Judge: Joseph Lipner, Case: 23STCV16096, Date: 2025-02-27 Tentative Ruling

Case Number: 23STCV16096    Hearing Date: February 27, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Los Angeles County Office of Education (“Defendant”) moves for judgment on the pleadings as to fifth and sixth claims in the Complaint filed by Plaintiff Florene Avognon (“Plaintiff”)

The Court DENIES the motion.

Background

            This is an employment case.

            Plaintiff was employed by Defendant as a teacher. On a number of occasions, Plaintiff reported various discrimination, equity, and competence issues in Defendant’s school system. Plaintiff alleges that Defendant failed to select her for certain positions, and eventually demoted her, based on her race and in retaliation for her reports.

            On June 6, 2023, Plaintiff mailed her government tort claim to Defendant. (Complaint ¶ 36, Ex. 3.)

            Plaintiff filed this action on July 11, 2023, raising claims for (1) discrimination under FEHA; (2) failure to prevent discrimination; (3) retaliation under FEHA; (4) failure to prevent discrimination; (5) retaliation in violation of Labor Code, section 1102.5; and (6) violation of the Reporting by School Employees of Improper Governmental Activities Act, Education Code, sections 44110, et seq.

            On July 14, 2023, Plaintiff served the Complaint and summons on Defendant.

            On July 18, 2023, Defendant rejected Plaintiff’s claim.

            On August 28, 2023, Defendant filed its Answer.

            On January 24, 2025, Defendant filed this motion for judgment on the pleadings. Plaintiff filed an opposition and Defendant filed a reply.

Evidentiary Objections

The Court overrules Defendant’s evidentiary objections, but notes that it does not consider materials outside of the pleadings and judicially noticeable matters for the purpose of evaluating the motion for judgment on the pleadings.

Request for Judicial Notice

The Court grants Defendant’s request for judicial notice.

Discussion

“Except as provided in Sections 946.4 and 946.6, 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 in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division 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[.]”

“The board shall act on a claim in the manner provided in Section 912.6, 912.7, or 912.8 within 45 days after the claim has been presented.” (Gov. Code, § 912.4, subd. (a).) “If the board fails or refuses to act on a claim within the time prescribed by this section, the claim shall be deemed to have been rejected by the board on the last day of the period within which the board was required to act upon the claim.” (Gov. Code, § 912.4, subd. (c).)

Here, Plaintiff filed the Complaint 35 days after mailing her government tort claim and served Defendant 38 days after mailing the claim. Defendant rejected Plaintiff’s claim four days after it was served (42 days after the claim was mailed). Defendant then answered roughly one month later.

“This court has held that compliance with the claim statute is not jurisdictional with respect to the power of a court to give judgment against the governmental agency where no claim was filed. (Farrell v. Placer County (1944) 23 Cal.2d 624, 631.) “Although it has been repeatedly held that compliance with the appropriate claim statute is mandatory and an essential requisite to plaintiff's cause of action, nevertheless the time element with respect to the filing of the claim is essentially procedural in nature [citation] and is analogous to a statute of limitation.” (Id. at p. 630.)

“In such light, it is clear that the filing of an action after the submission of a proper claim, assuming it to have been premature because of a failure to wait until there had been a rejection of the claim, should not result in a disposition of the matter which has no relation to its merits. In the present case, the complaint was not filed too late but, rather, several days before the rejection of the claim. At the time the answer of the city was filed, the city had received every benefit which a provision for rejection prior to suit is intended to serve.” (Taylor v. City of Los Angeles (1960) 180 Cal.App.2d 255, 263.)

This case aligns closely to Taylor. Plaintiff filed and served her Complaint after submitting her tort claim, and mere days before it was rejected. Defendant has therefore received the benefit of the statute. Although Defendant argues that Plaintiff could serve discovery 10 days after the service of the summons, Defendant rejected the claim before the 10 day mark, and the 45-day period would have elapsed before the 10-day period in any event, as the summons was served on Day 38. 

Defendant attempts to distinguish Taylor because there defendant’s answer contained confusing allegations which may create the impression in opposing counsel that the claim requirement had been satisfied. But the court only noted that fact as an additional concern with the prospect of dismissing the case on the basis of the claim requirement – not as the reason why the rejection created substantial compliance. (See Taylor, supra, 180 Cal.App.2d at pp. 263-264.)

Defendant argues that “the defect continues to exist to this day, over 1.5 years later.” (Reply at p. 5:16.) But it is unclear what Defendant means by this, since Defendant does not contend that Plaintiff has still not submitted her claim. Rather, Defendant contends that Plaintiff’s suit is fatally defective because it was served four days before Defendant rejected Plaintiff’s claim, instead of afterward.

Plaintiff has substantially complied with the government claim statute. The Court therefore denies Defendant’s motion.