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E. M v. Los Angeles Unified

April 20, 2011

E. M., PLAINTIFF AND APPELLANT,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from an order of the Superior Court of Los Angeles County, Richard Adler, Judge. (Los Angeles County Super. Ct. No. LC084539)

The opinion of the court was delivered by: Klein, P. J.

CERTIFIED FOR PUBLICATION

Reversed and remanded with directions.

Plaintiff and appellant E. M. (plaintiff), who was sexually molested by a basketball coach, appeals an order dismissing her tort action against defendants and respondents Los Angeles Unified School District (the District), and Andre LaBeach (LaBeach), Andre Chevalier and Michelle Chevalier in their capacity as employees and/or agents of the District (sometimes collectively referred to as the District).

The essential issue presented is whether E. M. duly filed a government claim prior to filing suit against the District.

We conclude plaintiff satisfied the claim presentation requirement of the Tort Claims Act. (Gov. Code, § 900 et seq., § 945.4.)*fn1 Because plaintiff was a minor, her application for leave to file a late claim, filed less than one year after accrual of the cause of action, is deemed timely. (§ 911.4, subd. (b); § 911.6, subd. (b)(2).) Further, the subsequent lawsuit, filed within six months of the District's rejection of the late claim application, likewise was timely. (§ 945.6, subd. (a)(1).)

Accordingly, we reverse and remand with directions to reinstate the action.

FACTUAL AND PROCEDURAL BACKGROUND

1. Criminal proceedings.

On June 2, 2008, LaBeach, a basketball coach, pled "guilty/no contest" to having unlawful sexual intercourse with the plaintiff, a minor (born 10/1/1990), and was placed on felony probation for three years.

2. Plaintiff files a government tort claim against the District nine months after the last sexual encounter with LaBeach; the District denies the claim as untimely.

On June 11, 2008, plaintiff filed a claim (§ 910) with the District seeking damages of $5.5 million from the District based on plaintiff's molestation by LaBeach.

The claim stated in pertinent part: The last sexual encounter between LaBeach and plaintiff occurred nine months earlier, in or around September 2007, while plaintiff was a senior at Chatsworth High School. LaBeach was a coach for Blessed By God Sports (BBG), a travelling basketball team owned by Andre Chevalier, who was Dean of Students at Cleveland High School. In the summer of 2006, LaBeach confirmed to Andre Chevalier that LaBeach and plaintiff were engaged in a sexual relationship. Andre Chevalier told his wife, Michelle Chevalier, of the relationship. On March 25, 2008, Michelle Chevalier notified plaintiff's mother. This claim followed. Thus, the claim was filed 78 days after plaintiff's mother learned of the molestation.

On June 26, 2008, the District returned the claim to plaintiff on the ground "it was not presented within six months after the event or occurrence as required by law. See Sections 901 and 911.2 of the Government Code. Because your correspondence was not presented within the time allowed by law, no action was taken on the claim. [¶] Your only recourse at this time is to apply, without delay, to [the District] for Leave to Present a Late Claim. See Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government Code. Under some circumstances, leave to present a late claim will be granted. See Section 911.6 of the Government Code."

3. Plaintiff files an application for leave to present a late claim less than one year after her last sexual contact with LaBeach, seeking mandatory relief; the District rejects the application and advises plaintiff she has six months to file a petition for relief from the claims statute.

On August 4, 2008, plaintiff filed an application for leave to present a late claim. (§§ 911.4, 911.6.) As required by section 911.4*fn2 , the late claim application set forth the following reasons for the delay in presenting the claim: "In the realm of amateur basketball, the traveling team you play for is an important factor in determining whether a student-athlete obtains an athletic scholarship. Mr. LaBeach was a coach for BBG that had control over [plaintiff's] playing time and communications with colleges interested in offering her an athletic scholarship. College tuition, housing, books and food at a four year university can run into the hundreds of thousands. A scholarship was the only way [plaintiff] would be able to afford a college education. [¶] Mr. LaBeach began to make sexual advances towards [plaintiff]. In March 2006, LaBeach and [plaintiff] had sexual intercourse. Mr. LaBeach ordered [plaintiff] not to tell anyone. Based on his control over her play time, his ability to assist in her getting an athletic scholarship, her shame about what happened, and the prospect of no one believing her, [plaintiff] took this threat seriously and did not disclose this illegal relationship."

The application for leave to present a late claim specifically invoked mandatory relief pursuant to section 911.6, subdivision (b)(2), which states: "(b) The board shall grant the application where one or more of the following is applicable: [¶] . . . [¶] (2) The person who sustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim." (Italics added.)

The late claim application stated: "[Plaintiff] was born October 1, 1990. She will not be 18 until October 1, 2008. The illegal sexual relationship with Mr. LaBeach . . . last occurred in September, 2007. . . . [¶] . . . In the instant case, the one-year accrual date is September 2008 . . . . With this in mind, [the District] must grant [plaintiff's] application for leave to file" the late claim application which plaintiff submitted on August 4, 2008.

On September 25, 2008, the District notified plaintiff's counsel that her application for leave to present a late claim was rejected by the Board of Education at a meeting on September 9, 2008. The notification included the advisement required by section 911.8, to wit, "If you wish to file a court action on this matter, you must first petition the appropriate court for an order relieving you from the provisions of Government Code Section 945.4 (claims presentation requirement). See Government Code Section 946.6. Such petition must be filed with the court within six (6) months from the date your application for leave to present a late claim was denied."

4. Plaintiff's superior court complaint for damages.

On February 25, 2009, five months after the District rejected the application for leave to present a late claim, plaintiff commenced this tort action against the District in the superior court. The named defendants included the District, Andre Chevalier, Michelle Chevalier and LaBeach.

5. Plaintiff's petition in the superior court for relief from the claims statutes.

Two months after plaintiff filed suit, she filed a petition in the same action seeking relief from the claims statutes. The petition was filed April 21, 2009, seven months after the District rejected plaintiff's late claim application. The petition was brought pursuant to the relief provision of section 946.6, "and ...


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