Stockman v. Abrahams
Filed 8/22/12 Stockman v. Abrahams CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
GREGORY
CHATTEN STOCKMAN,
Plaintiff and Appellant,
v.
JOHN R.
ABRAHAMS et al.,
Defendants and Respondents.
A133471
(Sonoma County
Super. Ct.
No. SCV-247304)
Plaintiff
Gregory Chatten Stockman, appearing in propria
persona, appeals from an order sustaining without leave to amend a demurrer
by defendants John R. Abrahams and Barry Collins. He contends the trial court
erred in sustaining the demurrer on the ground that he failed to comply with
the California Tort Claims Act (the
Act) (Gov. Code, §§ 810-996.6).
affirm.
Factual and
Procedural History
Having been committed to a state
hospital in 1993 based on a finding that he was not guilty of certain offenses
by reason of insanity, in May 2009 plaintiff filed a petition in the Sonoma
County Superior Court seeking a transfer to outpatient
treatment on the ground that he had been restored to sanity. At a hearing
on the petition, plaintiff was represented by Collins, a
County deputy public defender, employed in the office of the county public
defender, Abrahams. On October 30,
2009, the trial court denied plaintiff’s petition.
In April 2010, plaintiff filed a
complaint against Collins and Abrahams seeking monetary damages based on a
claim of malpractice in the handling of the prior petition. The complaint
failed to allege compliance with the claims requirement of the Act or any facts
excusing such compliance. After the summons and complaint were eventually
served on defendants in January 2011, the defendants demurred on the ground,
among others, that the complaint was fatally defective because plaintiff failed
to allege compliance with the Act. Plaintiff failed to file timely opposition
to the demurrer but appeared at the hearing and presented
demurrer with leave to amend.
On March 30, 2011, plaintiff presented a “claim” letter to
the Sonoma County Board of Supervisors with attachments describing his
dissatisfaction with Collins’s representation. The letter contained no
explanation why plaintiff had been unable to present a timely claim. In April
2011, the board responded by letter stating that plaintiff’s claim would “not
be accepted for consideration because it was not presented within one (1) year
of the date of accrual of the cause of action as required by law. See Sections
901 and 911.2 . . . . Because the claim was not presented within
the time allowed by law, no action was taken on the claim.”
In May 2011, plaintiff filed an
amended complaint to which the defendants again filed a demurrer, accompanied
by a request for judicial notice. Defendants argued, among other things, that
the amended complaint was fatally defective because plaintiff had not complied,
and was unable to comply, with the requirements of the Act. Plaintiff again
failed to file timely opposition to the demurrer and the court issued a
tentative ruling sustaining the demurrer without leave to amend. Plaintiff
failed to make a timely request to appear and dispute the tentative ruling in
conformity with the local rules. He did make an untimely request on the day of
the hearing but the court rejected the request and, on August 17, 2011, entered
an order adopting its tentative ruling sustaining the demurrer
without leave to amend. Plaintiff filed a
timely notice of appeal.
name="_ftnref2" title="">[2]
On appeal from a judgment dismissing
a complaint after a demurrer is sustained without leave to amend, we review de
novo the trial court’s decision to sustain the demurrer, and we review under
the abuse of discretion standard the decision to deny the plaintiff leave to
amend. (Lazar v. Hertz Corp. (1999)
69 Cal.App.4th 1494, 1501.) “If the court sustained the demurrer without leave
to amend, as here, we must decide whether there is a reasonable possibility the
plaintiff could cure the defect with an amendment.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
“The plaintiff has the burden of proving that an amendment would cure the
defect.” (Ibid.)
The Act provides
that “[e]xcept as otherwise provided by statute . . . , a public
employee is liable for injury caused by his act or omission to the same extent
as a private person.” (§ 820, subd. (a).) Actions against public employees
on the basis of acts or omissions occurring within the scope of their employment
must be preceded by the filing of a claim against the public-entity employer.
(§§ 945.4, 950.2, 950.6, subd. (a).) “[A] salaried full-time public
defender engaged in representing an assigned client is a public employee acting
in the scope of his or her employment within the meaning of the . . .
Act.” (Briggs v. Lawrence (1991) 230
Cal.App.3d 605, 618.) “ ‘[N]o suit for money or damages may be brought
against a public entity on a cause of action for which a claim is required to
be presented . . . until a written claim therefore has been presented
to the public entity and has been acted upon by the board, or has been deemed
to have been rejected by the board. . . .’ ” (
“ ‘Unless a specific exception applies, “[a] suit for ‘money or damages’
includes all actions where the plaintiff is seeking monetary relief, regardless
whether the action is founded in ‘ “tort, contract or some other
theory.” ’ ” ’ ” (Lozada
v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1152.)
Plaintiff contends
his letter to the Sonoma County Board of Supervisors satisfied the claim
presentation requirement. However, plaintiff’s petition to transfer to
outpatient treatment was denied in October 2009 and he did not present his
letter claim to the board of supervisors until March 30, 2011—17 months after
the accrual of the cause of action. (K.J.
v. Arcadia Unified Sch. Dist. (2009) 172 Cal.App.4th 1229, 1239.) “A claim
relating to a cause of action . . . for injury to person or to
personal property . . . shall be presented . . . not later
than six months after the accrual of the cause of action. A claim relating to
any other cause of action shall be presented . . . not later than one
year after the accrual of the cause of action.” (§ 911.2.) Plaintiff’s
claim letter was untimely under either limitations period. “[F]ailure to allege
facts demonstrating or excusing compliance with the claim presentation
requirement subjects a claim against a public entity to a demurrer for failure
to state a cause of action.” (State of
California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
“Timely claim presentation is not
merely a procedural requirement, but rather, a condition precedent to
plaintiff's maintaining an action against defendant, and thus, an element of
the plaintiff's cause of action. [Citation] A complaint which fails to allege
facts demonstrating either that a claim was timely presented or that compliance
with the claims statute is excused is subject to a general demurrer for failure
to state facts sufficient to constitute a cause of action.” (
Plaintiff has failed to allege facts demonstrating that his claim was timely
presented or that compliance with the claims statute was excused. Plaintiff
acknowledges that he failed to present a timely claim and the documents
properly judicially noticed demonstrate that the deficiencies are incurable.
Granting leave to amend would have been pointless and was properly denied.
The judgment is
affirmed.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1]
All statutory references are to the Government Code unless otherwise noted.
name="_ftn2" title="">[2]
Although no judgment apparently has been entered, we treat the August 17 order
as incorporating a judgment and therefore appealable. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 528, fn. 1.)
Generally, “ ‘[a]n order sustaining a demurrer without leave to amend is
not appealable, and an appeal is proper only after entry of a dismissal on such
an order.’ ” (Ibid.) But
“ ‘when the trial court has sustained a demurrer to all of the complaint's
causes of action, appellate courts may deem the order to incorporate a judgment
of dismissal, since all that is left to make the order appealable is the
formality of the entry of a dismissal order or judgment.’ ” (
the order on the demurrer to incorporate a judgment of dismissal and will
review the order.’ ” (Ibid.)
