Wardell v. County of Los Angeles

Filed 11/21/07 Wardell v. County of Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Ralph W. Dau, Judge. Affirmed.

Roosevelt Wardell Jr., in pro. per., for Plaintiff and Appellant.

Ivie, McNeill & Wyatt, Rickey Ivie and Kendall E. James for Defendant and Respondent.

_________________________

Plaintiff and appellant Roosevelt Wardell Jr. (Wardell), in propria persona, appeals a judgment following a grant of summary judgment in favor of defendant and respondent County of Los Angeles (County) and various County employees.^[1]

The undisputed evidence establishes Wardell failed to comply with the claims presentation requirements of the government claims act. (Gov. Code, 900 et seq.)^[2] Therefore, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On August 24, 1998, Wardell was hired as an appraiser trainee by the Los Angeles County Office of the Assessor. He was promoted to appraiser on August 24, 1999. He went out on medical leave in September 2004.

1. Wardell files a government claim, which is denied as untimely.

On August 11, 2005, Wardell filed a claim for damages with the County Board of Supervisors, asserting he had been injured by continuous retaliation and abuse of authority after reporting improper governmental activity, that he had been subjected to harassment and had been denied the benefit of his job. The claim asserted Wardell had consulted physicians due to his injury and had suffered $300,000 in damages to date with another $900,000 in estimated prospective damages. With respect to the date of injury, Wardell indicated it was continuous, from July 1, 2001 through December 27, 2004.

On August 17, 2005, six days after Wardell filed his claim, the County denied the claim as untimely. The denial letter explained that to the extent the claim pertains to activities occurring prior to August 10, 2004, [it] is being returned to you as it was not timely filed. A preliminary review of this matter indicates that your claim was filed more tha[n] one year from the date of the accrual of your cause of action. Accordingly, no application for a late claim can be considered. (See Government Code Section 911.4.) Therefore, no further action will be taken on that portion of the claim. [] This letter is also to inform you that the above referenced claim, as it pertains to activities occurring from August 11, 2004 to December 27, 2004, is being returned because it was not presented within six month[s] after the event or occurrence as required by law. (See Government Code Section 901 and 911.2) [^[3]] Because the claim was not presented within the time allowed by law, no action was taken on the claim. Your only recourse at this time as to that portion of your claim is to apply without delay to the Los Angeles County Board of Supervisor[s] for leave to present a late claim. (See Government Code Section 911.4 to 912.2, inclusive, in 946.6.) Under some circumstances, leave to present a late claim will be granted. (See Government Code Section 911.6.)

Wardell never presented a late claim application to the County.

2. Pleadings.

After commencing this action on June 1, 2005, Wardell filed the operative first amended complaint on September 29, 2005, naming as defendants the Los Angeles County Assessor, Robert Quon (Quon), Howard Greitzer (Greitzer), Michael Mooradian (Mooradian), Henry Smith (Smith), Stephen Kane (Kane), Cora Lim Go (Go), Akemi Takemoto (Takemoto), Peggy Natsume (Natsume) and the County (sometimes collectively referred to as the County defendants or the County).^[4][5]

The first amended complaint sets forth 60 counts against the various defendants under three theories of liability: retaliation, abuse of authority and conspiracy to harm, all stemming from Wardells alleged reporting of improper governmental activity.

On October 17, 2005, all the defendants answered the complaint, generally denying the allegations and asserting numerous affirmative defenses.

3. The Countys motion for summary judgment.

On January 4, 2006, the County defendants filed a motion for summary judgment or in the alternative, for summary adjudication of issues on the following grounds: Wardells lawsuit was barred as to the County because he failed to comply with the claims presentation requirements of the California Tort Claims Act; Wardells lawsuit was barred as the individual defendants, who were County employees, because Wardell failed to comply with the Tort Claims Act and said individuals were acting within the scope of their employment; Wardells causes of action for violation of the California Whistleblower Protection Act were meritless because Wardell could not establish that he is protected thereby or that defendants are subject thereto; Wardell could not establish a prima facie case for retaliation or conspiracy, and moreover, coworkers and supervisors cannot conspire with their employer as a matter of law.

The motion for summary judgment was duly supported by a separate statement of undisputed facts addressing the various grounds raised in the motion.

On March 13, 2006, 10 days before the date of the hearing, Wardell filed an untimely opposition to the motion for summary judgment. (Code Civ. Proc, 437c, subd. (b)(2) [opposition papers are due at least 14 days before hearing].) Further, Wardells 37-page opposition memorandum exceeded the 20-page limit (Cal. Rules of Court, rule 3.1113(d)). Also, the opposition papers lacked a separate statement of undisputed facts and thus failed to address each of the material facts contended by the County to be undisputed. (Code Civ. Proc, 437c, subd. (b)(3).)

By way of evidentiary support, Wardell filed an opposing declaration reiterating his claims that he suffered retaliation, motivated in part by a desire to cover-up my allegations of corruption. In addition, Wardell appended numerous exhibits to his opposition memorandum.

The County filed evidentiary objections to nearly all of Wardells exhibits on various grounds, including relevancy, lack of foundation and lack of authentication. 4. Trial courts ruling.

In an extensive order filed April 17, 2006, the trial court granted summary judgment in favor of the County defendants. The trial court indicated it had exercised its discretion to consider Wardells opposition papers on their merits, notwithstanding the fact the opposition papers were untimely, had exceeded the allowed page limit and were not accompanied by a separate statement.

The trial court fully sustained the Countys evidentiary objections to Wardells exhibits.

The trial court found Wardell failed to submit any evidence to establish his proper compliance with the claims presentation provisions of the government claims act.

The trial court held the provisions of the California Whistleblower Protection Act (CWPA) were inapplicable because Wardell is an employee of the County, not an employee of the State of California, and the County Office of the Assessor and its employees are not subject to the provisions of the CWPA.

The trial court found no evidence to support Wardells claims of retaliation and abuse of authority. The trial court cited the declarations of the individual defendants, seven of whom indicated they were not aware of Wardells reporting of allegedly improper governmental activity prior to reading his complaint in this action. The eighth individual defendant, Takemoto, stated she was not aware of Wardells claims until approximately December 2004, which was three months after he departed on medical leave.

Finally, the trial court found the conspiracy claim lacked evidentiary support and in any event, the individual defendants could not conspire with their employer, the County.

Wardell filed a timely notice of appeal from the judgment.

CONTENTIONS

Wardells pertinent contentions are that the trial court erred (1) in denying his motion to disqualify county counsel from representing the eight individual defendants and (2) in concluding he failed to comply with the claims statutes.

DISCUSSION

1. The ruling denying Wardells motion to disqualify county counsel from representing the individual defendants is not properly before this court.

By way of background, prior to the summary judgment proceedings, Wardell unsuccessfully moved to disqualify county counsel from representing the individual defendants. He seeks review of that ruling.

An order granting or denying a disqualification motion is an appealable order. [Citations.] [] The California Supreme Court has given two reasons why such an order is appealable: First, it is an injunctive order (see Code Civ. Proc., 904.1, subd. (a)(6)); second, it is a final order collateral to the main action. (Meehan [v. Hopps (1955] 45 Cal.2d [213,] 215-217.) (Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882; accord Derivi Construction & Architecture, Inc. v. Wong (2004) 118 Cal.App.4th 1268, 1272.)

The record reflects the trial court denied the disqualification motion on December 1, 2005. Wardell concedes he did not appeal the trial courts ruling denying his motion to disqualify county counsel. Wardell explains he did not appeal the order on the disqualification motion because he already had a writ pending before this Court from the trial courts denial on his motion to strike. The argument is unavailing. Wardells failure to file a timely appeal from the order denying the disqualification motion forecloses the issue. The order denying the disqualification motion cannot be reviewed on this appeal.^[6]

2. Wardells noncompliance with the claims presentation requirements of the government claims act is fatal to his action.

a. General principles.

The statutory scheme commonly known as the California Tort Claims Act ( 810 et seq.) governs actions against public entities and public employees. (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.)

In considering Wardells contentions, we start from certain well-settled foundations: In actions for damages against local public entities, the claims statutes require timely filing of a proper claim as condition precedent to the maintenance of the action. (Gov. Code, 905, 945.4;  . . . .) Compliance with the claims statutes is mandatory [citation]; and failure to file a claim is fatal to the cause of action. [Citation.] (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.)

The purpose of the claims presentation requirement is to facilitate early investigation of disputes and settlement without trial if appropriate, as well as to enable the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future. [Citations.] (Baines Pickwick Ltd. v. City of Los Angeles (1999) 72 Cal.App.4th 298, 303.) To achieve this end, section 911.2 requires a claimant to present a claim to the public entity within a specified time after accrual of the cause of action. (Life v. County of Los Angeles (1991) 227 Cal.App.3d 894, 899.)

b. The six-month limitation provision of section 911.2 is applicable.

Pursuant to section 911.2, claims against local governmental entities are required to be presented to the relevant entity within six months (personal injury or property damage) or one year (other causes of action) of the date of accrual of the cause of action. (Baines Pickwick Ltd., supra, 72 Cal.App.4th at p. 303.)

The statutory language clearly indicates that the [six-month^[7]] clause covers tort claims only, and the one-year clause was intended to cover claims arising out of contract and to claims for injury to real property. (Cal. Government Tort Liability (Cont. Ed. Bar 1964) 8.26, p. 385.) (Voth v. Wasco Public Util. Dist. (1976) 56 Cal.App.3d 353, 356 (Voth).) Thus, we must decide whether Wardells action is contractual or tortious. (Ibid.)

Whether an action is contractual or tortious depends upon the nature of the right sued upon, and not the form of the pleading or the relief demanded. [Citations.] If the action is based on a breach of a promise, it is contractual; if it is based on a breach of a noncontractual duty, it is in tort. [] If the breach is both contractual and tortious, we must ascertain which duty is the quintessence of the action. If it is unclear, courts generally will consider the action to be in contract rather than in tort. [Citations.] However, if the action is predicated on a duty independent of the contract, it will be deemed to be in tort regardless of the contractual relation of the parties. For example, actions based on a negligent failure to perform a contractual duty owing from a hospital to a patient [citation], from a common carrier to a passenger [citation], from an employer to an employee [citation], and from a landlord to a tenant [citation], although containing both contract and tort elements are regarded as delictual since the negligence is regarded as the basis of the wrong. (See 1 Cal.Jur.3d, Actions, 15, pp. 455-456.) (Voth, supra, 56 Cal.App.3d at pp. 356-357.)

In the operative first amended complaint, Wardell purported to plead causes of action for retaliation, abuse of authority and conspiracy to harm, all stemming from Wardells alleged reporting of improper governmental activity. Further, in the case management statement which Wardell filed below, he described the action as follows: This civil action is brought pursuant to Californias Whistleblower Protection Acts and California Government Tort Claim Act for financial injuries to person and property the plaintiff sustained subsequent to discovering and reporting improper governmental activity. Defendant government employees are directly responsible as agents and as individuals within their employment capacities. Defendant government employers (County of Los Angles; Assessor, Auerbach, Rick,) are directly responsible through negligence, policies, customs, practices, and procedures. Financial injuries caused by patterns of adverse actions, including denial of promotion, training, and other prohibited acts committed by defendants to alter, deteriorate, destroy, and deprive plaintiff the benefits of employment. Lost earnings are estimated to be $300,000. Future financial lost estimated to be $900,00 for causes.

In view of the above, it is clear that Wardells action for damages was not based on the breach of a promise. Therefore, section 911.2 required Wardell to file a claim against the County within six months of the accrual of any cause of action.

c. Undisputed evidence establishes Wardell failed to file a timely claim.

As indicated, on August 11, 2005, Wardell filed a claim for damages with the County Board of Supervisors, asserting he had been injured by continuous retaliation and abuse of authority after reporting improper governmental activity, that he had been subjected to harassment and had been denied the benefit of his job. The claim asserted Wardell had consulted physicians due to his injury, had suffered $300,000 in damages to date with another $900,000 in estimated prospective damages. With respect to the date of injury, Wardell indicated it was continuous, from July 1, 2001 through December 27, 2004.

Even assuming the cause of action did not accrue until December 27, 2004, the claim filed August 11, 2005 was untimely because it was filed more than six months after the accrual of the cause of action. ( 911.2.)

In denying the claim as untimely, the County advised Wardell of his right to apply for leave to present a late claim.^[8] However, Wardell did not avail himself of that right. The Countys separate statement of undisputed facts establishes that Wardell never presented a late claim application.

Thus, in granting summary judgment, the trial court properly concluded Wardell fail[ed] to submit any evidence to establish his proper compliance with the claims presentation provisions of the government claims act.

d. Wardells arguments are meritless.

(1) The November 2004 filing with the Employee Relations Commission

Wardell contends he complied with the government claims act in November 2004 by presenting a claim and demand for compensation to the Employee Relations Commission of the County of Los Angeles.^[9] Even assuming said document was filed in November 2004, Wardells reliance thereon is misplaced. Said document was not included with the exhibits filed by Wardell in support of his opposition to summary judgment. Further, Wardell did not file a responsive separate statement and therefore the November 2004 filing was not referenced in his opposing papers.

Moreover, the November 2004 document, which requested a hearing before the Employee Relations Commission, was filed with that commission. To comply with the claims statutes, a claim must be presented to a countys clerk, secretary, or auditor, or to the Board of Supervisors, which is the governing body of the County of Los Angeles. ( 915.) Therefore, the November 2004 document was not a claim within the contemplation of the claims statutes.

(2) Waiver and estoppel.

In his reply brief, Wardell contends the County waived defenses pursuant to the government claims act and that equitable estoppel bars the County from asserting defenses under the claims statutes. The arguments are without merit.

Whether there has been a waiver is a question of fact. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1052.) Likewise, [w]hether the doctrine of equitable estoppel should be applied in a given case is generally a question of fact. (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068.)

As indicated, Wardell failed to file a responsive separate statement in opposition to summary judgment and thus failed to present any facts which might give rise to waiver or estoppel. Also, Wardell did not argue waiver or estoppel in his memorandum of point and authorities in opposition to summary judgment.

We reject Wardells belated attempt to preclude the County from raising his noncompliance with the claims statutes.

(3) FEHA.

Wardell also contends his FEHA action is exempt from the claims statutes. The argument does not detain us.

Actions seeking redress for employment discrimination pursuant to the California Fair Employment and Housing Act ( 12900 et seq.) are not subject to the claim presentation requirements of the government claims act. (Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 863; Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, 711.)

However, the instant action did not seek redress for employment discrimination pursuant to FEHA. Rather, Wardell pled causes of action for retaliation, abuse of authority and conspiracy to harm, all stemming from Wardells alleged reporting of improper governmental activity. Therefore, Wardells FEHA argument is meritless.

It is unnecessary to address any remaining issues.

DISPOSITION

The judgment is affirmed. The County shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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^[1] When an appellant decides to represent himself in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. [Citations.]  (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193; accord Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1054-1056.)

^[2] All further statutory references are to the Government Code, unless otherwise specified.

^[3] Section 911.2 states in relevant part at subdivision (a): A claim relating to a cause of action for death or for injury to person or to personal property . . .  shall be presented . . . not later than six months after the accrual of the cause of action.

^[4] Quon, director of major appraisals for the Office of the Assessor, had never been Wardells immediate supervisor. Greitzer, a principal appraiser, was not Wardells immediate supervisor. Smith, a supervising appraiser, was not Wardells immediate supervisor but gave him work assignments from June 2003 to February 2004. Kane, an appraiser, had never supervised Wardell or given him work assignments. Natsume is chief of personnel for the Office of the Assessor. Go, a principal appraiser, supervised Wardell for four to six weeks around March or April of 2001. Mooradian, a supervising appraiser, was Wardells immediate supervisor from April to June of 2002, and from November 2002 to March 2003. Takemoto was Wardells immediate supervisor from September 2003 until February 2004.

^[5] We note that in an order filed October 6, 2005, the trial court granted an ex parte application by the County to dismiss the complaint after Wardell failed to amend his original complaint within the time allowed. Nonetheless, by October 6, 2005, the first amended complaint was already on file and the County filed an answer thereto on October 17, 2005. Therefore, it is clear the parties and the trial court viewed the October 6, 2005 order of dismissal as a nullity.

^[6] The notice of appeal filed June 29, 2006, cannot be construed to refer to the December 1, 2005 order denying the disqualification motion.

^[7] A 1987 amendment to section 911.2 substituted six months for the 100th day. (See Historical & Statutory Notes, 32 Wests Ann. Gov. Code (1995 ed.) foll. 911.2, p. 561.)

^[8] Section 911.4, pertaining to an application to present a late claim, states in relevant part: (a) When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim. [] (b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.

^[9] We note the document is file-stamped by the Employee Relations Commission as having been received on April 8, 2005, not November 11, 2004.