Opinion
F080530
04-29-2021
CHRISTOPHER LIPSEY, JR., Plaintiff and Appellant, v. K. PHILLIPS et al., Defendants and Respondents.
Christopher Lipsey, Jr., in pro. per., for Plaintiff and Appellant. Xavier Becerra, Attorney General, Danielle F. O'Bannon, Assistant Attorney General, Peter A. Meshot and Jason R. Cale, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19C0244)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kings County. Kathy Ciuffini, Judge. Christopher Lipsey, Jr., in pro. per., for Plaintiff and Appellant. Xavier Becerra, Attorney General, Danielle F. O'Bannon, Assistant Attorney General, Peter A. Meshot and Jason R. Cale, Deputy Attorneys General, for Defendants and Respondents.
Before Detjen, Acting P.J., Franson, J. and Snauffer, J.
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This personal injury lawsuit was filed by Christopher Lipsey, Jr., an inmate who was injured while riding in a bus that collided with a pole on the grounds of Corcoran State Prison. The prison employees he sued filed a demurrer, contending Lipsey failed to comply with the claim presentation requirements of the Government Claims Act (Gov. Code, § 810 et seq.). The trial court sustained a demurrer without leave to amend. Lipsey appealed.
Unlabeled statutory references are to the Government Code.
As explained below, we conclude Lipsey failed to present a claim within six months after his personal injury cause of action accrued. In addition, he did not file a petition for relief from the claim presentation requirements and, thus, failed to meet the six-month limitation period for such a petition. (§ 946.6, subd. (b).) Consequently, his lawsuit is barred by his failure to comply with the Government Claims Act.
We therefore affirm the judgment.
FACTS AND PROCEEDINGS
On December 11, 2017, Lipsey, an inmate at Corcoran State Prison, was riding in a bus for the purpose of being taken to a hospital for medical care of his injured shoulder. The bus was driven by K. Phillips. Lipsey's hands were cuffed behind his back and he was inside a metal cage about the size of a phone booth. There were no seatbelts inside the cage. While on prison grounds, Phillips crashed the bus into a pole, causing further injuries to Lipsey's shoulder and neck.
In March 2018, Lipsey submitted an inmate grievance on form "CDCR 602" to prison officials. Lipsey pursued the grievance with the second and third levels of appeal. The third level appeal decision was dated September 5, 2018. It stated the appeal was denied and the decision exhausted the administrative remedy available to Lipsey through the prison.
On September 12, 2018, Lipsey signed and dated a government claims form. The prison's mail log entry for the claim form is September 14, 2018. The form was stamped received by the Government Claims Program (GCP) on October 1, 2018. The GCP sent Lipsey a letter dated November 2, 2018, stating his "cause of action accrued 12/11/2017, more than six months prior to the presentation date of the claim. Therefore, the claim was presented late, pursuant to Government Code section 911.2." The letter also stated:
"You enclosed with your claim an application for leave to present a late claim (late application). [¶] GCP staff is reviewing the late application to determine if it meets the requirements of the Government Code. The length of the review process can vary because GCP staff may request input from the California Department of Justice to aid its analysis. After completing the review, GCP staff will provide notice of its final determination."
After GCP staff completed the review, GCP sent Lipsey a letter dated November 7, 2018, stating the application to present a late claim was denied for failure to meet the requirements of section 911.6. The letter advised Lipsey that his recourse was to file a petition in court and seek relief from the requirements of the Government Code. The letter stated such a petition had to be filed within six months.
On June 25, 2019, Lipsey's personal injury complaint was received and filed by the Kings County Superior Court. The postage meter imprint on the envelope was dated June 13, 2019. Lipsey used the Judicial Council's personal injury complaint form and attached causes of action for general negligence, intentional tort, and premises liability. Lipsey also include an exemplary damages attachment requesting $150,000. The complaint named Phillips, J. Davidson, R. Godwin, D. Davey, and S. Kernan as defendants. In August 2019, the summons and complaint were served on defendants Phillips, Davidson, Godwin, and Davey by the sheriff's office.
In September 2019, defendants filed a demurrer. Defendants asserted that Lipsey had failed to comply with the requirements of the Government Claims Act because he failed to file a petition for leave to file a late claim. Defendants also filed a motion to strike punitive damages. Lipsey filed oppositions papers, which defendants contended were not properly served.
The hearing on the demurrer and motion to strike was originally set in October 2019 and was continued to November 21, 2019. On that date, Lipsey and defense counsel appeared by CourtCall, the trial court announced its tentative ruling, and the parties presented argument. The court sustained the demurrer without leave to amend and granted the motion to strike exemplary damages. The court signed and filed written orders later that day.
In December 2019, defendants served and filed notices of entry of the orders. Lipsey filed a timely appeal.
DISCUSSION
I. CLAIM PRESENTATION REQUIREMENTS
A. Alleging Compliance
Inmate lawsuits alleging state law causes of action against prison officials usually are subject to the claim presentation requirements of the Government Claims Act. Compliance with the Government Claims Act's requirements is a condition precedent to maintaining a tort action and, therefore, compliance is treated as an essential element of the cause of action that must be pleaded. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239-1240.) Thus, the failure to allege facts demonstrating or excusing compliance with the claim presentation requirements of the Government Claims Act subjects a claim against a public entity or employee to a demurrer for failure to state a cause of action. (Id. at p. 1239; see Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1382.)
We conduct an independent review of the trial court's order sustaining the demurrer. (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305.) When a demurrer is sustained without leave to amend, the decision not to grant leave to amend is subject to review for an abuse of discretion. To establish an abuse of discretion, the plaintiff has the burden of demonstrating there is a reasonable possibility any defect identified can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
B. Absence of a Timely Claim
Section 911.2 provides that a written claim for personal injury damages must be presented to the state "not later than six months after the accrual of the cause of action." (§ 911.2, subd. (a).) Lipsey alleges he was injured in a December 11, 2017 collision. Thus, his causes of action for his personal injuries accrued for purposes of the Government Claims Act on December 11, 2017. Based on this accrual date and the six-month claim presentation period, Lipsey was required to submit his claim for damages on or before June 11, 2018.
Lipsey's complaint alleges his claim was filed on October 1, 2018, and was deemed denied because no response was given within 45 days. (See § 912.4 [time for board to act on a claim].) This allegation is clarified by defendants' request for judicial notice, which included a copy of the government claim form received by GCP on October 1, 2018, and correspondence sent to Lipsey in response to the claim. Lipsey's signature on the form was dated September 12, 2018. The form identified the date of the incident as December 11, 2017, and included a separate attachment to explain the late filing. The attachment stated Lipsey's claim was made after six months because he "wanted to send you all my appeal which substantiates my claim after I exhausted my administrative remedies. My [administrative] appeal was exhausted on or about 9-5-18."
"[T]he cases make it plain that plaintiff's obligation to exhaust the administrative remedies available to prisoners ... is independent of the obligation to comply with the Government Claims Act." (Parthemore v. Col, supra, 221 Cal.App.4th at p. 1382.) More specifically, "the doctrine of equitable tolling cannot be invoked to suspend section 911.2's six-month deadline for filing a prerequisite government claim." (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1121.) In other words, "the six-month period of section 911.2 is not a statute of limitation [citation] to which tolling rules might apply." (Ibid.) Consequently, Lipsey's six-month period for presenting a claim under the Government Claims Act was not tolled while he pursued his inmate grievance through the three formal levels of appeal. Because equitable tolling does not apply, the period in which Lipsey was required to present a claim was not extended past the June 11, 2018 deadline set by the six-month period in section 911.2, subdivision (a). Therefore, the claim form Lipsey mailed in September 2018 was not timely.
C. Application to Present a Late Claim
When a claim is not presented within the six-month period, "a written application may be made to the public entity for leave to present that claim." (§ 911.4, subd. (a).) The reviewing board is required to grant or deny such an application within 45 days after it is presented. (§ 911.6, subd. (a).) The grounds on which an application may be granted are set forth in section 911.6, subdivision (b). If the board fails or refuses to act on an application within the prescribed time, the application shall be deemed denied on the 45th day. (§ 911.6, subd. (c).)
Here, Lipsey's claim form, with its explanation for why it was not filed within six months of the incident, was treated as an application to file a late claim. GCP's November 7, 2018 letter informed Lipsey that his application to present a late claim was "denied for failure to meet the requirements of Government Code section 911.6." The letter also advised:
"Your recourse, should you wish to pursue the matter further, is to file a petition in court for relief from the requirements of Government Code Section 945.4. You will have six months from the date of this notice to file a petition. If the courts grant the petition, you will have 30 days from the date the petition is granted to file suit on the cause of action to which this claim relates."
Based on the contents of the November 7, 2018 letter, we conclude GCP denied Lipsey's application for leave to present a late claim.
D. Petition for Relief
When a late claim application is denied by GCP, the applicant's last recourse is to petition the superior court for relief from the claim presentation requirements. (J.M. v. Huntington Beach High School Dist. (2017) 2 Cal.5th 648, 653.) "The petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6." (§ 946.6, subd. (b), italics added.) The California Supreme Court has addressed this time limit by stating: "The six-month period 'operates as a statute of limitations. It is mandatory, not discretionary.' (D.C. v. Oakdale Joint Unified School Dist. (2012) 203 Cal.App.4th 1572, 1582 , citing cases.)" (J.M., supra, 2 Cal.5th at pp. 653-656.)
Here, Lipsey's application to file a late claim was denied on November 7, 2018. Pursuant to section 946.6, Lipsey was required to file a petition for relief within six months. Lipsey did not file a petition. Instead, seven months and 18 days after the application was denied, he filed a personal injury complaint. As a result, Lipsey did not comply with the mandatory six-month period for filing a petition for relief from the Government Claim Act's claim presentation requirements. That time period operates as a statute of limitations and bars Lipsey from pursuing his personal injury lawsuit.
We note Lipsey's reply brief contends he presented his government claim form on or about September 12, 2018, when he mailed the claim form by handing it to a correctional officer for mailing. Lipsey's reply brief asserts defendants "decided not to challenge this but instead focused on the application to file a late claim being denied on 11-7-2018 and [his] failure to petition for relief [under] section 946.6." Lipsey argues defendants' "decision is waived or was forfeited by not challenging Lipsey's claim of presenting his claim to the GCP on 9-11-2018." We reject this argument. The demurrer pursued by defendants is based on the absence of a timely claim and the failure to obtain relief from the claim presentation requirements. It would not make sense for defendants to assert Lipsey failed to obtain relief while conceding his September 2018 claim was timely. If the claim was timely, the failure to file a petition would be irrelevant—that is, it would not be a ground that would bar Lipsey's lawsuit. Therefore, we do not construe the arguments explicitly raised by defendants as waiving the untimeliness of Lipsey's claim. The untimeliness of the claim was plainly established by the record and recognized by GCP in its November 2, 2018 letter.
The trial court properly sustained the demurrer without leave to amend because Lipsey failed to comply with the requirements of the Government Claims Act.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.