Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV 487543
Dondero, J.
City of Foster City, defendant in the underlying action, challenges the superior court’s order overruling its demurrer to causes of action for negligence, intentional infliction of emotional distress and negligent infliction of emotional distress. As will be seen, we agree with City that the demurrer should have been sustained without leave to amend.
City of Foster City police officers Nix and Morrison are also named petitioners and defendants below. For ease of reference, we refer to all parties collectively as City.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The genesis of the present dispute is an incident that occurred on the evening of October 20, 2006, when the real party in interest, Tom McMillin (plaintiff or McMillin), heard an object strike the side of his house on Gull Avenue in Foster City. McMillin, a security guard and owner of a private security company, then observed a group of juveniles walk toward nearby Turnstone Park. He noticed what appeared to be a small black handgun in the possession of one of the male juveniles, and was told by someone else that another member of the group was carrying a rifle. Wearing a protective tactical vest and in possession of a licensed loaded firearm, McMillin drove in his private security vehicle to the park. From there, he called the Foster City Police Department to report a crime, and was told by the dispatcher to remain in his vehicle. Instead, McMillin entered the park and approached the juveniles, one of whom appeared to have a rifle in his hand. He drew his weapon and detained the seven juveniles at gunpoint, during which he forced them to lie on the ground and threatened to shoot them unless they complied. When Foster City police officers arrived, McMillin was directed to put down his gun. The officers determined that the perceived weapons in the possession of the juveniles were actually toy air pistols, a pellet gun and a BB gun.
On October 16, 2007, McMillin was arrested and charged in a criminal complaint with multiple misdemeanor offenses, including assault with a deadly weapon, brandishing a firearm in a threatening manner, and false imprisonment. (Pen. Code, §§ 245, subd. (a)(2); 417, subd. (a)(2), 236.) As a result of the complaint and arrest, McMillin was ordered by the court to surrender his weapons, and he did so in December of 2007. After trial on the complaint commenced on August 4, 2008, pursuant to a negotiated disposition McMillin entered a plea of no contest to the added charge of disturbing the peace (Pen. Code, § 415), and the remaining charges were dismissed. He was granted probation for three years, with the condition, among others, that he complete classes in firearm safety and lawful arrest procedures.
McMillin was subsequently granted early termination of his probation, and his conviction was expunged upon compliance with the terms of probation.
On September 10, 2008, McMillin filed a citizen’s complaint with the Foster City Police Department (the Department) in which he alleged that the officer who investigated the incident improperly failed to recommend or pursue charges against the juveniles, and failed to submit an accurate and complete report. Following an internal affairs investigation of the complaint the Department concluded that the investigating officer failed to conduct a thorough investigation or write a complete and accurate report, and his supervisor failed to “ensure that the reporting officer completed a factual, complete and accurate report.” In a letter dated January 15, 2009, the Department apologized to McMillin and promised that corrective action would be taken.
McMillin’s allegation that the officer failed to act on criminal violations committed by the juveniles was determined to be unfounded.
Understandably upset, McMillin filed a tort claim (Gov. Code, § 911.2) with petitioner Foster City (petitioner or the City) on January 27, 2009, and an amended claim one month later, in which he claimed damages as a result of false arrest, malicious prosecution and abuse of authority by officers of the Foster City Police Department. He asserted that the police report of the incident on October 20, 2006, was inaccurate, incomplete, misleading and biased, and resulted in his arrest and the criminal charges filed against him. The claims were returned to McMillin in March of 2009 without any action taken, with the notation that the claims “were not presented within the time allowed by law.” McMillin was advised that his only recourse was to seek leave from the City to present a late claim. McMillin filed an application for leave to file a late claim (§ 911.4) on March 18, 2009, which was denied by the City.
All further statutory references are to the Government Code unless otherwise indicated.
McMillin’s response was to file a petition with the trial court for an order relieving him from the failure to file a timely claim (the petition) “based on a cause of action for personal injury.” (See §§ 945.4, 946.6.) The petition asserted that the reason “the claim was not presented within the six-month time limit under Government Code § 911.2(a) was through mistake and/or excusable neglect.” McMillin also alleged that his “application was presented within the six-month period” as measured “from January 15, 2009.” Following a hearing, the court issued a rather curious order on September 4, 2009 (the petition order), which included a determination “without prejudice” that the claim filed by McMillin “was timely.” In the petition order, the court referred only to a cause of action for malicious prosecution –which was not alluded to in the claim or the petition for relief – and declared that action accrued upon termination of the criminal prosecution against McMillin on August 4, 2008, so the claims filed in January of 2009 were timely. The petition was therefore “DENIED as moot.”
The complaint by McMillin against the City in the present action, which was filed on September 3, 2009, and amended the following month, alleged causes of action for negligence, violation of civil rights (42 U.S.C. § 1983), failure to discharge mandatory duties and violation of rights by law enforcement officers (Civ. Code, § 52.3), and infliction of emotional distress. The City demurred to the amended complaint on the ground, among others, that petitioner’s causes of action were barred by his failure to file a claim within the “statute of limitations set forth in the Government Tort Claims Act” (Gov. Code, § 900 et seq.). The trial court found that the prior petition order established the timeliness of petitioner’s “claim, ” and overruled the demurrer on the statute of limitations ground. The ruling on the demurrer left the first, fifth and sixth causes of action for negligence and infliction of emotional distress in place.
The court found that petitioner failed to state causes of action for violations of title 42 United State Code, section 1983 and Civil Code section 52.3, and sustained the demurrer as to the second, third and fourth causes of action.
The City filed this petition for writ of mandate to obtain review of the trial court’s ruling on the demurrer. This court issued an alternative writ of mandate directing the trial court to set aside the order on the demurrer or show cause why a peremptory writ of mandate commanding it to do so should not be issued. After the trial court elected not to set aside the order on the demurrer, we set the matter for argument and received additional briefing.
DISCUSSION
The petition for writ of mandate before us presents several issues for resolution. As a threshold matter we must determine if relief by way of petition for writ of mandate is appropriate under the circumstances presented. Second, the collateral estoppel effect of the prior petition order that denied plaintiff relief from the tort claims filing requirements must be considered. Finally, if necessary, we must resolve the statute of limitations issue on the merits.
I. Availability of Writ Review.
Looking first at the availability of writ review to the City in the present case, we recognize that a writ petition challenging an order overruling a demurrer is an “unusual path” of review. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746–747; see also San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 912–913; Curry v. Superior Court (1993) 20 Cal.App.4th 180, 183.) “[W]e do not routinely afford plenary review to rulings on demurrers. ‘Appellate courts simply do not have the time or resources to police law and motion rulings on the pleadings through the mandamus power and, absent unusual circumstances, decline to do so.’ [Citations.]” (Curry, supra, at p. 183, fn. omitted.) An order overruling a demurrer “may be reviewed on appeal from the final judgment. [Citation.] Appeal is presumed to be an adequate remedy, and writ review is rarely granted unless a significant issue of law is raised or resolution of the issue would result in a final disposition as to the petitioner.” (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1151; see also Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182.)
We consider the timeliness issue before us is a significant one. The reason for the tort claims filing requirement “is to ‘protect[] a governmental entity from having to respond to a claim many years after the accrual of the action.’ [Citations.]” (County of Los Angeles v. Superior Court (2001) 91 Cal.App.4th 1303, 1314; see also Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020, 1030; County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1272.) The policy underlying the City’s defense based on noncompliance with the six-month statute of limitations set forth in section 911.2 will be effectively negated or at least severely compromised if the City is forced to proceed to trial or face the other burdens of litigation long after the action accrued and despite the failure of the plaintiff to timely file a claim. (See Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1189–1190.) Moreover, if we determine that the claim was filed late, the City has a complete defense which results in a final disposition of the action. (Casterson v. Superior Court, supra, 101 Cal.App.4th 177, 182; Watson v. State of California (1993) 21 Cal.App.4th 836, 844–845.) We therefore exercise our discretion to afford the City writ relief, and proceed to consideration of the merits of the petition. (Interinsurance Exchange of the Automobile Club v. Superior Court (2007) 148 Cal.App.4th 1218, 1226.)
II. The Collateral Estoppel Effect of the Petition Order.
Plaintiff argues that the ruling on the prior petition for relief is a final judgment on the issue of the timeliness of the claim, and must be given collateral estoppel effect in this action. Plaintiff maintains that the petition order and the City’s demurrer “presented the exact same issues to be considered – the timeliness of the claim.” He adds that the City’s “statute of limitations defense was actually litigated” in the proceeding on his petition for relief, and the ruling became “conclusive” when the City failed to seek an appeal from the petition order.
The doctrine of res judicata “ ‘ “gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” [Citation.] The doctrine “has a double aspect.” [Citation.] “In its primary aspect, ” commonly known as claim preclusion, it “operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]” [Citation.] “In its secondary aspect, ” commonly known as collateral estoppel, “[t]he prior judgment... ‘operates’ ” in “a second suit... based on a different cause of action... ‘as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.’ [Citation.]” [Citation.] “The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]” ’ [Citation.]” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) We deal here with the claim preclusion aspect of the res judicata doctrine.
The parties before us are the same, but the other two prerequisites to collateral estoppel preclusion are not satisfied. While we do not entirely know what to make of the trial court’s order on McMillin’s petition, this much we can definitively ascertain: it was not a final adjudication on the merits of the timeliness of petitioner’s presentation of his claim. The ruling was in response to plaintiff’s petition to relieve him from the failure to file a timely claim. (§§ 945.4, 946.6.) If, as occurred here, an application with the public entity for leave to present a late claim is denied, “section 946.6 provides that the party may petition the court for an order relieving the party from the claim-filing requirement. Pursuant to section 946.6, subdivision (c), the court must grant the petition if it finds that the application (1) was made within a reasonable time not to exceed that specified in section 911.4, subdivision (b), in other words, one year after the accrual of the cause of action; (2) was denied or deemed denied; and (3) was late for one of the reasons specified in section 911.6, subdivision (b).” (County of Los Angeles v. Superior Court, supra, 91 Cal.App.4th 1303, 1313.) A petition pursuant to section 946.6 does not implicate or seek to resolve the timeliness of the claim filed with a governmental entity. It assumes the claim was filed late, and seeks relief on other specified grounds. “Relief from the failure to timely present a government tort claim is available only if the petitioner establishes by a preponderance of the evidence the failure was ‘through mistake, inadvertence, surprise, or excusable neglect.’ [Citations.]” (Renteria v. Juvenile Justice, Department of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 909.) “ ‘The procedure set forth in section 946.6 is simply an avenue of relief similar to Code of Civil Procedure section 473 in providing relief from default [citation], and is not designed to resolve the issue of actual compliance with the claim filing requirements.’ [Citation.]” (City of Los Angeles v. Superior Court (1993) 14 Cal.App.4th 621, 627, italics added.)
Thus, the issue presented in plaintiff’s prior petition was not the timeliness of his claim filed with the City. Nor was the ultimate effect of the order a ruling that plaintiff filed his claim within the statutory period, but rather a denial of the petition for relief on the ground of mootness. As to the trial court’s apparent finding that a malicious prosecution action was timely filed, several reasons persuade us not to give that determination preclusive effect. First, a malicious prosecution cause of action was not presented by plaintiff as a timely claim in his petition for relief, or included in the subsequently filed complaint. The petition order also did not analyze or determine the timeliness of any other causes of action that were included in the ensuing complaint which was the subject of the demurrer. More importantly, the court’s “determination of timeliness” in the petition order was by its own terms “without prejudice” to further litigation of the issue, and based only on the facts offered in the petition and response. In ruling on the demurrer to the amended complaint, the court was presented with additional facts stated in the pleading, along with attachments to the motion and plaintiff’s opposition. A resolution explicitly made without prejudice cannot be considered a final adjudication of an issue for purposes of the collateral estoppel doctrine, particularly where additional evidence was considered in the subsequent proceeding. (See Snyder v. Superior Court (2007) 157 Cal.App.4th 1530, 1535; Syufy Enterprises v. City of Oakland (2002) 104 Cal.App.4th 869, 879; Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 442; Berlin v. McMahon (1994) 26 Cal.App.4th 66, 76.) In any event, the petition order is not entitled to the collateral estoppel effect which the respondent court gave it, as it did not result in any actual litigation or final judgment on the issue of the timeliness of plaintiff’s claim. (See City of Los Angeles v. Superior Court, supra, 14 Cal.App.4th 621, 628–629.)
And with good reason. Under established California law, all employees of a public entity are granted statutory immunity from liability for malicious prosecution, although not for false arrest and imprisonment. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752; Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719.) The immunity also extends to negligent or intentional investigation and prosecution of crimes. (Miller v. Filter (2007) 150 Cal.App.4th 652, 670; Javor v. Taggart (2002) 98 Cal.App.4th 795, 808; Farnam v. State of California (2000) 84 Cal.App.4th 1448, 1459; Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209–1210; Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283–284.) Malicious prosecution was mentioned in the initial claim filed by plaintiff with the City, but not in the amended claim filed a month later by his attorney on his behalf.
III. The Timeliness of Plaintiff’s Claim.
We turn to the substance of the matter presented to us in the present writ petition: the timeliness of plaintiff’s claim submitted to the City on January 27, 2009, in which he claimed damages as a result of the inaccurate police report, his arrest, criminal prosecution and ultimate no contest plea. The City argues that the negligence and infliction of emotional distress causes of action stated in plaintiff’s complaint accrued more than six months before his claim was filed. The City further asserts that plaintiff’s application to file a late claim was also untimely. Plaintiff responds that under the delayed discovery rule his causes of action did not accrue until he received the “apology letter” from the Chief of Police on January 15, 2009, and therefore his claim was “timely filed” less than two weeks later.
“Under section 911.2, ‘[a] claim relating to a cause of action for death or for injury to person or to personal property... shall be presented as provided in Article 2 (commencing with Section 915) of this chapter not later than six months after the accrual of the cause of action.’ Section 945.4 then provides that ‘no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.’ (Italics added.) Thus, under these statutes, failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.” (State of California v. Superior Court 32 Cal.4th 1234, 1239, fn. omitted (Bodde).) “No action for money damages may be brought against a public entity unless a written claim has been presented to the entity and acted upon, or relief is granted from the claims requirements.” (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 508 (V.C.).)
“[F]ailure 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.” (Bodde, supra, 32 Cal.4th 1234, 1239.) The California Supreme Court has definitively declared: “Timely claim presentation is not merely a procedural requirement, but is, as this court long ago concluded, ‘ “ ‘a condition precedent to plaintiff’s maintaining an action against defendant’ ” ’ [citations], and thus an element of the plaintiff’s cause of action. [Citation.] Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action.” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.)
Our writ review of an order overruling a demurrer is governed by “the ordinary standards of demurrer review....” (City of Stockton v. Superior Court, supra, 42 Cal.4th 730, 747.) “[R]eview [of] the complaint [is] de novo to determine whether it contains sufficient facts to state a cause of action.” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1589.) We give the pleading “ ‘a reasonable interpretation, reading it as a whole and its parts in their context’ ” (Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1041), “accept as true all properly pleaded material facts, as well as facts that may be implied from the properly pleaded facts [citation], and... also consider matters that may be judicially noticed, ” but “do not assume the truth of contentions, deductions or conclusions of fact or law.” (Peterson, supra, at p. 1589; see also County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119, 125–126; Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 373–374.)
As with many statute of limitations disputes, the date of accrual of plaintiff’s causes of action is the crucial inquiry before us. “The date of accrual of a cause of action marks the starting point for calculating the claims presentation period. [Citations.]” (V.C., supra, 139 Cal.App.4th 499, 508.) “ ‘A cause of action accrues for purposes of the filing requirements of the Tort Claims Act on the same date a similar action against a nonpublic entity would be deemed to accrue for purposes of applying the relevant statute of limitations.’ [Citations.]” (Ibid.)
“ ‘ “Generally, a cause of action accrues and the statute of limitation begins to run when a suit may be maintained.... ‘Ordinarily this is when the wrongful act is done and the obligation or the liability arises, but it does not “accrue until the party owning it is entitled to begin and prosecute an action thereon.” ’... In other words, ‘[a] cause of action accrues “upon the occurrence of the last element essential to the cause of action.” ’ ” ’ [Citations.]” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 316–317.) “In tort actions, the statute of limitations commences when the last element essential to a cause of action occurs. [Citations.] The statute of limitations does not begin to run and no cause of action accrues in a tort action until damage has occurred. [Citation.] If the last element of the cause of action to occur is damage, the statute of limitations begins to run on the occurrence of ‘appreciable and actual harm, however uncertain in amount, ’ that consists of more than nominal damages. [Citations.] ‘... [O]nce plaintiff has suffered actual and appreciable harm, neither the speculative nor uncertain character of damages nor the difficulty of proof will toll the period of limitation.’ [Citations.]” (San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1326.)
“The common law delayed discovery rule is an exception to the general rule and provides that a cause of action does not accrue until a plaintiff discovers, or reasonably should discover, the cause of action. ‘A plaintiff has reason to discover a cause of action when he or she “has reason at least to suspect a factual basis for its elements.” [Citations.]’ [Citation.] The elements that the plaintiff must suspect are the generic elements of wrongdoing, causation, and harm. [Citation.] A plaintiff who suspects that he or she has suffered an injury caused by the wrongdoing of another is charged with the knowledge that a reasonable investigation would reveal, and the limitations period begins to run at that time.” (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 66, fn. omitted (Ovando).)
By October of 2007, McMillin had been arrested and a criminal complaint against him had been filed, all based on the police report he ultimately claimed was inaccurate and incomplete. In December of 2007, he was ordered to surrender his weapons in response to the charges. Although McMillin did not suffer a conviction until he entered a plea of no contest to a charge of disturbing the peace (Pen. Code, § 415) on August 4, 2008, long before that date he suffered harm, even if uncertain in extent, when he was arrested and charged. He incurred additional appreciable and actual damages by no later than the order to surrender his weapons, which he specifically alleged resulted in a loss of income. All of the elements of plaintiff’s action, wrongdoing, causation, and alleged damages, occurred by no later than December of 2007.
Plaintiff insists that in accordance with the discovery rule, the accrual date of his action was delayed until he received a response to his citizen’s complaint on January 15, 2009, which he characterizes as the “last incident” in “this series of events.” The letter of apology may have reinforced or confirmed plaintiff’s perception that a negligent police investigation was performed, but it did not furnish him with awareness of the factual basis for the elements his action. Long before that, when plaintiff was charged with crimes that stemmed from the October 2006 incident, he should have realized or at minimum speculated that the charges were based on the police report. “The statute of limitations begins to run when the plaintiff suspects or should suspect that his or her injury was caused by wrongdoing-when the plaintiff has notice of information or circumstances that would put a reasonable person on inquiry. The plaintiff need not be aware of the specific facts necessary to establish the claim-these facts can be determined during pretrial discovery. Once a plaintiff suspects wrongdoing and therefore has an incentive to sue, he or she must decide whether to file suit or sit on his or her rights. When a suspicion exists, the plaintiff must go find the facts; he or she cannot wait for the facts to find him or her.” (San Francisco Unified School Dist. v. W.R. Grace & Co., supra, 37 Cal.App.4th 1318, 1326–1327.) Upon his arrest, plaintiff had ample reason to suspect that the police report played a role in the criminal accusations filed against him, and thus must be charged with knowledge of the contents of the report. “ ‘A plaintiff is charged with “presumptive” knowledge so as to commence the running of the statute once he or she has “ ‘notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation....’ ” [Citations.]’ [Citation.]” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 980.) The discovery rule does not extend the accrual date of the six-month tort claims statute of limitations in the present case. (See Ovando, supra, 159 Cal.App.4th 42, 69.) Therefore, plaintiff’s causes of action accrued by December of 2007, and his claim was filed more than six months thereafter in January of 2009. The failure of plaintiff to plead the essential element of a timely filed claim bars his action and subjects the complaint to general demurrer. (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119.)
Although neither the complaint nor any attachments state precisely when defendant was provided with the police report, we note that at a criminal defendant’s first court appearance with counsel among other safeguards, the prosecutor must allow the defendant to inspect and copy all police, arrest and crime reports, to the extent not otherwise privileged. (See Pen. Code, § 859; Holman v. Superior Court (1981) 29 Cal.3d 480, 483; People v. Aguirre (1987) 193 Cal.App.3d 1168, 1172–1173.)
DISPOSITION
Let a peremptory writ of mandate issue, commanding the San Mateo County Superior Court to set aside that portion of its order filed February 19, 2010, overruling the demurrer to the first, fifth and sixth causes of action in the first amended complaint filed in McMillin v. City of Foster City (No. Civ. 487543), and to instead sustain the demurrer in its entirety without leave to amend.
The parties shall bear their own costs.
We concur: Margulies, Acting P. J. Banke, J.
City of Foster City v. San Mateo County Superior Court; McMillin, RPI, A128287