Case Number: BC526857 Hearing Date: May 27, 2014 Dept: 73

Dept. 73
Rafael Ongkeko, Judge presiding

KING vs. COUNTY, etc., et al. (BC526857)

Counsel for defendants/moving party: Thomas Hurrell; Roderick Sasis (Hurrell, etc.)
Counsel for plaintiff/opposing party: None (self-represented)

DISCLOSURE:
Judge Ongkeko makes the following disclosure. Between 1979 and 2002, Judge Ongkeko represented the County of Los Angeles and its employees in both public practice (Office of the County Counsel) and private practice (Ongkeko, Doyle & Nicholas; Collins, Collins, Muir & Traver) until his appointment to the bench in 2002.

Defendants’ demurrer (filed 12/13/13) is SUSTAINED with 20 days’ leave to amend; defendant’s motion to strike (filed 12/13/13) is denied without prejudice as moot in light of the ruling on the demurrer.

The Judicial Council form complaint identifies one cause of action (false imprisonment). In the attachment labeled as Exhibit 1 to the complaint, plaintiff claims “False Imprisonment, Mental Anguish, and Emotional Distress” (¶18) and a section 1983 federal civil rights claim (¶28). The complaint otherwise does not comply with Calif. Rule of Court 2.112.

The complaint alleges that plaintiff accepted a plea deal in an underlying criminal matter from several years ago. Plaintiff alleges he was arrested in 2006 and charged with a non-violent drug offense. After his arrest, he was offered a plea deal whereby he would enter a guilty plea and be sentenced to two years in prison with immediate parole. On July 24, 2007, Plaintiff entered a plea of no contest and was sentenced to two years. Plaintiff alleges he was never informed of a statutorily mandated probation and drug treatment option for non-violent drug offenders and did not refuse that option. Plaintiff was released on October 9, 2007 and placed on parole. He alleges his four-year parole period involved numerous parole revocations based on parole offenses.

On December 13, 2013, Defendants filed a demurrer and motion to strike. An opposition was filed on December 26, 2013 and a reply on February 4, 2013. All dates were vacated when the case was transferred from personal injury court to an independent calendaring court (Dept. 43, then Dept. 73).

Summary of Issues
The demurrer challenges the complaint on three grounds – (1) Plaintiff’s claims against the County of Los Angeles (“COLA”) and the Los Angeles County District Attorney’s Office (“LADA”) are untimely; (2) COLA and LADA are immune from Plaintiff’s state law claims; and (3) to the extent plaintiff is attempting to allege a constitutional claim under 42 U.S.C. §1983, he has failed to allege facts sufficient to establish liability.

Discussion

Statute of Limitations
Government Code section 911.2 requires personal injury claims against a public entity be filed not later than six months after the accrual of the cause of action. Alternatively, a late claim may be presented within a reasonable time after accrual, not to exceed one year. Govt. Code § 911.4. If the application is denied, a plaintiff may petition the court for an order relieving him from the claims presentation requirement. Govt. Code, § 946.6. Timely claim presentation is a condition precedent to filing a lawsuit and complaints that do not allege timely claim presentation or cognizable excuses, are subject to a general demurrer. Shirk v. Vista Unified School Dist. (2007) 42 Cal. 4th 201, 209. For purposes of calculating time limits for a government claim, the date of action accrual is the same date of accrual pursuant to the applicable statute of limitations. Loehr v. Ventura County Cmty. College Dist. (1983) 147 Cal. App. 3d 1071, 1078.

The complaint alleges the prosecutor, Robert Rabbani, approached plaintiff regarding a plea proposal on July 24, 2007. (Complaint Exh. 1 ¶¶2-3) It is further alleged during the plea negotiations, Rabanni failed to mention plaintiff’s eligibility for probation under Penal Code §1210.1, which provides that “any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.” Plaintiff alleges he did not learn of this section until May 16, 2013. (Complaint Exh. 1 ¶20.) Based on this discovery, Plaintiff filed a tort claim with COLA on May 17, 2013. (Complaint Exh. 1 ¶21.)

Defendants argue that despite these allegations the delayed discovery rule does not apply to Plaintiff’s complaint. “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.” Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 807; accord Bernson v. Browning-Ferris Indus. (1994) 7 Cal. 4th 926, 931 (“[T]he accrual date may be ‘delayed until the plaintiff is aware of her injury and its negligent cause.’”. A person personally and actually aware of facts that would make reasonably prudent people suspicious has a duty to investigate and is charged with knowledge of matters that would have been revealed, but not a person having only constructive knowledge in light of available information that should have been known. Unruh-Haxton v. Regents of Univ. of Cal. (2008) 162 Cal.App.4th 343, 359-64.

Here, Defendants take the position that because plaintiff has alleged he was not aware of the applicable law until 2013, his allegations are insufficient to trigger the delayed discovery rule. Defendants argue the complaint reveals plaintiff was aware of the relevant facts but has failed to allege the circumstances surrounding discovery.

Plaintiff argues defendants improperly rely on Graham v. Hansen (1982) 128 Cal.App.3d 965 to support this argument. While Graham involved reconsideration of a motion for summary judgment, the case raises the issue that when assessing the application of delayed discovery, the test is whether a plaintiff has information of circumstances sufficient to put a reasonable person on inquiry or has the opportunity to obtain that information from sources open to his investigation. (Id. at 972.)

Here, plaintiff has not alleged why it took him nearly six years to discover that he was allegedly eligible for probation and a drug treatment program. He has failed to allege how he eventually discovered this and why he could not have discovered it sooner. Thus, as presently alleged, it appears his claim is time-barred for failure to timely present his claim.

Twenty days’ leave to amend is granted to permit plaintiff to allege facts supporting delayed discovery.

Immunity
Alternatively, assuming Plaintiff’s claims are not time barred, defendants argue that plaintiff’s claims are barred due to the government immunity statutes. Here, Plaintiff’s complaint is premised on deputy D.A.Rabanni’s alleged misrepresentation/omission during plea negotiations. Defendants raise four arguments – (1) Defendants are immune for injuries caused by Rabbani’s alleged misrepresentations; and (2)-(4) that because Rabanni is immune under Civil Code §47(b)(2), Gov. Code § 820.2, and Gov. Code §821.6, COLA and LADA are immune under Gov. Code §815.2(b)

Regarding the first argument, public agencies are immune from liability for misrepresentations made by employees. “Although there is an exception to the immunity provided for public employees for misrepresentation–i.e., actual fraud, corruption or actual malice–there is no such exception stated in the immunity provided to public entities…. That is, while a public employee’s immunity is qualified, the immunity of a public entity for misrepresentation by its employee … is absolute.” Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal. App. 4th 30, 42-43. However, the demurrer overlooks the limitations of section 818.8, which only applies to situations where intentional or negligent misrepresentations cause interference with a financial or commercial interest. Bastian v. County of San Luis Obispo (1988) 199 Cal. App. 3d 520, 533. Thus, this section does not provide a basis for sustaining the demurrer.

As to the second argument, defendants rely on the litigation privilege to argue the statements made by Rabanni occurred in the course of a criminal proceeding and are therefore privileged under Civil Code §47(b)(2). Based on the application of this privilege, defendants invoke Gov. Code §815.2(b) which provides that “[a] public entity is not liable for conduct by an employee for which that employee is immune.” Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App. 4th 1056, 1061 This argument is potentially dispositive. The opposition incorrectly argues that the litigation privilege only applies to communications made in furtherance of an act of intentional destruction of evidence. This misquotes the section cited which provides the privilege does not apply in those instances.

Defendants’ third argument relies on Gov. Code §820.2, which provides that public employees are not liable for injuries resulting from acts or omissions that were the result of exercising the discretion vested in them. Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 648. “Section 820.2 provides that ‘a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.’ Immune discretionary acts involve planning and policy making…. However, lower-level or ‘ministerial’ decisions that merely implement a basic policy already formulated are not immunized….” County of Kern v. Sparks (2007) 149 Cal.App.4th 11, 20. “Government Code section 820.2 provides for the discretionary immunity of the act or omission of a public employee only where ‘the act or omission was the result of the exercise of the discretion vested’ in the employee.” Conn v. Western Placer Unif. School Dist. (2010) 186 Cal.App.4th 1163, 1178. A prosecutor acts within his official capacity, for purposes of quasi-judicial absolute immunity, when his conduct is integral part of judicial process or intimately associated with judicial phase of criminal process. Falls v. Superior Court (1996) 42 Cal.App.4th 1031. Here, the allegations and alleged injury stem from Rabanni’s negotiation of a plea deal. However, the demurrer fails to address the fact that plaintiff has alleged that the prosecutor was required to offer plaintiff probation under Penal Code §1210.1, as he was eligible for probation under that statute. See People v. Esparza (2003) 107 Cal.App.4th 691, 699. Thus, this immunity would not apply as Rabanni’s conduct would not have been discretionary or amount to a basic policy decision.

Regarding Gov. Code §821.6, public employees are not liable for injuries caused by instituting or prosecuting judicial or administrative proceedings, within the scope of their employment, including malicious prosecutions. Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App. 4th 1056, 1062. However, “the immunity for institution or prosecution of a judicial or administrative proceeding … is for malicious prosecution, not false imprisonment.” (5 Witkin Sum. Of Cal. Law (10th ed. 2005) Torts §369 (citing, e.g., Sullivan v. Los Angeles (1974) 12 Cal.3d 710, 719, 722.). Plaintiff has styled his complaint as one for false imprisonment. Defendants argue however, that the cases indicating this immunity does not apply where false imprisonment has been alleged did not involve actions in the context of negotiating plea deals. Defendants argue that despite plaintiff’s allegation that he was falsely imprisoned, his claim is actually one for malicious prosecution. False imprisonment is pled where it is alleged there has been (1) nonconsensual, intentional confinement of a person; (2) without lawful privilege; (3) for appreciable period. Lyons v. Fire Ins. Exch. (2008) 161 Cal.App.4th 880, 888. Malicious prosecution is pled where a plaintiff alleges (1) an action commenced by or at the direction of defendant; (2) pursued to a legal termination favorable to the plaintiff; (3) brought without probable cause; and (4) initiated with malice. Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1018, 1031.

Defendants’ argument is not persuasive. Plaintiff has not alleged a claim for malicious prosecution and his complaint does not indicate that this is what he is attempting to allege. His allegations are not premised on the wrongful initiation and prosecution of the criminal proceedings. Plaintiff instead alleges that he was entitled to the probation and drug treatment program identified in the Penal Code. He argues the prosecutor withheld this information from him and did not give the court a chance to evaluate plaintiff’s eligibility for the program. (Complaint Exh. 1 ¶¶4-6.) As a result, plaintiff was incarcerated for several months and then subject to parole restrictions which may not have otherwise been imposed. (Complaint Exh. 1 ¶¶15-17.) Thus, the claim is not one for malicious prosecution and the immunity in Section 821.6 does not apply.

Constitutional Claims
The complaint invokes some constitutional issues, alleging Penal Code §1210.1 created due process and eighth amendment protections and in failing to inform plaintiff of his eligibility for the drug treatment program, Rabanni violated the eighth and fourteenth amendments. (Complaint Exh. 1 ¶¶26-28, 30.) Defendants argue that to the extent Plaintiff attempts to allege constitutional violations pursuant to 42 U.S.C. §1983, his claim fails on two grounds – (1) his claims are untimely and (2) COLA and LADA are not vicariously liable for Rabanni’s conduct. To the extent defendants argue plaintiff’s constitutional claims are uncertain, the demurrer is sustained.

With regard to the statute of limitations argument, the applicable statute of limitations for civil rights actions under 42 U.S.C. §1983, is the one for personal injury actions; federal law determines accrual, which is when plaintiffs know or have reason to know of the injury. McMahon v. Albany Unified School Dist. (2002) 104 Cal.App.4th 1275, 1291-92. Here, plaintiff alleges he knew of the injury in 2013, when he learned of the probation and drug treatment program. However, as noted above, he has not alleged why he could not have discovered the program sooner. Lastly, under 42 U.S.C. §1983 respondeat superior is not a cognizable theory against a public entity for constitutional violations committed by employees. See Choate v. County of Orange (2000) 86 Cal.App.4th 312, 328. Plaintiff is required to allege that the alleged deprivation of rights arose from some official policy, custom, or practice of COLA and LADA.

Motion to Strike
Defendants seek an order striking Plaintiff’s claim for punitive damages. However, based on the rulings on the demurrer, the motion is denied without prejudice as moot.

CALENDARING NOTICE:
The court sets a case management conference on _____________ at 8:30 a.m.

Moving party to give notice.