N.G. v. Cnty. of San Diego

• Decision Date: 28 December 2020
• Docket Number: D076539
• Citation: 273 Cal.Rptr.3d 253,59 Cal.App.5th 63
• Court: California Court of Appeals Court of Appeals
• Parties: N.G., Petitioner and Appellant, v. COUNTY OF SAN DIEGO, Respondent.

59 Cal.App.5th 63

273 Cal.Rptr.3d 253

N.G., Petitioner and Appellant,

v.COUNTY OF SAN DIEGO, Respondent.

D076539

Court of Appeal, Fourth District, Division 1, California.

Filed December 28, 2020

Gilleon Law Firm and James C. Mitchell, San Diego, for Petitioner and Appellant.

Thomas E. Montgomery, County Counsel, Melissa M. Holmes and Alexa Katz, Deputy County Counsel, for Respondent.

IRION, J.

N.G. appeals from a judgment denying her petition under Government Code section 946.6,¹ in which she sought relief from the requirement in the Government Claims Act (§ 810 et seq.) that she timely file a claim with the County of San Diego (the County) prior to bringing a suit for damages.

N.G.'s proposed claim against the County arises from an alleged sexual assault by San Diego County Deputy Sheriff Richard Fischer. N.G.'s petition for relief alleged that due to the emotional trauma and psychological difficulties faced by victims of sexual assaults committed by law enforcement officers, which can cause those victims to delay in coming forward, her failure to file a timely claim should be excused due to mistake or excusable neglect.

We conclude that the trial court was within its discretion to conclude that N.G. did not establish mistake or excusable neglect to support her petition for relief from the claim filing requirement. Accordingly, we affirm the judgment.

I.FACTUAL AND PROCEDURAL BACKGROUND

A. Fischer's Assault and N.G.'s Application to File a Late Claim With the County

On June 25, 2018, N.G. submitted a proposed claim for damages to the County, alleging that Fischer sexually assaulted her on October 5, 2017. As N.G. acknowledges, the claim was submitted 81 days after the six-month period for filing a claim expired. Accordingly, N.G. also filed an application for leave to file a late claim. On June 28, 2018, the County denied leave to file a late claim.

According to the claim that N.G. submitted to the County, she was driving to a motel with her 12-year-old daughter after an argument with her husband on October 5, 2017. Fischer, along with two other deputies, pulled over N.G. because N.G.'s husband had falsely reported that N.G. was driving while under the influence of alcohol and drugs. Fischer later called N.G.'s cell phone and then showed up at her motel room, explaining that he wanted to check on N.G.'s daughter. Fischer asked N.G. to go into the motel room's bathroom with him, where he closed the door and hugged N.G., telling her she was gorgeous. Fischer then told N.G. he had to leave, but he would call later. At around 11:00 p.m., Fischer called N.G. and then arrived at her motel room. Fischer directed N.G. to come into the bathroom with him, where he hugged and groped her, "dry hump[ed]" her, and then put his hand down her pants. Fischer decided to leave, but as he exited Fischer said, "You can't let anybody know about this because I will get into big trouble. There will be trouble for everyone." When Fischer asked N.G. if he could call her again, N.G. told him she might not have the same phone number after her husband "turn[ed] off" her phone. Fischer said, "I know how to find you." According to N.G., "[t]his scared [her] very much" and she "has been paranoid to this day because he made that comment." Fischer did not make any further contact with N.G.

B. N.G.'s Petition For Relief From the Trial Court

On October 1, 2018, N.G. filed a petition with the trial court pursuant to section 946.6 for relief from the requirement that she file a timely claim with the County prior to pursuing a suit for damages. N.G. alleged that her failure to file a timely claim was the result of excusable neglect or mistake.

N.G. filed a declaration in support of her petition. The declaration set forth the same facts about Fischer's conduct described in N.G.'s submission to the County, along with an explanation of why she delayed in filing a claim. N.G. explained, "Because of the incident with Fischer and his comment to me, I was scared to report him. Added to this was my fear that my 12[-]year[-]old daughter, who was in the hotel room during the incident, would learn what had happened to me in the bathroom with Fischer and this would have a detrimental affect [sic ] on her.... After the incident, I was mentally depressed and decided for what I thought was my own and my daughter's well-being, to put the incident on the list of bad things that had happened to me and not talk about it again. I also thought if I reported what Fischer had done to me to the Sheriff's Department, no one would believe me because it was my word against his, and as [a] law enforcement officer, he would get the benefit of the doubt."

N.G. explained her reason for ultimately contacting a lawyer and attempting to file a claim with the County. "In early to mid-June 2018, I saw a news report about Deputy Fischer being accused of hugging and groping other women and that criminal charges had been filed against him for these acts. Until I learned this information, I thought my story about what Fischer had done to me would not be believed and I had no rights against him for what he did to me on October 5, 2017." N.G. also stated that until she sought legal advice, she was unaware of the six-month claim filing deadline.

N.G.'s petition was also supported by a declaration from Carlton Hershman, a retired police detective with substantial experience in sex crime investigations, who now owns a business called Sexual Assault Training and Consulting. Hershman stated:

"One of the common issues I dealt with constantly in investigating sex crimes and interviewing and dealing with women and men who were victims of alleged sexual assaults and rapes was delayed or late reporting by the victims, especially women. Some of the many reasons I learned about during these numerous investigations for victims delaying the report of an alleged sexual assault were:

"a. Victims who stated they did not think they would be believed;

"b. Situations where the alleged perpetrator possessed social status, like a relative, a supervisor at work, a teacher, physicians, therapists or law enforcement personnel;

"c. Victims who stated they were ashamed and embarrassed about what happened to them;

"d. Self-blame, that is, victims thinking they may have encouraged the assault, felt guilty at not resisting or not resisting strongly enough and guilt at possibly placing themselves in a vulnerable situation through self-intoxication;

"e. Victims who feared entering the judicial system, for example, having their credibility attacked and having to recount a traumatic or highly unpleasant event;

"f. What is commonly referred to as the ‘give-up’ factor, or the perceived need by the victim to move on and try to put the incident behind them; and

"g. Competing priorities in life, as well as confusion about what happened to them and what to do."

Hershman also explained, "Another thing I have learned in my experience that has encouraged reluctant sexual assault victims to come forward is where they learn about other victims of a same or different perpetrator who have come forward.... Many times, victims also feared retaliation or being re-contacted by the perpetrator."

Hershman stated that, based on his reading of N.G.'s declaration, he believed that "the reasons N.G. has given for not reporting the October 5, 2017 sexual assault by Fischer until mid-June 2018, after she saw media reports about other victims, were reasonable under the circumstances" and that she acted "in a way that a reasonably prudent sexual assault victim would have acted under the same circumstances." Specifically, Hershman focused on (1) N.G.'s fear that Fischer would re-contact her; (2) Fischer's warning that "there will be trouble for everyone"; (3) N.G.'s concern for her emotional well-being and that of her daughter; and (4) N.G.'s belief that no one would believe her over a law enforcement officer.²

After holding a hearing and considering the parties' briefing, the trial court issued a ruling denying the petition and entered judgment in favor of the County.

In its ruling, the trial court first set forth the applicable legal precedent and summarized N.G.'s arguments: "In support of her request, petitioner cites a number of factors for the 81-day delay, which she argues are sufficient to demonstrate mistake or excusable neglect. These include that she was afraid of Deputy Fisher [sic ] because he groped her in a [m]otel bathroom while her 12-year-old daughter was asleep in the next room, the impact the disclosure would have on her daughter, the fear that Fischer would re-contact her, and that nobody would believe her. N.G. says she wanted to ‘put the incident on the list of bad things that had happened to me and not talk about it again.’ ... Hershman opined that the reasons given by N.G. for her delay are common and reasonable for victims of sex crimes, as was the fact that she prioritized her family." The trial court then explained its decision to deny the petition:

"N.G. knew all the facts on which her claim was based at the time of the incident. And ... N.G. has not presented any evidence that she had a physical and/or mental disability

which limited her ability to function or seek out counsel. While it is understandable that N.G. was concerned about her family and wanted to put the incident behind her, this is not an exceptional showing of an act of reasonably prudent person to establish excusable neglect. A reasonably prudent person would have, at the very least, made some effort to obtain counsel. Because N.G. did not, her petition cannot be granted."³

N.G. filed a timely notice of appeal from the trial court's judgment.

II.DISCUSSION

A. The Claim Filing Requirements of the Government Claims Act

The Government Claims Act (§ 810 et seq.) provides, as a general rule, that no suit for money or damages may be maintained against a public entity unless a timely written claim has first been presented to it.⁴ (§ 945.4; DiCampli-Mintz v. County of Santa Clara (2...