Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VC057028, Yvonne T. Sanchez, Judge.
The Krolikowski Law Firm and Adam J. Krolikowski for Plaintiff and Appellant.
Jones & Mayer, Denise L. Rocawich and Jamaar M. Boyd-Weatherby for Defendant and Respondent.
CHAVEZ, J.
Arlie Rosser (appellant) appeals from a judgment of dismissal entered after the trial court sustained the demurrer of respondent City of Whittier (respondent or the City) to appellant’s first amended complaint (FAC) without leave to amend. We affirm.
CONTENTIONS
Appellant contends that the trial court erred in sustaining the demurrer. Appellant argues that, although his initial complaint was filed past the six-month statute of limitations set forth in Government Code section 945.6, the date of filing was subsequently changed, making the complaint timely filed.
All further statutory references are to the Government Code unless otherwise indicated.
Appellant contends that he complied with the Tort Claims Act (§ 900 et seq.), that he identified a statutory basis for liability against the City, and that the City is not entitled to immunity in this case.
Finally, appellant contends that even if the trial court did not err in sustaining the demurrer, he should have been permitted to amend the FAC to cure its defects.
BACKGROUND
Appellant’s FAC against the City alleged that he “presented a timely claim to The City pursuant [to section] 945.4.” The FAC further alleged that the City rejected the claim, permitting him to bring this action.
Appellant alleged that two parking warnings were issued by the Whittier Police Department against his Ford Thunderbird: the first in May 2009, and the second on June 24, 2009. On June 24, 2009, two parking violations were also issued against appellant’s Winnebago. On June 26, 2009, appellant’s son moved the Winnebago, but on the same date, another parking violation was issued against it. On June 29, 2009, a notice of illegal parking was issued on the Winnebago, indicating that it was an “abandoned vehicle” pursuant to Vehicle Code section 22523. On June 29, 2009, the motor home was towed.
The day after appellant’s vehicle was towed, the City painted a blue disabled sign in the area where appellant parked his vehicles.
On July 2, 2009, appellant paid the City $121.00 for the return of his vehicle.
Appellant alleged that there are no signs posted on the street where he parks his vehicles, and that he has complied with the parking rules contained in the City’s Municipal Code and Vehicle Code. Appellant claimed that he had been “negligently ticketed, towed and/or harassed” by the City.
Appellant further alleged that his vehicles had been repeatedly vandalized. However, whenever he called the Whittier Police Department, he received responses such as “just let it go, ” “settle it with your insurance company, ” and “it is within our discretion to fill out a report or not.” Appellant complained that when the police did respond, it often took three to four hours before they arrived.
According to the FAC, “[t]he harassment continues.” Appellant’s Winnebago was towed in early 2010, despite there being no violation of any law or ordinance, and appellant has been financially unable to reclaim his property.
Appellant alleged that the City has a duty to act reasonably and not cause harm to him, and that the above-described acts are a proximate and legal cause of his harm. Appellant alleged that the City has “improperly, wrongfully and negligently applied the laws of the State of California” concerning his vehicles, and that he suffered damages in excess of $25,000.
Appellant’s first cause of action for negligence alleges violations of section 815.2, subdivision (a), as well as Civil Code sections 1708 and 1714.
PROCEDURAL HISTORY
Appellant filed a claim for damages with the City pursuant to the requirement of section 911.2. A copy of the claim was attached as exhibit A to the FAC. The claim was executed on August 15, 2009, and a proof of service was signed on September 16, 2009.
Appellant’s initial complaint was first stamped with the date of April 30, 2010. However, the date is crossed out and the document was then file stamped May 5, 2010.
In his opening brief to this court, appellant explains that, although the complaint was received by the court on April 30, 2010, the clerk later rejected it because it failed to contain a local form that appellant’s attorney’s staff was not aware was required. Because April 30, 2010 was a Friday, appellant’s counsel’s office did not file the required form until May 5, 2010. The complaint was then re-stamped with a filing date of May 5, 2010. None of these facts were alleged in the FAC.
On July 6, 2010, the City demurred to the initial complaint because appellant failed to allege that he complied with the Tort Claims Act and failed to allege a statutory basis for his claims. The City also argued that it was entitled to absolute immunity pursuant to sections 815.2 and 820.4. The trial court sustained the demurrer with leave to amend.
The FAC was filed on July 16, 2010. The FAC asserted one cause of action against the City for negligence in violation of section 815.2, and Civil Code sections 1708 and 1714.
The City again demurred to the FAC. The City argued that appellant had not cured the defects of the FAC. Specifically, the City demurred on the following grounds: (1) the FAC did not allege a proper statutory ground for liability; (2) appellant failed to state facts showing compliance with, or excuse from compliance with, the Tort Claims Act; (3) the action was time barred pursuant to section 945.6; and (4) the action was barred by the absolute immunity provided by sections 815.2 and 820.4.
The trial court sustained the City’s demurrer without leave to amend. The court noted that government liability must be based on statute. The statutes cited by appellant were found to be insufficient bases for imposing liability. In addition, the trial court found that the complaint was not timely filed. A civil claim must be filed within six months of rejection of the claim. (§ 945.6.) The City’s request for judicial notice showed that appellant’s claim was rejected on October 30, 2009. Appellant had until April 30, 2010 to file the action, and it was untimely filed on May 5, 2010. Appellant had failed to show that the doctrine of equitable tolling was applicable.
Finally, the trial court pointed out, the City was entitled to immunity pursuant to section 820.4.
The trial court filed its order sustaining the City’s demurrer without leave to amend on September 22, 2010. The final judgment dismissing the matter with prejudice was entered on October 7, 2010.
Appellant filed a notice of appeal on November 3, 2010.
Appellant’s notice of appeal purports to appeal from the order sustaining the demurrer, entered on September 22, 2010. Pursuant to California Rules of Court, rule 8.100(a)(2), we liberally construe the notice of appeal as an appeal from the final judgment entered on October 7, 2010.
DISCUSSION
I. Standard of review
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
The legal sufficiency of the complaint is reviewed de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
II. The law governing claims against the government
“There is no common law governmental tort liability in California; and except as otherwise provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person. [Citations.]” (Cowing v. City of Torrance (1976) 60 Cal.App.3d 757, 761; § 815, subd. (a).) Thus, appellant must provide specific statutory authority for his position that the City may be held liable for the alleged negligent acts.
Tort claims against the City are also governed by the Tort Claims Act. Under this act, a plaintiff is required to present a written claim to the public entity prior to filing suit. (§ 945.4.) “The timely filing of a claim is an essential element of a cause of action against a public entity and failure to allege compliance with the claims statute renders the complaint subject to a general demurrer. [Citation.]” (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119.) Under section 945.6 of the act, an action in tort against a public entity must be commenced within six months of written rejection of a claim for damages.
Under the foregoing authority, appellant was required to provide a statutory basis for his claims. Further, he was required to show timely compliance with the provisions of the Tort Claims Act.
III. The action is barred for failure to provide statutory authority for liability
We first address appellant’s obligation to provide statutory authority for this action. As set forth below, we find that appellant has failed to provide such statutory authority, and that this omission is a fatal and incurable defect in the FAC.
A. Section 815.2, subdivision (a)
Appellant first attempts to rely on section 815.2, subdivision (a).
Section 815.2 states in its entirety:
“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
“(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
Appellant argues that officers of the Whittier Police Department were harassing appellant by serving him with unwarranted warnings and tickets, and by towing his vehicle without justification. When engaging in the alleged acts of harassment, the officers were acting within the scope of their employment. Because the harassment and injury was caused by the officers acting within the scope of their employment, and because they did not exhibit due care in the exercise of their duties, appellant argues that they are liable for such actions.
We disagree. Section 815.2, subdivision (a) allows a public entity to be held vicariously liable for the conduct of an employee “only if it is established that the employee would be personally liable for the conduct upon some ‘acceptable theory of liability.’ [Citation.]” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.) Appellant has failed to allege personal liability on the part of any specific employee of the City under any theory of liability.
Nor can appellant allege such personal liability given the facts set forth in the FAC. Appellant acknowledges that the acts of ticketing and towing appellant’s vehicles were committed by police officers acting within the scope of their employment. Those officers were exercising their discretion in carrying out their obligations to enforce the laws. Thus, their actions fall under the protections of sections 820.2 and 821.6. Section 820.2 provides:
“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
Whether a citation should be issued, or a car towed, is within the discretion of the officer on duty. Even if an officer abuses his or her discretion in determining when a warning or ticket should be issued, the officer is immune.
Section 821.6 provides:
“A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
Section 821.6 immunity is not limited to the act of filing a criminal complaint but extends to investigatory conduct. (Richardson-Tunnell v. Schools Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1061-1062.) As set forth in Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 889:
“‘[O]ur system of law enforcement depends upon “the investigation of crime and the accusation of offenders by properly trained officers.” [Citations.] The impartiality of that system requires that, when exercising that responsibility, the officers are “‘free to act in the exercise of honest judgment uninfluenced by fear of consequences personal to themselves.’” [Citation.]’... [Citations.]”
Under this section, appellant cannot establish personal liability on the part of any Whittier Police officer for the acts of ticketing or towing his vehicles.
Nor can appellant establish personal liability on the part of any police officer for failing to adequately respond to appellant’s reports of criminal activity. Pursuant to section 820.2, discussed above, an individual officer’s decision as to whether or not to respond to appellant’s calls is an act of discretion within the scope of employment for which the officer is not personally liable. In addition, section 845 grants general immunity for failure to provide sufficient police protection. Section 845 provides, in pertinent part:
“Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.”
Under the statutes discussed above, no officer of the Whittier Police Department could be held personally liable for his or her acts of ticketing or towing appellant’s vehicles. Nor could any individual officer be held personally liable for his or her failure to respond to appellant’s reports of vandalism. Because no individual officer could be held personally liable, there can be no vicarious liability on the part of the City under section 815.2.
Mann v. State of California (1977) 70 Cal.App.3d 773 is distinguishable. In Mann, a state traffic officer, after an investigation, left motorists in a dangerous situation on a freeway where some were subsequently killed and others injured. The matter came on appeal from a directed verdict in favor of the defendant. The Court of Appeal reversed, reasoning that vicarious liability could attach under the circumstances of that case. Once the officer had chosen to investigate the plight of the persons on the highway, a special relationship arose between him and the individuals requiring him to protect them from foreseeable danger. (Id. at p. 780.) Because of the special relationship between the officer and the victims, a jury might determine that the officer had a duty to exercise ordinary care to protect them from unreasonable risk, and that the officer’s conduct constituted actionable negligence. (Ibid.) Thus the directed verdict in favor of the state constituted error. No such special relationship is alleged between the officers in this matter and the appellant, and no such special relationship exists between law enforcement officers and the public generally. (Ibid.)
B. Civil Code sections 1708 and 1714, subdivision (a)
Appellant also attempts to rely on two Civil Code statues to establish liability on the part of the City. Civil Code section 1708 provides: “Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.” Section 1714, subdivision (a) provides: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”
These two Civil Code statutes do not impose direct liability on public entities, nor do they trump the general immunity provided in Government Code section 815. As the Supreme Court has concluded, Civil Code section 1714 is “an insufficient statutory basis for imposing direct liability on public agencies.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1180 (Eastburn).)
In Eastburn, the plaintiffs sued public entities for the failure to provide prompt emergency services. They attempted to use Civil Code section 1714 as a statutory basis for liability. The high court determined that the statute was insufficient because “direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles. [Citations.]” (Eastburn, supra, 31 Cal.4th at p. 1183.)
Appellant’s reliance on Civil Code section 1708 fails for the same reason. It is a codification of a general duty, which does not specifically authorize liability on the part of a public entity.
Appellant argues that section 815.6 also gives “justification” for this action. Section 815.6 reads:
“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Appellant contends that this statute mandates that liability will be imposed when injury occurs due to the failure of a government entity to discharge a mandatory duty. Here, appellant argues, the duty “not to harass and to protect its citizens from harassment” by its employees is in question.
Again, we disagree with appellant’s position that section 815.6 provides a statutory basis for this action. Section 815.6 imposes liability only when a public entity breaches a mandatory duty imposed by an “enactment.” The FAC contains no citation to any enactment requiring the City to refrain from issuing warnings, issuing tickets, or towing vehicles under any circumstances. Nor does the FAC cite any enactment requiring the City to prevent vandalism by third parties. Thus, appellant has failed to identify a “mandatory duty” as required by the statute.
Appellant has failed to identify any authority for bringing this action against the City.
D. The trial court did not abuse its discretion in denying leave to amend
Appellant claims that the defects in the FAC are easily curable. Specifically, appellant points out that the trial court described the FAC as “couched in terms of the City’s duty.” Appellant argues that he should have the opportunity to amend in order to include language directed at the City’s employees, so that vicarious liability would arise under section 815.2.
As set forth above, the City’s employees are immune from liability for the acts described in appellant’s complaint. No amendment can cure appellant’s failure to identify statutory authority for this action. The trial court did not abuse its discretion in declining to permit amendment on this ground.
IV. Timeliness of the filing of the court action
The trial court’s decision to sustain the City’s demurrer was partially based on the court’s determination that the complaint was not timely filed under section 945.6. Appellant argues extensively that the doctrine of equitable tolling should be applied to render his complaint timely under that section. Appellant has also requested that we take judicial notice of the trial court’s docket, printed on November 10, 2010, pursuant to Evidence Code section 452, subdivision (d). According to appellant, the court docket now shows that the complaint was timely filed.
We assume, without deciding, that appellant could amend the FAC to plead facts showing that the complaint was timely filed under section 945.6. However, we have determined that the FAC is incurably defective because there is no statutory authority for appellant’s claims against the City. (§ 815, subd. (a).) Therefore, even assuming that the action was timely filed, we affirm the trial court’s judgment sustaining the City’s demurrer.
Because we find it unnecessary to address the parties’ conflicting arguments regarding the timeliness of the filing of the complaint, appellant’s request for judicial notice is denied.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.