Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. S-1500-CV-254242 SPC Sidney P. Chapin, Judge.
Anthony Penton, in pro. per, for Plaintiff and Appellant.
Ruth E. Stringer, County Counsel, Matthew J. Marnell, Deputy County Counsel, for Defendant and Respondent Allen Westervelt.
Edmund G. Brown, Jr., Attorney General, David S. Chaney, Chief Assistant Attorney General, Frances T. Grunder, Assistant Attorney General, Tracy S. Hendrickson and John W. Riches III, Deputy Attorneys General, for Defendant and Respondent Tom L. Carey.
OPINION
HILL, J.
Respondents’ demurrers to the complaint were sustained without leave to amend on the grounds the complaint was not timely filed, the complaint failed to state a cause of action against the respondents, and respondents were immune to liability on the claims alleged. Appellant appeals, contending the complaint was timely filed and not defective; alternatively, he contends he should have been granted leave to amend to cure any defects. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 12, 2004, appellant filed a complaint against Allen Westervelt and Tom L. Carey, alleging one “intentional tort” cause of action. He alleged that, while he was in the custody of the San Bernardino County Sheriff’s Department at West Valley detention center, his personal property, consisting of a Rolex watch, a gold wedding band, and a gold cross on a chain, was confiscated. On March 23, 2000, he was transferred to the California Correctional Institution at Tehachapi. On that date, he believed he saw his personal property placed on the bus in which he was transported; when he arrived at the prison, however, his property could not be located.
On May 15, 2000, appellant submitted a claim for his missing property to the San Bernardino County Sheriff’s Department. Appellant was subsequently orally informed that his claim had been denied on July 31, 2000, but, because he had been transferred to San Diego County jail, he did not receive any written notice of that denial. In August 2000, appellant telephoned the risk management division and spoke with Allen Westervelt, a liability claims representative, who advised that his claim was being denied because appellant’s property had been sent to the California Department of Corrections (CDC) on March 23, 2000.
Respondent Tom Carey is alleged to be the warden of the Tehachapi prison. Appellant apparently filed administrative appeals with the prison in an attempt to regain his personal property. On May 23, 2002, his third level of appeal was denied, exhausting his administrative remedies. On August 1, 2002, appellant submitted a claim to the Board of Control. That claim was rejected on December 19, 2002. Appellant received the notice of rejection on January 16, 2003.
According to a letter from the Victim Compensation and Government Claims Board, the successor of the Board of Control, which was attached to the complaint, appellant’s claim was received on October 28, 2002.
Documents filed by appellant separately from the complaint indicate that, on or about June 11, 2003, appellant submitted his complaint to the court clerk for filing; the clerk returned the papers to appellant without filing them because certain information was absent. The clerk returned the complaint to appellant without filing it three more times, before it was finally filed on November 12, 2004.
Both respondents demurred to the complaint. After hearing the demurrers and taking the matter under submission, on August 30, 2005, the court sustained both demurrers without leave to amend, finding that appellant’s claims were “barred by the provisions of Govt. Code section 945.6” and the complaint failed to state a cause of action against either respondent individually. The court also concluded the claims against Carey were barred by discretionary immunity.
On February 17, 2006, appellant filed a “Notice of Motion and Motion for Appeal,” which the trial court treated as a notice of appeal. On August 24, 2006, this court dismissed the appeal as premature, because no final judgment had yet been entered. On September 20, 2006, a “Judgment of Dismissal in Favor of Defendant Westervelt” was entered. Appellant filed a notice of appeal from the judgment entered on September 20, 2006. The record contains no judgment in favor of Carey and no indication such a judgment has been entered.
DISCUSSION
I. Standard of Review
When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, an appellate court must apply two separate standards of review. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) First, the court must review the complaint de novo to determine whether it contains sufficient facts to state a cause of action, accepting as true the properly pleaded material factual allegations of the complaint. (Ibid.) “Reversible error exists only if facts were alleged showing entitlement to relief under any possible legal theory.” (Ibid.) A demurrer based on the bar of the statute of limitations lies only where the action is necessarily barred. (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781.) “‘[T]he defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]’” (Ibid.)
Second, the court must determine whether the trial court abused its discretion in sustaining the demurrer without leave to amend, reversing only if “there is a reasonable possibility the pleading can be cured by amendment. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) “The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]” (Ibid.)
II. Complaint Against Westervelt
A. Timeliness under the government claim statutes
The trial court sustained Westervelt’s demurrer on two grounds, one of which was that the complaint was “barred by the provisions of Govt. Code section 945.6.” “[A] cause of action against a public employee … for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred .…” (Gov. Code, § 950.2.) This section makes clear that, “if suit against a public entity is barred by the applicable statute of limitations or by any other provision in Chapter 2 of Part 4 [Gov. Code, §§ 945-949] dealing with actions against public entities, suit against the public employee or former employee is also barred.” (Cal. Law Revision Com. com., 32A pt. 1 West’s Ann. Gov. Code (1995 ed.) foll. § 950.2, p. 74.)
Generally, before a lawsuit for money or damages may be brought against a public entity or against a public employee whose act or omission allegedly caused the injury, a claim against the public entity must be presented to, and be acted upon by, the public entity. (Gov. Code, §§ 905, 905.2, 945.4, 950.6.) An action against the public employee “must be commenced within the time prescribed by Section 945.6 for bringing an action against the public entity.” (Gov. Code, § 950.6, subd. (b).)
Government Code section 945.6 requires that “any suit brought against a public entity on a cause of action for which a claim is required to be presented … must be commenced: [¶] (1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail. [¶] (2) If written notice is not given …, within two years from the accrual of the cause of action. …” (Gov. Code, § 945.6, subd. (a).) Appellant’s complaint alleges he submitted a claim to the San Bernardino County Sheriff’s Department on May 15, 2000, and was notified the claim had been denied no later than August 2000. Attached to the complaint are two letters from Westervelt to appellant. One is dated October 4, 2000, and states, “We are denying liability for this incident,” and “[t]he purpose of this letter is to advise you of our findings and it is not intended to waive or extend the statutory period as defined in the rejection notice dated August 10, 2000.” The second letter is dated March 15, 2001, and states, “I have enclosed copies of … our rejection letter of August 10, 2000 and my denial letter of October 4, 2000.” Thus, the complaint and its attachments indicates a written rejection of appellant’s claim was sent to him on August 10, 2000. Under section 945.6, subdivision (a)(1), appellant had six months from that date in which to commence his action against Westervelt. His complaint was first tendered for filing on or about June 11, 2003, almost three years later, and was actually filed on November 12, 2004, more than four years later. Under section 945.6, subdivision (a)(1), his complaint was untimely.
Even if written notice of rejection of his claim was not served on appellant, under Government Code section 945.6, subdivision (a)(2), he was required to commence his action within two years of accrual of his cause of action. His property was lost on March 23, 2000. Thus, under section 945.6, subdivision (a)(2), appellant’s action was required to be filed by March 23, 2002. It was not tendered for filing until June 2003, and was not filed until November 2004. Accordingly, whether the public entity employing Westervelt gave written notice of the rejection of his claim or not, appellant’s complaint against Westervelt was not timely filed. The trial court did not err in sustaining Westervelt’s demurrer on the ground appellant’s complaint was untimely under Government Code section 945.6.
B. Application of the claim statutes
Appellant contends that the Government Claims Act does not apply, because his claim was not “for money or damages” (Gov. Code, § 905, 945.4), but for the return of his property. In Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, plaintiff’s complaint alleged that the City of Los Angeles, through its police department, arrested plaintiff’s assignor, Marino, took $7,720 from his person, and gave Marino a receipt for the money. The money was held as evidence and, on disposition of Marino’s case, it was “‘wrongfully detained and converted’” by transferring it to the Policeman's and Fireman's Pension Fund. (Id. at pp. 117-118.) Marino orally demanded return of the money, then assigned his interest in it to his attorney, who assigned it to plaintiff. Plaintiff made a written claim to the city, which was denied as untimely under the claim statutes. Plaintiff then sued, seeking damages of $7,720 or “such other relief ‘as the Court may deem just and proper.’” (Id. at p. 118.)
The trial court sustained the city’s demurrer without leave to amend and dismissed plaintiff’s action, based on a failure to allege that a government claim had been filed. (Minsky v. City of Los Angeles, supra, 11 Cal.3d at p. 118.) On appeal, the court noted the claim presentation requirement applied only to claims for “‘money or damages.’” (Id. at p. 120.) “A claim for the specific recovery of property has never been considered a claim for ‘money or damages.’” (Id. at p. 121.) The court reversed the judgment, concluding:
“[T]he government in effect occupies the position of a bailee when it seizes from an arrestee property that is not shown to be contraband. [Citation.] The arrestee retains his right to eventual specific recovery, whether he seeks to regain tangible property like an automobile, ring, wallet or camera, or whether he seeks to recover a specific sum of money which, under general constructive trust principles, is traceable to property within the possession of the defendant. [Citations.] Although the instant complaint does not expressly seek specific recovery of the money in question, it does contain a general prayer for any such relief as the court may deem just and proper, and under established California authority, the facts alleged by the complaint are sufficient to support a claim for specific recovery of the sums seized and allegedly wrongfully withheld from plaintiff. [Citation.] As such, we hold that noncompliance with the claims statutes erects no bar to the instant action.” (Minsky v. City of Los Angeles, supra, 11 Cal.3d at pp. 121-122, fn. omitted.)
The court explained:
“[A]fter a local governmental entity wrongfully withholds an arrestee’s property, the arrestee clearly can seek specific recovery of the property while it is still in the possession of the local entity without being limited to the relatively short period for filing claims set forth in the claims statutes. This initial exemption of the action from the claims statute is not lost simply because the city takes the further wrongful step of disposing of the bailed property. The city cannot be permitted to invoke the claims statute, originally not available to it, by virtue of a later wrongful dissipation of the property. To so hold would be in effect to allow the local entity to profit by its own wrong, penalizing a plaintiff who, in light of the specific recovery remedy apparently available to him, justifiably did not file a claim.” (Minsky v. City of Los Angeles, supra, 11 Cal.3d at pp. 121-122, fn. 14.)
The court noted that, in the absence of a claim presentation requirement, the complaint stated a cause of action based on the duty of a sheriff to “take charge of, safely keep, and keep a correct account of, all money and valuables found on each prisoner when delivered at the county jail” and to “deliver [them] … to the prisoner … upon his release from the jail” (Minsky v. City of Los Angeles, supra, 11 Cal.3d at p. 119 & fn. 5, quoting Gov. Code, § 26640.) The court concluded this duty also applied to city police officers. (Ibid.)
Like the complaint in Minsky, appellant’s complaint does not expressly request return of his property, although it does generally pray for “such relief as is fair, just, and equitable.” Unlike Minsky, however, appellant does not allege that Westervelt was an officer charged with a duty to keep and return the property of a jail inmate or that he was ever in possession of appellant’s property. Instead, the only allegations about Westervelt are that he was “the Liability Claims Representative I., who recommended that the appellant’s claim de [sic] denied” and that appellant telephoned Westervelt in August 2000 and Westervelt “advised [appellant] that his claim was being denied due to his property being sent to the Department of Corrections on March 23, 2000.” Thus, the facts alleged in the complaint do not support appellant’s assertion that his action against Westervelt is for return of his property, rather than for damages for the loss of his property. Consequently, appellant’s assertion that the claim statute does not apply to his claim against Westervelt is without merit.
C. Leave to amend complaint
Appellant contends the trial court abused its discretion when it sustained Westervelt’s demurrer without leave to amend. He asserts he should have been granted leave to amend to allege estoppel and equitable tolling.
1. Equitable estoppel
“‘Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.’ [Citation.] ‘“Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.”’ [Citations.]” (Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37.)
Estoppel may be applied against the government “‘“where justice and right require it.”’” (Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1359.)
“However, it must not be applied if doing so ‘would effectively nullify “a strong rule of policy, adopted for the benefit of the public ….” [Citation.]’ [Citation.] Accordingly, ‘[t]he government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice [that] would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy [that] would result from the raising of an estoppel.’ [Citation.]” (Feduniak v. California Coastal Com., supra, 148 Cal.App.4th at pp. 1359-1360, second and last bracketed insertion added.)
“[W]here even one of the requisite elements for estoppel is missing, it does not apply. [Citations.]” (Feduniak v. California Coastal Com., supra, 148 Cal.App.4th at p. 1360.)
Appellant does not assert that Westervelt led him “to believe a particular thing true and to act upon such belief,” or that Westervelt now seeks to contradict that “particular thing.” (Honeywell v. Workers' Comp. Appeals Bd., supra, 35 Cal.4th at p. 37.) He asserts in his brief, as he did in his complaint, that he spoke to Westervelt by telephone in August 2000, and Westervelt advised that appellant’s claim was being denied because his property was sent to CDC on March 23, 2000. Appellant also asserts that, on October 4, 2000, Westervelt sent him a copy of a denial reiterating that the claim was being denied because the records showed appellant’s property was sent to Tehachapi. Appellant asserts that, because “West Valley Detention Center, through their ‘apparent agent,’” took the position that appellant’s property had been delivered to prison authorities, appellant could not file his action “until it was determined at the last level of inmate appeals that Tehachapi did not have [appellant’s] property.”
Appellant does not claim that Westervelt is now contradicting his prior statements that appellant’s claim was denied because the property was sent to CDC; nor does he claim Westervelt should be estopped from doing so. Instead, appellant claims he could not file suit against Westervelt until he had “proof,” in the form of a final determination of appellant’s administrative appeal at Tehachapi prison, that Tehachapi prison did not have his property. Thus, appellant’s delay in filing his complaint was not due to any representation by Westervelt that Westervelt subsequently sought to contradict, but to appellant’s belief that he could not file suit against Westervelt until he had completed the administrative proceedings involved in pursuing his claim against the prison. Appellant has not suggested that, given an opportunity to amend, he could allege any facts to support his estoppel claim. He has not shown that he can allege any of the four factors necessary to establish estoppel. Consequently, he has not shown that the trial court abused its discretion by denying him leave to amend his complaint to allege equitable estoppel.
2. Equitable tolling
Under the doctrine of equitable tolling, the running of the statute of limitations is tolled “when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage.” (Addison v. State of California (1978) 21 Cal.3d 313, 317.) “The deadline for filing a lawsuit against a public entity, as set out in the government claims statute, is a true statute of limitations defining the time in which, after a claim presented to the government has been rejected or deemed rejected, the plaintiff must file a complaint alleging a cause of action based on the facts set out in the denied claim. [Citations.]” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.) The doctrine of equitable tolling requires three elements: (1) timely notice to the defendant, (2) lack of prejudice to the defendant, and (3) reasonable and good faith conduct on the part of the plaintiff. (Addison v. State of California, supra, 21 Cal.3d at p. 319.) The timely notice requirement essentially means that the first claim must have been filed within the statutory period and its filing must alert the defendant in the second claim of the need to begin investigating the second claim. “Generally this means that the defendant in the first claim is the same one being sued in the second. As an example, a workers’ compensation claim equitably tolls a personal injury action against that same employer for injuries sustained in the same incident. But under ordinary circumstances that workers’ compensation claim would not equitably toll a personal injury action against a third party who might also be liable for the injury. [Citations.]” (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924-925.)
Appellant asserts that the statute of limitations on his claim against Westervelt was tolled by his pursuit of his administrative remedies against Tehachapi prison. The two claims were not being pursued against the same defendant. The administrative proceedings against the prison were not a prerequisite to appellant’s suit against Westervelt; the two proceedings could have been pursued simultaneously. While appellant alleges he presented a timely claim against San Bernardino County, so the county had notice of his claim, that claim was rejected and appellant did not file a timely complaint against the county or Westervelt thereafter. Westervelt and the county could reasonably have concluded that appellant had abandoned his claim. Collier noted that a workers’ compensation claim generally “would not equitably toll a personal injury action against a third party who might also be liable for the injury.” (Collier v. City of Pasadena, supra, 142 Cal.App.3d at pp. 924-925.) Likewise, appellant’s pursuit of his administrative remedy against the prison would not equitably toll his claim against Westervelt, a third party who might be liable for appellant’s injury.
Appellant has not demonstrated that he could allege facts showing equitable tolling of the statute of limitations. Consequently, he has not demonstrated that the trial court abused its discretion by denying him leave to amend his complaint to allege equitable tolling of the statute of limitations. The trial court did not abuse its discretion when it denied appellant leave to amend his complaint against Westervelt.
D. Writ of mandamus
Appellant requests that, if his complaint against Westervelt for “money or damages” was untimely, it should be treated as a petition for writ of mandamus for the return of his property. Appellant asserts that “[a] defendant in a criminal proceeding clearly has the right to obtain mandamus to compel the return of personal property wrongfully withheld by the custodial officers.… No court has intimated or held that the claims statute applies to the arrestee directly seeking mandamus in a criminal proceeding to compel the return of property wrongfully in the possession of custodial officers.” (Minsky v. City of Los Angeles, supra, 11 Cal.3d at p. 123.) Appellant, however, has not sued his custodial officers or the public entity by which they were employed. Appellant’s complaint does not allege, and he has not contended here, that Westervelt was a custodial officer by whom he was held, or that Westervelt was ever in possession of appellant’s property. Consequently, even if appellant’s complaint were interpreted as a petition for writ of mandamus to compel a custodial officer to return appellant’s property, it would not state an actionable ground for relief against Westervelt.
III. Complaint against Carey
Originally, appellant attempted to appeal from the August 30, 2005, order sustaining respondents’ demurrers to his complaint. This court dismissed that appeal as premature. Subsequently, a judgment of dismissal was entered in favor of Westervelt. Appellant filed a notice of appeal from that judgment. The only judgment in the record is that in favor of Westervelt.
“An order sustaining a demurrer without leave to amend is not appealable, and an appeal is proper only after entry of a dismissal on such an order. [Citations.] On occasion, however, appellate courts have reviewed such orders, based upon justifications such as the avoidance of delay, the interests of justice, and the apparent intent of the trial court to have a formal judgment filed. [Citation.] And when the trial court has sustained a demurrer to all of the complaint's causes of action, appellate courts may deem the order to incorporate a judgment of dismissal, since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment. [Citations.]” (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
The trial court’s August 30, 2005, order sustained Westervelt’s and Carey’s demurrers to the entire complaint without leave to amend and ordered dismissal of the case; it also ordered defense counsel to prepare judgments of dismissal. The order makes clear that the trial court intended to dismiss the entire action upon submission of a proposed judgment of dismissal. Carey has not objected to the absence of a formal judgment, but has filed a respondent’s brief addressing the issues raised by appellant on the merits. Accordingly, in the interests of justice and to avoid delay, we will deem the trial court’s order to incorporate a judgment of dismissal in favor of respondent Carey, and will review the dismissal.
A. Timeliness under the government claim statutes
Like the complaint against Westervelt, the complaint against Carey was required to be filed within six months after the date notice of the rejection of appellant’s claim was delivered or mailed to appellant. (Gov. Code, § 945.6, subd. (a).) The complaint alleges appellant submitted his claim to the Board of Control on or about August 1, 2002. In an undated letter, the Victim Compensation and Government Claims Board acknowledged receiving appellant’s claim on October 28, 2002; it rejected the claim at a hearing on December 19, 2002. The complaint does not allege when notice of rejection was mailed by the board, but it alleges appellant received the rejection on January 16, 2003. Consequently, appellant’s six-month period for filing a complaint on his claim commenced no later than January 16, 2003, and expired no later than July 16, 2003. Appellant’s complaint was filed with the superior court on November 12, 2004, 16 months after expiration of the six-month period.
The Board of Control was renamed the Victim Compensation and Government Claims Board and, effective January 1, 2003, claims against the state are required to be presented to the Victim Compensation and Government Claims Board, rather than the Board of Control. (Gov. Code, §§ 900.2, 13901.)
After the filing of the complaint, but before the filing of respondents’ demurrers, appellant filed with the trial court copies of documents he received from the court clerk indicating the clerk repeatedly rejected and returned his complaint without filing it. These documents indicate appellant’s complaint was first tendered to the clerk for filing on or about June 11, 2003, within the six-month statutory period. On June 11, 2003, the clerk returned appellant’s documents unfiled, apparently because he was missing a certified inmate account statement and a civil case cover sheet, and the complaint did not indicate whether the case was a limited or unlimited case.
“[A] paper is deemed filed when it is presented to the clerk for filing in a form that complies with” rules 2.100 through 2.119 of the California Rules of Court. (Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1276.) “If a paper is thus presented, the clerk has a ministerial duty to file it.… [T]he filing of a defective paper may bring later adverse consequences if timely corrections are not made,’’ but it is not a valid ground for refusing to file the paper. (Ibid.)
Absence of a civil cover sheet is not a ground for the clerk’s rejection of a complaint. (Cal. Rules of Court, rule 3.220(c); Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1106.) The failure to designate a case as limited or unlimited also is not a valid ground for rejecting the complaint. “In a limited civil case, the caption shall state that the case is a limited civil case, and the clerk shall classify the case accordingly.” (Code Civ. Proc., § 422.30, subd. (b).) There is no similar requirement that the caption of an unlimited civil case indicate that it is an unlimited civil case. Consequently, the failure of the caption of the complaint to specify that it is an unlimited civil case is not a ground for the clerk to reject the complaint.
A certified inmate account statement is a requirement when a prisoner applies to proceed in forma pauperis. In addition to an application for waiver of court fees and costs, a prison inmate filing in forma pauperis must “file a copy of a statement of account for any sums due to the inmate for the six-month period immediately preceding the filing of the civil action .… This copy shall be certified by the appropriate official of the Department of Corrections .…” (Gov. Code, § 68511.3, subd. (e)(1).) The court then assesses a partial payment and, when funds exist, collects payments from the prisoner’s account until the filing fee is paid in full. (Gov. Code, § 68511.3, subd. (e)(2) & (3).) “In no event shall an inmate be prohibited from bringing a civil action … solely because the inmate has no assets and no means to pay the initial partial filing fee.” (Gov. Code, § 68511.3, subd. (e)(5).)
Upon receipt of an application for waiver of court fees and costs, “the clerk must immediately file the application and any pleading or other paper presented by the applicant.” (Cal. Rules of Court, rule 3.51, subd. (b).) If the application is subsequently denied, the party has 10 days in which to pay the fees or the pleading filed will be “ineffective.” (Cal. Rules of Court, rule 3.55.) Thus, a defect in the application, such as the absence of the statement of account, may be a ground for denying the application, but is not a valid ground for the clerk’s refusal to file a complaint. (See Sanders v. Yarborough (2006) 137 Cal.App.4th 764, 770, concluding the trial court did not have the authority to dismiss a prisoner’s action because he failed to file a certified statement of account.)
The record indicates appellant could at least have alleged that he timely tendered his complaint for filing, but the clerk rejected it and returned it to appellant without valid cause to do so. Consequently, Carey’s demurrer should not have been sustained without leave to amend on the ground the statute of limitations had run prior to the filing of his complaint.
B. Failure to state a cause of action
The complaint appears to attempt to allege a cause of action for deprivation of appellant’s constitutional rights, pursuant to the federal Civil Rights Act (42 U.S.C. § 1983 et seq.). States and state officials sued in their official capacity are not proper defendants in an action under the Civil Rights Act, because neither the state nor the official acting in his official capacity is a “person” as that term is used in section 1983. (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71.) In their individual capacities, state employees are liable for violation of the Civil Rights Act only if they are personally involved in the violation.
“Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability. [Citation.] A supervisor may be liable if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. [Citation.] Supervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force of the constitutional violation.’ [Citation.]” (Hansen v. Black (9th Cir. 1989) 885 F.2d 642, 645-646; see also Martin v. Sargent (8th Cir. 1985) 780 F.2d 1334, 1338, holding that a cause of action was not stated against a prison warden, where plaintiff did not allege the warden was personally involved in or had direct responsibility for the incidents that injured plaintiff.)
As the trial court found, the complaint does not allege that Carey had possession or control of appellant’s property. It does not allege that Carey was involved in the taking or loss of appellant’s property, that he personally acted wrongfully with respect to appellant’s property, or that he implemented any policy that resulted in the loss of appellant’s property. Appellant has not suggested any facts that could be added to the complaint to state a cause of action against Carey for violation of his civil rights.
The complaint also did not allege a cause of action for conversion, negligent loss or destruction of appellant’s property, or some other common law cause of action against Carey. It did not allege any facts showing that Carey took, destroyed, or lost appellant’s property, or that he participated in any way in the loss of the property, and, under California law, “a public employee is not liable for an injury caused by the act or omission of another person.” (Gov. Code, § 820.8.) Additionally, no ground for statutory liability is alleged; the only statutory duty with respect to a prison inmate’s personal property appears to be the duty imposed on the Department of Corrections to account for the prisoner’s property and return it upon discharge. (Pen. Code, § 2085 ; see also Cal. Code Regs., tit. 15, § 3193, subd. (b), [“The department shall accept liability for the loss or destruction of inmate personal property when it is established that such loss or destruction results from employee action”], italics added.)
Penal Code section 2085 formerly imposed on wardens the duty to account for the money and valuables of a prisoner and to return them to the prisoner upon discharge. (Stats. 1941, ch. 106, § 15, p. 1088.) In 1949, section 2085 was amended and now imposes the duty on the Department of Corrections. (Stats. 1949, ch. 890, § 1, p. 1656.)
Appellant has not suggested any facts he could add to the complaint in order to state a cause of action against Carey. Thus, although appellant might be able to amend to avoid the bar of the statute of limitations, he has not demonstrated the he can amend to state a cause of action against Carey. Consequently, the trial court did not abuse its discretion in sustaining Carey’s demurrer without leave to amend the complaint.
DISPOSITION
The judgments in favor of Westervelt and Carey are affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: VARTABEDIAN Acting P.J., WISEMAN J.