Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC338170. Elihu M. Berle, Judge. Affirmed in part; reversed in part.
Law Offices of Kwaku Duren and B. Kwaku Duren for Plaintiff and Appellant.
Raymond G. Fortner, Jr., County Counsel, Roger H. Granbo, Assistant County Counsel, and Adrian G. Gragas, Deputy County Counsel, for Defendant and Respondent County of Los Angeles.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Lloyd B. Wilkins sued the Los Angeles County Sheriff’s Department (County) and individual deputy sheriffs for violation of his civil rights under federal law and for infliction of emotional distress. Sheriff’s deputies had arrested Wilkins, a former school teacher, for criminal threats after a verbal altercation at the school. The County demurred to Wilkins’s first amended complaint as time barred under the Government Code. The trial court sustained the demurrer without leave to amend. The court concluded that Wilkins had failed to sue the County within six months of its denial of Wilkins’s tort claim, even though obviously he knew that it was County employees who arrested him. So, the trial court held, naming the County as a Doe defendant did not relate back to the date Wilkins filed his original complaint.
However, claims under 42 U.S.C. section 1983 are exempt from the requirements of the California Tort Claims Act. Accordingly, Wilkins may proceed on those claims. The trial court did properly sustain the demurrer without leave to amend as to Wilkins’s negligent infliction of emotional distress claim, because Wilkins did not name the County in his original complaint, and he filed his amended complaint more than six months after the County rejected his claim.
BACKGROUND AND PROCEDURAL HISTORY
On August 12, 2005, Wilkins sued the Los Angeles Unified School District (LAUSD), its employees Millie Mladinich and Christopher Mendez, and various Doe defendants. Wilkins alleged that the LAUSD defendants forced him to retire from teaching by discriminating against him based on race and age and by harassing him in retaliation. In addition to his claims under the Fair Employment and Housing Act (FEHA), Wilkins alleged a violation of 42 U.S.C. section 1983, false arrest and imprisonment, and intentional and negligent infliction of severe emotional distress.
On April 25, 2006, Wilkins filed a first amended complaint (FAC), naming the County and Deputy Sheriff Jensen as defendants. Fictitious name amendments filed simultaneously named the County Sheriff’s Department as Doe 1 and Jensen as Doe 2. (Wilkins also simultaneously dismissed LAUSD employee Mendez as a defendant.)
The FAC alleged race and age discrimination in violation of FEHA against LAUSD (first and second causes of action); violations of 42 U.S.C. section 1983 by means of false arrest and imprisonment (third cause of action) and negligent criminal investigation (fourth cause of action) against the County, Jensen, and Does 3-10; negligent infliction of emotional distress against the County, Jensen, and Does 3-10 (fifth cause of action); and intentional infliction of emotional distress against LAUSD and school principal Mladinich (sixth cause of action). Paragraph 22 of the FAC alleged that on July 28, 2004, Wilkins was “erroneously arrested by defendant Deputy Sheriff JENSEN of the Los Angeles County Sheriff’s Department, who lacked probable cause or reasonable excuse to arrest plaintiff. . . .” Wilkins further alleged that he was “falsely charged with making ‘terrorist threats’ ” against Mladinich and other school staff members. Paragraph 25 alleged that Wilkins “has filed statutory tort claims against the herein public entity defendants as required by Government Code § 911.2, and has substantially satisfied all applicable requirements of this Code section prior to commencing this action. Said claims were duly denied. See Exhibit ‘A’ and ‘B,’ attached hereto and incorporated by reference.” However, Wilkins attached no exhibits to the FAC.
On May 17, 2006, the County demurred to the third, fourth, and fifth causes of action in the FAC. The County attached to its demurrer a declaration by counsel and copies of Wilkins’s tort claim form and the County’s rejection letter dated February 28, 2005. A proof of service indicated the letter was mailed on March 1, 2005.
No appearance was made on behalf of any individual defendant.
Before the hearing on the demurrer, Wilkins dismissed his case against Jensen and named Deputy Sheriff Mark Repcik as Doe 3.
On June 19, 2006, the trial court sustained the County’s demurrer without leave to amend. It found that “the County of Los Angeles gave notice of rejection of claim on March 1, 2005. Plaintiff did not name Los Angeles County or the County Sheriff’s Department as a defendant in this action until the filing of the Doe 1 Amendment on April 25, 2006, nearly a year and two months after rejection of the Claim.” The court further found the Doe amendment did not relate back to the case filing date: “Plaintiff has demonstrated his awareness of the contended involvement of Defendant Los Angeles County Sheriff’s Department, by his filing of the claim against the County of Los Angeles and two employees of the Sheriff’s Department on January 27, 2005, for wrongful arrest and imprisonment. Thus, at the time of the later filing of the Complaint on August 12, 2005, Plaintiff knew of potential claims against the County. Given that knowledge, Plaintiff cannot claim ignorance of the County’s involvement or the facts giving rise to the causes of action against the County, to support relating back the Doe Amendment filed on April 25, 2006, to the Complaint filing date of August 12, 2005.” The court therefore found Wilkins’s causes of action were “barred as being untimely” because he had not filed “his complaint against the County until more than six months after the denial of his claim by the County, as required by Government Code, section 945.6(a)(1) . . . .” The court’s written ruling ordered the County to give notice, but it did not instruct the County to submit a proposed judgment. The County never submitted one, nor did the court enter judgment for the County after its order sustaining the County’s demurrer without leave to amend.
On July 6, 2006, Wilkins filed a request for dismissal of the action with prejudice. Wilkins apparently had settled with the LAUSD defendants on June 27, 2006, at mediation. The request for dismissal was not limited to particular parties or causes of action. On July 28, 2006, Wilkins filed a notice of appeal from the order sustaining the County’s demurrer. However, no judgment had been entered. On October 31, 2006, Wilkins filed an application for an ex parte order entering judgment for the County. The trial court denied the application, stating that it had “no jurisdiction inasmuch as the case is on appeal.” On March 2, 2007, Wilkins finally obtained a judgment of dismissal after an order sustaining a demurrer without leave to amend, and he filed a timely appeal challenging the ruling on the County’s demurrer.
DISCUSSION
a. Wilkins’s First Amended Complaint.
Wilkins’s claims against the County and sheriff’s deputies arose from the July 28, 2004 arrest alleged in paragraph 22 of the FAC. In his third cause of action, Wilkins alleged he was “falsely, and wrongfully, arrested and imprisoned without a warrant, and without reasonable excuse or lawful justification, on $50,000 bail, [and] falsely charged with making ‘terrorist’ threats against Defendant Mlannovich [sic].” (FAC, ¶ 45.) Wilkins alleged that Jensen and the other individual defendants were acting under color of law. (FAC, ¶¶ 44, 9.) He further alleged that Jensen’s conduct violated his “federal substantive due process rights, pursuant to 42 U.S.C. § 1983.” (FAC, ¶ 49.)
In his fourth cause of action, Wilkins alleged that the County defendants “falsely arrested, imprisoned, and criminally prosecuted [him] by conducting a negligent investigation as to whether plaintiff had in fact made ‘terrorist threats’ against defendant Mladinich.” (FAC, ¶ 51.) He further alleged that the defendants owed him a general duty of care, which they breached, and that “the individual defendant[s’] conduct also violated Plaintiff’s Procedural Due Process rights, pursuant to 42 U.S.C. § 1983.” (FAC, ¶¶ 52-53.) The fourth cause of action incorporated the color of law allegations of paragraphs 9 and 44.
Wilkins’s fifth cause of action incorporated most of the third and fourth causes of action and further alleged that the defendants “without legal cause, reasonable justification, or lawful excuse, negligently caused plaintiff to be falsely arrested, imprisoned and prosecuted for making ‘terrorist threats.’ ” (FAC, ¶ 57.) This allegedly wrongful conduct caused Wilkins to suffer “humiliation, embarrassment, nervousness, severe mental and emotional distress, shock, humiliation, anxiety, anger, frustration, loss of dignity, physical pain, and emotional and mental depression . . . .” (FAC, ¶ 60.)
b. Demurrers and the standard of review.
A demurrer tests the complaint’s sufficiency by raising questions of law. (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238.) A general demurrer admits the truth of all material factual allegations of the complaint, but not the truth of contentions, deductions, or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) However, a demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Matters that are subject to permissive judicial notice must be specified in the demurrer or points and authorities, or as the court otherwise permits. (Code of Civ. Proc., § 430.70.)
On appeal from dismissal after a demurrer is sustained without leave to amend, this court independently reviews the sufficiency of the pleading and affirms if any ground raised in the demurrer is well taken. (Hayter Trucking, Inc. v. Shell Western E&P, Inc. (1993) 18 Cal.App.4th 1, 13.) Where the pleading is insufficient, however, we review the denial of leave to amend for abuse of discretion. (Id. at p. 12.)
c. Consideration of the County’s exhibits.
The County did not request judicial notice of Wilkins’s claim or the letter rejecting it. The trial court did not state that it took judicial notice of either or both documents. Nonetheless, Wilkins did not object to their consideration and he does not contend on appeal that the court improperly considered them. Indeed, Wilkins specifically conceded in his opposition to the demurrer that the County denied his claim on February 28, 2005. Under the circumstances, we conclude the trial court implicitly and properly judicially noticed the County’s letter rejecting Wilkins’s claim against it under Evidence Code section 452, subdivision (c). (Edna Valley Assn. v. San Luis Obispo County etc. Coordinating Council (1977) 67 Cal.App.3d 444, 449 [official acts of county subject to judicial notice because counties are legal subdivisions of the state].)
d. Applicability of Government Code section 945.6, subdivision (a)(1).
The California Tort Claims Act generally precludes a would-be plaintiff from suing a public entity for damages unless a timely written claim has been presented to and denied (or deemed denied) by the public entity. (Gov. Code, § 945.4; County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.) With certain exceptions not applicable here, a plaintiff must file suit against the public entity no later than six months after written notice rejecting the claim is deposited in the mail or personally delivered to the plaintiff. (Gov. Code, § 945.6, subd. (a)(1); County of Los Angeles v. Superior Court, supra, 127 Cal.App.4th at pp. 1267-1268.)
Wilkins argues on appeal -- and the County concedes -- that these provisions of the California Tort Claims Act do not apply to claims under 42 U.S.C. section 1983. (Williams v. Horvath (1976) 16 Cal.3d 834, 842.) So, while Wilkins’s failure to meet the six-month deadline for naming the County in his lawsuit bars his fifth cause of action (as we discuss below), it does not bar his third and fourth causes of action if they plead claims under 42 U.S.C. section 1983.
Wilkins never raised this argument in the trial court in opposition to the County’s demurrer. Plainly, had he done so, this appeal would not have been necessary as to his federal civil rights claim. Notwithstanding this failure, we may consider the argument on appeal as it raises purely a question of law. (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 259.)
The County argues on appeal that it “did not raise the federal cause of action [sic] in its demurrer” and that the court’s ruling on the demurrer “only addressed the lack of timeliness as to the plaintiff’s three state causes of actions [sic] . . . .” The County asserts that Wilkins’s claims under 42 U.S.C. section 1983 “remained in full force [and] effect in that such claims are not subject to the claims requirement,” and that in requesting an order of dismissal Wilkins “abandoned his federal claims upon his own motion.” The record flatly belies the County’s contention. The County’s demurrer expressly challenged “the Third, Fourth and Fifth causes of action.” As noted, Wilkins alleges claims under 42 U.S.C. section 1983 in his third and fourth causes of action. The trial court’s ruling did not suggest that its order sustaining the demurrer did not encompass Wilkins’s 42 U.S.C. section 1983 claims or that the court somehow was distinguishing between federal and state aspects of the third and fourth causes of action. We also reject the County’s argument that, by failing to check a box under paragraph 1(b) of the Request for Dismissal form, Wilkins intentionally gave up his federal claims against the County. Wilkins tried to file a notice of appeal on July 28, 2006, even though the trial court had not entered judgment in the County’s favor. We decline to construe his attorney’s inadvertence in failing to indicate on the July 6 form that Wilkins was dismissing only the LAUSD defendants as an abandonment of his federal civil rights claims against the demurring defendants.
In sum, the trial court’s rationale for sustaining the County’s demurrer was unsound as to the third and fourth causes of action. Although appellate courts reviewing a demurrer review the ruling, not the rationale (Sackett v. Wyatt (1973) 32 Cal.App.3d 592, 598, fn. 2), the County based its demurrer solely on Wilkins’s failure to meet the deadline set forth in Government Code section 945.6. Accordingly, while there may be defects in the way Wilkins has pleaded his claims under 42 U.S.C. section 1983, the only issue that the County raised and the trial court considered was untimeliness. Any further demurrer or other motion by the County challenging the adequacy of Wilkins’s pleading of his section 1983 claims should be addressed by the trial court in the first instance.
Wilkins’s claims against the County appear to be based solely on theories of respondeat superior and ratification by mere inaction without a deliberate policy choice. These are insufficient to establish liability for a public entity. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 694; Christie v. Iopa (9th Cir. 1999) 176 F.3d 1231, 1239; Weisbuch v. County of Los Angeles (9th Cir. 1997) 119 F.3d 778, 781-782.) Moreover, his fourth cause of action pleads a negligent violation of due process; this also is legally inadequate. (Daniels v. Williams (1986) 474 U.S. 327, 328.)
e. Application of relation-back principles.
Wilkins’s fifth cause of action for negligent infliction of emotional distress does not purport to state a federal claim. It therefore is subject to the requirements of the Tort Claims Act.
Wilkins argues on appeal -- as he did in the trial court -- that his amendment naming the County Sheriff’s Department as Doe 1 related back to the filing of the original complaint. Wilkins filed his original complaint within the six-month limitations period after the County rejected his claim. The trial court rejected this theory on the ground that Wilkins’s filing of a claim against the County showed he knew of the sheriff’s department’s involvement in his arrest.
A plaintiff who is “ignorant of the identity of a party responsible for damages may name that person in a fictitious capacity, a Doe defendant, and the time limit prescribed by the applicable statute of limitations is extended as to the unknown defendant.” (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946.) But a later amendment substituting a party for a fictitious defendant will be deemed to relate back to the original complaint only if the plaintiff was genuinely ignorant of that party’s identity or liability when he filed the original complaint. (Miller v. Thomas (1981) 121 Cal.App.3d 440, 445-446.)
The trial court properly concluded that, in filing a tort claim against the County, Wilkins showed he was aware of the County’s involvement. And there is a second reason the amendment naming the County cannot be held to relate back to the filing of the original complaint: the relation-back rule generally does not apply to an action against a public entity. (Chase v. State of California (1977) 67 Cal.App.3d 808, 813 (Chase); Carlino v. Los Angeles County Flood Control Dist. (1992) 10 Cal.App.4th 1526, 1536.) As in Chase, Wilkins’s original complaint “abandoned any reliance upon his previously filed claim. Its presentation was not mentioned, and by this omission no cause of action was alleged against the [County], even had it been joined as a named defendant. [Citations.] Further, it appears that the failure to name the [County] as a defendant, or to allege a cause of action against it, was not inadvertent but was instead purposeful and intentional.” (Chase, supra, 67 Cal.App.3d at pp. 812-813.) Under these circumstances, Chase held that the strict requirements of the Tort Claims Act precluded application of relation-back principles. (Id. at p. 813.) The same conclusion applies with equal force here.
Although Wilkins’s claim does not appear to be a proper subject of judicial notice, he admitted in his opposition to the demurrer and admits in his appellate brief that he filed a claim against the County. These admissions are consistent with the general allegation in paragraph 25 of the FAC that Wilkins filed the statutory tort claims required by Government Code section 911.2.
Wilkins also argues that his tort claim against the County “was clearly defective stating no facts upon which a reasonably competent civil attorney could believe that the County defendants were in fact even plausibly liable for appellant’s ‘false arrest, imprisonment and prosecution.’ ” It is difficult to see what Wilkins hopes to gain by this argument. In any event, any defect in his tort claim against the County does not eliminate the necessity of compliance with the Tort Claims Act or alter the prohibition on applying the relation-back rule to the County under circumstances equivalent to those in Chase, supra, 67 Cal.App.3d 808. Accordingly, the trial court properly sustained the County’s demurrer to the fifth cause of action without leave to amend.
DISPOSITION
The judgment is reversed and the cause remanded. Plaintiff should be given an opportunity to amend his third and fourth causes of action, if he wishes. Each party shall bear its own costs on appeal.
We concur:
RUBIN, Acting P. J., FLIER, J.