Metropolitan News-Enterprise


Friday, January 19, 2007


Page 1


Defect in Notice May Bar Denial of Claim’s Timeliness—C.A.


By Kenneth Ofgang, Staff Writer


A county which rejected two tort claims, informing the claimant each time that he had six months in which to sue, may be estopped to claim that the second notice was merely an amendment to the first and did not extend the time to sue, the Fifth District Court of Appeal has ruled.

The court Wednesday reinstated retired Sheriff’s Sgt. Michael Sofranek’s suit against Merced County. Sofranek, who retired in December 2004, alleges that the county violated civil service rules and a labor agreement by promoting a fellow sergeant to commander without advertising the vacancy and without using a competitive selection process. 

Sofranek filed a tort claim with the county in January 2004, alleging that he suffered over $300,000 in lost pay and retirement benefits as a result of not being promoted, and that the county gave his colleague the promotion in order to settle a sexual harassment suit filed by the sergeant’s wife.

About two months later, the county sent Sofranek a rejection notice, informing him that he had only six months, as provided in Government Code Sec. 945.6, to bring suit.

In July 2004, he filed another claim, containing the same basic allegations but adding a number of details, including a narrative of his conversations with county officials and lawyers and his efforts to obtain an administrative remedy. A month later, the county again rejected the claim and sent Sofranek an identical rejection notice.

Amended Complaint

Sofranek filed suit against the county in January 2005. The county demurred, saying the complaint was untimely because it was not filed within six months of the first rejection notice.

The judge agreed, ruling that the second claim was an amendment to the first, so that it related back and did not extend the time in which to sue beyond the expiration of the original six-month period in July, but granted leave to amend.

In an amended complaint, Sofranek alleged that he understood the original claim to have been rejected as factually insufficient, so he filed the amended claim in order to supply the necessary allegations. He further alleged that because he received an identical rejection notice informing him that he had six months from rejection of the second claim to sue, he assumed that he could sue up until February 2005, and that the county should be estopped from arguing otherwise.

Merced Superior Court Judge Ronald W. Hansen disagreed, sustaining a demurrer to the amended complaint without leave to amend.

Justice Gene Gomes, writing for the Court of Appeal, agreed with the trial judge that the second claim related back, rendering the suit untimely in the absence of estoppel. Gomes explained that since none of the additional detail added by the second claim was necessary to bring suit, the law requires that it be treated as an amendment to the prior filing rather than as a discrete claim.

The justice distinguished a 1985 case in which a second claim in a wrongful death case was held to be a new claim, rather than an amendment. There, he explained, the first claim was legally deficient because it failed to name all of the heirs, a statutory requisite to a wrongful death suit.

Facts Sufficiently Pled

He contrasted that with Sofranek’s action, in which the original claim “set forth the fundamental facts giving rise to the plaintiff’s injury,” and thus complied with the statute without the need for the narrative contained in the second claim.

Gomes, however, agreed wit the plaintiff that he had sufficiently pled equitable estoppel.

In doing so, the justice rejected the argument that the first rejection notice placed Sofranek on notice of the need to inquire as to exceptions to the six-month limit. The only statute that the notice referenced with respect to the issue, the jurist said, was Sec. 945.6, which makes no reference to amended claims.

“In sum, Sofranek has pled sufficient facts which, if established, would show he reasonably relied on the County’s conduct and it would therefore be inequitable to permit respondents to assert that the County intended to stand upon the first rejection notice as commencing the six-month limitations period,” the jurist wrote. “Accordingly, the trial court erred in sustaining the demurrer to the first amended complaint.”

The case is Sofranek v. Merced County, 07 S.O.S. 327.


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