Filed 9/20/19 Martin v. State Bar of California CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

CRAIG K. MARTIN,

Plaintiff and Appellant,

v.

STATE BAR OF CALIFORNIA, et al.

Defendants and Respondents.

A149489

(San Francisco County

Super. Ct. No. CGC-15-546525)

Plaintiff Craig Martin filed a first amended complaint against the State Bar of California and several of its employees—Lucy Armendariz, Mark Torres-Gil, Sherry McLetchie, Robert Henderson, Donald Steedman, and Susan Chan—asserting claims for negligent hiring, training, retention; and control and intentional infliction of emotional distress (IIED). Specifically, plaintiff alleges that Torres-Gil left plaintiff two voicemail messages containing racial epithets in retaliation for plaintiff’s filing of an administrative complaint against Armendariz. The trial court sustained the State Bar’s demurrer to the first amended complaint without leave to amend because plaintiff failed to allege timely compliance with the claim presentation requirements under the Government Tort Claim Act (Act). (Gov. Code, § 900 et seq.) The court also awarded summary judgment to the individual defendants, finding no triable issues as to whether the voicemails were attributable to them. Plaintiff appeals both aspects of the judgment. We affirm.

BACKGROUND

Plaintiff is a disbarred attorney who previously filed two lawsuits against defendants alleging, among other things, errors in his disciplinary proceeding. Defendant Lucy Armendariz is a judge in the Hearing Department of the State Bar Court who presided over plaintiff’s final disciplinary proceeding and recommended his disbarment to the California Supreme Court. Defendants Sherrie McLetchie, Robert Henderson, Susan Chan, and Donald Steedman are or were State Bar attorneys who prosecuted plaintiff’s disciplinary action. Defendant Mark Torres-Gil is a State Bar attorney who served as counsel of record in plaintiff’s first lawsuit against defendants.

In the second lawsuit, plaintiff filed a verified complaint on May 8, 2014, alleging that he received two anonymous voicemail messages on June 27, 2012 and July 6, 2012, calling him highly offensive, racist slurs; he further alleged Torres-Gil was the caller. After plaintiff’s first two lawsuits were dismissed, plaintiff filed this case against the State Bar and the individual defendants. The operative first amended complaint asserts a cause of action for negligent hiring, training, retention, and/or control against the State Bar and two causes of action for IIED against all defendants based on the two voicemail messages. Plaintiff alleges that Torres-Gil conspired with the other defendants and left plaintiff the voicemail messages in retaliation for plaintiff’s filing of an administrative complaint against Judge Armendariz with the California Commission on Judicial Performance.

On April 13, 2016, plaintiff submitted to the State Bar an application to file a late government tort claim. The State Bar denied the claim as untimely.

The State Bar demurred to the first amended complaint, contending that plaintiff failed to plead compliance with the Act’s claim presentation requirements. The State Bar argued plaintiff’s claim accrued in the summer of 2012 when he received the voicemails, or, alternatively, in May 2014, when plaintiff first alleged in a prior lawsuit that Torres-Gil was responsible for the voicemails. Because plaintiff presented his claim in April 2016, the State Bar contended plaintiff’s claim was untimely under the Act, which requires that negligence and intentional tort claims be presented within six months of accrual.

The State Bar also argued plaintiff was not entitled to present a late claim because he did not present his application to file a late claim within one year after the latest possible accrual date of May 2014, and did not establish that his failure to comply was due to excusable neglect. (§§ 911.4, subds. (a), (b), 911.6, subd. (b)(1).)

In opposing the demurrer, plaintiff argued his cause of action accrued in November 2015, when ILD Corporation (ILD), filed a case management statement in a prior lawsuit noting that it operated a communications system used by the State Bar. Plaintiff claims that because he first learned that the State Bar was affiliated with the two voicemails in November 2015, his April 2016 claim was timely.

The trial court sustained the demurrer without leave to amend and entered judgment in favor of the State Bar.

The individual defendants filed a motion for summary judgment, or alternatively, summary adjudication as to plaintiff’s IIED claims. The individual defendants argued they were entitled to judgment as a matter of law because there was no evidence showing they created or knew about the alleged voicemails.

Plaintiff opposed the summary judgment motion. In his declaration, plaintiff stated that he traced the voicemails to ILD and that he believed Torres-Gil used ILD’s communications system to place the two voicemails in 2012.

The individual defendants filed a reply brief and evidentiary objections to plaintiff’s declaration. Plaintiff did not respond to the objections.

The trial court granted the motion for summary judgment, finding that plaintiff did not present admissible evidence raising a triable issue as whether Torres-Gil left the offensive voicemails. The court also sustained the individual defendants’ objections to portions of plaintiff’s declaration purporting to attribute the calls to Torres-Gil. The court entered judgment in favor of the individual defendants.

This appeal followed.

DISCUSSION

I. The State Bar’s Demurrer to the First Amended Complaint
II.
We “first review the complaint de novo to determine whether or not the plaintiff’s complaint alleges facts sufficient to state a cause of action under any legal theory, or in other words, to determine whether or not the trial court erroneously sustained the demurrer as a matter of law.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We also consider matters which may be judicially noticed. (Ibid.) Second, we determine whether the trial court abused its discretion by sustaining the demurrer without leave to amend. (Cantu, at p. 879.) An abuse of discretion is established when “there is a reasonable possibility the plaintiff could cure the defect with an amendment.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Appellant bears the burden of demonstrating that the trial court erred. (Cantu, at p. 879.)

Plaintiff argues the trial court erred in sustaining the State Bar’s demurrer to the first amended complaint without leave to amend because he alleged compliance with the Act’s claim presentation requirements. We disagree.

Under the Act, a claim relating to a cause of action for personal injury against a local public entity must be presented within “six months after the accrual of the cause of action.” (§ 911.2, subd. (a).) Failure to present a timely claim bars suit against the entity. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734; §§ 905, 911.2, 945.4.) The date of accrual of the cause of action for claim presentation purposes is the same as the date of accrual that applies for statute of limitations purposes in the absence of a claim presentation requirement. (§ 901.)

Plaintiff’s causes of action against the State Bar accrued on the date of injury unless application of the discovery rule delays the time of accrual. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) Under the discovery rule, the limitations period begins to run “once the plaintiff ‘ “ ‘has notice or information of circumstances to put a reasonable person on inquiry.’ ” ’ ” (Id. at pp. 1110–1111, italics omitted.)

According to plaintiff, his causes of action accrued in November 2015, when ILD filed a case management statement in the prior lawsuit indicating that it was the State Bar’s communications provider. On that basis, plaintiff claims he learned that the State Bar was affiliated with ILD and traced the voicemails to the State Bar in November 2015. Plaintiff, however, fails to provide citations to the record to support these contentions and has therefore forfeited these contentions on appeal. (See Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384.)

Moreover, plaintiff’s assertions lack any merit. ILD filed and served plaintiff with the case management statement in November 2014, not in 2015 as plaintiff here contends. Under his own reasoning, plaintiff was required to present his claim no later than May 2015, which he did not do. (§ 911.2.) Plaintiff therefore errs in relying on ILD’s case management statement to excuse his late filing. And plaintiff’s insistence on a November 2015 accrual date contradicts his May 2014 verified complaint in which he alleged that Torres-Gil was responsible for the voicemails. (See Nungaray v. Pleasant Valley Lima Bean Growers & Warehouse Ass’n (1956) 142 Cal.App.2d 653, 667 [“a pleading containing an admission is admissible against the pleader in a proceeding subsequent to the one in which the pleading is filed”].) We conclude the trial court correctly found that plaintiff was on notice in May 2014 that Torres-Gil left the voicemails, that plaintiff’s claims accrued on that date, and consequently that his claim against the State Bar was untimely.

We also find that plaintiff was not entitled to present a late claim. (§§ 911.4, 911.6.) A claimant must present to the public entity an application for leave to file a late claim within a reasonable time, not to exceed one year after the accrual date, and the claimant must demonstrate that the failure to file a timely claim was due to mistake, inadvertence, surprise, or excusable neglect. (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293; §§ 911.4, 911.6.) “ ‘Excusable neglect’ is defined as ‘neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.’ ” (Department of Water & Power, at p. 1293) “There must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1783.)

Plaintiff asserts he was diligent in attempting to identify the caller by serving ILD with a subpoena for business records. But plaintiff does not state when he served the subpoena. Without providing meaningful legal analysis or citations to the record concerning the purported subpoena, this argument is forfeited on appeal. (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 816.)

Plaintiff also contends he could not have discovered that Torres-Gil created the voicemails until ILD filed its case management statement. Even accepting plaintiff’s contention as true, regardless of whether ILD filed its case management statement in November 2014 (or in November 2015 as plaintiff mistakenly asserts), plaintiff took no action until that time. Thus, plaintiff cannot demonstrate he exercised reasonable diligence in investigating or pursuing his claims after receiving the voicemails in 2012.

We conclude the trial court correctly sustained the State Bar’s demurrer without leave to amend.

III. The Individual Defendants’ Motion for Summary Judgment or, Alternatively, Summary Adjudication
IV.

A motion for summary judgment should be granted if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002–1003.) The moving party bears the burden of persuasion and must show that one or more elements of the causes of action cannot be established, or that there is a complete defense to each cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) An order granting summary judgment is reviewed de novo. (Guz v. Bechtel National, Inc. (2000)

24 Cal.4th 317, 334.) The appellate court is not bound by the issues decided by the trial court but will affirm the judgment if it is correct on any ground asserted by the movant. (Schmidt v. Bank of America (2014) 223 Cal.App.4th 1489, 1498.)

An IIED claim requires proof of the following: “(1) [e]xtreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028, italics added.)

The trial court correctly determined that the individual defendants satisfied their initial burden on summary judgment. Specifically, the declarations of the individual defendants stating that they neither created nor knew about the voicemails negated the first element of the IIED cause of action, which requires that the conduct be committed by the defendant. Thus, the burden shifted to plaintiff to demonstrate a triable issue as to whether Torres-Gil or any of the defendants left the voicemails.

While plaintiff purports to argue that “[t]he court erred in granting summary judgment because triable issues of fact existed,” this argument section contains a rambling and disjointed series of accusations largely concerning issues not pertinent on appeal and nearly devoid of citations to the record. Indeed, plaintiff mentions Torres-Gil’s alleged voicemails in passing. None of these arguments can be considered “meaningful legal analysis supported by citations to authority and citations to facts in the record to support the claim of error.” (Singh v. Lipworth, supra, 227 Cal.App.4th at p. 816.) Accordingly, we treat these points as forfeited. (Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814.)

Even if these issues were properly before us, the court correctly determined that plaintiff did not present admissible evidence creating a dispute of material fact as to whether Torres-Gil left the voicemails. In his declaration, plaintiff averred that he was able to trace the voice messages to ILD; that ILD’s case management statement confirmed that ILD provided the State Bar with a communications system; and that it was plaintiff’s “belief” that Torres-Gil used ILD’s communications system to place the voicemails. The trial court sustained the individual defendants’ objections to these statements based on lack of foundation and hearsay. Even in the absence of objections, plaintiff’s declaration asserting his “belief” as to who left the voicemails does not constitute competent evidence controverting the facts set forth in defendants’ summary judgment motion. (People v. Anderson (2001) 25 Cal.4th 543, 573 [testimony is inadmissible if witness lacks personal knowledge of the matter].) Accordingly, the court correctly concluded Plaintiff did not present any admissible evidence raising a dispute as to whether Torres-Gil made the offensive calls.

Although our Supreme Court has not resolved the standard of review for summary judgment evidentiary rulings (see Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535), “[a]ccording to the weight of authority, appellate courts ‘review the trial court’s evidentiary rulings on summary judgment for abuse of discretion.’ ” (In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 141.) We need not resolve the issue as to the applicable standard of review, as we find that, under either a de novo or abuse of discretion standard, the court correctly sustained the individual defendants’ objections to portions of plaintiff’s declaration.

The trial court properly ruled that the statements in plaintiff’s declaration lacked foundation. “[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.” (Evid. Code, § 702, subd. (a).) “ ‘Personal knowledge’ means a present recollection of an impression derived from the exercise of the witness’ own senses.” (People v. Lewis (2001) 26 Cal.4th 334, 355.) Plaintiff did not state or demonstrate in his declaration that he had personal knowledge of the facts to which he referred, including the claim that Torres-Gil used ILD’s system to leave the offending voicemails. Plaintiff’s declaration was also replete with hearsay, such as ILD’s case management statement, for which Plaintiff identified no exception. (Evid. Code, § 1200.) The trial court correctly sustained the individual defendants’ objections on these grounds.

Moreover, the statements in plaintiff’s declaration were entirely speculative. Plaintiff did not set forth any preliminary facts to establish how he arrived at the conclusion that Torres-Gil left the voicemails. An opposing party cannot controvert the moving party’s declaration by evidence “based on speculation, imagination, guess work, or mere possibilities.” (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481.) “Such speculation is impermissible . . . and is grounds for granting summary judgment.” (Ibid.) Accordingly, the trial court correctly ruled that plaintiff’s statements purporting to attribute the voicemails to Torres-Gil were inadmissible.

In sum, the trial court properly granted summary judgment in light of plaintiff’s failure to present admissible evidence raising a triable issue of fact as to whether the individual defendants committed the alleged conduct. (See Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 217.)

DISPOSITION

The judgment is affirmed.

 

_________________________

BROWN, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

TUCHER, J.

Martin v. Torres-Gil (A149489)