Opinion
B230357
02-16-2012
EDMUND C. IKE, Plaintiff and Appellant, v. LOS ANGELES COUNTY OFFICE OF EDUCATION, Defendant and Respondent.
Edmund C. Ike, in pro. per., for Plaintiff and Appellant. Los Angeles County Office of Education, Vibiana M. Andrade and Sung Yon Lee for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC429289)
APPEAL from an order of the Superior Court of Los Angeles County, Daniel J. Buckley, Judge. Affirmed.
Edmund C. Ike, in pro. per., for Plaintiff and Appellant.
Los Angeles County Office of Education, Vibiana M. Andrade and Sung Yon Lee for Defendant and Respondent.
SUMMARY
Edmund Ike appeals from an order dismissing this action entered after the trial court sustained without leave to amend respondent's demurrer to the second amended complaint. Ike maintains the trial court erred when it found Ike's claims were not exempt from the Government Tort Claims Act (TCA), Government Code section 900 and following, and that the court also erred when it found that, even if the causes of action were not exempt, Ike failed substantially to comply with the TCA's claim presentation requirements. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because this matter comes to us on demurrer, we accept the properly pleaded allegations of the complaint, accompanying exhibits and matters judicially noticed by the trial court as true for the limited purpose of determining whether the plaintiff has stated a viable cause of action. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We disregard contentions, deductions, or conclusions of fact or law. (Ibid.)
The complaint and demurrer
Ike was hired in late October 2007 by defendant and respondent Los Angeles County Office of Education (LACOE). Ike was employed as a probationary employee and paraeducator for a nonspecific term and worked with special education students.
In January 2008, Ike refused a request made by an LACOE administrator to falsify a report regarding an incident Ike witnessed involving a student who slipped and fell on a wet floor. In February 2008, Ike was injured by a student in his charge. As a result of his injuries Ike was placed on medical work restrictions limiting his ability to lift or push things over a certain weight, and filed a workers' compensation action. LACOE made no changes to Ike's workplace responsibilities to accommodate his medical restrictions.
Ike received a performance evaluation on April 17, 2008. An attachment to that evaluation identifies seven incidents reflecting troubling aspects of Ike's performance between December 21, 2007 and March 21, 2008 which, according to LACOE, "put children and adults at risk." The evaluation rated Ike's performance as "[u]nsatisfactory" or "[i]mprovement [n]eeded" in 18 of 21 categories. The evaluation concluded that Ike lacked "skills" and "intuition," had not "demonstrated the desire to improve in his position" and stated that, "[i]n the [e]ducational [e]nvironment, Mr. Ike appear[ed] to be out of his element." The evaluation recommended that Ike's employment be terminated. LACOE terminated Ike's employment on May 14, 2008. The stated reason for the termination was Ike's "[f]ailure to meet the test of performance."
In February 2009, Ike filed a complaint with, and received a "right-to-sue" notice from, the Department of Fair Employment and Housing (DFEH). That complaint alleged that Ike was a victim of discrimination in violation of the Fair Employment and Housing Act (FEHA) Government Code section 12900 and following, on the basis of his age, race, national origin and physical disability.
On January 5, 2010, Ike filed this action alleging causes of action for (1) wrongful termination in violation of public policy in retaliation for his refusal to falsify an incident report and for seeking workers' compensation, (2) fraud, (3) breach of contract, and (4) breach of the covenant of good faith and fair dealing. He sought relief in the form of $75,000 in compensatory damages, punitive damages of $300,000, postjudgment interest and attorney fees. Ike did not seek reinstatement.
LACOE demurred and moved to strike certain allegations in the complaint and Ike's request for punitive damages.
First amended complaint and demurrer
LACOE's initial demurrer was never heard. On April 20, 2010, Ike filed a first amended complaint (FAC), alleging a newly labeled cause of action for wrongful termination in violation of procedural due process (due process claim). The allegations of the due process claim in the FAC were virtually the same as those in the public policy tort pleaded in the original complaint. The FAC, however, also alleged that as a public entity LACOE was subject to statutory and constitutional due process requirements, and Ike's employment relationship was controlled by an "EXPRESS CONTRACT" (set out in LACOE's personnel policies). The allegations forming the bases for the causes of action for breach of contract and breach of the covenant of good faith and fair dealing remained unchanged. The FAC omitted the fraud claim and request for punitive damages and sought reinstatement and retroactive salary payments.
LACOE demurred, arguing again that Ike failed to comply with the requirements of the TCA, a prerequisite to filing suit against a state entity, and that his common law claims for termination in violation of public policy and for breach of contract and the covenant of good faith and fair dealing were barred as a matter of law.
The trial court sustained the demurrer with leave to amend. The court observed that the pivotal issue was whether Ike's FEHA complaint could serve as a substitute for, or demonstrate substantial compliance with, the TCA's formal claim presentation requirements. The court noted that cases which excused a plaintiff's failure to comply with the TCA based on FEHA exhaustion had each contained at least one FEHA claim, and that Ike had informed the court he was not pursing any FEHA claim. Ike was given an opportunity to amend to allege facts sufficient to demonstrate substantial compliance with the TCA.
Second amended complaint, demurrer and motion for reconsideration
Ike filed the operative second amended complaint (SAC) in September 2010. Apart from two paragraphs the allegations of the SAC are virtually identical to those in the FAC. The SAC purports to allege a due process claim, and the same contract causes of action. One new paragraph alleges that LACOE has a constitutional and statutory duty not to terminate employees in retaliation for filing workers' compensation claims or for their refusal to commit perjury. The other new paragraph states that Ike filed his FEHA claim with the DFEH and received authority to sue. LACOE demurred.
The SAC also contains a new attachment identifying Ike's employment status as a substitute and later a probationary employee with LACOE.
In opposition to the demurrer Ike argued LACOE had failed to demurrer to the due process claim, and his contract claim was not statutorily barred. In an effort to demonstrate substantial compliance with the TCA—an act Ike contended was unnecessary for alleged constitutional violations—Ike attached a copy of an appeal he submitted to the LACOE Personnel Commission in May 2008 seeking reinstatement (PC Appeal).
The trial court found that Ike's "proposed amendment" of having attached the PC Appeal "would not constitute a successful amendment for alleging compliance with the [TCA] where it contains no request for damages from the [LACOE]." LACOE's demurrer to the SAC was sustained without leave to amend.
An order dismissing the action was entered December 3, 2010. On December 15, 2010, Ike filed a motion for reconsideration. (Code Civ. Proc., § 1008) He argued LACOE was estopped to argue Ike failed to comply with the TCA claim presentation requirements because it had attempted to settle this action. Attached to the reconsideration motion were copies of a June 9, 2009 "ORDER APPROVING COMPROMISE AND RELEASE" from the workers' compensation appeals board, and a May 27, 2009 "GENERAL RELEASE AND SEPARATION AGREEMENT" between LACOE and Ike. The trial court denied the motion for reconsideration concluding it lacked jurisdiction to rule on the motion having dismissed the action. This appeal followed.
DISCUSSION
1. Standard of review
"Our Supreme Court has set forth the standard of review for ruling on a demurrer dismissal as follows: 'On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]' [Citations.]" (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043-1044.) The burden is on the plaintiff to show that an amendment can cure the defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If the plaintiff proves the defect can be cured, then we must find that the trial court abused its discretion and reverse the judgment. (Ibid.) Here, the SAC does not state a viable cause of action and Ike has not shown it can be amended to do so.
2. Failure to comply with the TCA
The TCA establishes prerequisites to filing a lawsuit against a California public entity. Absent compliance with the TCA, and exceptions not relevant here, no lawsuit seeking monetary damages may be filed against a public entity. (Gov. Code, §§ 910, 945.4.) The claim presentation requirement serves several important purposes: It gives the public entity prompt notice so it can investigate a claim's strengths and weaknesses while evidence is fresh and witnesses are available, it provides the entity a chance to amicably resolve the matter and avoid expending public funds on needless litigation (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 279, 228 (Bettencourt)), and it gives a public entity an opportunity promptly to rectify a dangerous condition (Johnson v. San Diego Unified School Dist. (1990) 217 Cal.App.3d 692, 696-697). The claim presentation requirement applies to cases alleging wrongful termination and those seeking monetary damages. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 (Miklosy).) To satisfy the TCA, a claim must be readily identifiable as such. (Schaefer Dixon Associates. v. Santa Ana Watershed Project Authority (1996) 48 Cal.App.4th 524, 533-534 [letter providing information, but not advising of imminent litigation, is insufficient to constitute a claim].) The fact that a public entity has knowledge of the claim does not obviate the need for compliance with the TCA. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455 (City of San Jose) ["It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim"].)
The essential elements of a claim presented under the TCA include (1) the names and addresses of the claimant and the person to whom notices are to be sent, (2) a statement of the facts supporting the claim, (3) a description of the injury and the amount claimed as of the time of presentation, and (4) the name(s) of the public employee(s) who caused the injury, if known. (Gov. Code, § 910, subds. (a)-(f).)
Prior to bringing this lawsuit, claim presentation under the TCA was required for the causes of action alleged in the SAC. Ike does not assert that he ever presented a formal claim. Rather, he raises several arguments to support his contention that claim presentation was not required or, even if it was, he substantially complied with the TCA. None of Ike's arguments has merit.
a. The request for damages was not merely ancillary to the request for injunctive relief
Ike contends, for the first time on appeal, that compliance with the TCA's claim presentation requirements is unnecessary because he seeks primarily injunctive relief (reinstatement), and his request for back pay is only ancillary to his prayer for injunctive relief.
First, Ike is estopped from seeking reinstatement. The terms of a May 27, 2009 settlement agreement between Ike and LACOE bar Ike from any future employment by LACOE. According to that agreement, in exchange for a payment of $5,000, Ike agreed, among other things, not to "seek or accept employment with LACOE in the future." Even if Ike could seek reinstatement we cannot agree that his request for damages is merely incidental to that prayer for injunctive relief.
The May 2009 settlement agreement was executed in conjunction with an expressly independent compromise agreement involving Ike's workers' compensation action, under which LACOE paid Ike $10,000 (minus $400 in attorney fees) to settle that claim. The May 2009 agreement also required Ike to dismiss with prejudice any matter involving his separation from employment with LACOE. Apparently, LACOE's counsel herein had no knowledge of the settlement agreement (negotiated by LACOE's workers' compensation counsel) until Ike attached copies of the two agreements to his belated motion for reconsideration of the order sustaining LACOE's demurrer to the SAC without leave to amend.
Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794 is instructive. In Sparks, the plaintiff argued his writ petition was exempt from the TCA because he did not seek "'money damages.'" Rather, he claimed only to seek injunctive or declaratory relief incidental to his action to compel the supervisors to perform a duty enjoined by law (viz., reimburse him for the cost of his defense). The court rejected that argument, holding that the claim requirement applies to all forms of monetary demands. (Id. at p. 798.) Ike's belated attempt to characterize his initial request for damages of at least $75,000 as "incidental" to his request for injunctive relief fails. Moreover, the argument that contract claims are exempt from the TCA requirements was soundly rejected by the California Supreme Court in City of Stockton v. Superior Court (2007) 42 Cal.4th 730, which found that the TCA also applies to contract causes of action against local government defendants. (Id. at p. 738; see also Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1079 (Loehr), italics omitted ["Actions for breach of contract also fall within the scope of claims for 'money or damages'"].)
Second, Ike mistakenly relies on Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861 to support his assertion that claim presentation was not required here because he filed an administrative (DFEH) complaint alleging violations of FEHA. In Snipes the court found the plaintiff was excused from complying with the TCA because he alleged at least one statutory cause of action under FEHA. (Id. at pp 869-870.) Here, however, Ike does not allege any claim for violation of FEHA. Indeed, Ike expressly disavowed to the trial court any intention to pursue a claim as a member of any protected class under FEHA.
b. The SAC fails to allege a constitutional violation
Relying on the court's tentative ruling on LACOE's demurrer to the FAC, Ike asserts the demurrer to the SAC should have been overruled because the trial court found his allegations sufficient to state a statutory retaliation claim for refusal to commit perjury and for filing a workers' compensation action. But a tentative ruling has no force. "'Courts are not bound by their tentative rulings.'" (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1245.) This is not surprising. "Tentative" means the same thing in the context of a court ruling as in any other context: not definitive or final, and thus subject to change. For this reason, a litigant has no basis for relying on a tentative ruling (particularly a ruling that relates to a superseded complaint), either at trial or on appeal, and we disregard this assertion.
Ike also maintains the SAC alleges a viable due process claim for which LACOE must be held to account without regard to his failure to comply with the TCA. There are circumstances in which a public entity may be liable for a constitutional violation without the need for presenting a tort claim under the TCA. (Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 325.) But a party cannot camouflage a garden variety tort simply by slapping on a label and calling it a constitutional violation. Although Ike labels his first cause of action in the SAC one for wrongful termination in violation of procedural due process, he has not alleged—and does not purport to be able to allege— any facts that would establish a bona fide due process violation.
Like its predecessors, the SAC is no model of clarity. To the extent we can ascertain Ike's argument, it appears to be that he was denied due process (terminated in violation of LACOE's personnel policies) because he did not receive certain mandated performance evaluations or did not receive them from his immediate supervisor. But, there is no copy of LACOE's policies attached to the SAC or any predecessor pleading. In any event, LACOE maintains this cause of action is nothing but a poorly disguised claim for wrongful termination in violation of public policy, which cannot be maintained here. We agree.
Ike claims he was entitled to a performance evaluation in his third, fifth and sixth months of employment as a probationary employee. He admits he received the six month evaluation. Apparently, Ike takes issue with that evaluation because it was not given by his immediate supervisor, but by Dr. Marsha Schultz, the principal of the school at which he worked. Documents attached to the pleadings indicate that Ike also received a three-month performance evaluation which he discussed with Dr. Schultz (although that written evaluation is not in the record).
The TCA sets the limits of common law liability for public entities. It provides that, "[e]xcept as otherwise provided by statute: [¶] . . . A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.." (Gov. Code, § 815, subd. (a).) The California Supreme Court has recently confirmed "that section 815 abolishes common law tort liability for public entities." (Miklosy, supra, 44 Cal.4th at p. 899.)
Regardless of its denomination as a due process claim, Ike's cause of action for wrongful termination in violation of public policy is nothing more than an action for a common law tort. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 176-178 (Tameny)["when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions"]; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095 [a Tameny claim must be "carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions"], overruled on other grounds by Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6.) But Government Code section 815 bars Tameny claims against public entities. (Miklosy, supra, 44 Cal.4th at p. 900.) Nowhere in the first cause of action or in the SAC has Ike alleged the elements typical of a due process claim. Similarly, nowhere has Ike argued that LACOE violated his due process right to a fair hearing or deprived him of notice. Procedural "'[d]ue process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest.' [Citations.]" (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 286.) No such violation is alleged here.
Moreover, Ike cannot raise a procedural constitutional claim in the absence of a protectable interest. "Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." (Mathews v. Eldridge (1976) 424 U.S. 319, 332 [96 S.Ct. 893, 901, 47 L.Ed.2d 18, 31]; see also Cal. Const., art. I, § 7.) But a probationary public employee lacks a "property interest" in his or her probationary position. (See Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 345-346 [government agency has broad discretion to terminate probationary civil service employee without a hearing or good cause].) Ike acknowledges that he was not a permanent employee. As a matter of law, Ike had no independent or constitutional rights to due process. (See e.g., Duff v. City of Gardena (1980) 108 Cal.App.3d 930, 936-937 [probationary employee terminated pursuant to valid probationary process lacks due process claim].)
The record reflects that, rather than making substantive or satisfactory amendments to the allegations, Ike merely reiterated statements and assertions from his original complaint, recycling them to try to state a claim for a constitutional violation. The FAC and SAC do not differ except that the SAC alleges LACOE had a mandatory statutory and constitutional duty not to fire an employee for filing a workers' compensation claim or refusing to perjure himself. No other substantive alteration was made. Indeed, all three versions of Ike's charging pleading identify the primary "violation" by LACOE as "terminating plaintiff [in] . . . violation of public policy."
At best, the first cause of action in the SAC alleges sufficient facts to state a Tameny, supra, 27 Cal.3d 167 claim. But Tameny claims against public agencies are barred as a matter of law. (Miklosy, supra, 44 Cal.4th at p. 898.) Accordingly, regardless of its label, Ike's claim for violation of procedural due process fails.
3. Ike failed substantially to comply with the TCA
Ike contends his written presentation to the personnel commission was the functional equivalent of the presentation of a claim under the TCA. He maintains the trial court erred when it failed to consider the theory of substantial compliance when it sustained the demurrer without leave to amend. He is mistaken. The trial court seriously considered that theory and found it did not apply. The court found that merely attaching the PC appeal to the SAC was not a satisfactory amendment, nor could Ike overcome a challenge of failure to comply with the TCA because the PC appeal "contains no request for damages from [LACOE]."
The doctrine of substantial compliance applies where a plaintiff has shown some compliance with the required elements of claim presentation—but the compliance was defective. (Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106 Cal.App.3d 183, 188.) Substantial compliance will be found if sufficient information is disclosed on the face of a filed claim reasonably to enable the public entity to investigate the merits and settle the claim without the expense of a lawsuit. (White v. Moreno Valley Unified School Dist. (1986) 181 Cal.App.3d 1024, 1031.)
The PC appeal does not satisfy the doctrine of substantial compliance. First, LACOE asserts—and Ike does not dispute—that it is an independent public entity from the personnel commission. The law supports that assertion. (See Personnel Com. v. Board of Education (1990) 223 Cal.App.3d 1463, 1468 [noting that, in creating civil service system in school districts, the Legislature intended that a school district's personnel commissions be independent in all respects from the district's governing board]; California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 143-144 [public employer has exclusive jurisdiction to dismiss employee and jurisdiction of personnel commission is limited to review of employer's action].) Ike acknowledges that the doctrine of substantial compliance is not applicable to a claim which is addressed to the wrong entity. (Jackson v. Board of Education (1967) 250 Cal.App.2d 856, 860 (Jackson).)
Even if Ike's presentation of the PC appeal to the personnel commission could be considered the equivalent of knowledge on the part of LACOE itself, the PC appeal still would not satisfy the doctrine of substantial compliance because it lacks an essential element—a request for monetary relief. In Jackson, supra, 250 Cal.App.2d 856 the court found no substantial compliance, in part because "the contents of the claim gave no indication that appellant was seeking damages against the board of education." (Id. at p. 860.) The claims statutes do not exist in order to prevent surprise. Rather, the principal purpose of the requirement that claims be filed is to provide the public entity timely notice and sufficient information so that it may investigate and settle meritorious claims without the expense of litigation. (City of San Jose, supra, 12 Cal.3d at p. 455; Jackson, supra, 250 Cal.App.2d at p. 859.) "It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge—standing alone—constitutes neither substantial compliance nor basis for estoppel. [Citations.]" (City of San Jose, supra, 12 Cal.3d at p. 455.) Compliance with the filing requirements is not excused simply because the defendant public entity has full knowledge of the facts constituting the basis of the claim. (Loehr, supra, 147 Cal.App.3d at p. 1084.)
"The doctrine of substantial compliance . . . cannot cure total omission of an essential element from the claim or remedy a plaintiff's failure to comply meaningfully with the [TCA]." (Loehr, supra, 147 Cal.App.3d at p. 1083.) A review of the PC appeal demonstrates that it fails to satisfy the test of substantial compliance because it seeks only the extraordinary relief of reinstatement, not monetary damages. In Loehr, the plaintiff sent a letter to a community college district demanding reinstatement or threatening possible legal action. His letter sought no money damages. (Id. at p. 1083.) The court rejected the plaintiff's assertion that his demand for reinstatement constituted substantial compliance with the TCA. (Ibid.)Again, a principal purpose of the claim presentation requirement is to give public entities an early opportunity to settle claims and avoid litigation. (Bettencourt, supra, 42 Cal.3d at p. 279.) Ike's PC appeal materially omits any demand for specific damages and or a representation that litigation might ensue. The PC appeal cannot be deemed to constitute substantial compliance with the TCA."'[S]ubstantial compliance cannot be predicated upon no compliance." (City of San Jose, supra, 12 Cal. 3d at p. 456.)
Ike's assertion that the doctrine of substantial compliance should apply because LACOE was not prejudiced by his failure to comply with the TCA is meritless. LACOE paid Ike $5,000 in exchange for his agreement to forgo any right to sue for claims arising from his termination. Ike sued anyway. Had he complied with the claim presentation requirements, an investigation might have earlier revealed the existence of that settlement agreement and allowed LACOE to avoid most of the expense of this litigation. Instead, LACOE's counsel did not learn about the settlement agreement until almost a year after this action was filed and heavily litigated. In addition to its payment of settlement monies, LACOE was also substantially prejudiced by having to pay counsel to prepare for and make numerous court appearances.
Ike's DFEH complaint also fails to substitute for the claim presentation requirements for purposes of the doctrine of substantial compliance. The doctrine does not apply where the claim fails to identify the factual basis for recovery. (Watson v. State of California (1993) 21 Cal.App.4th 836, 844; see also Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434-436 [claim alleging dangerous condition of public property and negligent maintenance of school property will not support an action for negligent supervision].) Unlike Snipes, supra, 145 Cal.App.3d at p. 861, on which Ike relies, in which a plaintiff was excused from complying with the TCA because he alleged at least one cause of action under FEHA, no claim alleged in the SAC states a claim of discrimination on the basis of a protected classification under FEHA and Ike "insist[s] that he is not pursuing any claim under FEHA." The trial court gave Ike ample opportunity to attempt to cure the defects in his pleading to allege facts that would suffice to show substantial compliance with the TCA. Ike was unable to do so, and does not assert any greater ability to cure this fatal defect on appeal.
4. No sanctions for a frivolous appeal
In its brief LACOE requests sanctions for what it insists is a frivolous appeal. It was once common practice for respondents to request sanctions in their appellate brief. (See International Ins. Co. v. Montrose Chemical Corp. (1991) 231 Cal.App.3d 1367, 1374.) That approach, however, is no longer appropriate. The California Rules of Court now expressly require a party seeking appellate sanctions to file and serve a motion for sanctions "before any order dismissing the appeal but no later than 10 days after the appellant's reply brief is due." (Cal. Rules of Court, rule 8.276(b)(1); see Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1273, fn. 10.) LACOE failed to file the requisite motion; we reject its informal request to impose sanctions.
Of course, we have the authority to impose sanctions on our own motion (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a).) An appeal is frivolous when it is prosecuted for an improper motive or indisputably lacks merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) This case closely approaches that line. Nevertheless, we decline to award sanctions. We are mindful of the Supreme Court's words in Marriage of Flaherty, in which the court announced the test for a frivolous appeal. The court observed that any definition of a frivolous appeal must be read "so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. . . . An appeal that is simply without merit is not by definition frivolous and should not incur sanctions." (Id. at p. 650.) Noting that in all but the clearest cases, the power to dismiss a frivolous appeal should not be used, the court added, "The same may be said about the power to punish attorneys for prosecuting frivolous appeals: the punishment should be used most sparingly to deter only the most egregious conduct." (Id. at pp. 650-651.) While there is clearly no merit to Ike's appeal, we are reluctant to categorize his conduct in taking the appeal as egregious.
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DISPOSITION
The judgment is affirmed. Los Angeles County Office of Education is awarded its costs of appeal.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.