Opinion
F081124
09-05-2023
ALBERT HERNANDEZ, SR., Plaintiff and Appellant, v. CITY OF VISALIA et al., Defendants and Respondents
Albert Hernandez, Sr., in pro. per., for Plaintiff and Appellant. Herr Pedersen & Berglund, Leonard C. Herr and Ron Statler, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCU280689. David C. Mathias, Judge.
Albert Hernandez, Sr., in pro. per., for Plaintiff and Appellant.
Herr Pedersen & Berglund, Leonard C. Herr and Ron Statler, for Defendants and Respondents.
OPINION
SMITH, J.
The trial court sustained defendant City of Visalia's demurrer to the instant complaint and dismissed the case. Plaintiff Albert Hernandez, Sr., appeals the trial court's sustainment of the demurrer. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to filing the instant matter, Hernandez had filed, on March 10, 2014, a complaint against the City of Visalia and several City employees (collectively, the City), alleging he was injured, on February 28, 2013, by a police dog in the course of being arrested by the Visalia police. Hernandez subsequently amended that complaint to add more City employees as defendants. However, on September 26, 2019, Hernandez voluntarily dismissed that case.
Thereafter, on October 7, 2019, Hernandez filed a complaint initiating the instant matter against the City and several City employees, based on the same February 28, 2013 incident and alleged dog-bite injuries as were at issue in the first (voluntarily dismissed) case. The complaint in the new case further referred to a July 10, 2017 incident concerning the arrest of Hernandez's son and the consequent involvement of Child Welfare Services in the care of his grandchildren. As to the actual claims in the new complaint, it appeared to raise claims of negligence and violation of civil rights (42 U.S.C. § 1983). The new complaint also included noncognizable claims styled as "failure to exercise jurisprudence," "lack of feasance," and "abusive tactics."
The City filed a demurrer to the new complaint on November 25, 2019. On January 2, 2020, the trial court sustained the demurrer without leave to amend. Hernandez filed a motion for reconsideration, which the trial court denied.
Hernandez appealed, challenging the trial court's sustainment of the City's demurrer. We affirm.
DISCUSSION
I. Standard of Review
"When the trial court sustains a demurrer, we review the complaint de novo to determine whether it contains sufficient facts to state a cause of action." (Glen Oaks Estates Homeowners Assn. v. Re/Max Premier Properties, Inc. (2012) 203 Cal.App.4th 913, 918.)" 'While the decision to sustain or overrule a demurrer is a legal ruling subject to de novo review on appeal, the granting of leave to amend involves an exercise of the trial court's discretion. [Citations.] When the trial court sustains a demurrer without leave to amend, we must also consider whether the complaint might state a cause of action if a defect could reasonably be cured by amendment. '" (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 432.)" 'If the plaintiff cannot show an abuse of discretion, the trial court's order sustaining the demurrer without leave to amend must be affirmed. '" (Ibid.)
II. Trial Court Properly Sustained City's Demurrer to Complaint
(a) Hernandez's Federal Claims
As noted, Hernandez alleged federal claims under 42 U.S.C. section 1983 (section 1983), in the instant matter. For purposes of that statute, the applicable statute of limitations is" 'the forum state's statute of limitations for personal injury actions.'" (Klein v. City of Beverly Hills (9th Cir. 2017) 865 F.3d 1276, 1278.) Under California's statute of limitations for personal injury actions, a suit must be initiated within two years of accrual of the claim at issue. (Ibid; Code Civ. Proc., § 335.1.) Section 1983 claims involving excessive force accrue upon injury. (Cabrera v. City of Huntington Park (9th Cir. 1998.) 159 F.3d 374, 380-381; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 747.)
Hernandez filed the complaint in the instant action on October 7, 2019. The federal claims asserted therein arise either from the February 28, 2013 dog-bite incident or the July 10, 2017 incident involving the arrest of Hernandez's son and a call to Child Welfare Services regarding his grandchildren. Under the applicable statute of limitations, the time for filing claims based on the February 28, 2013 incident expired on February 28, 2015, and the time for filing claims based on the July 10, 2017 incident expired on July 10, 2019. In short, the instant action is time-barred under Code of Civil Procedure section 335.1. Further, Hernandez has not shown that the statute of limitations problem is curable by amendment. Accordingly, we affirm the trial court's dismissal of Hernandez's federal claims.
To the extent Hernandez argues a stay issued by the trial court with respect to his prior action (based on the 2013 dog-bite incident) tolled the applicable statute of limitations for purposes of the instant action, the argument is unavailing. (See Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 445 ["a party's voluntary dismissal without prejudice does not come equipped by law with an automatic tolling or waiver of all relevant limitations periods; instead, such a dismissal includes the very real risk that an applicable statute of limitations will run before the party is in a position to renew the dismissed cause of action"].)
(b) Hernandez's State Law Claims
As for Hernandez's state law claims, they are also time-barred. As noted above, California's statute of limitations for personal injury actions is two years and Hernandez's state law claims (just like Hernandez's federal claims) are based on allegations of injuries that occurred over two years before the instant complaint was filed on October 7, 2019. (Code Civ. Proc., § 335.1) The claims are therefore barred under the applicable statute of limitations.
Furthermore, Hernandez's state law claims are untimely under the Government Claims Act (Gov. Code, § 900 et seq.). Pursuant to the Government Claims Act, a plaintiff seeking money damages against public entities and public employees acting within the scope of their employment, is required to file an initial claim with the relevant public entity. (See Gov. Code, §§ 905, 950.2.) Failure to do so bars the plaintiff from suing the relevant public entity and public employees. (Gov. Code, § 950.4.) Generally, the initial claim must be presented to the relevant public entity within six months of accrual of the claim. (Gov. Code, § 911.2.) A claimant may file suit within six months after such a claim is rejected. (Gov. Code, § 945.6.)
The complaint in the instant action was filed on October 7, 2019. The record discloses that Hernandez filed a claim with the City of Visalia for alleged injuries sustained in the February 28, 2013 dog-bite incident, which claim was rejected on September 9, 2013. The instant complaint was filed after expiration of the six-month window following rejection by the City of Hernandez's initial claim (any lawsuit against the relevant public entity and public employees acting within the scope of their employment must be filed within six months after rejection of the claim initially presented to the public entity). (Gov. Code, § 945.6). Since the City rejected Hernandez's underlying claim on September 9, 2013, Hernandez was required to file any related complaint within six months thereafter. (See Martell v. Antelope Valley Hospital Medical Center (1998) 67 Cal.App.4th 978, 984-985 (Martell) [six-month limitation on filing a complaint specified in Government Code section 945.6 is inviolate and applies to any and all complaints filed in the same forum].)
In sum, Hernandez's state law claims fail under Code of Civil Procedure section 335.1 and Government Code section 945.6. Hernandez has not shown that the untimeliness of his claims is curable by amendment. Accordingly, we affirm the trial court's dismissal of Hernandez's state law claims.
To the extent Hernandez argues a stay issued by the trial court with respect to his prior action (based on the 2013 dog-bite incident) renders the instant lawsuit timely for purposes of the applicable statute of limitations and the Government Claims Act, the argument is unavailing. (See Martell, supra, 67 Cal.App.4th at pp. 984, 985 ["a plaintiff dismisses a complaint at his peril," with respect to the applicable statute of limitations and the six-month window "to file any and all complaints" under the Government Claims Act].)
(c) Miscellaneous Claims
Finally, to the extent Hernandez raises additional, tangential arguments, we detect no merit in them and find it unnecessary to address them further. Indeed, Hernandez may be said to have waived all issues on appeal because he has not properly framed the asserted errors on the part of the trial court or supported his claims with reasoned argument and citations to appropriate legal authorities. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" 'A judgment or order of the lower court is presumed correct ... and error must be affirmatively shown.' "]; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [when an appellant asserts a point, "but fails to support it with reasoned argument and citations to authority," we treat the point as waived].)
DISPOSITION
The judgment is affirmed. Each side to bear its own costs.
WE CONCUR: POOCHIGIAN, Acting P. J. FRANSON, J.