James Willis began his employment with the City of Carlsbad’s Police Department in 2008. In 2012, Willis created a fictitious email account under a pseudonym, wrote a critical email about another detective who worked in his unit, and sent the email to various news organizations and government entities. In 2013, Willis was reassigned from the crimes of violence unit to patrol. In 2014, Willis was promoted to corporal and elected president of the local police officer’s association. In 2015, Willis complained that the Department’s monthly performance review for patrol officers constituted an illegal quota under the Vehicle Code because it collected statistical data about arrests and citations. Later that year, Willis was not selected for a promotion to sergeant.
In December 2015, Willis filed a complaint with the Department of Fair Employment and Housing and a government tort claim against the City, including, among other allegations, retaliation based on his reassignment to patrol in 2013 and failure to be promoted in 2015. The City deemed all acts occurring before June 2015—six months before the date it received Willis’s claim— as untimely because they occurred beyond the six-month period to present a claim under the Government Claims Act.
In 2016, Willis then brought a civil lawsuit against the City, alleging in part that the City engaged in whistleblower retaliation in violation of Labor Code section 1102.5 by denying him promotions after he reported alleged misconduct by another officer in 2012 and complained in 2015 about the Department program he believed was an unlawful quota system.
Before trial, the City successfully moved to strike Willis’s allegations of retaliatory acts that occurred before June 2015 on the grounds that he failed to timely present a government tort claim. The jury ultimately found that the City denied Willis a promotion in part because he reported that the City had engaged in unlawful conduct. However, the jury also found that the City would have still denied Willis the promotion for legitimate independent reasons, and therefore, the court entered judgment for the City on the whistleblower retaliation claims.
Willis appealed, claiming the trial court erred by striking certain allegations outside of the Government Claims Act’s six-month deadline. Willis argued that the deadline to file a government tort claim was either equitably tolled, or his whistleblower retaliation claim had not accrued because the continuing tort/continuing violation doctrine.
First, the court of appeal determined that the doctrine of equitable tolling, which suspends a statute of limitations under certain circumstances to ensure fairness, cannot be invoked to suspend the six-month deadline under the Government Claims Act because the deadline is not a statute of limitations. The court of appeal also stated that tolling would undercut the public policy underlying the deadline, which is to give a public entity prompt notice of a claim to enable it to adequately investigate and settle such claims without litigation, as appropriate. The court stated that these policy considerations would not be served by tolling the government claim deadline while a plaintiff pursues other legal remedies against a public entity.
Second, the court concluded that the six-month deadline under the Government Claims Act could not be extended as a continuing violation. The continuing violation doctrine allows liability for conduct occurring outside a statute of limitations if the conduct is sufficiently connected to conduct within the limitations period. To establish a continuing violation, an employee must show that the employer’s actions are: (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence. The court determined that Willis’s allegations, including reassigning him and denying him promotions, were permanent at the time the personnel decisions were made, which precluded application of the continuing violation doctrine.
For these reasons, the court of appeal held the trial court did not abuse its discretion in striking allegations from Willis’s complaint due to his failure to present a timely government claim.
Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104.
NOTE:
This case confirms that courts generally interpret an employee’s six-month deadline to file a government claim under the Government Claims Act as a strict deadline. Public entities maintain a unique status with respect to these protections since public entities will incur costs in the course of litigation that must ultimately be borne by taxpayers.