2013-00152323-CU-PO
Esteban M. Salinas vs. County of Sacramento
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Wisniewski, Ashley M.

Defendant County of Sacramento’s Demurrer to the Complaint is sustained without
leave to amend as to the claim for negligence. The demurrer to the remaining causes
of action on the ground they are barred by the statute of limitations is overruled.

Defendant’s Request for Judicial Notice is granted.

Plaintiff alleges that while he was transported to the jail after being arrested, his hand
came out of the handcuff and when he raised it to show the deputy, he was tackled,
resulting in a broken arm that is permanently six inches shorter than the other arm.
Defendant contends that all causes of action are barred by the statute of limitations,
and that, in addition, the negligence cause of action fails to state a claim against
defendant government entity. As a public entity, liability must be based on statutory not
common law. (Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367, 369). Plaintiff
concedes that the negligence claim is improper and agrees to dismiss it.

The incident occurred on May 20, 2011. Plaintiff was sentenced on his criminal
charges on June 23, 2011. The Court finds that Gov. Code section 945.3 operates to
toll the statute of limitations on the causes of action arising out of the arrest and
detention of plaintiff. The Court rejects County’s overly narrow interpretation of the statute which appears to rely on the assumption that the conduct of the peace officer
must relate only to the arrest and not the detention. Section 945.3 includes conduct of
the peace officer arising out of the detention. Thus, the statute was tolled until June
23, 2011.

In February of 2012, plaintiff consulted with an attorney. Counsel submitted a claim
and an application for leave to file a late claim with the County on February 10, 2012.
On March 12, 2012, George Hills Company Claims Adjuster Mark Stone
acknowledged that he was authorized to take actions on claims and told counsel that
County would not reject the late claim application. Plaintiff alleges that the parties
thereafter entered negotiations to settle the case. The parties did not view a video of
the incident until May 8, 2013, allegedly due to the County’s delay in obtaining the tape
from the Sheriff’s office. Plaintiff alleges that his counsel submitted a settlement
demand on June 19, 2013. After being told by the County’s claims adjuster that the
offer had not been received, plaintiff again sent the settlement offer on September 18,
2013. On September 20, 2013, County tendered a settlement offer to plaintiff. Less
than one hour later, Mr. Stone unilaterally withdrew the settlement offer stating that
the County would invoke the statute of limitations and pay nothing. (Complaint 24 –
26). The Complaint was filed on September 30, 2013.

Pursuant to Government Code section 945.6, when a public entity fails to act on a
plaintiff’s government tort claim, the claimant has two years from the accrual of the
action to file suit. Mandjik v Eden Township Hospital Dist (1992) 4 Cal.4th 1488, 1499.
Both the personal injury and the civil rights claims have a two year statute of
limitations. CCP 335.1; Javor v Taggart (2002) 98 Cal.App.4th 795, 803.

The statute of limitations ran on June 23, 2013.

Equitable Tolling

The court rejects plaintiff’s application of this doctrine. Under the doctrine of equitable
tolling, a period of limitation may be tolled as to one action when a plaintiff has sought
an alternative form of relief, and a three-pronged test has been satisfied. Addison v.
State of California (1978) 21 Cal.3d 313, 319 (emphasis added). The three elements
are: (1) that defendant has received timely notice of the first claim; (2) that defendant
has not been prejudiced in gathering evidence to defend against the second claim; and
(3) that plaintiff has acted reasonably and in good faith in filing the second action. (Id.)
In this case, plaintiff’s instituting the government claims procedure is not an alternative
form of relief in another forum. The claims procedure is part and parcel of this action
as it is a prerequisite for filing a complaint. None of the cases relied on by plaintiff
concern a tort claim but instead concern alternative remedies.

Equitable Estoppel

The elements of estoppel to plead the statute of limitations when a public entity is
involved are as follows: (1) the party to be estopped must be apprised of the facts; (2)
he must intend that his conduct be acted on, or must so act that the party asserting
estoppel had a right to believe it was so intended; (3) the party asserting estoppel must
be ignorant of the true state of facts; and (4) he must rely upon the conduct to his
injury. (Kleinecke v. Montecito Water District (1983) 147 Cal.App.3d 240, 245-246,
citing Denham v. County of Los Angeles (1968) 259 Cal. App. 2d 860, 866.) “The
doctrine of equitable estoppel is based on the theory that a party who by his
declarations or conduct misleads another to his prejudice should be estopped from obtaining the benefits of his misconduct. . . . Under appropriate circumstances
equitable estoppel will preclude a defendant from pleading the bar of the statute of
limitations where the plaintiff was induced to refrain from bringing a timely action by the
fraud, misrepresentation or deceptions of defendant.” (Kleinecke, supra, at 245,
citations omitted.) Although estoppel most commonly results from misleading
statements about the need for or advisability of a claim, it may also result where the
public entity or one of its agents engaged in some calculated conduct or made some
representation or concealed facts which induced the plaintiff not to file a claim or bring
an action within the statutory time. (Ortega v. Pajaro Valley Unified School Dist.
(1998) 64 Cal.App.4th 1023, 1047.)

The facts alleged regarding the continuing negotiation of the claim, including the fact
that County’s agent delayed in obtaining the videotape from the Sheriff, and that
County actually tendered a settlement offer after the limitations period expired are
sufficient to alleged equitable estoppel. It would have been unreasonable for plaintiff
to file a lawsuit before June 23, 2013 when the parties were negotiating to settle the
case.

The demurrer to the 1st cause of action for Vicarious Liability Government Code 815.2,
2nd cause of action Assault and Battery, 4th cause of action Intentional Infliction of
Emotional Distress, 5th cause of action 42 USC 1983, and 6th cause of action

Violation of Unruh Act Civil Code 52 and 52.1 are overruled.

Motion to Strike

Motion to Strike claim for punitive damages against County only is granted. Pursuant
to Gov. Code section 818, a public entity is not liable for punitive damages. Plaintiff
concedes the claim is improper.

The motion to strike the request for attorneys fees under CCP 1021.5 is denied,
without prejudice. Section 1021.5 authorizes an award of attorneys’ fees “to a
successful party against one or more opposing parties in any action which has resulted
in the enforcement of an important public right affecting the public interest if: (a) a
significant benefit, whether pecuniary or nonpecuniary, has been conferred on the
general public or a large class of persons, (b) the necessity and financial burden of
private enforcement, or of enforcement by one public entity against another public
entity, are such as to make the award appropriate, and (c) such fees should not in the
interest of justice be paid out of the recovery, if any.” As such the motion to strike is
premature.

Motion to Strike claim for attorneys fees pursuant to 42 USC 1988 is granted,
conceded by Plaintiff in the opposition.

Penalty under Civil Code 52: Granted with leave to amend. Plaintiff does not allege a
violation of any of the code sections that give rise to a penalty under section 52.

Plaintiff contends he can cure the defect.

Plaintiff may file and serve an Amended Complaint on or before March 20, 2014.

Response to be filed and served within 15 days of service of the amended complaint,

20 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.