Garcia v. Anderson

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No. 105,033

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ADELINA GARCIA,
Appellant,

v.

MICHAEL ANDERSON, CHARLES DOULL, and
GARDEN CITY POLICE DEPARTMENT,
Appellees.

SYLLABUS BY THE COURT

1.
K.S.A. 2010 Supp. 12-105b and K.S.A. 22-4611 are analyzed and applied.

2.
Litigants with a cause of action for racial profiling, created under K.S.A. 22-4611,
must comply with the mandatory notice requirements found in K.S.A. 2010 Supp. 12-
105b(d) for claims made against a municipality subject to the Kansas Tort Claims Act.

Appeal from Finney District Court; WENDEL W. WURST, judge. Opinion filed January 20, 2012.
Affirmed.

Jaskamal P. Dhillon and Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant.

Russel B. Prophet, of Hampton & Royce, L.C., of Salina, for appellees.

Before HILL, P.J., PIERRON, J., and BUKATY, S.J.

PIERRON, J.: Adelina Garcia appeals the district court's dismissal of her petition
alleging racial profiling pursuant to K.S.A. 22-4611 against the appellees, Officers
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Michael Anderson and Charles Doull and the Garden City Police Department. The
district court dismissed Garcia's petition based on her failure to comply with the notice
provisions of K.S.A. 2010 Supp. 12-105b(d) for a claim made against a municipality
subject to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. Garcia argues the
notice provisions of the K.S.A. 2010 Supp. 21-105b do not apply to her racial profiling
claim. Alternatively, Garcia contends she substantially complied with the notice
requirements. We affirm.

On March 11, 2007, at approximately 5:30 p.m., Officers Anderson and Doull
stopped Garcia's vehicle for a defective brake light. Garcia was accompanied by her 12-
year-old daughter. Garcia presented her driver's license and registration. When Officer
Anderson called in Garcia's driver's license number to dispatch, he gave the wrong
number—the result of which caused a very unfortunate turn of events.

Garcia testified she was ordered out of her car and searched in an abusive manner.
She said the officers pulled, shoved, and verbally assaulted and abused her with the intent
and purpose of humiliating and embarrassing her to the public and in front of her young
daughter. Both officers were male and one of them aggressively performed a pat-down
search. Garcia alleges that the officers belligerently accused her of lying about her
identity, having open arrest warrants for driving under the influence and immigration
related charges, and a criminal record in Emporia. She stated they also threatened to call
the Immigration and Naturalization Service to initiate deportation proceedings. Garcia
stated she was forcefully and tightly handcuffed and put into the back of the patrol car.

Garcia stated that after a third officer arrived, the officers determined there had
been a mistake about her driver's license and criminal record. Garcia said the officers let
her go, offered no apology, and ordered her to walk to her car. The officers sped off
without issuing any citation to her in connection with the stop. Garcia alleged that she
was traumatized, injured, and angered by the incident.
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The officers state that the report on Garcia's license was that the driver had a
revoked license, an outstanding warrant, and an Immigration and Customs Enforcement
detainer. The officers searched and arrested Garcia, but then discovered their error after
rerunning Garcia's license number. They contend they made an effort to apologize to
Garcia and explain the mistake. They immediately released her from custody. The
officers claim they acted in a professional and cordial manner throughout the entire
ordeal.

Garcia filed a complaint with the Kansas Human Rights Commission (KHRC).
The KHRC conducted an investigation into the incident and issued a probable cause
finding that a racial profiling violation had occurred. The appellees state that the final
recommendations from the KHRC were for the police department to adopt a policy of
requiring written arrest reports, even in situations resulting from mistaken arrests, and
that supported the police department's policy of searching an arrestee before placing them
in a patrol vehicle, but suggested a written report be completed in situations where a
search is completed of an arrestee of the opposite gender. The appellees argue there was
no recommendation of discipline for any officer involved in the incident and no
determination was made that Garcia's race or ethnicity was a factor in her arrest.

On March 10, 2010, Garcia filed a petition in the district court alleging profiling
violations and a cause of action pursuant to K.S.A. 22-4611. She gave no written notice
of her claim to the Clerk of Garden City. She alleged she was traumatized, injured, and
angered by the actions of the police officers and requested damages in an amount
exceeding $75,000 for compensatory and punitive damages, plus attorney fees and costs.

The appellees answered Garcia's petition, raising several affirmative defenses
including her failure to comply with the notice provisions under K.S.A. 12-105b. The
appellees filed a motion to dismiss based on 12-105b. In response, Garcia raised the same
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arguments that are now presented on appeal, namely that 12-105b does not apply or,
alternatively, there was substantial compliance. After a hearing on the matter, the district
court held that although the investigation by the KHRC provided notice of many of the
provisions under 12-105b(d), Garcia did not substantially comply with 12-105b(d)
because she never provided a statement of the amount of her monetary damages. The
court found that Garcia's claim was one which could give rise to an action under the
Kansas Tort Claims Act, K.S.A. 75-6101 et seq. The court held she was required to give
written notice of the claim to the Clerk of Garden City pursuant to K.S.A. 12-105b(d)
unless K.S.A. 22-4611 could be construed to eliminate the statutorily required notice.
Answering its question in the negative, the district court concluded:

"Because K.S.A. 22-4611 simply establishes a tort action under the KTCA
without specifically eliminating the K.S.A. 12-105b notice requirement for such an
action, K.S.A. 22-4611 must be construed in harmony with K.S.A. 12-105b to establish a
civil cause of action to recover damages for racial profiling under the Kansas tort claims
act which may be commenced after denial of the claim properly set out in the appropriate
written notice as provided in K.S.A. 12-105b."

Garcia appeals, and we affirm.

First, Garcia argues that the notice provisions of K.S.A. 2010 Supp. 12-105b(d) do
not apply to a petition alleging racial profiling by a law enforcement officer under K.S.A.
22-4611. She does not cite any cases in support of her argument. Instead, she raises a
statutory interpretation argument that K.S.A. 22-4611 establishes a prerequisite to filing a
lawsuit that is complete in and of itself.

This issue requires interpretation of K.S.A. 22-4611 and K.S.A. 2010 Supp. 12-
105b. An issue of statutory interpretation is a question of law over which appellate courts
have unlimited review. Pruter v. Larned State Hospital, 271 Kan. 865, 868, 26 P.3d 666
(2001).
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K.S.A. 22-4611 provides:

"(a) Any person who believes such person has been subjected to racial profiling
by a law enforcement officer or agency may file a complaint with the law enforcement
agency. The complainant may also file a complaint with the Kansas human rights
commission. The commission shall review and, if necessary, investigate the complaint.
The commission's designee shall consult with the head of the law enforcement agency
before making final recommendations regarding discipline of any law enforcement
officer or other disposition of the complaint.
"(b) Upon disposition of a complaint as provided for in subsection (a) the
complainant shall have a civil cause of action in the district court against the law
enforcement officer or law enforcement agency, or both, and shall be entitled to recover
damages if it is determined by the court that such persons or agency engaged in racial
profiling. The court may allow the prevailing party reasonable attorney fees and court
costs." (Emphasis added.)

Garcia contends the appellees are reading additional requirements into K.S.A. 22-
4611 by requiring compliance with the notice requirements of K.S.A. 2010 Supp. 12-
105b(d) since no such language is expressed in K.S.A. 22-4611.

K.S.A. 2010 Supp. 12-105b(d) provides in relevant part: "Any person having a
claim against a municipality which could give rise to an action brought under the Kansas
tort claims act shall file a written notice as provided in this subsection before
commencing such action."

The notice requirements in K.S.A. 2010 Supp. 12-105b(d) are mandatory and a
condition precedent to bringing a tort claim against a municipality. See Smith v. Kennedy,
26 Kan. App. 2d 351, Syl. ¶ 1, 985 P.2d 715, rev. denied 268 Kan. 848 (1999); Tucking v.
Board of Jefferson County Comm'rs, 14 Kan. App. 2d 442, 444-45, 796 P.2d 1055, rev.
denied 246 Kan. 770 (1990).
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Garcia argues that if the legislature intended the notice requirements of 12-105b to
apply to her profiling claim, it could have inserted such language in K.S.A. 22-4611. She
suggests that for such requirements to be in the statute, the appellees need to provide
some indication that the legislative purpose of K.S.A. 22-4611 was to stem the tide of
frivolous petitions filed against law enforcement officials and agencies that might clog up
the courts.

Garcia argues this is a situation where the specific statute—K.S.A. 22-4611, racial
profiling—controls over the general statute—K.S.A. 2010 Supp. 12-105b. While it is an
accurate statement of the law that "the more specific statute must control over a more
general statute," see State v. Martinez, 290 Kan. 992, 1001, 236 P.3d 481 (2010) (citing
In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 [2007], cert. denied 555 U.S. 937 [2008]),
that rule has no application in this context. The rule applies where a general statute is in
conflict with a specific statute dealing with the same subject. We are not convinced there
are any conflicting statutes in this case.

"It is a cardinal rule of law that statutes complete in themselves, relating to a
specific thing, take precedence over general statutes or over other statutes which deal
only incidentally with the same question, or which might be construed to relate to it.
Where there is a conflict between a statute dealing generally with a subject, and another
dealing specifically with a certain phase of it, the specific legislation controls in a proper
case. [Citations omitted.]" Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 432, 601
P.2d 1100 (1979).

Here there is no such conflict as the racial profiling statutes concern a cause of
action for racial profiling and K.S.A. 2010 Supp. 12-105b(d) notice requirements concern
the procedural hurdles necessary for filing a cause of action against a municipality.
K.S.A. 22-4611 does not provide any express exemption from the notice provisions of
12-105b. Garcia's argument that 12-105b does not apply because K.S.A. 22-4611 does
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not address 12-105b is the antithesis of the theory that 12-105b applies to all applicable
claims unless exempted by the legislature. There is no conflict between the two statutes;
therefore, it is improper to use the more-specific-statute rule of construction. See, e.g., In
re Tax Exemption Application of Mental Health Ass'n of the Heartland, 289 Kan. 1209,
1218, 221 P.3d 580 (2009).

The appellees cite a line of cases involving violations of the Kansas Act Against
Discrimination (KAAD), K.S.A. 44-1001 et seq. In Sandlin v. Roche Laboratory, Inc.,
268 Kan. 79, 991 P.2d 883 (1999), the court held that a fired employee, with an
administrative proceeding pending before the KHRC in which a probable cause finding
of a violation of the KAAD had been issued, could not bring a separate action in the
district court without completely exhausting his administrative remedies by failing to
timely seek reconsideration of the KHRC's order of dismissal. 268 Kan. at 86-88. Sandlin
does not address the notice requirements of K.S.A. 12-105b(d).

The appellees also cite Miller v. Brungardt, 916 F. Supp. 1096 (D. Kan. 1996),
where Miller filed suit alleging sexual harassment and retaliatory discharge in violation
of Title VII, 42 U.S.C. § 2000e et seq., and the KAAD, et seq., as well as intentional
infliction of emotional distress under Kansas common law. The Miller court stated that
K.S.A. 12-105b(d)'s notice requirements were a condition precedent to Miller filing a
claim of intentional infliction of emotional distress against Brungardt and Flores if their
actions occurred within the scope of their employment. 916 F. Supp. at 1101.

The Miller court found that comments made by Brungardt, the school's vice-
principal, were sexually inappropriate and were not within the scope of his employment.
"'"[S]exual harassment . . . is not within the job description of any supervisor or any other
worker in any reputable business."' Ulrich v. K-Mart Corp., 858 F. Supp. 1087, 1092 (D.
Kan. 1994) (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1417-18 [10th Cir.
1987]). Hence, the Kansas notice requirement [did] not attach to the plaintiff's intentional
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infliction of emotional distress claim against Brungardt." 916 F. Supp. at 1101. However,
the claims against Flores, the superintendent, where he verbally reprimanded Miller for
filing a sexual harassment grievance against Brungardt, inadequately investigated her
grievance, and failed to take proper remedial action, were within the scope of a
superintendent's employment. Consequently, Miller was required to comply with K.S.A.
12-105b(d)'s notice requirements, which she failed to do, and the claim for intentional
infliction of emotional distress claim against Flores was dismissed. 916 F. Supp. 1101.

Garcia raises state law claims against the police department and the officers acting
within the scope of their employment. We agree with the district court that Garcia's
claims could give rise to a number of actions whereby the appellees could be liable in
Kansas, namely assault, battery, false imprisonment, invasion of privacy, and damages
for racial profiling. All of these types of claims are covered by K.S.A. 2010 Supp. 12-
105b(d)'s notice requirement. See Knorp v. Albert, 29 Kan. App. 2d 509, 513, 28 P.3d
1024, rev. denied 272 Kan. 1418 (2001) (holding that notice statute "applies to both
municipal entities and employees of municipal entities acting within the scope of their
employment"); King v. Pimentel, 20 Kan. App. 2d 579, 589-90, 890 P.2d 1217 (1995)
(explaining that 12-105b(d)'s notice requirement applies to municipal employees acting
within the scope of their employment "[b]ecause a municipality faces significant liability"
whether an action is "brought against it [or] against its employees"). Because Garcia
failed to provide the City with proper notice of these claims pursuant to K.S.A. 2010
Supp. 12-105b, the motion to dismiss was properly granted.

We pause to comment that the Kansas Legislature may place reasonable
restrictions on the right to sue municipalities, and the requirement that claimants give
notice of their claim pursuant to 12-105b(d) is a reasonable restriction that applies
equally to all persons wishing to sue the government. "The right to sue the government in
Oklahoma is a right granted by statute. As such, the legislature may place reasonable
restrictions on that right. The requirement that claimants give notice of their claim is a
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reasonable restriction that applies equally to all persons wishing to sue the government."
Day v. Memorial Hosp. of Guymon, 844 F.2d 728, 732 (10th Cir. 1988); see also Hibbs v.
City of Wichita, 176 Kan. 529, 532-33, 271 P.2d 791 (1954) ("This court has always
recognized the power of the legislature to enact a statute establishing conditions
precedent to the maintenance of an action against a city for damages to person or
property and long ago, in construing 12-105, . . . determined that its provisions
established conditions precedent to the bringing of such an action which must be pleaded
. . . .").

Accordingly, we hold that the district court correctly dismissed Garcia's petition
for lack of compliance with K.S.A. 2010 Supp. 12-105b(d).

Next, Garcia argues that if 12-105b(d) applies, she substantially complied with the
notice provisions of the statute and the district court erred in holding to the contrary. We
disagree.

Determining whether Garcia substantially complied with 12-105b(d) necessitates
both a factual and legal standard of review. An appellate court reviews the trial court's
findings of fact to determine if the findings are supported by substantial competent
evidence and are sufficient to support the trial court's conclusions of law. Hodges v.
Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). Substantial competent evidence is such
legal and relevant evidence as a reasonable person might regard as sufficient to support a
conclusion. 288 Kan. at 65. An appellate court has unlimited review of conclusions of
law. American Special Risk Management Corp. v. Cahow, 286 Kan. 1134, 1141, 192
P.3d 614 (2008).

With regard to the substantive requirements of any written notice of a claim under
the statute, K.S.A. 2010 Supp. 12-105b(d) provides in relevant part:

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"(d) . . . . The notice shall be filed with the clerk or governing body of the
municipality and shall contain the following: (1) The name and address of the claimant
and the name and address of the claimant's attorney, if any; (2) a concise statement of the
factual basis of the claim, including the date, time, place and circumstances of the act,
omission or event complained of; (3) the name and address of any public officer or
employee involved, if known; (4) a concise statement of the nature and the extent of the
injury claimed to have been suffered; and (5) a statement of the amount of monetary
damages that is being requested. In the filing of a notice of claim, substantial compliance
with the provisions and requirements of this subsection shall constitute valid filing of a
claim. The contents of such notice shall not be admissible in any subsequent action
arising out of the claim. Once notice of the claim is filed, no action shall be commenced
until after the claimant has received notice from the municipality that it has denied the
claim or until after 120 days has passed following the filing of the notice of claim,
whichever occurs first. A claim is deemed denied if the municipality fails to approve the
claim in its entirety within 120 days unless the interested parties have reached a
settlement before the expiration of that period. No person may initiate an action against a
municipality unless the claim has been denied in whole or part. Any action brought
pursuant to the Kansas tort claims act shall be commenced within the time period
provided for in the code of civil procedure or it shall be forever barred, except that, a
claimant shall have no less than 90 days from the date the claim is denied or deemed
denied in which to commence an action."

Garcia maintains there is really no argument that the appellees were sufficiently
notified of the required elements in K.S.A. 12-105b(d)(1), (2), (3), and (4) by virtue of
the investigation by the KHRC. The appellees do not challenge this claim. However,
Garcia argues she substantially complied with the statutory notice requirements of her
alleged damages by virtue of the fact that the appellees told her that mediation of her
claims was out of the question and the appellees would aggressively defend the
allegations. She contends the investigation by the KHRC gave the appellees the
"opportunity to ascertain the character and extent of the injury sustained" and, thus, the
monetary component of 12-105b(d) notice requirements did not need to be met with
specificity.
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Garcia cites Burgess v. West, 817 F. Supp. 1520 (D. Kan. 1993), for her argument
that we should consider the appellees' statements that mediation of Garcia's claims was
out of the question and they would aggressively defend the allegations to be a denial of
her claims under K.S.A. 2010 Supp. 12-105b. In Burgess, the question was whether the
plaintiff's written notice, which was in complete compliance with 12-105b, was denied in
whole or in part. The issues centered around the commencement of the running of the
statute of limitations based on when the plaintiff's written claim was denied. Here, Garcia
argues that based on Burgess, she was essentially advised it would be fruitless to attempt
to negotiate damages and that equity requires that the appellees not benefit from the
consequence that a specific settlement offer was not then made. We disagree.

Several cases have addressed the insufficiency of the damage element of notice
under 12-105b(d). In Zeferjohn v. Shawnee County Sheriff's Dept., 26 Kan. App. 2d 379,
988 P.2d 263 (1999), the plaintiff was in custody and in a sheriff's patrol car when the
officer driving the car backed into another vehicle. The plaintiff filed suit against
Shawnee County alleging negligence and attempting to recover damages, but the district
court dismissed the suit due to his failure to comply with 12-105b. On appeal, we initially
noted that the plaintiff served the notice on the office of the Shawnee County Counselor
and not " the clerk or governing body of the municipality," as the statute required. 26
Kan. App. 2d at 381-83. Although service was incorrect, the court cited additional flaws
in the notice:

"For one, [the notice] varied factually in its claim of damages. In the claim filed, plaintiff
said that he was seeking damages of $15,000 for 'pain and suffering, disability, present
and future medical, disfigurement; as well as, wage loss.' The petition filed, on the other
hand, sought damages in excess of $50,000.
"The failure to specify the same amount of damages as filed in his claim and the
failure to conform his petition to the matters set forth in the claim is an additional reason
why the claim did not substantially comply with the statute. K.S.A.1998 Supp. 12–
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105b(d)(5) requires 'a statement of the amount of monetary damages that is being
requested.' Plaintiff varied that statement from the claim to the petition and it renders his
notice insufficient, and we hold it did not substantially comply with the provisions of the
statute." 26 Kan. App. 2d at 383.

In Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619,
639, 205 P.3d 1265 (2009), there was a collision between a freight train and a truck. After
settling a lawsuit against them filed by the train company, the truck driver and his
employer filed suit against Barber County for negligence and implied indemnity due to
"an alleged failure to construct and maintain a safe grade crossing." The district court
granted the appellees' motion to dismiss, finding, among other things, that the notice filed
did not substantially comply with 12-105b(d).

After analyzing the notice filed, the Dodge City Implement court found that the
notice did not substantially comply with the statutory requirements because it identified
an incorrect claimant; did not identify the ultimate plaintiffs in the suit, give their
addresses, or provide the required information about plaintiffs' counsel; and failed to put
the appellees on notice of the extent of the damages sought. 288 Kan. at 640-42. The
court expounded on the general rationale behind the notice provisions of 12-105b(d) and
how a lack of notice

"posed serious obstacles to the County's and the Township's full investigation and
understanding of the merits of the claims advanced. Without such investigation and
understanding, the legislature's obvious desire to facilitate early and easy resolution of
claims against municipalities is undermined. The notices did not serve their purpose, and
they did not provide the district court with jurisdiction over the negligence and
negligence per se claims." 288 Kan. at 642.

There is sufficient caselaw as cited above to support the proposition that the
difference between damages claimed since actual 12-105b(d) written notice was not
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made and those ultimately alleged in the petition render the notice fatally deficient under
K.S.A. 2010 Supp. 12-105b(d). The present case is a step in the direction of even less
notice of damages than in Zepherjon and Dodge City Implement by virtue of the fact that
the appellees never had any express or substantially compliant notice of the amount of
Garcia's damages before she filed her petition. As was the case in Dodge City Implement,
without the appellees' understanding of the extent of Garcia's alleged damages, the
legislature's obvious desire to facilitate early and easy resolution of Garcia's claim against
the appellee was undermined. Further, the fact that the City may have suggested that
mediation was out of the question does not relieve Garcia of the statutory duty to provide
written notice of her damages pursuant to K.S.A. 2010 Supp. 12-105b.

There can only be substantial compliance if the plaintiff makes an attempt to state
each element required of the notice. Tucking, 14 Kan. App. 2d at 446-48. Garcia failed to
substantially comply with the notice requirements of K.S.A. 2010 12-105b(d).

Affirmed.