Judge Mitchell L. Beckloff, Case 22STCP02172 2023-02-17 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP02172, Date: 2023-02-17 Tentative Ruling

Petitioner, Gabrielle Liggins, filed her petition to obtain an order requiring Respondent, the County of Los Angeles, “to retroactively re-classify her employment status and to restore her backpay, which wages she lawfully earned but was wrongfully and unlawfully denied as a direct result of respondent’s breach of their mandatory duty to comply with Civil Service Rule 13, which is a Los Angeles County ordinance . . . .” (Pet., ¶ 1.)

Respondent, the County of Los Angeles, demurs to the first amended petition (FAP).

The demurrer is sustained as to the first and second causes of action—the writ and derivative declaratory relief claims. Petitioner shall advise the court of how she might amend her writ claims to state a cause of action.

The third cause of action for a violation of Business and Professions Code section 17200 is stayed because it is a civil claim subject to reassignment to an independent calendar court after the court concludes the proceedings on Petitioner’s request for writ relief.

Petitioner worked for the County and retired on March 31, 1992. At that time, Petitioner had served the County for 34.66 years. (FAP ¶5.) About 14 years before her retirement, the County promoted Petitioner to the position of Nursing Director of the Department of Emergency Medicine for the Los Angeles County – USC Medical Center. (FAP ¶ 6.) Petitioner “was led to believe that she was appointed as a permanent, full–time director of nursing with the Department of Emergency Medicine for the County of Los Angeles.” (FAP ¶ 7.)

Petitioner contends the County’s personnel department misclassified her as an Assistant Director of Nursing, a temporary, secondary/hourly as needed position. (FAP ¶ 7.) As a result of the County’s alleged misclassification, Petitioner received a salary that was significantly less than that of a full-time Director of Nursing. The reduced salary also served as the basis for “Petitioner’s retirement income/pension benefit. . . .” (FAP ¶ 8.)

“In or about 2018, Petitioner learned that some of her peers who were equally and/or less qualified than her, and who were working in comparable, lateral positions within the county, had retired with much greater retirement income than hers . . . .” (FAP ¶ 9.)

Through a February 13, 2018 letter, Petitioner brought the retirement income discrepancy to the attention of the County’s Board of Supervisors and personnel department. (FAP ¶ 9.) The County’s Director of Personnel responded by letter dated June 18, 2018: “DHR reviewed your services in collaboration with the department of health services and the auditor–controller and found that (Petitioner was) accurately compensated in accordance with salary schedules and positions held.” (FAP ¶ 10.)

After further discussion by the parties, Petitioner initiated this proceeding more than four years later on June 8, 2022.

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result, an order sustaining a demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on the plaintiff to show how the complaint might be amended to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

The County raises three issues on demurrer. First, the County contends Petitioner failed to comply with the Government Claims Act. Second, the County argues Petitioner’s claim is barred by the statute of limitations. Finally, the County asserts Petitioner has failed to state a claim.

The County argues Petitioner’s cause of action for a traditional writ of mandate fails because Petitioner did not comply with the Government Claims Act, and her claim is barred by the statute of limitations.[1]

“Under the Government Claims Act, ‘no suit for “money or damages” may be brought against a public entity until a written claim has been presented to the entity and the claim either has been acted upon or is deemed to have been rejected.” (Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794, 798 [citing Government Code, §§ 905, 945.5].) “[T]he claim presentation requirement applies to all forms of monetary demands, regardless of the theory of the action.” (Ibid.) “The failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity.” (Ibid.)

While “[c]laims by public employees for fees, salaries, wages, mileage, or other expenses and allowances” are generally exempted from claim presentation requirements (Gov. Code, § 905, subd. (c)), local governments are authorized to establish claim procedures for exempted claims, provided the adopted procedures are consistent with those of the Government Claim Act. (Gov. Code, § 935, subd. (a)).

The County has established a claims presentation requirement for claims exempted by Government Code section 905. (Los Angeles County Code [LACC] section 4.04.010. (County RJN, Ex. 1.) A suit for money or damages may not be brought against the County unless “a written claim therefore has been filed . . . .” (LACC, § 4.04.020.)

Petitioner disputes the County’s position she was required to submit a claim with the County prior to filing this proceeding. She argues her monetary damages—backpay and other pension benefits—are incidental to the relief sought. (See Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 643. [“Those actions which seek injunctive or declaratory relief and certain actions in mandamus, such as appellant's action herein, and where money is an incident thereto, are exempted from the [Tort Claims Act].”)[2]

More recent authorities have held otherwise.[3] (See California School Employee Assn. v. Governing Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 590 [CSEA]; Tapia v. County of San Bernardino (1994) 29 Cal.App.4th 375, 387; see also TrafficSchoolOnline, Inc. v. Clarke (2003) 112 Cal.App.4th 736, 742.) CSEA noted:

“Government Code section 935 authorized local public entities to require notice for claims excepted under Government Code section 905. The statutory purpose underlying the notice provisions is furthered whether a claim for monetary relief is part of an equitable action or stands on its own. To carve out a judicial exception for incidental damages would frustrate the legislative intent underlying Government Code section 935.” (CSEA, supra, 124 Cal.App.4th at 592-593.)

To characterize Petitioner’s monetary damages claim as incidental to the writ relief she seeks is to ignore the substance of this proceeding. Petitioner retired in March 1992. (FAP ¶ 5.) She now seeks to “compel a retroactive increase in petitioner’s retirement income/pension benefit correlative to her anticipated corrected status” to the date she began to collect her retirement benefits—approximately 30 years ago. (FAP ¶ 2.) In fact, Petitioner claims she “has lost salary which she otherwise lawfully earned and employee benefits (including commensurate retirement benefits) in an amount in excess of $1 million.” (FAP ¶ 17.) While writ relief may provide her with a legal theory to proceed against the County, the only purpose of reclassification of a retired worker is to obtain monetary relief—backpay and an increased retirement benefit. The monetary damages are not incidental to her claim—they are her claim.

Petitioner also argues even if the Government Claims Act applies to her claims, she “substantially complied” with the County’s notice requirements through correspondence with the County in 2018, 2021 and 2022. (FAP ¶¶ 10-13.) Petitioner fails to allege the correspondence satisfies the requirements of Government Code section 910 as required by LACC section 4.04.050. (The correspondence is also not attached to the FAP.) Moreover, Petitioner fails to allege compliance with the LACC’s timing requirements. (LACC, § 4.04.030.) Petitioner’s 2018 correspondence would be well outside of the accrual of her cause of action.

Petitioner’s claim also appears barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338. Petitioner acknowledges the statute of limitations “is three years from the date of the most recent violation.” (Opposition 5:13.) Petitioner does not allege, however, “the most recent violation.” (Opposition 5:13.)

The County argues Petitioner’s claim accrued in March 1992 when she retired and began receiving her retirement benefits. Based on the FAP, the County’s position is well taken.

Petitioner argues tolling and delayed discovery to support the timeliness of her claim. Petitioner’s position is unpersuasive. Petitioner does not make clear what precluded her from discovering her claim when she began to receive her retirement benefits in 1992.[4] Nothing prevented Petitioner from investigating her benefit payment in 1992 or thereafter; she had the ability to investigate, had complete information about her employment (duties, compensation, years of service), and access to information for years prior to initiating this action—she retired and began receiving her retirement benefits over 30 years ago. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)

Petitioner also admits she became aware of facts by February 13, 2018 that equally or less qualified peers were receiving greater retirement benefits—such facts put her on notice of her claim. (FAP ¶ 9.) Plaintiff understood she was receiving less retirement benefit than others similarly situated; Plaintiff waited over four years from that time to file this proceeding. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Petitioner’s knowledge of the law (Civil Service Rule 13) does not inform on when she was put on inquiry notice of her claim. (Ibid.) In fact, even after Petitioner discovered her injury, she failed to present her claim to the County within the one-year period provided in Government Code section 910.

The County also contends Petitioner’s delayed discovery and tolling allegations fail based on the facts alleged. The court agrees.

Petitioner alleges she first discovered her injury on February 23, 2022. At that time, the County’s human resources department provided her with a copy of Civil Service Rule 13. (FAP ¶¶ 13-14.) Petitioner, however, knew prior to her letter of February 13, 2018 that “some of her peers who were equally and/or less qualified than her, and who were working in comparable, lateral positions within the county, had retired with much greater retirement income than hers, she brought this discrepancy to the attention of the Los Angeles County Board of Supervisors and department personnel in a letter dated February 13, 2018.” (FAP ¶ 9.) Such facts were sufficient to put Petitioner on notice of her claim against the County. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111. [“Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.”])

Plaintiff did not initiate this proceeding until more than four years later, June 8, 2022.

Petitioner also suggest her claims were tolled from February 13, 2018 through June 18, 2018, while the County’s Board of Supervisors considered her claim. (See Dillon v. Board of Pension Comm'rs (1941) 18 Cal.2d 427, 430-431.) The court is unpersuaded. Petitioner cites no authority to support her position she was required to complete some review process (i.e., exhaust her remedies) with the Board of Supervisors before filing a proceeding in court.[5] That is, Petitioner has provided no facts suggesting she was “legally prevented from taking action to protect [her] rights” while the County’s Board of Supervisors considered her claim. (Ibid.)

Petitioner’s claim based on Business and Professions Code section 17200 is stayed pending assignment to an independent calendar court. The claim is separate and distinct from Petitioner’s writ and declaratory relief claims.

For the foregoing reasons, the court will sustain the demurrer as to the first and second causes of action.

[1] For these same reasons, the derivative declaratory relief claim fails.

[2] In Harris v. State Personnel Bd., the Court concluded “[b]ack salary was clearly relief incidental to appellant's request for an order of reinstatement to his employment.” (Ibid.)

[3] Although cited by the County in its demurrer, Petitioner elected not to acknowledge or distinguish the cases.

[4] Petitioner held the position for fourteen years. She received compensation during that time. The County compensates according to salary schedules. (FAP ¶ 10.)

[5] Petitioner’s argument Emergency Rule 9 tolled the statute of limitations by an additional 178 days during the COVID-19 pandemic is also unpersuasive given the statute of limitations had already run by the effective date of Emergency Rule 9.