Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC338149, Irving S. Feffer, Judge.
Rehm & Rogari and Joanna Rehm for Plaintiff and Appellant.
Lawrence Beach Allen & Choi, Jin S. Choi and Scott E. Caron for Defendants and Respondents County of Los Angeles and Curt Henderson.
DOI TODD, Acting P. J.
Plaintiff and appellant Patrik L. de Soet appeals from a judgment entered in favor of defendants and respondents the County of Los Angeles, Michael A. Fishman, Curt Henderson and Terry Richardson (sometimes collectively defendants) following the trial court’s sustaining a demurrer without leave to amend as to two causes of action and entering summary judgment on the remaining cause of action. Appellant’s claims for false imprisonment, civil rights violations and negligence followed his arrest for alleged elder abuse (Pen. Code, § 368) and the subsequent dismissal of the charge. We conclude the trial court properly granted summary judgment on the cause of action for false imprisonment, as the undisputed evidence established probable cause for the arrest as a matter of law. The trial court also properly sustained the demurrer without leave to amend. Appellant’s cause of action alleging a violation of Title 42 United States Code section 1983 was time-barred, and appellant’s failure to allege the existence of a statutory duty and to comply with the Tort Claims Act (Gov. Code, § 810 et seq.) were equally fatal to his negligence claim. Accordingly, we find no basis to disturb the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts relating to appellant’s first cause of action are taken from the evidence in support of and opposition to defendants’ motion for summary judgment, while the facts relating to the second and third causes of action are taken from the operative complaint.
Facts Leading to Elder Abuse Allegations Against Appellant.
In December 1993, appellant immigrated to the United States on a 10-year visa. In February 1994, while he was in his late thirties, he met Androneke Kerr, who was approximately 70 years old at the time and whose husband had passed away approximately one year earlier. Appellant and Kerr developed a personal relationship and he began spending a significant amount of time at her home. According to appellant, Kerr told him that her family was trying to hurt her and put her in a mental institution.
In January 1995, Kerr executed a quitclaim deed to her home in favor of appellant. According to appellant, Kerr did so to protect the house and keep it away from her children, daughters Alexia Cirino and Katina Nichols. Approximately two years later, in December 1997, Kerr executed a durable power of attorney for health care also in favor of appellant.
Throughout 1998, appellant regularly had his mail delivered to Kerr’s home, was insured on her automobile insurance policy, formed a joint bank account with her and made decisions regarding her health care and nursing care. In November 1998, Kerr had a stroke. At some point during their relationship, appellant began living at Kerr’s home.
Between August 1998 and April 1999, Los Angeles County Adult Protective Services (APS) received six reports of suspected elder abuse and/or negligent care by appellant relating to Kerr. These reports included an August 23, 1998 report by Kerr’s sister, Ethelia Siemans, that Kerr told her she had been neglected, left alone and abused by appellant; an October 16, 1998 report by Susan Cassara of Whittier Hospital who stated that Kerr appeared thin and was bruised; a November 3, 1998 report by Joan Berry of Berryman Health Center West that Kerr appeared at the hospital bruised, dehydrated and nonresponsive; a November 17, 1998 report by Nancy Lundberg of Friendly Hills Hospital that Kerr appeared malnourished and appellant was uncooperative with the hospital staff providing nursing care for Kerr; a December 30, 1998 report by Martha Davila that appellant was angry with the medical staff, had removed Kerr from 24-hour care against medical advice and had demanded that Kerr’s family be kept away from her; and an April 12, 1999 report by Dr. Maurice Vincent that appellant had refused proper medical care for Kerr and had threatened Kerr’s home health care nurse with a gun.
An August 1998 report by APS social worker Armando Lopez indicated that Kerr was receiving adequate care. In January 1999, APS social worker Kelly Heyward visited Kerr after receiving the December 30, 1998 report of suspected elder abuse. At that point, although Kerr was thin and slightly dehydrated, she appeared alert and oriented, and said that appellant took wonderful care of her. Between January and April 1999, Heyward did not receive any reports about suspected elder abuse of Kerr. Nonetheless, she kept in touch with Kerr’s home health care providers who stated they and Kerr were fearful of appellant.
Between April 12 and 14, 1999, Heyward spoke with a physician and nursing supervisor treating Kerr, both of whom expressed concern about appellant’s refusing medical care for Kerr and threatening another individual. On April 15, 1999, Heyward, accompanied by two Los Angeles County Sheriff’s Department (Sheriff’s Department) deputy sheriffs, went to Kerr’s home to conduct a welfare check. Kerr did not exhibit outward signs of physical violence. Kerr told Heyward that she was miserable and that, even though she was unable to walk, appellant would leave her alone for hours or days at a time, sometimes without food or water. She also told Heyward that once during the past week she had fallen when appellant was away. When appellant returned and saw Kerr on the floor, he became angry and left her on the floor to teach her a lesson; he picked her up and threw her on the bed a few hours later. Appellant denied the incident, but later conceded that Kerr had fallen. Kerr also told Heyward that she was a prisoner in her own home and that she did not want appellant controlling her life. Kerr explained that appellant had isolated her from her family. She requested that she be transported to the hospital for treatment, and the deputies called for an ambulance to take her to Placentia Linda Hospital. Kerr had no contact with appellant after April 15, 1999.
In a follow-up interview of Kerr conducted by Sheriff’s Department Detective Jonna Wiltshire, Kerr stated that appellant had resided with her since 1994. In 1998, after Kerr had two strokes, appellant prevented her from obtaining adequate medical care and mistreated her while she was incapacitated. By way of example, Kerr stated that appellant would leave her alone for long periods of time, deliberately placing the telephone out of her reach and failing to leave her with food or water. She also stated that on one occasion in October 1998 appellant had grabbed her left wrist so hard that he punctured her skin and that on two occasions thereafter appellant picked her up and threw her so hard that she injured her knee.
In May 1999, Detective Wiltshire also interviewed Kerr’s daughter Cirino, Heyward and Kerr’s home health care physical therapist. Cirino told Wiltshire that she and her husband had been unable to visit Kerr between December 1998 and April 1999 due to criminal and civil lawsuits brought by appellant. When Cirino finally saw Kerr in April 1999, Kerr appeared emaciated and weighed only 80 pounds instead of her normal 120 to 140 pounds. Heyward informed Wiltshire about the prior reports to APS as well as her observations during her own investigation.
Thereafter, Cirino initiated conservatorship proceedings and the court appointed her as Kerr’s conservator in July 1999. Cirino also initiated a civil action against appellant to regain title to Kerr’s home. In view of the conservatorship and the inception of the criminal investigation, APS ceased any investigation of appellant.
The Criminal Proceedings.
In late January 2000, Sheriff’s Department Detective Curt Henderson was assigned to investigate the matter. He reviewed the information obtained by the Sheriff’s Department, including reports by Wiltshire and APS. In February 2000, Detective Henderson conducted his own interview of Cirino, at which point Cirino added that appellant had been responsible for Kerr’s care at the time of the APS complaints and that he had convinced Kerr to obtain a restraining order against her daughters. She also stated that Kerr had approximately $38,000 in savings when she met appellant, but that she had only $1,300 as of December 1999. Detective Henderson also had a telephone conversation with appellant, during which time he explained that Kerr’s family were really the abusers.
Between February 2000 and December 2001, Detective Henderson obtained several search warrants for Kerr’s medical and financial records and APS notes. He learned of the power Kerr had given appellant over her affairs, confirmed that the suspected elder abuse reports occurred while appellant was caring for Kerr, considered Kerr’s statements to Wiltshire and Heyward about appellant’s abuse, which were corroborated by physical therapist Victoria Alexanian, and further learned that Kerr had given sums of money to appellant for unspecified reasons. On the basis of his investigation, Detective Henderson determined that there was probable cause to arrest appellant for elder abuse. He presented the matter to the Los Angeles County District Attorney’s Office for filing consideration and the case was assigned to Deputy District Attorney Michael Fishman, who advised that further investigation was necessary.
In May 2002, Detective Henderson interviewed both Dr. Stephen Read, who had been retained to evaluate Kerr’s capacity for the purpose of the conservatorship proceedings, and Alexanian, Kerr’s former physical therapist. Dr. Read stated that he met with Kerr four to five times between May 1999 and May 2002. He noted that Kerr had been diagnosed as manic depressive with a bipolar disorder, and that her strokes in 1998 had caused a loss of reasoning and memory as well as vascular dementia. He further stated that appellant resembled Kerr’s husband as a young man, which played an important part in Kerr’s attachment to him. In abuse cases, Dr. Read explained that it is not uncommon for the perpetrator to remove and isolate the victim from others. Alexanian told Detective Henderson that she observed appellant failing to provide Kerr with sufficient liquids to keep her hydrated, and grabbing and dragging appellant throughout the house; she also observed Kerr lose approximately 10 to 15 pounds during that same time period. Alexanian also provided details about two instances when appellant became angry with her—once when he telephoned her after finding Kerr on the floor, and once when she arrived late and appellant pointed to an actual gun on a counter and then shaped his hand into a gun pointing at her.
Detective Henderson, together with Fishman, also interviewed APS social worker Lopez who had made an unscheduled visit to Kerr’s home in August 1998 following a report of suspected elder abuse. He stated that although he received additional reports of suspected elder abuse, he found Kerr’s hygiene and living conditions adequate when he visited both in August 1998 and later in November 1998. The same day, Detective Henderson interviewed Siemans, Kerr’s sister, who stated that appellant had lived with Kerr since 1994 and had tried to isolate Kerr from her family and friends. Siemans also said that Kerr had telephoned her in late 1998 after her strokes, stating that she was in pain and needed help, but did not want to get caught by appellant doing something she was not supposed to be doing. Kerr called her on another occasion, stating she had to crawl on the floor to get to the telephone and that she was fearful of appellant.
Though Detective Henderson knew that Kerr had previously filed a restraining order against her daughters and that the daughters had initiated litigation against appellant regarding the quitclaim deed, he did not seek to obtain records related to those proceedings. He also knew that in 1995 Kerr had stated that her family was trying to take her money. Nonetheless, at the time of his investigation, he believed the daughters were primarily concerned with stopping the abuse of their mother. Detective Henderson also had access to medical records that indicated as early as 1997 Kerr was in pain and had lost weight. But he did not consider those records relevant, as his investigation focused on appellant’s alleged physical abuse of Kerr after her strokes in 1998; before that time it appeared to him that appellant had financially abused her.
On July 16, 2002, Detective Henderson and Fishman interviewed Kerr at her convalescent home. They quickly realized that Kerr did not have the mental capacity at that time to discuss her relationship with appellant; she was distracted and disoriented as to time, and did not recall any details of appellant’s care. On the basis of the information gleaned during the investigation—including the contents of various reports, previous statements made by Kerr and other witnesses, medical and financial records and his personal observations of Kerr—Detective Henderson concluded there was probable cause to arrest appellant. This time, Fishman concurred and filed a one-count criminal complaint against appellant on November 6, 2002. Appellant was arrested on November 7, 2002 for a violation of Penal Code section 368, subdivision (b)(1) (elder abuse). Following arraignment, he was released on bail in January 2003.
While appellant was in jail, he observed urine and feces on the floor, large cockroaches on the beds and large rats in the area at night. He developed a throat and eye infection causing bleeding and ultimately blindness in his left eye, and also received scars on his feet. Appellant further alleged that he “was denied treatment in jail and was offered treatment by jail officials if he would give oral sex to the sheriff.”
Sometime thereafter, appellant’s criminal attorney, Ira Saltzman, provided Fishman with medical records as well as a report from Dr. Lester Zackler in which he opined that Kerr’s emaciated condition may have been caused by lithium toxicity and not physical abuse. Fishman and an investigator from the district attorney’s office, Terry Richardson, interviewed Dr. Zackler in December 2003; Dr. Zackler reiterated the opinion expressed in his report.
In July 2004, Fishman dismissed the criminal complaint against appellant pursuant to Penal Code section 1385 for several reasons, including that Kerr was unable to testify intelligently and accurately about the allegations against appellant, that the credibility of Kerr’s daughter might be challenged due to the personal animus and civil actions between appellant and her, and that Dr. Zackler’s assertion lithium toxicity could have caused Kerr’s physical condition might have a significant potential impact. Fishman believed that these factors in combination would make it difficult to prove the allegations against appellant beyond a reasonable doubt.
In January 2005, appellant submitted a claim for damages to the County of Los Angeles (County) in accordance with Government Code section 911.2. On the standardized form, appellant described that his damage or injury occurred as follows: “I was falsely incarcerated[.] Authorities orchestrated false accusations against me. After I came out on bail DA took almost 2 years to dismiss. Health[,] financial damages.” In response to the question why he claimed the County was responsible, appellant wrote: “I was falsely incarcerated. Malicious prosecution. Severe physical & financial damage.” On the claim form, he also noted that as a result of his injury he visited a physician while in jail.
Pleadings and Motions in the Instant Action.
Appellant filed his original complaint in August 2005, which alleged causes of action for false imprisonment, malicious prosecution, abuse of process, failure to provide medical treatment in violation of Title 42 United States Code section 1983 (section 1983) and Government Code section 845.6, and negligence against the County, Fishman, Richardson and Detective Henderson. The trial court sustained in part and overruled in part defendants’ initial demurrer, and granted appellant leave to amend. Appellant’s first amended complaint, filed in January 2006, alleged the same causes of action with the exception of the Government Code claim for failure to provide medical treatment. Defendants again demurred, and the trial court again sustained in part and overruled in part the demurrer, with leave to amend. Appellant’s second amended complaint, filed in April 2006, alleged only three causes of action for false imprisonment, violation of section 1983 and negligence. This time, defendants moved for judgment on the pleadings as to the negligence cause of action on the grounds that appellant had failed to identify a statutory basis for the allegation and that appellant’s government tort claim did not adequately describe the cause of action. The trial court granted the motion with leave to amend.
Appellant’s operative third amended complaint (Complaint) alleged three causes of action: false imprisonment, violation of section 1983 and negligence. Appellant alleged that he was arrested without probable cause on the basis of a biased and flawed investigation which included defendants’ ignoring favorable, exculpatory evidence. He further alleged that he suffered permanent injury while incarcerated, and that defendants had a policy, practice and/or custom of deliberate indifference to the conditions in jail and resulting medical problems. Finally, appellant alleged that defendants breached the mandatory duty they owed him pursuant to Government Code section 815.6. Appellant sought general and punitive damages.
Defendants demurred to the Complaint on multiple grounds, including prosecutorial immunity, the absence of any statutory duty and the failure to submit an adequate government tort claim. Appellant opposed the demurrer, asserting that his claims fell outside the protections of statutory immunity and that, in any event, defendants were protected only by qualified immunity, and that he adequately alleged a mandatory duty. The trial court sustained the demurrer without leave to amend as to the section 1983 and negligence claims.
Thereafter, defendants answered and moved for summary judgment on the Complaint’s remaining cause of action for false imprisonment. They contended the undisputed evidence established probable cause for appellant’s arrest and, alternatively, his claim was barred by Government Code sections 820.2 and 821.6.
Appellant opposed the motion, asserting that Detective Henderson ignored and suppressed exculpatory evidence that would have negated a finding of probable cause to arrest. He offered deposition excerpts, reports by law enforcement, pleadings and transcripts from other proceedings and Kerr’s medical records in support of his opposition. Defendants filed evidentiary objections to significant portions of appellant’s evidence.
Following a March 19, 2007 hearing, the trial court denied the motion, finding that the Government Code did not provide immunity for the false imprisonment claim and that triable issues of facts existed regarding probable cause. The trial court sustained the majority of defendants’ evidentiary objections.
Thereafter, the County and Detective Henderson petitioned this court for a writ of mandate or prohibition to vacate the order denying summary judgment. In June 2007, we issued a Palma notice to the trial court, indicating that we were considering issuing a peremptory writ of mandate in the first instance on the grounds that the undisputed evidence offered on summary judgment appeared to establish probable cause to arrest, thereby entitling Detective Henderson to immunity for appellant’s arrest pursuant to Penal Code section 847. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180.) In response, the trial court vacated its prior order and issued a new order granting summary judgment on the remaining cause of action. It thereafter entered judgment on the Complaint in favor of defendants and we dismissed the petition for writ of mandate. This appeal followed.
DISCUSSION
I. The Trial Court Properly Granted Summary Judgment on the False Imprisonment Cause of Action.
A. Standard of Review.
We review a grant of summary judgment de novo. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843–857.) The general rule is that summary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....” (Code Civ. Proc., § 437c, subd. (c).) We consider “‘all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.’” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) “In independently reviewing a motion for summary judgment, we apply the same three-step analysis used by the superior court. We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent’s claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) If there is no triable issue of material fact, “we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court or first addressed on appeal.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.) We apply an abuse of discretion standard to evidentiary rulings challenged on appeal. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139–140, fn. 3; Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.)
B. The Trial Court Did Not Abuse its Discretion in Sustaining Objections to Two of Appellant’s Exhibits.
Though the trial court sustained objections to most of appellant’s evidence, appellant challenges just two of those rulings on appeal. We find no merit to either challenge.
First, appellant contends that the trial court abused its discretion in sustaining defendants’ objection to exhibit G, a copy of Dr. Read’s June 1999 report prepared following his evaluation of Kerr for the purpose of the conservatorship proceedings. Defendants contended that the report, attached to counsel’s declaration, was not properly authenticated. To be admissible, documentary evidence must be authenticated, even if it was produced in discovery by the opposing party. (Evid. Code, § 1401, subd. (a); see also Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1238.) In the summary judgment context, this may be accomplished by a declaration setting forth the foundation on personal knowledge. (See Code Civ. Proc., § 437c, subd. (d).) Implicitly conceding that counsel’s declaration was inadequate, appellant asserts that Detective Henderson’s declaration provided adequate authentication. But contrary to appellant’s assertion, Detective Henderson did not declare he relied on or even read the report as part of his probable cause determination. Moreover, the report was not attached to his declaration. Rather, he declared only that Dr. Read reviewed the report and verified its accuracy before speaking with him. Under these circumstances, the trial court properly exercised its discretion in sustaining defendants’ objection to the report.
Second, appellant contends the trial court abused its discretion in sustaining a hearsay objection to exhibit O, a transcript of the June 1996 proceedings in which Kerr sought a temporary restraining order against her daughters. We find no error, as contrary to appellant’s urging, the transcript did not fall within Evidence Code section 1292 as an exception to the hearsay rule. Kerr’s statements during the proceedings were not made under oath and thus did not qualify as “former testimony” under the Evidence Code. (Evid. Code, § 1290.) Moreover, defendants neither had the right nor the opportunity to cross-examine Kerr at the hearing, and their motives were not similar to those present at the hearing. (See Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688, 694 [rejecting the view that trial testimony from another trial and declarations on summary judgment were the same, explaining that in enacting Evidence Code section 1292 “[o]ur Legislature has given this careful consideration and decided otherwise, mandating both unavailability, to ensure necessity, and a similar interest and motive in the prior proceeding, to ensure fairness”].) Because appellant failed to demonstrate that exhibit O was subject to a statutory exception to the hearsay rule, the trial court properly sustained defendants’ objection.
Evidence Code section 1292, subdivision (a) provides: “Evidence of former testimony is not made inadmissible by the hearsay rule if: [¶] (1) The declarant is unavailable as a witness; [¶] (2) The former testimony is offered in a civil action; and [¶] (3) The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing.”
C. The Trial Court Properly Determined There Was No Triable Issue of Material Fact on the Question of Probable Cause.
Appellant based his false imprisonment claim on his November 2002 arrest and resulting two-month incarceration, alleging that his arrest was made without probable cause and was the result of a flawed and biased investigation. Under California law, a law enforcement officer is not immune from liability for false arrest and imprisonment. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 753, 757.) But if an arrest is “lawful,” there is no civil liability as a matter of law pursuant to Penal Code section 847, subdivision (b). (See O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510–511; Lopez v. City of Oxnard (1989) 207 Cal.App.3d 1, 7–9.)
Defendants moved for summary judgment on the ground that the undisputed evidence established probable cause as a matter of law, thereby precluding liability due to the lawfulness of the arrest. As stated in Penal Code section 847, subdivision (b): “There shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer... acting within the scope of his or her authority, for false arrest or false imprisonment arising out of any arrest under any of the following circumstances: [¶] (1) The arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.” If an individual officer is not liable by reason of Penal Code section 847, the County is likewise immune from liability pursuant to Government Code section 815.2, subdivision (b), which provides that “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (See Arpin v. Santa Clara Valley Transp. Agency (9th Cir. 2001) 261 F.3d 912, 921.)
Though summary judgment was granted in favor of all defendants, Fishman and Richardson do not appear to be parties to this appeal, and appellant has proffered neither argument nor authority suggesting the judgment should be reversed as to those parties. Accordingly, we deem any challenge to the judgment in favor of Fishman and Richardson waived. (E.g., Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)
In our prior order, we agreed with defendants’ position, stating: “It is undisputed that in April 1999, [appellant’s] alleged victim made specific allegations of physical abuse by [appellant] to a Los Angeles County Adult Protective Services social worker and repeated them to Henderson’s predecessor, and that these allegations were corroborated in part by a home health aide. As a matter of law, this evidence establishes probable cause for [appellant’s] arrest and entitles Henderson to immunity under Penal Code section 847, subdivision (a) for [appellant’s] arrest.” Appellant has not persuaded us to reach a different conclusion on appeal.
“An arrest is valid if supported by probable cause. Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime.” (People v. Kraft (2000) 23 Cal.4th 978, 1037; accord, People v. Mower (2002) 28 Cal.4th 457, 473; Johnson v. Lewis (2004) 120 Cal.App.4th 443, 452.) Probable cause is measured by an objective standard. (Johnson v. Lewis, supra, at p. 454; People v. Limon (1993) 17 Cal.App.4th 524, 539.) In determining that information from a private citizen may provide the requisite level of suspicion, the court in People v. Ramey (1976) 16 Cal.3d 263, 269, explained: “It may therefore be stated as a general proposition that private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable.... In short, probable cause will not be provided by conclusionary information or anonymous informants, but neither a previous demonstration of reliability nor subsequent corroboration is ordinarily necessary when witnesses to or victims of criminal activities report their observations in detail to the authorities.” (Fn. omitted; accord, Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045.) An arresting officer may also rely on the observations of officers from other law enforcement agencies to support an arrest (People v. Alcorn (1993) 15 Cal.App.4th 652, 655) as well as law enforcement’s collective knowledge (People v. Gomez (2004) 117 Cal.App.4th 531, 540–541).
“When... the facts known to an officer are sufficient to constitute probable cause to arrest, the possibility of an innocent explanation does not vitiate probable cause and does not render an arrest unlawful.” (Johnson v. Lewis, supra, 120 Cal.App.4th at p. 453.) “[T]he validity of an arrest is measured by whether the facts known to the officer support a reasonable suspicion of criminal activity, not whether the facts are sufficient to convict.” (Ibid.) Probable cause requires sufficient grounds for a strong suspicion, not prima facie evidence of guilt. (People v. Thuss (2003) 107 Cal.App.4th 221, 236; see also Hamilton v. City of San Diego (1990) 217 Cal.App.3d 838, 844 [“‘Probable cause may exist even though there may be some room for doubt”].)
“The existence of probable cause depends upon facts known by the arresting officer at the time of the arrest.” (Hamilton v. City of San Diego, supra, 217 Cal.App.3d at p. 844.) As we recognized earlier, on the basis of the undisputed evidence presented in connection with the summary judgment motion, defendants established the existence of probable cause as a matter of law. To briefly summarize, at the time Fishman concluded there was probable cause to issue a complaint charging that appellant had committed elder abuse against Kerr, Detective Henderson had provided him with the following information: Between August 1998 and April 1999, APS received six reports from different individuals alleging that appellant committed elder abuse and/or neglect of Kerr; Heyward interviewed Kerr in April 1999 and Kerr told her about several specific instances of abuse by appellant; Kerr later told Wiltshire about the same incidents; Kerr’s physical therapist described similar incidents she had witnessed; Kerr’s emaciated physical condition was consistent with neglect; Kerr had been isolated from her family members and they were critical of appellant’s care; appellant had financially benefitted from his relationship with Kerr; and a doctor opined that Kerr was susceptible to becoming attached to appellant and appellant’s actions were consistent with those of an abuser. This evidence was sufficient to provide Detective Henderson with probable cause to arrest appellant for elder abuse. (See, e.g., Wood v. Emmerson (2007) 155 Cal.App.4th 1506, 1526 [officer had probable cause to arrest where he received multiple reports that an individual had been harassing neighbors and the individual’s ex-girlfriend told him the individual had been harassing neighbors and she was afraid he would harass her].)
Though for the most part appellant simply ignores the evidence in addition to Kerr’s statements that supported probable cause, he argues that he established triable issues of fact concerning Heyward’s and Wiltshire’s bias against him and Henderson’s failure to disclose “exculpatory” evidence. With respect to his claim of bias, appellant contends that Heyward’s and Wiltshire’s contact with Kerr’s daughters, as well as their failure to provide further confirming evidence of their conversations with Kerr, such as tape recordings or videotapes, demonstrated the questionable nature of their information. Appellant hypothesizes that Heyward and Wiltshire were conspiring with Kerr’s daughters, who were upset about appellant’s financial and emotional relationship with Kerr.
Appellant’s suggestion of bias failed to create a triable issue of fact. “A party cannot avoid summary judgment based on mere speculation and conjecture [citation], but instead must produce admissible evidence raising a triable issue of fact. [Citation.]” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524; see also Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 [“[A]n issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture”].) Appellant offered only argument—not evidence—on summary judgment to support his bias theory. But even if he had offered some evidence of bias, it would have been insufficient to create a triable issue of fact given the undisputed evidence supporting an objective determination of probable cause. “Probable cause is measured by an objective rather than subjective standard. [Citation.] Where... an officer has probable cause to make an arrest, we will not inquire into his subjective motivations. [Citation.]” (Johnson v. Lewis, supra, 120 Cal.App.4th at p. 454; accord, Gillan v. City of San Marino, supra, 147 Cal.App.4th at p. 1045 [“Probable cause is measured by an objective standard based on the information known to the arresting officer, rather than a subjective standard that would take into account the arresting officer’s actual motivations or beliefs”]; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1266 [“the traditional probable cause test under the Fourth Amendment has no subjective intent element which must be satisfied to validate an arrest”].) Inasmuch as our conclusion that probable cause existed as a matter of law is based on the evidence concerning the circumstances under which Fishman determined that a complaint should issue, rather than Detective Henderson’s or Fishman’s state of mind, any evidence of improper motivation or bias provides no basis for denying summary judgment.
Likewise, appellant’s contention that Detective Henderson omitted material information in his report to Fishman failed to establish the existence of a triable issue of fact. Where a law enforcement officer withholds evidence tending to exculpate the arrestee, such conduct may amount to malice sufficient to overcome a conditional immunity which attaches to arrests with warrants. (See Laible v. Superior Court (1984) 157 Cal.App.3d 44, 53; see also People v. Madden (1970) 2 Cal.3d 1017, 1021 [courts do not “permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer”].) A close examination of appellant’s evidence submitted in opposition to the summary judgment motion, however, fails to demonstrate that Detective Henderson omitted any material information. Rather, appellant established, at best, that Detective Henderson failed to conduct a more thorough investigation once he received information sufficient to establish probable cause.
For example, Detective Henderson disclosed that Kerr had obtained a restraining order against her daughters. He also confirmed that APS reports were in conflict, as social worker Lopez had not seen any cause for concern when he visited Kerr. Moreover, APS records and Detective Henderson’s reports plainly disclosed that Cirino had been in constant contact with all those investigating the elder abuse allegations. Nonetheless, Detective Henderson admitted in his deposition that there were sources of information he had not pursued, stating he did not attempt to obtain medical records or interview medical personnel from certain facilities where Kerr had stayed. Nor did he follow up on the outcome of a criminal complaint that appellant had filed against Kerr’s daughters in 1995 or 1996 concerning a theft occurring at Kerr’s home.
Under these circumstances, we are guided by Hamilton v. City of San Diego, supra, 217 Cal.App.3d 838. There, the plaintiffs were arrested and booked on robbery charges after a police officer interviewed the victim and found her credible. According to the victim restaurant owner, the plaintiffs had robbed her at gunpoint; the plaintiffs contended to the contrary that they had refused to pay for inedible food. After the criminal charges were dismissed, the plaintiffs brought an action against the city and certain police officers alleging, in part, a claim for false arrest and imprisonment. At trial, the plaintiffs presented evidence that the victim had involved the police when other patrons had similarly refused to pay. (Id. at pp. 841–842.) Reversing the trial court’s denial of a motion for nonsuit, the court stated: “In our view once probable cause for the Hamiltons’ arrest existed, any nonfeasance Officer Martinez may have been guilty of in investigating the crime did not alter the protection provided by Penal Code section 847.” (Id. at p. 844.) The court elaborated that, pursuant to Penal Code section 847, “we find no duty of further investigation once probable cause has been established.” (Hamilton v. City of San Diego, supra, at p. 846, fn. omitted.) Noting that any liability against the city or the officer would need to be based on more than nonfeasance, the court concluded that the officer’s failure to investigate to confirm the plaintiffs’ version of the events amounted only to a lack of diligence and not affirmative misconduct giving rise to liability. (Id. at pp. 846–847.)
Similarly, given that the undisputed evidence established probable cause to arrest appellant for elder abuse, a triable issue of fact was not created by evidence tending to show that Detective Henderson failed to investigate further to confirm appellant’s assertion that Kerr’s condition resulted from other means. In the case on which appellant relies, DeLoach v. Bevers (10th Cir. 1990) 922 F.2d 618, 621–622, the officer did not merely fail to investigate, but rather, recklessly and possibly deliberately excluded portions of an expert’s opinion that tended to exculpate the plaintiff and would have vitiated a finding of probable cause if included. Here, in contrast, any lack of investigation did not alter the protections afforded by Penal Code section 847. (Hamilton v. City of San Diego, supra, 217 Cal.App.3d at p. 844.) Summary judgment was properly granted.
II. The Trial Court Properly Sustained the Demurrer Without Leave to Amend as to the Federal Civil Rights and Negligence Causes of Action.
A. Standard of Review.
A demurrer tests the sufficiency of the plaintiff’s claims as a matter of law. (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43–44.) We review de novo the ruling on the demurrer, exercising our independent judgment to determine whether a cause of action has been stated. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.) We accept as true the properly pleaded allegations of facts in the complaint, but not the contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We do not, however, assume the truth of the legal contentions, deductions or conclusions; questions of law, such as the interpretation of a statute, are reviewed de novo.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 373.) If no liability exists as a matter of law, we must affirm the judgment. (Traders Sports, Inc. v. City of San Leandro, supra, at pp. 43–44.)
We apply the abuse of discretion standard in reviewing the trial court’s denial of leave to amend. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497–1498.) Appellant bears the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (Blank v. Kirwan, supra, at p. 318; Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020.)
B. Appellant’s Section 1983 Cause of Action was Time-Barred.
In ruling on the demurrer to the Complaint in connection with appellant’s section 1983 claim, the trial court directly addressed only the allegations concerning the investigation, arrest and prosecution of appellant. It appears the reason for this was defendants’ failure to direct their demurrer to the balance of appellant’s allegations relating to jail conditions and the failure to provide medical treatment. On appeal, appellant does not challenge the trial court’s order to the extent it barred claims relating to his arrest and prosecution on the ground of prosecutorial immunity. Rather, appellant’s arguments are directed solely to the remainder of the section 1983 cause of action alleging that he was denied medical treatment unless he provided an unnamed sheriff with oral sex and that defendants were aware of the unsanitary and infectious conditions in the jail and maintained a policy of deliberate indifference to those conditions. Appellant asserts that the two-year limitations period on his section 1983 claim was tolled pursuant to Government Code section 945.3.
The trial court initially sustained the demurrer with leave to amend to the section 1983 claim on the ground that it appeared to be time-barred. But the trial court later overruled the demurrer to the section 1983 claim alleged in the first amended complaint on the ground that appellant raised the issue of tolling and defendants failed to respond. Notwithstanding its prior rulings, the trial court then sustained the demurrer to the Complaint’s section 1983 claim without leave to amend without any discussion of the limitations period or whether it was tolled.
Mindful of the principle that we can affirm an order sustaining a demurrer on grounds first raised on appeal, we conclude that the Complaint, on its face, demonstrates that appellant’s section 1983 claim was barred by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1. (E.g., Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 302 [“‘An appellate court may... consider new theories on appeal from the sustaining of a demurrer to challenge or justify the ruling’”]; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880, fn. 10 [appellate “court will still affirm the demurrers even if the trial court relied on an improper ground, whether or not the defendants asserted the proper ground in the trial court”].)
According to the Complaint, appellant alleged that he was held in county jail from November 7, 2002 to January 7, 2003. During that time, he endured “widespread unsanitary, inhumane, infectious conditions occurring in the jails including feces and urine on the floor, large rats and cockroaches all over” which caused him medical problems. He further alleged that defendants were aware of these conditions, but maintained a practice, policy and/or custom of deliberate indifference to the conditions and the resulting medical problems they caused. Finally, he alleged that he was denied medical treatment and, as a result, suffered severe and permanent physical and emotional injuries. He alleged that this conduct violated his civil rights under the Eighth and Fourteenth Amendments to the Constitution.
Although a pretrial detainee is not protected by the Eighth Amendment’s prohibition against cruel and unusual punishment, he may allege a section 1983 claim for a Fourteenth Amendment due process violation arising from the conditions of confinement by pleading facts showing that he was subjected to jail conditions which were not reasonably related to a legitimate governmental objective. (See Bell v. Wolfish (1979) 441 U.S. 520, 539.)
Federal statutes provide no limitations period for civil rights claims. Therefore, the statute of limitations applicable to a state law personal injury action governs claims brought under section 1983. (Wilson v. Garcia (1985) 471 U.S. 261, 270 [state law governs length of limitations period for section 1983 claims].) As a result, California’s two-year personal injury statute of limitations, Code of Civil Procedure section 335.1, is generally applicable to claims brought under section 1983. (Taylor v. Regents of University of California (9th Cir. 1993) 993 F.2d 710, 711; City of Huntington Park v. Superior Court (1995) 34 Cal.App.4th 1293, 1297; see also 2 Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2007) ¶ 5:125, p. 5–97 [California’s two-year statute ordinarily applies to civil rights actions].) The two-year limitations period, enlarged from one year effective January 1, 2003, applies to the entirety of appellant’s claim. (See Andonagui v. May Dept. Stores Co. (2005) 128 Cal.App.4th 435, 440 [“A new statute that enlarges a statutory limitations period applies to actions that are not already barred by the original limitations period at the time the new statute goes into effect”].)
Appellant did not file his original complaint until August 11, 2005. On its face, therefore, appellant’s section 1983 claim was brought beyond the two-year limitations period. Appellant asserts that Government Code section 945.3 operated to toll the limitations period until July 16, 2004, when the charges against him were dismissed. We disagree. Government Code section 945.3 states in relevant part: “No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while charges against the accused are pending before a superior court.” This provision is inapplicable here because appellant’s allegations concerning jail conditions and denial of medical treatment were not “based upon [the] conduct of the peace officer relating to the offense for which [appellant was] charged....” (Gov. Code, § 945.3.)
These circumstances may be analogized to those in Torres v. City of Santa Ana (9th Cir. 1997) 108 F.3d 224, where the court dismissed the plaintiff’s section 1983 claim as time-barred. The plaintiff brought a complaint alleging civil rights violations that occurred when he was arrested in March 1994. He was subsequently arraigned and sentenced for a probation violation arising out of a 1991 conviction. (Torres v. City of Santa Ana, supra, at pp. 225–226.) Though the plaintiff filed his complaint beyond the limitations period, he argued the period was tolled between the time he was charged with the probation violation and sentenced. The court disagreed, explaining “[t]he statute of limitations on Torres’s civil complaint is tolled by the petition for arraignment on probation violation only if the misconduct alleged by his complaint is related to the offense charged by the petition.” (Id. at p. 227.) It reasoned that the plaintiff’s section 1983 complaint was not related to the petition for arraignment because his probation pertained to his 1991 robbery conviction—not to his 1994 arrest. (Torres v. City of Santa Ana, supra, at p. 228.) Clarifying the necessity of a relationship between the conduct alleged in the civil action and offense for which the accused was charged, the court determined that “[a]lthough the petition was triggered by the arrest upon which Torres’s civil complaint is based, it relates only to Torres’s original conviction for robbery.” (Ibid.) Likewise, although the alleged conditions of appellant’s confinement and denial of medical treatment were triggered by his arrest for elder abuse, such allegations did not relate to the conduct of any peace officer in connection with the offense for which he was charged.
Thus, the demurrer without leave to amend was properly sustained on the second cause of action on the ground it was barred by the applicable statute of limitations.
C. Appellant Failed to Plead That Defendants Owed Him Any Statutory Duty and Failed to Satisfy the Requirements of the Tort Claims Act.
The trial court ruled that appellant’s negligence cause of action failed to state a claim both because he failed to allege the existence of any statutory duty and, to the extent liability was premised on the failure to provide medical treatment, because he failed to specify the factual circumstances surrounding the lack of treatment in his government tort claim. Because appellant failed to allege the statutory basis for his negligence claim—despite being given multiple opportunities to do so—the trial court properly sustained the demurrer without leave to amend.
In his negligence cause of action, appellant alleged that the County and Detective Henderson owed him a mandatory duty pursuant to Government Code section 815.6 and that such duty was imposed by “enactments establishing rights and policies” including the state Constitution and the County’s internal policies and procedures. As summarized in In re Groundwater Cases (2007) 154 Cal.App.4th 659, 689: “A plaintiff seeking to hold a public entity liable under Government Code section 815.6 must specifically identify the statute or regulation alleged to create a mandatory duty. [Citation.].... [¶] To construe a statute as imposing a mandatory duty on a public entity, ‘the mandatory nature of the duty must be phrased in explicit and forceful language.’ [Citation.] ‘It is not enough that some statute contains mandatory language. In order to recover plaintiffs have to show that there is some specific statutory mandate that was violated by the [public entity]....’ [Citation.] Thus, ‘the enactment at issue [must] be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.’ [Citation.] In addition, the enactment allegedly creating the mandatory duty must impose a duty on the specific public entity sought to be held liable. [Citation.]”
Government Code section 815.6 provides: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Plainly, appellant’s vague allegations failed to satisfy these multiple, specific pleading requirements. Nothing in his allegations asserted that any internal policy or procedure, or accepted County practice was an enactment having the force of law that was designed to protect against the risk of the type of injuries claimed to have been suffered by appellant, or that any such injury was caused by defendants’ violation of the enactment. Indeed, no particular policy, procedure or practice was even identified. (See Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 96 [to adequately state a cause of action against a public entity, every fact essential to the existence of the statutory liability must be plead with particularity, and the statute or enactment claimed to establish the duty must at the very least be identified], abrogated on other grounds by Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1138; see also Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802 [“Duty cannot be alleged simply by stating ‘defendant had a duty under the law’; that is a conclusion of law, not an allegation of fact”].) Government Code section 815.6 does not itself establish a duty. Rather, as the court in Davila v. County of Los Angeles (1996) 50 Cal.App.4th 137, 140, explained: “For liability to attach under this statute, (1) there must be an enactment imposing a mandatory duty, (2) the enactment must be intended to protect against the risk of the kind of injury suffered by the individual asserting liability, and (3) the breach of the duty must be the cause of the injury suffered.” The trial court properly ruled that the absence of any allegation identifying the enactment, policy or protocol that established a duty to appellant was fatal to his negligence cause of action.
Moreover, to the extent that appellant’s negligence cause of action incorporates his allegations relating to the denial of medical treatment, the demurrer was properly sustained on the ground that he failed to comply with the requirements of the Tort Claims Act. Government Code section 900 et seq., part of the Tort Claims Act, “prescribes the manner in which public entities may be sued.” (Chalmers v. County of Los Angeles (1985) 175 Cal.App.3d 461, 464.) Government Code section 945.4 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... [s]ection 910... until a written claim therefor has been presented to the public entity and has been acted upon by the [public entity’s] board, or has been deemed to have been rejected by the board....’” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 445 (Stockett).) The purposes of the claim filing requirement are: “(1) to give notice to the public entity so it will have a timely opportunity to investigate the claim and determine the facts; and (2) to give the public entity an opportunity to settle meritorious claims thereby avoiding unnecessary lawsuits.” (San Diego Unified Port Dist. v. Superior Court (1988) 197 Cal.App.3d 843, 847; accord, Stockett, supra, at p. 446.)
These purposes are dependent on the government tort claim providing adequate notice of the allegations in the threatened lawsuit. As explained in Nelson v. State of California (1982) 139 Cal.App.3d 72, 79: “[T]he factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint.... [and] the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.” (Accord, Watson v. State of California (1993) 21 Cal.App.4th 836, 843–844; Donohue v. State of California (1986) 178 Cal.App.3d 795, 803.) For example, the court in Watson v. State of California, supra, at page 844 affirmed a demurrer sustained without leave to amend on the basis of the variance between the government claim and the complaint; the government claim was premised on the theory that the state refused to provide any medical care to the plaintiff, whereas the complaint alleged that the state failed to provide appropriate and adequate medical care. Similarly, the court in Donohue v. State of California, supra, at page 804 affirmed a judgment on the pleadings where the claim asserted that the defendant was negligent in permitting an uninsured motorist to take a driving test, but the complaint alleged that the defendant was negligent in failing to instruct, direct and control the motorist during his driving examination. The court reasoned that “[t]he act of permitting an uninsured motorist to take a driving test is not the factual equivalent of the failure to control or direct the motorist in the course of his examination.” (Ibid.)
Here, appellant’s government tort claim omitted any reference to the jail conditions and denial of medical treatment. Rather, the claim asserted that appellant was “falsely incarcerated” and as a result suffered “severe physical & financial damage.” The claim further indicated—contrary to his later allegations—that he visited a physician while in jail. Although appellant argues that he substantially complied with the Tort Claims Act, “[t]he doctrine of substantial compliance does not apply where the claim fails to set forth the factual basis for recovery. [Citation.]” (Watson v. State of California, supra, 21 Cal.App.4th at p. 845; see also Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 435 [substantial compliance “argument is unavailing where the plaintiff seeks to impose upon the defendant public entity the obligation to defend a lawsuit based upon a set of facts entirely different from those first noticed”].) Accordingly, the trial court properly sustained the demurrer on the additional ground that appellant’s Complaint sought to premise liability on a different factual basis than what was set forth in the government tort claim.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.
We concur:ASHMANN-GERST, J., CHAVEZ, J.