Fear Not Law Articles: SOFRANEK v. MERCED COUNTY

SOFRANEK v. MERCED COUNTY

Filed 1/17/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MICHAEL H. SOFRANEK,

Plaintiff and Appellant,

MERCED COUNTY, et al.,

Defendants and Respondents.

F049379

(Super. Ct. No. 148246)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

Silver & Katz and Louis D. Silver for Plaintiff and Appellant.

Ruben E. Castillo, County Counsel, and James N. Fincher, Deputy County Counsel, for Defendants and Respondents.

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The trial court dismissed Michael H. Sofranek's action against Merced County (the County), the Merced County Sheriff's Office (Sheriff's Office) and Mark N. Pazin (collectively respondents) after sustaining respondents' demurrer to Sofranek's first amended complaint without leave to amend. Sofranek contends the court erroneously applied the six-month limitations period for bringing a governmental tort claim (Govt. Code, § 945.6), and erred in concluding he could not establish the elements of estoppel. As we shall explain, while we disagree with Sofranek's first contention, we agree the trial court erred in finding the doctrine of estoppel did not apply. Accordingly, we will reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Sofranek was employed as a correctional sergeant in the sheriff's office, a position he held for 27 years until his retirement in December 2004.^{^[1]} For nearly 20 of those years he served as supervisor in the corrections division, and held the rank of sergeant for the last 19 years of his employment.

In January 2004, a vacancy opened in the sheriff's office for the position of commander in the corrections division. Although the County had enacted Resolution 91-32, which requires all job openings to be publicized, as well as a competitive selection process, the County did not publicize the opening for the commander position or comply with the competitive selection process. Although Sofranek expressed interest in the position, on January 23, 2004, Under Sheriff Blake told him Correctional Sergeant Ricky Thoreson had been promoted to the position. Sofranek believed the promotion was part of an agreement the County entered into with Thoreson and his wife to settle a lawsuit they filed against the County.

On February 17, 2004, Sofranek filed a claim form with the County pursuant to the Tort Claims Act (Govt. Code, § 810 et seq.).^{^[2]} He stated on the form that the date of the accident, incident or loss was January 26, 2004, and described the accident, incident, or loss as follows: â€

Description	Where plaintiff brought two tort claims regarding same subject matter, and first was legally adequate, and second, while adding additional details, was legally unnecessary and did not entitle plaintiff to claim any relief that would have been beyond the scope of first claim, the second claim must be deemed an amendment to the first and did not create a new six-month period in which to bring suit. Where plaintiff brought second claim within six months of the first, and notice rejecting second claim stated that plaintiff had six months in which to sue, allegation that plaintiff delayed filing suit because notice caused him to believe that he had a new six-month period was sufficient to plead that defendant was equitably estopped from pleading that complaint was untimely.
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