Sangster v. San Bernadino County Sherrif Dept.
Filed 2/27/12 Sangster v. San Bernadino County Sherrif Dept. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
LUMBSDEN A. SANGSTER,
Plaintiff
and Appellant,
v.
SAN BERNARDINO COUNTY SHERIFF DEPARTMENT,
Defendant
and Respondent.
E053242
(Super.Ct.No.
CIVVS1005048)
OPINION
APPEAL
from the Superior Court of
Bernardino County. Marsha Slough,
Judge. Affirmed.
Lumbsden
A. Sangster, in pro. per., for Plaintiff and Appellant.
Jean-Rene
Basle, County Counsel, and Teresa M. McGowan, Deputy County Counsel, for
Defendant and Respondent.
On
December 14, 2010, plaintiff and appellant Lumbsden A. Sangster filed an
amended complaint for malicious
prosecution, emotional distress, general negligence, intentional tort, and
premises liability against defendant and respondent San Bernardino County
Sheriff Department. Sangster alleged
police misconduct in responding to
and investigating an incident on January 7, 2007. Defendant demurred on the grounds that
Sangster failed to comply with the Government Tort Claims Act (Gov. Code,
without leave to amend, and judgment of dismissal was entered.
On
appeal, Sangster contends the trial court erred in ruling his claims were time
barred. He also asserts that the court
should have granted leave to file a second amended complaint rather than
sustaining defendant’s demurrer without leave to amend. We conclude the face of Sangster’s amended
complaint, along with the attached documents, establishes as matter of law that
his complaint and underlying government
claims were untimely. In addition,
he has not established that he is able to amend his amended complaint
successfully. We therefore affirm the
judgment.
I. PROCEDURAL BACKGROUND AND FACTS
A demurrer admits all the truth of all facts properly
pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
966-967.) Accordingly, we will refer to
the allegations in the complaint for the chronology of this matter. (See Align
Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 954.) “[O]n review of a demurrer, in addition to
the allegations of the complaint, we may consider other relevant matters of
which the trial court could have taken judicial notice and we may treat such
matters as having been pleaded.
[Citations.]” (
(1989) 212 Cal.App.3d 524, 538.)
Sangster
was arrested on January 7, 2007, and was housed at the West Valley
Detention Center (Center). He was
charged with attempted murder and personally inflicting great bodily injury. On April 8, 2009, while at the Center,
he was attacked by another inmate. On
August 7, 2009, he was exonerated of all charges by a jury. On July 20, 2010, Sangster filed a claim
against San Bernardino County. He
claimed police misconduct in responding to and investigating the incident on
January 7, 2007. His claim was
rejected on July 29, 2010, because it was untimely. Nonetheless, on August 3, 2010, he
initiated this action against defendant by filing a complaint, which was later
amended on December 14, 2010. He
alleges that on or about January 7, 2007, defendant charged him with a
crime that he was not convicted of committing.
He accuses defendant of planting evidence, coaching witnesses,
unnecessarily breaking windows, housing him in a cell where he was attacked,
and wrongfully taking DNA from him.
Defendant
demurred to the amended complaint, arguing that Sangster failed to timely
comply with the Government Tort Claims Act, and that the demurrer was proper
because the amended pleading was not subject to further amendment. The trial court agreed, sustained the demurrer
without leave to amend, and on March 17, 2011, entered judgment of
dismissal.
II. STANDARD OF REVIEW
“On
appeal, we review the trial court’s sustaining of a demurrer without leave to
amend de novo, exercising our independent
judgment as to whether a cause of action has been stated as a matter of
law. [Citations.] We assume the truth of properly pleaded
allegations in the complaint and give the complaint a reasonable
interpretation, reading it as a whole and with all its parts in their
context. [Citations.] However, we may disregard allegations which
are contrary to law or to a fact of which judicial
notice may be taken. [Citations.]
“We
apply the abuse of discretion standard in reviewing the trial court’s denial of
leave to amend. [Citations.] When a demurrer is sustained without leave to
amend, we determine whether there is a reasonable probability that the defect
can be cured by amendment. [Citation.] The appellant bears the burden of proving the
trial court erred in sustaining the demurrer or abused its discretion in
denying leave to amend. [Citations.]” (V.C.
v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 506-507.)
III. THE TORT CLAIMS ACT
“According
to Government Code section 815, subdivision (a), all governmental liability is
governed by statute. [Citations.] As explained in Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405,
1414 . . . ‘governmental entities are immune from being sued
unless the Legislature has specifically provided otherwise. The [Tort Claims] Act sets forth the limited
circumstances under which the state and other political subdivisions may be
sued and the applicable procedural requirements.’
“[Section]
900 et seq., part of the Tort Claims Act, ‘prescribes the manner in which
public entities may be sued.’
[Citation.] [Section] 945.4
provides that ‘“no 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 in
accordance with . . . Section 910 . . . until a
written claim therefor has been presented to the public entity and has been
acted upon by the [public entity’s] board, or has been deemed to have been
rejected by the board . . . .”’ [Citation.]
The purposes of the claim filing requirement are: ‘(1) to give notice to the public entity so
it will have a timely opportunity to investigate the claim and determine the
facts; and (2) to give the public entity an opportunity to settle meritorious
claims thereby avoiding unnecessary lawsuits.’
[Citations.]
“[Section]
911.2 requires that personal injury [and property] claims against a public
entity be filed ‘not later than six months after the accrual of the cause of
action.’ Alternatively, a late claim may
be presented within a reasonable time after accrual, not to exceed one
year. [Citation.] If the application to file a late claim is
denied, a plaintiff may petition the court for an order relieving [him] from
the claims presentation requirement.
[Citation.] No action for money
damages may be brought against a public entity unless a written claim has been
presented to the entity and acted upon, or relief is granted from the claims
requirements. [Citations.]
“The
date of accrual of a cause of action marks the starting point for calculating
the claims presentation period.
[Citations.] ‘The general rule
for defining the accrual of a cause of action sets the date as the time “when,
under the substantive law, the wrongful act is done,” or the wrongful result
occurs, and the consequent “liability arises.”
[Citation.] In other words, it
sets the date as the time when the cause of action is complete with all of its
elements [citations]—the elements being generically referred to by sets of
terms such as “wrongdoing” or “wrongful conduct,” “cause” or “causation,” and
“harm” or “injury” [citations].’
[Citations.] ‘A cause of action
accrues for purposes of the filing requirements of the Tort Claims Act on the
same date a similar action against a nonpublic entity would be deemed to accrue
for purposes of applying the relevant statute of limitations.’ [Citations.]”
(V.C. v. Los Angeles Unified
School Dist., supra, 139
Cal.App.4th at pp. 507-508.)
IV. DISCUSSION
Sangster
contends the trial court erred in not granting him leave to file a second
amended complaint. He argues that his
delay in filing his claim is excused because he was ignorant, without
representation of counsel, and the time was tolled while the charges against
him were pending. (§ 945.3.)
Section
911.2, in relevant part, provides: “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.” (§ 911.2,
subd. (a).)
Section
945.3, in relevant part, provides: “No
person charged by indictment, information, complaint, or other accusatory
pleading charging a criminal offense may bring a civil action for money or
damages against a peace officer or the public entity employing a peace officer
based upon conduct of the peace officer relating to the offense for which the
accused is charged, including an act or omission in investigating or reporting
the offense or arresting or detaining the accused, while the charges against
the accused are pending before a superior court. [¶]
Any applicable statute of limitations for filing and prosecuting these
actions shall be tolled during the period that the charges are pending before a
superior court. [¶] . . . [¶] Nothing
in this section shall prohibit the filing of a claim with the board of a public
entity, and this section shall not extend the time within which a claim is
required to be presented pursuant to Section 911.2.” (§ 945.3, italics added.)
The
language in the statutes is clear.
Sangster only had a limited period of time in which to file his claims
against the County of San Bernardino.
Although he was charged and prosecuted with a crime resulting from the
incident on January 7, 2007, and he was not exonerated until
August 7, 2009, the time to file a claim against defendant continued to
run while the charges were pending before a superior court. By our calculation, Sangster had until July 7,
2007 (six months after January 7, 2007, arrest/charge incident), and then
until October 8, 2009 (six months after April 8, 2009, attack at the
Center), in which to file his claims for personal and property injuries
stemming from those incidents. (§ 911.2.) According to the record before this court, Sangster
did not file his claim until July 20, 2010, more than three and one half
years following the January 7, 2007, incident, and more than one year
following the April 8, 2009, incident.
More importantly, as defendant points out, the claim never mentioned the
April 8 incident. Because Sangster
presented his claim well beyond the six-month time limit afforded by section
911.2, he was unable to initiate this action against defendant.
Nonetheless,
Sangster argues he should have been allowed to file a second amended
complaint. It is unclear how allowing
him another bite at the apple would have remedied his failure to timely present
his claim to the County of San Bernardino.
In the event a claimant fails to present his claim within the six-month
time limit, section 911.4, in relevant part, provides that “a written
application may be made to the public entity for leave to present that
claim.” However, “[t]he application
shall be presented . . . within a reasonable time
the cause of action and shall state the reason for the
delay . . . .”
(§ 911.4, subds. (a), (b), italics added.) Again, the outside time limit was one year. Thus, Sangster had to file no later than
January 7, 2008 (arrest incident), and April 8, 2010 (attack
incident).
Turning
to the record before this court, Sangster argued for leave to file a second
amended complaint, claiming that he “learned and be came [sic] aware of the cause of action on or about August 07,
2009,” that he did not have the “benefit of an attorney,” and that he “is
ignorant in properly understand[ing] some of the procedures in bring[ing]
action against defendant[].” On appeal,
he argues that he should be allowed leave to amend because his delay in filing
a claim with the County of San Bernardino was due to the fact that charges were
pending against him before a superior court, and his inability “to obtain an
attorney and properly investigat[e] the cause of
action . . . .”
Unfortunately, Sangster never petitioned the County of San Bernardino to
file a late claim. Accordingly, he is
statutorily barred from doing so. As
such, he is unable to file a second amended complaint because he is unable to plead
that a timely claim was filed.
Based
on the above, we conclude the trial court appropriately ruled that Sangster
“failed to file a timely tort claim under the Government Tort Claims
acts.” Having failed to submit a timely
claim, Sangster’s amended complaint is barred under the Government Tort Claims
Act, and the trial court did not err in sustaining without leave to amend
defendant’s demurrer to Sangster’s amended complaint.
V. DISPOSITION
The judgment is affirmed. Defendant is awarded costs on appeal.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
MCKINSTER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Government Code unless otherwise noted.
