Case Number: BC548317    Hearing Date: September 15, 2014    Dept: 34

Moving Party: Defendant Michelle Mead (“defendant”)

Resp. Party: Plaintiff Otis Vann Jr. (“plaintiff”)

Defendant’s demurrer to plaintiff’s complaint is SUSTAINED with leave to amend.

Defendant’s Request for Judicial Notice of Exhibit A is GRANTED. (See Evid. Code, § 452(d).)

PRELIMINARY COMMENTS:

Because the Court has sustained the demurrer for plaintiff’s failure to allege compliance with the Tort Claims Act, it need not reach the alternate grounds argued in the demurrer that the complaint is barred by the applicable Statute of Limitations.

BACKGROUND:

Plaintiff commenced this action on 6/11/14 against defendant for legal malpractice. Plaintiff alleges that defendant, a deputy public defender, was appointed to represent plaintiff in a criminal action. (Compl., ¶¶ 1, 3.) Plaintiff alleges that defendant negligently failed to retrieve surveillance footage that would have exonerated plaintiff. (Id., ¶¶ 4-5.)

ANALYSIS:

Defendant demurs to the entire complaint on the ground that plaintiff fails to allege sufficient facts to support his claims.

Defendant argues that plaintiff’s claims fail because he has not alleged compliance with Government Code section 911.2. “Timely claim presentation is not merely a procedural requirement, but rather, a condition precedent to plaintiff’s maintaining an action against defendant, and thus, an element of the plaintiff’s cause of action. [Citation.] A complaint which fails to allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action. [Citation.]” (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1238.)

In Briggs v. Lawrence (1991) 230 Cal.App.3d 605, the court addressed similar facts, claims, and arguments as presented here. In Briggs, the plaintiff sued the Public Defender of Monterey County and deputy public defenders for legal malpractice. (Id. at p. 609.) The plaintiff did not plead that he had filed a claim against Monterey County under the Tort Claims Act, and the court addressed the question of whether he was required to do so. (Ibid.) The court found that, because the public defenders who represented assigned clients were public employees acting within the scope of their employment, the plaintiff was required to file a claim against the county. (Ibid.)

The Tort Claims Act provides that “[a] public entity may … be sued,” but that with specified exceptions “no suit for money or damages may be brought against a public entity … until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board ….” [Citations.] Where required, the claim must be filed within six months after accrual of the cause of action; leave to file a claim after the six-month deadline must be sought within one year after accrual of the cause of action. [Citations.] The purpose of the claim procedure is said to be to give the public entity an opportunity for early investigation and thus to settle just claims before suit, to defend unjust claims, and to correct conditions or practices which gave rise to the claim. [Citations.]

Employees of public entities may be sued as individuals [citation], and the Tort Claims Act incorporates no requirement that a claim be filed against the employee. If the injury on which suit was based arose out of an act or omission within the scope of the employee’s employment, the employee may tender defense to, and may thereupon become entitled to indemnification by, the public-entity employer. [Citations.] The drafters of the Tort Claims Act perceived that unless some kind of a claim procedure were made a precondition to suit against individual public employees, the protection provided by the requirement of a claim against the entity would be “largely negate[d]”: “[I]f an action against the public entity were barred because a claim was not presented to the public entity …, the claimant could, nevertheless, bring an action against the employee involved and recover a judgment which the public entity ordinarily would then be required to pay” without having had the opportunities for early investigation, prompt settlement, adequate defense, and remedial action the claim procedure was intended to provide. [Citation.] Accordingly the Legislature included in the Tort Claims Act what amounts to a requirement that (with exceptions not relevant here) one who sues a public employee on the basis of acts or omissions in the scope of the defendant’s employment have filed a claim against the public-entity employer pursuant to the procedure for claims against public entities. [Citations.] Failure to allege compliance renders the complaint in such an action subject to general demurrer. [Citations.]

(Id. at pp. 612-613 [italics in original].) The court noted that the plaintiff’s complaint alleged that the individual defendants were employed by and acting as public defenders, and thus alleged that the defendants were public employees acting within the scope of their employment. (Id. at p. 613.) The court held that “a salaried full-time public defender engaged in representing an assigned client is a public employee acting in the scope of his or her employment within the meaning of the California Tort Claims Act. Our holding will require that a client who sues such a public defender for malpractice file, as a precondition to suit, a Tort Claims Act claim against the employing public agency.” (Id. at p. 618.) Thus, the plaintiff was required to file a claim against the county and his failure to allege compliance rendered the complaint demurrable. (Id. at p. 619.)

Here, plaintiff alleges that defendant was a deputy public defender and that she was assigned to represent plaintiff in his criminal action. (See Compl., ¶¶ 1, 3.) This is sufficient to allege that defendant was a public employee acting within the scope of her employment. Plaintiff fails to allege that he filed a claim with the county. Therefore, plaintiff’s complaint is subject to a general demurrer.

Accordingly, defendant’s demurrer to plaintiff’s complaint is SUSTAINED with leave to amend.