Plaintiff and appellant J.J., appearing through her guardian ad litem, Ja.J., appeals from an order denying her petition brought under Government Code
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 applies 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
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
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 to 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.
"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
"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 [228 Cal.Rptr. 190, 721 P.2d 71]; Drummond v. County of Fresno [(1987)] 193 Cal.App.3d [1406,] 1410-1411 [238 Cal.Rptr. 613].)
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 [269 Cal.Rptr. 605].) 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 [231 Cal.Rptr. 702].)" (Munoz, supra, 33 Cal.App.4th at p. 1779; see § 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.
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.
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
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 [21 Cal.Rptr.3d 208] (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 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 in that "given his youth, ignorance, and inexperience, as well as his foster parent's alleged complicity in the abuse —... 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 Dist. (2006) 139 Cal.App.4th 499 [43 Cal.Rptr.3d 103] (V.C.), which
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.
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 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 apply here and protect a plaintiff who "`despite diligent investigation ... is blamelessly ignorant of the cause of his [or her] injuries.'" (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1318 [64 Cal.Rptr.3d 9].) Leaf involved the 10-year statute of limitations in Code of Civil Procedure section 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
(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.
(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 Mar. 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
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.
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
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 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
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.
J.J. first contends her status as a minor precludes her claim with the County from being untimely, citing Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020 [232 Cal.Rptr. 519, 728 P.2d 1154] (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 Code Civ. Proc., § 352, subd. (b).)
Second, Hernandez is inapposite here. In focusing on the various policy considerations made by our Legislature in attempting to "reach a reasonable
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 [239 Cal.Rptr. 774] [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.
The order of the trial court denying J.J.'s section 946.6 petition is affirmed. Each party to bear its own costs on appeal.
McIntyre, J., and Irion, J., concurred.