Cervantes v. Ontario-Montclair
School Dist.
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Cervantes v. Ontario-Montclair School Dist. CA1/4
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face="Times New Roman">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opinion has not been certified for publication or ordered published for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
face="Times New Roman">SAVANA MARIE CERVANTES,
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Appellant,
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SCHOOL DISTRICT,
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Respondent.
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face="Times New Roman"> E057902
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face="Times New Roman"> (Super.Ct.No. CIVRS1201479)
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face="Times New Roman"> OPINION
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APPEAL from the Superior
Court of
County. Ben T.
Kayashima, Judge. (Retired judge of the
San Bernardino Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Savana Marie Cervantes, in
propria persona, for Plaintiff and Appellant.
McCune & Harber, LLP, Stephen M. Harber and Barry
Bookbinder for Defendant and Respondent.
face="Times New Roman"> On December 12, 2012, the trial court sustained a demurrer
to plaintiff's first amended complaint without leave to amend. Plaintiff Maria Cervantes (“Cervantesâ€) appeals
from the ensuing judgment.
face="Times New Roman">I
face="Times New Roman">THE TRIAL COURT'S RULING
The demurrer was filed by
defendant Ontario-Montclair
Unified School District
(“Districtâ€). It asserts four defects in
the first amended complaint. The trial court sustained the demurrer on
three of the stated grounds.
A. Compliance With The Tort
Claims Act.
The District argued that the first amended complaint failed
to state a cause of action because plaintiff failed to allege compliance with
the claims presentation requirements of the Tort Claims Act. (Code Civ. Proc.,
§ 430.10, subd. (e); Govt. Code, § 810-996.6.)
The trial court agreed:
"The moving party is correct that nowhere in the First- Amended Complaint
do the plaintiffs affirmatively allege the requisite compliance with the Tort
Claims Act. Without such, a lawsuit
cannot be maintained against a public entity." Accordingly, the trial court sustained the
demurrer on this ground.
B. Statute of Limitations.
The District argued that the first amended complaint was
barred by the two-year statute of
limitations for negligence actions. (Code
Civ. Proc., § 335.1.)
The trial court agreed:
"A [negligence] cause of action is subject to the two-year statute of
limitation. First-Amended Complaint
alleges misconduct on the part of the moving party personnel in 2009 leading up
to her alleged wrongful arrest on November 5, 2009 for her daughter's truancy. Despite the moving party having allegedly
placed the daughter in home-schooling, plaintiff admits injury by reason of
that arrest but did not file a Complaint until February 24th, 2012.
The statute, however, expired November
5, 2011. And there is no
legal authority submitted for a tolling based on plaintiffs being, quote in no
condition physically or emotionally to bring any sort of actions, close quote. Sustain the demurrer based on the bar of
Statute of Limitation without leave to amend."
C. Uncertainty.
The District argued that the allegations of the first amended
complaint are uncertain.
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The trial court agreed: "There is also uncertainty. Guardian ad litem may not represent a minor
in pro per. Case called
[958] at 965. Sustain the demurrer on
those grounds as well."
II
DISCUSSION
The District points out that
the plaintiff has failed to present a proper record on appeal because she did
not include the complaint or first amended complaint in the notice designating
the record on appeal.
It is, of course, impossible for us to review the sufficiency
of the first amended complaint to state a cause of action without a copy of the
document. As the District points out,
the deficiency is an adequate reason to dismiss the appeal. (In re Marriage of Wilcox
(2004) 124 Cal.App.4th 492, 498-499)
"It is [appellant's] obligation as appellant to present a complete
record for appellate review, and in the absence of a required reporter's
transcript and other documents, we presume the judgment is correct. [Citations.]" (Stasz v. Eisenberg
(2010) 190 Cal.App.4th 1032, 1039.)
Nevertheless, Cervantes limits her appeal to a single issue: whether the two-year statute of limitations
expired prior to the filing of the complaint.
Cervantes states that she was arrested on November 5, 2009
for her daughter's alleged truancy from school. While Cervantes was in jail, the girl's father
obtained full custody of the daughter and Cervantes lost 9 months of custody of
her daughter. As a result, she alleges
emotional and economic stress caused by the District's actions. Plaintiff did not file her complaint until
February 28, 2012.
Cervantes argues that the statute did not become actionable (i.e.,
it did not "accrue") until she was acquitted of the truancy charges
on September 28, 2010. Her argument,
which consumes half a page of her brief, is not supported by any citation of
authority or discussion of case law. By
her own admission, any negligence of the District occurred in 2009, and her
emotional distress began with her arrest in November, 2009.
As the District points out, a cause of
action generally accrues on the date of injury.
"C.C.P. 312, the section introducing the limitation provisions of
the Code of Civil Procedure, states that civil actions can only be commenced
within the prescribed periods 'after the cause of action shall have
accrued.' The cause of action ordinarily
accrues when, under the substantive law, the wrongful act is done and the
obligation or liability arises, i.e., when an action may be brought. [Citations.]" (3 Witkin, Cal. Procedure (5th ed. 2008),
in certain situations. (
The District cites Jolly v. Eli Lilly &
Co. (1988) 44 Cal.3d 1103, which states the accrual rule, and its
modification by the discovery rule: "The discovery rule provides that the
accrual date of a cause of action is delayed until the plaintiff is aware of
her injury and its negligent cause. [Citation.]
A plaintiff is held to her actual knowledge as well as knowledge that
could reasonably be discovered through investigation of sources open to her. [Citation.]" (Id. at p. 1109,
fn. omitted.)
Plaintiff acknowledges that she was aware of the alleged
negligence of District employees in 2009, of her arrest at that time, and the
loss of custody of her daughter at that time. Although her cause of action arose at that
time, she does not explain how her 2010 acquittal of the charges against her
constitutes delayed discovery under the accrual rule. Nor does she explain her theory that her
subsequent acquittal of the charges made her claim actionable beginning on the
date of acquittal.
If plaintiff intended to rely on a theory of equitable
tolling of the statute on grounds of her disability, she has failed to
establish grounds for any applicable disability. (See generally 3 Witkin, Cal. Procedure (5th
ed. 2008), Actions, § 695, pp. 914-915.)
In the absence of any such showing by plaintiff, or citation
of authority, the trial court correctly found that the two-year statute of
limitations for negligence applies to bar this action.
Although plaintiff initially limits the issue on appeal to
the statute of limitations issue, she also argues in her opening brief that she
properly filed a tort claim against the District under another name. After stating the alleged elements of a proper
claim, plaintiff states: "Looking
at Plaintiff's complaint, it is clear that it contained all of the required
items." However, as explained
above, we cannot look at the complaint because it is not in our record.
We therefore agree with the trial court and the District that
plaintiff has failed to meet her burden of showing error.
III
DISPOSITION
The judgment is affirmed.
Each party to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI face="Times New Roman">
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We concur:
RAMIREZ face="Times New Roman">
P. J.
KING face="Times New Roman">
J.
other grounds of uncertainty were argued, the trial court combined the third
and fourth grounds of demurrer. The
fourth ground was that "[t]he FAC fails to state a cause of action against
the District because a guardian ad litem may not represent a minor in pro
per." The trial court treated the
issue as one of uncertainty.
