2011-00114662-CU-CR

Stephen Lohbeck vs. Sacramento County Sheriffs Department

Nature of Proceeding: Motion to Dismiss

Filed By: Cress, Peter A.

Defendant County of Sacramento’s (erroneously named herein as the Sacramento
County Sheriff’s Department) Motion to Dismiss, or in the Alternative Demurrer to the
Self-represented Plaintiff‘s Complaint is GRANTED.

Motion to Dismiss

Moving party County’s motion to dismiss the complaint, pursuant to Code of Civil
Procedure, sec. 583.410, et seq., is unopposed and is GRANTED.
Code Civ. Proc. § 583.410(a) provides that “The court may in its discretion dismiss an
action for delay in prosecution pursuant to this article on its own motion or on motion of
the defendant if to do so appears to the court appropriate under the circumstances of
the case.”

Code Civ. Proc. § 583.420(a) (1), provides: “The court may not dismiss an action
pursuant to this article for delay in prosecution except after one of the following
conditions has occurred: (1) Service is not made within two years after the action is
commenced against the defendant.”

The County has complied with C.R.C., Rule 3.1342, which requires service and filing
of the notice of motion at least 45 days before the date set for hearing. Opposition was
due 15 days after service, but no opposition has been filed. Further, Cal Rules of
Court, Rule 3.1342 provides that in ruling on this motion, “the court must consider all
matters relevant to a proper determination of the motion, including: (1) The court’s file
in the case and the declarations and supporting data submitted by the parties and,
where applicable, the availability of the moving party and other essential parties for
service of process; (2) The diligence in seeking to effect service of process; (3) The
extent to which the parties engaged in any settlement negotiations or discussions; (4)
The diligence of the parties in pursuing discovery or other pretrial proceedings,
including any extraordinary relief sought by either party; (5) The nature and complexity
of the case; (6) The law applicable to the case, including the pendency of other
litigation under a common set of facts or determinative of the legal or factual issues in
the case; (7) The nature of any extensions of time or other delay attributable to either
party; (8) The condition of the court’s calendar and the availability of an earlier trial
date if the matter was ready for trial; (9) Whether the interests of justice are best
served by dismissal or trial of the case; and (10) Any other fact or circumstance
relevant to a fair determination of the issue.” In ruling on this motion, the Court has
considered and applied these factors to its analysis. In deciding whether discretionary
dismissal is appropriate, the Court must also be guided by the policies set forth in CCP
section 583.130, which provides, in pertinent part, that “a plaintiff shall proceed with
reasonable diligence in the prosecution of an action.” Moreover, dismissal-for-delay
statutes serve a dual purpose: One is effectually the same as that of statutes of
limitations–they are both statutes of repose, seeking to discourage stale claims ‘to
promote justice by preventing surprises through the revival of claims that have been
allowed to slumber until evidence has been lost, memories have faded, and witnesses
have disappeared. Secondly, the dismissal section is designed to compel reasonable
diligence in the prosecution of actions, thereby expediting the administration of justice.
Balanced against these considerations is, of course, the strong public policy which
seeks to dispose of litigation on the merits rather than on procedural grounds.
Although that policy is generally viewed as more compelling than the one seeking to
promote prompt prosecution, it will not prevail unless the plaintiffs meets their burden
of establishing excusable delay. Roman v. Usary Tire & Service Center (1994) 29 Cal.
App. 4th 1422, 1430.

In this action, the self-represented Plaintiff filed the complaint on Nov. 22, 2011.
Although plaintiff has served the Sheriff and the District Attorney, neither of whom are
named defendants, the County declares, and the Court records reflect, that the County
of Sacramento has not yet been served with process by the self-represented plaintiff.

Instead, self-represented plaintiff appears to have filed two subsequent actions, case
nos. 2012-118365 Lohbeck v. County of Sacramento (“Lohbeck 2”) on March 23,
2013, and case no. 2012-134620, Lohbeck v. Sacramento Sheriff’s Department
(“Lohbeck 3”) on October 29, 2012. All three actions allege the same underlying facts,
for false arrest.

In Lohbeck 2, the County’s demurrer to the plaintiff’s complaint was sustained without
leave to amend, as the plaintiff had not complied with the claims statute and the claim
was time barred. Judgment was entered on October 4, 2012. Appeals from the
Judgment have been dismissed by the Third District Court of Appeal.

In Lohbeck 3, plaintiff was declared to be a vexatious litigant and ordered to furnish
security of $15,000 by October 15, 2013. On April 10, 2014, this Court granted
Defendant County of Sacramento’s (erroneously sued as Sacramento Sheriff’s
Department) unopposed Motion to Dismiss Entire Action under C.C.P., sec. 391.4 for
Failure to Post Security.

In the exercise of its discretion, the Court finds that it appears to be appropriate under
the circumstances of the case to dismiss this action for delay in prosecution on the
motion of the defendant.

Demurrer

In the alternative, the demurrer of the defendant County to the plaintiff’s complaint is
unopposed and is SUSTAINED, without leave to amend.

This action is barred by res judicata, as the Judgment in Lohbeck 2, bars further
litigation of the same cause of action.

Additionally, the complaint reflects that plaintiff never filed the required tort claim under
Govt. Code, sec. 911.2. Plaintiff’s failure to comply with the claims statute because he
was “depressed” does not excuse him. As more than one year has passed since the
accrual of the cause of action, the court is without jurisdiction to grant relief under
Government Code section 946.6. Munoz v. State of California (1995) 33 Cal. App. 4th
1767.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.