Filed 10/4/13 Wattar v. Palmdale School Dist. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


NIZAM I. WATTAR,                                                     B242050

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. MC022442)
         v.

PALMDALE SCHOOL DISTRICT,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Brian C. Yep, Judge. Affirmed.


         Nizam I. Wattar, in pro. per., for Plaintiff and Appellant.


         Carpenter, Rothans & Dumont, Justin Reade Sarno, Louis R. Dumont for
Defendant and Respondent.


                  ___________________________________________________
       The trial court dismissed the lawsuit of Nizam Wattar after finding that she failed
to make a timely claim against the Palmdale School District under the Government
Claims Act (Gov. Code, § 810 et seq.).1 We affirm.
                       FACTS AND PROCEDURAL HISTORY
                       The Complaint: Judgment on the Pleadings
       Plaintiff Wattar worked at defendant Palmdale School District (PSD), starting in
2000. She is a naturalized American citizen of Lebanese extraction. Wattar received
worker’s compensation benefits in 2003 and again in May 2005. She was cleared to
return to work on November 10, 2006. PSD denied Wattar a job and took the position
that she had resigned. She filed suit against PSD on March 23, 2011, alleging
discrimination based on her national origin. PSD answered the complaint, alleging
(among other things) that Wattar’s suit is time-barred and that she failed to comply with
Government Claims Act (GCA) provisions.
       PSD brought a motion for judgment on the pleadings asserting that Wattar failed
to exhaust her administrative remedies by filing a timely claim under the Fair
Employment and Housing Act (FEHA). PSD reasoned that without a right-to-sue letter,
the court lacked jurisdiction to proceed. Wattar responded that she is proceeding under
the state Constitution, not under FEHA.2 PSD countered that if Wattar is not proceeding
under FEHA, she was required to make a timely claim under the GCA. On August 4,
2011, the trial court granted PSD’s motion, but gave Wattar leave to amend her pleading.




1      Unlabeled statutory references in this opinion are to the Government Code. The
Government Claims Act was formerly known as the Government Tort Claims Act.
(§ 810, subd. (b).)
2      The parties stipulated on June 21, 2011, that Wattar sought to recover damages
“under Article 1, Section 8 of the California Constitution, and is not pursuing a federal
claim under the 14th Amendment to the United States Constitution.” The trial court
entered an order based on this stipulation.


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       The First Amended Complaint: Demurrers Sustained with Leave to Amend
       In her first amended complaint, Wattar alleged that PSD has continually denied
her re-employment based on her national origin in violation of the state Constitution and
the Civil Rights Act of 1964 (42 U.S.C § 2000 et seq.). She claimed that PSD caused her
to believe that it was considering a change in its position, in the years that elapsed
between its initial denial of a job in 2006 and the filing of her complaint in 2011. There
is no allegation that plaintiff made a prelitigation claim under the GCA, FEHA, or their
federal equivalents, before filing suit.
       PSD demurred, renewing its contention that the court lacks jurisdiction to proceed
because Wattar failed to comply with government claims requirements before filing suit.
PSD noted that plaintiff previously stipulated that she was not making a claim for
violation of her federal constitutional rights. In opposition, Wattar argued that she is not
proceeding under FEHA or any California statute. “Rather,” she contended, “it is a Title
42 USC 1983 action.”3 PSD replied that (1) plaintiff stipulated to dismiss her federal
claims; (2) plaintiff’s claim is four years old and is stale; and (3) it is immune from suit.
The court sustained the demurrers with leave to amend.
    The Second Amended Complaint: Demurrers Sustained Without Leave to Amend
       Wattar filed a second amended complaint (SAC). She alleges that she sought re-
employment at PSD from November 2006 until she received a letter from PSD’s
personnel commissioner in December 2010, informing her that legal action was her only
recourse. Plaintiff asserts five claims: (1) a Labor Code violation; (2) violation of 42
United States Code section 1983; (3) interference with contract; (4) breach of the
covenant of good faith and fair dealing; and (5) seeking reinstatement to her job at PSD.
       PSD demurred to the SAC. It again argued that plaintiff failed to make a timely
claim under the GCA, now that plaintiff had resumed making claims under state law.


3      The pleading cites 42 United States Code section 2000, not 42 United States Code
section 1983. The trial court observed that the former requires plaintiff to exhaust her
administrative remedies and obtain a right-to-sue letter, while the latter does not.


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And even if no GCA claim was required, plaintiff is barred by the statute of limitations
because her lawsuit was filed over four years after PSD refused to rehire her. PSD
reiterated that it is immune from plaintiff’s federal cause of action.
       The court sustained the demurrers without leave to amend. A dismissal was
entered on April 5, 2012. Notice of entry of judgment was served on April 26, 2012.
This appeal was filed on June 11, 2012.
                                       DISCUSSION
1. Appeal and Review
       Appeal lies from a judgment of dismissal after demurrers are sustained without
leave to amend. (Code Civ. Proc., §§ 581d, 904.1, subd. (a)(1); Serra Canyon Co. v.
California Coastal Com. (2004) 120 Cal.App.4th 663, 667.) We review de novo the
ruling on the demurrer, exercising our independent judgment to determine whether a
cause of action has been stated as a matter of law. (Desai v. Farmers Ins. Exchange
(1996) 47 Cal.App.4th 1110, 1115.) In an action against a public entity, the plaintiff
must adequately plead compliance with the claim presentation requirement of the GCA to
survive demurrer. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239-
1243; Tietz v. Los Angeles Unified Sch. Dist. (1965) 238 Cal.App.2d 905, 912 [second
amended complaint was properly dismissed when the plaintiffs failed to allege the
required presentation of a government claim in any version of their pleading]; B & P
Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 964; Bohrer v.
County of San Diego (1980) 104 Cal.App.3d 155, 160.)
2. Wattar Did Not Comply with the GCA
       a. Overview of the Claims Requirement of the GCA
       “In actions for damages against local public entities, the claims statutes require
timely filing of a proper claim as a condition precedent to the maintenance of the action.”
(City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.) A claim for injury must
be presented to the entity’s governing board “not later than six months after the accrual of
the cause of action.” (§§ 911.2, subd. (a), 945.4.) The claim must be signed by the
injured person or by someone acting on his or her behalf; indicate the date, place and

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circumstances of the event giving rise to the claim; describe the injury or loss incurred;
and list the names of the employees causing the injury. (§§ 910, 910.2.) If the claim is
not made within six months, the injured person may seek leave to present the claim
“within a reasonable time not to exceed one year after the accrual of the cause of action
and shall state the reason for the delay in presenting the claim.” (§ 911.4, subd. (b).)
       “Compliance with the claims statutes is mandatory [citation]; and failure to file a
claim is fatal to the cause of action.” (City of San Jose v. Superior Court, supra, 12
Cal.3d at p. 454; § 945.4.) The purpose of the GCA “is to provide the public entity
sufficient information to enable it to adequately investigate claims and settle them, if
appropriate, without the expense of litigation. [Citations.] It 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.” (City of San Jose, at p. 455.)
       b. Wattar Did Not Substantially Comply with the GCA
       All but one of the claims asserted in the SAC allege violations of state law. As a
result, Wattar is required to show compliance with the GCA. The SAC alleges that
plaintiff and PSD’s personnel had “a continual interchange of information, positions and
demands” from July 2006 until December 2010. Plaintiff received a letter from PSD’s
personnel director on December 13, 2010, allegedly stating that “legal action was the
remaining course to take.” Plaintiff interprets this letter (which is not in the record) as a
“right-to-sue letter.”
       In none of her three pleadings did Wattar establish her compliance with the GCA.
There is no allegation of any writing submitted by her or her attorney meeting GCA
requirements. An unspecified “interchange of information, positions and demands,”
without more, is not sufficient to survive demurrer. We cannot tell whether Wattar
described her claims of employment discrimination, bad faith or interference with
contract at all, let alone with enough detail to enable PSD to investigate the claims. (See
City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738-739 [contract claims are
subject to the GCA and require a prelitigation claim].) Nor do we know if Wattar

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submitted a claim to PSD’s governing board, as opposed to school administrators. In
short, the SAC contains no acceptable showing of substantial compliance with the GCA.
       c. Judicial Relief from Nonpresentation of Claim
       Wattar complains that the trial court should have afforded her relief under section
946.6, which enables a claimant to petition the superior court for relief after the agency
denies a late claim filed within one year after a cause of action accrues. (Munoz v. State
of California (1995) 33 Cal.App.4th 1767, 1777-1779 [one-year limitation on late claims
is jurisdictional].) The petition must show why the claim was late due to mistake,
inadvertence, surprise or excusable neglect. Section 946.6 is inapplicable. Wattar never
filed a late-claim application with PSD; hence, she could not petition the court for relief
from an agency’s denial of such a claim.
       d. Filing a Late Claim
       Wattar argues that she should have an opportunity to apply for a late claim. An
application to file a late claim must be presented to the public entity “within a reasonable
time not to exceed one year after the accrual of the cause of action and shall state the
reason for the delay in presenting the claim.” (§ 911.4, subd. (b).) The entity must grant
or deny the application within 45 days after it is presented. (§ 911.6, subd. (a).) Wattar’s
desire to file a late claim does not concern the courts, as the application is made to the
public entity, not to us. It is difficult to see the purpose of such an application, inasmuch
as the jurisdictional time limit for making it elapsed long ago. (See Munoz v. State of
California, supra, 33 Cal.App.4th at p. 1779.)
       e. Equitable Estoppel
       Wattar maintains that PSD should be estopped from asserting her failure to satisfy
the GCA claim requirements because she did not realize until October 2010 that PSD had
actually terminated her employment. An agency may be estopped from asserting that
GCA requirements were not met if it “acted in an unconscionable manner” and gave false
advice concerning a claimant’s substantive rights against the agency. (Fredrichsen v.
City of Lakewood (1971) 6 Cal.3d 353, 358.) This determination hinges upon whether



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the government action was sufficiently culpable, i.e., whether misinformation was
negligently given, or given in bad faith. (Ibid.)
       Wattar states that she learned from her union representative that she was
terminated from PSD under a procedure that occurred years earlier, in 2006. This does
not establish culpable conduct by PSD: Wattar does not state that PSD deliberately or
negligently informed her that she was still employed by the agency between 2006 and
2010, thereby causing her to sleep on her rights. The original complaint alleges that
plaintiff was informed that PSD took the position she had resigned and continually
denied her “reemployment.” If plaintiff was repeatedly denied “reemployment,” this
means she knew she was no longer employed, and had to act promptly to assert her
rights, not wait four years. Plaintiff’s estoppel argument fails.
       f. Leave to Amend
       Plaintiff requests leave to file a third amended complaint showing that she
complied with the GCA. She has had three opportunities to establish compliance with
the GCA, and failed to do so. Her brief continues to offer nothing but generalities,
without any concrete proof of a timely and legally sufficient GCA claim. If she made
such a claim and if she received a denial from PSD’s governing board, those documents
should have been submitted to this Court in a request for judicial notice, or set forth
verbatim in her brief. They are not. Wattar asks us to “make a determination that she has
complied with all requirements under [the GCA].” This determination cannot be made
without the actual claim to examine. PSD’s awareness that plaintiff wanted her job back
does not constitute substantial compliance with the GCA nor provide a basis for estoppel.
(City of San Jose v. Superior Court, supra, 12 Cal.3d at p. 455.)
3. Wattar’s Claims Are Barred in Any Event
       Even if Wattar had filed a claim that satisfies the timeliness and adequacy
requirements of the GCA four years after she was repeatedly denied re-employment, all
of her claims are barred by statute. There is a gap of four years and four months between
the time when Wattar was denied re-employment (November 2006) and the time she sued



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(March 2011). None of the applicable statutes of limitation are for more than four years.
Hence, her claims are time-barred.4
                                      DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                         BOREN, P.J.
We concur:


      CHAVEZ, J.


      FERNS, J.*




4     Wattar offers no argument regarding her federal claim, forfeiting it. In any event,
PSD is immune from suit on claims arising under 42 United States Code section 1983.
(Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098, 1100;
McAllister v Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1207.)

*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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