BRANDON FLEEMAN v. HEDGPETH

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

BRANDON R. FLEEMAN, Plaintiff and Appellant, v. A. HEDGPETH et al., Defendants and Respondents.

F061634

Decided: January 17, 2012

 * APPEAL from a judgment of the Superior Court of Kern County.   Sidney P. Chapin, Judge.   Brandon P. Fleeman, in pro. per., for Plaintiff and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

State prisoner Brandon Fleeman filed a complaint against three prison employees, and the trial court sustained a demurrer without leave to amend.   With respect to the judgment in favor of defendants Hedgpeth and Brookwalter, we reverse because the face of the complaint does not affirmatively show that Fleeman's claim is time-barred.

We do not have jurisdiction to review the separate court order regarding defendant Martin.

FACTUAL AND PROCEDURAL HISTORIES

Brandon R. Fleeman, a prisoner at Kern Valley State Prison, filed a complaint in propria persona against Warden A. Hedgpeth, correctional officer Alexander Martin, and Sergeant Michael Brookwalter (collectively respondents).   He alleged that respondents were responsible for the loss of three boxes of his personal property.   He claimed damages amounting to $1,258.58, including the loss of dentures, which made eating painful and cumbersome.   Fleeman declared that he placed the complaint in the United States mail at Kern Valley State Prison on March 8, 2010.   The complaint was filed in the Kern County Superior Court on April 9, 2010.

On August 13, 2010, defendant Hedgpeth filed a demurrer on the grounds that the pleadings did not state a cause of action and the complaint was barred by the statute of limitations contained in Government Code section 945.6.   Hedgpeth pointed out that an exhibit attached to the complaint showed that Fleeman was notified that his government claim had been rejected on September 24, 2009.   Hedgpeth argued that Fleeman's complaint, filed more than six months later, was untimely.   On August 18, 2010, defendant Brookwalter filed a joinder to Hedgpeth's demurrer.

On September 2, 2010, Fleeman filed a memorandum of points and authorities in opposition to the demurrer.   He wrote, “Plaintiff submitted his complaint to prison staff for mailing, and was logged as outgoing legal mail on March 12, 2010.”   Attached to his memorandum was a document titled “Kern Valley State Prison—Incoming/Outgoing Legal Mail Record,” which listed outgoing mail on “3/12/2010” to recipient “Sup Ct, Kern Co;  1415 Truxtun Ave;  Bakersfield, CA 93301.”

According to the docket, on September 13, 2010, the trial court sustained the demurrer without leave to amend on the ground that an exhibit attached to the complaint showed that the complaint was barred in its entirety by the six-month statute of limitations contained in Government Code section 945.6.1  On November 4, 2010, the court entered a judgment of dismissal.   The judgment provides, “JUDGMENT IS ENTERED in favor of defendant Hedgpeth dismissing plaintiff's complaint with prejudice.”   Defendant Brookwalter is not mentioned in the judgment.

On October 29, 2010, defendant Martin filed a demurrer to Fleeman's complaint based on failure to state a cause of action, untimeliness, and collateral estoppel, based on the trial court's ruling on the earlier demurrer.   According to the docket, on December 10, 2010, the demurrer was sustained without leave to amend.

Fleeman filed a notice of appeal on January 3, 2011.   The notice provides that Fleeman was appealing from the judgment of dismissal after an order sustaining a demurrer entered on November 4, 2010.

DISCUSSION

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled.”  (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)  “We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.  [Citation.]  Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law.  [Citations.]  When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.  [Citation.]  And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment:  if it can be, the trial court has abused its discretion and we reverse.  [Citation.]”  (Ibid.)

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred.  [Citation.]  In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint;  it is not enough that the complaint shows that the action may be barred.  [Citation.]”  (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

“Suits against a public entity or public employees are governed by the specific statute of limitations provided in the Government Code, not the statute of limitations that applies to private defendants.”  (Moore v. Twomey (2004) 120 Cal.App.4th 910, 913.)  Government Code section 945.6 provides that a suit against public employees must be commenced no later than six months after written notice of rejection has been given by the Victims Compensation and Government Claims Board.  (Gov.Code, § 945.6, subd (a)(1).)

In this case, Fleeman was notified of the rejection of his claim on September 24, 2009.   In a form titled “Proof of Service by Mail” included with his complaint, Fleeman declared that he placed the complaint in the prison mail on March 8, 2010, within six months of the rejection notice.   The complaint was filed with the superior court on April 9, 2010, more than six months after the rejection notice.

In Moore v. Twomey, supra, 120 Cal.App.4th at page 913, a state prisoner acting in propria persona filed a complaint against county sheriff's employees alleging they lost or destroyed his legal files.   He mailed his complaint to the superior court and, like Fleeman, included a proof of service in which he stated the date he placed the complaint in the prison mail.  (Ibid.) The complaint was filed in superior court 13 days later.  (Ibid.) The trial court considered the date the complaint was filed in the superior court to be the filing date and granted the defendants' motion for judgment on the pleadings on the ground that the complaint was untimely.  (Ibid.)

The appellate court, however, reversed the judgment of dismissal.  (Moore v. Twomey, supra, 120 Cal.App.4th at p. 919.)   In doing so, the court adopted the “prison-delivery” rule 2 for civil cases as follows:  “[A] civil complaint by a pro se prisoner litigant should be deemed filed when it is delivered to prison authorities for forwarding to the superior court.”  (Id. at p. 918.)   The court explained, “Adopting this rule will place plaintiff and other pro se prisoner litigants like him on equal footing with litigants who are not impeded by the practical difficulties encountered by incarcerated litigants in meeting filing requirements.”  (Ibid.)

In the current case, Fleeman included a proof of service with his complaint declaring that he placed the complaint in the prison mail on March 8, 2010.   This is the date his complaint is deemed to have been filed.  (Moore v. Twomey, supra, 120 Cal.App.4th at p. 918.)   Consequently, on the face of the complaint, it appears Fleeman filed it within the six-month statute of limitations.   Alternatively, if the trial court considered Fleeman's points and authorities and attached document filed on September 2, 2010, as an admission that Fleeman placed the complaint in the prison mail on the later date of March 12, 2010, the result would be the same.

Respondents argue that Fleeman's proof of service is not valid because he is a party to the action.  (See Code Civ. Proc., § 1013a.)   We reject this argument because the document is not being used to show actual service to another party.   Rather, Fleeman's proof of service shows the date he placed the complaint in the prison mail.   This is the same procedure the prisoner used in Moore v. Twomey, supra, 120 Cal.App.4th at page 913.

Respondents also argue that the trial court should not have considered Fleeman's opposition, assuming it contained an argument about mailing, because Fleeman did not serve defense counsel with it.   To sustain a demurrer based on the statute of limitations, however, “the defect must clearly and affirmatively appear on the face of the complaint․”  (Marshall v. Gibson, Dunn & Crutcher, supra, 37 Cal.App.4th at p. 1403.)   Regardless of whether Fleeman raised the argument, it cannot be said that the alleged time bar was clear on the face of the complaint.   The complaint, including attachments, indicated that (1) Fleeman received a rejection notice from the Victims Compensation and Government Claims Board, which was dated September 24, 2009, and (2) Fleeman delivered the complaint to the prison to be mailed on March 8, 2010.   Taken together, these alleged facts show Fleeman's complaint was timely.   For this reason, the demurrer was not well taken.

Respondents also argue that Fleeman has only appealed the judgment against Hedgpeth.   The notice of appeal identifies the judgment entered on November 4, 2010.   The judgment followed the trial court's order of September 13, 2010, sustaining the demurrer by defendants Hedgpeth and Brookwalter.   The notice of appeal does not mention the subsequent order of December 12, 2010, sustaining the demurrer by defendant Martin.   As a result, we do not have jurisdiction to review the trial court's order regarding defendant Martin.  (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1224–1225 [notice of appeal identifying appeal of judgment entered on certain date cannot be construed as notice of appeal of judgment entered on later date and as to different defendant].)

The next question is whether Fleeman effectively appealed the trial court's order sustaining the demurrer by Brookwalter.  “It is axiomatic that notices of appeal will be liberally construed to implement the strong public policy favoring the hearing of appeals on the merits.  [Citation.]  This policy is especially vital where the faulty notice of appeal engenders no prejudice and causes no confusion concerning the scope of the appeal.”  (Norco Delivery Service, Inc. v. Owens–Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960–961.)   Here, although the judgment appealed did not mention defendant Brookwalter, it referred to the trial court's order of September 13, 2010, and that order sustained the demurrer as to both defendants Hedgpeth and Brookwalter.   The arguments in support of affirming dismissal are identical for Hedgpeth and Brookwalter, and we observe that Hedgpeth and Brookwalter (along with Martin) have shared counsel throughout this proceeding and filed a joint respondents' brief on appeal.   Thus, there appears to be no prejudice or confusion concerning the scope of the appeal.   For these reasons, we construe the notice of appeal to include the court's order sustaining the demurrer by Brookwalter.

DISPOSITION

The trial court's order of September 13, 2010, sustaining the demurrer without leave to amend and the judgment entered November 4, 2010, are reversed.

FOOTNOTES

FN1. There is no court order in the appellate record, but we take judicial notice of the superior court's electronic register of actions/case docket (docket), which states the demurrer “is sustained without leave to amend on the ground that exhibit attached to complaint shows that complaint is barred in its entirety by the 6 month statute of limitations contained in Government Code 945.6.”  (Evid.Code, § 452, subd. (d).).  FN1. There is no court order in the appellate record, but we take judicial notice of the superior court's electronic register of actions/case docket (docket), which states the demurrer “is sustained without leave to amend on the ground that exhibit attached to complaint shows that complaint is barred in its entirety by the 6 month statute of limitations contained in Government Code 945.6.”  (Evid.Code, § 452, subd. (d).)

FN2. The “prison-delivery” rule “provides that a prisoner's notice of appeal is deemed timely filed if delivered to prison authorities within [the applicable filing period]․”  (In re Jordan (1992) 4 Cal.4th 116, 118, 130 [reaffirming viability of prison-delivery rule].).  FN2. The “prison-delivery” rule “provides that a prisoner's notice of appeal is deemed timely filed if delivered to prison authorities within [the applicable filing period]․”  (In re Jordan (1992) 4 Cal.4th 116, 118, 130 [reaffirming viability of prison-delivery rule].)