Sofranek v. Merced County

• Decision Date: 17 January 2007
• Docket Number: No. F049379.,F049379.
• Citation: 146 Cal.App.4th 1238,53 Cal.Rptr.3d 426
• Court: California Court of Appeals Court of Appeals
• Parties: Michael H. SOFRANEK, Plaintiff and Appellant, v. MERCED COUNTY, et al., Defendants and Respondents.

53 Cal.Rptr.3d 426

146 Cal.App.4th 1238

Michael H. SOFRANEK, Plaintiff and Appellant, v. MERCED COUNTY, et al., Defendants and Respondents.

No. F049379.

Court of Appeal, Fifth District.

January 17, 2007.

Silver & Katz and Louis D. Silver, San Jose, for Plaintiff and Appellant.

Ruben E. Castillo, County Counsel, and James N. Fincher, Deputy County Counsel, for Defendants and Respondents.

OPINION

GOMES, J.

The trial court dismissed Michael H. Sofranek's action against Merced County (the County), the Merced County Sheriffs Office (Sheriffs Office) and Mark N. Pazin (collectively respondents) after sustaining respondents' demurrer to Sofranek's first amended complaint without leave to amend. Sofranek contends the court erroneously applied the six-month limitations period for bringing a governmental tort claim (Govt.Code, § 945.6), and erred in concluding he could not establish the elements of estoppel. As we shall explain, while we disagree with Sofranek's first contention, we agree the trial court erred in finding the doctrine of estoppel did not apply. Accordingly, we will reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Sofranek was employed as a correctional sergeant in the sheriffs office, a position he held for 27 years until his retirement in December 2004.¹ For nearly 20 of those years he served as supervisor in the corrections division, and held the rank of sergeant for the last 19 years of his employment.

In January 2004, a vacancy opened in the sheriffs office for the position of commander in the corrections division. Although the County had enacted Resolution 91-32, which requires all job openings to be publicized, as well as a competitive selection process, the County did not publicize the opening for the commander position or comply with the competitive selection process. Although Sofranek expressed interest in the position, on January 23, 2004, Under Sheriff Blake told him Correctional Sergeant Ricky Thoreson had been promoted to the position. Sofranek believed the promotion was part of an agreement the County entered into with Thoreson and his wife to settle a lawsuit they filed against the County.

On February 17, 2004, Sofranek filed a claim form with the County pursuant to the Tort Claims Act (Govt.Code, § 810 et seq.).² He stated on the form that the date of the accident, incident or loss was January 26, 2004, and described the accident, incident, or loss as follows: "Merced County Board of Supervisors did not follow Merced County Resolution #91-32 when they agreed to promote Sergeant Ricci Thoreson to commander as part of a settlement in a sexual harassment suit filed by Leesa Thoreson. [¶] Not adhering to Resolution # 91-32 denied me the position of commander." Sofranek listed the amount of the claim as $336,630, and described his losses as the difference in pay between the classifications for commander and sergeant, and lost retirement income due to his retirement at a lower pay classification.

The County's risk management department initiated an investigation into the claim, which it described as a request for "payment of loss of income due to actions arising from another lawsuit" and recommended the claim be denied and a notice of denial sent. On March 16,2004, the Board of Supervisors approved the recommendation. On March 18, 2004, the County mailed Sofranek a "Notice of Action on Claim" which stated that the Board of Supervisors had rejected the claim on March 16, 2004, and contained the following warning: "If your claim was rejected in whole or in part, you have, subject to certain exceptions, only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. NOTE: This six month filing period applies only to State Court actions. If your action is based on federal law and/or you intend to file in Federal Court, a shorter or longer period within which to file the action may apply." The notice also advised Sofranek he could seek the advice of an attorney and if he wished to do so, he should do so immediately.

On July 21, 2004, Sofranek filed a second claim with the County. This claim stated the accident, incident or loss commenced on January 26, 2004, and the amount of the claim and description of the loss were identical to the claim filed in February. Instead of the brief description of the incident contained in the first claim, this claim incorporated a five-page attachment which explained in more detail the facts underlying Sofranek's claim and the theories on which it was based. In the attachment, Sofranek stated that according to the "policies, procedures and memoranda between the County of Merced and [Sofranek], including but not limited to the `terms of employment Human resource Rules and Regulations,' promotions are to be based upon `qualifications, performance, and length of service[,]'" as stated in Human Resource Rules and Regulations Resolution No. 92-01, which was incorporated into the Memorandum of Understanding between Sofranek and the County. Sofranek claimed the County breached "this agreement" when it promoted Thoreson to "settle an unrelated lawsuit with no consideration for [Sofranek] and the agreed, historical, and implied basis of promotion stated and acted upon during [Sofranek's] entire career and as contained in the Memorandum of Understanding." Sofranek further stated that although he was "ready, willing, able and prepared to fully perform his obligation under the contract and assume the duties of commander as well as participate in the competitive promotion proeess[,]" he was denied this opportunity when the County promoted Thoreson.

Sofranek further explained in the attachment that upon learning of Thoreson's promotion, he began inquiring into the propriety of the promotion. On January 30, 2004, he submitted a notice of appeal to the County's director of human resources, Robert Morris, pursuant to section 5.A.1.C(1) of Resolution No. 91-32, claiming the promotion involved alleged bias or fraud. In response, Morris sent Sofranek a letter which explained the promotion was based on a resolution of a court action and therefore did not fall under that section. Morris told Sofranek to set up an appointment with County Counsel Ruben Castillo. Sofranek met with Castillo on February 9. During that meeting, Castillo told Sofranek he had no appeal because the Board of Supervisors had approved the settlement with Thoreson. On February 17, Sofranek appealed the promotion to the County executive officer through a written memorandum and filed the claim with the County. On February 26, Sofranek again wrote Morris, seeking the procedure for further appeal with the County. In a March 8 letter to Sofranek, Castillo explained (1) he was replying to the February 17 appeal to the executive officer; (2) Resolution No. 91-32 did not apply to Thoreson's promotion; (3) even if the resolution applied, his appeal was deemed abandoned because it was not timely submitted; and (4) he abandoned his right to an administrative remedy by filing a government claim with the County on February 17.

The County's risk management department initiated an investigation into the second claim, which it determined to be an amendment to the claim filed on February 17, 2004 and which it described as "alleging Board of Supervisors failed to follow its adopted policy for employee promotions in actions to settle another lawsuit." The department recommended "the claim, as amended, be rejected" and a notice of denial sent. On August 17, 2004, the Board of Supervisors approved the recommendation. On August 20, 2004, the County mailed Sofranek a "Notice of Action on Claim" which stated that the Board of Supervisors had rejected the July 21, 2004, claim on August 17, 2004, and contained the following warning: "If your claim was rejected in whole or in part, you have, subject to certain exceptions, only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. NOTE: This six month filing period applies only to State Court actions. If your action is based on federal law and/or you intend to file in Federal Court, a shorter or longer period within which to file the action may apply." The notice also advised Sofranek he could seek the advice of an attorney and if he wished to do so, he should do so immediately.

On January 31, 2005, Sofranek filed a complaint against respondents seeking damages for breach of a mandatory duty to publicize the job opening, as established in Resolution 91-32, and breach of the Memorandum of Understanding between the County and the bargaining unit of which he was a member, in which the County agreed to comply with the duties set forth in Resolution 91-32. Sofranek specifically alleged in the complaint that he filed a government tort claim with the County on July 21, 2004, which the County rejected on August 17, 2004 and mailed to him on August 20, 2004. Respondents demurred, contending the action was filed more than six months after the March 18 rejection of Sofranek's claim, and thus was barred under section 945.6. In opposition, Sofranek argued his second claim did not relate back to the first for purposes of determining when the six-month limitations period commenced, and even if it did, the County should be estopped from relying on it and he should be given leave to amend to plead facts supporting estoppel. The court sustained the demurrer, ruling the second claim was an amendment to the original claim and therefore the action was barred by the six-month limitations period of section 945.6, but gave Sofranek leave to amend.

Sofranek then filed a first amended complaint, which stated the same two causes of action asserted in the original complaint, namely breach of a mandatory duty and breach of contract. He did amend the allegations pertaining to his...