J.J. v. Co. of San Diego

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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

J.J., a Minor, etc., et al., D062594

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

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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

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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,

subd. (b).)

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 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.

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 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.

BENKE, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

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