Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 56-2008-00322878-CU-PO-VTA Ventura County, Henry J. Walsh, Judge
Bamieh & Erickson, Ron Bamieh, David R. Ring and Laura Cota, for Plaintiff and Appellant.
Edmund G. Brown Jr., Attorney General, James M. Schiavenza, Senior Assistant Attorney General, Marsha S. Miller, Supervising Deputy Attorney General, David Adida, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Plaintiff Ronnie Reyes appeals a judgment after the trial court sustained a demurrer without leave to amend his complaint against respondents, the State of California (State), the California Highway Patrol (CHP), and California Highway Patrol Officer, David Kajiwara (Kajiwara). Appellant contends that the court erred by concluding that nine causes of action were untimely, that the complaint did not state an ultrahazardous activity cause of action, and by denying him an opportunity to file an amended complaint. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 17, 2006, appellant was a passenger in a car driven by his cousin, Mark Valenzuela Plunkett, in Oxnard. Plunkett drove into a Circle K gas station on Vineyard Avenue and stopped near a fuel pump. Kajiwara stopped the black and white CHP motorcycle he was operating behind Plunkett's car.
We base the facts on the allegations of the complaint which we accept as true in reviewing its sufficiency. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 672.)
Plunkett and appellant left the car. Kajiwara got off the motorcycle, approached and spoke with Plunkett and appellant. Kajiwara never activated his lights or siren. Kajiwara started to pat down and search appellant. Appellant turned and ran away.
Kajiwara drew his gun and chased appellant across the parking lot. He fired "at least one shot" at appellant as he fled, but did not hit him. Later that day, authorities located appellant. They arrested him and charged him with violations of Penal Code sections 417, subdivision (c) (exhibiting a firearm in a rude, angry, or threatening manner in the presence of an officer); 12021, subdivision (c)(1) (unlawful firearm activity); 666 (petty theft with a prior conviction); and 148, subdivision (a)(1) (resisting, obstructing, or delaying a peace officer).
All statutory references are to this code unless otherwise stated.
At the time of and after his apprehension, appellant "repeatedly and steadfastly denied that he was in possession of a firearm at the time of the traffic stop [or] that he fired one." Appellant "was not found to be in possession" of any weapon. Despite a diligent search of the area surrounding the Circle K gas station, law enforcement officials never recovered a firearm.
Appellant pled not guilty on October 19, 2006. During the May 22, 2007, preliminary hearing, Kajiwara testified that he approached appellant to cite him for a seatbelt violation. He also testified that appellant had a firearm and that while fleeing, appellant stopped and fired at him. The court held appellant to answer in superior court on all charges, except the petty theft with a prior conviction. On June 5, 2007, the court dismissed the case and discharged appellant. The June 5, 2007, minute order indicates "[n]o information having been filed, the case is dismissed and defendant is discharged." Appellant was in custody from October 17, 2006, through June 5, 2007.
On November 21, 2007, appellant filed his claim with the Victim Compensation and Government Claims Board (the Board), via certified mail. He did not file a late claim application with the Board.
Appellant filed a complaint in superior court, alleging 12 causes of action against respondents: excessive force (first); a civil rights action under 42 United States Code section 1983 (second); failure to train (third); Civil Code section 52.1 action for protection of rights (fourth); false arrest (fifth); malicious prosecution (sixth); assault (seventh); intentional infliction of emotional distress (eighth); ultrahazardous activity (ninth); negligence (tenth); negligence per se (eleventh); and negligent infliction of emotional distress (twelfth).
Respondents filed a demurrer to the complaint. Appellant filed opposition to the demurrer. The court concluded that because appellant failed to file the tort claims with the Board as required by the Government Claims Act (the Act) or file a late claim application with the Board, the first, third, fourth, fifth, seventh, eighth, tenth, eleventh and twelfth causes of action were untimely. As to the ninth cause of action, the court concluded that there was "no authority cited for an officer discharging a firearm morphing into a strict liability case." It also concluded that the second and sixth causes of action were barred as a matter of law. The court sustained respondents' demurrer without leave to amend.
DISCUSSION
Appellant contends that the trial court erred in sustaining the demurrer to his complaint without leave to amend to all but the second and sixth causes of action. We disagree.
"'In reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we must assume the truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable.' [Citation.]" (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 171.) We may also consider material documents referred to in the allegations of the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Two separate standards are employed to review the trial court's ruling. (G.L. Mezzetta, Inc. v. City of American Canyon (2000) 78 Cal.App.4th 1087, 1091.) We first independently review the trial court's rulings on questions of law (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801), such as issues of statutory construction and the application of that construction to a set of undisputed facts (Twedt v. Franklin (2003) 109 Cal.App.4th 413, 417). After conducting a de novo review to determine whether the complaint states sufficient facts to state a cause of action, we apply an abuse of discretion standard to determine whether there is a reasonable possibility that the complaint could be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Timeliness Issues
The trial court sustained the demurrer to nine causes of action because they were untimely (excessive force; failure to train, a Civil Code section 52.1 violation of appellant's rights, false arrest, assault, intentional infliction of emotional distress, negligence, negligence per se, and negligent infliction of emotional distress). Those causes of action were government claims against the State and CHP, as public entities, and their employees. Appellant sought money damages for tortious conduct and state law violations on those claims. The court concluded that those claims were untimely because appellant did not allege facts demonstrating or excusing compliance with the Act. (Gov. Code, § 810 et seq.) The "failure 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 v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.) A complaint against a public employee based on acts or omissions within his or her scope of employment is subject to general demurrer absent the allegation of compliance with the Act. (Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 612-613, 618.)
A complaint for money damages asserting personal injuries, such as those alleged by appellant, must be filed with the Board within six months of the accrual of the claim. (Gov. Code, § 911.2, subd. (a).) A claim accrues for purposes of the Act's filing requirements on the same date that a similar cause of action against a nonpublic entity would be deemed to accrue for purposes of applying the relevant statute of limitations. (Id. § 901.) A cause of action accrues when, under the substantive law, the wrongful act is done, or the wrongful result occurs, and the consequent liability arises. (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931-932.)
Based on the allegations of appellant's complaint, the acts underlying his government claims occurred on October 17, 2006, with one exception: the false arrest claim accrued on October 19, 2006. In alleging excessive force, for example, the complaint states that on October 17, 2006, Kajiwara "fir[ed] at... unarmed [appellant] as he was fleeing the scene of what was at best,... a routine traffic stop for an alleged seatbelt violation [which] did not warrant the use of potentially lethal force against [appellant] when other less lethal alternatives could have been employed."
Appellant's failure to train cause of action alleges that the State's and CHP's "training program was not adequate to train its officers, including... Kajiwara, to properly handle usual and recurring situations, including the appropriate response to a fleeing, unarmed potential infractant like [appellant]." Thus, the underlying conduct occurred on or before October 17, 2006, when, as a result of the alleged failure to train, Kajiwara conducted himself as appellant alleges.
Similarly, appellant's cause of action for a violation of Civil Code section 52.1 is based on Kajiwara's use of excessive force against appellant on October 17, 2006. Appellant's cause of action for assault is based on Kajiwara's "firing his weapon at... and intending to cause harmful contact to [appellant] by shooting [it at] him" on October 17, 2006. The intentional infliction of emotional distress cause of action is also substantially based on Kajiwara's firing his weapon at appellant on October 17, 2006, "and then claiming that [appellant] was not only in possession of a firearm, but that [he] also fired it at him, causing [appellant] to be prosecuted and spend more than seven and one half months of unlawful detention and false imprisonment in... [j]ail, [and acting] with reckless disregard to the probability that [appellant] would suffer emotional distress, knowing that [appellant] was present when the conduct occurred."
The italicized phrase in this allegation, and in others described below, relates to appellant's theory that the tortious conduct continued through at least May 22, 2007. (For example, appellant claims that Kajiwara wrongfully concealed his intention to accuse him of firing a weapon at him until May 22, 2007, the preliminary hearing date.) We reject this theory for reasons explained later in this discussion.
The negligence and negligent infliction of emotional distress causes of action are substantially premised on the same October 17 conduct (Kajiwara's firing a deadly weapon at unarmed appellant, claiming that appellant was in possession of a firearm, and that appellant fired it at him). The negligence per se cause of action is premised on the same October 17 conduct, which allegedly violated the State's and CHP's "Use of Force Policy."
Appellant's false arrest cause of action alleges that on October 17, 2006, he was "wrongfully arrested without a warrant, taken into custody, and booked into Ventura County Jail, where he remained until all charges against him were dismissed on June 5, 2007." A false arrest is "but one way of committing a false imprisonment" tort. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 753, fn. 3.) False imprisonment ends when the arrestee is arraigned, at which point his confinement is pursuant to lawful process and cannot constitute false imprisonment. (Id. at 751.) In this case, we have taken judicial notice of the superior court file in People v. Ronnie Reyes, Ventura County Superior Court Case No. 2006039735AF, which reflects that appellant waived arraignment and entered a plea of not guilty to all charges on October 19, 2006. (Evid. Code, §§ 459, subd. (a) & 452, subd. (d).) The false arrest thus ceased, and the false arrest cause of action accrued, on October 19, 2006.
A cause of action generally accrues when the wrongful act is done and the consequent liability arises. (Bernson v. Browning-Ferris Industries, supra, 7 Cal.4th at pp. 931-932.) For example, an excessive force cause of action accrues at the time the defendant uses excessive force. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 741.) An assault cause of action accrues on the commission of the act. (Sonbergh v. MacQuarrie (1952) 112 Cal.App.2d 771, 773.) In this case, the acts underlying the government claims accrued on October 17, 2006, with the exception of the false imprisonment which accrued on October 19, 2006.
The rule that a cause of action accrues when the wrongful act is done has several exceptions, including the delayed discovery rule, which provides that the action accrues when it is discovered by the plaintiff. However, the delayed discovery rule places the burden on the plaintiff to establish "'... facts showing that he was not negligent in failing to make discovery sooner and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry....' [Citation.]" (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 833.)
Appellant relies on the delayed discovery rule to argue that none of the causes of action, including his government claims, accrued until June 5, 2007. He concedes that he knew that "he was innocent of what he had been charged with," but asserts that it was not until Kajiwara testified at the May 22, 2007, preliminary hearing and the June 5, 2007, dismissal of the charges against him that he "discovered that [respondents'] conduct at the time of the [October 17, 2006,] shooting and [at] all times since, was wrong."
On October 19, 2006, appellant pled not guilty to several charges, including drawing or exhibiting a firearm in a rude, angry, or threatening manner, in the presence of an officer, in violation of section 417, subdivision (c). He thus had reason to discover his causes of action no later than that date, and to at least suspect that "someone had done something wrong" to him. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110, 1114, fn. 13.) Appellant has failed to satisfy his burden of establishing facts showing that he was not negligent in failing to make discovery sooner and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry. (Christ v. Lipsitz (1979) 99 Cal.App.3d 894.)
We also reject appellant's contention that the continuing tort doctrine applies to several of his causes of action because respondent's wrongful acts were "ongoing in nature." (Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1449.) Appellant relies upon Pugliese, an inapposite case, in making this contention. Under the continuing tort doctrine, the statute of limitations does not begin to run until the date of the last injury or when the wrongful acts cease. (Ibid.) Pugliese concluded that domestic violence is a continuing tort for statute of limitations purposes. However, the court based its conclusion upon statutory provisions, including Civil Code section 1708.6, which establishes liability for the tort of domestic violence, and Code of Civil Procedure section 340.15, which provides that "domestic violence lawsuits must be commenced within three years 'from the date of the last act of domestic violence....'" (Pugliese, supra, at pp. 1451, 1454-1456.) The court also stressed the unique considerations in domestic violence cases. (Id. at 1452.)
Appellant further argues that his government claims were timely because respondents intentionally concealed their wrongful acts. We disagree. In so arguing, appellant states that he could not have known before the May 22, 2007, preliminary hearing that Kajiwara would "falsely claim" that appellant was in possession of a firearm on October 17, 2006, and that he fired it at him. This argument might be plausible if appellant had been charged with unlawful firearm possession. He was instead charged with drawing or exhibiting a firearm, whether loaded or unloaded, in a rude, angry or threatening manner, in the presence of an officer, in violation of section 417, subdivision (c). He knew of the charges, at the latest on October 19, 2006, when he pled not guilty.
Appellant also contends that he should be allowed to amend his complaint to allege equitable estoppel on the part of the respondents. A public entity may be estopped from asserting noncompliance with the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act. (John R. v. Oakland Unif. School Dist. (1989) 48 Cal.3d 438, 445 (John R.); Christopher P. v. Mojave Unif. School Dist. (1993) 19 Cal.App.4th 165, 170 (Christopher P.).) Estoppel arises in this context "when the plaintiff establishes by a preponderance of the evidence that: (1) the public entity was apprised of the facts, (2) it intended its conduct to be acted upon, (3) the plaintiff was ignorant of the true state of facts, and (4) relied upon the conduct to his or her detriment. [Citations.]" (Christopher P., supra, 19 Cal.App.4th at p. 170.)
Appellant argues that John R. and Christopher P. support his estoppel claim. John R. and Christopher P. each involved allegations that indicated that the defendant's conduct had interfered with the timely filing of the plaintiff's complaint. In John R., a teacher allegedly molested a student. When he voiced an intent to report the acts, the teacher threatened to retaliate against him if he did so. (John. R., supra, 48 Cal.3d at pp. 442, 444.) Christopher P. involved similar allegations. (Christopher P., supra, 19 Cal.App.4th at p. 168.) In contrast, the allegations of appellant's complaint do not indicate that respondents' conduct interfered with the timely filing of appellant's complaint. Nor do appellant's representations or arguments to this court suggest that there is a reasonable possibility that he could amend the complaint to establish the elements of estoppel.
In summary, there is no merit to appellant's challenge to the trial court's ruling regarding the timeliness of his government claims. The trial court correctly sustained the demurrer to the nine government claim causes of action.
Strict Liability for Ultrahazardous Activities
Appellant's ninth cause of action sought damages for strict liability for ultrahazardous activities, and was based on allegations that Kajiwara was engaged in an ultrahazardous activity at the time he fired his gun at appellant, who was not armed. The discharge of firearms is not considered an ultrahazardous activity in this state. (Orser v. George (1967) 252 Cal.App.2d 660, 672.) Appellant argues that Orser and comparable cases cited by respondent should not be controlling here, where Kajiwara shot at him as he ran "through a busy gas station parking lot in the daytime, when patrons would be [there]." We disagree.
In determining whether an activity is abnormally dangerous or ultrahazardous, a court considers the "(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. [Citation.]" (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 906.) "'The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability from the harm that results from it, even though it is carried on with all reasonable care. In other words, are its dangers and inappropriateness for the locality so great that, despite any usefulness it may have for the community, it should be required as a matter of law to pay for any harm it causes without the need of a finding of negligence' [Citation.]" (Ibid.)
Appellant seeks to distance his case from Orser and other cases involving discharged firearms, but provides no authority for the proposition that a peace officer's firing his gun at a fleeing suspect in a gas station constitutes an ultrahazardous activity. Applying the relevant factors, the court reasonably concluded that the risk created was not so unusual, given the surrounding circumstances to justify the imposition of strict liability. (Cf. Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413, 419 [welding with a blowtorch on a waste oil tanker truck was an ultrahazardous activity].)
Appellant also challenges the court's refusal to permit him to amend his complaint. When a demurrer "is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "'To meet [the] burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.] However, such a showing need not be made in the trial court so long as it is made to the reviewing court.' [Citation.] '[W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court.' [Citation.]" (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.)
The record shows that appellant filed an untimely claim against the State. "[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. [Citation.]" (State v. Superior Court (Bodde), supra, 32 Cal.4th at p. 1237.) Appellant failed to establish that his government claim causes of actions were timely. As we have explained, the remaining causes of action were barred as a matter of law. We conclude that there is no reasonable possibility that the complaint can be cured by amendment.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
We concur: YEGAN, Acting P.J., PERREN, J.