Anderson v. Love CA1/3 ( 2023 )


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  • Filed 10/30/23 Anderson v. Love CA1/3
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
    FIRST APPELLATE DISTRICT
    DIVISION THREE
    JOSEPH ANDERSON,
    Plaintiff and Appellant,
    A167537
    v.
    JULIA LOVE,                                                            (Alameda County
    Super. Ct. No. 22CV019475)
    Defendant and Respondent.
    Plaintiff Joseph Anderson appeals after the trial court sustained a
    demurrer to his complaint without leave to amend on the ground that the
    action is barred by the applicable statutes of limitations. Plaintiff contends
    the action is timely under continuing-wrong accrual principles based on the
    allegation that defendant Julia Love continued to pose an ongoing threat to
    him during the limitations period. He further contends the court abused its
    discretion in refusing to grant him leave to amend. We affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    We take the following factual allegations from the operative complaint,
    which plaintiff filed on October 12, 2022.
    Plaintiff and defendant were neighbors on the same block of Alcatraz
    Avenue in Oakland. On February 18, 2016, plaintiff’s car was parked near
    defendant’s residence when a yard worker hired by defendant damaged
    plaintiff’s vehicle with a rake. Rather than apologize for the incident,
    1
    defendant falsely accused plaintiff of “ ‘harassing’ and ‘threatening’ her.”
    Later that same day, defendant “either came out of her house and physically
    and verbally confronted” plaintiff or “called the police” on him whenever
    plaintiff walked past defendant’s house. Defendant told plaintiff he had no
    right to park near her home because he “ ‘does not live in the neighborhood’ ”
    (even though he does). She also filed a police report falsely accusing plaintiff
    of making direct and specific physical threats and stalking her, and she
    recruited her neighbor, Chaundera Wolfe, to monitor and follow plaintiff.
    Plaintiff was arrested on the evening of February 18, 2016, and charged
    with making criminal threats. (Pen. Code, § 422.) The trial court initially
    imposed a protective order requiring plaintiff to avoid communicating with
    defendant and to stay 50 yards from her. Plaintiff later negotiated a modified
    protective order that permitted him to walk and park his vehicle in the
    neighborhood and required him only to refrain from making personal contact
    with defendant. Although plaintiff complied with the modified protective
    order, on August 15, 2016, defendant filed an application for a “civil
    protective order” against plaintiff. In her supporting application, defendant
    “grossly misrepresented” plaintiff’s acts of parking his car and walking past
    her residence as “ ‘stalking’ her.” The trial court granted defendant’s
    application and imposed a restrictive civil protective order on plaintiff.
    On April 28, 2017, the prosecutor “grudgingly dismissed” the criminal
    case and the criminal restraining order.
    The complaint asserts four causes of action against defendant for:
    (1) making a false police report and false statements to the trial court;
    (2) harassment; (3) defamation; and (4) racially-based harassment.
    Throughout the complaint, plaintiff emphasizes that he is Black and
    2
    defendant is White, and he accuses defendant of perpetuating “the so-called
    ‘New Jim Crow’ ” by trying to control him on public streets.
    The complaint further alleges that “[t]he harm caused to Plaintiff by
    [defendant] by these actions is ongoing in nature and continues to be a
    threat” because defendant “has repeatedly called the police, made false
    accusations, taken (or had other people take) pictures of Plaintiff and his car,
    and even came out of her house to harass, provoke and confront Plaintiff
    during the course of the events described in this complaint. Plaintiff is
    concerned that she will once again attempt to otherwise harass, provoke and
    intimidate Plaintiff whenever [he] attempts to exercise his right to free
    movement in his own neighborhood. Plaintiff is also concerned that
    Defendant Love will again try to put one of her friends or neighbors up to
    doing the same. This has caused Plaintiff stress and emotional distress, and
    it has caused [him] to fear walking down the public sidewalk in his own
    neighborhood out of concern that if Defendant Love ever sees Plaintiff pass
    (peacefully and harmlessly) by, she will re-initiate criminal charges and/or
    engage in other retaliatory acts.”
    Defendant demurred to the complaint on the multiple grounds that it
    failed to state a cause of action; it was barred under the doctrine of res
    judicata by a prior small claims court judgment in defendant’s favor; and it
    was untimely. In support of the demurrer, defendant requested judicial
    notice of: (1) the criminal case files in “the matter of Julia Love and
    Chaundera Wolfe vs. Joseph Anderson [case Nos.] RG16827969 and
    RG16827972”; (2) the case file in the small claims action between plaintiff
    and defendant (case No. RS17869951); (3) the notice of entry of judgment in
    the small claims action; (4) the complaint filed by plaintiff in the small claims
    action on August 2, 2017; (5) the Oakland Police Department crime report,
    3
    dated February 18, 2016; (6) a “Sign with Criminal Threats which Plaintiff
    posted on trees and neighbors’ doors surrounding [defendant’s] on [sic] home
    for which Plaintiff was arrested on February 18, 2016”; (7) a civil harassment
    restraining order issued in case No. RG16827969, dated September 12, 2016;
    and (8) plaintiff’s response to defendant’s request for a civil harassment
    restraining order.
    Plaintiff opposed the demurrer and requested judicial notice of “the
    case file in the criminal case filed against Plaintiff at the instigation of
    Defendant.” Attached to the request was a minute order reflecting the
    dismissal of the criminal threats charges and a “Notice of Termination of
    Protective Order in Criminal Proceeding,” both dated April 28, 2017.
    As relevant here, the trial court determined the complaint was
    untimely because “the last date alleged in the Complaint is April 28, 2017,
    which would make the Complaint—filed over 5 years later—untimely under
    even the longest statute of limitations.” The court rejected application of the
    continuing violation doctrine or continuous accrual theory because the
    complaint failed to allege any “ongoing wrongs,” and instead “affirmatively
    alleges that any ongoing conduct occurred ‘during the course of events
    described in this complaint,’ which spans from February 18, 2016 through
    April 28, 2017.” The court further noted that even if the statute of
    limitations was tolled pursuant to the Judicial Council’s emergency rule 9
    during the COVID-19 pandemic,1 “it would not be sufficient to make
    Plaintiff’s claims timely.”
    1     “In response to the COVID-19 pandemic, the Judicial Council adopted a
    series of emergency rules effective April 6, 2020.” (People v. Financial
    Casualty & Surety, Inc. (2021) 
    73 Cal.App.5th 33
    , 38.) As relevant here,
    emergency rule 9 tolled civil statutes of limitations that exceed 180 days from
    April 6, 2020, until October 1, 2020. (Ibid.)
    4
    In denying leave to amend, the trial court rejected plaintiff’s argument
    that the complaint could be amended to state a timely claim with allegations
    that defendant committed “ ‘continuing’ ” wrongs by refusing to leave the
    neighborhood and/or having friends in the neighborhood that “continued to
    pose a ‘threat’ ” to him.2 The court ordered the complaint dismissed with
    prejudice, and plaintiff timely appealed.
    DISCUSSION
    “In reviewing a demurrer order, we independently evaluate the
    challenged pleading, construing it liberally, giving it a reasonable
    interpretation, reading it as a whole, and viewing its parts in context.
    [Citation.] We treat the demurrer as admitting all material facts properly
    pleaded, but we do not assume the truth of contentions, deductions or
    conclusions of law. [Citation.] We determine de novo whether the factual
    allegations of the challenged pleading are adequate to state a cause of action
    under any legal theory.” (Allen v. City of Sacramento (2015) 
    234 Cal.App.4th 41
    , 51.) “We also consider matters which may be judicially noticed.”
    (Serrano v. Priest (1971) 
    5 Cal.3d 584
    , 591.)3
    2    In light of its ruling on the statute of limitations, the trial court
    expressly declined to reach the other grounds for the demurrer.
    3      Here, however, we do not consider any matters subject to judicial
    notice. As previously noted, both sides requested judicial notice of various
    court records, and defendant additionally sought judicial notice of the police
    report from the day of plaintiff’s arrest and a “Sign with Criminal Threats”
    that plaintiff purportedly posted on or around defendant’s home. While court
    records are permissible subjects of judicial notice (Evid. Code, § 452,
    subd. (d)), police reports are not (In re Marriage of Brewster & Clevenger
    (2020) 
    45 Cal.App.5th 481
    , 498), and defendant cites no authority for taking
    judicial notice of the “Sign with Criminal Threats.” Furthermore, there is no
    indication in the record that the trial court granted the parties’ requests,
    either in full or in part, and neither side has filed a motion for judicial notice
    in this court. (See Cal. Rules of Court, rule 8.252(a).) Accordingly, we will
    5
    “A complaint disclosing on its face that the limitations period has
    expired in connection with one or more counts is subject to demurrer.”
    (Fuller v. First Franklin Financial Corp. (2013) 
    216 Cal.App.4th 955
    , 962.)
    To sustain a demurrer on this ground, “the untimeliness of the lawsuit must
    clearly and affirmatively appear on the face of the complaint and matters
    judicially noticed.” (Coalition for Clean Air v. City of Visalia (2012) 
    209 Cal.App.4th 408
    , 420 (Coalition).) “[W]hen the relevant facts are not clear
    such that the cause of action might be, but is not necessarily, time-barred,
    the demurrer will be overruled.” (Ibid.)
    “Generally, a ‘ “cause of action accrues ‘when [it] is complete with all of
    its elements’—those elements being wrongdoing, harm, and causation.”
    [Citation.] This is [called] the “last element” accrual rule: ordinarily, the
    statute of limitations runs from “the occurrence of the last element essential
    to the cause of action.” ’ ” (Willis v. City of Carlsbad (2020) 
    48 Cal.App.5th 1104
    , 1124 (Willis).)
    To determine the applicable statute of limitations, we look to the
    nature or “ ‘gravamen’ ” of the cause of action rather than the form of action
    or relief demanded. (Hensler v. City of Glendale (1994) 
    8 Cal.4th 1
    , 22–23.)
    Here, the statute of limitations for the first cause of action for false police
    report/statements—which alleges an infringement of plaintiff’s personal
    rights akin to malicious prosecution—is two years under Code of Civil
    Procedure section 335.1. (See Stravopoulos v. Superior Court (2006) 
    141 Cal.App.4th 190
    , 192.) The applicable limitations period for the third cause
    of action of defamation is one year under Code of Civil Procedure section 340,
    subdivision (c). (See Shively v. Bozanich (2003) 
    31 Cal.4th 1230
    , 1246.) As
    focus our attention solely on the allegations of the complaint to determine
    whether it is time-barred.
    6
    for the harassment claims, the trial court applied a three-year limitations
    period under Code of Civil Procedure section 338, which governs actions for
    liability created by statute, and as neither party contends otherwise, we will
    assume for the sake of argument that a three-year statute of limitations
    applies.
    Based on these limitations periods and the authorities cited above, we
    conclude the complaint is time-barred. The complaint revolves mainly
    around the events of February 18, 2016 (e.g., when defendant allegedly
    confronted and monitored plaintiff in a harassing manner, falsely accused
    him of threatening and stalking her, and filed a false police report that led to
    his arrest) and August 15, 2016 (e.g., when defendant applied for a civil
    protective order against plaintiff under false pretenses). The one-year
    statute of limitations for defamation and the three-year statute of limitations
    for harassment began to run on or around those dates, for it was at those
    times that the claims were complete with all their elements (Fox v. Ethicon
    Endo-Surgery. Inc. (2005) 
    35 Cal.4th 797
    , 806 (Fox)), and “ ‘appreciable and
    actual harm’ [was] caused by the wrongful conduct” (County of Santa Clara v.
    Atlantic Richfield Co. (2006) 
    137 Cal.App.4th 292
    , 317 (Santa Clara)). The
    two-year statute of limitations for the false police report claim began to run
    as of April 28, 2017, when the criminal case was dismissed, for at this time,
    the requisite elements, including the favorable termination element, were
    complete. (See Crowley v. Katleman (1994) 
    8 Cal.4th 666
    , 676.) Plaintiff does
    not allege or argue delayed discovery of any of the facts essential to his
    claims. (See Fox, 
    supra,
     35 Cal.4th at p. 808.) Accordingly, the untimeliness
    of his complaint, filed on October 12, 2022, clearly and affirmatively appears
    on its face. (Coalition, supra, 209 Cal.App.4th at p. 420.)
    7
    The same conclusion holds true if we account for tolling under
    emergency rule 9. (See fn. 1, ante.) As of April 6, 2020, when tolling under
    emergency rule 9 commenced, plaintiff had just over three weeks before the
    longest limitations period of any of his claims (e.g., three years) ended.
    Tolling ended on October 1, 2020, but plaintiff did not file suit until more
    than two years later.
    We acknowledge that in addition to the date-specific events described
    in the complaint, there are more generalized allegations that defendant
    “repeatedly” called the police on plaintiff “every time [he] walked past her
    house after the initial incident earlier that day” and recruited others to
    monitor plaintiff in the neighborhood. Though the complaint does not assign
    specific dates to these incidents, it otherwise describes them as taking place
    “during the course of the events described in this complaint,” which
    apparently references the same time period discussed above (e.g., February
    18, 2016, to April 28, 2017) when the specific “events described in this
    complaint” occurred. As such, the generalized nature of these allegations
    provides no basis to construe the complaint as alleging wrongful conduct
    occurring in the three-year period (or, three-and-a-half-year period, in light of
    emergency rule 9) preceding the filing of the complaint. Notably, plaintiff
    has not argued, either below or on appeal, that the complaint alleges
    defendant’s commission of any wrongful conduct during the applicable
    limitations periods. In fact, he acknowledges defendant’s “lack of a re-
    initiation of criminal charges or renewal of a civil protective order” since the
    initial incidents in 2016 and 2017, but he attributes this to his own avoidance
    of defendant’s residence “out of fear of what [she] might do.” Be that as it
    may, plaintiff still concedes he is not alleging any wrongful conduct by
    defendant during the applicable limitations periods.
    8
    Plaintiff nevertheless contends the complaint is timely under
    continuing-wrong accrual principles because he alleges an “ongoing threat of
    retaliation” by defendant due to her “history of calling the police whenever
    she saw [plaintiff] walk along the street, and her use of a civil restraining
    order procedure to bypass the order of the criminal case judge.” We are not
    persuaded.
    There are “two main branches” of the continuing-wrong accrual
    principles: the continuing violation doctrine and the theory of continuous
    accrual. (Aryeh v. Canon Business Solutions, Inc. (2013) 
    55 Cal.4th 1185
    ,
    1197 (Aryeh).) “ ‘The continuing violation doctrine aggregates a series of
    wrongs or injuries for purposes of the statute of limitations, treating the
    limitations period as accruing for all of them upon commission or sufferance
    of the last of them.’ [Citations.] Consequently, the continuing violation
    doctrine ‘allows liability for unlawful . . . conduct occurring outside the
    statute of limitations if it is sufficiently connected to unlawful conduct within
    the limitations period.’ [Citations.] For the continuing violation doctrine to
    apply, a plaintiff must show the defendant engaged in ‘a pattern of
    reasonably frequent and similar acts [that] may, in a given case, justify
    treating the acts as an indivisible course of conduct actionable in its entirety,
    notwithstanding that the conduct occurred partially outside and partially
    inside the limitations period.’ ” (Willis, supra, 48 Cal.App.5th at p. 1124.)
    Nothing in the complaint warrants application of the continuing
    violation doctrine. Plaintiff does not allege that defendant engaged in
    frequent and similar acts partially outside and partially inside the
    limitations period. (Willis, supra, 48 Cal.App.5th at p. 1124.) Rather, he
    alleges acts occurring only outside the limitations period in or around 2016
    and 2017. His alleged “concern” of an “ongoing” “threat” of retaliation during
    9
    the limitations period due to defendant’s past conduct is insufficient to invoke
    the continuing violation doctrine because it is not based on “at least one act
    [that] occurred within the filing period.” (Morgan v. Regents of the University
    of California (2000) 
    88 Cal.App.4th 52
    , 64 (Morgan).)
    Plaintiff’s reliance on the continuous accrual theory fares no better.
    This theory applies when there is “a continuing or recurring obligation” and
    supports recovery only for damages arising from breaches occurring within
    the limitations period. (Aryeh, 
    supra,
     55 Cal.4th at p. 1199.) “ ‘When an
    obligation or liability arises on a recurring basis, a cause of action accrues
    each time a wrongful act occurs, triggering a new limitations period.’
    [Citation.] Because each new breach of such an obligation provides all the
    elements of a claim—wrongdoing, harm, and causation [citation]—each may
    be treated as an independently actionable wrong with its own time limit for
    recovery.” (Ibid. [unfair competition claim not categorically time-barred
    where defendant’s monthly bills contained unfair or fraudulent charges, some
    of which allegedly fell within the limitations period]; see Howard Jarvis
    Taxpayers Assn. v. City of La Habra (2001) 
    25 Cal.4th 809
    , 820 [taxpayers
    challenging validity of utility tax ordinance properly invoked continuing
    accrual theory by alleging new injuries whenever city collected taxes without
    valid legal authority].) Here, however, the complaint fails to allege any
    independently actionable breaches by defendant of a “continuing or recurring
    obligation” within the limitations period. (Aryeh, at p. 1199.) As discussed,
    the complaint alleges acts occurring only outside the limitations period.
    As a public policy matter, statutes of limitations serve “to give
    defendants reasonable repose, thereby protecting parties from ‘defending
    stale claims, where factual obscurity through the loss of time, memory or
    supporting documentation may present unfair handicaps.’ [Citations.] A
    10
    statute of limitations also stimulates plaintiffs to pursue their claims
    diligently.” (Fox, supra, 35 Cal.4th at p. 806.) Plaintiff does not allege or
    argue delayed discovery of the facts essential to his claims (id. at p. 808), and
    there appears no dispute he knew about the alleged wrongful conduct and
    resulting harm either as they occurred or shortly thereafter. On this record,
    defendant is entitled to reasonable repose from plaintiff’s now stale claims
    arising out of incidents that occurred in 2016 and 2017.
    Based on the foregoing, we conclude the trial court correctly sustained
    the demurrer to plaintiff’s complaint on the ground that it is barred by the
    applicable statutes of limitations.
    When a demurrer 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.” (Blank v. Kirwan (1985) 
    39 Cal.3d 311
    , 318 (Blank).) On the
    record before us, we see no abuse of discretion.
    Plaintiff maintains he should have been granted leave to amend
    because the record shows he was subject to the civil restraining order
    wrongfully obtained by defendant up until September 12, 2019, and “[i]f this
    date is used as the trigger for the running of the statute of limitations, and
    given that Emergency Rule 9 tolled statutes of limitations from April 6, 2020
    to October 1, 2020 [citation], [plaintiff’s] claim for harassment would be
    timely.” We cannot agree. As previously noted, a cause of action accrues
    when it is complete with all of its elements (Fox, supra, 35 Cal.4th at p. 806),
    or when “ ‘appreciable and actual harm’ is caused by the wrongful conduct”
    (Santa Clara, supra, 137 Cal.App.4th at p. 317). Here, to the extent the
    11
    harassment claims are based on defendant’s false statements in support of
    the civil harassment restraining order, the claims accrued on or around the
    time the restraining order was issued in 2016, for it was then that plaintiff
    suffered appreciable and actual harm caused by the alleged wrongful
    conduct. Plaintiff cites no authority suggesting the statute of limitations on a
    claim related to a wrongfully-obtained civil harassment restraining order is
    tolled throughout the entire duration of the restraining order.
    Plaintiff next contends leave to amend was wrongfully denied because
    defendant continued to make “false representations” about him during the
    trial court proceedings. His sole example is a statement by defendant’s
    attorney that referenced an exhibit filed in support of the demurrer that was
    offered to show plaintiff posted a handwritten sign containing threats around
    defendant’s house. Plaintiff claims the statement accompanying the exhibit
    was defamatory because defendant “neglected to mention” that the criminal
    case was dismissed without any “legal determination” that plaintiff made
    criminal threats. Again, we are unpersuaded.
    Even assuming the attorney’s statement could be attributed to
    defendant for purposes of defamation law, the alleged defamatory statement
    merely states in full that defendant requests judicial notice of: “6. Sign with
    Criminal Threats which Plaintiff posted on trees and neighbors’ doors
    surrounding [defendant’s] home for which Plaintiff was arrested on February,
    18, 2016, a copy of which is attached as Exhibit D.” This statement does not
    have the defamatory meaning that plaintiff suggests. “ ‘[A] defamatory
    meaning must be found, if at all, in a reading of the publication as a whole.’ ”
    (Balzaga v. Fox News Network, LLC (2009) 
    173 Cal.App.4th 1325
    , 1337–
    1338.) “ ‘[I]t is not the literal truth or falsity of each word or detail used in a
    statement which determines whether or not it is defamatory; rather, the
    12
    determinative question is whether the “gist or sting” of the statement is true
    or false, benign or defamatory, in substance.’ ” (Issa v. Applegate (2019) 
    31 Cal.App.5th 689
    , 702.) Here, the gist of the challenged statement, viewed as
    a whole, is that the attached exhibit was a document that plaintiff posted on
    or around defendant’s home, and that it was the basis “for which Plaintiff
    was arrested” on February 18, 2016. The statement contains no suggestion
    that a legal determination of plaintiff’s guilt for the crime of criminal threats
    had been made; nor does plaintiff dispute that he posted the sign or that it
    led to his arrest.
    Finally, even assuming (generously) that the statement is both
    defamatory and attributable to defendant, we see no reasonable possibility
    that amending the complaint to allege this single statement would cure the
    statute of limitations defect. The continuing violation doctrine applies only
    where the conduct inside and outside the limitations period constitutes
    “frequent and similar acts” that justify treating them as “an indivisible
    course of conduct actionable in its entirety.” (Aryeh, supra, 55 Cal.5th at
    p. 1198.) As such, the act occurring within the filing period cannot be an
    “ ‘isolated, intermittent act[]’ ” but must be part of “ ‘a persistent, on-going
    pattern.’ ” (Morgan, supra, 88 Cal.App.4th at p. 64.) Here, plaintiff fails to
    persuade us that the single statement in question, made in a December 2022
    request for judicial notice, is appropriately treated as part of an indivisible,
    persistent, and ongoing course of frequent and similar conduct that defendant
    has maintained since 2016 and 2017, particularly as plaintiff concedes
    defendant committed no wrongful conduct during the applicable limitations
    periods preceding the filing of the complaint. Nor does plaintiff provide any
    argument or authority that the statement in question constitutes an
    independently actionable breach of a continuing or recurring obligation of
    13
    defendant for purposes of the continuous accrual theory. (Aryeh, supra, 55
    Cal.4th at p. 1199.)4
    In sum, plaintiff fails to carry his burden of proving a reasonable
    possibility of curing the statute of limitations defect appearing clearly and
    affirmatively on the face of his complaint. Accordingly, leave to amend was
    properly denied. (Blank, supra, 39 Cal.3d at p. 318.)
    DISPOSITION
    The judgment is affirmed. In the interests of justice, each party shall
    bear its own costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(5).)
    _________________________
    Fujisaki, Acting P.J.
    WE CONCUR:
    _________________________
    Petrou, J.
    _________________________
    Rodríguez, J.
    Anderson v. Love (A167537)
    4      Though not briefed by the parties, the statement in the request for
    judicial notice appears protected and nonactionable pursuant to the litigation
    privilege (Civ. Code, § 47, subd. (b)), which is absolute and applies to any
    communication that is made in a judicial proceeding to achieve the objects of
    the litigation and that has some connection or logical relation to the action.
    (Silberg v. Anderson (1990) 
    50 Cal.3d 205
    , 212.)
    14
    

Document Info

Docket Number: A167537

Filed Date: 10/30/2023

Precedential Status: Non-Precedential

Modified Date: 10/30/2023