Opinion
F083603
05-01-2024
RONALD VELASQUEZ, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Respondents.
Ronald Velasquez, in pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Jodi L. Cleesattle, Assistant Attorney General, Christine E. Garske and Colin D. Smithey, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. BCV-20-100793. David R. Lampe, Judge.
Ronald Velasquez, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Jodi L. Cleesattle, Assistant Attorney General, Christine E. Garske and Colin D. Smithey, Deputy Attorneys General, for Defendants and Respondents.
OPINION
DE SANTOS, J.
INTRODUCTION
In this case, plaintiff and appellant Ronald Velasquez appeals from the trial court's order sustaining a demurrer filed by defendants and respondents Joseph Cramer, Brian Gerber, and the California Department of Corrections and Rehabilitation (collectively referred to as the "CDCR") without leave to amend. For the reasons given below, we affirm the trial court.
Before reaching the merits of the appeal, we note, as the CDCR parties observe, that it appears no judgment was entered in this matter. Typically, courts follow the "one final judgment" rule, and an appeal may only be taken from the final judgment entered in a case. (Code Civ. Proc., § 904.1, subd. (a)(1).) While there are limited orders from which an appeal may be taken, an order sustaining a demurrer is not one. (Id., § 904.1, subds. (a)(2)-(14).) However, our Supreme Court has made it clear that the finality of a ruling for purposes of the "one final judgment" rule is a practical inquiry, not a formalistic one: "It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory." (Lyon v. Goss (1942) 19 Cal.2d 659, 670.) Thus, where a court has entered an order fully disposing of a case, this may be treated as an appealable judgment, and the order" 'amended so as to convert it into a judgment encompassing actual determinations of all remaining issues by the trial court or, if determinable as a matter of law, by the appellate court, and the notice of appeal may then be treated as a premature but valid appeal from the judgment.'" (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 700; see Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 11 [order requiring compliance with administrative subpoenas was appealable as final judgment because it left "nothing to the party against whom judgment is rendered except to comply"]; California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 9 [summary judgment order which effectively disposed of all causes of action treated as final appealable judgment]; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 [order sustaining demurrer was "in legal effect a final judgment" and so could be appealed]; Hamilton v. Green (2023) 98 Cal.App.5th 417, 422-423 [deeming order sustaining demurrer without leave to amend to incorporate a judgment of dismissal].)
Here, Velasquez was initially proceeding pro se. However, after the demurrer was filed, he obtained counsel, who opposed the demurrer and subsequently filed a motion to reconsider. Following hearing on the motion for reconsideration on September 10, 2021, the trial court directed Velasquez to prepare an order for the Court's signature. Inexplicably, Velasquez's counsel did not do so, and then substituted out of the case on November 3, 2021. It is clear the trial court's sustaining of the demurrer in its entirety, without leave to amend, as reiterated in the minutes concerning the motion to reconsider, left nothing further to be decided between these parties. Thus, we deem the court's minute order to have included a judgment of dismissal, and review the appeal.
BACKGROUND
We recite the background facts here as alleged in the complaint, since this case was at the pleading stage and pleaded facts must be taken as true at this stage. Velasquez, a prisoner in CDCR, alleges that on May 10, 2019, he was being transported by prison staff back from a cardiologist appointment in Bakersfield. Velasquez was handcuffed, but Correctional Officer Cramer failed to secure him in the van by a seatbelt. The van's driver, Correctional Officer Gerber, then drove recklessly, by both speeding and talking on his cell phone, which caused him at one point to "slam[] the brakes so hard that [Velasquez] was thrown face first into the metal wall and to the floor." This caused bruising, pain, and bleeding, and has resulted in Velasquez losing 50 percent of the peripheral vision in his left eye. Velasquez seeks $2.5 million in damages.
The injury in this case is alleged to have occurred on May 10, 2019. Velasquez filed a claim pursuant to Government Code section 945.4 with the Government Claims Program of the California Department of General Services six months and 20 days later, on November 25, 2019. The Department of General Services interpreted this filing as an application for leave to present a late claim, which it denied for failure to meet the requirements of section 911.6. The denial letter notified Velasquez that, if he wished to pursue the matter further, he was required to file a petition in the superior court for relief from the requirements of section 945.4. Velasquez did not file such a petition, and instead filed the complaint in this matter on March 18, 2020.
All further undesignated code references are to the Government Code.
CDCR filed a demurrer to the complaint on May 6, 2021. The trial court sustained the demurrer without leave to amend on August 2, 2021, for failing to comply with the claim requirements of section 945.4. Velasquez, appearing through counsel, filed a motion for reconsideration on August 12, 2021, which was heard by the court on September 10, 2021. The court granted the motion for reconsideration to allow it to consider a proposed first amended complaint, which would allege that he complied with the claim presentation requirements after pursuing his administrative remedies. However, the court found that the claim was not presented timely, the time in which to present the claim was not tolled while Velasquez pursued his administrative remedies, and no petition for relief from the claim requirement was filed; therefore, the court indicated the demurrer should still be sustained without leave to amend. While no judgment was issued, treating the date the demurrer was sustained without leave to amend as the date of judgment, the notice of appeal was timely filed on November 24, 2021.
ANALYSIS
A. Standard of Review
We review the sustaining of a demurrer without leave to amend de novo, "exercising our independent judgment on whether the complaint states a cause of action." (Lincoln Property Co. N.C., Inc. v. Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 911.) We treat all material facts alleged in the complaint as admitted, and may consider any judicially noticeable documents as well. (Ibid.) Meanwhile, we review the decision to deny leave to amend for abuse of discretion, asking whether "there is a reasonable possibility that the defect can be cured by amendment." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
B. Relevant Law
"When an applicable statute, ordinance, or regulation provides an adequate administrative remedy, a party must exhaust it before seeking judicial relief." (Plantier v. Ramona Municipal Water Dist. (2017) 12 Cal.App.5th 856, 865, italics omitted.) Exhausting such administrative remedies "is a jurisdictional prerequisite to resort to the courts." (Rojo v. Kliger (1990) 52 Cal.3d 65, 84-85.) As we have recently noted, our Supreme Court determined decades ago that" '[t]he requirement that administrative remedies be exhausted "applies to grievances lodged by prisoners." '" (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1023 (Foster).)
There are two separate avenues of administrative claims a prisoner plaintiff must exhaust prior to filing a lawsuit against CDCR and its employees for damages. All inmate claims, whether they seek damages or not, must proceed through CDCR's internal administrative claims process, which is now found in title 15, division 3, chapter 1, subchapter 5.1, article 1 of the California Code of Regulations. The parties here do not dispute that Velasquez adequately exhausted his administrative remedies internal to CDCR.
In addition to CDCR's internal administrative grievance process, "[s]ome inmate lawsuits alleging state law claims against prison officials are subject to the claim presentation requirements of the Government Claims Act." (Foster, supra, 61 Cal.App.5th at p. 1021.) Where an inmate seeks "money or damages," he must file a claim with the Department of General Services pursuant to the Government Claims Act. (Gov. Code, §§ 905.2, subd. (b), 945.4; cf. Foster, at p. 1023 [writ of replevin for return of property is not a claim for damages, and so does not fall within Government Claims Act]; Escamilla v. Department of Corrections &Rehabilitation (2006) 141 Cal.App.4th 498, 505 [same].) If a lawsuit falls within the claim presentation requirement, "submission of a claim is a condition precedent to maintaining a tort action and compliance is treated as an essential element of the cause of action that must be pleaded." (Foster, at pp. 1021-1022.) The obligation to exhaust administrative remedies is separate and independent of the obligation to comply with the Government Claims Act. (Foster, at p. 1022; Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1376.)
Our Supreme Court has endorsed a strict application of the claim presentation requirements, noting:" 'Requiring a [claimant] ... to first present a claim to the entity, before seeking redress in court, affords the entity an opportunity to promptly remedy the condition giving rise to the injury, thus minimizing the risk of similar harm to others. [Citations.] [It] also permits the public entity to investigate while tangible evidence is still available, memories are fresh, and witnesses can be located. [Citations.] Fresh notice of a claim permits early assessment by the public entity, allows its governing board to settle meritorious disputes without incurring the added cost of litigation, and gives it time to engage in appropriate budgetary planning. [Citations.] The notice requirement . . . thus is based on a recognition of the special status of public entities, according them greater protections than nonpublic entity defendants, because . . . public entities .. . will incur costs that must ultimately be borne by the taxpayers.'" (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991, fn. 8 (DiCampli-Mintz).)
Since the purpose of the claims statutes is not" 'to prevent surprise [but rather] is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation ... [citations][,] ... [i]t is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim.'" (California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591; see TrafficSchoolOnline, Inc. v. Clarke (2003) 112 Cal.App.4th 736, 742 [noting also that enabling "the public entity to engage in fiscal planning for potential liabilities" is a purpose of the claims statutes].)
A claim must be presented to the relevant governmental agency within six months after the accrual of the cause of action. (§ 911.2, subd. (a).) If a claimant misses that deadline, they may present a written application for leave to present a late claim within one year of the accrual of the cause of action. (§ 911.4, subds. (a)-(b).) The board which is reviewing the application must grant or deny it within 45 days of presentation. (§ 911.6, subd. (a).) If it fails to act within that period, the application is deemed denied. (§ 911.6, subd. (c).) The litigant may then submit a petition pursuant to section 946.6 to the appropriate superior court for relief from the claim requirement to submit a timely claim. (§ 946.6, subd. (a).) This petition must show the application was made pursuant to section 911.4 and was denied, the reason the claim was untimely, and must include all of the contents required of the claim under section 910. (§ 946.6, subd. (b).) The petition must be filed within six months of the date the application is denied or deemed denied. (Ibid.) The court shall grant relief if it finds that the application was made within a reasonable time, and the failure to present the claim was "through mistake, inadvertence, surprise, or excusable neglect," unless the public entity establishes prejudice. (§ 946.6, subd. (c)(1).) If the court grants relief, the litigant has 30 days thereafter to file suit. (§ 946.6, subd. (f).) The six-month limitations period set by section 946.6 in which to petition for relief is treated as a statute of limitations, and is "mandatory, not discretionary." (D.C. v. Oakdale Joint Unified School Dist. (2012) 203 Cal.App.4th 1572, 1582.)
The doctrine of substantial compliance applies to exhaustion under the Government Claims Act. (Malear v. State of California (2023) 89 Cal.App.5th 213, 224.) This doctrine" 'excuses literal noncompliance only when there has been "actual compliance in respect to the substance essential to every reasonable objective of the statute." '" (Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 166; see Andrews v. Metropolitan Transit System (2022) 74 Cal.App.5th 597, 607.) California courts employ a two-part test to determine substantial compliance:" 'Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance?'" (Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 200.)
Equitable tolling may also apply to extend certain limitations periods in relation to claims against governmental entities. "Equitable tolling is a judge-made doctrine 'which operates independently of the literal wording of the Code of Civil Procedure' to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness." (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) Thus, equitable tolling has been applied at times in relation to the Government Claims Act, and has been held to toll the period of time for filing suit in certain circumstances, such as where a suit was timely filed in federal court. (Addison v. State of California (1978) 21 Cal.3d 313, 316.) "[T]he effect of equitable tolling is that the limitations period stops running during the tolling event, and begins to run again only when the tolling event has concluded." (Lantzy, at p. 370.) However, "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 (Willis).) This is because "the six-month period of section 911.2 is not a statute of limitations [citation] to which tolling rules might apply." (Ibid.; see Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 213 ["the government claim presentation deadline is not a statute of limitations," but rather a condition precedent], partially superseded by statute as stated in Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 914.)
Underlying our interpretation of all of these provisions is the knowledge that the intent of the Act is "not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances." (Williams v. Horvath (1976) 16 Cal.3d 834, 838.) While the doctrine of equitable tolling may apply, in pertinent cases, our Supreme Court has made clear that seeking relief from the claims statute pursuant to section 946.6 is a necessary step and one that may not be evaded by deeming other documents to substitute for the petition permitted by section 946.6. (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 655-656 [finding that the statutes "provide no recourse for [the] failure to petition the court within six months" of the denial for filing an untimely application, and overruling prior case holding otherwise].)
C. Analysis
In this case, the only consideration before the court is whether Velasquez appropriately followed the law in submitting his Government Claim and/or petitioning for relief from that requirement. The parties agree Velasquez appropriately exhausted his administrative remedies internal to CDCR. Additionally, the parties do not appear to dispute the essential timeline of the Government Claims submitted here. The cause of action accrued on May 10, 2019. Velasquez filed his claim with the Department of General Services on November 25, 2019. This was not within the six-month window to file such a claim, and neither party claims it was timely filed; rather, Velasquez claims that his time to file the claim should have been extended or excused, for various reasons. However, as noted above, equitable tolling does not apply to the requirement to submit a timely claim. (Willis, supra, 48 Cal.App.5th at p. 1121.) Because the filing was 20 days late, the Department of General Services interpreted it as an application for leave to present a late claim, which it denied. Velasquez did not file a petition for relief from the claim filing requirement with the superior court, but instead simply filed a complaint on March 18, 2020. The register of actions shows no indication that a petition for relief from the claim requirement found in section 945.4 was ever filed in this matter.
Because no petition for relief pursuant to section 946.6 was filed, even if we assume Velasquez's application for leave to present a late claim was improperly denied by the Department of General Services, we still must affirm the lower court's ruling. The petition for relief pursuant to section 946.6 is an integral and necessary part of filing suit against a governmental entity where the plaintiff has not filed a timely claim and the agency has denied the application to present a late claim. As our Supreme Court has directed, we must strictly interpret the law in this area. (DiCampli-Mintz, supra, 55 Cal.4th at p. 991, fn. 8.) The Government Code prohibits any suit for money damages against a governmental entity, unless a claim has first been presented to the appropriate board "in accordance with Chapters 1 and 2 of Part 3 of this division," and thereafter acted upon or have been deemed denied under the law. (§ 945.4.) Chapter 2 of part 3 requires the timely presentation of a claim (see § 911.2), so an untimely claim has not been presented "in accordance with Chapters 1 and 2 of Part 3 of this division." (See State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240 [noting claim presentation was"' "more than a procedural requirement, it is a condition precedent to [the] plaintiff's maintaining an action against [the] defendant"' "].) The six-month period in which to file a claim is not a statute of limitations, but rather a condition precedent which creates a strict deadline, the failure to comply with which leaves the plaintiff unable to state an element of their cause of action. (Rubenstein v. Doe No. 1, supra, 3 Cal.5th at pp. 907-909; Shirk v. Vista Unified School Dist., supra, 42 Cal.4th at p. 213.)
The statutory structure ameliorates the harshness of this strict deadline by providing a mechanism for a plaintiff to ask the governmental entity for leave to file a late claim, and then to ask the court to excuse the filing requirement if the governmental entity refuses the plaintiff's late-filed claim. (See §§ 911.4, subds. (a)-(b); 946.6, subd. (a).) However, these requirements must be interpreted as strictly as the deadline for which they provide an escape valve, because to interpret them more liberally would undermine the rigid structure our Legislature has established and the strict interpretation our Supreme Court has placed upon them. (See DiCampli-Mintz, supra, 55 Cal.4th at p. 991, fn. 8; Williams v. Horvath, supra, 16 Cal.3d at p. 838.)
The simple fact is that no petition pursuant to section 946.6 was filed here. This is not a question of whether a late-filed petition may be accepted or whether the time in which to file a petition pursuant to section 946.6 may be equitably tolled for some reason. No such petition was ever filed. We may not deem the filing of the complaint to be such a petition, because doing so would render section 946.6 largely superfluous. Any case in which a section 946.6 petition was necessary would thus be deemed to have had one filed, thereby violating a cardinal rule of statutory interpretation that courts must "avoid constructions that would render any word or provision surplusage." (Tuolumne Jobs &Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1038; Williams v. Superior Court (1993) 5 Cal.4th 337, 357 ["An interpretation that renders statutory language a nullity is obviously to be avoided."].)
Velasquez argues the doctrine of substantial compliance should excuse any technical failures he made with his claim presentation. However, all of his arguments about substantial compliance are directed to the question of whether he substantially complied with the original claim presentation requirements, and whether it was timely under section 911.2. He has directed us to no authority, and we have not located any, suggesting that substantial compliance can substitute for the necessity of petitioning under section 946.6. While courts evaluating section 946.6 petitions often consider whether the petitioner has substantially complied with the claim requirements (see, e.g., Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 157-158; Scott v. County of Los Angeles (1977) 73 Cal.App.3d 476, 481-482), there is no indication that "substantial compliance" with section 946.6 itself is all that is required. Even if we assume the substantial compliance doctrine applies, it requires some compliance with every part of the statute. (Westcon Construction Corp. v. County of Sacramento, supra, 152 Cal.App.4th at p. 200.) Here, there was no compliance with the requirement to file a petition for relief pursuant to section 946.6. As such, the substantial compliance doctrine would not excuse Velasquez's failure to petition, even if it did apply more generally. Whether Velasquez would have been found to have substantially complied with the claim requirements of section 910 or the timeliness requirements of section 911.2, had he filed the section 946.6 petition, is therefore irrelevant, although we note again that the court may not equitably toll the six-month period in which to file a claim. (Willis, supra, 48 Cal.App.5th at p. 1121.)
This is also why equitable tolling is not relevant to the decision here. Again, we have not been presented with authority that the six-month deadline for section 946.6 petitions may be tolled, but assuming it can, there is no way to apply tolling here. Because no section 946.6 petition was ever filed, there is no period of time for which we could find the deadline has been tolled. Equitable tolling, even when permitted, is not an indefinite extension of a limitations period. Moreover, even if we reached it, there would be no reason to find equitable tolling for a section 946.6 petition appropriate. Nothing has been presented explaining Velasquez's failure to petition pursuant to section 946.6, and we note he was represented by counsel during and at the demurrer. There is no apparent reason counsel could not have filed a petition for relief pursuant to section 946.6, and made equitable tolling arguments then, if pertinent. Again, Velasquez's arguments on appeal about tolling all relate to the time in which he was to file his original government claim and its timeliness under section 911.2. Regardless of the soundness of these arguments, he has not petitioned for relief under section 946.6, which is the only mechanism by which the court can grant relief from the claim presentation requirement.
Again, we could not equitably toll the time for filing a claim under section 911.2 even if we wished to, as it is not a statute of limitations but a condition precedent.
Velasquez makes numerous other arguments at various points throughout his brief, none of which bear on the salient point in this appeal-whether he filed a petition for relief under section 946.6, or was somehow excused from doing so-and which we therefore find unpersuasive. Velasquez asserts he was denied meaningful access to the courts because the trial court did not appoint him counsel. However, there is no due process right to counsel in civil cases, and generally," 'the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.'" (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 416.) Moreover, Velasquez actually had counsel in the trial court at and around the time of the demurrer, so he has not proceeded entirely unaided throughout this action. To the extent Velasquez objects to the trial court's rejection of filings from another inmate, Edward Varela, purportedly acting as Velasquez's attorney or on his behalf, we note that "in California, as in other jurisdictions, absent specific statutory authorization, a nonattorney who represents another person in court proceedings violates the prohibition against unauthorized practice of law." (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 962.) The trial court did not err by not appointing counsel or by not allowing Varela to represent Velasquez. Similarly, to the extent Velasquez discusses the delays in receiving his certified trust account statement, his internal CDCR appeals, deficiencies among the inmate law library staff, and/or the failure to provide him with correct forms, all of these relate to the timeliness of his original claim filing. None of these bear on the singular dispositive question here: whether Velasquez filed a petition for relief pursuant to (Willis, supra, 48 Cal.App.5th at p. 1121; accord Rubenstein v. Doe No. 1, supra, 3 Cal.5th at pp. 907-909; Shirk v. Vista Unified School Dist., supra, 42 Cal.4th at p. 213.) section 946.6, or was excused from doing so. As such, they are not further discussed here.
DISPOSITION
For the reasons given above, we affirm the ruling of the lower court. In the interests of justice, each party shall bear their own costs on appeal.
WE CONCUR: PENA, Acting P. J., SMITH, J.