Opinion
C096914
05-03-2024
JEFF BAOLIANG ZHANG, Plaintiff and Appellant, v. STATE DEPARTMENT OF STATE HOSPITALS, Defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. 34-2021-00303230-CU-CR-GDS.
MAURO, J.
After Jeff Baoliang Zhang fired a gun at the Chinese consulate building in Los Angeles in 2011, he was found mentally incompetent to stand trial, admitted to Patton State Hospital, subsequently found competent, convicted of assault with a firearm, sentenced to state prison, and upon his release from prison admitted to Atascadero State Hospital.
Almost a year after his release from Atascadero State Hospital, Zhang filed a civil suit against the California Department of State Hospitals (DSH). The trial court sustained DSH's demurrer to the complaint and gave Zhang permission to amend to allege compliance with the Government Claims Act (Gov. Code, § 900 et seq.) (the Act) or excuse from compliance. Zhang filed a first amended complaint but the trial court sustained DSH's demurrer without further leave to amend. The trial court entered a judgment of dismissal.
Undesignated statutory references are to the Government Code.
Zhang now contends (1) he should be excused from the government claim presentation requirement because he did not know he had to file a claim, (2) other documents he submitted constituted a claim under the Act, (3) it was impossible for him to file a timely claim and equitable tolling should apply, (4) he was not required to file a claim because his lawsuit asserted the violation of title 42 United States Code section 1983, and (5) the trial court judge was biased against him.
Finding no merit in Zhang's contentions, we will affirm the judgment of dismissal.
STANDARD OF REVIEW
On review of a judgment of dismissal following demurrer, we view the challenged pleading as a whole. We construe it liberally, assume the truth of properly pleaded facts, and consider matter which may be judicially noticed in order to determine de novo whether the factual allegations of the pleading are adequate to state a cause of action under any legal theory. (In re Electric Refund Cases (2010) 184 Cal.App.4th 1490, 1500; Milligan v. Golden Gate Bridge Highway &Transportation Dist. (2004) 120 Cal.App.4th 1, 5-6.) But we do not treat as true the complaint's contentions, deductions or conclusions of fact or law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966967.) "A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed." (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; see Code Civ. Proc., § 430.30, subd. (a).) As the appellant, Zhang bears the burden of demonstrating that the demurrer was sustained erroneously. (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1485.)
When the trial court sustains a demurrer without leave to amend, we consider whether the challenged pleading might state a cause of action if the appellant were permitted to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If it can be, the trial court has abused its discretion and we will reverse; if not, there has been no abuse of discretion and we will affirm. (Ibid.) The appellant bears the burden of showing a reasonable possibility that a defect can be cured by amendment. (Ibid.) To meet this burden, the appellant must "enumerate the facts and demonstrate how those facts establish a cause of action. [Citations.] Absent such a showing, the appellate court cannot assess whether or not the trial court abused its discretion by denying leave to amend." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)
DISCUSSION
I
Zhang argues he should be excused from the government claim requirement because he did not know he had to file a claim.
Under the Act, except in cases not applicable here, before a complaint for money or damages may be filed against a State department or agency on a cause of action for personal injury, the plaintiff must present a written claim for damages to the agency no later than six months after accrual of the cause of action and the board of the agency must act upon the claim or the claim must be deemed rejected. (§§ 900.6, 905.2, 910, 911.2, 945.4.) Timely claim presentation is a condition precedent to maintaining an action against the State agency and is, therefore, an element of a cause of action which the plaintiff must prove. (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990 (DiCampli-Mintz).) Failure to timely present a claim to the agency bars the plaintiff's lawsuit against the State agency (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738 (City of Stockton)), and failure to allege facts demonstrating or excusing compliance with the claim-presentation requirement subjects a complaint to demurrer for failure to state a cause of action (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1237, 1243). Because Zhang's first amended complaint sought monetary damages against DSH for personal injuries, he was required to comply with the claim-presentation requirement of the Act. (§§ 900.6, 905.2, 911.2, 945.4.) Zhang did not submit a government claim, and he did not submit a section 911.4 application to file a late claim.
Ignorance of the claim-presentation requirement does not justify relief. (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1383-1384; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1778-1779, 1783-1784; Drummond v. County of Fresno (1987) 193 Cal.App.3d 1406, 1412; Garcia v. Los Angeles United School Dist. (1985) 173 Cal.App.3d 701, 708-709; Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 314.) And contrary to Zhang's assertion, DSH was not required to advise Zhang of the claim-presentation requirement. (Tyus v. City of Los Angeles (1977) 74 Cal.App.3d 667, 673 (Tyus); Allen v. Los Angeles City Board of Education (1959) 173 Cal.App.2d 126, 130; Cruise v. San Francisco (1951) 101 Cal.App.2d 558, 564.)
Although Zhang cites section 950.8 for the proposition that he was excused from the claim-presentation requirement, we assume he intended to cite section 950.4. Section 950.4 provides that a cause of action against a public employee or former public employee is not barred if the plaintiff pleads and proves that he did not know his injury was caused by the public entity or an employee of the public entity. But section 950.4 applies to a cause of action against a public employee, not to a cause of action against DSH. (§§ 950.2, 950.4; Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116, 119.) Accordingly, it does not excuse Zhang's failure to present a timely government claim as to DSH.
Zhang may contend that unnamed individuals are defendants in the first amended complaint. However, his initial complaint only named DSH as a defendant and he did not obtain trial court permission to add additional defendants to the first amended complaint. (Taliaferro v. Davis (1963) 220 Cal.App.2d 793, 794; Schaefer v. Berinstein (1956) 140 Cal.App.2d 278, 299; 49A Cal.Jur.3d (2018) Pleading, § 218.) Section 950.4 does not apply here.
II
Zhang next contends various documents he submitted constitute a claim under the Act.
Because Zhang did not raise this argument in the trial court, we ordinarily would not consider it. (Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 194 (Westcon Construction Corp.); Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143.) Nevertheless, we may consider an argument presented for the first time on appeal when it involves only a legal question, determinable from facts that cannot be controverted. (In re Sheena K. (2007) 40 Cal.4th 875, 885-889; Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167.)
The first amended complaint alleges that Zhang submitted documents such as forms, addenda, and memoranda. An attachment to the complaint, made part of the first amended complaint, purported to recite the contents of specified documents. On a demurrer, we may consider facts found in exhibits attached to a superseded complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) Assuming that Zhang's appellate argument asserts a legal question, and considering the recitation of the contents of the specified documents in the attachment to the complaint, we conclude that even if a series of writings could constitute a government claim under the Act (cf. Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 34-35), the specified documents did not constitute a government claim.
A government claim is a notice that complies with section 910. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 707 (Phillips).) Section 910 requires a claim to set forth all of the following: (1) the name and post office address of the claimant; (2) the post office address to which the person presenting the claim desires notices to be sent; (3) the date, place and other circumstances of the occurrence or transaction which gives rise to the claim asserted; (4) a general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim; (5) the name or names of the public employee or employees causing the injury, damage, or loss, if known; and (6) the amount claimed if it totals less than $10,000 as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. (§ 910.) If the amount claimed exceeds $10,000, no dollar amount shall be included in the claim but the claimant must indicate whether the claim would be a limited civil case. (§ 910.)
"Where a claimant has attempted to comply with the claim requirements but the claim is deficient in some way, the doctrine of substantial compliance may validate the claim 'if it substantially complies with all of the statutory requirements . . . even though it is technically deficient in one or more particulars.'" (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 38.) Substantial compliance is at least some compliance with each of the statutory requirements. (Ibid.; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 769 (Del Real).)
The specified documents do not show that those writings complied or substantially complied with section 910. (Phillips, supra, 49 Cal.3d at p. 708, fn. 7; Del Real, supra, 95 Cal.App.4th at p. 769.) In addition, there is no indication in the record that the documents were presented to or received by the proper entity or person as required by section 915. (DiCampli-Mintz, supra, 55 Cal.4th at pp. 987, 992; Westcon Construction Corp., supra, 152 Cal.App.4th at pp. 200-202; Tapia v. County of San Bernardino (1994) 29 Cal.App.4th 375, 384-385.) Further, a writing that does not indicate that the plaintiff is asserting a monetary claim does not substantially comply with Act, and the documents here do not indicate that Zhang sought monetary damages. (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1118; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1083; Tyus, supra, 74 Cal.App.3d at pp. 671672.)
A claim that does not substantially comply with section 910 may nevertheless be considered a claim as presented, triggering a duty on the part of the public entity to notify the potential plaintiff of defects in the claim. (Phillips, supra, 49 Cal.3d at pp. 707-708; see also Westcon Const. Corp., supra, 152 Cal.App.4th at p. 202.) A claim as presented is a claim that contains sufficient information to disclose the existence of a claim which, if not satisfactorily resolved, will result in a lawsuit against the public entity. (City of Stockton, supra, 42 Cal.4th at p. 744; Phillips, at pp. 707-708; Del Real, supra, 95 Cal.App.4th at p. 770.) Here, because the specified documents do not contain a demand for money or indicate that Zhang might file a lawsuit, they do not qualify as a claim as presented.
To the extent Zhang relies on a purported government claim that is not included in the record, he fails to bear his burden of affirmatively demonstrating error. (Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 339-340.)
III
Citing Lewis v. Superior Court (1985) 175 Cal.App.3d 366 (Lewis), Zhang argues it was impossible for him to file a timely claim and that equitable tolling should apply.
Lewis held that a statute of limitations may be tolled under circumstances rendering it impossible for the plaintiff's attorney to file the plaintiff's complaint within the limitations period. (Lewis, supra, 175 Cal.App.3d at pp. 370, 380.) When applicable, the doctrine of equitable tolling suspends or extends a statute of limitations. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.) Lewis and the doctrine of equitable tolling do not apply here, however, because the claim-presentation deadline in section 911.2 is not a statute of limitations. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 213, superseded by statute on another point as stated in Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 914-915; Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1121.) The doctrine of equitable tolling cannot be invoked to suspend section 911.2's six-month deadline for presenting a prelawsuit claim. (Willis, at p. 1121.)
Zhang does not cite any authority applying an impossibility exception to the claim-presentation requirement. As the appellant he must support his legal arguments. (Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 595; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) In any event, the first amended complaint does not allege facts demonstrating that it was impossible for Zhang to file a timely claim.
IV
Zhang further contends he was not required to file a claim because his complaint asserted the violation of his federal civil rights.
The claim-presentation requirement of section 911.2 does not apply to a claim brought under the federal Civil Rights Act (42 U.S.C. § 1983). (Felder v. Casey (1988) 487 U.S. 131, 134, 154; Williams v. Horvath (1976) 16 Cal.3d 834, 842; Florio v. City of Ontario (2005) 130 Cal.App.4th 1462, 1468.) Accordingly, failure to allege compliance with the claim-presentation requirement of the Act does not subject a Civil Rights Act cause of action to a general demurrer. (Williams, at p. 842.) Nevertheless, the State, an entity acting as an arm of the state, and officials of the State acting in their official capacities, are not "persons" subject to a section 1983 claim. (42 U.S.C. § 1983; Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71; McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1207-1208; Toscano v. County of Los Angeles (1979) 92 Cal.App.3d 775, 784.) Consequently, Zhang cannot state a title 42 United States Code section 1983 cause of action against DSH.
The parties did not address whether Zhang could state a title 42 United States Code section 1983 cause of action against DSH. But because the law appears to be clear, we address the issue without requesting supplemental briefing. Any party aggrieved may file a petition for rehearing. (§ 68081.)
The trial court gave Zhang an opportunity to amend his complaint to plead compliance with the Act or excuse from compliance. Zhang does not show in what manner his noncompliance with the Act could be cured by further amendment.
V
Finally, Zhang contends the trial court judge was biased in favor of defendants and against Zhang. Our review of the record found no support for Zhang's assertions of bias, abuse, or discrimination.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, 8.278(a)(5).)
We concur: HULL, Acting P. J., RENNER, J.