Carter v. County of San Bernardino CA4/2 ( 2021 )

Filed 9/27/21 Carter v. County of San Bernardino 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
JERMAINE CORNELIUS CARTER,
Plaintiff and Appellant, E075560
v. (Super.Ct.No. CIVDS1716566)
COUNTY OF SAN BERNARDINO OPINION
et al.,
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa,
Judge. Affirmed.
Jermaine Cornelius Carter, Plaintiff and Appellant in pro. per.
Burke, Williams & Sorensen, Nathan A. Oyster and Brian S. Ginter for Defendant
and Respondent City of Rialto.
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Michelle D. Blakemore, County Counsel and Laura L. Crane, Deputy County
Counsel for Defendant and Respondent County of San Bernardino.
Jermain Carter is an inmate who filed a civil suit in 2017 against the County of
San Bernardino (County), City of Rialto (City), Rialto Police Department, two named
police detectives, and his trial level criminal defense attorney for violating his civil rights.
The action arises from an order granting his Penal Code section 1118.1 motion for
acquittal of attempted murder, one of the counts of which he stood trial in 1994.
Although the attempted murder count was dismissed, he was convicted of two counts of
murder, and four counts of robbery, resulting in a sentence of life without possibility of
parole on one of the murders, plus a 15-year-to-life term on the second murder, and
determinate sentences for the robberies. After eventually effecting service of process on
the various defendants in this civil action, demurrers were filed by the defendants and
orders were entered sustaining each without leave to amend due to expiration of the
statute of limitations and noncompliance with the claims procedures for public entities.
Plaintiff appealed, although as to all defendants except the City and the County,
the appeal was dismissed. On appeal, plaintiff challenges the dismissal of his action. We
affirm.
BACKGROUND
In 1994, plaintiff stood trial in a criminal case in which he and a codefendant were
charged with seven counts, including attempted murder (Pen. Code, §§ 664, 187)1, two
1 All further statutory references are to the Penal Code unless otherwise indicated.
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counts of murder with multiple murder special circumstances alleged (§§ 187, subd. (a),
190.2, subd. (a)(3), counts 2, 4), and four counts of robbery (§ 211, counts 3, 5, 6, and 7).
During trial, defense counsel made a motion for acquittal. As to count 1, the attempted
murder, the motion was granted. As to count 2, the court granted the 1118.1 motion as to
first degree murder, leaving open the possibility of a conviction for second degree
murder. As to the remaining counts, the motion was denied and plaintiff was convicted
and sentenced. (People v. Carter et al. (Jan. 14, 1997, E015694) [nonpub. opn.], pp. 1-
2.)2 His convictions and sentence were affirmed on appeal. (Id., at p. 15.)
On October 25, 2017, plaintiff filed a civil complaint against the City, the Rialto
Police Department, the County, Rialto police detectives Terry Tesone and Robert
Perriguey, and plaintiff’s criminal defense attorney Grover Porter for personal injury and
civil rights violations. The complaint included an allegation that compliance with a
claims presentation statute was excused pursuant to Code of Civil Procedure section
352.1, for disability, due to plaintiff’s incarceration pursuant to a sentence to life without
the possibility of parole.
Plaintiff made repeated attempts to enter the defaults of each defendant, both
before he had effected service on them of the summons and complaint, and later, after
service was complete, when the defendants whose defaults he sought had already
2 We take judicial notice of the superior court records and files in the criminal
matter where defendant made a motion for acquittal pursuant to Penal Code, section
1118.1, which was granted as to count 1 only. (People v. Carter, San Bernardino
Superior Court, case No. FSB03821.) We also take judicial notice of our unpublished
opinion in plaintiff’s direct appeal, People v. Carter, et al. (Jan. 14, 1997, E015694).
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demurred to the complaint. The County demurred to the complaint on grounds plaintiff
did not comply with the mandatory claims presentation requirement for suits against
public entities, and the expiration of the statute of limitations. Defendant City also
demurred to the complaint, although its pleading is not included in the record on appeal.
The court sustained each demurrer without leave to amend. Judgment in favor of
the defendant Grover Porter was entered on January 19, 2018.3 As to the County,
judgment was entered on July 21, 2020, and as to the City, judgment was entered on June
24, 2020.4 Plaintiff appealed.
DISCUSSION
Plaintiff’s arguments are not a model of clarity. He asserts he properly requested
entry of the defendants’ defaults, and that the trial court therefore lacked jurisdiction to
consider and sustain the respective demurrers to the complaint by the County and City, in
violation of his rights. He also argues he was excused from compliance with the
requirement of filing a claim against the public entities pursuant to Government Code
3 Several of the defendants made motions to dismiss the appeal. We granted the
motion as to Mr. Porter, as indicated. As to the Rialto Police Department and the two
named police detectives, we granted the motion on the ground the appeal was premature
as to those defendants, due to lack of a final judgment.
4 As to Grover Porter, the appeal was dismissed as untimely by our order dated
January 20, 2021. The appeal as to the Rialto Police Department and the two detectives
was dismissed as premature because no judgment had been entered although the
demurrers had been ruled on in their favor. That left the City and the County as parties to
this appeal. While the appellate record does not include ruling on the demurrer in favor
of the City, the Register of Actions provides some evidence.
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section 945.4, and that the statute of limitations on his action was tolled because of his
incarceration. We disagree.
a. Rejection of Requests to Enter Defaults Was Proper.
The register of actions included in the clerk’s transcript on appeal reflects that at
the time of his first request for entry of default against the defendants, neither of them
had yet been served with the summons and complaint. In fact, plaintiff’s complaint was
dismissed in March 20, 2018 for want of prosecution due to his failure to serve the
remaining defendants after Mr. Porter’s dismissal from the action. That dismissal was
eventually vacated and plaintiff eventually succeeded in serving the summons and
complaint on the remaining defendants. Defendants timely demurred as no default had
been entered.
The entry of defaults is governed by Code of Civil Procedure section 585, which
provides in part that in a civil action for the recovery of money or damages, a default may
be entered against a defendant if the defendants have been served, other than by
publication, and no answer, demurrer, motion to dismiss, or other first pleading as
provided by statute has been filed. (Code Civ. Proc., § 585, subd. (b).) If the complaint
seeks recovery of a specified amount of damages, a clerk’s default may be entered.
(Code of Civ. Proc., § 585, subd. (a).) However, if the complaint seeks nonmonetary
relief or monetary relief in amounts that require additional evidence or the exercise of
judgment to determine, the plaintiff must request entry of judgment by the court. (Code
Civ. Proc., § 585, subd. (b); Holloway v. Quetel (2015) 242 Cal.App.4th 1425, 1432.)
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“The clerk has no authority to enter the default of a defendant in the absence of
valid proof of service of summons.” (Woods v. Stallworth (1960) 177 Cal.App.2d 517,
520.) As to plaintiff’s original requests for entry of default as to all the named
defendants, the trial court properly refused to enter their defaults because they had not yet
been served.
Plaintiff ultimately filed proofs of service on the named defendants on December
11, 2019. The County filed its demurrer to the complaint on January 2, 2020, within the
30-day response period, while the City filed its demurrer on January 29, 2020.5
The trial court correctly rejected plaintiff’s requests for entry of default against the
County and the City.
b. The Orders Sustaining the Demurrers of the County and City Without
Leave to Amend Were Proper.
Plaintiff argues the trial court improperly sustained the demurrers without leave to
amend on grounds pertaining to (i) the expiration of the statute of limitations and (ii) his
failure to comply with the government claims procedure. (Gov. Code, § 945.4.) We
disagree.
(i) Expiration of the Statute of Limitations
On review of a superior court’s orders “sustaining defendants’ demurrers, we
examine the complaint de novo to determine whether it alleges facts sufficient to state a
5 Plaintiff attempted to file a request for entry of default against “Rialto City
Hall” prior to the City’s demurrer, but this was rejected because Rialto City Hall was not
a party to the action.
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cause of action under any legal theory, such facts being assumed true for this purpose.”
(McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415, citing Santa Monica
Beach, Ltd. v. Superior Court (1999) 19 Cal. 4th 952, 957; Blank v. Kirwan (1985) 39
Cal. 3d 311, 318.)
“When a demurrer is sustained, we determine whether the complaint states facts
sufficient to constitute a cause of action.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
When a demurrer is sustained without leave to amend, Blank v. Kirwin, supra, instructs
us to 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. (Blank v. Kirwan, supra; Kilgore v.
Younger (1982) 30 Cal.3d 770, 781; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627,
636.) “The burden of proving such reasonable possibility is squarely on the plaintiff.”
(Cooper v. Leslie Salt Co., supra, at p. 636.)
Plaintiff’s complaint is on a Judicial Council form for a personal injury action and
includes causes of action for negligence and malicious prosecution, with passing
reference to a violation of his civil rights. A section 1983 cause of action is subject to the
forum state’s statute of limitations for personal injury torts. (Wallace v. Kato (2007) 549
U.S. 384, 387 [166 L.Ed. 2d 973, 127 S.Ct. 1091].) California’s statute of limitations
governing a personal injury claim is two years. (Code Civ. Proc., § 335.1 [“Within two
years: An action . . . for the death of . . . an individual caused by the wrongful act or
neglect of another”].)
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“Federal law governs when a cause of action accrues and when the statute of
limitations begins to run on a federal civil rights cause of action.” (Shalabi v. City of
Fontana (2021) 11 Cal.5th 842, 847.) Insofar as federal law applies the forum state’s
statute of limitations, the California’s two-year statute of limitations is applicable in this
matter. (Id., at p. 847.)
Plaintiff argues that the statute of limitations was tolled because he suffers from a
disability based on his incarceration. Here again, “[s]tate law controls the tolling of the
statute of limitations for a federal civil rights claim.” (Shalabi v. City of Fontana, supra,
11 Cal.5th at p. 847.)
Code of Civil Procedure, section 352.1, governs the tolling provisions applicable
to prisoners. Subdivision (a) of section 352.1, provides: “(a) If a person entitled to bring
an action, mentioned in Chapter 3 (commencing with Section 335), is, at the time the
cause of action accrued, imprisoned on a criminal charge, or in execution under the
sentence of a criminal court for a term less than for life, the time of that disability is not a
part of the time limited for the commencement of the action, not to exceed two years.”
“Literally, the section tolls the statutes of limitations only for persons who are serving
terms less than for life.” (Grasso v. McDonough Power Equipment, Inc. (1968) 264
Cal.App.2d 597, 599.) It does not operate to toll actions for persons serving a sentence of
life without possibility of parole. (Ibid.; see also Brooks v. Mercy Hospital (2016) 1
Cal.App.5th 1, 6-7.)
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However, even if Code of Civil Procedure section 352.1 applied to prisoners
committed to prison for life without possibility of parole, subdivision (b) of section 352.1
provides, “This section does not apply to an action against a public entity or public
employee upon a cause of action for which a claim is required to be presented in
accordance with Chapter 1 (commencing with Section 900) or Chapter 2 (commencing
with Section 910) of Part 3, or Chapter 3 (commencing with Section 950) of Part 4, of
Division 3.6 of Title 1 of the Government Code.” Because the County and City are
public entities, plaintiff’s claims were not tolled pursuant to section Code of Civil
Procedure 352.1, subdivision (b).
Nevertheless, although it is unclear precisely how the granting of a motion for
acquittal on one count gave rise to a right of action in tort or for violation of his civil
rights, even if the running of the statute of limitations were tolled, that tolling expired
after two years from the date the claim accrued. (Code Civ. Proc., §352.1, subd. (a).) By
plaintiff’s own assertion, his claim accrued when the trial court granted his motion for
acquittal on the attempted murder charge, which occurred in 1994. Thus, even with
tolling due to imprisonment, the tolling ended in 1996 and plaintiff then had two years to
institute this action.
Plaintiff brought this civil action 23 years later, in 2017, well past the expiration of
the statute of limitations, even if the matter had been tolled. The trial court properly
sustained the demurrer without leave to amend on this ground.
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(ii) Failure to Comply with Government Code § 945
The second ground for sustaining the demurrers without leave to amend was
plaintiff’s failure to timely present his claims to the public entity in conformity with
Government Code section 945.4. In his reply brief, plaintiff asserts he filed the requisite
claims against the County and the City in 2016, and thereby satisfied the provisions of
section 945.4. We disagree.
Government Code section 945.4 provides, “Except as provided in Sections 946.4
and 946.6, 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 Chapter
1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part
3 of this division until a written claim therefor 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,
in accordance with Chapters 1 and 2 of Part 3 of this division.”
Prior to maintaining suit, a claim must be presented as provided in Government
Code, section 911.2. Under that section, a claim relating to a cause of action for death or
for injury to person must be presented not later than six months after the accrual of the
cause of action. (Gov. Code, § 911.2, subd. (a).) A claim relating to any other cause of
action shall be presented not later than one year after the accrual of the cause of action.
(Ibid.) “The timely filing of a claim is an essential element of a cause of action against a
public entity and failure to allege compliance with the claims statute renders the
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complaint subject to general demurrer.” (Wood v. Riverside General Hospital (1994) 25
Cal.App.4th 1113, 1119.)
Under California law, an element of a cause of action against public officials is
compliance (or an excuse from complying) with the claim presentation requirements set
forth in the Government Claims Act. (State of California v. Superior Court (2004) 32
Cal.4th 1234, 1239-1240.) We are aware that the claim provision of Government Code
section 911.2 is inoperative in an action brought under 42 U.S.C. section 1983. (Rossiter
v. Benoit (1979) 88 Cal.App.3d 706, 713, overruled on a different point in Wilson v.
Garcia (1985) 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254.) However, plaintiff’s
complaint sounds in tort.
Plaintiff’s complaint appears to acknowledge that the claim requirements were
applicable: he asserts that he was excused from compliance by virtue of disability due to
his imprisonment. In other words, plaintiff did not claim that compliance was excused
due to the nature of the lawsuit.
More importantly, although plaintiff has inserted the words “violation of civil
rights” in the caption of the complaint, the body of the complaint does not allege any of
the usual elements of a cause of action for a violation of civil rights. Instead, he has
utilized a form complaint for a generic negligence action for personal injury or property
damage, including the attachments for a negligence cause of action and a cause of action
for intentional torts (malicious prosecution, false arrest). As to the causes of action that
have been stated in the complaint, the claims presentation requirements applied, and
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plaintiff was required to file his lawsuit within six months, and not more than one year,
following denial of the claim. (Gov. Code, § 911.2.)
The requirement of complying with the governmental claims procedure is not
tolled by plaintiff’s imprisonment. (Code Civ. Proc., § 352.1, subd. (b).) Therefore,
plaintiff’s complaint fails to allege compliance with the claims statute, rendering the
complaint subject to general demurrer. (Wood v. Riverside General Hospital, supra, 25
Cal.App.4th at p. 1119.)
In any event, even if the presentation of a government claim were excused, the
expiration of the statute of limitations more than 20 years earlier nevertheless barred the
complaint.
There is no possibility plaintiff can amend his complaint to cure the defects where,
under any scenario, he filed it far too late. The trial court properly sustained the
demurrers without leave to amend.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
FIELDS
J
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