Opinion
C041514.
7-31-2003
JILL N., Plaintiff and Appellant, v. PLACER COUNTY et al., Defendants and Respondents.
Plaintiff Jill N. appeals from judgments of dismissal entered in favor of defendants Placer County (the County), Edward Bonner, and Randy Hall, in plaintiffs action for damages. At all relevant times, defendant Bonner was the Sheriff of Placer County. When the incident that gave rise to this litigation occurred, defendant Hall was a deputy sheriff assigned as a detective.
Plaintiffs complaint also named the Placer County Sheriffs Department as a defendant. Plaintiff does not contest dismissal as to the sheriffs department.
The judgments of dismissal followed orders sustaining demurrers based upon plaintiffs failure to file a timely claim as required by the California Tort Claims Act. (Gov. Code, § 810 et seq.) Plaintiff contends her claim was timely and that, in any event, application of the claim presentation requirement violates principles of equal protection. Defendants argue we should dismiss the appeal because plaintiffs contentions are barred by principles of res judicata.
For reasons that follow, we shall (1) reject defendants claim that the appeal should be dismissed, (2) affirm the judgments of dismissal with respect to the County and Bonner, and (3) reverse the judgment with respect to Hall.
BACKGROUND
Plaintiffs complaint alleges the following facts, which we accept as true for the purpose of reviewing the trial courts orders sustaining defendants demurrers. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal. Rptr. 718, 703 P.2d 58.)
During 1997, plaintiff had been experiencing harassment by a former spouse. She complained to the sheriffs department, and defendant Hall arranged to interview plaintiff in her home. The interview occurred on November 18 or November 19, 1997. During the interview, Hall asked whether she was dating. Plaintiff stated she did not understand what that had to do with the investigation, and added she was not interested in dating.
At that point, Hall grabbed plaintiffs wrists, put them behind her back, and placed handcuffs on her. "He then rubbed the front of his body against [her] body, breathed into her ear and asked for a date. Hall rubbed his body, while his penis was erect, against plaintiffs buttocks [and] said [she] had a nice butt." When he pushed her onto the bed, plaintiff kept him away by raising her knees. Hall repeatedly asked for a date and asked whether plaintiff could get out of the handcuffs. The incident ended when plaintiff said she would yell for a retired law enforcement officer who lived with her. At that point, Hall removed the handcuffs, told plaintiff to call him in a few days, and left. Plaintiff did not report the attack until she read a newspaper article about a similar incident involving Hall.
A criminal complaint was filed against Hall, accusing him of sexual battery (Pen. Code, § 243.4) based on his misconduct against plaintiff and other victims. On August 7, 2000, Hall was sentenced to state prison for eight years as the result of a negotiated plea.
Plaintiff filed a governmental tort claim with the County on February 2, 2001. After the County sent her a notice that her claim was untimely, plaintiff filed an application with the County on March 13, 2001, seeking "permission to present [a] claim alleged by [the County] to have been filed late." The County denied the application by letter of April 20, 2001.
Plaintiff commenced this litigation by filing in the trial court a complaint for damages and a petition for an "order holding that [her governmental tort claim] was timely filed." Finding that the claim was untimely, the court denied the petition. Defendants then demurred to the complaint. The court sustained demurrers of the County and Bonner without leave to amend, and later sustained Halls demurrer to the first amended complaint without leave to amend. Judgments of dismissal were entered, and this appeal followed.
DISCUSSION
I
Initially, we consider and reject defendants contention that the appeal should be dismissed on the basis of res judicata and collateral estoppel.
Government Code section 905 requires a person who seeks tort damages against a local public entity to submit a claim to the local public entity. The public entity must act upon the claim within 45 days. (Gov. Code, § 912.4, subd. (a).) If the claim is not acted upon in such time, it is deemed to have been rejected. (Gov. Code, § 912.4, subd. (c).) A civil suit for tort damages cannot be maintained until such a claim has been presented and acted upon by the public entity, or it is deemed to have been rejected. (Gov. Code, § 945.4.)
A claim for damages for injuries to the person, such as plaintiffs claim, must be presented to the local government entity not later than six months after accrual of the cause of action. (Gov. Code, § 911.2.) If the claim is not timely presented, the claimant may make a written application to present a late claim. (Gov. Code, § 911.4, subd. (a).) The application must be made within a reasonable time not to exceed one year after the accrual of the cause of action. (Gov. Code, § 911.4, subd. (b).) A timely application must be granted if one or more of certain enumerated statutory factors are applicable. (Gov. Code, § 911.6, subd. (b).) If such an application is not granted or denied within 45 days, it will be deemed to be denied. (Gov. Code, § 911.6, subd. (c).)
When an application to file a late claim is denied or deemed denied, a petition may be made to the superior court for an order relieving petitioner from the requirement that a claim be filed. (Gov. Code, § 946.6.) To be entitled to relief, the petitioner must demonstrate that an application was made to the public entity and was denied or deemed denied, and must establish one or more of the statutory bases for relief. (Gov Code, § 946.6, subd. (b).) An order denying a petition for relief from the claim presentation requirements is a final appealable order (County of Alameda v. Superior Court (1987) 196 Cal. App. 3d 619, 622, 242 Cal. Rptr. 215) that will be given collateral estoppel effect in subsequent litigation (Gurrola v. County of Los Angeles (1984) 153 Cal. App. 3d 145, 150, 200 Cal. Rptr. 157).
Defendants assert that plaintiff sought and was denied relief from the requirement of presenting a timely claim, that she failed to appeal the order and that, by virtue of collateral estoppel, the order precludes the prosecution of her appeal from the ensuing judgments of dismissal. We disagree.
Plaintiff has continuously maintained that her tort claim was presented in a timely manner. When the County rejected her claim as untimely, she filed an application for leave to present a late claim, but made clear her position that the claim was timely. When the County denied the application, plaintiff did not petition for relief from the claim filing requirement. Instead, she filed her complaint together with a petition for an order declaring that her claim was presented in a timely manner.
There is no statutory procedure for a tort claimant to petition the trial court for an order declaring that a governmental tort claim was timely filed. If, as plaintiff asserts, her tort claim was timely filed, then the Countys refusal to act on it, for whatever reason, constitutes a denial of the claim which would entitle plaintiff to proceed with her civil litigation. (Gov. Code, §§ 912.4, subd. (c); 945.4.) In such a circumstance, the appropriate procedure would be to file a complaint that includes an allegation of compliance with the claim presentation requirement. (Bohrer v. County of San Diego (1980) 104 Cal. App. 3d 155, 160, 163 Cal. Rptr. 419.)
The procedure employed by plaintiff was a creature of her own creation. It was in effect an attempt to obtain bifurcation of the issue of her compliance with the claim presentation requirement from the merits of the complaint. (See Code Civ. Proc., § 597.) Defendants did not object. Instead, they participated in the procedure and obtained a favorable result. As it turned out, the bifurcation of issues provided defendants with an efficacious means of resolving the preliminary issue at an early stage of the proceedings. Obviously, defendants cannot demonstrate prejudice from the procedure. (Cf. Meyer Koulish Co. v. Cannon (1963) 213 Cal. App. 2d 419, 430, 28 Cal. Rptr. 757.)
When, in the first stage of a bifurcated proceeding, the trial court makes a determination that disposes of the action, it should enter a final judgment of dismissal. (Code Civ. Proc., § 597 .) Until such a judgment is entered, any appeal would be premature. (Sproul v. Cuddy (1953) 121 Cal. App. 2d 197, 201, 263 P.2d 92.) If the courts determination disposes of portions of the complaint, but not its entirety, the court may not enter a final, appealable judgment. (Crofoot v. Crofoot (1955) 132 Cal. App. 2d 794, 798-799, 283 P.2d 283.) Entry of judgment and appeal of the courts determination must await disposition of the entirety of the action. (Ibid.)
Here, the trial court entered a ruling on the timeliness of plaintiffs governmental tort claim but did not purport to enter a judgment dismissing all or any portion of the action. Plaintiff could not have appealed from the ruling. (Sproul v. Cuddy, supra, 121 Cal. App. 2d at p. 201.) Moreover, the trial court could not have entered an appealable judgment following its ruling because it did not dispose of the action in its entirety. (Crofoot v. Crofoot, supra, 132 Cal. App. 2d at pp. 798-799.) Consequently, plaintiff followed an appropriate procedure by appealing from the judgments of dismissal ultimately entered, and she is entitled in this appeal to review of the trial courts ruling on the claim presentation issue.
Plaintiffs complaint included alleged causes of action under the federal Civil Rights Act. (42 U.S.C. § 1983.) Californias Tort Claims Act does not apply to claims under the federal Civil Rights Act. (Rossiter v. Benoit (1979) 88 Cal. App. 3d 706, 712- 713, 152 Cal. Rptr. 65.) Defendants demurred to the federal causes of action based on the statute of limitations applicable to those causes of action. On appeal, plaintiff makes no contention with respect to the federal causes of action, but they were not resolved by the trial courts ruling on the claim presentation issue and their pendency precluded the court from entering an appealable judgment based solely upon that ruling.
II
We turn now to plaintiffs contention that her governmental tort claim was timely filed with the County.
As we have noted, plaintiff was required to present a claim to the County "not later than six months after the accrual of the cause of action." (Gov. Code, § 911.2.) For this purpose, "the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon." (Gov. Code, § 901.)
For purposes of statutes of limitation, the general rule is that "a cause of action accrues when, under the substantive law, the wrongful act is done and liability arises, i.e., when a suit may be brought." (Menefee v. Ostawari (1991) 228 Cal. App. 3d 239, 245, 278 Cal. Rptr. 805.) In other words, accrual occurs when a cause of action is complete with all of its elements. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397, 981 P.2d 79.)
There are some circumstances in which accrual of a cause of action will be delayed beyond the commission of the wrongful act. For example, when consequential damages are an essential element of a cause of action, the cause of action cannot accrue until the plaintiff has suffered perceptible harm. (City of Vista v. Robert Thomas Securities, Inc . (2000) 84 Cal.App.4th 882, 886.) Some wrongful acts, such as fraud or professional malpractice, by their very nature preclude or delay discovery of the wrongful act. In such circumstances, the cause of action will not accrue until the plaintiff discovers, or through reasonable diligence should have discovered, the facts. (See Code Civ. Proc., §§ 338, subd. (d), 340.5.) Under this discovery rule, a cause of action accrues as soon as the plaintiff has reason to suspect that someone has done something wrong to her. (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397.) There are other circumstances that will support delayed accrual of a cause of action. (See 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 462, pp. 582-583.) However, they are not arguably applicable here.
This lawsuit is a straightforward case of sexual battery. Hall committed the wrongful acts on November 18 or 19, 1997. Plaintiff suffered injury at that time, and she was fully aware of all of the facts which constitute her cause of action. She had an immediate right to pursue her claims against defendants because the cause of action accrued at that time. (Sonbergh v. MacQuarrie (1952) 112 Cal. App. 2d 771, 773, 247 P.2d 133.) Plaintiff did not present her tort claim to the County until February 2, 2001, more than three years and two months after the claim accrued. She was long past the six-month period for presenting a claim and the one-year period for applying to present a late claim.
Plaintiff relies on Code of Civil Procedure section 340.3 for the proposition that her claim was timely. At the time plaintiff filed her complaint, this section provided: "Unless a longer period is prescribed for a specific action, in any action for damages against a defendant based upon such persons commission of a felony offense for which the defendant has been convicted, the time for commencement of the action shall be within one year after judgment is pronounced. If the sentence or judgment is stayed, the time for the commencement of the action shall be tolled until the stay is lifted. For purposes of this section, a judgment is not stayed if the judgment is appealed or the defendant is placed on probation." (Stats. 1983, ch. 938, § 2, pp. 3390-3391.)
Code of Civil Procedure section 340.3 was amended effective September 18, 2002 (Stats. 2002, ch. 633, § 1) to provide for a longer statute of limitations with respect to some, but not all, felony offenses that are termed "serious felonies" for purposes of sentencing (Pen. Code, § 1192.7, subd. (c)). The amendments have no arguable relevance here.
Plaintiff contends that Code of Civil Procedure section 340.3 provides for the accrual of a cause of action on the pronouncement of judgment for a felony conviction. She argues section 340.3 is a special statute that must be given precedence over the general claim presentation requirements of the Tort Claims Act. The contention fails.
It is a general rule of statutory interpretation that, in the event of statutory conflict, a specific provision will control over a general provision. (Tapia v. Pohlmann (1998) 68 Cal.App.4th 1126, 1133; People v. Weatherill (1989) 215 Cal. App. 3d 1569, 1577-1578, 264 Cal. Rptr. 298.) This rule is a tool for ascertaining and carrying out legislative intent, since it generally can be presumed that when a specific statute is enacted to deal with a particular matter, the Legislature would intend the specific statute to control over more general provisions of the law that might otherwise apply. (People v. Jenkins (1980) 28 Cal.3d 494, 505, 170 Cal. Rptr. 1, 620 P.2d 587.) The question is always one of legislative intent; thus, when that intent can be ascertained, general rules of construction, including the general/specific rule, must give way. (People v. Butler (1996) 43 Cal.App.4th 1224, 1243.)
In determining the meaning of a statute, courts start with the statutory language. (People v. Hendrix (1997) 16 Cal.4th 508, 512, 941 P.2d 64.) When the statutory language is clear and unambiguous, there is no need for construction, and the court should not indulge in it. (Ibid.; Delaney v. Superior Court (1990) 50 Cal.3d 785, 800, 268 Cal. Rptr. 753, 789 P.2d 934.) "We do not construe a statute, liberally or at all, where there is no ambiguity." (People v. Covarrubias (1993) 18 Cal.App.4th 639, 642.) As a court, our function is not to judge the wisdom of a statute or to determine what it should do; those are matters addressed to the Legislature. (Ibid.) We may not extend a statute to meet cases not within its scope or purview, regardless of how meritorious they may be. (City of Chico v. Superior Court (1979) 89 Cal. App. 3d 187, 191-192, 152 Cal. Rptr. 380.)
The plain language of Code of Civil Procedure section 340.3 is not susceptible to the construction urged by plaintiff. It is, by its plain language, a statute of limitation. When it applies, it extends the time in which a felony victim can commence an action against the convicted perpetrator. It says nothing about accrual of the cause of action. (Compare Code Civ. Proc., §§ 338, subds. (c)-(f), (h), (i), (k), (l ), 340.5, 340.6 [when the Legislature intends to adopt a delayed accrual rule, it does so expressly].)
We cannot incorporate a delayed accrual provision into section 340.3 when the statute is wholly silent in that regard. In fact, to do so would have absurd consequences. A cause of action accrues when a suit can be maintained thereon. (Dillon v. Board of Pension Commrs (1941) 18 Cal.2d 427, 430, 116 P.2d 37.) Conversely, a lawsuit may not be maintained until a cause of action accrues. (Lee v. Bank of America (1994) 27 Cal.App.4th 197, 205.) It follows that, if a cause of action against a felon does not accrue until judgment is pronounced on a felony conviction, any tortfeasor whose misconduct amounts to a felony would be immune from civil liability unless and until a felony conviction is obtained. That cannot be the rule. In fact, plaintiffs cause of action accrued when Hall committed his wrongful acts, and she was free any time thereafter to pursue her claims against defendants. The fact that she chose not to do so until after Hall was convicted cannot serve to delay the accrual of her claims.
The claim presentation requirements of the Torts Claims Act apply to all claims for money or damages against local public entities except those types of claims that are expressly excepted. (Gov. Code, § 905.) The Legislature has not excluded from the claims presentation requirements claims based on felonious conduct by a public employee. (Ibid.) The requirements are mandatory and cannot be disregarded by a court. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455, 115 Cal. Rptr. 797, 525 P.2d 701.) The time within which a claim must be presented begins to run when the cause of action accrues. (Gov. Code, § 911.2.) The failure to present a timely claim will bar a claim regardless of whether the statute of limitations that otherwise would be applicable provides a longer time. (Ridley v. City etc. of San Francisco (1969) 272 Cal. App. 2d 290, 292, 77 Cal. Rptr. 199; Collins v. County of Los Angeles (1966) 241 Cal. App. 2d 451, 456, 50 Cal. Rptr. 586.) Such is the situation here. Code of Civil Procedure section 340.3 does not postpone or eliminate the requirement that a plaintiff present a timely governmental tort claim.
Accordingly, the trial court correctly concluded that the governmental tort claim presented by plaintiff was untimely.
Citing the decision in Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, plaintiff contends that a failure to extend the benefits of Code of Civil Procedure section 340.3 to her action against the County and Bonner would violate principles of equal protection of law by "refusing to accord the benefits of section 340.3 to the class of victims of government officer felonious conduct who sue the employing entity, while allowing it as to victims of civilian felony conduct who sue the employing corporation[.]" However, that decision is inapposite. There, the corporate defendant was itself convicted of felony elder abuse for the conduct that gave rise to the civil action. Thus, by its plain terms, Code of Civil Procedure section 340.3 applied to extend the period for commencing an action. (Id. at pp. 978-979.) Here, the County and Bonner were not charged or convicted of any criminal offense, and Code of Civil Procedure section 340.3 does not by its terms apply to them. In any event, it is well settled that the claim presentation requirements of the Tort Claims Act do not violate principles of equal protection. (Harrison v. County of Del Norte (1985) 168 Cal. App. 3d 1, 10, 213 Cal. Rptr. 658; Roberts v. State of California (1974) 39 Cal. App. 3d 844, 848-849, 114 Cal. Rptr. 518.)
In her complaint, plaintiff alleged causes of action against the County and Bonner based upon their own alleged wrongdoing in hiring, training, supervising, and retaining Hall. The County and Bonner have not been convicted of a felony arising out of that conduct, and Code of Civil Procedure section 340.3—which extends the period for commencing a civil action against a defendant when that defendant is convicted of a felony—would have no arguable application to the conduct of the County and Bonner. The trial court was correct in sustaining their demurrer without leave to amend in that respect.
Plaintiff also sought recovery against the County and Bonner for Halls misconduct based upon respondeat superior. A local government entity can be held liable for the conduct of an employee on the basis of respondeat superior. (Gov. Code, § 815.2; see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932, 968 P.2d 522.) But we have determined that Code of Civil Procedure section 340.3 does not delay the accrual of such a cause of action and does not otherwise supersede the claim presentation requirements of the Tort Claims Act. The trial court was correct in sustaining the demurrer of the County and Bonner in that respect.
In her complaint, plaintiff purported to set forth causes of action under the federal Civil Rights Act. (42 U.S.C., §§ 1983, 1985.) The California Tort Claims Act does not apply to causes of action under the federal Civil Rights Act. (Rossiter v. Benoit, supra , 88 Cal. App. 3d at pp. 712-713.) However, those causes of action are subject to a one-year statute of limitation. (Jackson v. Cedars-Sinai Medical Center (1990) 220 Cal. App. 3d 1315, 1323-1324, 269 Cal. Rptr. 877.) Assuming, without deciding, that Code of Civil Procedure section 340.3 would extend the period for bringing a federal civil rights claim against Hall, this would not avail plaintiff in her action against the County and Bonner. A municipality cannot be held liable under the federal Civil Rights Act on the basis of respondeat superior. (Bryan County Commissioners v. Brown (1997) 520 U.S. 397, 403 [137 L. Ed. 2d 626, 638-639, 117 S. Ct. 1382]; Jett v. Dallas Ind. School Dist. (1989) 491 U.S. 701, 735 [105 L. Ed. 2d 598, 626-627, 109 S. Ct. 2702].) To pursue a federal claim against the County and Bonner, plaintiff must allege personal wrongdoing; and since they were not convicted of a felony, Code of Civil Procedure section 340.3 would not extend the time for commencing such an action. Accordingly, the trial court correctly sustained the demurrer of the County and Bonner in that respect.
III
We reach a different conclusion with respect to Hall. A cause of action against a public employee or former public employee for an act or omission in the scope of employment as a public employee is barred if an action against the public entity is barred by the failure to present a claim. (Gov. Code, § 950.2.) However, this bar applies only to causes of action based upon conduct within the course and scope of the defendants public employment. (Bahan v. Kurland (1979) 98 Cal. App. 3d 808, 812, 159 Cal. Rptr. 661.)
Sexual assault is not ordinarily part of an employees job description, and courts have frequently found sexual assault to be beyond the course and scope of employment. (See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 306, 907 P.2d 358; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1019-1020, 906 P.2d 440; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 452-453, 256 Cal. Rptr. 766, 769 P.2d 948; Jeffrey E. v. Central Baptist Church (1988) 197 Cal. App. 3d 718, 722-723, 243 Cal. Rptr. 128; Rita M. v. Roman Catholic Archbishop (1986) 187 Cal. App. 3d 1453, 1461, 232 Cal. Rptr. 685; Alma W. v. Oakland Unified School Dist. (1981) 123 Cal. App. 3d 133, 141, 176 Cal. Rptr. 287.)
On the other hand, in Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 285 Cal. Rptr. 99, 814 P.2d 1341 (hereafter Mary M.), the California Supreme Court held that a public employer can be held vicariously liable for a sexual assault committed by a police officer. The plaintiff in Mary M. was stopped by a uniformed police officer for driving erratically. The plaintiff, who had been drinking, did not do well on a field sobriety test. She began to cry and pleaded not to be taken to jail. The officer ordered the plaintiff into his patrol car and drove her to her home. Once there, the officer said that he expected "payment" and began to sexually assault the plaintiff. When the plaintiff struggled and screamed, the officer threatened to take her to jail. The plaintiff stopped struggling and was raped. (Mary M., supra, 54 Cal.3d at p. 207.) A jury found that the officer was acting within the scope of employment and awarded damages against the employer city. (Id. at p. 208.) The Supreme Court affirmed (id. at p. 221), holding that, when a police officer misuses his official authority by raping a woman he has detained, his employing entity may be held vicariously liable. The court particularly relied upon the facts that the officer was on duty, in uniform, and armed; he used the red lights on his patrol car to detain the plaintiff; he took advantage of his authority and control as an officer in ordering the plaintiff into his car; and when the plaintiff resisted the sexual assault, the officer again resorted to his authority and control by threatening to take her to jail. (Ibid .)
See also White v. County of Orange (1985) 166 Cal. App. 3d 566, 571-572, 212 Cal. Rptr. 493.
Of significance here is what the Supreme Court was careful to point out: "This does not mean that, as a matter of law, the public employer is vicariously liable whenever an on-duty officer commits a sexual assault. Rather, this is a question of fact for the jury." (Mary M., supra, 54 Cal.3d at p. 221.)
The facts of this case, as alleged by plaintiff, do not make out as strong a case for the scope of employment as did the facts in Mary M. Although Hall went to plaintiffs home while on duty as a detective, he apparently did not purport to arrest or detain her as part of his job. He did not threaten to take her to jail. He put his handcuffs on her, but apparently did not purport to be acting pursuant to legal authority in doing so. We need not and do not hold that Hall was beyond the scope of his employment as a matter of law. We simply conclude that, consistent with the opinion in Mary M., this is a question of fact for the trier of fact to resolve. Since a cause of action against Hall is barred by plaintiffs failure to present a timely governmental tort claim only to the extent he was acting within the scope of employment, if a trier of fact determines that Hall was not acting within the scope of employment, he may be held personally liable for his conduct.
The trial court correctly recognized that Hall is not shielded from liability to the extent his conduct was not within the scope of his employment. Thus, the court gave plaintiff an opportunity to amend her complaint with respect to Hall. Plaintiffs amended complaint included a general allegation that Hall was acting within the course and scope of his employment. For this reason, the court sustained Halls demurrer without leave to amend.
"While an allegation that a party acted within the scope of his employment is generally considered a sufficient allegation of ultimate fact to withstand a demurrer, it is at best an allegation of a mixed factual-legal conclusion drawn by the pleader from underlying facts. When the underlying facts pleaded and averred in declarations in opposition to a motion for summary judgment belie the pleaded conclusion, and indicate the existence of an important fact question, the mistaken conclusion on the part of a pleader should not preclude a trial of the issue on its merits." (Bahan v. Kurland, supra, 98 Cal. App. 3d at p. 812.) This reasoning has even greater application on a demurrer, where "the trial court is obligated to look past the form of a pleading to its substance. Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief." (Saunders v. Cariss (1990) 224 Cal. App. 3d 905, 908, 274 Cal. Rptr. 186.)
A demurrer lies to resolve issues of law. (Code Civ. Proc., §§ 589,, subd. (a); 591.) Issues of fact are to be resolved by the trier of fact. (Code Civ. Proc., § 592.) The specific allegations of plaintiffs complaint reflect an issue of fact whether Hall was acting in the course and scope of his employment when he attacked plaintiff. Accordingly, we conclude that the trial court erred in sustaining Halls demurrer with respect to his potential personal liability to plaintiff and, thus, we shall reverse the judgment of dismissal as to Hall.
DISPOSITION
The judgment of dismissal as to the defendants Placer County and Edward Bonner is affirmed. The County and Bonner shall bear their own costs on appeal. (Cal. Rules of Court, rule 27(a).)
The judgment of dismissal as to defendant Randy Hall is reversed, and the matter is remanded to the trial court for further proceedings. Hall shall reimburse plaintiff for her costs on appeal. (Cal. Rules of Court, rule 27(a).)
We concur: RAYE, J., KOLKEY, J.