Filed 2/5/20 LaForte v. City of San Diego Police Dept. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PETER PATRICK LAFORTE,

Plaintiff and Appellant,

v.

CITY OF SAN DIEGO POLICE DEPARTMENT,

Defendant and Respondent.

D075039

(Super. Ct. No. 37-2016-00031830- CU-PA-CTL )

APPEAL from a judgment of the Superior Court of San Diego County, Richard E.L. Strauss, Judge. Affirmed.

Peter Patrick LaForte, in pro. per., for Plaintiff and Appellant.

Mara W. Elliott, City Attorney, George Schaefer, Assistant City Attorney, Michael J. McGowan and Tyler L. Krentz, Deputy City Attorneys, for Defendant and Respondent.

Peter Patrick LaForte also known as Michael Rose (LaForte) appeals a judgment following a successful motion for judgment on the pleadings filed by the City of San Diego Police Department (SDPD). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

LaForte sued SDPD in San Diego Superior Court. There does not appear to be a complaint in the record that contains any factual allegations against SDPD. Instead, LaForte filed a civil case cover sheet (CM-010) in which he checked a box to indicate “the case type that best describes this case[.]” He checked the box “Auto (22)” under the “Auto Tort” column.

In his opening brief, LaForte represents that he was sitting in the back of a police car when that police car struck a bus. However, LaForte’s brief does not include any citations to the record where he alleged the underlying facts to support his claim.

SDPD answered the complaint. The parties then attended a case management conference wherein the court deemed the case at issue. Further, by stipulation of the parties, LaForte and SDPD agreed no new parties could be added without leave of court.

SDPD subsequently filed a motion for judgment on the pleadings, arguing that it was a municipal department of the City of San Diego and was not an entity capable of being sued. It also contended that the complaint was uncertain.

LaForte does not cite to the record where he filed an opposition on the merits to the SDPD’s motion. In our review of the record, it appears that LaForte filed what can be construed as an opposition to the motion for judgment on the pleadings, arguing that he amended his complaint to name three individuals as additional defendants. Nevertheless, LaForte did not address the merits of SDPD’s motion.

In its reply, SDPD casted doubt on whether any amended complaint was actually filed, and further noted that it did not appear LaForte obtained leave of court to file an amended complaint.

After considering the various filings and entertaining oral argument, the court granted SDPD’s motion for judgment on the pleadings, noting SDPD was “not a proper party to the action.” The court then entered judgment in favor of SDPD.

LaForte timely appealed.

DISCUSSION

Initially, we observe that LaForte, as an in propria persona litigant, is “entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules. [Citations.]” (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

On appeal, the judgment of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) All intendments and presumptions are made to support the judgment on matters as to which the record is silent. (Ibid.)

An appellant has the burden to provide an adequate record and affirmatively show reversible error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (Ballard).) Further, it is the appellant’s duty to support arguments in his or her briefs by references to the record on appeal, including citations to specific pages in the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) “Appellate briefs must provide argument and legal authority for the positions taken. ‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]’ ” (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 (Nelson).) “We are not bound to develop appellants’ argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone & Fyke).)

Judgment on the pleadings is similar to a demurrer and is properly granted when the “complaint does not state facts sufficient to constitute a cause of action against [the] defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii); Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) We independently review the superior court’s ruling on a motion for judgment on the pleadings to determine whether the complaint states a cause of action. In so doing, we accept as true the plaintiff’s factual allegations and construe them liberally. (Rolfe v. California Transportation Com. (2002) 104 Cal.App.4th 239, 242-243.) If a judgment on the pleadings is correct upon any theory of law applicable to the case, we will affirm it regardless of the considerations used by the superior court to reach its conclusion. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)

Below, in granting the motion for judgment on the pleadings, the court ruled that SDPD was not a proper party to this action. LaForte does not explain why the court’s conclusion is incorrect. He merely claims he amended his complaint to name three individuals as defendants. However, he does not explain with any cogent legal argument why the addition of these individual defendants would defeat SDPD’s motion.

As the City Attorney points out, SDPD is a municipal department of the City of San Diego “charged with the preservation of the peace and order of the City, the protection of all persons and property, and the enforcement of all penal ordinances and laws.” (San Diego Mun. Code, § 22.0601, see San Diego City Charter, art. V, § 57.) As a municipal department, SDPD is not an entity capable of being sued. LaForte does not dispute this general principle, but rather, argues that the addition of individual defendants somehow allows him to maintain his suit against SDPD. Without any authority to support his contention, we treat this argument as waived. (See Nelson, supra, 172 Cal.App.4th at p. 862; Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)

Additionally, LaForte’s claim suffers from another flaw. It is uncertain. There is no indication in the record what facts support LaForte’s claim that some type of vehicular accident occurred and that SDPD could be held liable for it. Presumedly, LaForte is attempting to allege a general tort claim (perhaps negligence) against SDPD. Even if SDPD was a proper defendant, LaForte would have to allege a viable cause of action against a governmental entity. “There is no common law governmental tort liability in California; and except as otherwise provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person.” (Cowing v. City of Torrance (1976) 60 Cal.App.3d 757, 761.) Moreover, the Government Claims Act provides the exclusive basis of government tort liability, except as otherwise provided by statute. (See Gov. Code, § 815.)

Under the Government Claims Act (§ 810 et seq.), a person may not sue a public entity for personal injury unless he or she presents a timely written claim for damages to the public entity. (§§ 911.2, subd. (a), 945.4.) Section 905 requires that “all claims for money or damages against local public entities” must be “presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) . . . .” Such claims must be presented to the public entity “not later than six months after the accrual of the cause of action.” (§ 911.2, subd. (a).) The failure to do so bars the plaintiff from bringing suit against that entity. (§ 945.4.)

Where a complaint fails to allege compliance with the requirements of the Government Claims Act, that complaint is subject to dismissal. (See California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1237.) Here, there is no indication in the record that LaForte complied with the Government Claims Act. Nor does he claim that he can. Additionally, LaForte does not contend that he could allege further facts to state a valid cause of action against SDPD. These shortcomings are fatal to LaForte’s appeal. (See Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)

In summary, LaForte has failed to carry his burden to affirmatively show reversible error. (Ballard, supra, 41 Cal.3d 564 at p. 574.)

DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

GUERRERO, J.