Filed 3/16/15 Assn. of Orange County Sheriffs v.

County of Orange CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT
DIVISION THREE

ASSOCIATION OF ORANGE COUNTY

DEPUTY SHERIFFS,
G049478
Plaintiff and Appellant,
(Super. Ct. No. 30-2010-00400085)
v.
OPINION
COUNTY OF ORANGE et al.,
Defendants and Respondents;
ORANGE COUNTY EMPLOYEES
ASSOCIATION,
Intervener and Respondent.

Appeal from a judgment of the Superior Court of Orange County,

Franz E. Miller, Judge. Affirmed.
The Krolikowski Law Firm, Adam J. Krolikowski; Olins, Riviere, Coates
& Bagula, Douglas F. Olins and Adam Chaikin for Plaintiff and Appellant.

Nicholas S. Chrisos, County Counsel, and Nicole M. Walsh, Deputy

County Counsel, for Defendants and Respondents.
Silver, Hadden, Silver, Wexlter & Levine, Richard A. Levine and Brian
Ross for Intervener and Respondent.
*

INTRODUCTION
The Association of Orange County Deputy Sheriffs (the Association) filed
a complaint against Orange County (the County), the Orange County Sheriffs
Department (the Department), and the County Sheriff Sandra Hutchens (the Sheriff), for
breach of the Associations memorandum of understanding with the County (MOU) and
1

violation of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, 3500 et seq.). The
Associations claims were based on allegations defendants wrongfully transferred duties
performed by deputy sheriffs to civilian employees referred to as CSAs without meeting
and conferring on the issue.
The Association filed a first amended complaint which, like its original
complaint, sought injunctive and mandamus relief for its claims. It also sought money
damages. The trial court sustained defendants demurrer to the first amended complaint
as to each cause of action on the ground it did not state a cause of action for money
damages because the Association failed to comply with the Government Claims Act
2

(Gov. Code, 900 et seq.) (the Act) by presenting a claim before filing suit.

We refer to the County, the Department, and the Sheriff collectively as

defendants.
2
In City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734, the Supreme
Court adopt[ed] the practice of referring to the claims statutes as the Government
Claims Act, to avoid the confusion engendered by the informal short title Tort Claims
Act.
2

The Association filed a second amended complaint which alleged

compliance with the claims filing requirements and attached an exhibit entitled Claim
for Money or Damages Against the County of Orange signed by the Associations
counsel two weeks after the first amended complaint was filed. (Some capitalization
omitted.) The trial court sustained defendants demurrer to the second amended
complaint, with leave to amend, on the ground the Association failed to timely present its
damage claims before filing suit.
The Association filed a third amended complaint that eliminated the
damages allegations. Instead, the third amended complaint contained a new fourth cause
of action against defendants for violation of the preliminary injunction that prohibited
defendants from filling any Deputy Sheriff positions which existed in the jail system on
September 24, 2010, with employees classified as CSAs other than were in effect on
September 24, 2010. The Association alleged over $2,000,000 in damages for the
violation of preliminary injunction cause of action.
The trial court granted defendants motion for summary adjudication as to
the violation of the preliminary injunction claim on the ground no triable issue of fact
existed showing defendants violated the preliminary injunction.
The Association argues the trial court erred by sustaining the demurrer to
the second amended complaint and by granting summary adjudication as to the violation
of the preliminary injunction claim. The Association also argues the court abused its
discretion by sustaining the defendants evidentiary objections to the Associations
evidence offered in opposition to the motion for summary adjudication.
We affirm. The Associations pleadings establish the Association failed to
timely present a claim for damages as required by the Act before pursuing claims for
damages against defendants. Those claims for damages are therefore barred under
Government Code section 945.4, unless the Association successfully sought relief from

its failure to satisfy this requirement. The appellate record does not show the Association
ever applied for such relief, under Government Code section 946.6 or otherwise. Instead,
the Association jettisoned its original damages claim when it filed a third amended
complaint in which it added a new cause of action for damages suffered as a result of the
defendants alleged violation of the preliminary injunction. We reject the Associations
argument it sought damages that were merely incidental to the injunctive and writ relief it
sought.
Even if we were to assume the trial court erred by sustaining defendants
evidentiary objections and thus consider all the evidence presented by the Association in
opposition to the motion for summary adjudication, the Association failed to demonstrate
the existence of a triable issue of material fact as to whether defendants violated the
preliminary injunction. Summary adjudication as to that claim was therefore properly
granted.

BACKGROUND
I.
THE ORIGINAL COMPLAINT; THE ISSUANCE OF THE PRELIMINARY INJUNCTION; AND THE
ORANGE COUNTY EMPLOYEES ASSOCIATIONS COMPLAINT IN INTERVENTION.
In August 2010, the Association sued defendants by filing a complaint

against them, asserting claims for breach of the MOU and violation of the MMBA.
Although the Association did not seek an award of damages, the complaint alleged as to
both the breach of the MOU claim and the violation of the MMBA claim that the
Association has suffered immediate damage due to the supplanting of [the
Associations] positions in the Orange County Jails, the permanent loss of bargaining unit
3

The Associations complaint, first amended complaint, second amended

complaint, and third amended complaint were all verified.
4

positions, and will continue to suffer loss of bargaining unit positions of Orange County
Jail staffing. In the complaint, the Association sought injunctive relief preventing
defendants from changing the status quo prior to [defendants] complying with the meet
and confer, bargaining and impasse procedures required by the MOU and the MMBA.
The complaint further prayed for the issuance of a peremptory writ of mandate
commanding defendants to follow the requirements of the MOU and the MMBA,
concerning meet and confer, bargaining and impasse procedures on the issue of the
CSAs impact on employment conditions and employer-employee relations.
In late September 2010, the trial court issued a preliminary injunction,
stating, in part, that during the pendency of the action, defendants were enjoined from
[f]illing any Deputy Sheriff positions which existed in the Orange County jail system on
July 30, 2010, with CSA employees other than had been in effect on July 30, 2010.
In mid-October 2010, the trial court issued a new preliminary injunction
which stated: IT IS HEREBY ORDERED that during the pendency of the
above-entitled action or until further court order, the County of Orange, Orange County
Sheriffs Department, and Orange County Sheriff Sandra Hutchens, Defendants/
Respondents in the above-entitled matter, their employees and agents are hereby enjoined
and restrained from filling any Deputy Sheriff positions which existed in the jail system
on September 24, 2010, with employees classified as CSAs other than were in effect on
September 24, 2010. [] The above injunction shall issue and become effective upon [the
Association]s filing an undertaking in the amount of $10,000 as required by law. []
The Preliminary Injunction previously signed and issued by the Court on September 28,
2010, is superseded and supplanted by this Order.
Also in mid-October 2010, the Orange County Employees Association
(OCEA) intervened in the action, by filing a complaint in intervention seeking, inter alia,
a judicial determination the County lawfully created the CSA classification to perform

duties by employees represented by OCEA and that employees that were then occupying
the CSA classification were vested with their current duties and responsibilities and were
properly placed within the bargaining unit represented by OCEA.
Defendants appealed from the order issuing the preliminary injunction
against them, arguing the Association failed to establish a likelihood of prevailing on the
merits of its claims and further failed to show it would suffer interim harm in the absence
of such an injunction. In the alternative, defendants argued the amount of the
undertaking ordered by the trial court was insufficient.
We granted defendants requests to stay the preliminary injunction and trial
court proceedings (including trial) pending resolution of their appeal. In an unpublished
opinion, this court affirmed the trial courts order issuing a preliminary injunction and
imposing a $10,000 undertaking. (See Assn. of Orange County Deputy Sheriffs v. County
of Orange (Sept. 28, 2011, G044502) [nonpub. opn.].)

II.
THE FIRST AMENDED COMPLAINT; THE BENCH TRIAL OF THE ASSOCIATIONS CLAIM
SEEKING INJUNCTIVE RELIEF AND A WRIT OF MANDAMUS; THE TRIAL COURT SUSTAINS
DEFENDANTS DEMURRER TO THE FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
FOR FAILURE TO COMPLY WITH THE ACT.
In March 2012, the trial court granted the Association leave to file a first
amended complaint. The first amended complaint reiterated the Associations claims that
defendants breached the MOU and violated the MMBA and sought the issuance of a writ
of mandate. In the general allegations section, the first amended complaint added the
allegation that the Association seeks all relief available from this Honorable Court,
including but not limited to injunctive relief and mandamus to maintain the status quo
until such time that all meet and confer, bargaining and impasse procedures, including
but not limited to mediation and arbitration, are completed pursuant to the MOU and the

MMBA. Further, AOCDS seeks damages in excess of $25,000. The first amended
complaint restated the allegation contained in the original complaint that the Association
had suffered immediate damage due to the supplanting of positions in the jails and the
permanent loss of bargaining unit positions, and that it would continue to suffer loss of
bargaining unit positions. The Associations prayer sought a writ of mandate and
injunctive relief, but also included a new general allegation that as to its cause of action
for breach of the MOU, the Association suffered damages in excess of $25,000.
The trial court severed the injunctive and writ relief causes of action from
the damages claim, and set trial on the injunctive and writ relief causes of action.
Defendants filed a demurrer on grounds including that Plaintiffs First Amended
Complaint, in its entirety, and each purported cause of action therein fails to state facts
sufficient to constitute a viable cause of action for money damages and any claim for
money damages is barred by Plaintiffs failure to make a timely Government Claim
pursuant to Government Code 900, et seq.
Before the hearing on the defendants demurrer, the trial court held a bench
trial on the injunctive and writ relief causes of action and on OCEAs complaint in
intervention. Following trial, the court granted the Association limited injunctive relief
and granted OCEA the declaratory relief it sought in its complaint in intervention. The
court found the creation of the CSA classification and assignment of that classification to
OCEA were lawful, but the effects of the CSA classification on deputy sheriffs
represented by the Association fell within the scope of representation, and were thus
subject to the meet-and-confer requirements of the MMBA. The trial court found no
violation of the applicable MOU.
The trial court ordered the issuance of a writ of mandate commanding
defendants and the Association to immediately meet and confer on the impacts of the
CSA classification on deputy sheriffs represented by the Association. The trial court also

enjoined defendants from placing any CSAs into positions not already occupied by
CSAs, pending the courts determination the parties satisfied the meet-and-confer
requirements.

The trial court sustained defendants demurrer to the first amended

complaint with leave to amend, stating its reasons in a minute order as follows: Failure
to present claim . . . under Govt Claims Act precludes relief even if the damages claim
accompanies a writ petition [citation] and p[etitioner]s cases do no[t] hold to the
contrary; re[garding] arg[ument] that pl[aintiff] is seeking wages, compl[aint] does not
allege pub[lic] emp[loyee] or sal[ary]/wages, and sec 905(c) appears to apply only to
sal[ary]/wages that have been earned but not p[aid] [citation]; wage claim is not merely
incidental to the req[ueste]d writ relief.

III.
THE ASSOCIATION FILES THE SECOND AMENDED COMPLAINT; THE TRIAL
COURT SUSTAINS DEFENDANTS DEMURRER WITH LEAVE TO AMEND ON
THE GROUND THE ASSOCIATION FAILED TO COMPLY WITH THE ACT.
In June 2012, the Association filed a second amended complaint containing
the same three claims it had alleged in its prior complaints, and added in its prayer as to
all causes of action, namely a request for an award of general damages, special damages,
and consequential damages against defendants for the damages suffered by plaintiff as a
result of defendants unlawful conduct pursuant to Code of Civ. Proc., 1095 and
provisions of the State and Federal Constitutions.
4

The Association appealed, arguing the trial courts order violated the contracts
clause of the California Constitution and was otherwise inadequate. In an unpublished
opinion, we affirmed the trial courts order, concluding the Association failed to
demonstrate how the trial courts order issuing a writ of mandate and providing
injunctive relief in favor of the Association constituted error. (See Assn. of Orange
County Deputy Sheriffs v. County of Orange (June 21, 2013, G047102) [nonpub. opn.].)
8

The second amended complaint also added the allegation that Petitioner
has complied with the claims filing requirements and attaches the claim and its rejection
by respondents as Exhibits A and B respectively. Exhibit A is a document entitled
Claim for Money or Damages Against the County of Orange executed by the
Associations attorney on March 21, 2012 (the Claim). (Some capitalization omitted.)
The Claim stated that September 28, 2011 was the [e]xact date . . . of the occurrence or
transaction which gave rise to the claim asserted and that it occurred in the Orange
County Jails and Court System. It described the circumstances of the occurrence or
transaction which [the Association] claim[ed] caused the damage/injury/loss as follows:
The County of Orange and the Sheriffs Department (1) refused to meet and confer per
the Meyers-Milias-Brown Act, (2) unilaterally implemented the Correctional Services
Assistant (CSA) classification, (3) supplanted Deputy Sheriffs from their positions in
violation of Court orders, (4) the CSA[s] were not removed from Deputy Sheriff
positions, (5) and work was not returned to Deputy Sheriffs as of September 28, 2011.
Resultant damages/injury/loss incurred so far as is known as of the time of this claim
were described as Deputy Sheriffs lost wages in the form of overtime due to their
supplantation. The Association itself lost dues that would have been collected for those
wages. The Claim stated that its computation of the amount of damages was based on a
declaration of Captain Davis Nighswonger executed on October 14, 2010, regarding the
additional monthly cost to the Department if the Sheriff were not permitted to use CSAs
in the capacity intended.
Exhibit B referenced in and attached to the second amended complaint is a
letter from the County Counsels office addressed to the Associations counsel, which
stated that the Claim, which was presented to the clerk of the board of supervisors on
March 22, 2012, was being returned because it was not presented within one year after
the occurrence or event as required by law. The letter explained: Notwithstanding the

fact that you assert in the claim that the date of the occurrence or transaction that gave
rise to the claim was September 28, 2011, that date has no actual relation to the
occurrences or transactions more specifically alleged in paragraph 8 of the form. The
events more specifically described in itemized numbers (1)-(3) of paragraph 8 on the
claim form occurred, if at all, in 2009 and 2010 rendering the claim untimely. Given the
untimely nature of your claim with respect to these events, any lawsuit for damages
arising from the occurrences and transactions described in the claim is barred. The letter
added, [t]o the extent that your claim or any portion thereof is deemed timely, please be
advised that it is hereby rejected on the merits.
Defendants demurred to the second amended complaint on grounds,
including, that each purported cause of action therein fails to state facts sufficient to
constitute a viable cause of action for money damages and any claim for money damages
is barred by Plaintiffs failure to make a timely Government Claim pursuant to
Government Code 900, et seq. Defendants argued the Association could not maintain
an action for money damages against defendants unless it had first presented a timely
written claim and the claim has been rejected in whole or in part. Defendants argued
exhibits A and B to the second amended complaint showed the claim for money damages
was not presented by the Association to the clerk of the board of supervisors until
March 22, 2012well after the Association amended its operative complaint to add a
cause of action for money damages on March 7, 2012.
The trial court sustained the demurrer with leave to amend for the following
reasons: Government claim for money damages against a public entity must be
presented before suit [is] filed [citation]; claim must be filed even if plaintiff seeks
mandate as well [citation]; damages are not incidental to writ relief as writ only requires
meet and confer [citation]; even if Responding Party plaintiff suffered damages as result
of violation of preliminary injunction and it is continuing injury, that is not what is

10

alleged; question is whether court should sustain without leave and entertain motion to
amend, or sustain with leave. The court further stated the Court having fully
considered the arguments of all parties, both written and oral, as well as the evidence
presented, now rules as follows: [] The Court orders Demurrer to Second Amended
ComplaintSUSTAINED with leave to amend. The court gave plaintiff 20 days leave
to file a third amended complaint.

IV.
THE ASSOCIATION FILES THE THIRD AMENDED COMPLAINT ADDING NEW CAUSE OF
ACTION SEEKING DAMAGES FOR VIOLATION OF THE PRELIMINARY INJUNCTION; THE
TRIAL COURT GRANTS DEFENDANTS MOTION FOR SUMMARY ADJUDICATION AS TO
THAT CLAIM; JUDGMENT IS ENTERED AND THE ASSOCIATION APPEALS.
In October 2012, the Association filed a third amended complaint which
contained a new claim against defendants for violation of the preliminary injunction and
for which the Association sought the recovery of damages in excess of $2,000,000. The
third amended complaint also contained the same three claims alleged in all prior
complaints, but deleted references to seeking the recovery of damages as to those claims.
Defendants moved for summary adjudication of the violation of the
preliminary injunction claim on the ground the undisputed facts show defendants did not
violate the terms of the preliminary injunction during the dates during which it was
effective. The trial court granted the motion for summary adjudication on the ground the
Association failed to show the existence of a triable issue of material fact with regard to
the violation of the preliminary injunction cause of action. The court stated, inter alia:
The un-rebutted Declaration of Buffy ONeil [offered by defendants in support of their
motion for summary adjudication] demonstrates that no Correctional Services Assistants
(CSA) were placed into Deputy Sheriff positions during the effective dates of the

11

preliminary injunction (September 24, 2010 to December 16, 2010 and November 29,
2011 to June 20, 2012).
The court overruled the Associations objections to some of defendants
evidence; none of those rulings is at issue in this appeal and we do not further refer to
them. The court sustained certain of defendants objections to evidence submitted by the
Association in opposition to the motion for summary adjudication. The court stated,
however, [e]ven if the court assumed that all of the evidence submitted by [the
Association] were admissible (it is not), none of it demonstrates that CSAs were placed
into Deputy Sheriff positions during the effective dates of the preliminary injunction in
violation of the preliminary injunction.
The Association filed a petition for a peremptory writ of mandate in this
court challenging the trial courts order granting summary adjudication. The petition was
denied by a panel of this court on October 31, 2013.
On November 20, 2013, judgment was entered by the trial court, stating in
part:
Pursuant to the June 20, 2012 Order, Writ and Statement of Decision on
[the Association]s First Amended Complaint and OCERAs Cross-Complaint, and the
July 3, 2013 Order Granting County/Sheriffs Motion for Summary Adjudication of [the
Association]s fourth cause of action contained in the Third Amended Complaint, IT IS
HEREBY ORDERED AND ADJUDGED THAT:
1. Judgment on the First Amended Complaint, second (MMBA/Injunctive
relief) and third causes of action (MMBA/Writ of Mandate) is entered in favor of [the
Association] against County/Sheriff.
2. Judgment on the First Amended Complaint, first cause of action (for
violation of the MOU) is entered in favor of County/Sheriff against [the Association].

12

3. Judgment on the Third Amended Complaint, fourth cause of action for

damages is entered in favor of County/Sheriff against [the Association] pursuant to the
Courts Statement of Decision and Order dated June 20, 2012.
4. Judgment on OCEAs Cross-Complaint for declaratory relief is entered
in favor of OCEA against [the Association] and County/Sheriff.
5. Prevailing parties entitled to costs of suit.
6. Court shall retain jurisdiction to determine that County/Sheriff have
complied with the Writ. Upon a determination that County/Sheriff has complied with the
terms of the Writ, the Court shall discharge the Writ and dissolve the accompanying
injunction.
The Association appealed.

DISCUSSION
I.
THE TRIAL COURT DID NOT ERR BY SUSTAINING THE DEMURRER TO
THE SECOND AMENDED COMPLAINT.
A.
Standard of Review
A judgment following the sustaining of a demurrer is reviewed under the
de novo standard. (McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138, 1144.)
We treat the properly pleaded allegations of a challenged complaint as true. (American
Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.)
We consider only the allegations of a challenged complaint and matters
subject to judicial notice to determine whether the facts alleged state a cause of action
under any theory. (American Airlines, Inc. v. County of San Mateo, supra, 12 Cal.4th at
p. 1118.) Further, we give the complaint a reasonable interpretation, reading it as a

13

whole and its parts in their context. [Citation.] When a demurrer is sustained, we
determine whether the complaint states facts sufficient to constitute a cause of action.
[Citation.] (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
B.
The Second Amended Complaint Was Properly Sustained with Leave to Amend.
The first time the Association sought money damages in this action was
when it filed its first amended complaint on March 7, 2012, in which it prayed for the
recovery of money damages only as to the first cause of action for breach of the MOU.
By the time the trial court ruled on the demurrer to the first amended complaint, it had
found, following the bifurcated trial, that defendants had not violated the MOU. After
the trial court sustained defendants demurrer to the first amended complaint for failure to
allege compliance with the Act, the Association filed the second amended complaint in
which it alleged it was in compliance with the Act because it presented the Claim on
March 21, 2012. The second amended complaint prayed for damages in connection with
all causes of action, but it asserted the same damages claimed in the first amended
complaint.
As we discuss in detail post, the demurrer to the second amended complaint
was properly sustained because the complaint did not show the Association presented its
claim for damages in compliance with the Act before filing suit, and did not show the
Association ever applied to defendants or to the trial court for leave to present a late
claim for damages, pursuant to Government Code sections 911.4 and 946.6. The claimed
damages are not incidental to its requested writ relief so as to render them exempt from
the claim presentation requirement. The Association did not allege facts supporting a
continuing injury theory or argue the impact such a theory would have on the
presentation requirement. Demurrer was the proper vehicle to challenge the
Associations claim to recover damages.

14

1.
The Association Failed to Present Its Claims for Damages
Before Filing Suit, in Violation of the Act.
Government Code section 905 requires that all claims for money or
damages against local public entities be presented to the responsible public entity before
a lawsuit is filed. Failure to present a timely claim bars suit against the entity.
( 945.4.) (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734, fn. omitted.)
Government Code section 945.4 provides in relevant part: [N]o suit for money or
damages may be brought against a public entity on a cause of action for which a claim is
required to be presented . . . 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, in accordance with Chapters 1 and 2 of Part 3 of this division.
When a claim that is required by Section 911.2

[5]

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.
(Gov. Code, 911.4, subd. (a).) Such an 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. The proposed
claim shall be attached to the application. (Id., 911.4, subd. (b).)
The second amended complaint did not include any factual allegations
regarding damages that were not included in the first amended complaint filed on
March 7, 2012. As to the violation of the MMBA claim, the second amended complaint
5

Government Code section 911.2, subdivision (a) provides: 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 as provided in Article 2 (commencing with Section 915) 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 as provided in Article 2 (commencing with
Section 915) not later than one year after the accrual of the cause of action.
15

generally alleged the Association has suffered immediate damage due to the supplanting
of [the Associations] positions in the Orange County Jails, the permanent loss of
bargaining unit positions, and will continue to suffer loss of bargaining unit positions of
Orange County Jail staffing. That allegation, however, was not only included in the first
amended complaint, it was in the original complaint filed in August 2010. The second
amended complaint only added a prayer for an award of damages as to all causes of
action pursuant to Code of Civil Procedure section 1095.
Nothing in the second amended complaint suggests that the Association
sought a recovery for damages that was different from damages already alleged in the
first amended complaint and that had accrued within the statutorily prescribed time frame
that would render timely the presentation of its claim on March 21, 2012. (See Gov.
Code, 911.4, subd. (a).) Instead, the second amended complaint contained the same
claims and sought the same damages it had sought through the first amended complaint,
which was filed before it had attempted to comply with the presentation requirement of
the Act.
2.
The Second Amended Complaint Did Not Allege the Association Sought Relief
from Its Failure to Timely Present Its Damages Claim.
Government Code section 946.6 provides a procedure for obtaining judicial
relief from the failure to file a timely claim should the public entity deny the application
to present the untimely claim, in part, as follows: 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 proper court for
filing the petition is a superior court that would be a proper court for the trial of an action
on the cause of action to which the claim relates. Subdivision (b) of section 946.6
provides that a petition for judicial relief shall show (1) that an application was made to

16

the board for relief under Government Code section 911.4 and that it was denied or
deemed denied; (2) the reason for the petitioners failure to present the claim within the
time limits specified in Government Code section 911.2; and (3) the information required
by Government Code section 910.

Judicial relief from the bar of Government Code section 945.4 shall be
provided to a petitioner pursuant to Government Code section 946.6, subdivision (c),
which provides: 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 that specified in subdivision (b) of
Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that one or
more of the following is applicable: [] (1) The failure to present the claim was through
mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes
that it would be prejudiced in the defense of the claim if the court relieves the petitioner
from the requirements of Section 945.4. [] (2) The person who sustained the alleged
injury, damage or loss was a minor during all of the time specified in Section 911.2 for
the presentation of the claim. [] (3) The person who sustained the alleged injury,
damage or loss was physically or mentally incapacitated during all of the time specified
in Section 911.2 for the presentation of the claim and by reason of that disability failed to
present a claim during that time. [] (4) The person who sustained the alleged injury,
damage or loss died before the expiration of the time specified in Section 911.2 for the
presentation of the claim.
The appellate record does not show the Association made any effort to seek
relief from its failure to comply with the Act before seeking damages against defendants.

Section 910 of the Government Code sets forth the requirements for a claim,
including the claimants contact information and details regarding the date, place, and
other circumstances pertaining to the claim.
17

We note that in sustaining the demurrer to the second amended complaint, the trial court
again granted the Association leave to further amend its pleading regarding its damages
allegations as to its claims for breach of the MOU, breach of the MMBA, and request for
the issuance of a writ of mandate. Instead of amending its pleading to allege facts
showing an excuse from compliance or to allege its efforts to seek relief from its failure
to comply with the Act, the Association filed the third amended complaint that omitted
any damages allegations as to the original three causes of action and added a fourth cause
of action against defendants seeking damages for defendants alleged violation of the
preliminary injunction.
Citing Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 438, the
Association argues the allegations in the second amended complaint showing that it
presented the Claim in March 2012 were sufficient to comply with the Act. In Bell v.
Tri-City Hosp. Dist., the plaintiffs filed a lawsuit for damages against a public entity
before having complied with the Act. (Bell v. Tri-City Hospital Dist., supra, at p. 441.)
Unlike the instant case, however, the plaintiffs applied to the public entity for leave to file
a late claim under Government Code section 911.4. (Bell v. Tri-City Hospital Dist.,
supra, at p. 441.) After the public entity denied the late claim application, the plaintiffs
successfully petitioned the trial court for relief from the written claim requirement. (Id. at
p. 442.) The record in this case does not show the Association has made any such efforts.
3.
The Association Failed to Show Its Claim for Damages Is Exempt from the Act.
The Association argues that because it sought a writ of mandamus, it is
7

entitled, under Code of Civil Procedure section 1095, to pursue damages which are
7

Code of Civil Procedure section 1095 provides: If judgment be given for the
applicant, the applicant may recover the damages which the applicant has sustained, as
found by the jury, or as may be determined by the court or referee, upon a reference to be
ordered, together with costs; and a peremptory mandate must also be awarded without
18

merely incidental to its requested writ relief and thus exempt from the presentation
requirement. Those actions which seek injunctive or declaratory relief and certain
actions in mandamus, . . . and where money is an incident thereto, are exempted from
[the Act]. (Eureka Teachers Assn v. Board. of Education. (1988) 202 Cal.App.3d 469,
475.)
In its opening appellate brief, the Association argues it should be entitled to
proceed on its claims for damages in the alleged amount of at least $23,980 per pay
period, incidental to defendants alleged transfer of deputy sheriff positions to CSAs
without first meeting and conferring in violation of the MMBA. In Lozada v. City and
County of San Francisco (2006) 145 Cal.App.4th 1139, 1163-1164, the appellate court
held: We are not persuaded that substantial civil penalties and actual damages do not
constitute money or damages within the meaning of the Government Claims Act.
While there appears to be a split of authority over whether money damages that may be
incidental to a claim for equitable relief are subject to the claim filing requirement of
the Government Claims Act, we are aware of no case that holds that civil penalties of the
type sought here ($25,000 per incident) and actual damages that are the primary relief
sought and not merely incidental to injunctive or other extraordinary relief, do not
constitute a claim for money or damages in the first instance.
We conclude the Associations claimed damages are not merely incidental
to the Associations request for equitable relief because they are not merely incidental to
defendants alleged failure to meet and confer regarding assignment of CSAs. Indeed,
those claimed damages are and always have been the damages sought by the Association.
The Association does not cite any legal authority that supports its argument. Thus, the

delay. Damages and costs may be enforced in the manner provided for money judgments
generally. . . .
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Association was required to comply with the Act before seeking damages against
defendants.
In its opening appellate brief, citing to evidence it submitted in support of
its motion for summary judgment, the Association argues defendants have continued to
supplant deputy sheriffs so that the number of Deputy Sheriff positions lost to CSAs
reached about 141 CSAs in March 2012. Plaintiff did not make such an allegation in
the second amended complaint; even though leave to amend was granted, the Association
did not assert such an allegation in the third amended complaint either. We therefore do
not address whether such an allegation might have supported a continuing injury theory
or whether such an allegation would have otherwise affected the applicability of the Act
to the Associations claim for damages.
4.
Demurrer Was Appropriate to Challenge the Associations Claim for Damages.
The Association also argues [a] demurrer is not the appropriate vehicle to
challenge a portion of a cause of action demanding an improper remedy. As discussed
ante, the Associations claims for breach of the MOU, violation of the MMBA and
mandamus relief were already tried to the court for purposes of determining the
availability of injunctive relief or the issuance of a writ of mandamus. The second
amended complaint, to which defendants demurred, contained the same claims but only
as they related to the recovery of damages. The California Supreme Court in State of
California v. Superior Court (2004) 32 Cal.4th 1234, 1243 held that a plaintiff must
allege facts demonstrating or excusing compliance with the claim presentation
requirement. Otherwise, his complaint is subject to a general demurrer for failure to
state facts sufficient to constitute a cause of action. (Italics added.) Therefore, a
demurrer was the proper procedural vehicle to challenge the Associations claims solely

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seeking damages on the ground the Association failed to comply with the Act. The trial
court did not err by sustaining defendants demurrer to the second amended complaint.
II.
SUMMARY ADJUDICATION WAS PROPERLY GRANTED AS TO THE CAUSE OF ACTION FOR
VIOLATION OF THE PRELIMINARY INJUNCTION IN THE THIRD AMENDED COMPLAINT.
The Association contends the trial court erred by granting the motion for
summary adjudication as to the cause of action for violation of the preliminary injunction
because the trial court erred by sustaining certain of defendants objections to the
Associations evidence. We do not need to review whether any of the challenged
evidentiary rulings were in error because, for the reasons we will explain, the
Associations evidence as a whole did not rebut defendants evidence showing they did
not violate the preliminary injunction. The Association failed to show the existence of a
triable issue of material fact as to that claim.
A.
Applicable Standard of Review and Burdens of Proof
We review orders granting summary judgment or summary adjudication
de novo. [Citations.] A motion for summary judgment or summary adjudication is
properly granted if the moving papers establish there is no triable issue of material fact
and the moving party is entitled to judgment as a matter of law. [Citations.] (Mooney v.
County of Orange (2013) 212 Cal.App.4th 865, 872.) The moving party bears the
burden of showing the court that the plaintiff has not established, and cannot reasonably
expect to establish, a prima facie case . . . . [Citation.] [Citation.] [O]nce a moving
defendant has shown that one or more elements of the cause of action, even if not
separately pleaded, cannot be established, the burden shifts to the plaintiff to show the
existence of a triable issue; to meet that burden, the plaintiff may not rely upon the mere
allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts

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showing that a triable issue of material fact exists as to that cause of action . . . .
[Citations.] [Citation.] (Lyle v. Warner Brothers Television Productions (2006) 38
Cal.4th 264, 274.) We liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that party.
(Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
B.
The Parties Agree on the Terms and the Effective Dates of the Preliminary Injunction.
The Associations responsive separate statement reflects the parties
agreement as to the scope and the effective dates of the preliminary injunction,
summarized as follows. The preliminary injunction, as modified, had an effective date of
September 24, 2010, and enjoined the Sheriff from filling any deputy sheriff positions
which existed in the jail system on September 24, 2010, with employees classified as
CSAs. Defendants appealed from the order granting the preliminary injunction and, on
December 16, 2010, successfully obtained an immediate stay of the preliminary
injunction, which would remain in effect until this courts opinion in defendants appeal
became final. On September 28, 2011, this court affirmed the issuance of the preliminary
injunction against defendants and the stay was lifted effective November 29, 2011. On
June 20, 2012, the trial court issued its statement of decision and order and vacated the
preliminary injunction.
C.
The Association Failed to Produce Evidence Rebutting Defendants Evidence Showing
They Did Not Violate the Preliminary Injunction.
In support of the motion for summary adjudication, defendants submitted
the declaration of the Departments human resources manager, Buffy ONeil, in which
ONeil stated: In my position of the Human Resource Manager for the OCSD,
I oversaw the adoption and implementation of the Correctional Services Assistant

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(CSA) position within the OCSD. I am aware of all instances when CSAs have been
hired and/or utilized to positions in the County jail system. She further stated: Based
upon my personal knowledge and on my position as the Human Resources Manager,
there were no CSAs who were utilized for filling any Deputy Sheriff positions which
existed in the jail system on September 24, 2010, other than were in effect on
September 24, 2010, during the dates the Preliminary Injunction was in effect,
specifically from: (a) September 24, 2010 (the effective date) through December 16,
2010 (when the stay was issued by the Court of Appeal, Case No. G044502); and
(b) November 29, 2011 (the date of the finality of the Court of Appeal Opinion) through
June 20, 2012 (the date the Preliminary Injunction was vacated).
In opposition to the motion, the Association submitted the declaration of its
counsel, Adam Krolikowski, in which he stated Defendants refused to comply with the
Preliminary Injunction as written, citing to a letter, dated November 29, 2011, from
County Counsel and addressed to Krolikowski stating that The Sheriff is in compliance
with the preliminary injunction effective upon the finality of the Court of Appeal[]
decision . . . as that decision directs. Nothing in the Court of Appeal[] decision, wherein
the stay on the preliminary injunction was lifted, requires the Sheriff to alter staffing in
the jails retroactive to the levels that existed on September 24, 2010. Indeed, the Court of
Appeal[] found that the injunction is prohibitory not mandatory in nature, which means
that only prospective (not retroactive) compliance is required. Neither Krolikowskis
assertion nor the November 29, 2011 letter shows that defendants violated the
preliminary injunction.
Krolikowskis declaration also asserted: After Remittitur issued and the
stay on the Preliminary Injunction was lifted, Defendants continued their violation of the
Preliminary Injunction. During this time period, several positions formerly belonging to
Deputy Sheriffs were given to CSAs. (True and correct copies of County of Orange

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Master Position Control Authorized Positions and Watch Lists providing examples of
Deputy Sheriff positions and duties reassigned to CSAs after the institution of the
Preliminary Injunction are attached hereto as Exhibit 5.) Exhibit 5 consists of several
pages of spreadsheets with undefined codes and abbreviations. Several of the pages have
the heading SHERIFF COURT OPERATIONS (boldface omitted); the preliminary
injunction applied to jail operations only. The Association did not provide any evidence
regarding the creation of the documents or how they should be interpreted. These
documents do not show on their face the placement of CSAs, during the effective dates of
the preliminary injunction, in positions that were deputy sheriff positions as of
September 24, 2010. Consequently, they do not rebut ONeils declaration and cannot
create a triable issue of material fact as to whether defendants violated the preliminary
injunction.
Krolikowskis declaration also cites the declarations and deposition
testimony of Nighswonger regarding the increasing number of CSAs working in the jail
system. The preliminary injunction, however, did not prohibit defendants utilization of
CSAs in the jail system. It only prohibited their assignment, during the effective dates of
the preliminary injunction, to positions that were deputy sheriff positions as of
September 24, 2010.
As the Association failed to produce any evidence that even a single CSA
was placed in a position that had been a deputy sheriff position as of September 24, 2010,
during the effective dates of the preliminary injunction, summary adjudication was
properly granted as to the cause of action for violation of the preliminary injunction.
III.
THE ASSOCIATION HAS NOT CHALLENGED THE JUDGMENT AS TO OCEA.
OCEA filed a respondents brief in this case, arguing that the trial court
properly awarded it declaratory relief in its favor following the court trial on the

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Associations claims against defendants and on OCEAs cross-complaint. As

acknowledged by the Association in its reply brief, the Association has not challenged
any aspect of the judgment as it pertains to OCEA in this appeal. We therefore do not
need to address OCEAs arguments in favor of upholding the judgment in this case.

DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.

FYBEL, J.
WE CONCUR:

OLEARY, P. J.

IKOLA, J.

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