Baron v.
Filed 5/13/13 Baron v. County of Orange CA4/3
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purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
SEPTEMBER BARON,
Plaintiff and
Appellant,
v.
COUNTY OF ORANGE et al.,
Defendants and
Respondents.
G046620
(Super. Ct.
No. 30-2010-00410598)
O P I N I O
N
Appeal from a judgment
and orders of the Superior Court
of
County, Linda S. Marks, and Richard W. Luesebrink (retired
judge of the Orange County
Super. Ct.,
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.), Judges. Affirmed in part and
reversed in part.
Law Offices of Nizinski
& Vetchein, Loren Nizinski, Robert Vetchein and Beverly Swanson, for
Plaintiff and Appellant.
Lynberg & Watkins,
S. Frank Harrell and Scott D. Danforth, for Defendants and Respondents.
September Baron
appeals from a judgment dismissing her claims against the County
of Orange, the Orange County
Sheriff’s Department, and an individual deputy sheriff for personal injuries,
after the court sustained respondents’ demurrer to her first amended
complaint. In her complaint, Baron had
alleged four state-law causes of action and one cause of action for federal
civil rights violations under 42 U.S.C. section 1983. The trial court dismissed her claims because
she had not filed her complaint within the time limit specified in Government
Code section 946.6, subdivision (f).
We affirm in part and
reverse in part. Baron did indeed miss
the filing deadline for her state-law causes of action, by a considerable
margin. Her cause of action for civil
rights violations, however, is not subject to this state-law condition. The court erroneously dismissed this last
cause of action when it dismissed the other four. We therefore return the matter to the trial
court for further proceedings on this lone claim.
FACTS
June 9, 2009, deputies from
the Orange County Sheriff’s Department responded to a 911 call from Baron’s
sister after she and Baron had an argument, during which Baron threatened her
with a fireplace poker. Baron was
arrested and taken into custody. She
alleged she was badly injured during the arrest.
Baron wanted to sue the County
of Orange, the Orange County
Sheriff’s Department, and the arresting deputy for assault and battery,
negligence, negligent hiring, and infliction of emotional distress under
for violation of her civil rights under 42 U.S.C. section 1983. She failed, however, to present her claim to
the relevant public entities within six months of the accrual of her causes of
action, as required by Government Code section 911.2, subdivision (a). Her request under section 911.4 to file a
late claim was denied. Accordingly, she
moved in superior court for relief under section 946.6.
The court granted
Baron’s petition on October 27, 2010,
and gave her leave to file her complaint.
Under Government Code section 946.6, subdivision (f), Baron had 30 days
after the court made its order to file her complaint – until November 26, 2010.
Baron did not file her
complaint until January 5, 2011. Respondents demurred to the complaint, on the
grounds that the first four (state-law) claims were barred as untimely filed
and the last, federal, cause of action was not pleaded with the requisite
particularity. The court sustained the
demurrers to the first four causes of action, because of Baron’s failure to
file her complaint on time, and overruled the demurrer to the federal cause of
action. The court gave Baron leave to
amend to allege facts showing why the time-bar of Government Code section 946.6
should not apply.
Baron filed her first
amended complaint, alleging the court ordered the complaint filed, but the
clerk failed to follow this order. Respondents
demurred again, and, after ordering supplemental briefing on the limitations
issue, the court sustained the demurrer and dismissed the entire action.
Respondents served a
proposed order dismissing the first four causes of action on December 13, 2011. Baron did not respond within five days;
accordingly respondents served a notice on December 19 that the order was
deemed approved. (See Cal.
Rules of Court, Rule 3.1312(a).)
Respondents then served a second proposed order, this one dismissing the
entire action, on December 30, 2011. Baron objected to this one, but the objection
was not served until January 6, 2012,
two days late.
title="">[2] The court signed the second proposed order on
January 10, 2012,
dismissing the entire action.
DISCUSSION
On appeal from the
dismissal of an action after a demurrer has been sustained, we exercise our
independent judgment to determine whether the complaint states a cause of
action under any theory. (
(2004) 118 Cal.App.4th 861, 869.) We
accept as true all properly pled material facts, all facts that may be inferred
from the allegations, and all matters that can be judicially noticed. (Id.
at pp. 869-870.) A demurrer on
limitations grounds is proper if the grounds appear on the face of the
complaint or are revealed in matters that can be judicially noticed. (Friends
of Shingle Springs Interchange, Inc. v.
1470, 1482.)
State-Law Causes of Action
(f), requires a plaintiff who has been granted relief from a late claim against
a public entity to file suit within 30 days after the court orders relief. Complying with this time period is mandatory;
courts do not have the power to allow claims to be filed beyond the 30-day
limit or to accept “‘substantial compliance’†with the statute. (See Ard
v. County
339, 343, 346; Fritts v. County of Kern
(1982) 135 Cal.App.3d 303, 305-306 [plaintiff one day late in filing complaint;
demurrer sustained].
Baron does not dispute
the application of the code section to the state-law causes of action of the
first amended complaint. Instead, she
maintains (1) the complaint was actually filed on October 27, 2010, the date of the hearing on her petition
for relief, or (2) respondents should be equitably estopped from asserting a
time-bar. We deal with each argument in
turn.
A. The October
27, 2010 Hearing
The hearing on October
27 dealt with Baron’s petition for relief under Government Code section 946.6
for failure to present a timely claim.
The trial court granted the petition, stating, “Your petition for leave
is granted.†Baron’s counsel then asked
the court, “Just procedurally, we filed a proposed complaint. Does that get filed now automatically, or how
does that work?†The judge responded,
“Well, you two [counsel for the parties] talk about it.†“Well,†observed Baron’s counsel, “it hasn’t
actually officially been filed because it was attached as a proposed complaint
to the motion – to the petition, and now the petition has been granted.†“Right,†said the judge. “So you figure out what to do next.†Baron’s counsel than asked the judge to order
that the complaint may be filed. “I think
that’s inherent in my ruling, but if not, you have leave to file your
complaint,†replied the judge.
From this exchange, we
can only conclude the court was granting Baron leave – that is, permission – to
file the complaint. But that is
all. A party petitioning the court under
Government Code section 946.6 is seeking relief from the prohibition of section
945.4, which forbids filing suit against a public entity “until a written claim
. . . 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 . . . .†(Gov. Code, § 945.4.) The petition does not encompass filing the
complaint itself. And the judge’s
comments at the October 27 hearing cannot be construed as ordering the clerk to
file the complaint. He was quite careful
not to make such an order and clearly put the responsibility on counsel.
Baron’s counsel
explicitly acknowledged that merely filing the petition did not equal filing
the complaint. He tried to get the judge
to tell him what to do, but the judge put the onus back on him: “So you figure out what to do next.†The only relief the court granted was the
relief Baron sought through her petition – leave to file the complaint. The actual filing, however, is a separate
action, which would properly occur after
the court granted the relief requested under Government Code section 946.6.
Baron did not file a
complaint on October 27, 2010. She filed a petition to which a
complaint, but she did not do so until January 2011. This was well beyond the 30-day limit for
filing suits after permission has been granted to do so.
B. Equitable
Estoppel
Baron argues her complaint
should be saved under the principles of equitable estoppel. The elements of an estoppel are: (1) a representation or concealment of
material facts known to the party to be estopped; (2) the other party’s
ignorance of the true facts; (3) the intention of the party to be estopped that
its conduct be acted upon; and (4) the other party’s reliance to its
prejudice. (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 584; Cal. Cigarette Concessions v. City of L. A. (1960) 53 Cal.2d 865,
869.)
With commendable frankness,
Baron informs us that the party to be estopped in the first instance is the
trial court, with respondents secondarily liable for trying to benefit from the
trial court’s activities. Even if we
could apply estoppel to a trial court – and Baron gives us no authority for
this extraordinary idea – the court did nothing to mislead Baron. It granted her petition for relief. It then told her counsel to figure out the
next step for himself, hinting that a stipulation with opposing counsel might
be a good idea. It made explicit what
was implicit in the order by telling her counsel he had leave to file the
complaint. It made no representations
and concealed no facts of which Baron was unaware.
Similarly, estoppel will
not work against respondents. Baron
alleged no representations made by respondents to her. They never said anything to lead her to
believe that filing the petition with a proposed complaint attached was good
enough. Baron cites no material facts
known to respondents of which she was ignorant.
And she describes no actions that she took in reliance on any statements
or concealments by respondents. There is
no basis for equitable estoppel here.
Because we find that the
first four cases of action were not filed within 30 days of the trial court’s
order, as required by Government Code section 946.6, subdivision (f), and
equitable estoppel does not apply, we do not reach the issue of whether the
causes of action were properly pleaded.
Federal Cause of Action
courts have jurisdiction to hear a cause of action brought under 42 U.S.C.
section 1983, and a plaintiff need not file a claim under Government Code
section 911.2 before bringing such an action.
(Williams v. Horvath (1976) 16
Cal.3d 834, 837, 842; see also Bach v.
County of Butte (1983) 147 Cal.App.3d 554 [state courts have jurisdiction
to hear section 1983 claims].)
Baron argues her
properly pleaded, and respondents do not dispute this point. Although respondents do not forfeit their
opposition by failing to address a contention (see Wall Street Network, Ltd. v. New York Times Co. (2008) 164
Cal.App.4th 1171, 1178, fn. 3), we think their silence on the merits of this
argument is significant.
We agree with the trial
court’s determination after the first demurrer that Baron adequately pleaded a
cause of action under 42 U.S.C. section 1983.
“The ‘two essential elements’ to a claim under section 1983 are ‘(1)
whether the conduct complained of was committed by a person acting under the
color of state law; and (2) whether this conduct deprived a person of rights,
privileges, or immunities secured by the Constitution or laws of the United
States.’ [Citation.]†(Irwin
v. City of Hemet (1994) 22 Cal.App.4th 507, 516.) Baron alleged that the conduct complained of
was committed by an Orange County
deputy sheriff, clearly a person acting under color of state law. She also alleged facts that, if proven, might
qualify as use of excessive force by the deputy. This would amount to depriving her of her
Fourth Amendment rights. (See, e.g.,
818 F.2d 1411, 1416, overruled on other grounds in Hodgers-Durgin v. De La Vina (9th Cir. 1999) 199 F.3d 1037.)
Respondents argue the
trial court could exercise its inherent powers to dismiss the last cause of
action for “persistent procrastination and delay.†Trouble is, the court gave no indication
whatsoever that it was penalizing Baron in this drastic way – and without notice
or opportunity for hearing – for filing her complaint less than a
month-and-a-half late. On remand,
respondents can, if they so desire, bring this subject up with the trial court
and, if necessary, develop a record that would support dismissing the fifth
cause of action for reasons other than the time limitation imposed by
Government Code section 946.6, subdivision (f).
But at this point there is no indication that was the court’s intent.
DISPOSITION
The judgment of
dismissal is reversed. The order
sustaining respondents’ demurrer to the first four causes of action of the
First Amended Complaint without leave to amend is affirmed. The order sustaining the demurrer to the
fifth cause of action is reversed. The
parties are to bear their own costs on
appeal.
BEDSWORTH,
J.
WE CONCUR:
O’LEARY, P.
J.
ARONSON, J.
name="_ftn1" title=""> [1] Respondents also filed a motion to
strike, which was directed solely at certain allegations of the civil rights
cause of action. The court deemed the
motion to strike moot after sustaining the demurrer.
name="_ftn2" title=""> [2] The record does not indicate when
the objection was filed with the court.
