Opinion
Super. Ct. No. GIC847760
APEAL from a judgment of the Superior Court of San Diego County, Patricia Y. Cowett, Judge.San Diego State Univ. CA4/1, Affirmed.
WE CONCUR: HUFFMAN, Acting P.J, O'ROURKE, J.
McINTYRE, J.
Wyatt A. Ray sued San Diego State University (the University), Mike Johnson, Shawdalyn Catlett and Hans Warren (collectively, the Defendants) after he was terminated from his position as a probationary police officer for the University. He appeals from a judgment of dismissal after the superior court sustained the Defendants' demurrers to his complaint on the ground that he failed to comply with the California Tort Claims Act (Gov. Code, § 810 et seq. (the Claims Act); all further statutory references are to the Government Code). Ray contends that his claim was timely filed and, if it was not, the Defendants are precluded from asserting any objection to its untimeliness because he did not receive the notice required by section 911.3, subdivision (a) of the Claims Act. We find his arguments unavailing and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In accordance with the standards governing our review of the superior court's rulings on demurrer, the following factual recitation is based on the allegations of Ray's first amended complaint (see Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 849).
In August 1999, when Ray was a University student, the University hired him as a community service officer. After Ray graduated, he was no longer eligible to work as a community service officer, so he transferred to the University's Parking Enforcement Detail as a parking enforcement officer. Ray received good performance reviews and was well respected by his supervisors and peers during the time he worked at the University.
In January 2002, Ray was accepted into the Los Angeles Police Academy and hired to work as a probationary police officer for the Los Angeles Police Department. In May 2003, he laterally transferred back to the University as a probationary police officer. Ray excelled in the position, proceeding through the required training faster than any other probationary officer and receiving good or outstanding performance evaluations.
Several months after Ray transferred back to San Diego, Defendant Catlett began working for the University police department as a probationary dispatcher. She was friendly to and flirted with Ray, who was generally shy around women. Ray saw Catlett on a couple of occasions outside of work, including one evening when Catlett spent the night at his apartment. Although Catlett originally told Ray that she had just recently broken up with her boyfriend, she later indicated that that was not true and that she could not continue to date him, but hoped to remain friends. Ray agreed and the two remained friendly.
In early December 2003, Ray was asked by his supervisor about the nature of his relationship with Catlett; he responded that they were just friends.)! Catlett thereafter told Ray that "something happened" and she could no longer be friends with him. Ray was then approached by Defendant Johnson, a managerial officer of the University's police department, who appeared angry and told him to "stay the fuck away from [Catlett]" and not to talk to her.
Despite these events, Catlett continued to contact Ray; on one occasion when she spoke to him at work, Johnson approached him in a threatening manner, angrily said "I thought I told you to stay away from her" and reminded him that he was on probation. Ray spoke to another supervisor about Johnson's threats and harassment, but was told that since Johnson was a higher-level supervisor, Johnson had the ability to "cost him his job."
In early January 2004, Ray received another strong performance evaluation that recommended his retention. Later that month, Ray discovered that he had not been paid for 29.25 hours of overtime he had worked. In addition, Johnson and Catlett were reprimanded after it was discovered that they had gone out together on an evening they were scheduled to work, but had called in sick for their duty shifts.
On February 6, 2004, Ray's superiors showed him a performance evaluation that incorporated false accusations of poor performance and improper conduct by him toward a "specific department female employee" and told him that he was being terminated for poor performance and his relationship with Catlett. Although Ray objected, he was denied an opportunity to rebut the false statements and was told to leave without taking anything with him, including the negative performance evaluation or his personal belongings.
Ray immediately contacted his union and requested copies of the negative performance evaluation. On February 10, 2004, he learned that Catlett had made false accusations that he had been stalking her. In March, Ray discovered that a University police department internal investigation concluded he had engaged in sexual harassment, but he was denied access to the file from that investigation. He also found out that six of his prior performance evaluations had been removed from his personnel file. In response to Ray's repeated requests, the University finally allowed him to see materials in his file relating to alleged performance issues and the situation involving Catlett, including a completely false report written by Defendant Warren, in June 2004.
In October 2004 Ray filed a discrimination complaint with the Department of Fair Employment and Housing and received an immediate right to sue letter. The following month his attorney filed a Tort Claims Act claim with the Victim Compensation and Government Claims Board (the Board) on his behalf, based on his termination; the claim specified that the date of the incident was the preceding June 22 and that the claim was timely filed. The Board denied Ray's claim on May 12, 2005.
A week later, Ray filed this action, asserting in part claims for defamation per se, negligent misrepresentation and intentional infliction of emotional distress arising out of the false statements that he was incompetent and engaged in misconduct, and failure to provide earned wages and itemized wage statements and wrongful termination in violation of public policy. The superior court ultimately sustained the Defendants' demurrers without leave to amend as to all of Ray's claims, except the fourth cause of action for unpaid wages and wage statements, on the ground that Ray failed to comply with the Claims Act. Ray thereafter dismissed his remaining cause of action and the court entered a judgment of dismissal in the Defendants' favor. Ray appeals.
DISCUSSION
1. General Principles
Under the Claims Act, a plaintiff may not maintain an action for money or damages against a public entity unless he first presents a written claim to the public entity and the claim is rejected in whole or in part. (§§ 905, 905.2, 945.4.) The purpose of the Claims Act is "to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454-455.) A failure to timely present such a claim is fatal to any action by the plaintiff against the entity. (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1245.)
A claim relating to a personal injury cause of action must be presented within six months after accrual of the cause of action. (§ 911.3.) For the purposes of the claim presentation requirements, the cause of action accrues on the same date a similar action against a nonpublic entity would be deemed to accrue under the pertinent statute of limitations. (§ 901.) The claim must include certain information, including the "date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted[,]" and a "general description of the . . . injury, damage or loss incurred so far as it may be known at the time of presentation of the claim." (§ 910.) However, the Claims Act "should not be applied to snare the unwary where its purpose has been satisfied" and thus, a claim need not contain the detail and specificity required of a pleading, but need only "fairly describe" what the entity is alleged to have done wrong. (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446, quoting Elias v. San Bernardino County Flood Control Dist. (1977) 68 cal.App.3d 70, 74.)
Where a claimant attempted to comply with the Claims Act requirements but his claim is deficient in some particular, the law will nonetheless uphold the claim as valid if the claim "substantially complies with all of the statutory requirements" and is sufficient to fulfill the purpose of the statutory scheme, "namely, to give the public entity timely notice of the nature of the claim . . . ." (Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713, italics added.) The doctrine of substantial compliance will not apply to "cure [the] total omission of an essential element from the claim or remedy a plaintiff's failure to comply meaningfully with the statute." (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1083.)
2. Timeliness of Ray's Claim
Ray does not argue that his Claims Act claim was timely on its face, but instead contends that that claim substantially complied with the requirements of the Claims Act and thus was sufficient to provide notice of his claims against the University. However, the doctrine of substantial compliance applies only where a claim is timely filed, but is deficient in some other respect. (See, e.g., Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 39; Carlino v. Los Angeles County Flood Control Dist. (1992) 10 Cal.App.4th 1526, 1534.) We have found no authority, and Ray cites none, establishing that principles of substantial compliance can be applied in such a way as to render an untimely claim timely. (In fact, see City of San Jose v. Superior Court, supra, 12 Cal.3d at p. 456, quoting Hall v. City of Los Angeles (1941) 19 Cal. 2d 198, 202 [recognizing that "substantial compliance cannot be predicated upon no compliance"].) Because the allegations of Ray's first amended complaint establish that his causes of action accrued sometime in February 2005, more than six months prior to the date when he submitted his claim under the Claims Act, his timeliness argument must fail.
3. Board's Failure to Give Notice that the Claim was Untimely
A public entity must act within 45 days after a Claims Act claim is presented and give written notice of its action. (§§ 912.4, subd. (a), 913.) If the entity rejects the claim in whole or part, its notice must so specify and give notice that the claimant has six months from the date of the notice to file a civil action. (§ 913; see also § 945.6, subd. (a).) If, however, the claim is not timely filed, the entity may return it without further action and give notice that the claimant's only recourse is to apply for leave to present a late claim. (§ 911.3, subd. (a).) If the entity returns the claim without providing the required notice, however, it waives any defense based on the untimeliness of the claim in a subsequent action brought by the claimant. (§ 911.3, subd. (b).)
Ray argues that, in accordance with section 911.3, subdivision (a), the Board was required to give him notice that his claim was untimely and that its failure to do so constituted a waiver of any objection as to the timeliness of his Claims Act claim. The flaw in this argument, however, is that the warning language of section 911.3 is required only when the public entity returns a claim as late, without any further action being taken to investigate or to determine whether the claim should be granted or denied. Here, the Board reasonably relied on Ray's notice, which specified that the relevant event occurred in June 2004 and that the claim was filed within the six-month period for doing so, and rejected his claim on its merits rather than returning it without any further action taken. Accordingly, the waiver provision of section 911.3, subdivision (b), is inapplicable and the Defendants are not precluded from asserting untimeliness as a defense against Ray's action against them.
DISPOSITION
The judgment is affirmed. The Defendants are to recover their costs of appeal.