Okiku v. Sacramento Unified School Dist. CA3 ( 2016 )

Filed 4/15/16 Okiku v. Sacramento Unified School Dist. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
MARIONE OKIKU,
Plaintiff and Appellant, C073444
v. (Super. Ct. No.
34201000088776CUWTGDS)
SACRAMENTO CITY UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
Marione Okiku filed a second amended complaint against the Sacramento City
Unified School District (the District) asserting causes of action for tortious discharge in
violation of public policy and breach of employment contract or promissory estoppel.
The trial court sustained the District’s demurrer without leave to amend, ruling that
1
Okiku failed to allege compliance with, or excuse from compliance with, the Government
Claims Act, and also failed to show she can cure the pleading deficiency. Okiku
subsequently filed a motion for relief based on mistake, relying on Code of Civil
Procedure section 473, subdivision (b)1 and the trial court’s inherent equitable authority.
The trial court denied the motion.
Okiku now contends (1) the trial court erred in sustaining the demurrer without
leave to amend because her second amended complaint pleaded causes of action under
the California Fair Employment and Housing Act (FEHA), which are exempt from the
claim-presentation requirements of the Government Claims Act; (2) she can amend the
challenged pleading to cure any deficiency; and (3) she is entitled to relief because she
mistakenly but reasonably believed she presented a government claim to the District in
compliance with the Government Claims Act.
Okiku has not demonstrated trial court error. The second amended complaint does
not state any FEHA causes of action. Rather, it asserts causes of action for tortious
discharge in violation of public policy and breach of employment contract or promissory
estoppel, causes of action that require compliance with the Government Claims Act. But
the second amended complaint does not plead compliance with, or excuse from
compliance with, the Government Claims Act, and Okiku fails to show she can amend to
allege the necessary facts. In addition, Okiku fails to show she is entitled to relief under
section 473, subdivision (b) or the trial court’s equitable authority.
We will affirm the judgment.
BACKGROUND
Representing herself, Okiku filed an original complaint against the District
asserting causes of action for violation of FEHA and breach of an implied contract for
1 Undesignated statutory references are to the Code of Civil Procedure.
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continued employment. The complaint alleged the District terminated Okiku’s
employment because of her age (over 40) and religion (Sabbatarian), and that the District
denied Okiku the opportunity to respond to the allegations against her because of her age,
religion, and race (African American). The complaint further alleged there was an
implied contract between Okiku and the District providing that the District would not
discharge Okiku without good cause, but the District breached that implied contract.
The complaint did not allege compliance with the Government Claims Act or excuse
from such compliance.
The District demurred to the complaint on various grounds, including that the
complaint failed to allege sufficient facts to state a FEHA cause of action for
discrimination, and that Okiku cannot state a cause of action for breach of contract
because she did not comply with the Government Claims Act. Okiku filed a first
amended complaint before the trial court heard the District’s demurrer. The trial court
deemed the demurrer moot and dropped the matter from its calendar.
The first amended complaint alleged causes of action for breach of implied
employment contract, breach of “conciliatory implied agreement and waiver of rights,”
intentional infliction of emotional distress, and wrongful termination in violation of
public policy. The first amended complaint alleged Okiku submitted an “administrative
charge of unlawful employment practices and discrimination” against the District on
December 11, 2008, but “the administrative body” and the District did not redress the
issues raised in the administrative complaint.
The District demurred to the first amended complaint on multiple grounds
including failure to allege compliance with the Government Claims Act. The trial court
sustained the unopposed demurrer with leave to amend. It ruled, among other things, that
Okiku did not allege she filed a government claim in satisfaction of the Government
Claims Act.
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Okiku then filed a second amended complaint. The introductory paragraph of that
pleading said Okiku brought suit for breach of FEHA, wrongful termination in violation
of public policy, violation of Labor Code section 1102.5, and breach of an employment
contract or, in the alternative, promissory estoppel. However, the second amended
complaint set forth only two causes of action, a first cause of action for tortious discharge
in violation of public policy, and a second cause of action for breach of employment
contract or, in the alternative, promissory estoppel. Okiku once again alleged that she
brought an “administrative charge” against the District on December 11, 2008, and that
the District did not redress the issues she raised.
The District demurred to the second amended complaint on the ground that Okiku
failed to allege compliance with the Government Claims Act. The demurrer
acknowledged that Okiku had filed an administrative complaint with the Department of
Fair Employment and Housing (DFEH) and that FEHA causes of action are exempt from
the requirements of the Government Claims Act. The District argued, however, that the
second amended complaint did not assert a cause of action under FEHA, and Okiku did
not comply with the Government Claims Act.
An attorney substituted in as counsel for Okiku on the same day that Okiku filed
an opposition to the demurrer in pro per. The trial court issued a tentative ruling
sustaining the District’s demurrer without leave to amend; when no oral argument was
requested, the trial court affirmed the tentative ruling. According to the trial court,
Okiku’s allegation that she filed an administrative charge against the District was not
sufficient to plead compliance with the Government Claims Act. Because the trial court
had previously given Okiku leave to cure that defect and Okiku had not done so, the trial
court was not persuaded Okiku could cure the defect. The trial court did not give Okiku
another opportunity to amend her pleading.
Okiku’s attorney substituted out of the case and Okiku again represented herself,
filing a notice of appeal on July 2, 2012. The trial court had not yet signed the order
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sustaining the District’s demurrer, however, and a judgment of dismissal had not yet
issued. This Court dismissed the appeal and also denied Okiku’s petition for writ of
mandamus seeking review of the demurrer order.
Okiku subsequently filed a motion to set aside the demurrer order and dismissal
pursuant to section 473, subdivision (b) and the trial court’s inherent equitable authority.
She said she reasonably believed she had submitted a government claim to the District in
compliance with the Government Claims Act and that the District rejected her claim.
Okiku said her belief was based on (1) her December 11, 2008 letter to Roy Grimes, Vice
President of the Board of Education for the District, informing him that she had been
removed from the list of active certified teachers and responding to negative evaluations;
(2) her March 23, 2009 letter to Susan Miller, interim superintendent for the District,
seeking reinstatement; and (3) her October 13, 2009 DFEH complaint and the DFEH
right to sue letter. Okiku said her mistaken belief that she had submitted a claim with the
District was an excusable mistake of law. In addition, she argued the second amended
complaint could be construed as a complaint asserting a violation of FEHA, which is
exempt from the Government Claims Act. Okiku added that her proposed third amended
complaint attached to her motion for relief cured the defects.
Okiku’s proposed third amended complaint asserted causes of action for
discrimination, wrongful termination in violation of public policy, and breach of contract.
It alleged the following: between September 2008 and October 23, 2008, senior
members of the District’s administration discriminated against and harassed Okiku
because of her age and race. Okiku received a negative evaluation because she allegedly
asked for too much help in controlling a ninth grade class. She received another negative
evaluation from James Peterson, who said Okiku raised her voice in class. Peterson’s
evaluation “made comments regarding [Okiku’s] health,” which Okiku believed was a
reference to her age. Peterson screamed at and berated Okiku in a public hallway,
“dragged” her to another class, and criticized her for going to the other class. Okiku
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complained to District authorities about Peterson’s conduct and the negative evaluations.
She was discharged on October 23, 2008. Peterson’s conduct was because of Okiku’s
age, and the District terminated her employment because of her age and complaints
against Peterson. Okiku wrote to Grimes on December 11, 2008, informing him that she
had been removed from the list of active certified substitute teachers and responding to
negative evaluations. On March 23, 2009, Okiku wrote a letter to Miller “Re: Substitute
Teacher’s Wrongful Termination” and sought reinstatement. Okiku believed her letter to
Miller was a claim for wrongful termination. On April 1, 2009, Miller responded by
directing Carol Mignone Stephen, associate superintendent/chief negotiator, to follow up
on the matter. Okiku met with Ms. Stephen, but on July 9, 2009, Okiku was informed
that she would remain off the list of active certified substitute teachers for the 2009-2010
school year. Okiku filed a DFEH complaint on October 13, 2009, and received a right to
sue letter. Under those circumstances, Okiku reasonably believed she had presented a
claim for wrongful termination with the District and that the District had rejected her
claim.
The trial court denied Okiku’s motion to set aside the demurrer order and
dismissal. Regarding Okiku’s argument that she was entitled to relief under section 473
because she mistakenly believed she had complied with the Government Claims Act, the
trial court ruled ignorance of the law did not afford relief. And regarding Okiku’s
argument that she was entitled to relief because FEHA claims are exempt from the
requirements of the Government Claims Act, the trial court construed the contention as a
claim that Okiku either did not realize she could have pleaded a FEHA cause of action or
she mistakenly failed to raise the argument in response to the District’s demurrer to the
second amended complaint. The trial court found no excusable mistake in either case
because Okiku alleged she received a right to sue letter from the DFEH in her original
complaint and the District had repeatedly acknowledged a FEHA cause of action may be
exempt from the Government Claims Act.
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STANDARD OF REVIEW
A demurrer tests the legal sufficiency of the challenged pleading. (Milligan v.
Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal. App. 4th 1, 5.) The
standard of review of an order of dismissal following the sustaining of a demurrer is well
established. We independently evaluate the challenged pleading, construing it liberally,
giving it a reasonable interpretation, reading it as a whole, and viewing its parts in
context. (Id. at pp. 5-6.) We treat the demurrer as admitting all material facts properly
pleaded, but we do not assume the truth of contentions, deductions, or conclusions of law.
(Aubry v. Tri–City Hospital Dist. (1992) 2 Cal. 4th 962, 966-967.) We determine de novo
whether the factual allegations of the challenged pleading are adequate to state a cause of
action under any legal theory. (Milligan, supra, 120 Cal.App.4th at p. 6.) The appellant
bears the burden of demonstrating the demurrer was sustained erroneously. (Friends of
Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal. App. 4th 1470,
1485.)
We consider whether the challenged pleading might state a cause of action if the
appellant were permitted to amend. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) If the
complaint could be amended to state a cause of action, the trial court abused its discretion
in denying leave to amend and we will reverse; if not, there has been no abuse of
discretion and we will affirm. (Ibid.) The appellant bears the burden of showing a
reasonable possibility that a defect can be cured by amendment. (Ibid.)
A motion seeking relief from a judgment or order also lies within the sound
discretion of the trial court. (Zamora v. Clayborn Contracting Group, Inc. (2002)
28 Cal. 4th 249, 257 (Zamora); Ron Burns Construction Co., Inc. v. Moore (2010)
184 Cal. App. 4th 1406, 1413 (Ron Burns).) We do not disturb the trial court’s exercise
of discretion unless the appellant clearly demonstrates an abuse of discretion. (Zamora,
supra, 28 Cal.4th at pp. 257-258; State Farm Fire & Casualty Co. v. Pietak (2001)
90 Cal. App. 4th 600, 610 (Pietak).) We scrutinize a trial court order denying relief more
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carefully than an order permitting trial on the merits. (Ron Burns, supra,
184 Cal.App.4th at p. 1413.)
DISCUSSION
I
Okiku contends the trial court erred in sustaining the demurrer without leave to
amend because her second amended complaint pleaded FEHA causes of action which are
exempt from the claim-presentation requirements of the Government Claims Act.
It is true that Okiku’s original complaint contained a cause of action denominated
“violation of Fair Employment and Housing Act.” But Okiku twice amended her original
complaint. An amended complaint supersedes all prior complaints (Foreman & Clark
Corp. v. Fallon (1971) 3 Cal. 3d 875, 884; Lee v. Bank of America (1994) 27 Cal. App. 4th
197, 215), and once amended, a prior complaint ceases to perform any function as a
pleading. (Ibid.; Anmaco, Inc. v. Bohlken (1993) 13 Cal. App. 4th 891, 901.) Although
there are exceptions, a reviewing court will generally consider only the most recent
amended pleading. (Foreman & Clark, supra, 3 Cal.3d at p. 884; Lee, supra,
27 Cal.App.4th at p. 215; Amid v. Hawthorne Community Medical Group, Inc. (1989)
212 Cal. App. 3d 1383, 1390.) Thus, we examine the second amended complaint to
determine whether, as Okiku asserts, it pleaded FEHA causes of action.
FEHA provides that, with certain exceptions, it is an unlawful employment
practice for an employer to discharge a person from employment or to discriminate
against a person in compensation or in terms, conditions, or privileges of employment
because of the person’s race, religious creed or age. (Gov. Code, § 12940, subd. (a).)
To state a discrimination claim under FEHA, a plaintiff must show (1) she was a member
of a protected class; (2) she suffered an adverse employment action; (3) she was
satisfactorily performing her job when the adverse action was taken against her; and
(4) there were circumstances suggesting that the employer acted with a prohibited
discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 355;
8
Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal. App. 4th 635, 656;
Caldwell v. Paramount Unified School Dist. (1995) 41 Cal. App. 4th 189, 202, fn. 7
[the plaintiff must plead a prima facie case in order to survive a demurrer].) A plaintiff
must plead the essential facts of her case “ ‘ “with particularity sufficient to acquaint a
defendant with the nature, source and extent of [her FEHA] cause of action.” ’ ” (Alch v.
Superior Court (2004) 122 Cal. App. 4th 339, 382.)
The second amended complaint alleges the following: Okiku is “of African
American Origin.” Defendant employed her as a substitute teacher and she performed
her duties “fully well.” Okiku “started feeling a pattern of discrimination and harassment
by senior members of the administration.” She was “harassed, shouted upon and felt
degraded and humiliated by unwarranted behavior of the Management Staff and as the
agents and representatives of the defendant.” She was “removed from the list [of active
certified substitute teachers] and terminated from [her] job,” and she “suffered
intimidation, harassment and indignation at the hands of defendants.” Okiku was
fired for making complaints against the defendants and their agents pursuant to Labor
Code 6310 and “illegal harassment, discrimination and abusive behaviors.”
Although the second amended complaint said Okiku was bringing suit for breach
of FEHA, the pleading did not identify a cause of action or count labeled violation of
FEHA. (Cal. Rules of Court, rule 2.112 [requiring each cause of action or count to be
separately stated by number (e.g., “first cause of action”) and its nature (e.g., “for
fraud”)].) Contrary to Okiku’s assertion, the District did not concede in the trial court
that the second amended complaint included a FEHA cause of action. The District
argued the opposite.
More importantly, the second amended complaint did not plead the essential
elements of a FEHA cause of action. Okiku did not state a FEHA discrimination cause
of action because the second amended complaint did not allege that the District treated
Okiku differently because of her age, race, religious creed, or other protected
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classification. (Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55, 79
[personnel management actions are discriminatory under FEHA only if motivated
by prohibited discriminatory considerations]; Mayes v. Kaiser Foundation Hospitals
(E.D.Cal. 2013) 917 F. Supp. 2d 1074, 1079 [complaint that does not allege termination
was because of the plaintiff’s race or sex does not state a FEHA cause of action].)
In addition, Okiku did not state a FEHA harassment cause of action because the second
amended complaint did not allege harassment based on her age or religion that was
sufficiently severe or pervasive so as to alter the conditions of Okiku’s employment
and create an abusive working environment. (Thompson v. City of Monrovia (2010)
186 Cal. App. 4th 860, 876; Fisher v. San Pedro Peninsula Hospital (1989)
214 Cal. App. 3d 590, 608, 612-614.)
The second amended complaint did not state a cause of action for violation of
FEHA even when we construe it liberally. Thus, the cases holding that FEHA causes
of action are excused from the government claim-filing requirement -- Garcia v. Los
Angeles Unified School Dist. (1985) 173 Cal. App. 3d 701, 711, and Murray v. Oceanside
Unified School Dist. (2000) 79 Cal. App. 4th 1338, 1360-1361 -- do not help Okiku.
Okiku nevertheless argues that her first cause of action in the second amended
complaint for tortious discharge in violation of public policy sufficiently asserted a
FEHA violation. But a cause of action for employment discrimination or harassment
under FEHA is distinct from the tort of wrongful discharge in violation of public policy.
The two causes of action have different elements. (Compare, e.g., Guz v. Bechtel
National, Inc., supra, 24 Cal.4th at p. 355 [elements of a FEHA discrimination claim]
with Rope v. Auto-Chlor System of Washington, Inc., supra, 220 Cal.App.4th at p. 660
[elements of a claim for wrongful discharge in violation of public policy].) A plaintiff
asserting a FEHA claim must exhaust the administrative remedies under that statute
before seeking judicial relief. (Rojo v. Kliger (1990) 52 Cal. 3d 65, 88.) As we explain
10
in part II, different exhaustion requirements apply to the causes of action actually asserted
by Okiku in her second amended complaint.
II
Okiku contends she can amend the challenged pleading to cure any deficiency.
It is, of course, an abuse of discretion to sustain a demurrer without leave to amend if the
plaintiff shows there is a reasonable possibility a defect can be cured by amendment.
(Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) And a plaintiff can demonstrate, for the
first time on appeal, the manner in which the complaint can be amended to cure a defect.
(Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal. App. 4th 736, 748; Dudley
v. Department of Transportation. (2001) 90 Cal. App. 4th 255, 260; Roman v. County of
Los Angeles (2000) 85 Cal. App. 4th 316, 322.)
As we have explained, the second amended complaint asserted causes of action for
tortious discharge in violation of public policy and breach of employment contract or
promissory estoppel. The claim-presentation requirements of the Government Claims
Act apply to tort claims and claims for breach of contract. (Loehr v. Ventura County
Community College Dist. (1983) 147 Cal. App. 3d 1071, 1079 (Loehr).) Thus, before
filing suit, Okiku had to present a written claim to the District and the District had to act
upon the claim or be deemed to have rejected it. (Gov. Code, §§ 900.2, 905, 940.2,
945.4.) The timely presentation of a pre-lawsuit claim is an element of Okiku’s causes
of action (Shirk v. Vista Unified School Dist. (2007) 42 Cal. 4th 201, 209) and failure to
timely present such a claim would be fatal to her lawsuit. (DiCampli-Mintz v. County
of Santa Clara (2012) 55 Cal. 4th 983, 990.) Failure to allege facts demonstrating or
excusing compliance with the Government Claims Act subjects her causes of action to
demurrer. (State of California v. Superior Court (Bodde) (2004) 32 Cal. 4th 1234, 1239.)
To analyze whether the second amended complaint adequately pleaded
compliance with, or excuse from compliance with, the Government Claims Act, we must
first explain the requirements of the Government Claims Act. A “claim” within the
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meaning of the Government Claims Act is a notice that complies with Government Code
section 910. (Phillips v. Desert Hospital Dist. (1989) 49 Cal. 3d 699, 707 (Phillips).)
Government Code section 910 requires a claim to set forth all of the following: (1) the
name and post office address of the claimant; (2) the post office address to which the
person presenting the claim desires notices to be sent; (3) the date, place and other
circumstances of the occurrence or transaction which gives rise to the claim asserted;
(4) 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; (5) the name or names
of the public employee or employees causing the injury, damage, or loss, if known; and
(6) the amount claimed if it totals less than $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 may be known at the time of the presentation of the claim, together with the basis of
computation of the amount claimed. (Gov. Code, § 910.) If the amount claimed exceeds
$10,000, no dollar amount shall be included in the claim. (Ibid.) However, the claimant
must indicate whether the claim would be a limited civil case. (Ibid.)
“Where a claimant has attempted to comply with the claim requirements but the
claim is deficient in some way, the doctrine of substantial compliance may validate the
claim ‘if it substantially complies with all of the statutory requirements . . . even though
it is technically deficient in one or more particulars.’ ” (Connelly v. County of Fresno
(2006) 146 Cal. App. 4th 29, 38.) Substantial compliance is at least some compliance with
each of the statutory requirements. (Del Real v. City of Riverside (2002) 95 Cal. App. 4th
761, 769.) A writing which does not indicate the plaintiff is asserting a monetary claim
does not substantially comply with the Government Claims Act. (Phillips, supra,
49 Cal.3d at p. 708, fn. 7; Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 769;
Wood v. Riverside General Hospital (1994) 25 Cal. App. 4th 1113, 1118; Loehr, supra,
147 Cal.App.3d at p. 1083; Tyus v. City of Los Angeles (1977) 74 Cal. App. 3d 667, 671-
672 (Tyus).)
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If a “claim as presented” does not substantially comply with the requirements of
Government Code section 910, the public entity must advise the claimant of the
deficiencies or lose the right to assert a defense as to the sufficiency of the claim.
(Gov. Code, §§ 910.8, 911.) “[A] document constitutes a ‘claim as presented’ triggering
[Government Code] sections 910.8, [and] 911 . . . if it discloses the existence of a ‘claim’
which, if not satisfactorily resolved, will result in a lawsuit against the entity. [Citation.]
A public entity’s receipt of written notice that a claim for monetary damages exists and
that litigation may ensue places upon the public entity the responsibility, and gives it the
opportunity, to notify the potential plaintiff pursuant to [Government Code] sections
910.8 and 911 of the defects that render the document insufficient under [Government
Code] sections 910 and 910.2 and thus might hamper investigation and possible
settlement of the claim. Such a written notice claiming monetary damages thereby
satisfies the purposes of the claims act - to facilitate investigation of disputes and their
settlement without trial if appropriate [citation].” (Phillips, supra, 49 Cal.3d at p. 709;
see Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal. App. 4th 183,
202.)
A personal injury claim must be presented not later than six months after the
accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) 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 if there were no claim-presentation requirement. (Gov. Code,
§ 901.) A cause of action ordinarily accrues upon the occurrence of the last element
essential to the cause of action. (Ovando v. County of Los Angeles (2008)
159 Cal. App. 4th 42, 66.)
The California Supreme Court has not addressed the specificity with which
a plaintiff must allege compliance with the Government Claims Act. But one appellate
court held that a plaintiff may allege compliance with the claims requirements by
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generally alleging she timely complied with the claims statute. (Perez v. Golden Empire
Transit Dist. (2012) 209 Cal. App. 4th 1228, 1236-1237 (Perez); see Gong v. City of
Rosemead (2014) 226 Cal. App. 4th 363, 374.) In Perez, the complaint alleged the
plaintiff “filed a timely claim complying with the required claims statute” and
complied “with the requirements of the government tort claim statute.” (Perez, supra,
209 Cal.App.4th at p. 1232.) The Fifth District Court of Appeal held that the general
allegations regarding compliance with the Government Claims Act were sufficient to
withstand demurrer. (Id. at pp. 1237-1239.)
Here, the second amended complaint did not plead any facts demonstrating or
excusing compliance with the Government Claims Act. It merely alleged Okiku
submitted an “administrative charge” against the District. It did not mention a claim or
demand for money and it did not reference the Government Claims Act. (Sanchez v.
City of Fresno (E.D.Cal. 2012) 914 F. Supp. 2d 1079, 1119 [granting motion to dismiss
where the complaint did not reference the Government Claims Act and did not allege
compliance with the statute]; Robinson v. Alameda County (N.D.Cal. 2012)
875 F. Supp. 2d 1029, 1044 [granting motion to dismiss where the complaint did not allege
compliance with the Government Claims Act or an excuse for noncompliance and made
no mention of the Government Claims Act].) There was no allegation that within six
months from Okiku’s discharge (i.e., April 23, 2009) she informed the District that she
had a claim for monetary damages against it such as to give the District an opportunity
to investigate the facts, determine whether to settle the claim before suit is brought, and
make any necessary fiscal plans.2 Okiku’s opposition to the District’s demurrer to the
2 The first cause of action of the second amended complaint (tortious discharge in
violation of public policy) is based on plaintiff’s dismissal on October 23, 2008.
That cause of action accrued when Okiku’s employment was terminated. (Romano v.
Rockwell Internat., Inc. (1996) 14 Cal. 4th 479, 503.) The second cause of action for
breach of contract is based on harassment, mistreatment, and discharge. Based on the
14
second amended complaint did not demonstrate how Okiku could amend the second
amended complaint to state that she had filed a claim for damages with the District as
required under the Government Claims Act. The trial court properly sustained the
District’s demurrer.
Okiku nevertheless contends her proposed third amended complaint shows she can
allege compliance with, or excuse from compliance with, the Government Claims Act.
We disagree.
Nowhere in the proposed third amended complaint, Okiku’s declaration in support
of her motion to set aside, or on appeal does Okiku allege she timely notified the District
that she was making a claim for monetary damages against it. Okiku has twice amended
her complaint and presented the trial court with a proposed third amended complaint, but
she still fails to show that she can amend her pleading to allege the necessary facts.
Okiku’s argument -- that she presented a claim to the District in compliance with the
Government Claims Act -- is incorrect. Under the circumstances, the trial court did not
err in sustaining the District’s demurrer without leave to amend.
III
Okiku further argues she is entitled to relief, either pursuant to section 473 or the
trial court’s equitable authority, because she mistakenly but reasonably believed she
presented a claim to the District in compliance with the Government Claims Act.
A
We begin with Okiku’s request for relief pursuant to section 473. A court may,
upon any terms as may be just, relieve a party from a judgment, dismissal, order, or other
proceeding taken against her through her mistake, inadvertence, surprise, or excusable
neglect. (§ 473, subd. (b).) Application for relief under section 473 must be made within
allegations of the second amended complaint, the last date when the second cause of
action accrued is also October 23, 2008.
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a reasonable time, in no case exceeding six months, after the judgment, dismissal, order,
or proceeding was taken. (§ 473, subd. (b).) We liberally construe the provisions of
section 473 to carry out the policy of permitting trial on the merits whenever possible.
(Maynard v. Brandon (2005) 36 Cal. 4th 364, 371-372; Hopkins & Carley v. Gens (2011)
200 Cal. App. 4th 1401, 1410 (Hopkins & Carley).) Any doubts in applying section 473
must be resolved in favor of the party seeking relief. (Maynard, supra, 36 Cal.4th at
p. 372.) That party bears a double burden in establishing a right to relief. (Hopkins &
Carley, supra, 200 Cal.App.4th at p. 1410.) She must show a satisfactory excuse for her
act or omission and diligence in making the motion for relief after discovery of the error.
(Ibid.) If the mistake is excusable and the party seeking relief has been diligent, courts
have often granted relief under section 473, subdivision (b) if no prejudice to the
opposing party will ensue. (Zamora, supra, 28 Cal.4th at p. 258.)
Okiku says that prior to filing the original complaint, she sent District
representatives two letters (both of which were sent within six months of her discharge),
and then prior to the expiration of one year following her discharge, she filed an
administrative complaint with the DFEH against the District, alleging employment
discrimination based on her race, age, and religion. Okiku says she believed, by virtue
of her letters and DFEH complaint, that she had presented a claim to the District.
A mistake of law occurs “ ‘ “when a person knows the facts as they really are but
has a mistaken belief as to the legal consequence of those facts.” ’ ” (Powell v. City of
Long Beach (1985) 172 Cal. App. 3d 105, 109.) An honest mistake of law can provide
relief under section 473. (Hopkins & Carley, supra, 200 Cal.App.4th at p. 1412; Pietak,
supra, 90 Cal.App.4th at p. 611.) Whether a mistake of law furnishes grounds for relief
depends on the reasonableness of the misconception and the justifiability of the failure
to determine the correct law. (Hopkins & Carley, supra, 200 Cal.App.4th at p. 1413;
Ron Burns, supra, 184 Cal.App.4th at p. 1414 [the issue of whether a mistake of law
constitutes excusable neglect presents a question of fact].) Relief is properly denied
16
where the record shows “ ‘ignorance of the law coupled with negligence in ascertaining
it.’ ” (Hopkins & Carley, supra, 200 Cal.App.4th at pp. 1412-1413; Ron Burns, supra,
184 Cal.App.4th at p. 1414; Robbins v. Los Angeles Unified School Dist. (1992)
3 Cal. App. 4th 313, 319.)3
Okiku’s alleged mistaken belief was not a reasonable one. The requirements for
presenting a claim to a public entity are well-settled. (Phillips, supra, 49 Cal.3d at
p. 708, fn. 7; City of San Jose v. Superior Court (1974) 12 Cal. 3d 447, 454; Loehr, supra,
147 Cal.App.3d at p. 1082-1083; Tyus, supra, 74 Cal.App.3d at pp. 671-672.) There is
no excusable mistake of law where the plaintiff’s mistaken belief has no basis in law.
(Hanooka v. Pivko (1994) 22 Cal. App. 4th 1553, 1565.) Although Okiku was not
represented by counsel, she is entitled to the same, but no greater, consideration than
other litigants and attorneys. (Burnete v. La Casa Dana Apartments (2007)
148 Cal. App. 4th 1262, 1267.)
Even if Okiku’s mistake had been a reasonable one, nothing in the record shows
she had sufficient justification for her failure to determine the correct law. Nothing in the
record or the appellate briefs explains what efforts Okiku made to seek legal counsel or to
3 When a claimant fails to file a claim for damages with the public entity within six
months after the accrual of her cause of action, she may make a written application to the
public entity for leave to present a late claim. (Gov. Code, §§ 911.2, subd. (a), 911.4,
subd. (a).) If the public entity denies the application or the application is deemed denied,
the claimant may petition the court for relief from the claim-presentation requirements.
(Gov. Code, §946.6, subd. (a).) The petition for relief must be filed within six months
after the application to the public entity is denied or deemed to be denied. (Gov. Code,
§ 946.6, subd. (b).) The trial court cannot grant relief under Government Code
section 946.6 when an application to file a late claim is filed more than one year after
the accrual of the cause of action. (J.J. v. County of San Diego (2014) 223 Cal. App. 4th
1214, 1221.) Here, the record does not show that plaintiff attempted to file an application
for leave to present a late claim with the school district or a petition for relief under
Government Code section 946.6 in the trial court.
17
determine the validity of her belief that she had presented a claim for damages to the
District. (Robbins v. Los Angeles Unified School Dist., supra, 3 Cal.App.4th at p. 319.)
To secure relief under section 473, subdivision (b) based on a failure to adequately
represent herself, the party seeking relief must show she exercised such reasonable
diligence as a person of ordinary prudence usually bestows upon important business.
(Hopkins & Carley, supra, 200 Cal.App.4th at p. 1413.) “The law does not entitle a party
to proceed experimentally without counsel and then turn back the clock if the experiment
yields an adverse result. One who voluntarily represents himself ‘is not, for that reason,
entitled to any more (or less) consideration than a lawyer. Thus, any alleged ignorance of
legal matters or failure to properly represent himself can hardly constitute “mistake,
inadvertence, surprise or excusable neglect” as those terms are used in section 473.’
[Citation.] Rather, ‘when a litigant accepts the risks of proceeding without counsel, he or
she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable
judgment than he or she would if represented by counsel.’ ” (Ibid.) A party’s mistake in
representing herself does not afford a ground for relief from adverse results. (Id. at
p. 1414.)
Schoenfeld v. Gerson (1941) 48 Cal. App. 2d 739, a case upon which Okiku relies,
is distinguishable because the record in that case showed counsel for both sides
misunderstood the nature and effect of the prior proceedings, and the uncontroverted
affidavit of the defendant’s counsel supported the trial court’s finding of mistake. (Id. at
pp. 743-744.) The record here does not support a conclusion that Okiku made a
reasonable mistake and acted in a prudent manner in ascertaining the validity of her
alleged mistaken belief.
As to whether Okiku was diligent in seeking relief for her alleged mistake,
Okiku claims she “has been diligent in pursuing her action throughout all proceedings.”
But the trial court sustained the District’s demurrer to the first amended complaint on
November 8, 2011, ruling that Okiku’s allegation of an “administrative charge” was
18
insufficient to allege compliance with the Government Claims Act. Nothing in the record
shows that Okiku undertook to understand and remedy the deficiency. Instead, she
simply filed a second amended complaint, essentially repeating the allegation the trial
court had already determined was insufficient. Okiku did not file a motion for relief
based on mistake until a year after the trial court’s ruling on the first amended complaint.
She has not shown reasonable diligence in seeking relief for her alleged mistake.
We have already concluded that Okiku’s additional arguments lack merit.
The second amended complaint did not plead FEHA causes of action and Okiku has
not demonstrated that she can cure the pleading deficiencies.
Okiku fails to show she is entitled to relief under section 473, subdivision (b).
B
Okiku also points out that a court has inherent equitable power to set aside a
judgment on the ground of extrinsic fraud or mistake. We agree that such authority
exists. (Zamora, supra, 28 Cal.4th at p. 260; Rappleyea v. Campbell (1994) 8 Cal. 4th
975, 981; Moghaddam v. Bone (2006) 142 Cal. App. 4th 283, 290 (Moghaddam).) When
relief under section 473 is not available, however, there is a strong public policy in favor
of the finality of judgments and relief from a judgment should be granted only in
exceptional circumstances. (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 981-982.)
In any event, Okiku forfeited this appellate contention by failing to explain the
extrinsic fraud or mistake in this case. We are not required to examine Okiku’s
undeveloped claim. (Maral v. City of Live Oak (2013) 221 Cal. App. 4th 975, 984-985;
Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal. App. 4th 466, 482-
483; Badie v. Bank of America (1998) 67 Cal. App. 4th 779, 784-785.) As far as we can
tell, the record does not contain evidence of extrinsic fraud or mistake. “ ‘ “Extrinsic
fraud occurs when a party is deprived of the opportunity to present his claim or defense
to the court; where he was kept ignorant or, other than from his own negligence,
fraudulently prevented from fully participating in the proceeding. [Citation.] Examples
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of extrinsic fraud are: . . . failure to give notice of the action to the other party, and
convincing the other party not to obtain counsel because the matter will not proceed (and
then it does proceed). [Citation.] The essence of extrinsic fraud is one party's preventing
the other from having his day in court.” ’ ” (Moghaddam, supra, 142 Cal.App.4th
at p. 290.) No such circumstances are asserted or identified in this case.
Extrinsic mistake involves the excusable neglect of a party. (Moghaddam, supra,
142 Cal.App.4th at p. 290.) Ignorance of the law is not extrinsic mistake which would
entitle a litigant to relief under the court’s equity jurisdiction. (Stiles v. Wallis (1983)
147 Cal. App. 3d 1143, 1147.) And as we have explained, Okiku has not shown her
mistake was reasonable or excusable. (Id. at pp. 1147-1148 [party seeking relief based
on extrinsic mistake must show, among other things, a satisfactory excuse for her
inaction].)
Okiku adds that under the “Kaldor-Hicks test of efficiency,” the balance of gains
and harms weighs in her favor. She cites a law review article published in 1980 in
support of her argument, but we have found no California case adopting the Kaldor Hicks
test of efficiency. Nevertheless, Okiku argues a reversal of the judgment would protect
her substantive due process rights and allow a trier of fact to decide the substantive merits
of her complaint. She adds that the proposed third amended complaint cured the defects
of the second amended complaint by properly pleading a FEHA cause of action. She
claims the District would not be prejudiced by a reversal because after discovery the
District may move for summary judgment on the merits of the complaint. And according
to Okiku, if reversal is not granted the District’s “reprehensible and outrageous
discriminatory actions would go unanswered” and Okiku’s “fifteen years as a substitute
teacher would be for naught.”
While courts favor trial on the merits, that policy “cannot invariably prevail over
competing policies, including those that ‘favor getting cases to trial on time, avoiding
unnecessary and prejudicial delay, and preventing litigants from playing fast and loose
20
with the pertinent legal rules and procedures.’ ” (Hopkins & Carley, supra,
200 Cal.App.4th at p. 1415.) “This is a rule of necessity, for ‘ “[w]hen inexcusable
neglect is condoned even tacitly by the courts, they themselves unwittingly become
instruments undermining the orderly process of the law.” ’ [Citations.] And ‘ “[a]
doctrine generally requiring or permitting exceptional treatment of parties who represent
themselves would lead to a quagmire in the trial courts, and would be unfair to the other
parties to litigation.” ’ ” (Ibid.)
Okiku has not demonstrated that she is entitled to relief based on her alleged
mistake or that she acted with reasonable diligence in seeking relief after discovering her
mistake. The trial court did not abuse its discretion in denying Okiku’s motion for relief
under the present circumstances.
DISPOSITION
The judgment is affirmed.
/S/
Mauro, J.
We concur:
/S/
Butz, Acting P. J.
/S/
Hoch, J.
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