Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC359237, Mel Red Recana, Judge.
The Krolikowski Law Firm and Adam J. Krolikowski for Plaintiff and Appellant.
Manning & Marder, Kass, Ellrod, Ramirez, Christy L. O’Donnell and Candace E. Kallbarg for Defendants and Respondents.
MANELLA, J.
INTRODUCTION
Appellant Sergio Rojas appeals from a judgment dismissing his wrongful discharge action against respondents County of Los Angeles (County) and the Department of Animal Care and Control of Los Angeles County. The court ruled that appellant had untimely presented his government claim to the County prior to bringing suit, and sustained respondents’ demurrer without leave to amend. Appellant contends that his claim, presented within one year of his discharge, was timely. Respondents contend that appellant was required to present the claim within six months. We conclude the six-month period applied in this case, and affirm the judgment.
BACKGROUND
Appellant’s second amended complaint (SAC) alleged that he was a registered sex offender, and that he had been employed by the County for more than 30 years. The SAC alleged that although his employer had known of his registered-offender status for some time, he was constructively discharged when he was forced to resign after his information was posted on the Internet pursuant to California’s “Megan’s Law.” The first cause of action of the SAC alleged that the termination of appellant’s employment violated the prohibition against the use of the information so posted for any purpose relating to employment. The second cause of action alleged that the termination of appellant’s employment violated his civil rights under Civil Code section 52.1.
See Penal Code sections 290.4, 290.46.
See Penal Code section 290.46, subdivision (l)(2)(E).
Respondents generally demurred to each cause of action and to the entire SAC. The trial court did not rule on the demurrers to the individual causes of action, but sustained the demurrer to the entire SAC without leave to amend and dismissed the action. Judgment of dismissal was entered August 22, 2007. Appellant prematurely filed his notice of appeal June 25, 2007. However, we treat the premature notice of appeal as having been filed immediately following entry of judgment, and thus, timely.
DISCUSSION
1. Standard of Review
On appeal from a judgment of dismissal entered after a general demurrer is sustained without leave to amend, our review is de novo. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Thus, we independently examine the allegations of the complaint to determine whether it states a cause of action. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 542.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .’ [W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
2. Relevant Claim Presentation Requirements
Prior to bringing an action for money or damages against a public entity, a plaintiff must present a timely claim to the public entity. (Gov. Code, §§ 905, 911.2, 945.4.) Compliance with the statutory requirements is an element of the plaintiff’s cause of action; thus, failure to allege the timely presentation of a claim will subject the complaint to a general demurrer. (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1237.)
All further statutory references are to the Government Code, unless otherwise indicated.
A claim is timely if presented to the public entity within one of the two periods set forth in section 911.2, subdivision (a): “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented . . . not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented . . . not later than one year after the accrual of the cause of action.”
3. Wrongful Discharge in Violation of Public Policy: Applicable Limitations Period
The SAC alleged that appellant was constructively discharged September 27, 2005, and that he presented his claim to the County on August 30, 2006, 11 months later. Appellant contends that his claim was timely presented, arguing that the one-year limitations period of section 911.2, not the six-month period, applied to his cause of action, because the SAC did not allege bodily injury. Respondent contends that California courts have held that actions for wrongful termination based on public policy sound in tort and are governed by the six-month period. We agree with respondent.
The six-month period set forth in section 911.2 covers, inter alia, claims for death or injury to a person or to personal property. These may encompass claims for negligence as well as intentional torts, including breach of a statutory duty. (See Toscano v. County of Los Angeles (1979) 92 Cal.App.3d 775, 780; San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 557.) Claims for other causes of action are subject to the one-year period. Claims covered by the one-year period generally result from breach of contract. (See Voth v. Wasco Public Util. Dist. (1976) 56 Cal.App.3d 353, 356 [former 100-day filing period covers only tort claims, while one-year period covers claims arising out of contract].)
“‘Injury’ means death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.” (§ 810.8.)
The SAC set forth two causes of action for wrongful discharge in violation of statute. The first alleged that appellant was constructively discharged from his employment because he was identified on the Internet as a sex offender, in violation of Penal Code section 290.46, subdivision (l)(2)(E), which prohibits the use of such information for any purpose relating to employment. “Apart from the terms of an express or implied employment contract, an employer has no right to terminate employment for a reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision. [Citation.] An actual or constructive discharge in violation of fundamental public policy gives rise to a tort action in favor of the terminated employee. [Citations.]” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252.) Appellant’s second cause of action alleged that appellant was forced to resign in violation of Civil Code section 52.1, a provision of the Unruh Civil Rights Act. Claims under the Unruh Act also sound in tort. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 763-764.)
The declared public policy behind Penal Code section 290.46, subdivision (l)(2)(E), incorporated from the earlier notification statute, Penal Code section 290, was that the notification requirements should not impose additional punishment or retribution. (See Stats. 2005, ch. 722, § 12, incorporating Stats. 1996, ch. 908.) Indeed, the SAC incorporated that public policy by quoting a portion of the Legislature’s declaration:
In Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293 (Colores), the plaintiff sued her former employer, a state university, for wrongful constructive discharge in violation of public policy. In determining the timeliness of the claim, the court applied the six-month period of section 911.2: “Here, plaintiff filed her claim with the State Board of Control on January 5, 1999. Thus, if her cause of action against the university for tortious wrongful constructive discharge accrued prior to July 5, 1998, it was not timely filed.” (Colores, supra, 105 Cal.App.4th at p.1320.)
Appellant attempts to distinguish Colores on the ground that there, the plaintiff’s cause of action for tortious discharge in violation of public policy included a prayer for damages for a stress-induced aggravation of a physical disability. Appellant suggests that the court applied the six-month period of section 911.2 only because the relief requested included compensation for physical injury. Because appellant alleges no physical injury, he contends his complaint is subject to the one-year period.
We disagree. Nothing in Colores suggests such a narrow reading of section 911.2. Indeed, the dispute there centered around the accrual date from which the six-month period began to run, not whether any other limitations period might apply. Moreover, “injury to person” is not limited to physical injury. (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 63, fn. 7 [six-month “‘injury to person’” period applicable to legal malpractice action and loss of reputation].) Nor are claims subject to the six-month period of section 911.2 limited to ones alleging injury to person, but include claims for injury to property which, under section 810.8, includes “loss of property.” Here, appellant seeks, inter alia, “lost wages and benefits.”
The cases on which appellant’s relies are inapposite. Myers v. County of Orange (1970) 6 Cal.App.3d 626, involved a claim of wrongful discharge premised on a breach of an employment contract. (Id. at pp. 630-631.) Similarly, Magnus v. Jackson (1973) 31 CalApp.3d 399, was an attorney’s action for the reasonable value of legal services, which also sounds in contract. Here, in contrast, appellant’s claims for wrongful discharge in violation of public policy sound in tort, and such claims have been held subject to the six-month period. (See Colores, supra, 105 Cal.App.4th at p. 1320.)
City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, cited by appellant’s counsel at oral argument, is also inapposite. There, a city brought suit against a county for misallocating tax revenues. The county attempted to claim immunity under section 860.2 which bars suits for “an injury” caused by the interpretation or application of a tax law. The Supreme Court held that a taxing authority’s failure to comply with its duty to correctly allocate and distribute tax revenues did not constitute an “injury” within the meaning of section 810.8, as the wrong complained of was not, by definition, one that could be committed by one private person against another.
Appellant’s claim, presented nearly 11 months after the termination of his employment, came too late. As appellant has not suggested that he would be able to amend his complaint to allege a breach of an express or implied term of his employment contract, we must affirm the trial court’s denial of leave to amend. (See Blank v. Kirwan, supra, 39 Cal.3d at p. 318 [burden falls squarely on plaintiff to show possibility of amendment].)
DISPOSITION
The judgment is affirmed. Respondents shall have costs on appeal.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
“(f) . . . This policy of authorizing the release of necessary and relevant information about serious and high-risk sex offenders to members of the general public is a means of assuring public protection and shall not be construed as punitive. [¶] (g) The Legislature also declares, however, that in making information available about certain sex offenders to the public, it does not intend that the information be used to inflict retribution or additional punishment on any such person convicted of a sexual offense. . . .” (Stats. 1996, ch. 908, § 1.)