Bell v. Fane
Filed 2/15/13
Bell v. Fane CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
HORACE BELL,
Plaintiff and
Appellant,
v.
S. D. FANE et al.,
Defendants and
Respondents.
F064396
(Super.
Ct. No. 11C0043)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Horace
Bell, in pro. per., for Plaintiff and Appellant.
Kamala D.
Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas
S. Patterson and Jose A. Zelidon-Zepeda, Deputy Attorneys General, for
Defendants and Respondents.
-ooOoo-
Plaintiff and appellant, Horace Bell, challenges the
sustaining of a demurrer to his
defendants and respondents, Correctional Officers S.D. Fane and J. Gallagher,
filed a false rules violation report against him in June 2006. However, appellant did not submit a
government claim regarding this incident until March 2011, over four years later.
The trial
court correctly sustained respondents’ demurrer without leave to amend. Before suing a public entity, the plaintiff
must present a timely written claim for damages. (Shirk
v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208 (
Because appellant did not present a timely tort claim, his lawsuit is
barred. Accordingly, the judgment will
be affirmed.
title="">[2]
BACKGROUND
Appellant is a
of his cell and struck Fane on her hand.
Fane filed a rules violation report on June 2, 2006, and appellant was
charged with battery on a peace officer.
Appellant was found guilty of this charge on June 13, 2006, and a
penalty was assessed. Appellant
forfeited 150 days of conduct credit and lost certain privileges for up to 90
days.
On May 3,
2010, appellant filed a personal injury action against Fane in Kern County
Superior Court. Appellant alleged that
Fane had filed a false rules violation report.
In January 2011, the case was transferred to Kings County Superior
Court.
On March 25, 2011, appellant
submitted a government claim to the Victim Compensation and Government Claims
Board. Appellant alleged that Fane
committed perjury by filing a false report and that Gallagher participated in
the “cover-up false report.†The Board
rejected appellant’s claim on May 19, 2011.
On
September 6, 2011, appellant filed an amended complaint against Fane and
Gallagher. Fane and Gallagher
demurred. The trial court sustained the
demurrer without leave to amend on the ground that appellant failed to present
a tort claim within six months as required by the Government Tort Claims
Act. (Gov. Code, § 815 et seq.)
DISCUSSION
Before
suing a public entity for personal injury, the plaintiff must present a written
claim for damages to the entity not later than six months after accrual of the
cause of action. (Shirk, supra, 42 Cal.4th at p. 208; State of California v. Superior Court (Bodde) (2004) 32 Cal.4th
1234, 1239 (Bodde).) Compliance with this claims provision is
mandatory. Accordingly, failure to
timely present such a claim bars a plaintiff from filing a lawsuit against that
entity. (Bodde, supra, 32 Cal.4th at p. 1239.) “Complaints that do not allege facts
demonstrating either that a claim was timely presented or that compliance with
the claims statute is excused are subject to a general demurrer for not stating
facts sufficient to constitute a cause of action. [Citation.]â€
(Shirk, supra, 42 Cal.4th at
p. 209.)
Here,
appellant’s cause of action against Fane and Gallagher accrued no later than
June 13, 2006, the date appellant was found guilty based on Fane’s
banana-throwing incident rules violation report. However, appellant did not present his tort
claim until March 25, 2011, over four years later. Therefore, appellant’s claim was untimely and
his action is barred. Thus, the trial
court properly sustained respondents’ demurrer to appellant’s complaint without
leave to amend.
DISPOSITION
The judgment is affirmed. In the interests of justice, no costs are
awarded. (Cal. Rules of Court, rule
8.278(a)(5).)
name="_ftn1" title="">* Before
Levy, Acting P.J., Cornell, J. and Gomes, J.
name="_ftn2" title="">[1] Respondents’
request for judicial notice of (1) the order sustaining the demurrer without
leave to amend and (2) the notice from the superior court stating that the
trial judge declined to sign the proposed judgment of dismissal due to the fact
that the case was on appeal, is granted.
