Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 634856. Hurl William Johnson III, Judge.
Michael Joseph Piazza, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alberto L. Gonzalez, and Peter A. Meshot, Deputy Attorneys General, for Defendants and Respondents.
OPINION
DAWSON, J.
Michael Joseph Piazza filed this lawsuit claiming that peace officers (1) used excessive force in arresting him and (2) lost or destroyed his personal property. The Attorney General’s Office appeared on behalf of the California Highway Patrol (CHP) and CHP Officer D. R. Brackett, filing demurrers to Piazza’s pleadings. Ultimately, the trial court sustained a demurrer without leave to amend and entered a judgment of dismissal in favor of CHP and Officer Brackett.
Piazza appealed from the judgment. We conclude (1) the entry of default against the defendants did not bar the demurrer of CHP and Officer Brackett to Piazza’s amended complaints because the amended pleadings requested greater damages than the original complaint and thus “opened the default, ” (2) the trial court did not abuse its discretion in denying Piazza’s petition for relief from the claim requirement imposed by California’s Tort Claims Act (Gov. Code, § 905 et seq.), (3) Piazza’s allegations regarding the use of excessive force state a claim under section 1983 of title 42 of the United States Code (section 1983) for a violation of his Fourth Amendment right to be free of unreasonable seizures by persons acting or purporting to act in the performance of their official duties (i.e., acting under color of state law), and (4) Piazza alleged state law claims against CHP and Officer Brackett because questions of fact regarding the timeliness of his claim form and the application of the prison-delivery rule to his attempt to file the claim form cannot be resolved against him at the pleading stage of this lawsuit.
The judgment will be reversed and the matter remanded for further proceedings.
FACTS
When reviewing an order sustaining a demurrer, appellate courts are required to accept as true the allegations of fact set forth in the plaintiff’s pleading. (E.g., Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Therefore, the facts set forth here are taken from Piazza’s pleadings.
At approximately 7:00 a.m. on August 25, 2008, officers assigned to the Stanislaus County Auto Theft Taskforce (StanCATT) towed Piazza’s 1988 Ford Bronco from a driveway at an address in Modesto, California. Just before noon, Piazza arrived on foot at the address and noticed the Bronco was gone. Residents told him that StanCATT officers had ordered guests to leave and residents inside and, about 20 minutes later, a tow truck arrived and towed the Bronco from the driveway.
Because of the missing vehicle, Piazza proceeded to fix a 1988 Chevy pickup that was parked on the street. While under the pickup to connect the speedometer cable, Piazza noticed a black box magnetically attached to the frame. He called to his friends who lived at the address to come out and see. When they came out, Piazza opened the black box to reveal a tracking device with an external battery.
At that time, vehicles came to a screeching stop around Piazza and the pickup, and Piazza was surrounded by numerous officers. The officers, including Officer Brackett and Detective Derek Perry, pointed their guns at Piazza, yelling “come out with your hands up.” As Piazza attempted to comply, the officers pulled him from beneath the truck, smashing his mouth on the curb, which knocked fillings out of his front teeth and loosened his bottom teeth. When Piazza was no longer underneath the pickup, Officer Brackett stepped on Piazza’s face, which smashed his sunglasses into his face and caused him to be burned by the hot pavement (it was over 100 degrees at the time). Officer Brackett then tasered Piazza numerous times until he became unconscious. Also, while Detective Perry cuffed Piazza at gunpoint, he drove his knee into Piazza’s back. As a result of the violent assault and use of excessive force on Piazza, he suffered numerous physical, mental, and emotional injuries. The injuries resulted in scars on his face and arms, tingling in his right thumb, forefinger and middle finger, and pain in his lower back.
In addition to using excessive force, defendants deprived Piazza of his personal property by illegally towing his Bronco and confiscating his car trailer. Also, defendants went to Piazza’s storage unit and took or destroyed his personal belongings without a warrant and without leaving an inventory report. As a result, Piazza asserts, everything he owned-clothes, computer equipment, tools, cameras, pictures, a motorcycle, jewelry-is gone.
PROCEEDINGS
Piazza asserts he filed a claim form for the August 25th incident on November 20, 2008. Piazza’s papers are not clear on exactly where he filed the claim form or forms, but one may have been filed with the clerk of the Stanislaus Superior Court. Piazza’s papers are ambiguous as to whether he filed a claim form with the Victim Compensation and Government Claims Board (State Board) in November 2008.
On December 4, 2008, Piazza filed a pleading entitled “Personal Injury and Property Damage, ” which we will regard as his original complaint. The first page of that pleading listed the defendants as StanCATT, the Ceres Police Department, Detective Perry and Investigator Brackett and referenced an attached government tort claim form. The attached form described the incident that occurred on August 25, 2008, and listed Piazza’s injuries and losses.
In January 2009, Piazza filed four proofs of service of the summons. Box 5.c on all of the proof of service forms had been filled in, indicating the service had been accomplished “by mail and acknowledgement of receipt of service.”
On February 4, 2009, Piazza filed a request for entry of default against StanCATT, Detective Perry, the Ceres Police Department and Investigator Brackett. A deputy clerk entered default as requested on February 11, 2009. The request for entry of default form indicated that a copy had been mailed to the four defendants. On March 17, 2009, CHP (stating it had been erroneously sued as StanCATT) and Officer Brackett filed a demurrer to Piazza’s complaint on the grounds that he failed to allege he exhausted his administrative remedies by filing a timely government claim form and failed to allege facts demonstrating that defendants were not immune from liability pursuant to Government Code sections 815.2 and 820.2. The demurrer also requested that the court take judicial notice of a declaration regarding the absence of records of the State Board showing that Piazza had filed a government claim for the alleged incident.
On April 6, 2009, a case management conference was held and Piazza appeared by phone. The minute order entered as a result of the conference stated: “Need to file New Complaint for damages (Resubmit) or copy to County Counsel. Need to file a claim with the County Counsel’s office.”
One of Piazza’s papers describes the case management conference as follows: “I had a case management conference on 4-6-09 (Exhibit E). As you can see at the bottom I was told to resubmit claim and complaint to County Counsels Office by [the court]. I was told I would not get default judgment.”
On April 29, 2009, the trial court entered an order stating that there were no requests for a hearing after it posted its tentative ruling on CHP’s and Officer Brackett’s demurrer. The court sustained the demurrer with leave to amend, stating the complaint failed to state a cause of action, failed to allege timely filing of a government tort claim, and was uncertain and ambiguous. The court directed Piazza to file and serve a first amended complaint on or before May 15, 2009.
On June 8, 2009, CHP and Officer Brackett filed a motion to dismiss because Piazza failed to file a first amended complaint in accordance with the court’s order. Two days later, a first amended complaint was filed. Piazza used the three-page Judicial Council form PLD-PI-001 (rev. Jan. 1, 2007), entitled “COMPLAINT-Personal Injury, Property Damage, Wrongful Death” along with the Judicial Council forms for (1) a general negligence cause of action, (2) an intentional tort cause of action, and (3) an exemplary damages attachment.
On June 16, 2009, another case management conference was held. The minute order indicated that Piazza would represent himself in this civil case, the court would accept his untimely first amended complaint, defendants would accept service of the first amended complaint, and defendants would file a response (which might be a demurrer) to the first amended complaint.
On July 6, 2009, CHP and Officer Brackett filed a demurrer. The demurrer asserted that Piazza failed to (1) comply with the Tort Claims Act’s requirement of alleging a statutory basis for defendants’ liability, (2) allege compliance with the mandatory claim filing provisions of the Tort Claims Act, and (3) allege facts demonstrating that statutory immunities did not apply. The demurrer did not address whether Piazza’s allegations were sufficient to state a claim under section 1983 for a violation of his constitutional rights.
Defendants supported their demurrer by requesting judicial notice of a declaration of James Reinmiller, custodian of records for the State Board. Reinmiller stated he diligently searched the records of the State Board and was unable to locate any claims that had been presented by Piazza.
Piazza filed a motion to strike the demurrer, which asserted that (1) the first amended complaint alleged sufficient facts to state a claim and (2) he had filed a government claim and exhausted his administrative remedies. Piazza’s memorandum of points and authorities in support of his motion to strike asserted that CHP and Officer Brackett “were served with summons on December 4th 2008. February 4th 2009 defendants had a entry of default entered against them which takes defendant ‘out of court’ once the default is entered.…” Like defendants’ demurrer, Piazza’s motion to strike did not address whether his complaint stated a claim under section 1983.
On August 11, 2009, the trial court issued a minute order confirming its tentative ruling. The court denied the motion to strike and sustained the demurrer because “[t]he First Amended Complaint does not contain any allegation that [Piazza] exhausted his remedies under the Tort Claims Act.” The order gave Piazza 60 days to file a second amended complaint.
Contrary to this finding, however, Piazza did fill in the boxes in item 9 on the second page of Judicial Council form PLD-PI-001 that indicate “Plaintiff is required to comply with a claims statute” and “has complied with applicable claims statutes.”
On August 31, 2009, Piazza filed a second amended complaint using the same Judicial Council forms that he used for his first amended complaint. Attached to the second amended complaint as exhibits were 12 pages relating to Piazza’s attempts to present claims to Stanislaus County Counsel and to the State Board.
Also on August 31, 2009, Piazza filed a petition for relief from claim requirements pursuant to Government Code section 946.6. The petition asserts that “a claim was timely on this cause of action against Stanislaus County Auto Theft Task Force / Inv. Brackett / Det. Perry / and Ceres Police Dept, numerous times.” Piazza asserted that, while incarcerated at the jail, he did not receive his pro se privileges and could not ensure that his mail got to its destination from his cell. He also stated that he had a lawsuit pending in federal court against the facility for not handling his mail properly or providing him with pro se privileges.
The federal suit, Piazza v. Stanislaus County Men’s Jail et al. (1:09-cv-01095-DLB), was filed in the United States District Court for the Eastern District of California.
On September 11, 2009, the trial court issued a minute order indicating that (1) it had received Piazza’s petition for relief and his second amended complaint, (2) it anticipated that defendants would oppose the petition and would file a demurrer to the second amended complaint, and (3) the next case management conference would be scheduled for November 16, 2009.
On September 21, 2009, CHP and Officer Brackett filed a demurrer to the second amended complaint and an opposition to Piazza’s late claim petition. Again, the demurrer raised issues concerning whether Piazza’s allegations demonstrated compliance with the Tort Claims Act.
On October 13, 2009, Piazza responded to the demurrer by filing a motion to strike. The motion to strike included the assertion that the second amended complaint alleged a sufficient claim against defendants, but it did not discuss a specific legal theory that provided the basis for the claim. The motion to strike also asserted Piazza had filed a government tort claim and had exhausted his administrative remedies.
On November 16, 2009, a case management conference was held. Piazza appeared by phone and an attorney for CHP and Officer Brackett appeared in person. After the conference, the trial court filed a minute order stating (1) Piazza’s petition for relief from the claim requirement was denied, (2) Piazza’s motion to strike was denied, and (3) the demurrer of CHP and Officer Brackett was sustained without leave to amend for failure to state a cause of action.
On December 9, 2009, the trial court filed an order and judgment of dismissal that dismissed with prejudice Piazza’s lawsuit against the State of California, by and through CHP, which was erroneously sued as StanCATT, and Officer D. R. Brackett.
The judgment did not mention the other defendants-the Ceres Police Department and Detective Perry. They are not parties to this appeal.
Later in December, Piazza filed a timely notice of appeal.
DISCUSSION
I. The Entry of Default
A. Issue
Were CHP and Officer Brackett precluded from appearing in court and filing demurrers to Piazza’s amended complaints because of the entry of default against defendants?
Stated more specifically, did Piazza’s filing of the first amended complaint “open the default” and thus allow CHP and Officer Brackett to file a responsive pleading?
B. Rules of Law Relevant to Issue
Over a century ago, the California Supreme Court stated:
“It is settled by a long line of decisions that where, after the default of a defendant has been entered, a complaint is amended in matter of substance as distinguished from mere matter of form, the amendment opens the default, and unless the amended pleading be served on the defaulting defendant, no judgment can properly be entered on the default. [Citations.]” (Cole v. Roebling Construction Co. (1909) 156 Cal. 443, 446.)
This rule of law allows defaulted defendants to contest matters of substance that are added by the amendment. (Cole v. Roebling Construction Co., supra, 156 Cal. at p. 446.) Among other things, the rule prevents the liability of a defaulted defendant from being expanded by an amendment to the complaint. (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1744 [an amendment to complaint is material if it subjects defendant to increased damages].)
Consequently, a plaintiff who amends his or her complaint in some substantial manner after the defendant’s default has been entered is said to have “opened the default” and the defendant then may plead in timely fashion to the amended complaint. (Brown v. Pacific Tel. & Tel. Co. (1980) 105 Cal.App.3d 482, 486.)
C. Application of Rules to the Facts of this Case
CHP and Officer Brackett contend that the first amended complaint made significant substantive changes to the allegations contained in the original complaint. They assert that changes included (1) using Judicial Council forms to assert theories of negligence and intentional tort, (2) specifying the particular defendants against whom Piazza was asserting those theories, (3) requesting damages for emotional and mental suffering, and (4) requesting exemplary damages.
Piazza appears to argue that he refiled his claim forms and amended his pleadings because he was ordered to do so by the superior court and, therefore, the amendment of his complaint was not a voluntary and intentional relinquishment of the rights he obtained through the entry of default.
In view of these contentions, we will consider the question whether Piazza’s first amended complaint changes his original complaint in a substantial manner.
In item 14 on page 3 of the Judicial Council form used for his first amended complaint, Piazza prayed for compensatory damages and punitive damages. Rather than specify the amount of damages in this prayer, Piazza checked the box indicating the amount of damages was “according to proof.” In Judicial Council form PLD-PI-001(6), Exemplary Damages Attachment, that Piazza included as part of his first amended complaint, Piazza stated the amount of exemplary damages sought was $100,000.
Piazza’s original complaint stated that the amount of the claim was $100,000 and did not mention punitive or exemplary damages.
Therefore, we conclude that the first amended complaint changed the allegations made in the original complaint in a significant manner because it increased the amount of damages requested from $100,000 to compensatory damages according to proof and added exemplary damages in the amount of $100,000. (See Ostling v. Loring, supra, 27 Cal.App.4th at p. 1744 [an amendment is material if it increases damages claimed].) Consequently, under the applicable rules of law, the first amended complaint opened the default and thus permitted defendants to file a timely responsive pleading. The demurrer CHP and Officer Brackett filed on July 6, 2009, qualifies as a timely responsive pleading.
Piazza’s argument that his compliance with the superior court’s order to file an amended complaint should not be used to deny him the rights he obtained under the default is unavailing in the circumstance of this case. Piazza could have complied with the order without including significant changes to the substance of the claims. Therefore, the court’s order was not the reason Piazza lost the benefit of the default. Instead, he lost that benefit because he expanded the relief requested to include $100,000 in exemplary damages and did not limit the compensatory damages to the amount listed in his original complaint.
In summary, despite the entry of default, the superior court did not err in either (1) allowing CHP and Officer Brackett to file a demurrer to the first amended complaint or (2) considering that demurrer.
II. Failure to State a Cause of Action
A. Standard of Review
The issue presented in this appeal is whether Piazza’s pleading has stated facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)
When considering this issue in the procedural context of a general demurrer sustained without leave to amend, appellate courts assume “the truth of (1) all facts properly pleaded by the plaintiff, (2) all facts contained in exhibits to the complaint, (3) all facts that are properly the subject of judicial notice, and (4) all facts that reasonably may be inferred from the foregoing facts. [Citations.]” (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305.) The general rule that facts alleged in the pleading are deemed to be true applies “however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at p. 604.)
When applying the law to the plaintiff’s factual allegations, “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.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) The “any possible legal theory” threshold was explained by our Supreme Court as follows:
“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have … long since departed from holding a plaintiff strictly to the “form of action” he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)
The any-legal-theory standard applies to appellate courts as well as trial courts. For example, in Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597 (Genesis Environmental), this court applied the principle that it was not limited to the plaintiff’s theory of recovery and requested supplemental briefing on legal theories not addressed by the parties. (Id. at pp. 603-604.) After considering the supplemental briefs, this court concluded the plaintiff’s allegations were sufficient to state a cause of action under section 1983 based on a violation of the constitutional right to equal protection. (Genesis Environmental, at p. 608.) As a result, this court reversed the judgment of dismissal and directed the order sustaining the general demurrer be vacated. (Ibid.)
B. Initial Application of Standard of Review
The first step in our analysis was to review Piazza’s second amended complaint. That review showed that Piazza was asserting two primary wrongs: (1) the use of excessive force in taking him into custody and (2) the loss or destruction of his personal property.
Our second step was to identify legal theories whose elements might have been satisfied by the allegations concerning excessive force. Typically, the legal theories associated with the claim that peace officers have used excessive force are (1) state law claims for battery or intentional infliction of emotional distress and (2) a federal claim under section 1983 for violation of the plaintiff’s Fourth Amendment right to be free from unreasonable seizures. (E.g., Yount v. City of Sacramento (2008) 43 Cal.4th 885, 891 [complaint concerning excessive force alleged assault, battery, intentional infliction of emotional distress, a violation of California’s Unruh Civil Rights Act, and a federal civil rights claim under § 1983].)
Our third step was to review the arguments presented by the parties regarding these legal theories. The appellate briefing, as well as the papers filed in the lower court, did not address whether Piazza adequately stated claims under section 1983 for violations of his constitutional rights. Based on our responsibility to consider any possible legal theory, the absence of argument from the parties on a possible legal theory, and the parties’ right to an opportunity to present their views on a matter that might form the basis for an appellate decision, we sent the parties a request for supplemental letter briefing that contained specific questions about whether Piazza sufficiently alleged section 1983 claims. (See Gov. Code, § 68081 [supplemental briefing of issues not addressed by any party to the proceeding].) Our request was similar to the request for supplemental letter briefs discussed in Genesis Environmental, supra, 113 Cal.App.4th at pages 603 through 604.
C. Supplemental Letter Briefs
Piazza’s letter brief asserted that he had sufficiently alleged claims under section 1983 for the excessive use of force and for the deprivation of personal property.
The letter brief filed by the Attorney General’s Office conceded that Piazza’s allegations regarding the use of excessive force were sufficient to plead that defendants caused Piazza to be deprived of a right secured by the United States Constitution, specifically, his Fourth Amendment right to be free from an unreasonable seizure. (See Johnson v. Knowles (9th Cir. 1997) 113 F.3d 1114, 1117 [second element of § 1983 claim is that defendants caused plaintiff to be deprived of constitutionally protected right].) The letter asserted Piazza had failed to state a section 1983 claim regarding the use of excessive force because Piazza’s allegations were insufficient to satisfy the element of a section 1983 claim that requires the defendants to have acted under color of state law. (See Johnson v. Knowles, supra, at p. 1117 [one of the essential elements of a § 1983 claim is that defendants acted under color of state law].) At oral argument, however, the Attorney General conceded that it was reasonable to infer from Piazza’s other factual allegations that the individual defendants were acting or purporting to act in the performance of their official duties when they allegedly used excessive force against him.
Our request also asked, “Are plaintiff’s allegations regarding the loss and destruction of his personal property sufficient to state a claim under section 1983?” The Attorney General’s Office answered “Yes, ” but took the position that the particular constitutional violation involved was not a deprivation of property without due process of law.
D. Federal Claims
As described earlier, the Attorney General has agreed, in his supplemental letter brief and concessions at oral argument, that Piazza has stated claims under section 1983 against the individual defendant. We will conduct our own analysis of the excessive force allegations to confirm these concessions comport with applicable law.
1. Background
Section 1983, which is part of the federal civil rights legislation, provides remedies for certain deprivations of federal constitutional rights. (Genesis Environmental, supra, 113 Cal.App.4th at p. 604.)
Section 1983 provides, in pertinent part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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.…”
Claims brought under section 1983 are not limited to federal courts. State courts have concurrent jurisdiction to hear section 1983 claims. (Genesis Environmental, supra, 113 Cal.App.4th at p. 604; see Howlett v. Rose (1990) 496 U.S. 356, 367 [federal law is enforceable in state courts].)
Section 1983 claims are tried often enough in state court that the Judicial Council of California Civil Jury Instructions (CACI) includes jury instructions and verdict forms for various types of claims. CACI No. 3000 is a general instruction that lists the essential factual elements for a violation of federal civil rights. CACI No. 3001 sets forth the essential factual elements for a claim concerning the excessive use of force during an arrest.
2. Pleading requirements
When reviewing a general demurrer, California courts look to federal law to define the elements of a section 1983 cause of action that must be pled in order to state a claim. (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 891.) Two essential elements must be pled to state a section 1983 claim: (1) the defendants acted under color of state law, and (2) the defendants caused the plaintiff to be deprived of a right secured by the Constitution and laws of the United States. (Johnson v. Knowles, supra, 113 F.3d at p. 1117.) Pleadings that merely recite these two elements are insufficient because particularized factual allegations are necessary. (Catsouras v. Department of California Highway Patrol, supra, at p. 891.)
Generally, a public employee acts under color of state law while acting in his or her official capacity. (Johnson v. Knowles, supra, 113 F.3d at p. 1117.) CACI Nos. 3000 and 3001 address this element by stating that a plaintiff must prove that the defendant “was acting or purporting to act in the performance of [his/her] official duties.” Therefore, it is not necessary for the pleading to recite that the defendants acted “under color of state law” to state a claim under section 1983. (See Genesis Environmental, supra, 113 Cal.App.4th 597 [complaint stated § 1983 claim without including “under color of state law” phrase].)
3. Excessive force
Our analysis of whether Piazza’s allegations regarding the intentional use of excessive force state a claim under section 1983 begins by identifying the specific constitutional right allegedly infringed. (Graham v. Connor (1989) 490 U.S. 386, 394; Weaver v. State of California (1998) 63 Cal.App.4th 188, 203.) In most instances not involving a prisoner, the constitutional right implicated by claims concerning the use of excessive force will be the Fourth Amendment’s prohibition against unreasonable seizures of the person. (Ibid.)
The Fourth Amendment to the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment, provides in relevant part: “The right of the people to be secure in their persons … against unreasonable searches and seizures.…”
In this case, we conclude that Piazza’s particular allegations regarding the use of force against him while he was trying to comply with the officer’s instruction together with the general allegation that the officers “intentionally used excessive force” in taking him into custody are sufficient to allege a violation of his Fourth Amendment right to be free from an unreasonable seizure.
The next step in our analysis concerns whether Piazza made allegations sufficient to satisfy the element that defendants acted under color of state law in depriving him of his constitutional right to be free from the use of excessive force against his person. Our review of Piazza’s second amended complaint has not revealed any express allegation that the officers were acting or purporting to act (a) under color of state law, (b) in the performance of their official duties, or (c) in the course of their employment. The absence of express allegations raises the question whether it is reasonable to infer such facts from Piazza’s other allegations. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)
On page 7 of his second amended complaint, Piazza alleged that (a) StanCATT officers intentionally used excessive force in pulling him from under a truck on which he was working and (b) “Officer Brackett tazered me numerous times until I lost consciousness.” (Some capitalization omitted.) On page 6 of his pleading, Piazza alleges that three days earlier he had been pulled over by the Ceres Police Department for the same investigation and had been let go without incident after being given a ticket. Thus, the question is whether Piazza’s reference to StanCATT officers and an investigation, as well as the use of the word “Officer” to describe Brackett, provides a reasonable basis for inferring that Officer Brackett “was acting or purporting to act in the performance of [his/her] official duties.” (CACI Nos. 3000 & 3001.) Theoretically, there are two possibilities about the capacity in which the individual defendants were acting when they seized Piazza. First, they could have been acting in their capacity as peace officers assigned to an auto theft taskforce. Second, they could have been acting in a private capacity not related to their employment as peace officers. We conclude that the first inference is the stronger of the two. Among other things, Piazza’s use of the term “same investigation” implies that the individual defendants were involved in an investigation when they seized him, and investigating is among the duties of peace officers. Thus, we conclude that Piazza’s allegations support the inference that the individual defendants, including Officer Brackett, were acting or purporting to act in the performance of their official duties-that is, they were on duty and acting as part of the auto theft taskforce at the time of the incident.
It follows that Piazza’s second amended complaint adequately alleged a section 1983 claim regarding Officer Brackett’s use of excessive force under color of state law. As a result, the judgment of dismissal must be reversed.
In reaching this conclusion, we note that the claim requirement of the Tort Claims Act does not bar the pursuit of a federal claim under section 1983. It is well established that section 1983 claims for damages against a public official are not subject to the Tort Claims Act’s procedural requirement that a plaintiff timely file a claim with a public entity as a prerequisite to later filing an action for damages. (Williams v. Horvath (1976) 16 Cal.3d 834, 838, 841-842 [claim provisions of Tort Claims Act set forth in Gov. Code inoperative in § 1983 action]; California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 38.)
Because of our conclusion that the second amended complaint alleges facts sufficient to state at least one cause of action under section 1983 and the reversal of the judgment that will result, we need not address whether other section 1983 claims have been stated. In particular, we need not analyze whether Piazza has alleged, or might be able to allege, facts sufficient to state a claim under section 1983 regarding the loss and destruction of his personal property.
At oral argument, the Attorney General urged us to reach the conclusion that a section 1983 claim could not be stated against the State of California or its agency, CHP, because it is not a “person” for purposes of section 1983. (See Catsouras v. Department of California Highway Patrol, supra, 181 Cal.App.4th at p. 892 [CHP is absolutely immune from § 1983 liability].) He further urged this court to uphold the judgment of dismissal as to CHP. Because the judgment of dismissal in favor of CHP will be reversed on other grounds, our disposition in this appeal will not direct the trial court to enter a new order that proceeds theory by theory. (See Genesis Environmental, supra, 113 Cal.App.4th at p. 603 [inquiry into general demurrer ends and reversal required once we determine complaint has stated cause of action under any legal theory].)
E. State Law Claims
Under California’s Tort Claims Act an individual claiming personal injury or property damage must file a claim with the relevant governmental entity within six months after the injury or damages accrued. (Gov. Code, § 911.2, subd. (a).) If a timely claim is not filed, then the claimant is not allowed to maintain a lawsuit against the public entity or public employees. (See § 945.4; Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119 [allegation of compliance with the claims statute is an essential element of a cause of action against a public entity].)
In this appeal, the parties dispute whether Piazza satisfied this prerequisite to maintaining a state law claim against a public entity or public employees. Because this controversy exists in the procedural context of a demurrer, we will supplement our earlier discussion of the applicable standard of review (see part II.A, ante) by setting forth some additional principles applicable to demurrers: “Because the demurrer tests the pleading alone, and not the evidence or other extrinsic matters, it lies only where the defects appear on the face of the pleading.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 947, p. 360.) A corollary of this rule that the “defendant cannot strengthen the demurrer by bringing in evidentiary material that discloses a defect in the complaint.” (Ibid.)
With these principles and the applicable standard of review in mind, we turn to a review of Piazza’s allegations regarding his compliance with the claims statute. In his second amended complaint-specifically, item 9 on the second page of Judicial Council form PLD-PI-001-Piazza completed boxes that indicate “Plaintiff is required to comply with a claims statute” and “has complied with applicable claims statutes.” Piazza also included a reference to exhibit A to the complaint.
Ordinarily, one might expect that allegations made by marking a box on a Judicial Council form would be deemed “facts properly pleaded by the plaintiff” (Neilson v. City of California City, supra, 133 Cal.App.4th at p. 1305) and, thus, accepted as true under the general rule that facts alleged in a pleading are deemed to be true (Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at p. 604). If that approach were taken here, it would lead to the conclusion that Piazza’s second amended complaint alleged compliance with the claims requirement in the Tort Claims Act.
Our analysis, however, does not always stop at the four corners of a plaintiff’s pleadings. In certain situations, courts also consider matters subject to judicial notice. Here, the record before the trial court included a request for judicial notice of the declaration of Reinmiller, the custodian of records for the State Board, which stated he diligently searched the records of the State Board and was unable to locate any claims presented by Piazza. Thus, we will consider the argument that this court should (1) take judicial notice of the absence of a claim by Piazza in the records of the State Board (see Evid. Code, § 452, subd. (c) [judicial notice of official acts of executive departments of any state]), (2) rely on the judicially noticed information to reject Piazza’s factual allegation of compliance with the claims requirement, and (3) conclude he cannot state a cause of action under the Tort Claims Act because he failed to file a timely claim. (See Fowler v. Howell (1996) 42 Cal.App.4th 1746 [court took judicial notice of records of State Board of Control and determined plaintiff failed to file timely claim; trial court’s grant of motion for judgment on the pleadings affirmed].)
At oral argument, Piazza reiterated the argument made in his motion to strike the demurrer that, while incarcerated in the county jail, he did all he could to prove his intentions, represent himself and file claims and, therefore, he should have the benefit of the rule that a prisoner’s document is deemed filed when it is delivered to prison authorities for forwarding. Piazza’s argument appears to be based on two separate points. First, the prison-delivery rule (sometimes referred to as the prison mailbox rule) applies to an administrative claim submitted by a self-represented inmate to jail authorities. Second, the question whether he delivered an administrative claim to jail authorities is a question of fact that should not be resolved against him at the demurrer stage of this lawsuit. We agree with both points.
Our conclusion that the prison-delivery rule applies to an administrative claim under the Tort Claims Act is derived from the California Supreme Court’s recent decision in Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106 (Silverbrand). In that case, the court extended the prison-delivery rule beyond criminal appeals and applied it to a self-represented prisoner’s filing of a notice of appeal in a civil action. (Id. at p. 110.) The court stated that the rationale underlying the prison-delivery rule was that self-represented inmates, unlike other litigants, are not in a position to monitor the processing of their documents and assure that deadlines are met. (Id. at p. 118.) Thus, the prison-delivery rule provides equality of access to the courts. (Id. at p. 121.)
In Silverbrand, the California Supreme Court used language that suggested the prisoner-delivery rule is not limited to notices of appeal but applies “to a broad range of filings by self-represented prisoners, including complaints, petitions for postconviction relief, motions, and other filings.” (Silverbrand, 46 Cal.4th at pp. 123-124, fns. omitted.) Furthermore, the first case cited in the footnote to “other filings” was Tapia-Ortiz v. Doe (2d Cir. 1999) 171 F.3d 150, a case in which the Second Circuit Court of Appeals applied the prison-delivery rule to an administrative filing under the Federal Tort Claims Act. (Silverbrand, supra, at p. 124, fn. 16.)
Based on the rationale underlying the prison-delivery rule, the broad language used by the California Supreme Court in Silverbrand, and the court’s citation and approval of Tapia-Ortiz v. Doe, we conclude that the California Supreme Court intended lower courts to apply the prison-delivery rule to administrative claims filed under the Tort Claims Act.
The next question is whether we can conclude, at this stage of the lawsuit, that Piazza’s administrative claim was not presented to jail authorities within the applicable deadline. Here, the application of the prison-delivery rule to Piazza’s claim forms involves questions of fact. Those questions cannot be conclusively resolved by a review of the pleadings and matters subject to judicial notice. Even were we to conclude that the State Board did not receive a claim form from Piazza within the six-month deadline, we could not conclude that Piazza did not meet that deadline by delivering a claim form to jail authorities for forwarding. Therefore, we conclude that the demurrer to Piazza’s state law claims should not have been sustained.
III. Trial Court’s Denial of Application to File a Late Claim
A. Background
When a claimant misses the six-month deadline for filing the claim required by the Tort Claims Act, the claimant may apply to the public entity for leave to file a late claim, provided that the application is made within one year of the accrual of the claim. (Gov. Code, § 911.4.) If the public entity rejects the application, the claimant may petition the court for relief from the claim filing requirements of the Tort Claims Act. (Id., § 946.6, subd. (a).)
The court must grant the petition for relief if (1) the claimant demonstrates by a preponderance of the evidence that the application for leave to file a late claim was made within a reasonable time not exceeding one year after the accrual of the cause of action and (2) one of the four criteria listed in Government Code section 946.6, subdivision (c) was met. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1777.)
The criterion of Government Code section 946.6, subdivision (c)(1) relevant to this appeal concerns situations where “[t]he failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4.” Relief under this provision is granted upon the same showing as is required for relief under Code of Civil Procedure section 473. (Munoz v. State of California, supra, 33 Cal.App.4th at p. 1778.)
The other three criteria for relief concern claimants who are incapacitated, minors, or dead. (Gov. Code, § 946.6, subd. (c)(2)-(4).)
“The determination of the trial court in granting or denying a petition for relief under Government Code section 946.6 will not be disturbed on appeal except for an abuse of discretion. Abuse of discretion is shown where uncontradicted evidence or affidavits of the plaintiff establish adequate cause for relief. [Citation.]” (Munoz v. State of California, supra, 33 Cal.App.4th at p. 1777.)
B. Bases for Relief
Piazza’s opening appellate brief mentions the superior court denied his petition for relief from the claims filing requirement after it ordered him to refile and resubmit the claims and complaint. He does not appear to present a theory for why the order denying him relief from the claims filing requirement was error. Piazza could be contending that he is entitled to relief because jail authorities did not forward his mail in a timely manner. Alternatively, he could be contending that his petition for relief satisfied the requirement of subdivision (c)(1) of Government Code section 946.6 and, therefore, the trial court was required by law to grant him relief.
To the extent that Piazza sought relief on the ground his original claim was delivered in a timely manner to jail authorities, we conclude that this ground is not a basis for relief recognized by subdivision (c)(1) of Government Code section 946.6. Stated otherwise, we conclude that Piazza’s reliance on jail authorities to deliver his mail does not constitute “mistake, inadvertence, surprise, or excusable neglect” for purposes of the statute. Instead, the factual disputes relevant to the application of the prison-delivery rule will have to be decided after the pleading stage of the lawsuit and, if Piazza prevails on his assertions, there will be no need to grant him the relief of filing a late claim because his original claim will be deemed constructively filed when he submitted it to jail authorities.
Piazza’s petition for relief included as an exhibit a preprinted claim form used by the State Board, which is designated as form VCGCB-GC-002 (rev. 8/04). Piazza filled out the form and handwrote “1st claim” and “11-20-08” on the first page. Also, the signature block (box 22 on the second page) is signed by Piazza and is dated “11-20-08.” This claim form is different from the claim form that was part of his original complaint and was dated November 13, 2008.
Alternatively, if Piazza is asserting that his “mistake, inadvertence, surprise, or excusable neglect” (as opposed to jail authorities mishandling his legal mail) provides a ground for relief, we conclude that the trial court did not abuse its discretion in denying his petition for relief to file a late claim because Piazza failed to carry his burden of establishing (1) what his mistake, inadvertence, surprise or neglect was and (2) whether it was a type that warranted relief under subdivision (c)(1) of Government Code section 946.6.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order sustaining the demurrer and to enter a new order overruling the demurrer.
Because Piazza has been granted a waiver of certain costs and fees related to this appeal, no costs are awarded on appeal.
WE CONCUR: CORNELL, Acting P.J.HILL, J.