Stanford v. Olin
Filed 2/10/10 Stanford v. Olin CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
RICK STANFORD, Plaintiff and Appellant, v. MATT OLIN, Defendant and Respondent. | G041889 (Super. Ct. No. 07CC05894) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. Affirmed.
Rick Stanford, in pro. per., for Plaintiff and Appellant.
Jones & Mayer, Krista MacNevin Jee and Ivy M. Tsai for Defendant and Respondent.
* * *
Introduction
In May 2007, Rick Stanford sued Costa Mesa Police Officer Matt Olin for false arrest and false imprisonment based on Stanfords arrest on July 6, 1999 and resulting eight-day incarceration. The trial court granted Olins motion for judgment on the pleadings, and Stanford appeals from the resulting judgment. We affirm.
Stanfords claims against Olin arose out of his acts in the course and scope of his employment as a police officer. Therefore, timely presentation of a claim against Olins employer, the City of Costa Mesa, and timely institution of a lawsuit after denial of the claim were a prerequisite to suing Olin. (Gov. Code, 905, 905.2, 915, subd. (a), 945.4, 945.6, subd. (a)(1), 950.2.) (All further code citations are to the Government Code, except as noted.) Stanfords claim against the City of Costa Mesa, presented in 2002, was untimely. His lawsuit against Olin, filed over four years after denial of Stanfords claim, was untimely too.
Facts and Allegations
On July 3, 1999, a fire sprinkler was set off in the apartment rented by Stanford, flooding four units and causing extensive damage. Stanford was in the apartment at the time. The Costa Mesa Fire Department arrived, recovered the sprinkler keys that were missing from the apartment, and inspected the sprinkler head. The manager of the apartment complex submitted a vandalism report to the Costa Mesa Police Department.
On July 6, 1999, Costa Mesa Police Officers Kevin Meng and Olin were dispatched to the apartment complex to speak with Stanford. While Olin spoke with Stanford, Meng telephoned Police Lieutenant Kent, who instructed Meng and Olin to arrest Stanford for violation of Penal Code section 594, former subdivision (b)(2) (vandalism causing damage of more than $5,000 but less than $50,000).
Meng and Olin arrested Stanford, and he spent eight days in jail. A one‑count criminal complaint, filed on July 7, 1999, charged Stanford with violating Penal Code section 594, former subdivision (b)(2). That count was dismissed on January 4, 2000.
In 2000, Stanford sued the City of Costa Mesa, Meng, Olin, and others for false arrest and various other torts arising out of his arrest in July 1999. The trial court dismissed Stanfords complaint as a discovery sanction because Stanford failed to appear for a court-ordered deposition. In Stanford v. City of Costa Mesa (Dec. 3, 2002, G030129) [nonpub. opn.], we affirmed. Olin was not a party to the appeal.[1]
On October 9, 2002, Stanford presented a claim to the City of Costa Mesa. The claim asserted it was based on an incident that occurred July 3, 1999‑June 2002, described as follows: An intruder set my fire sprinkler to go off. I was arrested (8 days in jail). Investigation covered‑up against Me No warrant. The claim listed Meng and Olin among the public employees causing the injury, damage, or loss.
On October 25, 2002, the City of Costa Mesa denied Stanfords claim on the ground it was not presented within six months after the event. The claim denial was sent to Stanford by certified mail.
On May 14, 2007, Stanford filed a complaint against Olin, asserting a single cause of action for False arrest with Imprisonment. Olin answered the complaint and moved for judgment on the pleadings. The trial court granted the motion.
Discussion
1. Failure to File Timely Tort Claim
A person must present a timely claim to a local public entity before suing the local public entity for damages, except in specified circumstances not relevant here. ( 905, 905.2, 915, subd. (a), 945.4.) A claim relating to a cause of action for death or personal injury must be presented within six months after the accrual of the cause of action. ( 911.2, subd. (a).) The date of accrual for purposes of the claim presentation requirement is the same date on which the cause of action would accrue for purposes of the statute of limitations in an action against a private party. ( 901.)
A claim need not be presented as a prerequisite to maintaining a cause of action against a public employee for injury resulting from an act or omission in the scope of his or her employment as a public employee. ( 950.) But a cause of action against a public employee for injury resulting from an act or omission in the scope of his or her employment as a public employee is barred if an action against the employing public entity is barred under sections 900 through 935.8 or sections 945 through 949. ( 950.2.) Presentation of a claim against a public employee or former public employee for injury resulting from an act or omission in the scope of his public employment is not a prerequisite to the maintenance of an action against the employee, but presentation of a claim against the employing public entity is a prerequisite to bringing such an action. (Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1034.)
The last day on which the causes of action alleged in Stanfords complaint could have accrued was January 4, 2000, the date on which the criminal charge against him was dismissed. Stanford presented a claim to the City of Costa Mesa in October 2002. The claim was untimely because it was filed well over six months after his causes of action accrued.[2] As a result, Stanfords causes of action against the City of Costa Mesa, resulting from his arrest in July 1999, were barred, and, consequently, his causes of action against Olin are barred to the extent Olin acted within the course and scope of his employment as a public employee. ( 950.2.)
Stanford argues Olin acted outside his scope of employment because he was given instructions by his superior officer to follow Penal Code section 836, which requires a warrant or probable cause to arrest. Stanford argues Olin lacked probable cause to arrest or an arrest warrant, and therefore disobeyed his instructions and acted outside the scope of his employment.
That argument is unavailing even if Olin did not have probable cause to arrest Stanford. A distinction must be made between an unauthorized departure from the course of employment and the performance of a duty in an unauthorized manner. Injury occurring during the course of the former conduct is not compensable. The latter conduct, while it may constitute serious and willful misconduct by the employee [citation], does not take the employee outside the course of his employment. [Citations.] [] Thus, Where an employee is in the performance of the duties of his employer, the fact that the injury was sustained while performing the duty in an unauthorized manner or in violation of instructions or rules of his employer does not make the injury one incurred outside the scope of employment. (Pacific Tel. & Tel. Co. v. Workers Comp. Appeals Bd. (1980) 112 Cal.App.3d 241, 245.)
When arresting Stanford, Olin was performing his duties as a police officer, and was not on an unauthorized departure from his course of employment. If Stanfords arrest were unauthorized for lack of probable cause, or if made in violation of instructions, the arrest would nonetheless have occurred during the course of Olins employment as a police officer. Stanfords claims against Olin therefore arise out of Olins acts or omissions in the course of his employment as a Costa Mesa police officer. Stanfords causes of action against Olin are barred for failure to present a timely claim to the City of Costa Mesa.
At oral argument, Stanford argued his claim was timely under section 950.4, which provides that a cause of action against a public employee is not barred by section 950.2 if the plaintiff pleads and proves that he did not know or have reason to know, within the period for the presentation of a claim to the employing public entity . . . , that the injury was caused . . . by an act or omission of an employee of the public entity in the scope of his employment as a public employee. ( 950.4.) Stanfords complaint did not meet this pleading requirement. He did not allege he did not know or have reason to know, within the time period for presenting a claim, that Olin was acting in the scope of his employment as a police officer. To the contrary, Stanfords complaint alleged that, on July 15, 1999, nine days after his arrest, he went to the police department to file a complaint.
2. Failure to File Timely Complaint after Denial of Tort Claim
Except in situations not relevant here, any lawsuit against a public entity on a cause of action for which a tort claim is required must be commenced not later than six months after the date on which written notice of denial of the claim is personally delivered or deposited in the mail. ( 945.6, subd. (a)(1).)
On October 25, 2002, the City of Costa Mesa sent the claim denial to Stanford by certified mail. Stanford did not file his complaint against Olin until May 2007. The appellate record includes no evidence that Stanford filed suit against the City of Costa Mesa after October 25, 2002. His earlier lawsuit against the City of Costa Mesa does not satisfy the time limits of section 945.6, subdivision (a)(1) because it was filed before he presented a claim. Thus, any lawsuit against the City of Costa Mesa would be barred under section 945.6, subdivision (a)(1), and, consequently, the lawsuit against Olin is barred under section 950.2.
Disposition
The judgment is affirmed. Respondent to recover costs incurred on appeal.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
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[1] Olin argues the dismissal was res judicata as to the City of Costa Mesa and thus to him. However, based on this record, we cannot say the dismissal of the City of Costa Mesa was on the merits; therefore, the dismissal of that complaint is not res judicata.
[2] A person who fails to present a timely claim may apply to the public entity for leave to present a late claim. ( 911.4, subd. (a).) The application must be presented to the public entity within a reasonable time not to exceed one year after the accrual of the cause of action. ( 911.4, subd. (b).) Stanford did not apply for leave to present a late claim.
