Case Name: Alton King v. County of Santa Clara, Santa Clara County Department of Correction (SCCDC)

Case No.: 1-14-CV-271010

Demurrer to Plaintiff’s Third Amended Complaint by Defendant County of Santa Clara (erroneously sued as Santa Clara County Department of Correction (SCCDC))

Plaintiff Alton King (“King”) alleges that he is currently an inmate at Valley State Prison in Chowchilla. (Third Amended Complaint (“TAC”), ¶22.) Plaintiff King was previously an inmate at Santa Clara County Department of Correction. (TAC, ¶¶16 and 22.) According to plaintiff King, officer A. Chang (“Chang”) of defendant County of Santa Clara (erroneously sued as Santa Clara County Department of Correction (SCCDC); hereafter, “County”) confiscated and logged in King’s personal property (wedding ring) on March 22, 2008 during his incarceration at Santa Clara County Department of Correction. (TAC, ¶17.) In or about February 2008, County received plaintiff King’s Kenneth Cole shoes for trial. (TAC, ¶18.) On March 5, 2009, plaintiff King released his property to his son, but the wedding ring and Kenneth Cole shoes were missing. (TAC, ¶19.)

Plaintiff King alleges he filed a lost property claim on June 30, 2009 which defendant County denied on May 26, 2010. (TAC, ¶20.) Plaintiff King filed a petition for writ of mandamus and declaratory relief on May 22, 2012 in Santa Clara County Superior Court, case number 112CV225069 (“Underlying Writ Petition”). (TAC, ¶21.) On March 24, 2014, the court issued an order to release the missing property, but defendant County responded by stating, “the claim has already been denied, we cannot find your property.” (Id.) Plaintiff King left County custody on April 13, 2009 to serve his sentence at Valley State Prison. (TAC, ¶22.)

On September 24, 2014, plaintiff King filed the instant action against Chang. On February 19, 2015, plaintiff King filed a first amended complaint (“FAC”) removing Chang as a defendant and adding defendant County. The FAC asserted a single cause of action for general negligence.

On July 14, 2015, defendant County filed a demurrer to plaintiff’s FAC. On October 28, 2015 (and November 16, 2015), the court (Hon. Huber) issued an order sustaining defendant County’s demurrer with leave to amend.

On November 16, 2015, plaintiff King filed a second amended complaint (“SAC”) asserting claims for negligence and mandamus. On November 18, 2015, plaintiff King filed a motion for leave to file a third amended complaint (“TAC”) because he failed to attach exhibits to his SAC. On December 22, 2015, the court (Hon. Lucas) granted plaintiff King leave to file a TAC. On February 4, 2016, the court (Hon. McGowen) issued an order to that effect. Plaintiff King has not actually filed the TAC. The proposed TAC includes causes of action for negligence and mandamus.

On May 9, 2016, defendant County filed this motion, a demurrer to plaintiff King’s TAC. On July 26, 2016, plaintiff King filed opposition.

I. Requests for judicial notice.

In support of its demurrer, defendant County requests judicial notice of court records from the Underlying Writ Petition and court records from the present matter. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

Accordingly, the request for judicial notice in support of defendant County of Santa Clara’s demurrer to plaintiff’s third amended complaint is GRANTED.

In opposition, plaintiff King also requests judicial notice of a court record from the Underlying Writ Petition. Based on the same authority above, the request for judicial notice in support of plaintiff’s opposition to defendant’s demurrer to the third amended complaint is GRANTED.

II. Defendant County’s demurrer to plaintiff King’s TAC is SUSTAINED.

“Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ¶7:50, p. 7(I)-30 citing Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995, et al.) Defendant County demurs to plaintiff King’s TAC by arguing that it is barred by the statute of limitations set forth in Code of Civil Procedure section 338, subdivision (c)(1) which states that “[a]n action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property” must be commenced within three years. According to the allegations of the TAC, plaintiff learned that his property went missing on March 5, 2009 and filed a lost property claim on June 30, 2009, but plaintiff did not bring this action until September 24, 2014, more than five years later. Defendant County acknowledges plaintiff’s incarceration may toll his legal claims for up to two years. (See Code Civ. Proc., §352.1.) Nevertheless, defendant County contends even with tolling, the cause of action is barred because it was brought more than five years after it accrued.

In opposition, plaintiff King contends the cause of action did not accrue on March 5, 2009, the date he alleges his personal property was missing, but rather the cause of action accrued on March 24, 2014, the date defendant County responded to the court order issued from the Underlying Writ Petition stating, the claim has already been denied, we cannot find your property.”

Both parties cite Bufano v. City and County of San Francisco (1965) 233 Cal.App.2d 61, 70, where the court wrote, “Where an original taking is wrongful, the bar of the statute runs from the time of the unlawful taking, but where the original taking is lawful, the statute is not set in motion until the return of the property has been demanded and refused….” Plaintiff argues the action accrued when demand for return of his property was made on March 24, 2014 (Underlying Writ Petition ordered the return of plaintiff’s property) and subsequently refused. Plaintiff’s argument lacks legal authority. A cause of action accrues but once. The accrual date does not reset upon a subsequent demand and refusal. If so, a plaintiff could perpetually avoid the statute of limitations simply by making another demand.

As this court previously explained, “a claim accrues and the statute of limitations ‘begins to run upon the occurrence of the last event essential to the cause of action, even if the plaintiff is unaware that a cause of action exists. [Citation.] The infliction of actual and appreciable harm will commence the limitations period. [Citation.]’ [Citation.]” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 979 – 980.) The last essential element is generally the infliction of actual and appreciable harm which, in this case, is the loss of plaintiff’s personal property. According to the allegations of the TAC and of each cause of action asserted therein, this loss occurred on March 5, 2009. Defendant County’s inability and/or refusal to comply with the court order of March 24, 2014 is not the date of the infliction of actual and appreciable harm.

Accordingly, defendant County’s demurrer to plaintiff King’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] i.e., the claim is barred by the applicable statute of limitations, is SUSTAINED WITHOUT LEAVE TO AMEND.

In view of the court’s ruling, the court declines to address the other arguments asserted by defendant County in its demurrer.