California Court of Appeals, Fourth District, First Division
Order Filed 3/7/14
APPEAL from an order of the Superior Court of San Diego County, No. 37-2012-00098644-CU-PT-CTL William R. Nevitt, Jr., Judge.
Elaine L. Heine for Plaintiffs and Appellants.
Thomas E. Montgomery, County Counsel, and David G. Axtmann, Deputy County Counsel, for Defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
It is ordered that the opinion filed herein on February 14, 2014 be modified as follows:
On page 21, after the final sentence ending with "costs on appeal, " add as footnote 5 the following footnote:
5 In her petition for a rehearing, J.J., appearing through her guardian ad litem, Ja.J., for the first time contends that Government Code section 905 applies to her case. We express no opinion on this issue, however; as a court of review, we will not "'submit to piecemeal argument and will not consider on petition for rehearing questions not previously raised'" absent extraordinary circumstances, which are not present in the instant case. (See Epperson v. Rosemond (1950) 100 Cal.App.2d 344, 348; see also Sanders v. Howard Park Co. (1948) 86 Cal.App.2d 721, 723 [noting an "argument based upon a point not mentioned in the original brief of the petitioner will be of no avail on [petitioner's] demand for a rehearing"].)
The petition for rehearing filed on February 26, 2014 has been considered by Justices Benke, McIntyre and Irion and is denied.
THERE IS NO CHANGE IN JUDGMENT
BENKE, Acting P. J.
Plaintiff and appellant J.J., appearing through her guardian ad litem, Ja.J., appeals from an order denying her petition brought under Government Code section 946.6 (petition) for relief from the requirement in section 945.4 that she timely file a written claim against the County of San Diego (County) before she can maintain an action against the County for money or damages.
J.J. contends the court erred in denying her petition because her cause of action against the County accrued in March 2012, after her legal counsel obtained a San Diego Police Department "Investigator's Follow-up Report" dated January 14, 2011 (January 2011 report). J.J. contends this report for the first time showed the County's negligence was the cause of her personal injury after her foster father, R.L., sexually molested her while she was living in foster care in the family home of R.L. between July 17, 2009 and September 18, 2009. Because she filed her claim with the County in May 2012, J.J. contends it was timely presented. J.J. alternatively contends that the County is estopped from asserting the alleged untimeliness of her claim and that her alleged late filing of the claim was the result of excusable neglect.
The County contends that J.J.'s personal injury cause of action accrued when she was molested by R.L. in 2009 because she knew then it was wrong or, at the latest, in early March 2011 when J.J.'s parents (after reunification) attended and spoke at R.L.'s sentencing. J.J. in December 2010 had disclosed the molestation to her parents and County social workers, which led to a police investigation and ultimately to R.L. pleading guilty to one count of committing a lewd and lascivious act on a minor under the age of 14, in violation of Penal Code section 288, subdivision (a). Because J.J. neither filed her claim within six months from the accrual of her cause of action nor filed her petition to seek relief from her late claim within one year from the accrual of her cause of action, the County contends the court properly denied the petition. The County also contends neither estoppel nor excusable neglect apply in this case.
As we explain, because J.J.'s cause of action accrued at the latest in March 2011 and because J.J. did not submit a claim to the County until May 2012-more than a year later-we are constrained to conclude the court properly denied her petition, inasmuch as we also conclude her claim was not timely as a result of the principles of estoppel or excusable neglect. Affirmed.
A. Guiding Principles
"The Government Claims Act (§ 810 et seq.) 'establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. (§ 945.4.)' (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) '[T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action....' [Citation.] 'The policy underlying the claims presentation requirements is to afford prompt notice to public entities. This permits early investigation and evaluation of the claim and informed fiscal planning in light of prospective liabilities.' (Ibid.)
"Claims for personal injury must be presented not later than six months after the accrual of the cause of action.... (§ 911.2, subd. (a).) Timely claim presentation is not merely a procedural requirement, but is a condition precedent to the claimant's ability to maintain an action against the public entity. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.) 'Only after the public entity's board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against the public entity.' (Ibid.)
"The failure to timely present a claim to the public entity bars the claimant from filing a lawsuit against that public entity. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.) Moreover, because the purpose of the claims is not 'to prevent surprise [but rather] 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... [citations][, ]... [i]t is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge-standing alone-constitutes ...