Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Craig Riemer, Judge, Ct. No. RIC458029
Geoffrey H. Hopper & Associates, Inc. and Charles P. Boylston for Plaintiff and Appellant.
Best Best & Krieger, John Higginbotham, Douglas S. Phillips and Kira L. Klatcho for Defendant and Respondent.
OPINION
Gaut, J.
Plaintiff Pamela Lee sued the City of San Jacinto (city) for breaching a severance agreement entered into between plaintiff and the city at the time of plaintiff’s resignation from her position as city clerk. Lee appeals the judgment of dismissal entered following the trial court’s order sustaining the city’s demurrer without leave to amend.
Plaintiff contends the trial court erred in ruling her government claims were time-barred under the Government Tort Claims Act (Gov. Code, § 910 et seq.). She also argues that the court should have granted her leave to amend her complaint rather than sustaining defendant’s demurrer without leave to amend.
Unless otherwise noted, all statutory references are to the Government Code.
We conclude the face of plaintiff’s complaint, along with the attached documents, establishes as matter of law that plaintiff’s complaint and underlying government claims were untimely. In addition, plaintiff has not established she is able to amend her complaint successfully. We therefore affirm the judgment.
1. Factual and Procedural Background
This action arises out of plaintiff becoming involved in an investigation of recall election fraud. After the recall election was over, plaintiff agreed to resign from her position as city clerk pursuant to a severance agreement in which the city agreed not to disparage plaintiff in any way, particularly to prospective employers, and to indicate in plaintiff’s personnel file that plaintiff resigned from her city clerk position. After several unsuccessful attempts to obtain employment, plaintiff discovered her personnel file contained a city personnel action form stating that she had been terminated.
On October 4, 2006, plaintiff filed a complaint for damages against the city for (1) intentional interference with prospective economic advantage, (2) breach of contract, (3) slander per se, and (4) libel per se.
Plaintiff alleges in her complaint that she complied with the Government Tort Claims Act. She submitted a government tort claim to the city on December 12, 2005. On December 20, 2005, plaintiff submitted on the city’s form another tort claim alleging essentially the same facts as stated in the December 12, 2005, claim. Plaintiff attached these documents to her complaint.
Plaintiff states in her government tort claims against the city that on August 22, 2005, she first gained knowledge of false statements made about her by the city human resources department. Plaintiff signed a severance agreement, stating that she resigned from her position with the city. Plaintiff discovered that a personnel action form was later added to her file, stating that she had been terminated. This impeded plaintiff’s ability to obtain employment and caused loss of income and severe emotional distress.
Plaintiff further alleges in her complaint for damages the following facts. Plaintiff was appointed as city clerk in 1995. She served as an elections official in 1998 and 1999. During this time there was a recall election of two city council members. Plaintiff became aware of various fraudulent practices. In the course of the recall election, plaintiff and the city mayor, Pat Williams, became hostile toward each other. The recall was ultimately successful but, in the process, plaintiff was maligned during city council public meetings and in the newspapers.
With the change in the city council membership after the recall election, it was mutually agreed between plaintiff and the city that plaintiff would resign. On October 7, 1999, plaintiff and the city executed a severance and general release agreement (severance agreement). A copy of the agreement is attached to the complaint. Provision No. 9 of the severance agreement states the following: “The parties agree they will not make derogatory statements concerning the other. City shall respond to all reference requests by giving only dates of employment, positions held, duties performed, and the fact that Lee resigned from employment as of the date of this Agreement. Various current and former City officials may provide letters of recommendation, at their election.”
During the time plaintiff worked for the city, she also was a city volunteer reserve police officer. The severance agreement provided that plaintiff would resign as a city volunteer reserve police officer in June 2000. In April 2000, in violation of the severance agreement, the city dismissed plaintiff as a volunteer reserve police officer without cause or explanation. This is reflected in a city personnel action form, a copy of which is attached to plaintiff’s complaint.
Also in breach of the severance agreement, a city personnel action form dated July 28, 2000, was placed in plaintiff’s personnel file, stating that plaintiff had been dismissed from her city clerk position, rather than resigning. Plaintiff became aware of these violations of the severance agreement when she requested and received a second copy of her personnel file on August 22, 2005. Prior to this, in April 2000, she had received a certified copy of her personnel file and there were no copies of the personnel action forms.
Plaintiff alleges the city violated the severance agreement by putting the personnel action form in her file on July 28, 2000.
In December 2002, San Bernardino Valley College denied plaintiff employment as a full-time college police officer.
In September 2003, the City of Carmel-by-the-Sea (Carmel) denied plaintiff employment as a police officer.
In late 2002 or early 2003, the City of Delano denied plaintiff employment as a police officer.
Plaintiff believes that in late 2002 or early 2003, she did not pass the background checks for employment with Delano and Carmel because the city made derogatory and slanderous remarks about her to those conducting the background checks and because her personnel file indicated she was dismissed as city clerk and as a reserve police officer.
In late 2000 or early 2001, plaintiff met with the Delano city background investigator, who indicated he would be contacting her references. Afterwards, the investigator went to the city police department and the investigation came to a halt.
In September 2003, after plaintiff did not pass the background investigation by the Carmel police department, a background investigator with the Palm Springs Police Department told her the Carmel investigator had called seeking to reach Mayor Pat Williams. Plaintiff believes the Carmel investigator succeeded in contacting Williams and, as a result, she did not pass her background check.
In February 2003, the San Bernardino Community College (SBCC) District hired plaintiff as a substitute police officer. After working there for eight months, in September 2003, the SBCC District told her it was doing a post-hire background check on its police employees. Because she had been denied employment as a police officer from at least three public entities or police departments, plaintiff feared she would not pass the background check.
Plaintiff alleged in her complaint that she “believed she would not pass the background check for no other reason than that she believes that the CITY, in complete disregard and breach of the severance agreement, made derogatory statements about LEE to other potential employers and provided false information that she had been dismissed from her position as City Clerk. LEE believed the same misleading information would be provided to San Bernardino Community College District. LEE therefore opted out of completing a background check as mandated by the Community College District.”
Plaintiff further alleges that city officials retaliated against her for her involvement in the investigation of the recall election fraud by terminating her as a volunteer reserve police officer, making disparaging comments about her to background investigators, and listing her as having been dismissed from her position as city clerk, in breach of her severance agreement with the city.
Plaintiff claimed in her complaint that she did not have knowledge of the foregoing facts and information alleged in her complaint until August 25, 2005, upon receipt of her personnel file.
The city demurred to plaintiff’s complaint on the grounds plaintiff’s claims were barred by the applicable statute of limitations and plaintiff failed to allege compliance with the Government Tort Claims Act. Plaintiff filed opposition arguing that the delayed discovery rule tolled the applicable statute of limitations.
The trial court sustained the city’s demurrer without leave to amend on the ground the action was untimely filed because plaintiff was on inquiry notice no later than September 2003.
2. Standard of Review Applicable to a Demurrer Ruling
We review de novo the order sustaining the demurrers, treating the demurrers as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In reviewing the lower court’s ruling on demurrer, we base our statement of the factual and procedural background on the pleadings and such matters as may be judicially noticed. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1381, 1386; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)
Where a complaint, regardless of whether it is verified, “‘contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation.’ [Citations.] ‘In such a case the original defect infects the subsequent pleading so as to render it vulnerable to a demurrer.’ [Citation.] However, we have also made it clear that ‘a party should be allowed to correct a pleading by omitting an allegation which, it appears, was made as the result of mistake or inadvertence.’” (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 836.)
3. Noncompliance with the Government Tort Claims Act
The trial court sustained the city’s demurrer to plaintiff’s complaint on the ground plaintiff failed to comply with the Government Tort Claims Act by not filing a timely government tort claim with the city.
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 . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board[.]” “In those circumstances in which a claim must be presented, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer. [Citation.]” (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 31.)
Here, plaintiff’s tort and contract causes of action fall within the scope of claims for money or damages and thus compliance with the Government Tort Claims Act filing requirements is compelled. (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1079.)
The Government Tort Claims Act requires that a tort claim be submitted to the offending public entity within six months of accrual of the cause of action. A claim against a public entity for breach of contract must be submitted within one year after the cause of action accrues. (§ 911.2, subd. (a).)
A cause of action normally accrues at the time of injury. In some situations, a cause of action accrues when the plaintiff becomes aware of the defendant’s wrongdoing as a cause, or could have become aware through the exercise of reasonable diligence. (Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 526-527.) “The plaintiff is charged with this awareness as of the date he suspects or should suspect that his injury was caused by wrongdoing, that someone has done something wrong to him. Accordingly, the period of limitations will begin to run without regard to whether the plaintiff is aware of the specific facts necessary to establish his claim, provided that he has a ‘suspicion of wrongdoing,’ which he is charged with once he has ‘notice or information of circumstances to put a reasonable person on inquiry.’ [Citation.]” (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160.)
“In order to raise the issue of belated discovery, the plaintiff must state when the discovery was made, the circumstances behind the discovery, and plead facts showing that the failure to discover was reasonable, justifiable and not the result of a failure to investigate or act. [Citation.] Once belated discovery is pleaded, the issue of whether plaintiff exercised reasonable diligence in discovering the negligent cause of the injury is a question of fact. [Citation.] On appeal from a demurrer, the issue is whether the trial court could determine as a matter of law that failure to discover was due to failure to investigate or to act without diligence.” (Bastian v. County of San Luis Obispo, supra, 199 Cal.App.3d at p. 527.)
Plaintiff’s complaint alleges facts sufficient to raise the issue of belated discovery. Plaintiff alleges she did not have knowledge until August 25, 2005, when she obtained a second copy of her personnel file, that city officials had retaliated against her by terminating her as a volunteer reserve police officer, making disparaging comments about her to background investigators, and stating on a personnel action form placed in her personnel file that she had been terminated as city clerk.
This court must determine whether, based on the facts alleged in the complaint and attached documents, the trial court could determine as a matter of law that plaintiff’s failure to discover her claims until August 25, 2005, was due to a failure to investigate or to act without diligence. “The test for belated discovery is whether the plaintiff has information of circumstances ‘“‘ . . . sufficient to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his or her investigation.’ [Citations.] If plaintiff believes because of injuries she has suffered that someone has done something wrong, such a fact is sufficient to alert a plaintiff ‘to the necessity for investigation and the pursuit of her remedies.’ [Citations.]”’ [Citations.]” (Bastian v. County of San Luis Obispo, supra, 199 Cal.App.3d at p. 527.)
Here, reasonable minds could only draw one conclusion from the facts alleged in plaintiff’s complaint and from the attached documents that in September 2003 plaintiff had information sufficient to alert her to the city’s disparagement of plaintiff in breach of the severance agreement. Plaintiff acknowledged in her complaint that in September 2003 she suspected that the city was the cause of several failed background investigations by prospective employers. Plaintiff alleges in her complaint that for this reason she opted out of her employment as a substitute police officer with the SBCC District because she believed she would not pass the mandatory SBCC District post-hire background check.
Based on these allegations, we conclude the trial court appropriately concluded as a matter of law that plaintiff’s government claims accrued no later than September 2003. As a consequence, plaintiff’s government tort claims, filed in December 2005 were not timely filed and are barred pursuant to the Government Tort Claims Act statute of limitations, section 911.2.
Having failed to submit a timely government tort claim, plaintiff’s complaint is barred under the Government Tort Claims Act. Accordingly, the trial court did not err in sustaining without leave to amend the County’s demurrer to plaintiff’s third amended complaint.
Alternatively, plaintiff argues that even if plaintiff was on inquiry notice as of September 2003 of the city’s breaches, the continuing presence in plaintiff’s personnel file of the personnel action form stating plaintiff was terminated as city clerk constituted a continuing breach. Therefore the breach, plaintiff argues, was continuous and gave rise to a new cause of action each day the document remained in plaintiff’s personnel file and each time the file was reviewed and disparaged plaintiff in stating she was dismissed. Plaintiff thus claims the statute of limitations does not bar her claims.
Plaintiff did not raise this continuing breach theory in her government claim, complaint or opposition to the demurrer. By failing to raise the issue until this appeal, plaintiff forfeited the issue. (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 46.)
Even if the issue was not forfeited, plaintiff failed to allege any facts supporting liability for any breach or wrongdoing within six months for tort claims and one year for contract claims preceding submission of plaintiff’s government tort claims. There are no allegations that any prospective employers did background checks on plaintiff and rejected plaintiff because the personnel action forms were in plaintiff’s personnel file. There are no allegations supporting actionable damages within the limitation period for filing the government tort claims nor has plaintiff established that she can amend to make such allegations of damages within the limitation period.
Where the demurrers are “sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Here, plaintiff has not met her burden of showing how the complaint can be amended to state a cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
4. Disposition
The judgment is affirmed. The city is awarded its costs on appeal.
We concur: Richli, Acting P. J., King, J.