Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG05-222751
Swager, J.
Appellant Kevin-Paul Woodruff appeals the order of the trial court sustaining without leave to amend the demurrer of respondents the State of California (State), Governor Arnold Schwarzenegger (Schwarzenegger), and former Attorney General Bill Lockyer (Lockyer) on the grounds that the complaint is uncertain and fails to state a cause of action. We affirm the order and judgment of dismissal.
ALLEGATIONS OF THE COMPLAINT AND PROCEDURAL BACKGROUND
On August 11, 2004, appellant submitted a tort claim to the State Board of Control (now known as the Victim Compensation and Government Claims Board) (Board) against “Governor Grey Davis and/or his successor,� Lockyer, and various deputy attorneys general and public defenders. Appellant claimed that he was injured on July 26, 1993. Documents attached to his claim reveal that he was arrested on June 17, 1992 by the Hayward Police Department as a suspect in a robbery. He was then put on a parole hold and transferred to state prison. On July 26, 1993, the federal district court of the Northern District of California issued an arrest warrant, which was presented to state prison authorities who then turned appellant over to federal authorities. The sequence of events that followed is not entirely clear from the record, but the claim states that on July 14, 1998, appellant was sentenced to 235 months. The thrust of his claim appears to be that state officials acted illegally in turning him over to federal authorities.
We note the United States Courts of Appeals for the Ninth Circuit affirmed appellant’s conviction and sentence on September 29, 1999. (United States v. Woodruff (9th Cir. 1999 [nonpub. disposition]) 198 F.3d 256 (Table).)
The attachment to the claim states: “Subsequently 15 months later [appellant] was boothstrapp [sic] back to federal custody without the state charge being exhausted, and on July 14, 1998 [appellant] was unlawfully sentence [sic] to 235 months.�
On September 3, 2004, the Board rejected appellant’s claim, explaining: “Your claim was filed more than one year from the date of the incident that is the basis of the claim, and it is too late for the Board to consider an application to present a late claim.�
On July 13, 2005, appellant filed a complaint in the superior court against the State, Governor Schwarzenegger, and Lockyer, alleging causes of action for breach of fiduciary duty, violation of Business and Professions Code section 17200, conspiracy, and unlawful imprisonment. He claimed he had lawfully exhausted his administrative remedies, averring that the Board had “failed to acknowledge the ‘Discovery Rule’ which is the Rule [sic] that Tolled [sic] in respect to injuries and causes.� As in the claim that the Board denied, the complaint appears to allege that state authorities acted unlawfully when they turned him over to federal prosecutors in 1993. The complaint prays for millions of dollars in damages as well as injunctive relief.
The language of the complaint is confusing and some of the causes of action are not clearly stated. We have attempted to characterize the causes of action contained therein as best we understand them.
On June 30, 2006, respondents demurred to the complaint on the grounds that the trial court had no jurisdiction and that the complaint failed to state a cause of action. Specifically, the demurrer cited to appellant’s failure to submit the tort claim to the Board within one year of the accrual of his cause of action, his failure to identify the statutes forming the basis of his claim against the State, and his failure to plead facts with particularity against Governor Schwarzenegger or Lockyer. Additionally, the demurrer alleged that the claims were barred by appellant’s criminal conviction.
On August 7, 2006, appellant opposed the demurrer by filing a motion to strike, asserting that the demurrer was not timely filed. He filed a declaration and further briefing in support of his opposition to the demurer on September 11, 2006.
On September 25, 2006, the trial court sustained the demurrer without leave to amend as to respondents Governor Schwarzenegger and Lockyer, finding that “neither [Schwarzenegger nor] Lockyer were in their respective offices during the time in question.â€� As to the State, the demurrer was sustained with leave to amend to allege, if possible, “(a) any cognizable cause(s) of action which are not barred by the applicable statute(s) of limitations or why the applicable statute(s) of limitations do not apply thereto and (b) any cognizable causes of action that cite[] any statute(s) imposing liability against a public entity Defendant (see Gov. Code § 815).â€�
On October 18, 2006, appellant filed a document entitled “Secured Party’s Leave To Amend, Per Judge Winifred Y. Smith, Sept 25, 2006 Ruling re Public Entity Causes of Action/Liability Pursuant to Gov. Code § 815.â€� On the same day, he moved for reconsideration of the trial court’s order sustaining without leave to amend the demurrer of respondents Governor Schwarzenegger and Lockyer.
On November 2, 2006, the State demurred to the “Secured Party’s Leave To Amend� document filed on October 18, 2006, construing it as a first amended complaint (FAC). The State alleged that the FAC was fatally uncertain in that (1) it was unintelligible, and (2) appellant had failed to identify the statute or statutes forming the basis of his claims against the State. Appellant did not file an opposition.
On December 12, 2006, after hearing argument from the parties, the court denied the motion for reconsideration and sustained the State’s demurrer without leave to amend. The court’s order states: “The [FAC] does not state sufficient facts to state a cause of action and is uncertain in that the complaint is unintelligible; and, [appellant] failed to meet his burden of identifying the statute(s) forming the basis of his claim against [the State]. (Code Civ. Proc. § 430.10(e) & (f).)â€� Judgment of dismissal was entered on June 5, 2007. This appeal followed.
DISCUSSION
I. Standard of Review
On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, the reviewing court assumes the truth of all facts properly pleaded by the plaintiff. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We also accept as true all facts that may be implied or reasonably inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) We do not assume the truth of “ ‘ “contentions, deductions or conclusions of fact or law. . . .� [Citation.] . . . .’ � (Evans v. City of Berkeley, supra, at p. 6, citing Blank v. Kirwan, supra, at p. 318.) We may also consider exhibits attached to the complaint. (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1101.) We review the trial court’s action de novo and exercise our own independent judgment whether a cause of action has been stated under any legal theory. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We review the court’s refusal to allow leave to amend under the abuse of discretion standard. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
II. Noncompliance with the Government Tort Claims Act
We begin with an overview of the statutory scheme of the Tort Claims Act (Gov. Code, § 810 et seq.) (Act). The Act “represents a limited waiver of sovereign immunity to bring tort claims against the State of California and its public entities . . . .â€� (Qwest Communications Corp. v. City of Berkeley (N.D.Cal. 2001) 146 F.Supp.2d 1081, 1090.) The Act’s intent is “not to expand the rights of plaintiffs . . . against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances; immunity is waived only if the various requirements of the Act are satisfied.â€� (Williams v. Horvath (1976) 16 Cal.3d 834, 838.)
The Act requires the timely presentation of a written claim for money or damages directly to a public entity, and the rejection of that claim, as a condition precedent to a tort action against either the public entity or an individual public employee acting within the scope of his or her employment. (Gov. Code, §§ 911.2, 945.4, 950.2; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) The Act “creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint.â€� (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776 (Munoz).)
The primary purpose of the Act’s claim presentation requirement is to “ ‘afford prompt notice of claims to governmental entities.’ [Citation.� (Hart v. County of Alameda (1999) 76 Cal.App.4th 766, 781.) “[T]he purpose of the claims statutes ‘is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. [Citations.]’ [Citation.]� (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 705.) Timely notice “give[s] the public entity the opportunity to investigate the factual basis of the claim while the evidence is fresh, to settle meritorious cases without litigation, and to consider the fiscal implications of potential liability.� (Barkley v. City of Blue Lake (1996) 47 Cal.App.4th 309, 316.) Moreover, the Act’s claim presentation requirement must be satisfied even if the public entity has actual knowledge of the circumstances surrounding the claim. It is well settled that actual knowledge by the public entity of the circumstances of a potential claim—standing alone—constitutes neither substantial compliance nor a basis for estoppel. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455; Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1296-1297.)
In addition to actions against the state, the Act requires a plaintiff who sues an individual public employee, on the basis of acts or omissions in the scope of his or her employment, to file a claim against the public-entity employer pursuant to the same procedures for claims against public entities. (Gov. Code, §§ 950.2, 950.6; Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 612-613.) An employee acts within the scope of his or her employment when engaged in work the employee was employed to perform, or when an act is incident to the employee’s duty and was performed for the benefit of the employer and not to serve his own purpose. (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750-1751.)
A civil complaint that is subject to the Act must affirmatively allege compliance with the claim presentation requirement, or allege facts showing the applicability of a recognized exception or excuse for noncompliance. (State of California v. Superior Court, supra, 32 Cal.4th 1234, 1239, 1243.) A plaintiff’s failure to comply with the Act’s mandatory requirements—timely presentation and rejection of a claim—is fatal to his cause of action. Thus, a public entity or employee may establish a complete defense to a plaintiff’s lawsuit if the plaintiff failed to comply with the Act’s claim presentation requirement. (Id. at p. 1243.)
As relevant to appellant’s causes of action, a claim “relating to a cause of action for death or for injury to person . . . shall be presented . . . not later than six months after the accrual of the cause of action.â€� (Gov. Code, § 911.2, subd. (a).) The claim must be presented to the appropriate government entity by delivery or mail. (Gov. Code, § 915, subd. (a).) Previously, a claim against the state was presented to the State Board of Control. In 2002, the statutory scheme was amended and claims against the state must now be presented to the Victim Compensation and Government Claims Board. (Gov. Code, § 900.2.)
The Legislature has provided numerous ways to obtain relief from the Act’s claim presentation requirement. (State of California v. Superior Court, supra, 32 Cal.4th 1234, 1245.) If the plaintiff fails to file the claim within the six-month period, the plaintiff may file a written application to the public entity for leave to present a late claim. (Gov. Code, § 911.4, subd. (a).) The plaintiff’s request to present a late claim must be filed “within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.â€� (Gov. Code, § 911.4, subd. (b), italics added.)
If the public entity denies the application for leave to file a late claim, the plaintiff may then petition the superior court for relief from the claims requirement. (Gov. Code, § 946.6, subd. (a); Ard v. County of Contra Costa (2001) 93 Cal.App.4th 339, 343.) The petition must be filed within six months after the plaintiff’s application to file a late claim has been denied. (Gov. Code, § 946.6, subd. (b).) The court may grant the petition if plaintiff shows by a preponderance of the evidence that the application to the public entity for leave to file a late claim was presented within a reasonable time, and the failure to file a timely claim was due to mistake, inadvertence, surprise, or excusable neglect, unless the public entity demonstrates prejudice. (Gov. Code, § 946.6, subd. (c)(1); People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 43.) The court, however, lacks jurisdiction to grant relief if the application is filed more than one year after the cause of action accrued. (Gov. Code, § 911.4, subd. (b); Munoz, supra, 33 Cal.App.4th 1767, 1779.)
“[F]ailure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.� (State of California v. Superior Court, supra, 32 Cal.4th 1234, 1239.) There is no evidence in the record that appellant sought leave to file a late claim. Moreover, his complaint was based on alleged causes of action that, by his own admission, accrued more than 10 years before he presented his claim to the Board. Thus, respondents’ demurrer was properly sustained as appellant was barred from bringing a suit based on the untimely claim.
III. The Discovery Rule Does Not Apply
A cause of action ordinarily accrues when the wrongful act occurs, the liability arises, and the plaintiff is entitled to prosecute an action. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 815; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) In other words, a cause of action accrues “ ‘ “ ‘upon the occurrence of the last element essential to the cause of action.’ � [Citations.]’ [Citation.]� (Howard Jarvis, supra, at p. 815.) Further, we note “The statute of limitations for commencing a government tort claim action is not tolled by virtue of a plaintiff’s imprisonment.� (Moore v. Twomey (2004) 120 Cal.App.4th 910, 914.)
Appellant contends that his complaint falls within the delayed discovery rule. “The common law delayed discovery rule is an exception to the general rule and provides that a cause of action does not accrue until a plaintiff discovers, or reasonably should discover, the cause of action. ‘A plaintiff has reason to discover a cause of action when he or she “has reason at least to suspect a factual basis for its elements.� [Citations.]’ [Citation.] The elements that the plaintiff must suspect are the generic elements of wrongdoing, causation, and harm. [Citation.] A plaintiff who suspects that he or she has suffered an injury caused by the wrongdoing of another is charged with the knowledge that a reasonable investigation would reveal, and the limitations period begins to run at that time.� (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 66, fn. omitted.)
In his reply brief, appellant claims that he was left with “the impression that no remedy or cause of action exist [sic]� when a federal judge dismissed his writ of habeas corpus on November 5, 2004. Appellant “believe [sic] that he was foreclosed from any cause of action until further investigation reveal [sic] that the California Constitution and California Civil Code [section] 52.1[, subdivision] (b) mandates a specific duty of care to protect its citizen [sic] from infringement by Corporations. Therefore, from [appellant] continue [sic] diligent [sic] to marshal all the elements to support a cause of action he initiated a civil complaint.�
These allegations are insufficient to bring the claim within the discovery rule. “[I]t is the knowledge of facts rather than discovery of legal theory, that is the test.� (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 803.) A plaintiff’s ignorance of the legal significance of facts known to him or her does not toll the statute of limitations. (Graham v. Hansen (1982) 128 Cal.App.3d 965, 972, 974.) Here, appellant was aware that the state had turned him over to federal authorities when he received the copy of his federal arrest warrant in 1993. The fact that he was unaware of a possible legal theory of recovery against the state and its officers until approximately a decade later does not operate to extend the statute of limitations. Accordingly, the statute of limitations on appellant’s tort claims was not tolled by the discovery rule.
Appellant filed his claim in August 2004, many years beyond the last day of any applicable limitations period. His action clearly was untimely, and the trial court properly sustained respondents’ demurrer. Additionally, the court did not abuse its discretion in refusing to allow appellant the opportunity to amend the complaint. The claim shows on its face that it was untimely filed. As noted previously, “a plaintiff must timely file a claim for money or damages with the public entity. [Citation.] The failure to do so bars the plaintiff from bringing suit against that entity.� (State of California v. Superior Court, supra, 32 Cal.4th 1234, 1237.)
IV. Any Federal Civil Rights Claim is Barred by the Statute of Limitations
42 United States Code section 1983 (section 1983), provides, in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .� “A section 1983 claim against a public entity need not be presented to the public entity before filing suit in state or federal court.� (Florio v. City of Ontario (2005) 130 Cal.App.4th 1462, 1468.)
We first observe that a state is not a “person� under section 1983. (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71.) Therefore, assuming that appellant’s complaint alleges a section 1983 cause of action against the State, it must fail. Accordingly, to survive demurrer, he was required to sufficiently plead a section 1983 cause of action against the named individuals, Governor Schwarzenegger and Lockyer. However, as alleged in the complaint, appellant’s claims accrued at some point in 1993. We may take judicial notice of the fact that neither Governor Schwarzenegger nor Lockyer held their respective offices at that time. Accordingly, the complaint fails to state a cause of action against these two individuals.
Regardless, a section 1983 claim would be barred by the applicable statute of limitations. A state’s personal injury statute of limitations applies to a federal civil rights claim. (Del Percio v. Thornsley (9th Cir. 1989) 877 F.2d 785, 786.) The statute of limitations for personal injury is now two years. “In 2002 the Legislature amended [Code of Civil Procedure] section 340, subdivision (3), to delete the one-year limitations period for personal injury actions. At the same time, it added [Code of Civil Procedure] section 335.1, which now provides a two-year statute of limitations for such actions.â€� (Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1028; Stats. 2002, ch. 448, §§ 2-3.) As the conduct complained of occurred when the one-year limitations period applied, appellant’s claim is unquestionably barred by the statute of limitations. And, for the reasons stated above, the delayed discovery rule does not apply to extend the statute of limitations on his section 1983 claim.
We need not address the other arguments advanced by the parties.
We observe that much of appellant’s briefing is nonsensical. Every argument presented by an appellant must be supported by both coherent argument and pertinent legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) If either is not provided, the appellate court may treat the issue as waived. (Ibid.)
DISPOSITION
The order and judgment of dismissal is affirmed.
We concur: Marchiano, P. J., Margulies, J.