Case Number: BC615321 Hearing Date: May 05, 2016 Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93

MARJORIE HENRIQUEZ, A MINOR BY AND THROUGH HER GUARDIAN AD LITEM, et al.,

Plaintiffs,

vs.

LOS ANGELES UNIFIED SCHOOL DISTRICT, et al.,

Defendants.
Case No.: BC615321

Hearing Date: May 5, 2016

Time: 1:30 p.m.

[TENTATIVE] ORDER RE:

VERIFIED PETITION FOR LEAVE TO FILE ACTION AGAINST RESPONDENT LOS ANGELES UNIFIED SCHOOL DISTRICT

Plaintiff MARJORIE HENRIQUEZ, A MINOR BY AND THROUGH HER GUARDIAN AD LITEM, DORIS MENENDEZ and DORIS MENENDEZ’s Verified Petition for Leave to File Action against LA Unified School District is GRANTED.

BACKGROUND

On 3/30/16, Marjorie Henriquez, a minor by and through her guardian ad litem, and Doris Menendez filed a complaint against LAUSD, Irma Ordonez, and Miguel Campa for (1) negligence, (2) NIED, (3) IIED, and (4) violation of the Unruh Civil Rights Act. Plaintiff alleges that on 4/1/11, Ordonez, an employee of defendant District, was assigned to supervise and assist student Henriquez, who is the daughter of Menendez, at Seventy Fifth Street Elementary School. Henriquez suffers from a number of disabilities that cause her to require special education. She lacks the ability to communicate and ambulate effectively, and lacks mental capacity. During the time Ordonez assisted Henriquez, Henriquez was physically abused by Ordonez, daily. This physical abuse included, slapping, pushing, and slamming doors on Henriquez’s fingers. Henriquez was also verbally abused daily. This verbal abuse included Ordonez yelling, threatening, and making disparaging remarks towards Henriquez.

Plaintiff further alleges that in March or April 2012, Menendez discovered a slap mark on Henriquez’s face, leading her to believe that Henriquez was being abused. Menendez spoke with staff at the school, expressing an interest in filing a claim. The school, by and through its employees, told Menendez not to file any kind of claim, as they would handle the situation. Defendant District instructed Menendez not to seek legal advice from an attorney, or to speak with anyone regarding Henriquez’s potential claims because it would interfere with the removal of Henriquez from the care of Ordonez. Defendant District also instructed Menendez that if she filed a claim or talked to anyone regarding the abuse of Henriquez, she could be investigated and retaliated against by police. Menendez relied on these representations by defendant District and did not consult with an attorney regarding Henriquez’s rights. Subsequently, the school removed Henriquez from Ordonez’s care, but no further action was taken against Ordonez.

Plaintiff further alleges that on 8/24/15, Henriquez was reassigned to Ordonez’s care over Menendez’s objection. When Menendez spoke with defendant Campa, the principal of the school, about preventing the reassignment, Campa threatened her and berated her for “attacking his school.” At this time, Menendez, feeling misled by defendant District about the willingness of defendant District to protect her daughter from Ordonez, filed a prelitigation claim. Plaintiffs have complied with all prelitigation governmental claims presentation requirements by presenting claims on behalf of plaintiffs to defendant District. Because defendant District misled Menendez regarding Henriquez’s rights at the time of Henriquez’ s abuse, defendants are estopped from raising any limitations of the claims statute.

On 4/1/16, plaintiffs filed a Verified Petition for Leave to File Action Against Respondent LAUSD as to the 2012 claims.

LEGAL STANDARD

Before a suit for damages may be filed against a public entity, a claimant must present a timely written claim to the public entity and the claim must have been acted upon by the board or deemed rejected. Cal. Gov. Code §945.4; Munoz v. State of Cal. (1995) 33 Cal. App. 4th 1767, 1777. A claim relating to a cause of action for injury to person or personal property must be presented to the public entity not later than six months after the accrual of the cause of action. Cal. Gov. Code §911.2. Munoz, supra, 33 Cal. App. 4th at 1777.

If a claimant fails to present a claim within the statutory period, he may apply “within a reasonable time not to exceed one year after the accrual of the cause of action” to the public entity for leave to present a late claim. Cal. Gov. Code §911.4. If the public entity denies leave to present a late claim, a claimant may petition the Court under Government Code §946.6 for relief from the requirements of Government Code §945.4. Munoz, supra, 33 Cal. App. 4th at 1777.

Additionally, a petition pursuant to Government Code §946.6 must be “filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.” Cal. Gov. Code §946.6(b); see also City of Los Angeles v. Superior Court (1993) 14 Cal. App. 4th 621, 627. This requirement is mandatory. Lineaweaver v. S. Cal. Rapid Transit Dist. (1983) 139 Cal. App. 3d 738, 741.

If the §946.6 petition is timely filed, the court may relieve a claimant from the requirements of §945.4 if it makes certain findings, including: (1) the claimant made a timely application to the public entity for leave to present a late claim; (2) the application was denied; and (3) the failure to timely present a claim was the result of mistake, inadvertence, or excusable neglect; and/or that the injured person was a minor during the claim period, or incapacitated during the claim period, or deceased prior to the deadline for filing a claim. Cal. Gov. Code §946.6(c). In determining whether relief is warranted under Government Code §946.6, the court considers the petition, any affidavits submitted in support of or in opposition to the petition, and any other evidence presented at the hearing. Cal. Gov. Code §946.6(e); Munoz, supra, 33 Cal. App. 4th at 1778.

DISCUSSION

Gov. Code §911.2

A claim relating to a cause of action for injury to person or personal property must be presented to the public entity not later than six months after the accrual of the cause of action. Cal. Gov. Code §911.2.

There is no dispute that petitioners failed to present claims against the District within six months after Menendez discovered the claims in or around March or April 2012.

Gov. Code §911.4

Under §911.4(a), when a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim. (b) The application shall 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. (c) In computing the one-year period under (b), the following shall apply: (1) The time during which the person who sustained the alleged injury, damage, or loss as a minor shall be counted, but the time during which he or she is mentally incapacitated and does not have a guardian or conservator of his or her person shall not be counted.

There is no dispute that petitioners did not file an application to present a late claim related to conduct in 2012 within one year after the accrual of the action in March or April 2012.

Petitioners argue that Henriquez is a minor and lacks mental capacity; thus, she is entitled to relief from filing a late claim pursuant to Gov. Code section 911.4 because she has no way of authorizing another to file a claim on her behalf.

In opposition, respondents argue that no tolling rights are available to petitioners because Henriquez has parents capable of acting on her behalf. See Hernandez v. County of Los Angeles (1986) 42 Cal. 3d 1020, 1026 (“Given this legislative scheme, . . . an injured minor who has parents capable of acting on his behalf may not invoke the provisions of section 911.4(b) even if the minor is mentally incapacitated.”).

In reply, petitioners argue that in Hernandez, the Court did not hold that every “parent” or “person” for that matter, with some ability to conduct a minor’s affairs, can satisfy the “guardian” prong of the statute. Menendez, who does not speak English, relied completely on respondent and respondent’s Spanish-speaking employees to give her guidance on how to proceed with this very sensitive issue regarding her child. They misled her to believe that respondent would handle all of the issues with Ordonez and that any outside interference would just cause delay and expose Menendez to criminal investigation. A parent who is dependent on respondent, both because of a language barrier and on account of the “deeply deferential relationship between a parent and the educational institution responsible for taking care of said parent’s child, cannot be expected to have the same capacity to represent the interests of a minor in the context of a potential legal claim, and the time limits attached thereto. Thus, Henriquez’s claims were tolled pursuant to Gov. Code section 911.4(c) on account of her incapacity and the lack of a legal guardian or parent with the capacity to adequately represent her legal interests.

Although Henriquez is a minor she is subject to the one-year period, unless she is “mentally incapacitated and does not have a guardian or conservator of his or her person.” Petitioners allege that Henriquez is mentally incapacitated but there is no allegation or evidence that she did not have a parent during that time period. Rather, they allege that Menendez is Henriquez’s mother and became aware of her daughter’s physical and mental abuse in April or May 2012. “In other words, the law regards any minor, mentally incapacitated or not, so long as he or she is in the custody and under the control of his or her parents, as being under the care of a guardian within the meaning of section 911.4(c).” County of LA v. Superior Court (2001) 91 Cal. App. 4th 1303, 1309-10.

Thus, petitioners are not subject to the tolling provision.

Gov. Code §946.6

Under Gov. Code §946.6(a), if an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4. The petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6. Under (c) the court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed one year and . . . (2) The person who sustained the alleged injury was a minor . . . . (3) The person who sustained the alleged injury was physically or mentally incapacitated and by reason of that disability failed to present a claim during that time.

The District argues that petitioners’ attempt to employ this section is inapposite because they missed the late claim application period on their 2012 claims.

This section requires that the Court find that an application was made under section 911.4 within one year. As stated above, there is no dispute that petitioners did not file a late claim within one year of the accrual of their 2012 claims.

Estoppel

“Estoppel as a bar to a public entity’s assertion of the defense of non-compliance arises when the plaintiff can establish: (1) the public entity was apprised of the facts; (2) it intended its conduct to be acted upon or must have conducted itself in a fashion the plaintiff had a right to believe it was so intended; (3) plaintiff was ignorant of the true state of facts; and (4) relied upon the conduct of the public entity his/her detriment.” Johnson v. San Diego Unified School Dist. (1990) 217 Cal. App. 3d 692, 700-701. Estoppel may be invoked against a public entity asserting a defense of non-compliance with claims presentation requirements when its conduct induces a reasonably prudent person to avoid seeking legal advice or commencing litigation. Christopher P. v. Mojave Unified School Dist. (1993) 19 Cal. App. 4th 165. Acts of violence or intimidation by the public entity may create an estoppel. Id.; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438.

Petitioners explain that their claims were not presented within the statutory time because Menendez was misled as to her legal rights of her and those of Henriquez by the employees of respondent District. She contends that she was erroneously told by employees of the District that filing a claim and contacting an attorney would not be in the best interest of Henriquez and would delay action by the District to remove Ordonez from her assignment to Henriquez. Menendez was threatened also with police investigation if she filed a claim. As a result, she did not consult with an attorney and discover that the time limit on the claim would run if she did not take immediate action on behalf of her daughter.

In opposition, respondents argue that petitioners’ contentions of estoppel against the District are unavailing. Menendez admits she was aware of the alleged facts supporting her claims, yet she did not act upon them by presenting a claim. Petitioners fail to establish that informing a claimant of an ensuing investigation after a claim is presented constitutes threatening conduct as the very purpose of the claim presentation of the Claims Act is to allow public agencies to investigate claims. The alleged inducement would not cause a reasonably prudent person to avoid seeking legal advice or to commence litigation. Petitioners’ evidence of estoppel is vague and non-specific. Petitioners also do not explain why they did not present a claim after Ordonez was removed.

In reply, petitioners argue that respondents are estopped from raising the time limit defense based on the conduct set forth in the petition. Menendez was threatened with police investigation by respondent’s employees. The “suggestion” had the actual effect of deterring Menendez from filing a claim because she believed that the facts suggested by respondent’s employees were true. She was also misdirected by respondent. She was told that bringing a claim would interfere with and potentially derail the discipline and reassignment of Ordonez. Based on these claims, she acquiesced to respondent.

The Court finds that petitioners have met their burden of showing estoppel.

Prejudice

Respondents argue that the District will be unfairly prejudiced by allowing the filing of the action as it relates to the 2012 claims. They do not explain how.

Based on estoppel, the motion is GRANTED.

Petitioner Doris Menendez is ordered to provide notice of this ruling.

DATED: May 5, 2016

_____________________________
Howard L. Halm
Judge of the Superior Court