Filed 3/7/14 (unmodified opn. attached) CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
J.J., a Minor, etc., et al., D062594
Plaintiffs and Appellants, (Super. Ct. No. 37-2012-00098644- CU-PT-CTL) v. ORDER MODIFYING OPINION COUNTY OF SAN DIEGO, AND DENYING PETITION FOR REHEARING Defendant and Respondent. [NO CHANGE IN JUDGMENT]
THE COURT
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.
Copies to: All parties
2 Filed 2/14/14 (unmodified version) CERTIFIED FOR PUBLICATION
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2012-00098644- CU-PT-CTL) COUNTY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, William R.
Nevitt, Jr., Judge. Affirmed.
Elaine L. Heine for Plaintiffs and Appellants.
Thomas E. Montgomery, County Counsel, and David G. Axtmann, Deputy
County Counsel, for Defendant and Respondent.
Plaintiff and appellant J.J., appearing through her guardian ad litem, Ja.J., appeals
from an order denying her petition brought under Government Code1 section 946.6
(petition) for relief from the requirement in section 945.4 that she timely file a written
1 Unless otherwise noted, all statutory references are to the Government Code. 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
2 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.
DISCUSSION
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
3 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 neither substantial compliance nor basis for
estoppel.' (Id. at p. 455.)" (California Restaurant Management Systems v. City of San
Diego (2011) 195 Cal.App.4th 1581, 1591-1592.)
Accordingly, a claim for personal injuries—such as in the instant case—must be
filed with the public entity (i.e., County) no later than six months after the accrual of the
cause of action. (§ 911.2, subd. (a).) However, "if the injured party fails to file a timely
claim, a written application may be made to the public entity for leave to present such
claim. (Gov. Code, § 911.4, subd. (a).) If the public entity denies the application,
Government Code section 946.6 authorizes the injured party to petition the court for
relief from the claim requirements." (Munoz v. State of California (1995) 33 Cal.App.4th
1767, 1777 (Munoz), fn. omitted.)
4 Subdivision (a) of section 946.6 states in relevant part that "[i]f an application for
leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a
petition may be made to the court for an order relieving the petitioner from Section 945.4
[i.e., necessity of written claim]. The proper court for filing the petition is a superior
court that would be a proper court for the trial of an action on the cause of action to
which the claim relates. If the petition is filed in a court which is not a proper court for
the determination of the matter, the court, on motion of any party, shall transfer the
proceeding to a proper court." Subdivision (b)(1) of section 946.6 requires the petitioner
show among other things that the "application was made to the board under Section 911.4
and was denied or deemed denied." Under subdivision (c) of section 946.6, a court "shall
relieve the petitioner from Section 945.4 if the court finds that the application to the
board under Section 911.4 was made within a reasonable time not to exceed that
specified in subdivision (b) of Section 911.4," among other requirements.
Subdivision (a) of section 911.4 provides that when a claim required by section
911.2 is not presented within six months after the accrual of the cause of action, a party
may make a "written application" to the public entity for leave to present that claim.
Subdivision (b) of section 911.4 provides that such application shall be presented to the
public entity "within a reasonable time not to exceed one year after the accrual of the
cause of action . . . ." (Italics added.) Subdivision (c)(1) of that statute provides that in
computing the one-year period, the "time during which the person who sustained the
alleged injury, damage, or loss as a minor shall be counted, but the time during which he
or she is mentally incapacitated and does not have a guardian or conservator of his or her
5 person shall not be counted." (Italics added; see also John R. v. Oakland Unified School
Dist. (1989) 48 Cal.3d 438, 444, fn. 3 (John R.) [noting that while a statute of limitations
generally "does not run during the time a potential plaintiff is a minor, and such a party
accordingly has up to a year after attaining the age of majority to bring suit on a cause of
action for personal injury," "[t]his respite does not apply to a claim against a public
entity," as expressly stated in § 911.4, subd. (b)].)
"The determination of the trial court in granting or denying a petition for relief
under Government Code section 946.6 will not be disturbed on appeal except for an
abuse of discretion. Abuse of discretion is shown where uncontradicted evidence or
affidavits of the plaintiff establish adequate cause for relief. (Ebersol v. Cowan (1983) 35
Cal.3d 427, 435.)
"Government Code section 946.6 is a remedial statute intended to provide relief
from technical rules which otherwise provide a trap for the unwary. The remedial policy
underlying the statute is that wherever possible cases should be heard on their merits.
Thus, a denial of such relief by the trial court is examined more rigorously than where
relief is granted and any doubts which may exist should be resolved in favor of the
application. (Bettencourt v. Los Rios Community College Dist. [(1986)] 42 Cal.3d [270,]
275-276; Drummond v. County of Fresno [(1987)] 193 Cal.App.3d [1406,] 1410-1411.)
"Relief from the six-month limit is granted under the same showing as is required
for relief under Code of Civil Procedure section 473. (Viles v. State of California (1967)
66 Cal.2d 24, 29 [construing predecessor statutes].) It is the well-recognized policy of
the law to liberally construe remedial statutes designed to protect persons within their
6 purview, and the modern trend of judicial decisions favors granting relief unless
absolutely forbidden by statute." (Munoz, supra, 33 Cal.App.4th at p. 1778.)
However, "[f]iling a late-claim application within one year after the accrual of a
cause of action is a jurisdictional prerequisite to a claim-relief petition. (Santee v. Santa
Clara County Office of Education [(1990)] 220 Cal.App.3d [702,] 713.) When the
underlying application to file a late claim is filed more than one year after the accrual of
the cause of action, the court is without jurisdiction to grant relief under Government
Code section 946.6. (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187
Cal.App.3d 480, 488.)" (Munoz, supra, 33 Cal.App.4th at p. 1779; see also § 911.4,
subd. (b).)
The primary issue on appeal is when J.J.'s cause of action accrued. Although J.J.
filed the petition seeking relief from the requirement in section 945.4 that she timely file
a written claim against the County, she nonetheless maintains that her personal injury
cause of action did not accrue until March 2012 when she first obtained the January 2011
report. As such, there would have been no reason for J.J. to file the petition because, if
correct, her claim would have been presented to the County "not later than six months"
after its accrual for purposes of section 911.2, inasmuch as she filed her claim with the
County in May 2012.
If, however, her cause of action accrued in March 2011 at the latest, when her
parents both appeared and spoke at the sentencing of R.L. after he pled guilty to
molesting J.J., then her claim against the County would have been untimely both for
purposes of sections 911.2 and 946.6 because, as noted, the latter statute requires that a
7 petition be filed with the public entity (i.e., the County) not more than one year after it
accrued. We thus turn to the overarching issue in this appeal regarding when J.J.'s cause
of action against the County accrued.
B. Accrual of Personal Injury Cause of Action
J.J.'s May 2012 claim filed with the County states the County is potentially liable
in negligence for the placement, lack of supervision, and/or failure to investigate/prevent
sexual abuse in the foster home of R.L.
"For the purpose of computing the time limits prescribed by Sections 911.2, 911.4,
945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is
the date upon which the cause of action would be deemed to have accrued within the
meaning of the statute of limitations which would be applicable thereto if there were no
requirement that a claim be presented to and be acted upon by the public entity before an
action could be commenced thereon." (§ 901; see also John R., supra, 48 Cal.3d at p.
444, fn. 3.)
"A civil cause of action for child molestation generally accrues at the time of the
molestation." (Doe v. Bakersfield City School Dist. (2006) 136 Cal.App.4th 556, 567, fn.
2.) "That date may be postponed under the delayed discovery doctrine. [Citation.]
Under this doctrine, a cause of action does not accrue until the plaintiff discovers, or has
reason to discover, the cause of action. [Citation.] A plaintiff has reason to discover a
cause of action when he or she has reason to at least suspect a factual basis for its
elements. Suspicion of one or more of the elements, coupled with knowledge of any
remaining elements, will generally trigger the applicable limitations period. [Citation.]
8 This refers to the 'generic' elements of wrongdoing, causation, and harm and does not
require a hypertechnical approach. Instead, 'we look to whether the plaintiffs have reason
to at least suspect that a type of wrongdoing has injured them.' [Citation.]" (S.M. v. Los
Angeles Unified School Dist. (2010) 184 Cal.App.4th 712, 717 (S.M.).)
S.M. provides guidance on this issue. There, the minor plaintiff sued a public
entity (i.e., the district) for negligent supervision of a teacher after the plaintiff was
repeatedly fondled by her fourth grade teacher during the school year. The plaintiff
testified that she knew what her teacher had done was "wrong" and that his actions made
her "scared and nervous." (S.M., supra, 184 Cal.App.4th at p. 715.) As a result of this
testimony, the district contended the plaintiff's negligence cause of action accrued at the
latest on the last day of school in June 2003 because the plaintiff had no further contact
with the teacher from that day forward. As a result, the district contended the plaintiff's
claim was barred because she did not file a claim with the district until nearly two years
later. (Id. at p. 717.)
The plaintiff contended her cause of action did not accrue until the day the teacher
was arrested (i.e., in mid-October 2004), when the plaintiff's mother that same day spoke
to her and learned for the first time about the sexual abuse by the teacher. The trial court
disagreed and entered judgment for the district. (S.M., supra, 184 Cal.App.4th at p. 716.)
The Court of Appeal affirmed.
In so doing, the court in S.M. distinguished the facts of Curtis T. v. County of Los
Angeles (2004) 123 Cal.App.4th 1405 (Curtis T.) from its case. Briefly, in Curtis T., the
minor plaintiff was placed in foster care at the age of five where he lived for about three
9 years until October 1999, when he was returned to his mother. In March 2003, when the
plaintiff was 12, he filed a claim with the defendant county alleging that he was sexually
molested by another child while living in the foster home. When the defendant denied
the claim as untimely, the plaintiff sued, alleging that his foster parent knew about the
molestation but did not stop it and that his mother did not learn about the molestation
until September 2002. The trial court in Curtis T. sustained the defendant's demurrer
without leave to amend. (Id. at p. 1409.)
In reversing, the Curtis T. court held the plaintiff should have been given leave to
amend his complaint that "given his youth, ignorance, and inexperience, as well as his
foster parent's alleged complicity in the abuse—that he lacked a real awareness, until his
mother's discovery of the alleged molestation, that what happened to him between the
ages of five and eight was wrong." (Curtis T., supra, 123 Cal.App.4th at pp. 1422-1423.)
The S.M. court concluded that Curtis T. "did not hold that a minor's cause of
action for sex abuse accrues only when a parent learns what happened. Instead, it
adopted a circumstance-heavy approach, pegged to the unique facts of each case, and
held that, given the right circumstances, a minor suing for sexual abuse is entitled to
show that the cause of action did not accrue until a parent learned what happened or some
other date after the abuse occurred." (S.M., supra, 184 Cal.App.4th at pp. 719-720.)
The court in S.M. also discussed the case of V.C. v. Los Angeles Unified School
District (2006) 139 Cal.App.4th 499 (V.C.), which had applied Curtis T. to sustain
without leave to amend the district's demurrer to the minor's complaint. There, the
plaintiff, while between the ages of 11 and 13, was allegedly molested by her teacher.
10 Although the record included a psychological assessment that cast doubt on whether the
minor plaintiff truly appreciated what the teacher had done to her, "it also showed that
plaintiff's mother had long harbored suspicions that the teacher was molesting her
daughter. As a result, the plaintiff could not plead facts supporting a delayed discovery
theory." (S.M., supra, 184 Cal.App.4th at p. 720, citing V.C., at pp. 504, 515-516.)
Based on Curtis T. and V.C., the court in S.M. concluded that the plaintiff had not
proffered any evidence to support the application of the delayed discovery rule in her
case and the "factors that might have prevented [the minor plaintiff] from becoming
aware she had been wronged, or about her mother's discovery of what had happened."
(S.M., supra, 184 Cal.App.4th at p. 720.) Because the minor knew the "generic elements
of her claim—that she had been injured by [her teacher's] wrongdoing" and because she
relied "solely on the mistaken belief that, as a matter of law, it was her mother's
knowledge that counted, not hers," the court affirmed the grant of summary judgment in
favor of the district. (Ibid.)
Here, J.J. concedes that she was aware of the fact that she had been sexually
molested by her foster father in 2009. Moreover, the record shows that in December
2010, J.J. disclosed the details of the molestation both to her parents and to County social
workers. As a result of that disclosure, an investigation was launched and J.J. was
interviewed at a children's hospital in early January 2011; R.L. ended up 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). In addition, the record shows that
both of J.J.'s parents attended and spoke at R.L.'s sentencing in early March 2011.
11 Even if we assume there was evidence in the record showing J.J. at the time of the
molestations (i.e., between July & September 2009) lacked a real awareness that R.L.'s
sexual abuse was "wrong" (see Curtis T., supra, 123 Cal.App.4th at p. 1423) and thus
that she had been "injured" (see Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398,
406 (Leaf) [applying delayed discovery rule]), and even if we conclude the delayed
discovery rule applies to her situation, we nonetheless are constrained to conclude that
J.J.'s cause of action for personal injuries accrued at the latest in early March 2011, when
her parents appeared and spoke at the sentencing hearing of R.L. (See Curtis T., supra,
123 Cal.App.4th at pp. 1422-1423.) At that point in time, J.J.'s parents clearly were
aware of the "'generic' elements of wrongdoing, causation and harm" (see S.M., supra,
184 Cal.App.4th at p. 717) resulting from R.L.'s molestation of their daughter while in
foster care. Because J.J. filed her claim in May 2012, which was more than six months
(see § 911.2) and more than a year (see §§ 911.4, subd. (b) & 946.6, subd. (c)) after her
claim accrued, it was untimely and thus barred. (See Munoz, supra, 33 Cal.App.4th at p.
1779.)
In reaching our decision, we note the important policy implications of requiring a
claimant to give a public entity "'prompt notice'" of a claim (see California Restaurant
Management Systems v. City of San Diego, supra, 195 Cal.App.4th at p. 1591),
particularly in a case such as the one before us involving allegations of sexual abuse
against a dependent child under the custody, control and supervision of one or more
public entities (i.e., the County). Requiring a claimant in such circumstances to give
prompt notice will permit "'early investigation and evaluation of the claim'" (see ibid.) by
12 the public entity or entities, which could potentially prevent or limit any additional sexual
abuse to the claimant and/or others similarly situated. (See, e.g., Welf. & Inst. Code,
§ 300.2 [noting the purpose of the law "relating to dependent children is to provide
maximum safety and protection for children"].)
Moreover, we disagree with J.J.'s contention that cases such as Leaf v. City of San
Mateo apply here and protect a plaintiff who "'despite diligent investigation . . . is
blamelessly ignorant of the cause of his [or her] injuries.'" Leaf involved the 10-year
statute of limitations in then-applicable Code of Civil Procedure 337.15, which protects
developers of real estate from unlimited claims for property damage cause by latent
construction defects. (Leaf, supra, 104 Cal.App.3d at p. 402.)
In Leaf, the court reversed summary judgment in favor of the city because a triable
issue of fact existed whether the plaintiff homeowners had exercised reasonable diligence
in discovering that a cave-in on their property was caused by the city's failure to compact
properly the storm and sewer trenches on and near the plaintiffs' property, as opposed to
the failure of the developer/builder of the property to install a subsurface drainage system
at the time of development. (Leaf, supra, 104 Cal.App.3d at pp. 403-404.) Clearly, Leaf
is factually and legally distinguishable from the instant case, inasmuch as there is no
issue here involving a latent defect to real property causing damage from multiple
possible sources.
Although we conclude J.J.'s personal injury cause of action accrued, at the latest,
in March 2011, we nonetheless independently reviewed the January 2011 report (that she
13 obtained in March 2012), which J.J. contends was the basis of her knowledge of
wrongdoing by the County. J.J. highlights five2 facts from that report:
(1) R.L., J.J.'s foster father, molested J.J. while she was in his care sometime
between July 17 and September 18, 2009.
(2) Police in December 2010 received a referral from County social workers
reporting that J.J. disclosed she had been molested by R.L. in 2009.
(3) R.L.'s wife, the foster mother, worked for "the Department of Health and
Human Services."
(4) J.J. ran away from her foster home on September 17, 2009, the day of her
birthday. A neighbor called police. After police determined J.J. had no injuries, they
contacted social services and then returned J.J. to her foster home. The next day,
September 18, J.J. was removed from the family home of R.L. and taken to the Polinsky
Children's Center.3
2 J.J. in her opening brief states police responded to two separate incidents in September 2009 regarding J.J. However, it appears there was only one incident, which occurred on September 17, 2009. The "second" alleged incident referred to by J.J. on September 21, 2009 appears to be the investigating detective's description of the incident in the January 2011 report, in which he refers to an emergency response referral dated September 21, 2009 regarding the September 17 incident.
3 In connection with this incident, R.L.'s wife stated during a police interview that the night J.J. ran away, J.J. told her she had left the family house because she was disappointed her foster family was "not black." According to R.L.'s wife, when she asked J.J. that night if she wanted to find another family to live with, J.J. said "she was fine to stay with us." Nonetheless, the following day R.L.'s wife spoke to a County social worker and suggested that J.J. find another place to live because R.L.'s wife "didn't want [J.J.] to run off again." 14 (5) R.L. disclosed during a January 13, 2011 police interview that J.J. had been
drawing pictures of a "face with an angry person with a mustache and a beard" while
living in the family home and that those pictures had been turned over to a social worker.
J.J. in her opening brief does not specifically address how these additional facts
from the January 2011 report support her contention that she was not aware, or could not
reasonably have become aware (before she obtained a copy of that report in March 2012),
that the County was potentially liable for placing her, supervising her, and/or preventing
sexual abuse in the foster home of R.L. and his family. In any event, our independent
review of the January 2011 report, including these facts, does not change our conclusion
that J.J.'s negligence cause of action against the County, as set forth in her May 2012
claim, accrued, at the latest, in March 2011 when her parents spoke at the sentencing
hearing of R.L.4
4 J.J.'s opposed motion for admission of new evidence, made pursuant to section 909, is denied. Although this statute permits an appellate court to receive new evidence, the "circumstances under which an appellate court can receive new evidence after judgment, or order the trial court to do so, are very rare. For this court to take new evidence pursuant to statute (Code Civ. Proc., § 909) . . . , the evidence normally must enable the Court of Appeal to affirm the judgment [or in this case, order], not lead to a reversal. [Citations.] The power to take evidence in the Court of Appeal is never used where there is conflicting evidence in the record and substantial evidence supports the trial court's findings. [Citations.]" (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090.) Here, the "new" evidence is a psychiatric/medication evaluation report dated September 29, 2009 done at the Polinsky Children's Center in which J.J. says "someone touch[ed] her in her private parts." Although J.J. contends she only obtained this "new" evidence in late August 2012, after the trial court denied her petition, it is clear this evidence has been available to her since the date of the report and clearly was available in December 2010, when she disclosed the molest to her parents and County social workers, and in March 2011, when her parents appeared and spoke at R.L.'s sentencing. We thus conclude J.J. has failed to show 15 But that does not end our analysis. J.J. alternatively advances the theories of
estoppel and excusable neglect to support her contention that her claim against the
County is timely.
C. Estoppel
"A public entity may be estopped from asserting the limitations of the tort claims
statutes where its agents or employees have prevented or deterred the filing of a timely
claim by some affirmative act. The required elements for an equitable estoppel are: (1)
the party to be estopped must be apprised of the facts; (2) the party to be estopped must
intend his or her conduct shall be acted upon, or must so act that the party asserting the
estoppel had a right to believe it was so intended; (3) the other party must be ignorant of
the true state of facts; and (4) the other party must rely upon the conduct to his or her
injury. [Citation.]" (Munoz, supra, 33 Cal.App.4th at p. 1785.)
J.J. contends the County should be estopped from asserting the claims requirement
because: (1) she was frightened R.L. would kill her and she did not want to be taken
away from her parents again; (2) she was unaware the County was negligent in placing
her in the foster home of the family of R.L. until she received the January 2011 report;
exceptional circumstances to warrant our acting as fact finder on evidence that was at all times available to her if she had conducted a reasonable investigation on an issue that was, in any event, thoroughly briefed and considered by the trial court. (See generally Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 [recognizing the general rule that "plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation"].) In addition, even if we considered this evidence, we would conclude it does not warrant a reversal of the finding that she did not timely file her claim with the County for placing her, supervising her, and/or preventing sexual abuse in the foster home of R.L. (See §§ 911.2 & 946.6.) 16 and (3) she had not received the records from the Polinsky Children's Center when she
filed her petition (see fn. 4, ante) and, thus, she did not want to file a "frivolous and
unmeritorious lawsuit" against the County.
With respect to R.L., he is not an employee or agent of the County and, thus, his
alleged threats of intimidation against J.J. cannot be attributed to the County. In addition,
J.J. was in fact removed from the family home of R.L. on September 18, 2009 and
disclosed the molestation in December 2010. Given that R.L.'s alleged threat to J.J. did
not prevent her from disclosing the sexual abuse to her parents and County social
workers, we conclude in any event his threats could not have deterred her from timely
presenting a claim which, as we noted, accrued at the latest in March 2011, after R.L. was
sentenced for his crime. (See V.C., supra, 139 Cal.App.4th at p. 517 [refusing to apply
equitable estoppel doctrine because threats made by teacher against minor student did not
prevent student from disclosing the sexual abuse to authorities and filing a timely claim
and, thus, concluding it could not "find that a 'reasonable' time for [the minor] to present
her claim [was] anything other than statutory six-month and one-year time limits
specified in Government Code sections 911.2 and 911.4"].)
Regarding the January 2011 report, we conclude it provides no basis for estoppel
against the County as a result of when J.J. (through counsel) obtained this report,
inasmuch as we already have concluded the report does not have a material bearing on
the accrual issue and, in any event, the record shows J.J. first moved to obtain this
report—which was always available to her and her guardian ad litem (see Fox v. Ethicon
17 Endo-Surgery, Inc., supra, 35 Cal.4th at p. 808)—more than six months after her cause of
action accrued. (See § 911.2, subd. (a).)
Finally, with regard to the Polinsky Children's Center records and J.J.'s point that
she needed these records to determine whether her lawsuit was meritorious, as noted in
footnote 4, we decline to admit this "new" evidence that was at all times available to her
on an issue that was thoroughly briefed and considered by the trial court. That said, it
appears that J.J. fails to distinguish between when her cause of action accrued and the
filing of a claim and preserving her rights against a public entity, on the one hand, and
determining whether her lawsuit against that public entity, after timely filing a claim, is
viable, on the other hand.
This distinction is apparent in section 910, which governs the content of a claim.
It provides:
"A claim shall be presented by the claimant or by a person acting on his or her
behalf and shall show all of the following: [¶] (a) The name and post office address of the
claimant. [¶] (b) The post office address to which the person presenting the claim desires
notices to be sent. [¶] (c) The date, place and other circumstances of the occurrence or
transaction which gave rise to the claim asserted. [¶] (d) A general description of the
indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the
time of presentation of the claim. [¶] (e) The name or names of the public employee or
employees causing the injury, damage, or loss, if known. [¶] (f) The amount claimed if it
totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim,
including the estimated amount of any prospective injury, damage, or loss, insofar as it
18 may be known at the time of the presentation of the claim, together with the basis of
computation of the amount claimed. If the amount claimed exceeds ten thousand dollars
($10,000), no dollar amount shall be included in the claim. However, it shall indicate
whether the claim would be a limited civil case." (Italics added.)
Thus, whether J.J. had all the information she contends she needed to determine
whether any potential lawsuit against the County was viable is wholly separate and apart
from the issue of when her cause of action accrued and thus when she was required to
notify the County of her claim under section 911.2 (or, as in this case, under § 946.6) and
provide the information regarding that claim as then known to her.
For these reasons, we decline to apply the principles of equitable estoppel to
prevent the County from asserting J.J.'s noncompliance with the various claims statutes.
D. Excusable Neglect and Minority Status
J.J. first contends her status as a minor precludes her claim with the County from
being untimely, citing to Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020
(Hernandez). She alternatively contends her claim should be deemed timely based on
excusable neglect. We disagree with both contentions.
First, as noted ante, subdivision (c)(1) of section 911.4 expressly provides that in
computing the one-year period when, as in the instant case, a claim is not filed within six
months of accrual as set forth in subdivision (a) of section 911.2, the "time during which
the person who sustained the alleged injury, damage, or loss as a minor shall be counted,"
absent an exception not applicable here. (Italics added; see also Code Civ. Proc., § 352,
19 Second, Hernandez is inapposite here. In focusing on the various policy
considerations made by our Legislature in attempting to "reach a reasonable
accommodation between the interests of minors who are generally unable to protect
themselves and the interests of the affected governmental entity," the Hernandez court
concluded: "Section 911.4 requires a late-claim application to be filed on behalf of a
minor no more than one year after the accrual of the minor's cause of action, thereby
protecting a governmental entity from having to respond to a claim many years after the
accrual of the action. At the same time, sections 911.6 [the grant or denial of an
application] and 946.6 ensure a minor that when a late-claim application is filed within a
year of the accrual of his [or her] cause of action, his [or her] claim will not be barred
because of a delay within that year for which the minor himself [or herself] is not
responsible." (Hernandez, supra, 42 Cal.3d at p. 1030, italics added.)
In the instant case, because J.J. did not file her claim with the County within one
year of the accrual of her cause of action, neither section 911.4 nor section 946.6 nor
Hernandez nor other "excusable neglect" cases on which she relies apply to her situation.
(See, e.g., Ebersol v. Cowan, supra, 35 Cal.3d at p. 439 [late claim filed within one year
of accrual of cause of action subject to excusable neglect determination]; Ramariz v.
County of Merced (1987) 194 Cal.App.3d 684, 687 [late claim filed within one year of
accrual of cause of action].) We thus conclude J.J. cannot show her claim was timely
based on excusable neglect.
20 DISPOSITION
The order of the trial court denying J.J.'s section 946.6 petition is affirmed. Each
party to bear their own costs on appeal.
WE CONCUR:
McINTYRE, J.
IRION, J.