Opinion
G030617.
10-28-2003
ROBERT DELGIUDICE, Plaintiff and Appellant, v. ORANGE COUNTY SHERIFFS DEPARTMENT et al., Defendants and Respondents.
Robert delGiudice, in pro. per., for Plaintiff and Appellant. Franscell, Strickland, Roberts & Lawrence, S. Frank Harrell, Tony F. Farmani and Michael S. Frey for Defendants and Respondents.
In this case we hold the trial court improperly dismissed Robert delGiudices complaint against the Orange County Sheriffs Department and two individual deputies (collectively the Sheriffs Department). The summary adjudication motion the court had before it did not address the complaints cause of action for violation of civil rights under 42 U.S.C. section 1983. Accordingly, it was improper for the court to grant summary judgment to the Sheriffs Department and to dismiss the entire complaint. We reverse the judgment and remand to the trial court with directions that it enter a new order granting the Sheriffs Departments motion for summary adjudication of the first through seventh causes of action and dismiss those causes of action. The action may proceed on the complaints civil rights cause of action.
FACTS
On February 20, 2001, delGiudice, acting in propria persona, filed a complaint against the Sheriffs Department alleging use of excessive force during his arrest on February 19, 2000 on charges of resisting arrest, assault on a police officer, and possession of a controlled substance. Eventually, delGiudice retained counsel who filed a first amended complaint (hereafter the complaint) on June 14, 2001. The complaint contained eight causes of action. The first seven were state law causes of action for assault, battery, false imprisonment, intentional and negligent infliction of emotional distress, negligence, and violation of state civil rights. The eighth cause of action was for violation of federal civil rights under 42 U.S.C. section 1983.
On December 14, 2001, the Sheriffs Department filed a motion for summary adjudication of the first through seventh causes of action because delGiudice failed to comply with the claims filing requirement of the Tort Claims Act (Gov. Code, § 810, et seq.). It is undisputed that a claim was never filed. The summary adjudication motion was originally set for hearing on January 18, 2002. DelGiudice then fired his attorney and resumed representing himself. Hearing on the summary adjudication motion was continued to February 22.
DelGiudice did not file opposition to the motion for summary adjudication. He represented himself at the hearing. He explained to the court he had fired his attorney because the attorney failed to discover "good evidence that he should have gotten . . . ." DelGiudice said he had located a new attorney who was willing to handle the case and asked the court for a continuance. The court denied the continuance.
The court apparently believed it had before it something other than a motion for summary adjudication. In its tentative ruling, it referred to the motion as a summary judgment motion. At the hearing, the court called it a motion to dismiss. The court stated it intended to grant the motion and dismiss the entire complaint. It advised delGiudice that if he retained new counsel, the new attorney could file a motion for relief from the judgment or a motion for reconsideration. DelGiudices only argument was that he did not understand how a citizen was supposed to know he or she must first file a claim with the public entity before pursuing a suit against it.
The Sheriffs Department prepared a formal order "Granting Defendants Motion for Summary Judgment," and a formal judgment dismissing the complaint and awarding the Sheriffs Department its costs of suit, both of which were signed and filed on March 4, 2002. DelGiudice filed this appeal.
DISCUSSION
A. An in propria persona litigant is not entitled to special treatment.
Much of delGiudices argument is premised on the fact that throughout most of this case he has represented himself. Accordingly, it is useful to preface our discussion by reiterating the rule that "[w]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation]." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; see also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.)
B. The court properly dismissed the state law causes of action.
Government Code section 945.4 precludes filing an action seeking money or damages against a local public entity on a cause of action, for which a claim is required to be presented, until the claim has been presented to and rejected by the public entity. Government Code section 911.2 requires a claim for personal injuries against a public entity be filed no later than six months after the accrual of the cause of action.
It is undisputed that delGiudice did not file a claim for his alleged injuries prior to filing this action. "[F]ailure to file a claim is fatal to the recovery of money damages. [Citation.]" (Tapia v. County of San Bernardino (1994) 29 Cal.App.4th 375, 383.) Accordingly, the court properly adjudicated those claims in favor of the Sheriffs Department.
On appeal, delGiudice argues he should be excused from filing a claim because he was unaware of the claim filing requirement. He was not told of any such requirement until a deputy public defender told him about it well after the six-month period had elapsed. Ignorance of the law does not excuse delGiudices failure to timely file a claim. Furthermore, upon having discovered his error, delGiudice could have protected his rights by seeking leave to file a late claim within a reasonable time, not to exceed one year from the date of accrual of the cause of action. (Gov. Code, § 911.4.) He did not. DelGiudices effort to lay these failures at the feet of his former attorney is unavailing. DelGiudice filed his initial complaint himself, after the time for filing a tort claim or late claim expired. His attorney did not appear in this action until the first amended complaint was filed—some one and one-half years after the cause of action accrued and long past the time to file a claim or petition for relief.
C. The court improperly dismissed the 42 U.S.C. section 1983 cause of action.
DelGiudice complains that the court should not have entered judgment on the complaint because his eighth cause of action for violation of his federal civil rights under 42 U.S.C. section 1983 had not been resolved. We agree.
Federal civil rights claims are exempt from the claim filing requirements of the Tort Claims Act. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 764.) The Sheriffs Department obviously understood this because it did not seek summary judgment on the entire complaint, but rather filed a motion for summary adjudication of the seven state law causes of action. The Sheriffs Departments motion did not address the eighth cause of action for violation of federal civil rights. Nonetheless, the court, upon concluding the claims filing requirement had not been met, proceeded to dismiss the entire complaint.
It was error for the trial court to dismiss the complaint. The motion before it was for summary adjudication of particular causes of action, not for summary judgment on the entire complaint. (Code Civ. Proc., § 437c, subd. (f).) The motion did not address the eighth cause of action and there was no notice to delGiudice that his civil rights cause of action might be dismissed. (See Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542; Code Civ. Proc., § 1010.)
The Sheriffs Department concedes the courts dismissal of the complaint was in error but urges delGiudice has waived his complaint because he failed to object. Although the court was clear at the hearing it intended to dismiss the entire action, delGiudice did not complain. Additionally, the Sheriffs Department argues, delGiudice did not take any steps to later alert the court of its error, even though the court advised him he could seek reconsideration (Code Civ. Proc., § 1008) or seek to set aside the judgment (Code Civ. Proc., § 473). We reject the contention.
Generally, an appellate court will not consider an erroneous ruling if an objection could have been, but was not, presented to the lower court. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444.) "It is unfair to the trial court and the adverse party to give appellate consideration to an alleged procedural defect which could have been presented to, and may well have been cured by, the trial court. [Citation.]" (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811.) But Code of Civil Procedure section 647 specifies matters for which no objection is necessary to preserve appellate review: "All of the following are deemed excepted to: . . . the final decision in an action or proceeding; an interlocutory order or decision, finally determining the rights of the parties, or some of them; an order or decision from which an appeal may be taken . . . ." The trial courts erroneous dismissal of delGiudices complaint was a final decision in the action and was a decision from which an appeal may be taken. Accordingly, delGiudice is deemed to have objected.
D. The cost award to the Sheriffs Department is reversed.
DelGiudice objects to the award of costs to the Sheriffs Department. Ordinarily, his failure to object to the award of costs by filing a proper or timely objection to the memorandum of costs, would waive his right to raise the contention. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698 [party who fails to file timely or proper objection to memorandum of costs waives right to object].) But, here, the costs award falls with the reversal of the judgment on which it is based.
E. We reject DelGiudices request for a change of venue on remand.
DelGiudice contends we should order a change of venue on remand because he is unable to get a fair trial on his remaining cause of action in Orange County. He complains he has been treated badly by the Sheriffs Department and its counsel, and court personnel have been unhelpful to him. He also complains the trial judge has already ruled against him a number of times demonstrating a bias.
We reject DelGiudices argument for a number of reasons. First, his brief is completely devoid of any legal analysis or citation to authority in support of the contention. An appellant must present analysis and legal authority on points made or his argument may be deemed waived. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Second, a change of venue may be had only upon noticed motion (Code Civ. Proc., § 397) and the decision rests in the sound discretion of the trial court. (Hamilton v. Superior Court (1974) 37 Cal.App.3d 418, 423.) Here there was no motion for change of venue made below, the request is made for the first time on appeal. Finally, nothing in the record indicates the trial judge was so biased against delGiudice that he is unable to receive a fair trial on remand. (Cf. In re Marriage of Iverson (1992) 11 Cal.App.4th 1495.)
F. The motion to augment is without merit.
DelGiudice has filed a motion to augment the record on appeal with various documents and items of evidence related to his criminal case, letters from his prior counsel and prospective new counsel, a letter extending him a job offer, and various documents relating to the preparation of the record on appeal. Most of the documents were not before the superior court in this case and are not the proper subject of an augmentation. (Cal. Rules of Court, rule 12 (a).) Furthermore, delGiudice has failed to explain the relevance of any of the documents to the issues on this appeal. The motion to augment is denied.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions that it enter a new order granting the Respondents motion for summary adjudication of the first through seventh causes of action and dismissing those causes of action. The action may proceed on the eighth cause of action. The Appellant is awarded his costs on appeal.
WE CONCUR: SILLS, P. J. and RYLAARSDAM, J.