim and, therefore, was not prejudiced in gathering evidence needed to defend against the administrative claim presented in February 2006, and (c) his conduct in presenting his second administrative claim was reasonable.
Respondent counters that if equitable tolling was not waived, the doctrine is inapplicable to this case. Alternatively, respondent contends that if otherwise applicable, the Collier three “core elements” of the doctrine were not met by the facts of this case.
We agree with respondent’s position that appellant did not raise or argue equitable tolling in the trial court. To be sure, appellant’s petition and accompanying pleadings filed in the trial court did include as a ground for relief “equitable estoppel/tolling.” However, the discussion and legal authorities relied on in making that argument make it clear that appellant was seeking relief based only on the doctrine of equitable estoppel, not equitable tolling.
In the one paragraph in appellant’s memorandum of points and authorities devoted to an equitable argument, he states the following:
“Ongoing settlement discussions have also been found by the courts to justify imposing the equitable doctrine of estoppel whereby the failure to file a claim can be found to be excusable neglect. (Bertorelli[, supra,] 180 Cal.App.3d . . . [at p.] 441 . . . .) Here, [appellant] and [r]espondent and their respective counsel were engaged in settlement discussions . . . beginning in [sic] August 2005. Respondent’s counsel wrote letters alluding to a ‘resolution of all issues’ and a ‘global settlement’ in the context of the unemployment hearings. [Appellant] and his counsel did not pursue a claim at that time because the need would have been obviated if a settlement had been reached. Under the Bertorelli theory, then, the claims period might be found to have been ‘tolled’ from June to September while [appellant] was seeking relief through grievances and settlement negotiations.” (Original underscoring omitted.)
In Bertorelli, supra, 180 Cal.App.3d 432, the single case relied on by appellant, the court recognized that acts or conduct that wrongfully induce a party to believe an amicable adjustment of his or her claim will be made may create an equitable estoppel against pleading the statutes of limitation as a defense. (Id. at p. 440.) The Bertorelli court explained this doctrine applies equally to claims presented to public entities: “Nonetheless, conduct on behalf of a public agency, which would induce a reasonably prudent person to avoid seeking legal advice or personally commencing litigation, may estop the public agency from asserting a claims defense[.] . . .” (Ibid.)
As noted, the trial court did not rule on appellant’s equitable estoppel claim, nor did appellant bring this omission to the trial court’s attention after the Decision was filed, which addressed only the excusable neglect ground for relief. Appellant has not raised this omission as an error on appeal. In any case, we note that this doctrine appears to apply only where the forbearance to file a claim or suit encompassed the entire limitations period or where there is no substantial period left in the limitations period “after the estoppel has expired.” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 652; Bertorelli, supra, 180 Cal.App.3d at p. 442.) Here, appellant sought estoppel for only two months of the six-month filing period. As to the additional four months within which the claim could have been filed, we note that the trial judge concluded that any delay was not the result of excusable neglect by appellant or his counsel; a finding not challenged on appeal. Therefore, even if the issue had been decided, it is unlikely to have been found to be sufficient to excuse the delay in filing during the remaining four-month limitations period.
Thus, the doctrine of equitable estoppel is precisely what appellant presented in the trial court as a ground for relief from the administrative claim filing requirement under Government Code section 911.2. On the other hand, equitable tolling is premised upon conduct by the claimant in making a partial claim, but which is sufficient in scope to put the entity on notice that the claimant possesses claims broader than those in the presented claim. (See Mills v. Forestex Co., supra, 108 Cal.App.4th at pp. 650-657 [discussion of both doctrines, highlighting the differences between the two].)
Obviously, evaluating whether the three “core elements” enunciated in Collier, supra, 142 Cal.App.3d 917 were met involves factual determinations not appropriate for adjudication on appeal. Moreover, had appellant adequately raised equitable tolling as a ground for relief from the six-month claim filing deadline, respondent could have presented a much more robust record bearing on these elements, including any prejudice to respondent resulting from the delay, and whether appellant’s conduct in filing the second claim was in good faith and reasonable. Deciding the issue on appeal prevents respondent from having the opportunity to do so. Because appellant’s “ ‘new theory involves an issue of fact, . . . and the facts to support the theory were not developed below, we find the argument was waived for failure to raise it in the trial court.’ (City of Merced v. American Motorists Ins. Co. (2005) 126 Cal.App.4th 1316, 1327 . . .; see also Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167 . . . [‘failure to raise a point in the trial court constitutes [a] waiver’ except ‘where the theory presented for the first time on appeal involves only a legal question determinable from facts which not only are uncontroverted in the record, but which could not be altered by the presentation of additional evidence’].)” (People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 40.)
IV.
Disposition
The judgment of the trial court is affirmed. Costs on appeal are awarded to respondent.
We concur: Reardon, J., Sepulveda, J
“1. The full, legal name of the public agency.
“2. The official mailing address of the governing body of the public agency.
“3. The name and residence or business address of each member of the governing body of the public agency.
“4. The name, title, and residence or business address of the chairman, president, or other presiding officer, and clerk or secretary of the governing body of such public agency.
“(b) Within 10 days after any change in the facts required to be stated pursuant to subdivision (a), an amended statement containing the information required by subdivision (a) shall be filed as provided therein. The information submitted to the Secretary of State shall be on a form prescribed by the Secretary of State.”