Opinion
G031343.
11-4-2003
ROBERT MITCHELL, Plaintiff and Appellant, v. ORANGE COUNTY SHERIFF DEPUTIES, et al., Defendants and Respondents.
Robert Mitchell, in pro. per., for Plaintiff and Appellant. Sullivan, Struck & Ballog, Albert P. Ballog, Daniel R. Sullivan; and Jeffrey L. Garland for Defendants and Respondents.
Robert Mitchell was attacked in the Orange County Mens Jail by a fellow inmate. The deputies he summoned for help stood by and permitted the attack to endure for approximately 10 minutes. Mitchell filed a complaint against the deputies, alleging violations of his civil rights, assault and battery, negligence, personal injury, and intentional and negligent infliction of emotional distress. He now appeals from an order of the superior court sustaining the Orange County Sheriff Deputies demurrer without leave to amend.
Technically, this appeal is premature due to no judgment having been made. Because it would be a waste of time to dismiss it only to have it immediately refiled, we will construe the minute order "`to incorporate a judgment in the interests of justice and to avoid delay." (Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539.) For the same reason we will deny the defendants motion to dismiss the appeal as moot based on the idea that the Ninth Circuit has recently allowed a 42 U.S.C. section 1983 action brought by Mitchell to go forward, at least for the moment. While plaintiff has filed a document with this court requesting that the appeal be dismissed pending final resolution of his federal case, his request is for a dismissal without prejudice. That we cannot do. A dismissal would necessarily be with prejudice given the finality of the judgment in the trial court. Accordingly, we determine that it will save more time and effort in the long run if we proceed to resolve the merits of the plaintiffs state court appeal.
Mitchell did not file his complaint against the deputies within a year of the incident. Because the controlling statute of limitations is the one year time-limit of former Code of Civil Procedure section 340, subdivision (3), the general personal injury statute, Mitchells claim is time-barred. Accordingly, we affirm the trial courts order.
In 2002, effective January 2003, section 340 was amended. Subdivisions (1) to (5) were redesignated (a) to (e). Subdivision (c) was further amended, deleting "assault, battery" and "or for injury to or for the death of one caused by the wrongful act or neglect of another." These portions are now covered by Code of Civil Procedure section 335.1 and have a two-year limit.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
I. FACTS
On the evening of April 8, 2000, there was an incident at the Orange County Mens Jail. Stanley Holmes, an inmate, told Robert Mitchell, another inmate, to leave the cell or Holmes would kill him. Mitchell, believing Holmes, pressed the call button to report the threat to Deputy Porras who was in the watch station. Porras stated, "It dont look like nobodys dying. Dont push the call button." Holmes then attacked Mitchell with two shanks, stabbing him in the arms and body.
Mitchell fought back, screamed, called for help and was eventually able to press the call button again to report the attack. Porras electronically opened the cell door and Mitchell was able to flee to the upstairs tier. His momentary solace was shattered, however, by a renewed attack by Holmes, who managed to follow him to the higher tier.
Again, Mitchell fought Holmes off and fled down to the door of the dayroom where he pressed the call button and begged to be let in. Deputies Porras, Pavlu, Baugh, and Stockbridge did not open the door until Holmes had caught up to Mitchell and began attacking once more.
When Pavlu released the lock, Mitchell fell and struck his head on the concrete floor and Holmes continued his attack. Finally, Deputies Corvoisier and Demarest intervened. Upon arrival on the scene, the deputies pepper-sprayed, struck, kicked, and cuffed Mitchell until they were informed by Porras, Baugh, Pavlu, and Stockbridge that Mitchell was the victim.
The attack lasted for about 10 minutes.
Two years and one day later, on April 9, 2002, Mitchell filed his complaint against Deputies Porras, Baugh, Pavlu, Stockbridge, Corvoisier, and Demarest (also referred to as "the Orange County Sheriff Deputies"), alleging violations of his rights under the United States Constitution and its Eighth and Fourteenth Amendments and for assault and battery, negligence, personal injury, and intentional and negligent infliction of emotional distress. The deputies filed a demurrer based on Mitchells failure to file his complaint within the one-year time limit specified by Code of Civil Procedure section 340, subd. (3). The trial court sustained the demurrer without leave to amend. Mitchell has now appealed.
II. DISCUSSION
Mitchell claims that he deposited his complaint in the prison mailing system on April 5, 2002, which would make his complaint timely if a two-year statue of limitations applied — assuming, of course, that statutes of limitations governing civil cases are to be treated like notices of appeal in criminal cases. (Cf. In re Jordan (1992) 4 Cal.4th 116 [excusing late notice of appeal by incarcerated would-be appellants as long as timely delivered to prison authorities].)
We need not decide that question here. Mitchells causes of action are clearly governed by a one-year statute of limitations.
The two-year statute that Mitchell hopes is applicable, Government Code section 945.6 subdivision (a), is not. That statute only applies to "any suit brought against a public entity . . . ." But Mitchell is, literally, not suing any public entities — the County of Orange is not a defendant.
Mitchells claims against the Orange County Sheriff Deputies are for violations of his civil rights, assault and battery, negligence, personal injury, and intentional and negligent infliction of emotional distress, and are thus governed by the statutory limitations set forth in section 340, subdivision (3). Former Code of Civil Procedure section 340, subdivision (3) explicitly sets a one-year filing limitation for all of these except civil rights, and the federal courts have held that the statute of limitations for civil rights actions is one year also. (E.g., Johnson v. State of Cal. (9th Cir. 2000) 207 F.3d 650, 653.)
III. DISPOSITION
Because Mitchells claim is time-barred, we affirm the order of dismissal (construed to incorporate a judgment of dismissal).
The question next arises as to costs. The allegations in the complaint present a picture of some fairly callous disregard by the defendant deputies of Mitchells person. This court has the power to award Mitchell his costs, even as loser, if that were in the interests of justice. (Cal. Rules of Court, rule 27(a)(4).)
However, as of this moment those allegations are unproved, and will probably remain unproved given our decision today. On balance, given the procedural nature of the defendants win, justice is best served here if each side bears its own costs on appeal.
WE CONCUR: RYLAARSDAM, J. and OLEARY, J.