LOUIS FRANCIS v. CITY OF LOS ANGELES (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Plaintiff and appellant Louis Francis asserted one cause of action for “intentional tort” against defendants and respondents the City of Los Angeles (the City), its police chief William Bratton, and police officers John Snee, Anna Mullins and Don Tabak.   Plaintiff contends that defendants intentionally failed to investigate or negligently investigated his brother's disappearance.   The trial court sustained defendants' demurrers without leave to amend on the ground that plaintiff's complaint was filed more than six months after plaintiff's Government Claims Act claim was denied and thus was time barred under Government Code section 945.6, subdivision (a)(1).¹

We shall conclude that plaintiff's action is not barred by section 945.6.   Plaintiff is incarcerated by the State of California.   Under the prison-delivery rule, his complaint was deemed filed on the date he properly delivered it to prison officials pursuant to the prison's established procedures for prisoners' mail rather than on the date it was actually filed by the clerk of the court.   As we shall explain, plaintiff alleges that he properly delivered his complaint to prison officials to be mailed to the court on March 18, 2008, which was within the six-month deadline of section 945.6.

We nonetheless affirm the judgments against plaintiff on another ground.   Section 911.2 requires that a Government Claims Act claim be filed no later than six months after the accrual of the cause of action.   Plaintiff, however, filed his claim more than three years after his cause of action accrued.   Plaintiff's lawsuit therefore is barred by section 911.2.

FACTUAL AND PROCEDURAL BACKGROUND

1. Plaintiff's Government Claims Act Claim

On June 20, 2007, plaintiff filed a claim pursuant to the Government Claims Act, section 900 et seq.²  Plaintiff alleged that the defendants breached their “fiduciary” duty by “knowingly” failing and refusing to conduct a meaningful and reasonable search for his brother Eddie Francis, Jr. (Eddie) Plaintiff sought damages in the amount of $2.3 million for emotional distress.

2. The City Denied Plaintiff's Claim

On September 20, 2007, the City denied plaintiff's claim on the grounds that the claim was insufficient and did not comply with sections 910 and 910.2.

3. Plaintiff's First Attempt to File - December 9, 2007

On or about December 9, 2007, plaintiff mailed his summons, complaint, and civil case cover sheet to the superior court along with an application for waiver of court fees and costs.   On December 18, 2007, the court clerk “stamped filed” and granted plaintiff's request for a waiver of fees and costs, but did not file the complaint or assign a case number.   On December 19, 2007, the clerk returned the complaint to plaintiff because (1) the summons and complaint did not match exactly, (2) plaintiff failed to sign the civil case cover sheet, and (3) plaintiff did not file a civil case cover sheet addendum.

4. Plaintiff's Second Attempt to File - January 23, 2008

On or about January 23, 2008, plaintiff mailed the summons, complaint and civil case cover sheet to the superior court.   He also informed that clerk that he had no access to a civil case cover sheet addendum but once he received it from the court he would prepare it for filing.   The clerk, however, rejected plaintiff's documents on February 11, 2008, on the grounds that (1) the words “et al.” could not be used on the summons and complaint and (2) plaintiff failed to file a civil case cover sheet addendum.³

5. Plaintiff's Third Attempt to File - February 14, 2008

On or about February 14, 2008, plaintiff mailed the summons and complaint (this time with the words “et al crossed off) along with a civil case cover sheet and civil case cover sheet addendum.   However, on February 20, 2008, the clerk returned the complaint again.   In a note to plaintiff, the clerk stated that the original fee waiver order was needed as well as the original complaint with the fee waiver stamp.   However, the clerk had never stamped the original complaint.

6. Plaintiff Mails The Complaint on March 18, 2008 and Has It Filed on

March 25, 2008

On March 18, 2008, plaintiff prepared a new application for waiver of court fees and costs and sent it along with the complaint and other required documents to the superior court.   Finally, on March 25, 2008, plaintiff's complaint was filed by the superior court.

7. Plaintiff's Amended Complaint

On June 18, 2008, plaintiff filed an amended complaint.   The amended complaint contained the same material allegations as the complaint.

8. Allegations in the Complaint and Amended Complaint

When plaintiff filed his complaint and amended complaint he was not represented by counsel.   Plaintiff's complaint and amended complaint asserted one cause of action for “intentional tort.”   The complaint and amended complaint alleged the following facts.

In 1992, plaintiff reported to the Los Angeles police department that his brother Eddie was missing.   Eddie is an “at-risk” person because he is mentally disturbed and impaired.⁴

From 1992 to 2007, plaintiff exercised due diligence to obtain information regarding Eddie's whereabouts and the police's efforts to find him.   In or about February 2004, plaintiff sent a letter to the Department of Justice (DOJ) asking the DOJ to cause the Los Angeles police department to not give up on its investigation into Eddie's disappearance.   The letter also stated that the police had failed to put Eddie's name and picture on its missing persons website and that Eddie's disappearance may be related to the police department's Rampart corruption incident.⁶

On or about July 7, 2005, the coroner's office sent plaintiff a list of cases of unidentified bodies from 1992 to 2005.   On that list was John Doe # 192, who died on August 29, 1992 from a homicide.⁷

In October 2006, plaintiff provided the police department with a written authorization to obtain Eddie's medical records.   In December 2006, at the police department's request, plaintiff provided a DNA sample.

On or about June 6, 2007, plaintiff received certain documents that indicated that defendants' conduct was knowing and intentional.   These documents included a DOJ flyer, a Los Angeles police department flyer, a missing persons profile printout dated January 8, 2007, and a declaration by Anna Mullins dated May 30, 2007.

As a result of defendants' conduct, plaintiff suffered serious emotional distress and was been treated by a doctor.   Plaintiff prays for compensatory and punitive damages in the amount of $1.25 million.

9. The Trial Court Sustained Defendants' Demurrers and Entered Judgments for Defendants

On June 27, 2008, the City filed a demurrer to the complaint.⁸  The City argued that because plaintiff's claim was denied on September 20 2007, plaintiff was required to file his lawsuit on or before March 20, 2008-five days before plaintiff filed his complaint. (§ 945.6, subd. (a)(1).)

On July 23, 2008, the trial court sustained the City's demurrer without leave to amend.   In its minute order, the court stated that the complaint was barred by the six-month deadline set forth in section 945.6, subdivision (a)(1), because plaintiff's complaint was filed on March 25, 2008, which was more than 180 days after his claim was rejected.   On August 8, 2008, the court entered a judgment and order of dismissal in favor of the City and defendant Bratton,⁹ which plaintiff timely appealed.¹⁰

On September 30, 2008, defendants Mullins and Snee filed a demurrer to the complaint.¹¹  Mullins and Snee argued that the complaint was uncertain and that it was time barred by section 945.6, subdivision (a)(1).   On October 28, 2008, the trial court granted defendant Tabak's joinder to the demurrer and sustained the demurrer without leave to amend on the ground that the case was barred by section 945.6, subdivision (a)(1).

The trial court filed a judgment and order of dismissal in favor of Mullins, Snee and Tabak and against plaintiff on November 10, 2008.   Plaintiff filed a timely appeal of that judgment.

On February 3, 2009, this court consolidated plaintiff's appeals.

CONTENTIONS

Plaintiff contends that the trial court erroneously sustained defendants' demurrers because under the prison-delivery rule he filed his complaint on March 18, 2008, less than 180 days after his claim was denied.

Defendants do not contest plaintiff's argument regarding the prison-delivery rule and thus tacitly concede the merits of that argument.   However, defendants contend that their demurrers were correctly sustained for two reasons.   First, defendants argue that they did not owe a duty to plaintiff and cannot be held liable for negligently investigating Eddie's disappearance as a matter of law.   Second, defendants argue that plaintiff's suit is time barred because he did not file a Government Claims Act claim within six months of the accrual of his cause of action.

Defendants did not make these arguments to the trial court.   However, “the issue of whether a cause of action is stated is not waived by the failure to raise it in the trial court, and it may be raised for the first time on appeal.  (See Code Civ. Proc., § 430.80, subd. (a);  [citations].)”  (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 7, fn. 2.) We thus exercise our discretion to consider defendants' second argument, which raises an issue of law.  (See Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1141 [“A party may raise a new issue on appeal if that issue is purely a question of law on undisputed facts”].)   We do not, however, reach defendants' first argument because their second argument is dispositive.

DISCUSSION

1. Standard of Review

In determining whether a plaintiff has stated a cause of action, “our standard of review is clear:  ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  [Citation.]  We also consider matters which may be judicially noticed.”   [Citation.]  Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.  [Citation.]  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;  if not, there has been no abuse of discretion and we affirm.  [Citations.]  The burden of proving such reasonable possibility is squarely on the plaintiff.’  [Citations.]”  (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig ).)

“On appeal, we do not review the validity of the trial court's reasoning but only the propriety of the ruling itself.  [Citations.]  This court is not bound by the trial court's construction of the complaint, but must make its own independent interpretation.”  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517;  see also Community Assisting Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal.App.4th 886, 890-891.)

2. Plaintiff Was Required to File His Complaint On or Before March 20, 2008

Under the Government Claims Act, “no suit for ‘money or damages' may be brought against a public entity until a written claim has been presented to the public entity and the claim either has been acted upon or is deemed to have been rejected.  (Gov.Code, §§ 905, 945.4.)”  (Hart v. County of Alameda (1999) 76 Cal.App.4th 766, 778.)   Except under circumstances not applicable here, if a claim is denied by written notice, the claimant must file suit no later than six months after the date of such notice. (§ 945.6, subd. (a)(1).)

In this case, it is undisputed that plaintiff filed a written claim on June 20, 2007 and that the City denied that claim by written notice on September 20, 2007.   Accordingly, plaintiff was required to file his complaint on or before March 20, 2008.

3. The Trial Court Should Have Deemed Plaintiff's Complaint Filed on the Date Plaintiff Properly Delivered it to Prison Officials

The prison-delivery rule provides that “a self-represented prisoner's notice of appeal in a criminal case is deemed timely filed if, within the relevant period set forth in the California Rules of Court, the notice is delivered to prison authorities pursuant to the procedures established for prisoner mail.”   (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 110 (Silverbrand ), fn. omitted.)

“Rooted in common law and well established in California jurisprudence, the prison-delivery rule, also referred to as the prison mailbox rule, ‘ensures that an unrepresented defendant, confined during the period allowed for the filing of an appeal, is accorded an opportunity to comply with the filing requirements fully comparable to that provided to a defendant who is represented by counsel or who is not confined.’  [Citation.]  It also ‘furthers the efficient use of judicial resources by establishing a “bright-line” test that permits courts to avoid the substantial administrative burden that would be imposed were courts required to determine, on a case-by-case basis, whether a prisoner's notice of appeal was delivered to prison authorities “sufficiently in advance of the filing deadline” to permit the timely filing of the notice in the county clerk's office.’  [Citation.]”  (Silverbrand, supra, 46 Cal.4th at p. 110.)

In Silverbrand, the California Supreme Court extended the rule to civil appeals.   The court stated:  “There appears to be no sound basis for construing the relevant case law and rules of court as maintaining one rule in this context for criminal appeals and another for civil appeals.   Self-represented prisoners-who can file a notice of appeal only by delivering it to prison authorities for mailing-should be allowed the same opportunity as nonprisoners and prisoners with counsel to pursue their appellate rights, regardless of the nature of the appeal pursued.   Broadening the prison-delivery rule to include civil notices of appeal also should result in additional administrative benefits both for trial courts and reviewing courts, thereby improving judicial efficiency.   Therefore, for the same reasons that persuaded us that the prison-delivery rule should apply to the filing of a notice of appeal in a criminal case, we are persuaded that a notice of appeal by an incarcerated self-represented litigant in a civil case should be deemed filed as of the date the prisoner properly submitted the notice to prison authorities for forwarding to the clerk of the superior court.”  (Silverbrand, supra, 46 Cal.4th at p. 110.)

In Moore v. Twomey (2004) 120 Cal.App.4th 910 (Moore ), the court addressed the precise issue before this court, that is, “whether, for purposes of Government Code section 945.6, a prisoner's pro se civil complaint should be deemed filed on the date it is properly delivered to prison officials pursuant to the prison's established procedures for prisoners' mail rather than on the date it is actually filed by the clerk of court.”  (Moore, at p. 912.)   The court concluded that the prison-delivery rule applied to civil complaint filings, and that a prisoner's pro se civil complaint should be deemed filed on the date it is properly delivered to prison officials.   (Ibid.)

We adopt the holding of Moore.   In light of the policies underlying the prison-delivery rule, the rule should be expanded to the filing of prisoner's pro se civil complaints.

Here, plaintiff's complaint and amended complaint did not allege that plaintiff delivered his pleadings to the prison authorities on March 18, 2008.   However, in his opposition to the City's demurrer, plaintiff made that allegation.   As we have explained, March 18, 2008 was within the six-month deadline provided by section 945.6, subdivision (a)(1).   Accordingly, if the only deficiency in plaintiff's cause of action were plaintiff's failure to file his complaint within the six-month deadline of section 945.6, subdivision (a)(1), the trial court should have granted plaintiff leave to amend to allege he timely delivered his pleadings to prison authorities.  (See Zelig, supra, 27 Cal.4th at p. 1126 [trial court must grant plaintiff leave to amend when there is a reasonable possibility that defect in complaint can be cured by amendment].)   As we shall explain, however, plaintiff's suit is time barred for another reason and the defect in his complaint cannot be cured by further amendment.

4. Plaintiff's Suit Is Time Barred Because Plaintiff Did Not File His Claim Within Six Months of the Accrual of the Cause of Action

Section 911.2, subdivision (a) provides:  “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.”  (Italics added.)   For purposes of section 911.2, “the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon.” (§ 901.)

“Generally, a cause of action accrues ‘ “when, under the substantive law, the wrongful act is done,” or the wrongful result occurs, and the consequent “liability

arises.” ‘ [Citation.]   The ‘delayed discovery’ doctrine modifies that rule and protects a plaintiff by postponing accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.   [Citation.]  For purposes of that doctrine, ‘the plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof-when, simply put, he at least “suspects ․ that someone has done something wrong” to him [citation], “wrong” being used, not in any technical sense, but rather in accordance with its “lay understanding’ [citation].'  [Citation.]”  (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 515 (V.C.);   accord Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398 (Norgart ).)

“A plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.   The burden is on the plaintiff to show diligence, and conclusory allegations will not withstand demurrer.   [Citations.]”  (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, superseded by statute on another point as stated in Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 637, fn. 8.)

Here, the complaint states that plaintiff received certain documents on June 6, 2007, indicating to plaintiff for the first time that defendants' wrongful conduct was intentional.   Plaintiff thus contends that under the discovery rule the six-month time period of section 911.2 did not commence until June 6, 2007-fourteen days prior to the date he filed his claim.

The complaint, however, also states that on or about February 6, 2004, the DOJ received a letter from plaintiff complaining about defendants' investigation.   Plaintiff thus knew by that date that defendants had done something “wrong” to him in connection with their investigation into Eddie's disappearance.   Hence, whether defendants' conduct was intentional or negligent, plaintiff's cause of action accrued at the very latest on February 6, 2004.  (See V.C., supra, 139 Cal.App.4th at p. 515;  Norgart, supra, 21 Cal.4th at pp. 397-398.)   Yet plaintiff did not file his claim until June 20, 2007-more than three years later.   Plaintiff's suit therefore is barred by section 911.2.

Plaintiff seeks leave to amend his complaint.   However, plaintiff does not explain how he can amend his complaint to plead around section 911.2.   He thus has failed to meet his burden of showing that there is a reasonable possibility that the defect in his complaint can be cured by amendment.

5. The Court Does Not Reach Defendants' Argument that They Owed No Duty to Plaintiff

Because plaintiff's suit is time barred we do not reach the issue of whether defendants owed a duty to plaintiff to reasonably investigate Eddie's disappearance.

DISPOSITION

The judgments are affirmed.   The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Except as otherwise stated, all subsequent section references are to the Government Code..  FN1. Except as otherwise stated, all subsequent section references are to the Government Code.

FN2. We take judicial notice of document entitled “Claim for Damages,” date stamped received by the City clerk's office on June 20, 2007, and assigned Claim No. C07-5219.  (See Evid.Code, §§ 452, subd. (c), 459;  Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1773, fn.   2 (Munoz ) [taking judicial notice of entire State Board of Control file, including documents relating to plaintiff's Government Claims Act claim].)   We do not, however, take judicial notice that the allegations in plaintiff's claim are true.  (Munoz, at p. 1773, fn. 2.).  FN2. We take judicial notice of document entitled “Claim for Damages,” date stamped received by the City clerk's office on June 20, 2007, and assigned Claim No. C07-5219.  (See Evid.Code, §§ 452, subd. (c), 459;  Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1773, fn.   2 (Munoz ) [taking judicial notice of entire State Board of Control file, including documents relating to plaintiff's Government Claims Act claim].)   We do not, however, take judicial notice that the allegations in plaintiff's claim are true.  (Munoz, at p. 1773, fn. 2.)

FN3. The first paper filed in a civil action must be accompanied by a civil case cover sheet on a form prescribed by the Judicial Council and must be filed in addition to any cover sheet required by local court order (e.g. a civil case cover sheet addendum).  (Cal. Rules of Court, rule 3.220(a), (b).)  However, if a party fails to provide a civil case cover sheet or a civil case cover sheet addendum at the time the party's first paper is submitted for filing, the court clerk must nonetheless file the first paper.  (Cal. Rules of Court, rule 3.220(c).).  FN3. The first paper filed in a civil action must be accompanied by a civil case cover sheet on a form prescribed by the Judicial Council and must be filed in addition to any cover sheet required by local court order (e.g. a civil case cover sheet addendum).  (Cal. Rules of Court, rule 3.220(a), (b).)  However, if a party fails to provide a civil case cover sheet or a civil case cover sheet addendum at the time the party's first paper is submitted for filing, the court clerk must nonetheless file the first paper.  (Cal. Rules of Court, rule 3.220(c).)

FN4. For purposes of Penal Code section 14200 et seq., an “at-risk” person includes a missing person who is “mentally impaired.”  (Pen.Code, § 14213, subd. (b)(5).).  FN4. For purposes of Penal Code section 14200 et seq., an “at-risk” person includes a missing person who is “mentally impaired.”  (Pen.Code, § 14213, subd. (b)(5).)

FN5. Penal Code section 14205, subdivision (a) provides, in part:  “All local police and sheriffs' departments shall accept any report, including any telephonic report, of a missing person, including runaways, without delay and shall give priority to the handling of these reports over the handling of reports relating to crimes involving property․  In cases of reports involving missing persons, including, but not limited to, runaways, the local police or sheriff's department shall immediately take the report and make an assessment of reasonable steps to be taken to locate the person.   If the missing person is under 16 years of age, or there is evidence that the person is at risk, the department shall broadcast a ‘Be On the Look-Out’ bulletin, without delay, within its jurisdiction.”.  FN5. Penal Code section 14205, subdivision (a) provides, in part:  “All local police and sheriffs' departments shall accept any report, including any telephonic report, of a missing person, including runaways, without delay and shall give priority to the handling of these reports over the handling of reports relating to crimes involving property․  In cases of reports involving missing persons, including, but not limited to, runaways, the local police or sheriff's department shall immediately take the report and make an assessment of reasonable steps to be taken to locate the person.   If the missing person is under 16 years of age, or there is evidence that the person is at risk, the department shall broadcast a ‘Be On the Look-Out’ bulletin, without delay, within its jurisdiction.”

FN6. The complaint stated:  “February 6, 2004 the DOJ Missing Persons Unit received a letter from Francis asking for assistance with causing the L.A.P.D. to not give up on its investigation into Eddie's disappearance;  that the L.A.P.D. had not put Eddie's nmae [sic ] and picture on its Missing Persons Website, as it had done with all other reported missing persons;  and that Eddie's disappearance may be related to the L.A.P.D.'s Rampart Corruption Incident.”.  FN6. The complaint stated:  “February 6, 2004 the DOJ Missing Persons Unit received a letter from Francis asking for assistance with causing the L.A.P.D. to not give up on its investigation into Eddie's disappearance;  that the L.A.P.D. had not put Eddie's nmae [sic ] and picture on its Missing Persons Website, as it had done with all other reported missing persons;  and that Eddie's disappearance may be related to the L.A.P.D.'s Rampart Corruption Incident.”

FN7. It is unclear whether plaintiff contends that John Doe # 192 was Eddie.   In support of his opposition to the demurrer filed by Snee and Mullins, plaintiff requested the trial court to take judicial notice of a March 5, 2008, letter from the County of Los Angeles department of coroner to Debbie Francis, which plaintiff attached to his papers.   This letter indicates that Eddie died on August 29, 1992..  FN7. It is unclear whether plaintiff contends that John Doe # 192 was Eddie.   In support of his opposition to the demurrer filed by Snee and Mullins, plaintiff requested the trial court to take judicial notice of a March 5, 2008, letter from the County of Los Angeles department of coroner to Debbie Francis, which plaintiff attached to his papers.   This letter indicates that Eddie died on August 29, 1992.

FN8. Although the demurrer stated that it related to the “complaint,” it apparently related to the amended complaint because it was filed after the amended complaint was filed..  FN8. Although the demurrer stated that it related to the “complaint,” it apparently related to the amended complaint because it was filed after the amended complaint was filed.

FN9. The record does not clearly indicate why the judgment and order of dismissal applied to defendant Bratton..  FN9. The record does not clearly indicate why the judgment and order of dismissal applied to defendant Bratton.

FN10. The judgment and order of dismissal was filed on August 8, 2008.   Plaintiff apparently anticipated the judgment and order of dismissal because his notice of appeal, filed on August 7, 2008, attached an unsigned copy of it..  FN10. The judgment and order of dismissal was filed on August 8, 2008.   Plaintiff apparently anticipated the judgment and order of dismissal because his notice of appeal, filed on August 7, 2008, attached an unsigned copy of it.

FN11. Although the demurrer stated that it related to the “complaint,” it apparently related to the amended complaint because it was filed after the amended complaint was filed..  FN11. Although the demurrer stated that it related to the “complaint,” it apparently related to the amended complaint because it was filed after the amended complaint was filed.

KLEIN, P. J. ALDRICH, J.