Friday, February 13, 2026
Page 3
Court of Appeal:
Whistleblower Action Over Ex-Sheriff’s Corruption Is Revived
Opinion Says Judge Improperly Sustained Demurrer to Retaliation Complaint by Santa Clara County Worker
By Kimber Cooley, associate editor
The Sixth District Court of Appeal has held that trial judge erred in sustaining a demurrer, without leave to amend, to a complaint alleging whistleblower retaliation and related claims against the County of Santa Clara stemming from the plaintiff’s cooperation with an investigation into unlawful conduct on the part of the then-sheriff.
That probe led to public corruption allegations against Laurie Smith, who on Dec. 15, 1998. had become the first female sheriff in California’s history. She resigned on Oct. 31, 2022, before the end of her latest term and prior to a special civil jury proclaiming that she did, indeed, trade concealed-carry weapons permits for political favors.
In an unpublished opinion filed Tuesday and posted on the California Courts website yesterday, the court said that Santa Clara Superior Court Judge Evette Pennypacker erred in ruling that the continuing violation doctrine could not save the plaintiff’s claims from a timeliness challenge.
Justice Charles Edward Wilson, writing for the court, declared:
“[W]e conclude that the date of accrual of [the plaintiff’s] causes of action here is a question of fact that cannot be decided as a matter of law in the context of the County’s demurrer.”
Acting Presiding Justice Allison M. Danner and San Diego Superior Court Judge Lisa Rodriguez, sitting by assignment, joined in the opinion.
Retaliation Claims
Asserting whistleblower retaliation and other claims against the county was Lara McCabe, a civilian employee of the Sheriff’s Department who worked as a senior management analyst during Smith’s tenure. In 2020, McCabe began cooperating with an investigation by the District Attorney’s Office into allegations that the then-sheriff was sidestepping gift-reporting laws and engaging in a pay-to-play scheme for issuing permits.
Alleging that she was harassed after her cooperation was revealed, McCabe filed a complaint against the county on Nov. 3, 2023, one year to the day after Smith was found guilty of corruption by a jury.
In the operative pleading, McCabe claimed that, “in an effort to intimidate the employees such as…McCabe who would be testifying in the investigation,…Smith regularly notified members of her department that she read the investigation transcripts and knew” what was said and that “Plaintiff suffered so much retaliation and intimidation from other employees…[that] the county [chief executive officer] felt compelled to ask [her] if she felt safe at work.”
She further asserted that “the pattern of ongoing hostile environment and retaliation continued” after Smith’s departure on Oct. 31, 2022, saying she “had duties and responsibilities stripped from her” and that Smith’s replacement, Robert Jonsen, “shun[ned]” her after being sworn into office on Jan. 2, 2023.
Claim Submitted
McCabe submitted a claim to the county on April 14, 2023, as required by the Claims Act provisions found at Government Code §§905 and 910. The document summarized the factual allegations leading up to Smith’s retirement on Oct. 31 but did not detail any event occurring after that date; the county responded to the filing by providing a “notice of return without action,” greenlighting her ability to pursue litigation in court.
The county filed a demurrer to the plaintiff’s operative complaint in March 2024, arguing that she failed to comply with the Claims Act, which requires a party to present a public entity with a claim no later than six months after the accrual of the cause of action. According to the county, she is barred from pursuing causes of action that relate to events that occurred before Oct. 14, 2022.
Addressing the continuing violation doctrine, which deals with unlawful actions that are best characterized as a single court of conduct, the county asserted that “the alleged events after [Oct. 14, 2022]…bear little to no similarity to the alleged adverse employment actions that occurred before [that date] primarily at the hands of Smith.”
After a hearing, Pennypacker sustained the demurrer without leave to amend on June 3, 2024. A judgment of dismissal was entered 10 days later.
Continuing Violation
Saying that the continuing violation doctrine is an exception to the general rule that a cause of action is deemed to have accrued when all of its elements have been met, Wilson wrote:
“Although the doctrine most commonly applies where a statute of limitations is at issue, it can also apply to postpone accrual for purposes of determining when a plaintiff was required to present a claim pursuant to the Claims Act.”
The jurist acknowledged that “the April 14, 2023[] claim was timely for any of McCabe’s causes of action which accrued…no earlier than October 14, 2022” but commented that the continuing violation doctrine, if applicable, would “aggregate a series of sufficiently connected wrongs or injuries for purposes of determining when a plaintiff was required to present a claim.”
He noted that the California Supreme Court has held that the doctrine applies to retaliation causes of action if the employer’s actions over time were sufficiently similar, occurred with reasonable frequency, and did not acquire a degree of permanence.
Applying that standard, he remarked:
“Our task…is to determine whether reasonable minds could conclude that the factors of the continuing violation doctrine apply….If they could, then the date of accrual here is a question of fact that cannot be decided as a matter of law in the context of the County’s demurrer.”
Look Backwards
Reasoning that the determination required the court to “look backwards to the alleged injuries that occurred before October 14, 2022, to assess whether the unlawful conduct that occurred outside the six-month presentation period is sufficiently connected to the unlawful conduct within the presentation period,” he said:
“[C]onstruing [the allegations] in the light most favorable to McCabe…we conclude McCabe has alleged sufficient facts which, if established, would enable a reasonable trier of fact to conclude that the County’s retaliatory actions prior to and during the six-month claim presentation period were sufficiently similar in kind….A trier of fact could conclude, for instance, that the retaliatory conduct McCabe endured from Smith and the County prior to October 14, 2022, was similar to the retaliatory conduct she endured…after that date, in that all of it punished her for having participated in the investigations into the sheriff.”
Pointing out that the operative pleading alleged that other co-workers mistreated her even before the disgraced sheriff’s retirement, Wilson was not persuaded by the county’s argument that Smith’s leaving the office fundamentally shifted the nature of the harassment McCabe purportedly suffered.
Other Actors
He added:
“In addition, the County disregards the allegations that McCabe continued to suffer retaliation by Smith after October 14, 2022….In other words, not all the post-October 14, 2022, allegations involved…actors other than Smith.”
Opining that “a reasonable trier of fact could conclude that the alleged acts occurred reasonably frequently between January 2020 and April 14, 2023” and that “we cannot conclude as a matter of law that the County’s actions made clear to a reasonable employee in McCabe’s position that any further efforts to end the alleged unlawful conduct would have been futile,” he declared:
“McCabe’s causes of action are not barred for the failure to timely comply with the Claims Act.”
Declining to “reach the other grounds in the County’s demurrer,” he said:
“[B]ecause the demurrer was not properly sustained as to the [retaliation] action, we must reverse the judgment of dismissal, which means that we cannot affirm it in its entirety on any other ground stated in the demurrer.”
The case is McCabe v. County of Santa Clara, H052286.
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