Garcia v. Los Angeles Unified School Dist.

• Decision Date: 23 October 1985
• Docket Number: No. B009718,B009718
• Citation: 173 Cal.App.3d 701,219 Cal.Rptr. 544
• Court: California Court of Appeals Court of Appeals
• Parties: Sharon GARCIA, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Page 544

219 Cal.Rptr. 544

173 Cal.App.3d 701

Sharon GARCIA, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

No. B009718.

Court of Appeal, Second District, Division 7, California.

Oct. 23, 1985.

Review Denied Feb. 13, 1986.

Kroll & Linstrom and Barbara G. Gould, Los Angeles, for plaintiff and appellant.

DeWitt W. Clinton, County Counsel, Richard K. Mason, Principal Deputy County Counsel, Los Angeles, for defendant and respondent.

LILLIE, Presiding Justice.

Plaintiff appeals from denial of petition for relief from claim requirement (Gov.Code, § 946.6) in an action against a public entity.

I FACTS

Sharon Garcia was employed by the Los Angeles Unified School District as an elementary school teacher. In 1981 she filed a charge with the Equal Employment Opportunity Commission alleging discrimination by the school district because she was female and of Hispanic national origin. A settlement was reached on this charge whereby the school district would offer Garcia a bilingual classroom assignment and would not retaliate against her regarding the EEOC charge; following this settlement, the EEOC case was closed. Garcia was subsequently assigned to Gridley Avenue Elementary School as a bilingual classroom teacher. On April 25, 1983, she resigned her teaching post there because of alleged harassment and discrimination; she filed a second EEOC complaint on August 3, alleging discrimination based on her sex, national origin and retaliation for her prior EEOC complaint. Specifically she claimed she was refused recommendation to an administration internship class by her school principal, Emma Wilson.

The EEOC notified the state Department of Fair Employment and Housing of the claim; the DFEH issued a right to sue letter, indicating responsibility for the investigation and evaluation of the claim would be handled by the EEOC, not the DFEH. The EEOC issued a Notice of Right to Sue on November 30, 1983, stating that after investigation they were dismissing the charge because no reasonable cause was found to believe the allegations of the charge were true.

Garcia, in propria persona, filed a complaint in United States District Court on March 5, 1984, alleging employment discrimination in violation of Title VII (Civil Rights Act) and breach of the terms of the EEOC settlement agreement. The school district filed answer to the complaint on March 22, raising as a defense the plaintiff's failure to file a claim with the school district prior to filing suit, as required by Government Code section 945.4. Plaintiff filed the claim against the public entity on April 24, 1984, in which she set the date of her injury as April 25, 1983; the school district rejected the claim as untimely, inasmuch as it was not presented within 100 days after the date of the occurrence. She made application for leave to present a late claim (Gov.Code, § 911.4) on May 16, which was rejected by the school district on June 11.

Plaintiff dismissed her federal action without prejudice on May 10, 1984, and on August 3, 1984, filed the within complaint for damages, in propria persona, in Los Angeles Superior Court, alleging harassment and discrimination resulting in her humiliation, mental anguish and emotional distress. School district demurred, raising, inter alia, plaintiff's failure to comply with the claim requirement; the demurrer was sustained with 30 days' leave to amend. Plaintiff then petitioned for relief from the claim requirement under Government Code section 946.6, based on her incapacity during the 100-day filing period as well as on her mistake, inadvertence, surprise or excusable neglect. After hearing, the trial court denied the petition; it is from this order that Garcia appeals. ¹

II

PETITION FOR RELIEF (GOV.CODE, § 946.6)

Government Code section 911.2 requires that a claim relating to a cause of action for personal injury against a public entity be presented to that entity not later than the 100th day after the accrual of the cause of action. Presentation of such claim and action on or rejection of it by the public entity are required before suit for money or damages can be brought against the public entity. (Gov.Code, § 945.4.) When a claim has not been timely presented, application may be made to the public entity for leave to file a late claim (Gov.Code, § 911.4); if the public entity denies the application, section 946.6 authorizes a petition to the appropriate court for relief from the requirement of claim presentation prior to suit. Such relief shall be granted if the court finds that the application under section 911.4 was made within a reasonable time not to exceed one year after the accrual of the action, and as pertinent to this matter, either that the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect, (Gov.Code, § 946.6, subd. (c)(1)), or that the person who sustained the alleged injury was physically or mentally incapacitated during all of the 100-day period and by reason of such disability failed to present a claim during such time. (Gov.Code, § 946.6, subd. (c)(3).)

"The determination of the trial court in granting or denying a petition for relief under section 946.6 will not be disturbed on appeal except for an abuse of discretion. [Citation.] Abuse of discretion is shown where uncontradicted evidence or affidavits of the petitioner establish adequate cause for relief." (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, 197 Cal.Rptr. 601, 673 P.2d 271.) Appellant presented two bases for relief under the statute, incapacity and excusable mistake; we start with an examination of the evidence in support of her claim that she was incapacitated during the 100-day claim filing period.

III INCAPACITY

Appellant submitted to the trial court a declaration stating that she initially failed to file a timely claim against the school district because of emotional illness; that she has been under continuous psychiatric care for depression since 1976; that her depression has escalated to severely disabling episodes, including the time period from June 1981-April 1983 resulting from the discrimination against her which caused her to go on illness leave in April 1983. Because of the severe emotional distress and depression resulting from the alleged acts of discrimination against her, she was unable to deal with, comprehend, or function sufficiently to take up the matter of submitting a claim against the school district and its employees. In support of this claim of total incapacity, she attached a letter from her treating psychiatrist, which states in conclusory terms: "Sharon Garcia was totally incapacitated from April 25, 1983 to approximately November 1, 1983, and has remained unable to return to work for the Los Angeles Unified School District to this date. [p ] Throughout this time, she has been in serious psychological upheaval, which has significantly hampered her ability to function effectively." This evidence is not uncontradicted. Garcia states in her declaration that by about August 3, 1983, although not completely recovered, she was able to file a claim against the school district with the Equal Employment Opportunity Commission; August 3 was the 100th day after April 25, the date on which she asserts her cause of action accrued. Obviously she was able to attend to some of her business affairs with regard to this dispute within the 100-day period. We find no abuse of discretion in the trial court's conclusion that appellant did not establish that she was incapacitated such that she could not file the claim with the school district.

IV EXCUSABLE NEGLECT

Appellant also asserted her failure to file a claim was based on her excusable mistake and surprise. The showing required of a petitioner seeking relief under section 946.6 on the grounds of mistake, inadvertence, surprise or excusable neglect is the same as the showing required under Code of Civil Procedure section 473 for relieving a party from a default judgment. (Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 723-724, 173 Cal.Rptr. 4, El Dorado Irrigation Dist. v. Superior Court (1979) 98 Cal.App.3d 57, 62, 159 Cal.Rptr. 267.) "Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances." (Ebersol v. Cowan, supra, 35 Cal.3d 427, 435, 197 Cal.Rptr. 601, 673 P.2d 271.)

Appellant's sole support for her assertion of excusable neglect is found in her declaration, wherein she states: "I had no knowledge of government tort claim requirements, nor was I advised, made aware of, or informed of such requirements." Mere lack of knowledge of the claim-filing requirement is insufficient to support relief under section 946.6. (Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 6, 213 Cal.Rptr. 658; El Dorado Irrigation Dist. v. Superior Court, supra, 98 Cal.App.3d 57, 62, 159 Cal.Rptr. 267.) Moreover, even if we concede, as did the court in Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116, 121, 90 Cal.Rptr. 479, that a layman perhaps should not be charged with negligence in not discovering section 911.2 by failing to look it up, a layman who is aware of the fact that he has a compensable claim may be neglectful if he fails to consult an attorney for more than 100 days after the occurrence. There is no evidence in the record indicating that appellant consulted an attorney during the 100-day period, nor that she even attempted to retain counsel until March, 1984, nearly a year after the accrual of her cause of action, although she was obviously aware of the existence of her claim long before that time. Appellant has simply failed to provide the trial court with any evidentiary basis upon which to exercise its discretion to grant relief. (See Ebersol v. Cowan, supra, 35 Cal.3d 427, 437, fn. 12, 197 Cal.Rptr. 601, 673 P.2d 271.) We find no abuse of discretion in the trial court's conclusion that...