Filed 1/12/18 Starnes v. Fisher CA4/2


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



DALLAS STARNES,

Plaintiff and Appellant,

v.

ROBERT FISHER et al.,

Defendants and Respondents.


E066804

(Super.Ct.No. RIC1512206)

OPINION


APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.
Affirmed.
Dallas Starnes, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Eric T. Angel and Arthur K. Cunningham for Defendants and Respondents.
Dallas Starnes timely filed a claim with the City of Banning (City) alleging he suffered physical injuries when he was arrested by officers employed by the City’s police department. The City denied the claim and informed Starnes he had six months in which to file a lawsuit based on his allegations. Starnes attempted to timely file a complaint with the superior court against the named officers for negligence and intentional torts, but it was rejected for failure to include mandatory forms and failure to pay the filing fee or apply for a fee waiver. More than six months after the City denied Starnes’s claim, Starnes made a second attempt to file a complaint but it was again rejected, this time for failure to include a mandatory civil case cover sheet and for including an improper caption. Starnes’s complaint was not filed until almost exactly one year after the City had denied his claim. The trial court sustained without leave to amend the officers’ demurrer. The court found the lawsuit was filed after the expiration of the six-month statute of limitations set forth in Government Code section 945.6, subdivision (a) (hereafter section 945.6(a)), Starnes was not entitled to equitable tolling, and the statute of limitations was not statutorily tolled due to Starnes’s imprisonment.
Starnes appeals from the judgment of dismissal. We conclude: (1) Starnes is not entitled to tolling based on his imprisonment; (2) Starnes did not timely file his complaint; and (3) the officers are not equitably estopped from raising the six-month statute of limitations. Because the trial court correctly sustained the officers’ demurrer without leave to amend, we affirm the judgment of dismissal.
I.
FACTS
On March 12, 2014, Starnes filed a claim with the City alleging he was injured during his arrest by officers with the City’s police department. Starnes asked that notices related to his claim be mailed to his mother at an address in Banning. Five days later, the City’s risk management authority mailed a letter to the Banning address provided by Starnes, indicating the claim was being returned because it failed to include “[t]he date, place and other circumstances of the occurrence or transaction, which gave rise to the claim asserted.” The letter also indicated no further action would be taken with respect to the claim for 15 days, and that any amended claim had to be submitted within that time period. (See Gov. Code, § 910.8.) Starnes did not timely amend his claim, and on April 9, 2014, the City denied it. The notice of denial, again mailed to the Banning address provided by Starnes, informed Starnes that, pursuant to Government Code section 945.6, he had six months in which to file a lawsuit based on his claims.
On April 18, 2014, Starnes attempted to timely file a complaint with the superior court. The clerk of the superior court rejected the complaint on April 24, 2014, for failure to include mandatory forms and failure to pay the filing fee or apply for a fee waiver. Starnes did not resubmit his complaint until October 23, 2014, more than six months after the City had denied his claim. This time, Starnes submitted a request for a fee waiver. The superior court appears to have again rejected the complaint, because on November 12, 2014, Starnes wrote to the clerk of the court requesting further instruction on how to correct his complaint. The record does not reflect whether the clerk of the court responded to Starnes’s letter, or whether Starnes submitted another complaint. On January 12, 2015, the superior court yet again rejected the complaint (apparently the one submitted on Oct. 23, 2014), this time for failure to provide correct information in the caption and failure to include a mandatory civil case cover sheet.
Starnes’s complaint was ultimately filed on October 8, 2015, nearly one year after the City had rejected his claim. Starnes alleged he was ordered out of his van by at least four City officers; he complied with the officers’ direction, and laid down prone on the ground; and that the officers proceeded to brutally attack him with their hands, feet, and knees, dislocating Starnes’s arm and breaking his bones in the process. Starnes alleged causes of action for negligence and intentional tort, and prayed for general and punitive damages against Officer Robert Fisher, Sergeant Alejandro Diaz, Corporal Brandon Smith, and Officer Brian Walker.
The officers demurred to the complaint, arguing Starnes did not file his complaint within the six-month statute of limitations set forth in section 945.6(a). In addition, the officers argued the statute of limitations was not tolled due to Starnes’s imprisonment. In support of their demurrer, the officers submitted exhibits including Starnes’s March 12, 2014 claim, the City’s March 17, 2014 notice, and the City’s April 9, 2014 denial of the claim.
In his opposition, Starnes argued he had submitted his complaint on April 18, 2014, and, but for the clerk of the superior court improperly rejecting it, the complaint would have been timely filed within six months of the City denying his claim. Starnes also argued that, because he is a state prisoner, his lawsuit was subject to the two-year statute of limitations under Code of Civil Procedure section 352.1, subdivision (a), and not the six-month limitation set forth in Government Code section 945.6(a). Exhibits filed in support of the opposition included the complaints Starnes had attempted to file with the superior court and the notices from the clerk of the superior court rejecting those complaints.
In its tentative ruling, which became the final order, the trial court ruled that Starnes’s lawsuit was governed by the six-month statute of limitations under Government Code section 945.6(a) and rejected Starnes’s suggestion that he was entitled to tolling under Code of Civil Procedure section 352.1. The court noted the latter provision does not apply to prisoners who file lawsuits that are governed by the government claim act. Although Starnes timely submitted a claim to the City on March 12, 2014, the court ruled Starnes’s lawsuit was time-barred because the actual complaint was filed more than six months after the City had denied his claim on April 9, 2014. Finally, the court ruled Starnes’s claims were not subject to equitable tolling because Starnes did not pursue an alternate remedy. The court sustained the officers’ demurrer without leave to amend and subsequently entered judgment dismissing the lawsuit.
Starnes timely appealed.
II.
DISCUSSION
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
“Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. (Gov. Code, § 911.2; [citations].)” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208, superseded by statute as stated in Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 914.) “Timely claim presentation is not merely a procedural requirement, but is, as this court long ago concluded, ‘“‘a condition precedent to plaintiff’s maintaining an action against defendant’”’ [citation], and thus an element of the plaintiff’s cause of action. [Citation.] 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.]” (Shirk, at p. 209.) “Only after the public entity’s board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against the public entity. (Gov. Code, §§ 912.4, 945.4; [citation].) The deadline for filing a lawsuit against a public entity, as set out in the government claims statute, is a true statute of limitations defining the time in which, after a claim presented to the government has been rejected or deemed rejected, the plaintiff must file a complaint alleging a cause of action based on the facts set out in the denied claim. (Code Civ. Proc., § 342; Gov. Code, § 945.6; [citations].)” (Shirk, at p. 209.)
“Section 945.6 governs the timely filing of an action against a public entity. With certain exceptions not relevant here, it declares, ‘any suit brought against a public entity on a cause of action for which a claim is required to be presented . . . must be commenced: [¶] (1) If written notice [denying a claim] is given . . . , not later than six months after the date such notice is personally delivered or deposited in the mail. [¶] (2) If written notice is not given . . . , within two years from the accrual of the cause of action.’ (§ 945.6, subd. (a).)” (Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83, 87.)
On April 9, 2014, the City provided Starnes with notice that his claim had been denied. This triggered the six-month statute of limitations under Government Code section 945.6(a), meaning Starnes had until October 9, 2014, to file his complaint. In the trial court, Starnes argued his lawsuit was instead governed by Code of Civil Procedure section 352.1, which tolls statutes of limitations (for up to two years) while the plaintiff is under the “disability” of serving a custodial sentence of less than life. (Code Civ. Proc., § 352.1, subd. (a).) As the trial court correctly noted, such tolling is unavailable to a prisoner who sues a public entity for a cause of action that is subject to the claim presentment requirement of Government Code section 900 et seq. (Code Civ. Proc., § 352.1, subd. (b); Moore, supra, 120 Cal.App.4th at p. 914, fn. omitted [“The statute of limitations for commencing a government tort claim action is not tolled by virtue of a plaintiff’s imprisonment.”].)
A self-represented prisoner who is a defendant in a bona fide civil action has a constitutional due process right to meaningful access to the civil courts to defend his or her personal or property interests. (Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 200; Payne v. Superior Court (1976) 17 Cal.3d 908, 919.) In addition, self-represented prisoners have a statutory right to meaningful access to the civil courts to pursue their own bona fide civil claims. (Pen. Code, § 2601, subd. (d); Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792; see Cal. Code Regs., tit. 15, § 3160, subd. (a) [“Inmate access to the courts shall not be obstructed.”].) Once a self-represented prisoner has timely commenced a civil action, he or she has the right to meaningfully appear at hearings where his or her rights will be determined. (Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483-1484; Wantuch, at pp. 792-793.) But the right to meaningful access presupposes that the self-represented prisoner has, in fact, properly and timely commenced a lawsuit. “‘“When a litigant is appearing in propria persona, he [or she] is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].” [Citations.]’” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) The same goes for self-represented prisoners. (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1175; Apollo, at p. 1487.)
The record demonstrates Starnes attempted to file his complaint on April 18, 2014, and, had the complaint been filed, his lawsuit indisputably would have been timely “commenced” for purposes of Government Code section 945.6(a). (Code Civ. Proc., § 411.10 [“A civil action is commenced by filing a complaint with the court.”]; Cal. Rules of Court, rule 1.20 [“Unless otherwise provided, a document is deemed filed on the date it is received by the court clerk.”].) Starnes argues the clerk of the superior court improperly rejected his complaint, and that we should conclude it was constructively filed on April 18, 2014. We are not persuaded.
Starnes was required to pay a $450 filing fee when he attempted to file his complaint on April 18, 2014. (Gov. Code, §§ 70611 [$355 uniform statewide fee for unlimited civil complaints], 70602.5, subd. (a) [supplemental $40 fee], 70602.6, subd. (a) [additional supplemental $40 fee] & 70622, subds. (a), (c) [$50 Riverside construction surcharge, offset by $35 distribution to State Court Facilities Construction Fund].) “A clerk may properly refuse to file a document until the filing fee is paid, and the document is not deemed filed until payment. [Citation.]” (Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261, 1268 (Hu).) “An unbroken line of decisions by our Supreme Court holds that it is mandatory for court clerks to demand and receive the fee required by statute before documents or pleadings are filed. [Citations.] As one Court of Appeal summarized: ‘[The Government Code statutes] make it clear that the Legislature has mandatorily required that filing fees in civil actions must be paid in advance. Not only do they declare that they shall be so paid and that the clerk shall so collect them before he shall perform any official act, that is to say, receive for filing and file any document for the filing of which the payment of a fee is required, but the Legislature has also provided, by way of interpretation of its own language, that the word “shall is mandatory.”. . . Under the plain code provisions it must be held that the clerk properly refused to perform the official service of filing the notice until he received the fees therefor.’ [Citation.] . . . [I]t is ‘[i]mplicit . . . that the filing fee must be paid in full before the clerk can accept the pleading for filing.’ [Citation.]” (Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 459-460 (Duran).)
If Starnes was unable to pay the filing fee, he could have applied for a fee waiver. (Gov. Code, §§ 68632-68633; Cal. Rules of Court, rules 3.50-3.58.) For purposes of this decision, we assume that, had Starnes timely submitted a fee waiver with his complaint, the clerk of the superior court would have been required to file the complaint on April 18, 2014. (Gov. Code, § 68634, subd. (c) [“If a person has filed an application for an initial fee waiver, the person shall be permitted to file his or her pleading or other papers immediately, without paying any fees.”].) Starnes neither paid the fee nor timely applied for a fee waiver, so the clerk properly rejected the complaint submitted on April 18, 2014. (Duran, supra, 114 Cal.App.4th at pp. 459-460; Hu, supra, 70 Cal.App.4th at p. 1268.) Starnes did not submit a fee waiver until six months later, on October 23, 2014. Therefore, even if the clerk should have filed the complaint Starnes submitted on October 23, 2014, the six-month statute of limitations on Starnes’s lawsuit had already run by then.
Because Starnes did not timely file his complaint, the trial court correctly sustained the officers’ demurrer. To avoid that result, Starnes argues the officers are equitably estopped from asserting the running of the limitations period under


section 945.6(a). “The elements of equitable estoppel have been applied in the government claims context.” (J.M., supra, 2 Cal.5th at p. 656; accord, Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1496.) “‘The doctrine of equitable estoppel is founded on concepts of equity and fair dealing. It provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment. The elements of the doctrine are that (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citations.]’” (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279.)
Nothing in the record supports application of equitable estoppel in this case. Starnes’s complaint was not timely filed because he did not pay the filing fee or apply for a fee waiver until after the statute of limitations ran on October 9, 2014. There is no indication whatsoever that the officers or the City were even aware that the clerk of the superior court had rejected Starnes’s complaint for filing, let alone that they acted in a manner calculated to influence Starnes’s behavior.
In sum, we conclude the trial court correctly sustained the demurrer to Starnes’s complaint. Starnes has not shown there is a reasonable probability he can amend his complaint to state causes of action that are not time-barred, so we must also conclude the trial court properly denied him leave to amend. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.)
III.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:



RAMIREZ
P. J.



MILLER
J.