Melkonians v. County of Los Angeles
Filed 7/9/13
Melkonians v. County of Los Angeles CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
ARA MELKONIANS,
Plaintiff and Appellant,
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
B238912
(Los Angeles
County
Super. Ct.
No. BC456450)
APPEAL from
the judgment of the Superior Court of
County. Amy D. Hogue,
Judge. Affirmed.
Ara
Melkonians, in pro. per., for Plaintiff and Appellant.
Gutierrez,
Preciado & House and Calvin House for Defendant and Respondent.
_______________________
Plaintiff Ara Melkonians appeals from the trial court’s
judgment of dismissal sustaining the demurrer of the County of Los Angeles
(County). This action arises from
Melkonians’s discharge from the Los Angeles County Sheriff’s Department
(Department). The County argues the
trial court properly sustained the demurrer because (1) Melkonians did not
comply with the prelawsuit claim requirements of the California Government Claims
Act (Gov. Code,
§ 810 et seq.),
name="_ftnref1" title="">[1] (2) the prelawsuit claim he did file was
untimely under the Government Claims Act, and (3) his failure to overturn
the administrative decision affirming his discharge bars this lawsuit. We agree with the County that Melkonians did
not comply with the administrative claim requirements of the Government Claims
Act and need not address the County’s other contentions as a result. We affirm.
facts and procedure
Melkonians
began working for the Department as a deputy in 1990. The County discharged Melkonians on or about
July 22, 2004. The discharge was based
on the allegation that he committed battery on his girlfriend on March 7,
2003. His girlfriend called the
Department on March 7, 2003, and reported she had been the victim of a
battery. A lieutenant from the Department
interviewed her that evening.
The Los
Angeles County Civil Service Commission (Commission) held an
Melkonians’s discharge. The hearing
officer found Melkonians had violated provisions of the County’s manual of
policy and procedures by committing domestic violence, violating state law, and
behaving in a manner so as to discredit himself and the Department. The hearing officer further found
Melkonians’s discharge was reasonable discipline under the circumstances. On June 21, 2006, the Commission adopted the
hearing officer’s findings of fact and conclusions of law as its final
decision.
Melkonians
then filed a petition for a writ of mandate in the superior court. Based on an independent examination of the
administrative record, the court found the weight of the evidence supported the
decision to uphold Melkonians’s discharge, and it affirmed the Commission’s
decision. Melkonians appealed, and the
court of appeal affirmed the trial court’s denial of Melkonians’s writ
petition. He then filed a petition for
review of the court of appeal decision, and the California Supreme Court denied
Melkonians’s petition on August 26, 2009.
On August
25, 2010, counsel for Melkonians presented a claim for damages to the
County. The claim form asked Melkonians
to “[d]escribe in detail how damage or injury occurred.†He stated in response that he was “wrongfully
terminated†by the Department. The form
also asked: “Why do you claim County is
responsible?†Melkonians stated the
Department breached its contracts with him, including but not limited to the
Department’s policy and procedures manual, the Police Officer’s Bill of Rights,
and the “Memorandum of Understanding.â€
The form further asked him to name any county employees “involved in
[his] injury or damage.†He identified
only the lieutenant who interviewed his girlfriend on the evening he committed
battery. The claim form also asked him
to identify any witnesses to the damage or injury, and he listed only the
girlfriend whom he had battered.
Finally, the form asked him to list any damages incurred to date. He stated:
“Loss of earnings and loss of future earnings.â€
On March 2,
2011, Melkonians commenced the instant action by filing a complaint for breach
of implied-in-fact contract and breach of the covenant of good faith and fair
dealing against the County. He
voluntarily filed a first amended
complaint (FAC) in September 2011 before the court could rule on the
County’s demurrer to the original complaint.
The FAC deleted the original causes of action and replaced them with
wholly different causes of action for whistleblower liability and intentional
infliction of emotional distress (IIED).
The FAC alleged new facts. It
alleged Melkonians was discharged for reporting discrimination and abuse of
other deputies, refusing to illegally plant evidence on a detained suspect, and
refusing to illegally falsify a police report.
He allegedly reported these instances of misconduct to his
superiors. The FAC also alleged that,
before his discharge, he was subjected to several years of mistreatment as a
result of his whistleblowing activities, which caused him severe emotional
distress. The cause of action for IIED
alleged this mistreatment included rumors around the station that he was
“crooked†and openly referring to him as a “crook†and a “lowlife,†telling him
to “mind your own [expletive] business,†and constantly threatening him with
termination or demotion for refusing to falsify information in police reports.
The County
demurred to the FAC on the ground that it was barred by res judicata and
Melkonians’s failure to comply with the Government Claims Act.
without leave to amend and dismissed the action. Melkonians timely appealed.
STANDARD OF REVIEW
We review
the FAC de novo to “determine whether [it] states facts sufficient to
constitute a cause of action.
[Citation.] And when [the
demurrer] is sustained without leave to amend, we decide whether there is a
reasonable possibility that the defect can be cured by amendment: if it can be,
the trial court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm.â€
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see also
Cal.App.4th 857, 879.) “We treat the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law.
[Citation.] We also consider
matters which may be judicially noticed.â€
(Serrano v. Priest (1971) 5 Cal.3d 584, 591.)
discussion
The California Government Claims Act governs all
actions against public entities and public employees. (Clark
v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 182; County
of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.) “The Tort Claims Act requires that any civil
complaint for money or damages first be presented to and rejected by the pertinent
public entity [citations] and creates ‘a sympathetic bond between the
administrative claim and the judicial complaint.’ [Citation.]
Each theory of recovery against the public entity ‘“must have been
reflected in a timely claim. In
addition, the factual circumstances set forth in the written claim must
correspond with the facts alleged in the complaint; even if the complaint were
timely, the complaint is vulnerable to a demurrer . . . if it
alleges a factual basis for recovery which is not fairly reflected in the
written claim.â€â€™â€ (Brownell v. Los
Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 793-794.)
Section 910
provides the administrative claim must state, among other things, the date,
place and “other circumstances of the occurrence†that gave rise to the claim;
a general description of the injury, damage, or loss incurred; and the names of
any public employees causing the injury.
(§ 910, subds. (c)-(e).) The
purpose of the statute is to give “the public entity the opportunity to evaluate
the merit and extent of its liability and determine whether to grant the claim
without the expenses of litigation.†(Crow
v. State of California (1990) 222 Cal.App.3d 192, 202.)
In the case
at bar, Melkonians’s FAC was defective because he did not present his claims
for whistleblower liability and IIED to the County before filing suit. He presented only an administrative claim for
breach of contract, which he abandoned when he filed his FAC. (Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 901 [amended complaint
supersedes original and furnishes sole basis for cause of action, and original
complaint ceases to have effect as a pleading].) Melkonians’s cause of action for
whistleblower liability is based on the whistleblower statute, California Labor
Code section 1102.5, not a breach of contract.
Similarly, the cause of action for IIED sounds in tort and is
designed to redress invasions of the personal interest in emotional
tranquility, not a breach of contract. (Fletcher
v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 402.) The bare statement in his claim that the
Department breached the policy and procedures manual, the Police Officer’s Bill
of Rights, and the Memorandum of Understanding does not correspond with the
facts alleged in the FAC -- that he was discharged for reporting discrimination
and abuse of others and for refusing to plant evidence and falsify reports, and
that he suffered mistreatment and name calling.
Moreover, his
claim did not identify any emotional distress damages but cited only the loss
of earnings as damages. And the only
witness Melkonians identified was his girlfriend, while the only employee he
identified as involved in his injury was the lieutenant who interviewed her
after the battery. It seems apparent
that his claim for “breach of contract†related to the battery incident, not
the entirely distinct allegations of whistleblowing and IIED. These theories of recovery were not fairly
reflected in the claim presented to the County.
Melkonians deprived the County of the opportunity to evaluate the
merits of the whistleblower and IIED causes of action, the extent of its
potential liability, and whether to grant his claim without the expense of
litigation. The FAC was therefore subject to
demurrer. (Brownell v. Los
Angeles Unified School Dist., supra,
4 Cal.App.4th at p. 794.)
Melkonians contends we should
“liberally interpret[]†his administrative claim that he was wrongfully
terminated in breach of contract to include his whistleblower claim. This argument resembles the “judicially
formulated ‘substantial compliance’ exception to the strict claims requirementâ€
‑‑ that is, that substantial compliance with the statutory claim
requirements will excuse the effects of noncompliance. (Fall
River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d
431, 435; see also Crow v. State of California, supra, 222 Cal.App.3d at p. 202.) But the substantial compliance doctrine does
not apply when the “factual basis for a cause of action is wholly absent from
the claim,†as it was in this case. (Crow
v. State of California, supra, at
p. 202.) There was not even partial
compliance here, much less substantial compliance.
The trial
court did not err in sustaining the County’s demurrer. When the plaintiff imposes upon the public
entity an obligation to defend a lawsuit based on a set of facts entirely
different from those first noticed, “[s]uch an obvious subversion of the
purposes of the claims act, which is intended to give the governmental agency
an opportunity to investigate and evaluate its potential liability, is
unsupportable.†(Fall River Joint Unified School Dist. v. Superior Court,
435-436.) Further, the court did not
abuse its discretion in sustaining the demurrer without leave to amend. Melkonians did not identify any possible
amendment that could cure this particular defect. (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 349 [burden is on plaintiff to “show in
what manner he can amend his complaint and how that amendment will change the
legal effect of his pleadingâ€].)
DISPOSITION
The
judgment is affirmed. Respondent to
recover costs on appeal.
FLIER,
J.
WE CONCUR:
BIGELOW,
P. J.
GRIMES,
J.
name="_ftn1" title="">[1] Further undesignated statutory references are to the Government
Code.
name="_ftn2" title="">[2] In
support of its demurrer, the County filed a request for judicial notice of
materials from the Commission’s proceedings, the prior writ proceedings, and
Melkonians’s August 2010 claim with the County.
The record does not expressly indicate the trial court granted the
request for judicial notice, but it is clear from the record the court
sustained the demurrer on the grounds of res judicata and failure to comply
with the Government
Claims Act, which it
could not have done without noticing these materials. We therefore presume the court granted the
request for judicial notice. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564 [judgment or order of lower
court is presumed correct, and all intendments and presumptions are indulged to
support it on matters as to which record is silent].)
