Opinion
B290670
01-21-2020
ANTRANIK KEVORKIAN, Plaintiff and Appellant, v. LOS ANGELES COUNTY SHERIFF'S DEPARTMENT et al., Defendants and Respondents.
Antranik Kevorkian, in pro. per., for Plaintiff and Appellant. Fuentes & McNally, Raymond J. Fuentes and Jennifer C. Koo for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. EC066860) APPEAL from a judgment of the Superior Court of Los Angeles County, William D. Stewart, Judge. Affirmed. Antranik Kevorkian, in pro. per., for Plaintiff and Appellant. Fuentes & McNally, Raymond J. Fuentes and Jennifer C. Koo for Defendants and Respondents.
Antranik Kevorkian appeals from a judgment entered after the trial court sustained without leave to amend the demurrer filed by the Los Angeles County Sheriff's Department (LASD) and four LASD officers to Kevorkian's complaint. Kevorkian asserted causes of action for negligence, other state law torts, and violation of his state and federal due process rights arising from defendants allegedly falsely charging him with misdemeanor vandalism of a vehicle in a supermarket parking lot. In sustaining the demurrer, the trial court found Kevorkian's state common law causes of action were barred by his failure timely to present his claims to the County of Los Angeles (County) pursuant to the Government Claims Act, Government Code section 910 et seq. (GCA). The court also found Kevorkian failed to allege sufficient facts to constitute the asserted causes of action. We affirm.
The GCA is also known as the Tort Claims Act.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Misdemeanor Charge Against Kevorkian
Kevorkian alleges he received a telephone call from LASD Detective Ronald Hernandez on August 31, 2015 accusing him of vandalism in a supermarket parking lot in Altadena. Hernandez refused to tell Kevorkian when the incident occurred or the name of the alleged victim, but he said there was video of the incident that showed Kevorkian causing damage to a vehicle. Hernandez said he believed Kevorkian acted in a criminal manner to harm the victim.
Our description of the underlying incident and police investigation is drawn from the allegations in Kevorkian's complaint.
On October 8, 2015 Kevorkian received a letter from the LASD Altadena station signed by Captain Christopher Reed advising Kevorkian that a complaint had been filed in the superior court charging him with violation of Penal Code section 594. The letter directed Kevorkian to appear for arraignment on October 21, 2015. On October 20, 2015 the People filed a criminal complaint against Kevorkian alleging a single count of misdemeanor vandalism under Penal Code section 594, subdivision (a), and Kevorkian appeared for arraignment the following day. On May 9, 2016, after several appearances over seven months, the misdemeanor charge against Kevorkian was dismissed on the People's motion pursuant to Penal Code section 1385, subdivision (a), in the interest of justice. Kevorkian alleges LASD never presented any of the evidence they claimed to have in their possession. Kevorkian was never arrested or held in custody. B. Kevorkian's GCA Claim
Kevorkian's complaint alleges the criminal complaint was filed on October 21, 2015, but the criminal case docket attached to Kevorkian's later motion for reconsideration reflects that the case was filed on October 20. The docket also reflects that although Kevorkian appeared for arraignment on October 21, the case was continued, and he was arraigned on November 3, 2015. Whether we use the date in the complaint or the docket does not affect our analysis.
Although Kevorkian does not allege the date of dismissal other than that it occurred "after seven long agonizing months," the trial court granted defendants' request to take judicial notice of the criminal docket entry showing the May 9, 2016 dismissal date. Kevorkian relies on the May 9, 2016 dismissal date for his legal argument.
On October 31, 2016 Kevorkian submitted a claim for damages with the County on the County's prescribed GCA claim form. Kevorkian identified Hernandez, Reed, and Does 1-100 as the County employees involved in his alleged injuries. In the section of the form asking the claimant to describe in detail how his injury occurred, Kevorkian wrote: "I.I.E.D (infliction emotional distress), [n]egligence, [f]alse [i]nvestigation, [f]ailure to [i]ntervene, [f]alse report, abuse of [p]rocess, mental pain, anxiety, severe emotional distress." In the box asking why he claims the County is responsible, Kevorkian wrote, "Sheriff['s] deputies are employees of Los Angeles County [and] the County is responsible for their misconduct acts by violating my 4th [and] 14th [Amendment rights and] 42 U.S.C. §1983." Kevorkian claimed "unlimited" money damages.
The County responded to Kevorkian's claim with a notice of insufficiency dated November 2, 2016 stating "[t]he claim is vague as to the circumstances of the alleged occurrence or transaction giving rise to damage or injury." The County advised Kevorkian he could present an amended claim. Kevorkian filed a new claim on November 15, 2016, in which he revised his description of how his injury occurred: "Deputies' [f]alse [i]nvestigation has caused severe infliction of emotional distress [and] anxiety." His amended claim otherwise matched his original claim. The County served Kevorkian by mail on January 3, 2017 with a denial of his claim, stating, "An investigation of this matter fails to indicate any liability on the part of the County of Los Angeles, its officers, agents, or employees." C. Kevorkian's Civil Complaint
On July 10, 2017 Kevorkian, as a self-represented litigant, filed a complaint for damages against LASD, Reed, and Hernandez, as well as LASD Lieutenant Phillip Marques and Sergeant Joel Nebel. Kevorkian asserted five causes of action: (1) negligence; (2) negligent infliction of emotional distress (NIED); (3) violation of the Fourteenth Amendment of the United States Constitution and title 42 United States Code section 1983 (section 1983); (4) violation of article 1, section 7(a) of the California Constitution; and (5) intentional infliction of physical and emotional distress (IIED). Kevorkian alleged the facts set forth in part A, ante. In addition, Kevorkian alleged, "At relevant times—before, while, and after gathering evidence and filing criminal charges against [Kevorkian]—each of the [d]efendants knew or with the exercise of reasonable diligence should have known that [Kevorkian] had taken no steps to violate any penal code filed against the plaintiff on October 21, 2015, that would justify his criminal acts."
In the first cause of action for negligence, Kevorkian alleged defendants were negligent for "not investigating the incident lawfully," specifically alleging "[i]mproper compliance with policies, practices, and procedures, in the investigation of an alleged violation of PC 594(A)"; "[a]llowing a culture to exist of improper or non-compliance with policies"; "submitting the false facts and evidence to the [district attorney]"; "[m]aking [an] unreasonable call to plaintiff on 8/31/2015"; "[e]xercising an excessive and/or unreasonable investigation for the circumstances"; "[f]ailure to use reasonable investigation before submitting the case to district [a]ttorney's office in order to face criminal charges on October 21, 2015, and failure in supervising officers present for the subject incident"; and "[f]ailure to use reasonable care in the hiring, training and/or supervising of deputies regarding the proper method of responding to and handling incidents related to the charge/s . . . ." Kevorkian's four additional causes of action incorporate these allegations without any additional detail. D. Defendants' Demurrers and the Trial Court's Orders
On January 4, 2018 Reed, Nebel, and Marques filed a demurrer to the complaint. Defendants also filed a request for judicial notice of Kevorkian's claim submissions and the County's responses, which the court granted. On April 13, 2018 the court sustained Reed, Marques, and Nebel's demurrer on two grounds: (1) Kevorkian failed to meet the statutory requirements of the GCA because he untimely tendered his claim on the County more than six months after the underlying causes of action accrued; and (2) the complaint failed to allege sufficient facts to constitute a cause of action against defendants on any of the five asserted claims. The court denied leave to amend, explaining, "Although this is the first attempt at the pleadings, the Court will sustain [the demurrer to] these causes of action without leave to amend since [Kevorkian's] opposition is devoid of any facts showing how he can cure the deficiencies in his complaint and he fails to allege any facts showing that his government claim was timely filed."
On September 29, 2017 the court clerk entered defaults against the defendants for failure to respond to the complaint. The trial court later granted defendants' motion to set aside the defaults based on improper service. Reed, Marques, and Nebel filed a demurrer; LASD and Hernandez filed a motion to quash the summons and a demurrer. The court granted LASD and Hernandez's motion to quash service and took their demurrer off calendar as moot. After Kevorkian re-served the original complaint on LASD and Hernandez, they filed a second demurrer asserting the same grounds.
The trial court also held Kevorkian's claims were untimely because he filed his complaint more than six months after the County rejected his GCA claim. (See Gov. Code, § 945.6, subd. (a)(1) [lawsuit must be commenced "not later than six months after the date such notice [of denial] is personally delivered or deposited in the mail."].) Kevorkian contends because the County served the claim denial by mail, his deadline to file a lawsuit was extended five days (from July 3 to July 8, 2017), and because the final day was a Saturday, his filing on Monday, July 10, 2017, was timely. (Code Civ. Proc., § 12a.) Because we affirm on other grounds, we do not reach whether Kevorkian's lawsuit was timely.
On April 23, 2018 Kevorkian filed a motion to reconsider the court's order sustaining the Reed, Marques, and Nebel demurrer, which Kevorkian set for hearing on June 1, 2018. Kevorkian argued the trial court should not have denied leave to amend because Kevorkian could not have anticipated defendants' demurrer when he drafted the complaint; he believed he had followed proper GCA claim procedures; and he only learned he had claims against LASD after the May 9, 2016 dismissal based on advice he received from his criminal defense attorney. Kevorkian also asserted he could not have filed a government claim earlier because he did not receive "copies of all the discovery, minute order[s], redacted police reports, [or pictures] of the alleged vandalized car, from my previous attorney . . . until June of 2016." Kevorkian did not explain how the documents bore on his ability to file a government claim. On May 8, 2018 the court entered judgment in favor of Reed, Marques, and Nebel and dismissed the case as to them. On June 1, 2018 the court heard argument on Kevorkian's motion to reconsider and denied the motion, finding Kevorkian failed to present any different facts, circumstances, or law to support reconsideration of the prior order.
Kevorkian attached to his supporting declaration a May 9, 2016 letter from the attorney stating, "[Y]ou asked me for a non-redacted police report. . . . If you would like a copy of the non-redacted report you may attempt to obtain a copy from the court or the Sheriff's Department. You also have a civil case and have subpoena power in that civil case. Although, I cannot provide legal advice, you may want to research obtaining the report via that method."
Kevorkian also attached to his declaration a photograph of a dented Honda Civic; a six-pack photographic lineup; his criminal case docket; and the May 10, 2016 minute order showing dismissal of the case. The photograph and photographic lineup contained a handwritten note, "Received June 2016."
On May 15, 2018 LASD and Hernandez filed a demurrer to the complaint. The trial court sustained the demurrer without leave to amend on the same grounds on which it had sustained Reed, Marques, and Nebel's demurrer. On June 22, 2018 the court entered judgment in favor of LASD and Hernandez and dismissed the entire action. Kevorkian timely appealed.
DISCUSSION
A. Standard of Review
"'In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.'" (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050 (King); accord, T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) When evaluating the complaint, "we assume the truth of the allegations." (Lee v. Hanley (2015) 61 Cal.4th 1225, 1230; accord, McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
"If the demurrer was sustained without leave to amend, we consider whether there is a 'reasonable possibility' that the defect in the complaint could be cured by amendment." (King, supra, 5 Cal.5th at p. 1050.) "The burden is on plaintiff[] to prove that amendment could cure the defect." (Ibid.) Plaintiff "'may [even] meet this burden [for the first time] on appeal.'" (Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill Extension Construction Authority (2018) 19 Cal.App.5th 1127, 1132; accord, Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 971.)
However, "[a] judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground." (Carman v. Alvord (1982) 31 Cal.3d 318, 324; accord, Summers v. Colette (2019) 34 Cal.App.5th 361, 367.) B. Kevorkian's Tort Causes of Action Are Barred Because He Failed To Present a Timely Claim Under the GCA
Defendants argue for the first time on appeal they are immune from liability on the state law causes of action pursuant to the governmental immunity provisions of Government Code sections 815.2 and 821.6. "'"As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal . . . ."'" (American Indian Health & Services Corp. v. Kent (2018) 24 Cal.App.5th 772, 789; accord, C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1492 ["opposing party should not be required to defend for the first time on appeal against a new theory"].) Although an appellate court has discretion to consider an issue for the first time on appeal "'where the relevant facts are undisputed and could not have been altered by the presentation of additional evidence,'" (American Indian Health & Services Corporation, at p. 789), we do not reach the question of immunity because we affirm on other grounds that were raised below.
"As part of the California Tort Claims Act, Government Code section 900 et seq. establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. (§ 945.4.)" (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237, fn. omitted.) "[F]ailure to allege facts demonstrating or excusing compliance with this claim presentation requirement subjects a complaint to a general demurrer." (Ibid.)
The claim presentation requirement of Government Code section 911.2 does not apply to a federal civil rights claim brought pursuant to section 1983. (Williams v. Horvath (1976) 16 Cal.3d 834, 842.) Further, the GCA applies only to claims for money damages, not to actions for injunctive or declaratory relief. (Hart v. County of Alameda (1999) 76 Cal.App.4th 766, 782.) This exception for injunctive or declaratory relief does not apply, however, where the demand for nonmonetary relief is merely incidental to a prayer for damages. (Ibid.; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1081.) Kevorkian's complaint includes a general prayer "[f]or whatever further relief, including but not limited to, for declaratory relief or for injunctive relief, as may be just and proper." This prayer is incidental to Kevorkian's claims for damages because the complaint is devoid of allegations setting forth what injunctive or declaratory relief Kevorkian seeks. Moreover, Kevorkian has not argued in the trial court or on appeal that he seeks nonmonetary relief.
1. Kevorkian did not present his claim to the County within six months of accrual of his claims or apply for leave to present a late claim
Government Code section 911.2 provides a "claim relating to a cause of action . . . for injury to person . . . shall be presented . . . not later than six months after the accrual of the cause of action." The date of accrual for the purpose of presentation of a claim is the date on which the cause of action would have accrued within the meaning of the statute of limitations applicable to that cause of action. (Gov. Code, § 901.)
A late claim may be presented up to one year after accrual of the cause of action by submitting a written application to the government entity for leave to present the late claim. (Gov. Code, § 911.4.) Kevorkian did not apply to present a late claim, and he did not file his claim within a year of accrual.
Kervorkian contends his state law claims accrued when the criminal case against him was dismissed based on the late discovery rule. Defendants argue the claims accrued at the latest when Kevorkian was arraigned on October 21, 2015. The County has the better argument.
Kevorkian's complaint asserts three tort causes of action, negligence, NIED, and IIED. Generally, a tort cause of action accrues at "'the time when the cause of action is complete with all of its elements.'" (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox); accord, Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1389 (Rosas).) "If the last element of the cause of action to occur is damage, the statute of limitations begins to run on the occurrence of 'appreciable and actual harm, however uncertain in amount,' that consists of more than nominal damages. [Citations.] '. . . [O]nce plaintiff has suffered actual and appreciable harm, neither the speculative nor uncertain character of damages nor the difficulty of proof will toll the period of limitation.'" (San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1326 (S.F. Unified School Dist.); accord, Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 323.) "It is 'the fact of damage rather than the amount [that] is the relevant consideration' in determining the existence of 'actual harm.'" (Choi, at p. 323, quoting Adams v. Paul (1995) 11 Cal.4th 583, 589.)
However, "[a]n important exception to the general rule of accrual is the 'discovery rule,' which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.] [¶] A plaintiff has reason to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements.' [Citations.] Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period." (Fox, supra, 35 Cal.4th at p. 807; accord, Rosas, supra, 236 Cal.App.4th at pp. 1389-1390.) Our evaluation is not "hypertechnical"; rather, "we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them." (Fox, at p. 807.) The plaintiff has the burden to allege why he or she could not have discovered the claims at the time of accrual. (Id. at p. 809.) To invoke the discovery rule, plaintiff "'must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.'" (Id. at p. 808.)
Kevorkian alleges he first received a call from Hernandez on August 31, 2015 accusing him of committing vandalism and telling him there was video evidence proving his involvement. Then, on October 8, 2015 Kevorkian received a notice to appear telling him he would be charged with criminal vandalism and ordering him to appear on October 21. On October 21, 2015 Kevorkian appeared in court for arraignment on the complaint that had been filed the day before. Although the complaint is vague as to the precise nature of defendants' alleged tortious conduct, the gravamen of Kevorkian's claims is (1) the LASD officers mistreated Kevorkian during their interactions with him; and (2) the officers and LASD "[f]ail[ed] to [conduct a] reasonable investigation before submitting the case to [the d]istrict [a]ttorney's office in order to face criminal charges on October 21, 2015."
Thus, defendants' alleged breaches occurred at the latest on October 21, 2015, when Kevorkian was haled into court to face the criminal vandalism charge. The fact Kevorkian did not understand he had a legal right to file a lawsuit until his lawyer advised him of this following the dismissal is not a legal basis for application of the discovery rule. Likewise, Kevorkian's desire for additional documents to support his case, which he received from his lawyer following the dismissal, does not support his delayed discovery argument. If Kevorkian did not intentionally damage a vehicle in the supermarket parking lot in Altadena, he would have known he was falsely accused from the moment Hernandez called him, and he would reasonably have suspected defendants were negligent when they caused a criminal charge to be filed against him. Kevorkian alleges he suffered "serious emotional distress" as a result of Hernandez's initial call and the filing of the criminal charge. This harm was "actual and appreciable" by the date Kevorkian appeared in court on October 21, 2015, even if he continued to suffer harm through the dismissal of the charges in May 2016. (S.F. Unified School Dist., supra, 37 Cal.App.4th at p. 1326.)
Had Kevorkian alleged a claim for malicious prosecution, the claim would have accrued at the time of dismissal of the criminal action because the tort requires proof the criminal action was "pursued to a legal termination in favor of the malicious prosecution plaintiff." (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775.) Although the complaint alleges Kevorkian endured "seven long agonizing months going to [c]ourt and facing malicious prosecution," he does not allege a claim for malicious prosecution. Further, Kevorkian has not alleged defendants acted with malice, an element of a malicious prosecution claim. (Ibid.) Rather, he alleges only defendants' negligent investigation of the incident and referral to the district attorney's office.
The complaint implies, but does not allege, Kevorkian is innocent of the incident in the supermarket parking lot. He alleges, "[E]ach of the Defendants knew or with the exercise of reasonable diligence should have known that Plaintiff had taken no steps to violate any penal code filed against the plaintiff on October 21, 2015, that would justify his criminal acts."
2. The claim presentation deadline was not tolled while criminal charges were pending against Kevorkian
Kevorkian contends his deadline to file a claim was tolled pursuant to Government Code section 945.3 while criminal charges were pending against him. Because the misdemeanor charge was not dismissed until May 9, 2016, Kevorkian argues the clock did not begin to run on his claim until that date, and his October 31, 2016 claim was therefore timely presented. This argument lacks merit.
Government Code section 945.3 bars any person charged with a criminal offense from bringing "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 the charges against the accused are pending before a superior court." To protect the plaintiff's right to redress, the statute provides, "Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a superior court." (Ibid.)
However, Government Code section 945.3 explicitly states: "Nothing in this section shall prohibit the filing of a claim with the board of a public entity, and this section shall not extend the time within which a claim is required to be presented pursuant to Section 911.2." (See McMartin v. County of Los Angeles (1988) 202 Cal.App.3d 848, 858 [affirming denial of petition for relief from an untimely government claim despite pending criminal case].) As the McMartin court explained, "[T]he mere fact the criminal defendant cannot yet sue on the claim does not mean a local public entity will deny the claim, nor does it lessen the need for investigation of the claim, correction of the conditions or practices which gave rise to the claim or planning for the possible fiscal impact of a future suit." (Ibid.) Kevorkian cannot avoid the plain language of Government Code section 945.3 that negates his tolling argument.
3. Kevorkian cannot cure the GCA bar by amending the complaint
Denial of leave to amend is appropriate when the plaintiff has failed to demonstrate the possibility of an amendment that would cure the defective pleading. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 386-387 [denying leave to amend to allege equitable estoppel where no factual basis for defense]; Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 579-580 (Hedwall) [denying leave to amend where plaintiff "identifie[d] no new allegations supporting the possibility of amending the [complaint] to cure its defects, and no legal authority showing the viability of any potential causes of action against [defendant]"].) Further, allowing leave to amend is not warranted where an amendment would be futile. (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1124 [affirming denial of motion for leave to amend because proposed amendment would not cure statute of limitations bar].)
Kevorkian has not identified how he could amend the complaint to cure his failure timely to file a claim, nor can he given the undisputed fact he waited more than a year after the October 21, 2015 accrual of his tort causes of action to file his claim. C. Kevorkian's State Due Process Claim Fails Because There Is No Private Action for Damages Under Article I, Section 7, Subdivision (a) of the California Constitution
Kevorkian's fourth cause of action alleges defendants violated his due process rights under article I, section 7 of the California Constitution, and "[a]s a result of their actions, [d]efendants have caused [p]laintiff significant emotional and physical harm." Kevorkian's claim fails because there is no private right of action for damages under the state Constitution.
Article I, section 7, subdivision (a) provides that a "person may not be deprived of life, liberty, or property without due process of law." However, the Supreme Court has recognized there is no "constitutional tort cause of action for damages to remedy an asserted violation of the due process 'liberty' interest under article I, section 7(a)." (Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 326 (Katzberg); accord, Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 391.) Although a plaintiff may seek injunctive or declaratory relief under the state Constitution, the complaint does not seek a specific declaration or injunction to curb the alleged violation of Kevorkian's civil rights, nor has Kevorkian argued in his appellate briefing his right to declaratory or injunctive relief. The complaint's generic prayer "for whatever further relief, including but not limited to, for declaratory relief or for injunctive relief" cannot alone support his state constitutional claims. D. Kevorkian's Federal Civil Rights Claim Fails Because He Has Not Alleged a Constitutional Violation Pursuant to an Official Custom or Practice
The complaint does not allege violation of a state statute giving rise to a private right of action for damages, such as a claim under Civil Code section 52.1 (Tom Bane Civil Rights Act) or Civil Code section 51 (Unruh Civil Rights Act), and the allegations and briefing do not show Kevorkian could state a claim under these statutes. (See Civ. Code, §§ 52.1, subd. (b) [authorizing civil action against person who interferes or attempts to interfere "by threat, intimidation, or coercion" with individual's exercise or enjoyment of federal or state rights], 51 [requiring "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments"].) Even if Kevorkian could allege a violation under these statutes, his claims would be barred under the GCA as untimely. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 763 [GCA applies to actions under Civ. Code, §§ 51 & 52.1, provided the damages sought are not incidental or subsidiary to the plaintiff's interest in injunctive relief].)
1. Section 1983 pleading requirements
In reviewing a trial court's sustaining of a demurrer to a section 1983 claim, "we '"apply federal law to determine whether [the] complaint [has pleaded] a cause of action . . . sufficient to survive a general demurrer." [Citations.] According to federal law, "we are required to construe complaints under [section 1983] liberally." [Citation.] "To uphold a dismissal [for failure to state a claim for relief, the federal counterpart of our general demurrer], it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved." [Citation.]' [Citation.] . . . [Citations.] In line with California practice, the court accepts the allegations in the complaint as true and construes the allegations, and any reasonable inferences that may be drawn from them, in the light most favorable to the plaintiff." (Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1471 (Arce); accord, Rubin v. Padilla (2015) 233 Cal.App.4th 1128, 1144.)
Under federal law, allegations of a complaint filed by a self-represented litigant, "'however inartfully pleaded[,]' are held 'to less stringent standards than formal pleadings drafted by lawyers . . . .'" (Hughes v. Rowe (1980) 449 U.S. 5, 9; accord, Litmon v. Harris (9th Cir. 2014) 768 F.3d 1237, 1241 (Litmon) ["We construe pro se complaints liberally, especially in civil rights cases."]; Pierce v. San Mateo County Sheriff's Dept. (2014) 232 Cal.App.4th 995, 1002 (Pierce).) "'However, a liberal interpretation of a pro se civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.'" (Litmon, at p. 1241; see Ashcroft v. Iqbal (2009) 556 U.S. 662, 678 ["Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."].)
2. Kevorkian's federal civil rights claim
Section 1983 "creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States. Under the terms of the statute, '"[e]very person" who acts under color of state law to deprive another of a constitutional right [is] answerable to that person in a suit for damages.'" (Rehberg v. Paulk (2012) 566 U.S. 356, 361.) "'"State courts look to federal law to determine what conduct will support an action under section 1983. [Citation.]"' [Citation.] 'The threshold inquiry [in analyzing a section 1983 claim] is whether the evidence establishes that appellants have been deprived of a constitutional right.'" (Arce, supra, 211 Cal.App.4th at pp. 1472-1473; accord, Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 384.)
A local government entity and its officials sued in their official capacity may only be liable under section 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . ." (Monell v. Department of Social Services (1978) 436 U.S. 658, 694 (Monell); accord, Pierce, supra, 232 Cal.App.4th at p. 1007; Perry v. County of Fresno (2013) 215 Cal.App.4th 94, 105.) To establish liability under Monell, "[t]he plaintiff must establish that (1) the plaintiff was deprived of a constitutional right; (2) the government entity had a policy [or custom]; (3) this policy amounted to deliberate indifference to the plaintiff's constitutional right; and (4) the policy was the moving force behind the constitutional violation." (Perry, at pp. 105-106.)
Kevorkian alleges the individual defendants were acting in their official capacity in the course and scope of their governmental employment when they engaged in the alleged conduct.
Kevorkian alleges defendants violated his right to due process under the Fourteenth Amendment, although he does not specify the nature of the due process violation. He alleges that in gathering evidence and filing charges against him, "each of the [d]efendants knew or with the exercise of reasonable diligence should have known that [Kevorkian] had taken no steps to violate any penal code filed against [Kevorkian] on October 21, 2015, that would justify his criminal acts." At the hearing, Kevorkian characterized his claim as alleging defendants referred the case for criminal prosecution without evidence. We therefore read the complaint to allege defendants knew (or should have known) Kevorkian had not committed vandalism, but still referred the case to the district attorney's office for prosecution.
Kevorkian contends his due process rights were violated by the financial and emotional toll the allegedly false charges had on him. However, as defendants point out, Kevorkian was not arrested or placed in custody; rather, he was ordered by letter to appear for his arraignment. Nor has he alleged defendants fabricated evidence against him, instead alleging a failure adequately to investigate the facts before referring his matter to the district attorney's office. (Cf. Caldwell v. City and County of San Francisco (9th Cir. 2018) 889 F.3d 1105, 1112 ["'[T]here is a clearly established constitutional due process right not to be subject to criminal charges on the basis of false evidence that was deliberately fabricated by the government.'"]; Spencer v. Peters (9th Cir. 2017) 857 F.3d 789, 793.) As the Supreme Court held in Daniels v. Williams (1986) 474 U.S. 327, 328, "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property."
"It is well established that 'an arrest without probable cause violates the Fourth Amendment and gives rise to a claim for damages under § 1983.'" (Rosenbaum v. Washoe County (9th Cir. 2011) 663 F.3d 1071, 1076.)
Even if Kevorkian could allege a constitutional violation, he cannot satisfy the second factor of a Monell claim, that defendants implemented an official policy or custom that resulted in deprivation of Kevorkian's rights. (Monell, supra, 436 U.S. at p. 694; Pierce, supra, 232 Cal.App.4th at p. 1007.) Kevorkian does not allege LASD had a policy or custom of referring cases to the district attorney's office based on false facts. Rather, he alleges noncompliance with LASD's policies and practices. Specifically, Kevorkian alleges defendants were negligent in their "[i]mproper compliance with policies, practices, and procedures, in the investigation of an alleged violation of PC 594(A)" and "[a]llowing a culture to exist of improper or non-compliance with policies, practices and procedures in the investigation of an alleged violation of PC 594(A), and submitting the false facts and evidence to the [district attorney]." Absent an allegation LASD had an official policy or custom promulgated by county lawmakers or officials who set official policy that violated Kevorkian's due process rights, he has not alleged sufficient facts to state a Monell claim. (See Bach v. County of Butte (1983) 147 Cal.App.3d 554, 569 [allegation county had unconstitutional policies and customs that led to prosecution of baseless criminal action insufficient to state § 1983 claim absent allegation policy or custom was promulgated by lawmakers or individuals whose acts represented official policy]; Federer v. County of Sacramento (1983) 141 Cal.App.3d 184, 186 [affirming order sustaining demurrer without leave to amend to § 1983 claim against county, sheriff, and sheriff's deputies where plaintiffs alleged deputy sheriff violated state policy by leaving county jail door open, enabling prisoner to escape].) Kevorkian has also failed to explain how he could amend the complaint to allege an unlawful policy or custom to support his civil rights claim. (Hedwall, supra, 22 Cal.App.5th at pp. 579-580.) E. The Trial Court Did Not Have Jurisdiction To Consider Kevorkian's Motion for Reconsideration
Although the complaint's use of commas and the conjunction "and" creates an ambiguity, the complaint appears to allege a culture of noncompliance with LASD policies and procedures that caused the submission of "false facts and evidence to the [district attorney]." Kevorkian does not contend the alleged culture was the referral of cases to the district attorney based on fabricated facts. Nor could his section 1983 claim be based on this "[v]ague and conclusory allegation[] of official participation in civil rights violations . . . ." (Litmon, supra, 768 F.3d at p. 1241.) Kevorkian's allegation LASD failed to use reasonable care in hiring, training, and supervising deputies regarding filing charges likewise does not relate to an official policy or custom. In his reply Kevorkian contends the official policy (although not alleged) was the action by the station's captain to direct the sheriff's deputies to authorize the filing of a criminal charge against Kevorkian. But even if alleged, the captain's direction to refer Kevorkian's case to the district attorney's office does not allege an official policy of referring cases without factual support.
"'A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered.'" (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236.) However, "entry of judgment ordinarily terminates a trial court's jurisdiction to rule on the merits of a case, apart from ruling on a new trial motion, a motion to vacate the judgment or a similar motion." (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 479; accord, Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1481-1482 ["It is well settled that entry of judgment divests the trial court of authority to rule on a motion for reconsideration."]; APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 182 ["Once the trial court has entered judgment, it is without power to grant reconsideration."]; Ramon, at p. 1236 ["[A]fter entry of judgment, a trial court has no further power to rule on a motion for reconsideration."].)
The trial court entered a judgment dismissing Reed, Marques, and Nebel from the case on May 8, 2018. The court therefore did not have jurisdiction on June 1, 2018 to hear Kevorkian's motion for reconsideration of the order sustaining their demurrer.
The trial court sustained LASD and Hernandez's demurrer on June 8, 2018, a week after it denied the motion for reconsideration, so there is no basis to construe the motion for reconsideration to apply to LASD and Hernandez's demurrer. Even if the trial court had jurisdiction to consider the motion to reconsider, it did not abuse its discretion in finding Kevorkian did not present new or different facts or present a satisfactory explanation for not having presented the information earlier. (Code Civ. Proc., § 1008; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) Kevorkian could have argued in his opposition to the demurrer that he only learned he had a viable claim and obtained relevant documents after the May 9, 2016 dismissal.
DISPOSITION
The judgment is affirmed. Defendants are entitled to recover their costs on appeal.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.