DeYoung v. Carmichael Recreation and Parks Dist.

Filed 3/15/07 DeYoung v. Carmichael Recreation and Parks Dist. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Plaintiff Kenneth DeYoung sued his former employer, defendant Carmichael Recreation & Parks District (the district), for wrongful termination, retaliation, and defamation. The trial court dismissed the action as untimely under the Tort Claims Act (Gov. Code,^[1] 810 et seq.). Finding no error or abuse of discretion, we will affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

On July 28, 2004, after working for the district for more than 20 years, DeYoung retired.

On November 15, 2004, he presented a tort claim to the County of Sacramento, asserting he had been constructively terminated for complaining that some district employees, including the districts administrator, were being paid for time they did not work. When the county failed to act on the claim by December 30, 2004, it was deemed rejected as a matter of law. ( 912.4, subd. (c).)

On January 19, 2005, a claims manager for the county sent DeYoung a notice of rejection of claim, informing him of the rejection of the claim due to the countys failure to act and also informing him that, with certain exceptions, he had six months from the date of service of the notice to file a court action on the claim. The notice also stated that the district is a separate entity from the County of Sacramento.

Apparently fearing the claim he presented to the county would not be treated as a claim to the district (despite his arguments to the contrary later), on February 23, 2005, DeYoung filed an application with the district for leave to present a claim that might be untimely or for a determination that the filing with the county substantially complied with the claim presentation requirement of the Tort Claims Act. Attached to that application, as exhibits to a declaration from DeYoungs attorney, was DeYoungs proposed claim against the district, as well as a copy of the claim he had presented to the county. These claims were identical except that on the proposed claim to the district, the districts name had been inserted at the top under the countys.

On March 24, the district sent DeYoung notice of the denial of his application for leave to present a late claim. The notice informed DeYoung that if he wanted to file a court action on the matter, he first had to petition the court for an order relieving him of the claims presentation requirement within six months of the districts denial. The districts notice did not address DeYoungs alternate request that his prior presentation of the claim to the county be deemed a timely presentation of the claim to the district.

On June 8, DeYoung filed a petition in the superior court asking for either a determination that he had substantially complied with the claims presentation requirement or relief from that requirement. DeYoung asserted that because the countys board of supervisors also serves as the governing board of the district, the presentation of the Claim to the County substantially complied with the requirements for presenting a claim against the District. In the alternative, he asserted he should be relieved of the claims presentation requirement because his failure to present a timely claim to the district was the result of mistake, inadvertence, surprise, or excusable neglect.

On July 14, the superior court entered an order determining that DeYoung had substantially complied with the claims presentation requirement. That order, in a form prepared by DeYoungs attorney, included the following language: The civil complaint shall be filed by [DeYoung] no later than __________, but the court had not filled in the blank. In addition, apparently the first copy of the order DeYoungs attorney received did not include the judges signature or stamp. Counsel made several attempts to obtain a completed order and finally received one on July 27. That order provided that [t]he civil complaint shall be filed by [DeYoung] forthwith.

On August 3, DeYoungs attorney served notice of entry of the order on the district. The district responded by filing a motion for reconsideration. That motion was denied following a hearing on September 14. DeYoung obtained a new attorney of record on or about September 26, and his new attorney commenced the present action by filing DeYoungs complaint against the district on October 25.

The district demurred to the complaint on the ground (among others) that the complaint did not plead (and could not be amended to plead) compliance with the claims presentation requirement of the Tort Claims Act. The trial court agreed. Ultimately, the court ruled that because it had previously found DeYoung substantially complied with the claims presentation requirement by presenting a claim to the county, DeYoung had six months from the service of notice of the denial of that claim -- January 19, 2005 -- to file his complaint. According to the court, that was why it had required in its July 2005 order that the complaint be filed forthwith. The court concluded that the filing of the complaint on October 25, 2005, was both beyond the six-month deadline and not forthwith. Accordingly, the court entered a judgment of dismissal, from which DeYoung timely appealed.

DISCUSSION

I

The Two-Year Deadline Did Not Apply

When a public entity rejects a claim under the Tort Claims Act, either by action or inaction, the entity is required to provide the claimant with written notice. ( 913.) If the public entity gives proper notice of the rejection, then the claimant has six months from service of the notice to file a court action.^[2] ( 945.6, subd. (a)(1).) If the public entity does not give proper notice, then the claimant has two years from accrual of the cause of action to commence a court action. (Id., subd. (a)(2).)

DeYoungs first argument is that he was entitled to file his action against the district at any time up until July 28, 2006, (two years after he retired and his cause of action accrued) because the notice the district sent on March 24, 2005, did not contain the warning language required by . . . section 913. (Italics omitted.)

The flaw in this argument is that the warning language of section 913 is required only when the public entity gives notice of its denial of a claim. Different warning language is required when the public entity gives notice of its denial of an application for leave to present a late claim. (See 911.8, subd. (b).) The March 24, 2005, notice from the district was specifically denominated a NOTICE OF DENIAL OF APPLICATION FOR LEAVE TO PRESENT LATE CLAIM, and it contained the warning language required of such notices.

DeYoung contends his application to the district for leave to present a late claim included a copy of the claim he had previously served on the county and a copy of that same claim with the districts name added to the title. He suggests that because he submitted two tort Claims along with his Application, the district had a duty to act on his claim, not just on his application for leave to present a late claim, and its failure to provide him with proper notice of the rejection of his claim triggered the two-year deadline for commencing this action.

DeYoung relies on Jenkins v. County of Contra Costa (1985) 167 Cal.App.3d 152 to support his argument. There, the claimant presented to the county a claim and an application for leave to present a late claim at the same time. (Id. at p. 154.) The county denied the application, but did not specifically reject the claim. (Ibid.) The claimant later filed a court action within two years of the accrual of her cause of action, but more than six months after the countys denial. (Id. at pp. 154-156.) On appeal from the trial courts dismissal of that action, the appellate court concluded the action was timely filed because the county had never properly denied the claim, which the court determined had been timely (notwithstanding that it accompanied an application for leave to present a late claim). (Id. at p. 156.) In doing so, the court rejected the countys argument that when a claim is presented and at the same time an application for leave to file a late claim is presented, the public entity is entitled to believe it is only being requested to act on the application for leave to file a late claim. (Ibid.)

This case is readily distinguishable from Jenkins. Unlike the claimant in Jenkins, DeYoung did not submit to the district, along with his application for leave to present a late claim, a claim that might be considered timely on which the district had a separate duty to act. Instead, apparently recognizing that any claim he submitted to the district in February 2005 would be untimely,^[3]DeYoung submitted to the district an application asking for either leave to present a late claim or a determination . . . that the [earlier] filing with the County of Sacramento substantially complies with the filing requirement. In other words, DeYoung was not asking the district to act on a claim he was submitting to the district at that time; he wanted the district to either treat the claim he previously presented to the county as a claim to the district or grant him leave to present a late claim to the district.^[4] Because DeYoung was not presenting the district with a claim to be acted upon at that time, Jenkins does not apply here.

For similar reasons, Mandjik v. Eden Township Hospital Dist. (1992) 4 Cal.App.4th 1488 -- another case on which DeYoung relies extensively -- does not apply. In Mandjik, like in Jenkins, the claimants submitted an application for leave to present a late claim to the public entity accompanied (this time) by a Claim for Damages. (Mandjik,at p. 1495.) The public entity denied the application and told the claimants the claim itself has not been considered and cannot be considered. (Ibid.) In later attempting to justify its action, the public entity argued that the Claim for Damages accompanying the application for leave to present a late claim was a required attachment to the Application to Submit a Late Claim pursuant to . . . section 911.4(b) and not a separate claim or document. (Id. at p. 1500.) The appellate court disagreed, noting that the application for leave to present a late claim expressly states it is an alternative application to the claim that is now being presented. It further states plaintiffs do not believe that the presentation of this Claim is late. And, contrary to defendants assertion, the application was submitted not with a proposed claim but rather with a Claim for Damages. (Ibid.)

Here, in contrast to Mandjik, DeYoungs attorney specifically identified the claim DeYoung was submitting along with his application for leave to present a late claim as the proposed claim that would be filed with the District. (Italics added.) It is true DeYoungs attorney also included the claim previously presented to the county without such qualifying language, but it was clear from the context of the entire application that DeYoung was not asking the district to act on that claim as a timely claim he was submitting to the district at that time. Rather, he was asking the district to treat his earlier presentation of the claim to the county as having been a presentation to the district, or to grant him leave to present a late claim to the district. Mandjik does not govern under these circumstances.

The question that remains is whether on any other basis the two-year limitations period could be deemed to apply here. In this regard, it is critical to note that when the district refused to do either of the things he asked, DeYoung sought and obtained from the court a determination that the claim he had presented to the county substantially complied with the requirement that he present a claim to the district. What this means is that DeYoung presented a timely claim to the district when he presented his claim to the county in November 2004. The problem is that if the claim to the county is deemed a claim to the district, it follows that the countys notice of the rejection of that claim should be treated as a notice of rejection of the claim by the district.

Of course, DeYoung argues against this result. He attempts to analogize the county to an agent for service of process for two separate companies -- one company being the county itself and the other being the district. Under this analogy, while service on the county was sufficient to give notice of the claim to the district (through its agent for service of process), the county did not have authority to reject the claim on behalf of the district.

This argument is at best disingenuous given the arguments DeYoung offered to the trial court to convince that court to treat his presentation of a claim to the county as substantially complying with his obligation to present a claim to the district. Specifically, DeYoung asserted Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70 involved the precise situation that exists in this matter and that the decision in that case controls the instant situation. As will be seen, Elias reveals that the county must be deemed far more than an agent for service of process for the district.

In Elias, the claimant presented a tort claim to the Board of Supervisors of San Bernardino County after he was injured on a dirt road leading to the county dump. (Elias v. San Bernardino County Flood Control Dist., supra, 68 Cal.App.3d at p. 72.) After the county denied the claim, the claimant sued. (Id. at pp. 72-73.) The county moved for summary judgment based on evidence the road was owned and controlled by the flood control district. (Id. at p. 73.) The claimant served the district as a Doe defendant, and the district ultimately obtained judgment on the ground the claimant had not complied with the Tort Claims Act with respect to the district. (Ibid.)

The sole issue on appeal was whether the claim addressed to the county and presented to the board of supervisors satisfied the requirements of the claims act insofar as the District is concerned. (Elias v. San Bernardino County Flood Control Dist., supra, 68 Cal.App.3d at p. 73.) The appellate court concluded it did, because although the District is a legal entity separate and apart from the county, the county board of supervisors and all county officers are ex officio the board of supervisors and officers of the District and as such are empowered to perform the same duties for the District as they perform for the county. [Citations.] One of the duties of the board of supervisors is to review and act upon all claims whether they be addressed to the county or to the District. Plaintiffs claim apprised the board of supervisors that he was in substance seeking damages for injuries he sustained by reason of the alleged dangerous and defective condition of certain described public property. Inasmuch as the property was in fact owned by the District, the claim, though addressed to the county, was sufficient to alert the board of supervisors that a claim was being asserted against the governmental entity that owned and controlled the property whether it be the county or the District. (Id. at p. 75.)

Relying on Elias, DeYoung asserted to the trial court here that by presenting the Claim to the County of Sacramento, . . . [he gave] the governing board of the District notice of the Claim and an opportunity to investigate. . . . Furthermore, the Claim was drafted so that it was unmistakable that the primary target of the action was the District. Given these assertions, it is disingenuous for DeYoung to now assert that while his presentation of the claim to the county should be treated as satisfying his duty to present the claim to the district, the countys rejection of that claim should not be treated as a rejection by the district. If DeYoung put the board of supervisors on notice of his claim against the district by submitting his tort claim to the county on November 15, 2004, and the board of supervisors is the body charged with acting on claims made against the district, then the board of supervisors failure to act on the claim by December 30 constituted a rejection of that claim by the district. ( 912.4, subd. (c).)

The real question here is whether the notice of the rejection of the claim DeYoung received from the county, which contained the warning required by section 913,^[5]was sufficient to trigger the six-month filing deadline in the Tort Claims Act. Specifically, subdivision (a)(1) of section 945.6 provides that [i]f written notice is given in accordance with Section 913, any suit brought against a public entity on a cause of action for which a claim is required to be presented . . . must be commenced not later than six months after the date such notice is personally delivered or deposited in the mail.

Although he does not frame his argument in exactly these terms, DeYoungs argument is essentially that he should be treated as having presented a timely claim to the district when he presented his claim to the county in November 2004, but the countys notice of the rejection of that claim (by inaction) should not be deemed written notice given in accordance with section 913 with respect to the district; however, DeYoung offers no persuasive reason why this should be so.

This is not a case like Jenkins or Mandjik, in which the claimants never received any notice of rejection from anyone. Here, consistent with the requirements of section 913, the county notified DeYoung his claim had been rejected and that he had six months to file a court action on that claim. When he took the position that his claim to the county should be treated as a timely claim to the district, DeYoung should have known the notice of rejection he had received regarding that claim could be deemed the operative notice for determining his deadline for filing a court action against the district under section 945.6. DeYoung cannot have his cake and eat it too. If his claim to the county was a claim to the district, then the countys response to that claim must be deemed the districts response.^[6]

In summary, we agree with the trial court that the two-year limitation period in subdivision (a)(2) of section 945.6 did not apply here because the countys notice of the rejection of DeYoungs claim triggered the six-month limitation period in subdivision (a)(1) of that statute.

II

DeYoung Did Not File His Complaint Forthwith

Unfortunately, that does not end the matter because the trial court did not sustain the demurrer just because DeYoung missed the six-month deadline. The trial court also concluded that DeYoung did not file his complaint forthwith, in compliance with the courts order on his request for a determination of substantial compliance. As we will explain, we find no error or abuse of discretion in that conclusion.

In the course of arguing that the two-year limitations period applied here (an argument we have rejected), DeYoung asserts that [a] court cannot shorten [that] time limitation. We agree, but here the more pertinent question is whether the court can lengthen the six-month limitation period, because to some extent that is what the trial court did here. By July 27, 2005, when DeYoungs attorney apparently first learned that the complaint was to be filed forthwith, the six-month deadline had already expired a week earlier. There is a question as to whether the court would have had authority to treat as timely a complaint filed beyond the six-month deadline just because the claimant did not obtain a determination from the court of substantial compliance with the claims presentation requirement until just before the expiration of that deadline.^[7] We need not decide that issue, however. For our purposes, we will assume the trial court had the power to give DeYoung additional time beyond the six-month deadline to file his complaint and the power to dismiss the complaint as untimely based on his failure to meet the courts subsequent deadline. The question, then, is whether the court erred or abused its discretion in determining that DeYoung did not file his complaint forthwith. We conclude it did not.

DeYoung offers various reasons why the October 25, 2005, filing of his complaint should be deemed to have complied with the trial courts direction three months earlier to file the complaint forthwith. First, he points to the districts motion for reconsideration of the courts substantial compliance order and contends that motion should be considered as a strategical delay. He fails to explain, however, how or why he was prevented from filing his complaint during the pendency of that motion. A motion for reconsideration does not suspend the effectiveness of the order the moving party wants the court to reconsider. Accordingly, the districts motion for reconsideration gave DeYoung no excuse for delaying the filing of his complaint in compliance with the courts order.

DeYoung next points out that following the denial of the motion for reconsideration, he immediately attempted to locate new counsel to handle the filing of the complaint and his new attorney had to review a voluminous file of records covering the twenty plus year period of time for which Mr. DeYoung was employed with the District. Again, however, DeYoung fails to explain why these facts have anything to do with whether he filed his complaint forthwith. The trial court did not order DeYoung to file his complaint forthwith, after you get a new attorney and he reviews your file. The court said forthwith, period. DeYoungs unspoken argument is that he should have been excused from filing his complaint forthwith because of the surrounding circumstances, but he cites no authority for that argument. As it was, the trial courts extension of the deadline beyond the six months provided by statute was already an act of grace. The court had no obligation to further extend that deadline to accommodate DeYoungs circumstances with his attorneys, whatever they may have been.^[8]

DeYoung contends the trial courts direction to file the complaint forthwith was vague, which caused [him] and his counsel to speculate regarding the last day on which he could file the Complaint. He asserts he should not be punished due to the complexity of the statutory scheme and the vague language ultimately inserted into the Order.

While it is true the courts direction to file the complaint forthwith did not give DeYoung an exact filing deadline, it is equally clear that DeYoungs filing of the complaint three months later did not comport with any reasonable interpretation of the courts direction. Forthwith means immediately. (Merriam-Websters Collegiate Dict. (10th ed. 2000) p. 459, col. 1.) The trial court did not err or abuse its discretion in determining that DeYoung failed to comply with the courts order to file his complaint forthwith by waiting nearly three months (from July 27 to October 25) to file it.

We also note that if the trial court had given DeYoung the alternate relief he sought in his petition -- relief from the claims presentation requirement -- he would have been required to file his court action within 30 days of the courts order. (See 946.6, subd. (f).) DeYoung cannot have reasonably believed the courts order that he file his complaint forthwith was intended to give him as much as three times as long to file his complaint than he would have had if the court had granted his alternate request for relief.

III

Estoppel

DeYoung contends the judgment of dismissal must be reversed because the district is estopped from asserting a limitations defense. We disagree.

It is well settled that a public entity may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act. [Citations.] Estoppel most commonly results from misleading statements about the need for or advisability of a claim; actual fraud or the intent to mislead is not essential. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445.) Estoppel as a bar to a public entitys assertion of the defense of noncompliance arises when the plaintiff establishes by a preponderance of the evidence: (1) the public entity was apprised of the facts, (2) it intended its conduct to be acted upon, (3) plaintiff was ignorant of the true state of facts, and (4) relied upon the conduct to his detriment. (Christopher P. v. Mojave Unified School Dist. (1993) 19 Cal.App.4th 165, 170.)

DeYoung asserts all four elements of estoppel are present here because: (1) the district knew of the facts giving rise to his claim; (2) the district intended him to act on its March 24, 2005, denial; (3) he had no reason to suspect the court would use the countys January 19, 2005, rejection of his claim to calculate his deadlines against the district; and (4) he relied on the districts representations that it and the county were separate entities.

The foregoing facts do not support DeYoungs claim of estoppel. Among other things, DeYoung plainly did not rely to his detriment on any representation by the district that it was a separate entity from the county. On the contrary, DeYoung always insisted that his presentation of a timely claim to the county must be treated as a presentation of a timely claim to the district, i.e., that the county and the district must be treated as one and the same for purposes of claims presentation.

Estoppel may also be found against a public entity where the entity engaged in unconscionable acts which deterred the filing of a claim, and the plaintiff acted within a reasonable time after the effects of those acts ended. (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1048-1049.) Here, DeYoung contends [n]umerous actions and representations caused [him] to delay commencing his action, including the districts denial of March 24, 2005. What he fails to do, however, is identify any unconscionable acts by the district that deterred him from filing his complaint in a timely manner. The bottom line is that it was DeYoungs insistence that his presentation of a timely claim to the county must be treated as a presentation of a timely claim to the district that led to the six-month deadline being triggered by the notice of rejection from the county in January 2005. DeYoung cannot justifiably claim the district should be estopped from relying on the deadline that was triggered by DeYoungs reliance on the doctrine of substantial compliance.

IV

Equitable Tolling

DeYoung contends the doctrine of equitable tolling should apply here to avoid form being elevated over substance. Again, we disagree.

[W]hen, possessing several legal remedies [a claimant], reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage, the limitations periods in the Tort Claims Act may be deemed equitably tolled. (Addison v. State of California (1978) 21 Cal.3d 313, 317-321.) That principle does not apply here. DeYoung contends that rather than simply filing his complaint, he chose the prudent course and complied with the Claims Act and each of the directives he received directly from the County and the District. That is not true, however. The January 2005 notice of denial of his claim informed DeYoung he had six months to commence a court action on his claim. He did not comply with that directive. Moreover, he did not comply with the trial courts directive to file his complaint forthwith, after the six-month deadline for filing his complaint (triggered as a result of his substantial compliance argument) had already run. On the facts of this case, DeYoung is not entitled to the benefits of equitable tolling.

V

The Purpose Of The Tort Claims Act

As a final argument, DeYoung asserts the judgment should be reversed because the purpose of the Tort Claims Act was satisfied -- the district received timely notice of his claim. Certainly it can be said that the primary purpose behind the Tort Claims Act as a whole is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454-455.) At the same time, however, other purposes underlie specific provisions in the Tort Claims Act. Undoubtedly, the purpose behind the filing deadlines in section 945.6 is to ensure that any claim against a public entity that is going to be litigated is commenced in a timely fashion. And the purpose behind section 945.6, subdivision (a)(1) and section 913, read together, is to ensure that when a claimant has been told his claim is rejected and he has six months to file a court action on that claim, the public entity may rest assured that it is safe from any such action if the claimant fails to meet that deadline.

Here, DeYoung was told in January 2005 that his claim had been rejected and that he had six months to file an action on the claim. He did not meet that deadline, nor did he meet an extended deadline from the court to file his complaint forthwith. Under these circumstances, the purposes of the Tort Claims Act are best served by recognizing, as the trial court did, that DeYoungs action was not timely filed.

DISPOSITION

The judgment of dismissal is affirmed. The district shall recover its costs on appeal. (Cal. Rules of Court, rule 8.276(a).)

ROBIE , J.

We concur:

RAYE , Acting P.J.

HULL, J.

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^[1] All further statutory references are to the Government Code unless otherwise indicated.

^[2] To be proper, the notice must inform the claimant of the six-month deadline. ( 913, subd. (b).)

^[3] A claim relating to a cause of action for death or for injury to person . . . shall be presented . . . not later than six months after the accrual of the cause of action. ( 911.2, subd. (a).) Since DeYoung admits his cause of action against the district accrued no later than the date of his retirement on July 28, 2004, his claim was late if presented after January 28, 2005.

^[4] This is supported by the fact that the two claims DeYoung asserts he submitted to the district along with his application to present a late claim were submitted as exhibits to a declaration from his attorney in support of the application, which described the first exhibit as [a] true and correct copy of the claim filed with the County of Sacramento and the second exhibit as [a] true and correct copy of the proposed claim that would be filed with the District. (Italics added.)

^[5] Specifically, the notice informed DeYoung that [s]ubject to certain exceptions, you have only six (6) months from the date that this notice was personally delivered, or deposited in the mail, to file a court action on this claim.

^[6] Indeed, even DeYoung apparently recognized that once it was determined his presentation of a claim to the county counted as presentation of the claim to the district, there would be a deadline for filing his complaint that was shorter than the two-year period in section 945.6, subdivision (a)(2). This is so because the proposed order he submitted to the court included a place for the court to fill in a filing deadline. If DeYoung honestly believed he had until July 2006 to file his complaint, there would have been no reason for him to include this blank on the order.

^[7] It is significant to note that the Tort Claims Act makes no provision for a petition to determine that a claim presented to one entity substantially complied with the claims presentation requirement with respect to another entity. (The Tort Claims Act does allow a claimant to seek relief from the claims presentation requirement when an application for leave to present a late claim has been denied.) (See 946.6.) Usually, as in Jenkins and Mandjik, the question of substantial compliance is litigated during a subsequently filed tort action when the public entity defendant asserts the plaintiff did not comply with the Tort Claims Act.

Here, prefatory to filing a court action, DeYoung essentially sought an advisory opinion from the trial court as to whether he had substantially complied with the claims presentation requirement. We express no opinion as to whether this was proper. We do note, however, that it was DeYoungs decision to pursue this course before filing his complaint that led him to miss the six-month deadline.

^[8] We note that DeYoung was represented by two attorneys -- Gary Messing and Tania Colderbank of Carroll, Burdick & McDonough -- as far back as November 2004, when they presented his tort claim to the county. (Indeed, it appears from correspondence in the record that DeYoung was represented by the same law firm as far back as April 2004, before he retired.) They continued to represent him through the hearing on the districts petition for reconsideration in September 2005. For some reason unexplained by this record, DeYoung then retained Leo Donahue to file the court action on his behalf. At the hearings on the demurrer, however, both Donahue and Colderbank appeared for DeYoung, although Colderbank identified herself as DeYoungs former counsel. On appeal, Messing and Colderbank have both resumed their representation of DeYoung.