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Vicky Whetstone v. City of Lodi

March 28, 2012

VICKY WHETSTONE, PLAINTIFF AND APPELLANT,
v.
CITY OF LODI, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 39200900209947CUWMSTK)

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

Whetstone v. City of Lodi

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Vicky Whetstone appeals from a judgment dismissing her petition for writ of mandate against the City of Lodi (the City) following an order sustaining the City's demurrer without leave to amend. The writ petition sought an order directing the City to "pay full back pay and benefits" from May 2004 through January 2007, plus interest, attorney fees, and costs. The trial court sustained the City's demurrer on the ground that the petition failed to allege facts demonstrating or excusing compliance with the claims presentation requirements of the California Tort Claims Act (the Act) (Gov. Code, § 810 et seq.)*fn1 .

On appeal, Whetstone asserts: (1) her action for back pay and benefits is exempt from the claims presentation requirement of the Act; (2) her repeated demands for reinstatement and back pay constitute substantial compliance with the Act; and (3) the City is estopped from asserting the protection of the Act. As we shall explain, because Whetstone's writ petition sought money damages measured by the amount of wages she would have earned and benefits she would have accrued had she been allowed to work, rather than wages and benefits she actually earned, her claim is not exempt from the claims presentation requirement of the Act. She did not substantially comply with the Act. And Whetstone neither pled nor carried her burden on appeal of persuading us that the City should be estopped from asserting the Act's protection. We affirm the judgment.

BACKGROUND

In accordance with the standard of review, we recite the facts as they are alleged in Whetstone's writ petition. (See Department of Corporations v. Superior Court (2007) 153 Cal.App.4th 916, 922, fn. 2 ["standard of review for a ruling on a demurrer requires that we 'assume that the complaint's properly pleaded material allegations are true'"].)

The City hired Whetstone as a meter reader in August 1989. In February 2004, after sustaining unspecified injuries at work, Whetstone was examined by Dr. Ernest B. Miller at the City's request. Dr. Miller issued a report the following month stating that Whetstone was able to continue performing her duties as a meter reader.

In June 2004, Whetstone's primary treating physician, Dr. Donald Kobrin issued a report informing the City that Whetstone was permanently disabled with the following work restrictions: no lifting or carrying more than 20 pounds, no keyboarding, and no holding her neck in static positions. Based on this report, the City declined to allow her to return to work. The City informed Whetstone that if she did not file for disability retirement with the California Public Employees' Retirement System (CalPERS), the City would file the application on her behalf. Whetstone filed an application for disability retirement on June 27, 2004. In September 2004, Whetstone was again examined by Dr. Miller at the City's request. Dr. Miller again issued a report indicating that Whetstone was able to perform her duties as a meter reader.

In August 2006, CalPERS denied Whetstone's application for disability retirement. In October 2006, Whetstone sent the City a letter demanding that she be returned to her former job and compensated for back pay. The City did not respond. In December 2006, Whetstone sent a second letter to the City demanding that she be returned to work and compensated for back pay from May 2, 2004, forward. This time, the City responded and agreed to allow her to return to work. Whetstone resumed her duties as a meter reader on January 16, 2007. In August 2007, Whetstone sent a letter to the City's human resources director reiterating her demand for back pay from May 2, 2004, to January 15, 2007. The City did not respond.

In April 2009, Whetstone filed a petition for writ of mandate in the trial court seeking to compel the City to pay her "full back pay and benefits" between May 2, 2004, and January 15, 2007, plus interest, attorney fees, and costs, alleging the City constructively separated her from employment by placing her on unpaid status during this time period in violation of section 21153.*fn2 The City filed a demurrer on the ground the petition did not allege facts demonstrating or excusing compliance with the Act. In opposition to the demurrer, Whetstone argued her action against the City was exempted from the claims presentation requirement of the Act because it amounted to a claim by a public employee for wages (§ 905, subd. (c)) and benefits under a public retirement or pension system (§ 905, subd. (f)). Whetstone also argued that her repeated demands for back pay constituted substantial compliance with the Act and that the City was estopped from asserting non-compliance with the Act. The trial court sustained the demurrer with leave to amend, explaining that Whetstone did not plead the asserted exemptions.

In September 2009, Whetstone filed an amended petition for writ of mandate. The City again filed a demurrer. While the amended petition alleged exemption from compliance with the Act, the City argued the asserted exemptions did not apply to Whetstone because she "was not an employee of the City of Lodi during the period of time for which she seeks monetary damages." The trial court sustained the demurrer without leave to amend. Citing Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071 (Loehr), the trial court explained that section 905, subdivisions (c) and (f), "do not exempt [Whetstone] from claims presentation requirements under [the Act] because her claim is for a ...


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