Appellant Yazmina Letona seeks review of an order denying her petition for relief from the provisions of Government Code section 945.4, which requires the presentation of a tort claim to a public entity prior to filing suit for damages against the entity. Appellant seeks relief from the claims statute so that she may pursue her claim against respondents County of Santa Clara, Board of Supervisors of Santa Clara County, Miguel Aguilar-Zapata, and Karen Kaho. We find no error and affirm.
I. Statement of Facts
Appellant has been employed by the County of Santa Clara (County) as a social worker since 1995. She alleges that "[c]ommencing in or about early 1998 and continuing through late 1999," respondents Miguel Aguilar-Zapata and Karen Kaho, ombudsmen employed by the County, took various actions against her. Appellant alleges that Aguilar-Zapata and Kaho, among other things, wrongfully accused her of unprofessional or unethical conduct, made false claims of misconduct to her coworkers and supervisors, communicated improperly about her to others, misrepresented facts involving appellant to her coworkers and supervisors, demanded without justification that she be disciplined, demoted, and fired, initiated administrative proceedings against her, and accused her of giving false testimony to the superior court. During this same period, appellant reported this conduct to her supervisors and advised them that Aguilar-Zapatas and Kahos conduct had "become so extreme that she could not continue her employment in such a hostile work environment" and respondents failed to take any action even after the superior court issued an order prohibiting Zapata from having contact with appellants clients. Appellant thus alleges that the County maintained a hostile work environment and discriminated against her on the basis of sex and race. She also alleges that respondents defamed her, retaliated against her for exercising her legal rights, violated the terms of her employment agreement, and inflicted physical and emotional distress.
On March 31, 2000, appellant filed a government tort claim against the County. On April 10, 2000, the County issued a notice of insufficiency of the claim on the ground that the claim did not adequately describe the "date, place and other circumstances" of the alleged wrongful conduct. On April 24, 2000, appellant filed an amended claim in which she failed to specify further the dates when the wrongful conduct occurred. On May 9, 2000, the County returned the claim without action on the ground that it was untimely, and advised appellant that she could apply for leave to file a late claim.
On May 19, 2000, appellant filed an application for leave to file a late claim. Appellant did not include any additional facts regarding the timeliness of her claim. On June 19, 2000, the County denied the late claim application, and issued a notice of rejection of the claim on the merits to the extent that the claim alleged wrongdoing from and after September 30, 1999.
On July 19, 2000, appellant filed a petition for relief in the trial court. Following a hearing, the trial court denied the petition, stating: "[T]he claim indicates that the misconduct was brought to the attention of Petitioners superiors as early as April 1998, when the course of conduct allegedly began. It is apparent that Petitioner was aware of the misconduct, and that she had a substantial claim, almost two years before the claim was filed. [¶] Petitioner has failed to establish that her failure to timely file her claim was the result of mistake, inadvertence, surprise or excusable neglect."
Generally an individual cannot sue a California government entity without first having filed a claim with that entity. (& sect; 945.4.) "The claim presentation requirement serves several purposes: (1) it gives the public entity prompt notice of a claim so that it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so that it can better prepare for the upcoming fiscal year." (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 279.)
A personal injury claim must be filed with the public entity no more than six months after the cause of action has accrued. (& sect; 911.2.) If the claim is not filed within this period, an application for leave to file a late claim may be made to the public entity. (§ 911.4.) No suit for damages may be brought against a public entity until a written claim has been presented to that entity, and the claim has either been acted upon or rejected. (§ 945.4.) A party may bring a petition in superior court for relief from the provisions of section 945.4. (§ 946.6.) If the application to the public entity is made within a reasonable period of time not exceeding one year from the accrual of the cause of action and the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect, the court is directed to grant the petition unless the public entity establishes prejudice. (§ 946.6.)
"The trial court may make factual determinations relating either to timeliness of a claim or to substantial compliance with the claim presentation requirements." (Santee v. Santa Clara County Office of Education (Santee) (1990) 220 Cal.App.3d 702, 711.) The determination of the trial court in granting or denying a petition for leave to file a late claim will not be disturbed on appeal absent a showing of abuse of discretion. (Munoz v. State (1995) 33 Cal.App.4th 1767, 1778.) An abuse of discretion is established where the uncontradicted evidence establishes adequate cause for relief. (Ibid.) "An order denying relief runs counter to the laws policy encouraging trial and disposition on the merits. It is subject to closer appellate scrutiny than one granting relief, and doubts will be resolved in favor of the party attempting to get to trial to the end that wherever possible, cases may be heard on their merits. [Citations.]" (Kaslavage v. West Kern County Water Dist. (Kaslavage) (1978) 84 Cal.App.3d 529, 537.)
Appellant contends that respondents are liable under theories of negligent hiring, retention and supervision, defamation, intentional infliction of emotional distress, abuse of process, and violation of her constitutional rights. At issue in the instant case is when these causes of action accrued.
"A cause of action accrues on the date of injury for purposes of the claim presentation requirements on the same date a similar cause of action against a nonpublic entity would be deemed to accrue for purposes of applying the relevant statute of limitations." (Santee, supra, 220 Cal.App.3d at p. 708.)
Here appellant alleges that Aguilar-Zapata and Kaho began committing various acts against her in "April 1998" and continued through "late 1999." These acts included wrongfully accusing her of unethical conduct, making false claims of misconduct to her coworkers and supervisors, communicating improperly about her to others, misrepresenting facts involving appellant to her coworkers and supervisors, demanding without justification that she be disciplined, demoted, and fired, initiating administrative proceedings against her, and accusing her of giving false testimony to the superior court. Appellant further alleges that she reported Aguilar-Zapatas and Kahos conduct to her supervisors between April 1998 and late 1999 and that their conduct "had become so extreme that she could not continue her employment in such a hostile work environment" and respondents failed to take any action. Though both the County and the trial court requested that appellant give specific dates as to the alleged wrongdoing, appellant reiterated, as she does on appeal, that the alleged acts occurred throughout the period between April 1998 and late 1999. By refusing to specify when a particular act occurred, the trial court could only conclude, as must this court, that each act occurred as early as April 1998. Thus, her causes of action against respondents accrued at that time. However, appellant waited until March 31, 2000 to file her claim. Accordingly, her claim was untimely.
Appellant contends that since her claim arose from a "continuous, chronic or persistent pattern of misconduct," it was timely under the continuing violation doctrine.
There is an equitable exception to the one-year period that is known as the continuing violation doctrine. (Waltman v. International Paper Co. (5th Cir. 1989) 875 F.2d 468, 474-475.) "Essentially, the continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limits period." (Richards v. CH2M Hill, Inc. (Richards) (2001) 26 Cal.4th 798, 812.) This doctrine has been applied to claims under state and federal anti-discrimination statutes. (Id. at pp. 812-813.) In Murray v. Oceanside Unified Sch. Dist. (2000) 79 Cal.App.4th 1338, the reviewing court suggested that the doctrine might apply to common law torts.
We express no opinion as to whether the continuing violation doctrine applies to common law torts. However, even assuming that the doctrine applies to such torts, it is not applicable in the instant case. A continuing violation exists "if the employers unlawful actions are (1) sufficiently similar in kind . . .; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence." (Richards, supra, 26 Cal.4th at p. 823, internal citation omitted.) "`[P]ermanence . . . should properly be understood to mean the following: that an employers statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile." (Ibid.) Here appellants claim fails to meet the test of permanence. Appellant told her supervisors in April 1998 that the ombudsmens behavior "had become so extreme that she could not continue her employment in such a hostile environment" and respondents failed to take any action even after the superior court issued an order directing Zapata from having contact with appellants clients. Under these circumstances, a reasonable employee would have understood that further action to end the harassment would have been futile, and thus her cause of action would have accrued at that time for purposes of applying the statute of limitations.
Appellant also relies on Knight v. City of Los Angeles (Knight) (1945) 26 Cal.2d 764 and Natural Soda Products Co. v. City of Los Angeles (Natural Soda) (1943) 23 Cal.2d 193. In Knight and Natural Soda, the reviewing courts held that the government tort claims were timely even though they were filed more than six months after the plaintiffs suffered damage to their real property from floods and continuing nuisances. Central to the holdings in those cases was the fact that a single act causing the flood or continuing nuisance resulted in an ongoing injury that constituted the wrong to be remedied. As the Knight court reasoned, "The damage is claimed to have been a continuing one. Hence, there would be no exact time or day of the month that it could be said that the accident occurred. It was a progressive process." (Knight, supra, 26 Cal.2d at p. 767.) Thus, "if the entire sequence of events giving rise to the injury is regarded as the `occurrence from which the damage arose, for damages can be assessed accurately only when the sequence is complete and the total injury taken into account." (Natural Soda, supra, 23 Cal.2d at p. 203.) In contrast to Knight and Natural Soda, here appellant alleged the type of acts that were separate and distinct, were of different kinds, resulted in different types of injury, and were undertaken by different individuals.
Appellant also relies on the doctrine of substantial compliance. "Under the doctrine of substantial compliance the court may conclude a claim is valid if it substantially complies with all of the statutory requirements for a valid claim even though it is technically deficient in one or more particulars." (Santee, supra, 220 Cal.App.3d at p. 713.) Under this doctrine a party satisfies the requirements of the government tort claims statute "to give the public entity timely notice of the nature of the claim so that it may investigate and settle those having merit without litigation." (Ibid., emphasis added.) Thus, the doctrine arises in late-claim proceedings where a claim is untimely because the claimant did not file a sufficient claim during the limitations period. The doctrine of substantial compliance is not applicable where the claimant does not file any claim until after the limitations period has run.
Appellant also contends that she has established grounds for relief from the government tort claims statute due to "mistake, inadvertence, surprise or excusable neglect." We disagree.
Appellant first contends that her counsel reasonably believed that her claim was timely if filed within six months of the last act in a series of events constituting continuing misconduct. Courts may grant relief from counsels mistake "where the litigant himself has acted promptly." (Kaslavage, supra, 84 Cal.App.3d at p. 537, quoting Stub v. Harrison (1939) 35 Cal.App.2d 685, 690.) Here, however, appellant failed to offer any evidence that a mistake precluded her from seeking counsel or filing a claim before late 1999.
Appellant next contends that she was surprised by the Countys rejection of her claim. For purposes of this statute, surprise is defined as "some condition or situation in which a party is unexpectedly placed to his injury, without any fault of his own, under circumstances which he was not reasonably called upon to anticipate and which ordinary foresight could not have guarded against." (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 478.) Here appellant was aware of her injury as early as April 1998. Based on her own failure to seek legal advice, she cannot now assert surprise as a ground for avoiding the timeliness requirement.
Appellant has also failed to establish inadvertence. "Inadvertence is defined as lack of heedfulness or attentiveness, inattention, [or] fault from negligence. Inadvertence in the abstract is no plea on which to vacate a default." (Baratti v. Baratti (Baratti) (1952) 109 Cal.App.2d 917, 921, citations omitted.) Appellant asserts that she was "concerned over losing her job, her professional reputation, and her standing" in the workplace. Appellants concerns about her job do not constitute inadvertence.
In addition, appellant did not establish excusable neglect. Excusable neglect is defined as "that neglect which might have been the act of a reasonably prudent person under the same circumstances." (Baratti, supra, 109 Cal.App.2d at p. 921.) Here no reasonable person would have endured the type of harassment alleged by appellant without consulting counsel. Nor would a reasonable attorney, whose client had waited several months to seek counsel, wait several more months before filing a government tort claim. Accordingly, the trial court did not abuse its discretion in denying the petition for leave to file a late claim.
The judgment is affirmed.
WE CONCUR: Rushing, P.J. and Elia, J. --------------- Notes: All further statutory references are to the Government Code. 2. This court has also recognized that the question of the timeliness of a government tort claim might be postponed where the date of the accrual of the cause of action is disputed. (Santee, supra, 220 Cal.App.3d at p. 711.) Here there is no factual dispute. 3. On appeal, appellant claims that she did not report the misconduct to her supervisors in April 1998. She relies on an exhibit that accompanied her motion to augment the record on appeal. However, this court denied the motion and thus we do not consider this evidence. 4. Respondents contend that appellant failed to file her late-claim application within one year after the claim accrued. (& sect; 911.4, subd. (b).) Though they referred to this requirement in their opposition to appellants petition, they did not assert it as a ground for denial of the petition. Thus, the issue has not been preserved for appeal. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 779-780.)