Opinion
E067280
04-19-2018
THOMAS HAYDEN, Plaintiff and Appellant, v. MARR CHRISTIAN, Defendant and Respondent.
Thomas Hayden, in pro. per., for Plaintiff and Appellant. Gregory P. Priamos, County Counsel, Kirsten B. Shea, Deputy County Counsel; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1207183) OPINION APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Affirmed. Thomas Hayden, in pro. per., for Plaintiff and Appellant. Gregory P. Priamos, County Counsel, Kirsten B. Shea, Deputy County Counsel; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.
Plaintiff and appellant Thomas Hayden (Plaintiff) appeals the grant of summary judgment in favor of defendant and respondent Riverside County Code Enforcement Officer Marr Christian (Defendant).
Plaintiff and his family lived in a mobile home located on Gaston Road in Perris (the Property). A search warrant was served on the Property by the Riverside County Sheriff's Department. During execution of the search warrant, one of the sheriff's deputies called in Defendant to inspect the mobile home, which was in considerable disrepair. Defendant issued a code violation on behalf of the County of Riverside (the County) and ordered that electricity to the mobile home be shut off.
Plaintiff filed an original complaint naming several defendants, including Defendant, the sheriff's deputy who executed the search warrant, and the County. Plaintiff filed his second amended complaint (SAC) against Defendant only, alleging intentional and negligent infliction of emotional distress and oppression under color of authority insisting the code violations were false. Defendant filed a motion for summary judgment (the Motion) alleging that Plaintiff had failed to file a government claim directly with the County as required by the Government Claims Act (the Act) set forth in Government Code sections 810 et seq. The trial court granted the Motion finding that Plaintiff had not met his burden of showing a triable issue of fact that a government claim was filed with the County prior to filing his SAC.
Division 3.6, parts 1 through 7 of the Government Code (§ 810 et seq.) is referred to as the Government Claims Act. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741 (Stockton).
All further statutory references are to the Government Code unless otherwise indicated.
Plaintiff claims on appeal that (1) Defendant acted with actual malice against Plaintiff and his family as there were no code violations at the Property; Defendant's evidence in the form of a declaration from Cecilia Gil, a clerk employed by the County, that he failed to file a government claim was hearsay and not based on personal knowledge; the County could have misplaced the claim filed by Plaintiff; the trial court erred by determining that Plaintiff's evidence in the form of declarations by Eric Watkins was not credible; and the demurrer filed by Defendant did not address the failure to file a government claim. We conclude the Motion was properly granted.
FACTUAL AND PROCEDURAL HISTORY
A. STATEMENT OF FACTS
The facts are drawn from the disputed and undisputed material facts filed by the parties in the trial court.
On April 1, 2012, Defendant, an officer with the County Code Enforcement Office, was asked by the Riverside County Sheriff's Department to go to the Property due to potential code enforcement violations. The SAC was based on Plaintiff's claim that the code violations were false. He and his family had been forced off the Property and had suffered severe emotional distress. Defendant set forth that no government claim had been filed with the County as required by the Act. Plaintiff disputed this fact arguing he did file a claim but that it was potentially misplaced by the County.
B. PROCEDURAL BACKGROUND
1. COMPLAINT
Plaintiff filed his first complaint on May 14, 2012. He named Riverside County Sheriff's Deputy Thomas Salisbury; Defendant; Glenn Baude, who was Defendant's supervisor; and the County. The complaint was filed by his attorney, Connie L. Younger. Plaintiff, along with his wife, Sandra, and five of his children, were named as plaintiffs. Plaintiff's counsel alleged Plaintiff had complied with the "Claims statute as required by law." Plaintiff's counsel alleged 10 causes of action including emotional distress, oppression under color of authority, and negligence. No proof of service or declaration from Younger was attached.
Only the County filed a demurrer to the original complaint. It appears Defendant was not served with the original complaint.
On August 15, 2012, Plaintiff's counsel filed a first amended complaint. Defendant, Deputy Salisbury, Baude and the County were again named. It was again alleged that Plaintiff had complied with "the Claims statute as required by law"; he alleged 10 causes of action; and no proof of service or declaration from Younger was attached.
On May 6, 2015, the SAC was filed. Plaintiff filed the SAC in propria persona and named Deputy Salisbury, Defendant, Baude and the County; however, he only presented facts pertaining to Defendant. Once again the SAC alleged that the "Claims" statute had been complied with. He alleged that on April 1, 2012, Defendant entered the Property at the request of Deputy Salisbury. He admitted that Deputy Salisbury was engaged in the legal administration of a search warrant on the Property. Plaintiff alleged that Defendant made false and unsupported claims that the Property was in a dangerous condition. Plaintiff and his family were forced out of the Property and left homeless. Specifically, Defendant found that the electrical panel was dangerous and also stated the roof was in violation of code. Plaintiff insisted that Defendant acted with malice in making these false claims.
Plaintiff alleged these acts by Defendant were not within the course and scope of his employment with the County but also alleged that Defendant violated his rights and the rights of his family "with impunity" because he was a code enforcement officer.
Plaintiff's first cause of action was for intentional infliction of emotional distress. He alleged Defendant's false claims of code violations were made for the purpose of putting a disabled man, his wife and five children on the street. They were homeless. The entire family suffered humiliation, mental anguish and emotional and physical distress.
Plaintiff's second cause of action was for "Oppression Under Color of Authority" (all caps omitted). He alleged that under color of authority, Defendant used his power granted by the County to remove Plaintiff and his family from their home without cause.
Plaintiff's third cause of action was for "Negligence [sic] Infliction of Emotional Distress." Plaintiff alleged that Defendant owed him and his family a duty of care not to make false claims about the condition of their home. There was an extra duty of care to Plaintiff and one of Plaintiff's sons who were disabled. Plaintiff sought punitive damages against Defendant in the amount of one million dollars and damages due to being evicted from their home. No proof of service was attached; according to the register of actions, service was made on Defendant on April 16, 2015. Defendant filed a motion to quash service, which was granted. Defendant was served with the SAC on December 17, 2015.
On January 13, 2016, Defendant filed a demurrer to the SAC. It was sustained with leave to amend as to two of Plaintiff's sons who were erroneously listed as minors. Defendant filed an answer on March 22, 2016, arguing that Plaintiff both failed to comply with the government claim requirement pursuant to sections 901, 905, 910, 911.2, 945.4, 945.6 and 950.2; and based on Defendant having immunity pursuant to section 822.2.
The demurrer is not part of the record on appeal.
Most of the clerk's transcript contains motions to compel filed by Plaintiff and responses by Defendant, which are not relevant to the appeal.
2. MOTION FOR SUMMARY JUDGMENT
Defendant filed the Motion on June 9, 2016. Defendant alleged Plaintiff's tort causes of action were legally barred because he failed to file a government claim prior to filing the SAC. Moreover, Defendant was entitled to immunity pursuant to section 822.2. Defendant noted he was the only remaining defendant in the case and that Thomas Hayden was the only plaintiff; all other parties had been dismissed.
Defendant summarized the facts that all three of Plaintiff's causes of action were based on Plaintiff's claim that Defendant, as a code enforcement officer employed by the County, filed a false notice of code enforcement violations on the Property, including problems with the electrical panel.
Defendant alleged that the Act applied to Plaintiff's actions. The Act required the presentation of a government claim for money or damages to a public entity as a perquisite for filing damages litigation against the public entity or its employees. An action for money or damages cannot be maintained against a public entity or employee unless the claim has first been presented to the public entity and rejected. All of Plaintiff's causes of action were subject to the Act. Defendant alleged that since Plaintiff failed to show compliance with the government claims presentation requirements, dismissal of the SAC was warranted.
Further, Plaintiff alleged in the SAC that the injury that formed the basis of his complaint occurred on April 1, 2012. Section 911.2 required that the government claim be filed by September 28, 2012. Defendant alleged that to-date, no government claim has been filed with the County. Further, Plaintiff could have attempted to file the claim after the deadline and seek an exception, but there was no evidence that he tried to file a late claim.
Defendant further argued that if the trial court were to find that Plaintiff filed a government claim Defendant was immune from liability pursuant to section 822.2 as a government employee. Section 822.2 provided, " 'A public employee acting in the scope of his employment is not liable for an injury by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.' " Defendant alleged there was no evidence of actual fraud or malice.
Defendant provided several declarations in support of the Motion. The first declaration was from Cecilia Gil. She had been the "Board Assistant" to the clerk of the County's Board of Supervisors for 10 years. She stated the clerk of the Board was the repository for all claims presented under the Act against the County. She declared, "The Clerk of the Board database accurately depicts the existence of all such claims filed and lawsuits served to the County of Riverside or its employees since 1989." As part of her duties, she was responsible for the filing and logging of government claims with the County on a computer database. She declared, "At this time the computer log contains all claims presented and lawsuits served dating from 1989 until present."
Gil performed a search of the computer log for government claims filed by Plaintiff with the clerk of the Board. She stated, "I have concluded that from April 1, 2012, to the present, no such individual has presented any claims or petitions for leave to file late claims against the County of Riverside or its employees as required under Government Code Section 911.2(a)."
Defendant also prepared a declaration. He had been employed as a code enforcement officer with the County since 1998. He had been a supervisor since 2004. He stated, "On or about April 1, 2012, I was involved in an investigation involving code enforcement violations at [the Property] while acting within the course and scope of my employment with the County of Riverside, as a Supervising Officer for the Riverside County Code Enforcement."
3. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
Plaintiff filed his opposition on September 13, 2016. He submitted his separate statement of disputed and undisputed facts, portions of which are forth in the statement of facts, ante. He also submitted several declarations in opposition to the Motion.
An individual named Eric Watkins had over 15 years of experience fixing "mobile marine and land platforms." Sometime in April 2012, he got a call from Plaintiff asking him to accompany him to "the Riverside County office so that he could file a document he called a Government claim against the County of Riverside he had been given by his lawyer." Watkins claimed they went "downtown" and into "the county building." They waited in line and Plaintiff gave "it" to the clerk. They left and went to lunch at "Farmer Boys" where Plaintiff called his wife.
Watkins declared he had helped Plaintiff work on the Property for over eight years, including performing flooring, plumbing and electrical wiring work. Watkins had observed the Property on many occasions and the code violations cited by Defendant were without any basis.
Plaintiff submitted his own declaration. Plaintiff was not present when the search warrant was executed. All of the code violations cited by Defendant were not true. It was clear Defendant was using the power given to him by the County to punish, annoy and harm his family. Plaintiff insisted that he and his family were driven from their home because of Defendant.
A "few weeks later" Plaintiff "had to go down and file a claim with the County of Riverside to comply with the claims statute. I had been given the claims form by our Attorney Connie Younger." Plaintiff stated his criminal attorney had warned him to stay away from places where Riverside County Sheriff's deputies may be so he was afraid to go to the "County Building" so he brought Watkins with him. He filed the "claim" a "little after noon." He called Sandra and told her that he had successfully filed the "papers with the county." Plaintiff also informed his "attorney of record" he had filed the "claim." Plaintiff then described all of the problems that he and his family encountered due to the lies and malicious acts committed by Defendant.
Sandra also submitted a declaration. She had been at the Property when the search warrant was executed. Sandra was told by Defendant that she had to leave the Property because of the condition of the home. She insisted that none of the violations cited by Defendant were true. She also declared, "A few weeks after the sheriff's visit, my husband Tom and a friend went down to file a Government claim with the County of Riverside to comply with the claims statute. He had been given the Government claims form by our Attorney Connie Younger. Our Criminal attorney for Tom, Steve Harmon had told us to stay away from places where the Riverside Sheriff's Department might be, so I was worried about Tom going to the county Building. Tom went there with a friend so the friend could inform me if something happened. [¶] A little after noon I got a call from Tom to let me know he had successfully filed the papers with the county and was on his way out of there, he had also informed our attorney." Sandra also recounted the problems her family encountered due to being forced out of their home.
Two of Plaintiff's sons also submitted declarations about the problems they had after Defendant issued the violations on the Property.
4. DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION
Defendant filed his reply to the opposition to the Motion on September 23, 2016. Defendant noted that Plaintiff had failed to present material facts to show he filed a government claim. Plaintiff had the burden to show that he complied with the Act.
Defendant complained Plaintiff did not provide a copy of the government claim filed. Plaintiff failed to provide what information was included in the government claim; he failed to identify the public employee pursuant to section 910, subdivision (e). Plaintiff did not provide the date on which he filed the government claim or with whom he filed the claim. Plaintiff's self-serving declaration did not provide any of these facts.
Defendant also noted that the declaration submitted by Plaintiff from Watkins was "suspect." Defendant tried to depose Watkins but was unable to serve him; he could not be located. The trial court should ignore Watkins's declaration. Further, Sandra's declaration could not support there was a triable issue of fact as she had no personal knowledge that the government claim was filed, other than receiving a telephone call from Plaintiff. The allegation in the SAC by Plaintiff's attorney that a government claim was filed was not evidence. Defendant also contended that Plaintiff showed no evidence that a triable issue of fact existed as to the issue of immunity from liability under section 822.2.
Defendant's counsel submitted a declaration as to her efforts to find and serve Watkins. A declaration from the process server who attempted to serve Watkins was submitted.
Defendant objected to Plaintiff's evidence. Relevant here, he objected to Watkins's declaration that he accompanied Plaintiff to a county building to file a government claim, which was given to Plaintiff by his lawyer, as hearsay and lack of personal knowledge. Defendant also objected to Sandra's declaration that Plaintiff went to a county office with a friend to file a government claim on the basis of hearsay and lack of personal knowledge.
5. RULING
The matter was heard on September 30, 2016. Plaintiff appeared in propria persona. The trial court stated it had made a tentative decision that there was a lack of evidence of the filing of the government tort claim, e.g. there was no triable issue of fact as to the filing of a government claim. The trial court intended to sustain the objections to the declarations by Watkins and Sandra as to the filing of a claim at a county building because it was hearsay and they lacked personal knowledge.
Plaintiff responded that his opposition must be liberally construed. Plaintiff argued that Gil did not have personal knowledge that he failed to file a government claim. Although she did a computer search, she had no personal knowledge that Plaintiff did not file a claim. It was possible it was not in the computer because it was misplaced or lost. Plaintiff also complained that the trial court was improperly acting as the fact finder finding that the declarations from Watkins and Sandra were not credible. The trial court should find for Plaintiff based on his statement and the claim of his counsel that a claim was filed.
The trial court responded that even if Plaintiff was believed that a claim was filed, there was no evidence as to the contents of the claim, when the claim was filed and who received the claim. It was Plaintiff's burden to present this evidence. Since this evidence was missing, there was no triable issue. Plaintiff again accused the trial court of becoming the fact finder. He insisted the information that he complied with the Act was more appropriately resolved at trial, not by granting the Motion. The trial court disagreed that a statement by his counsel that a claim had been filed was sufficient evidence. There was no declaration filed by counsel and no information about the claim had been provided.
The amended judgment was entered on November 16, 2016. Defendant's evidentiary objections to the declarations of Watkins and Sandra were sustained and the Motion was granted. Defendant was awarded his costs in the amount of $11,614.64.
DISCUSSION
A. STANDARD OF REVIEW
"A trial court will grant summary judgment where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment must prove the action has no merit. He does this by showing one or more elements of plaintiff's cause of action cannot be established or that he has a complete defense to the cause of action. At this point, plaintiff then bears the burden of showing a triable issue of material fact exists as to that cause of action or defense." (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)
"Since summary judgment motions involve purely questions of law, we review the granting of summary judgment de novo. [Citation.] Because the facts here 'are generally undisputed, only legal issues are presented.' " (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84.) Because we review this matter after summary judgment was entered in favor of Defendant, we consider the facts most favorably to Plaintiff. We liberally construe Plaintiff's evidentiary submissions, strictly construe the evidence submitted by Defendant, indulge all reasonable inferences in support of Plaintiff, and resolve all evidentiary doubts or conflicts in favor of Plaintiff. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) Review of a trial court's ruling on evidentiary objections is for abuse of discretion. (Great American Ins. Companies v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 449.)
B. ANALYSIS
The trial court determined Plaintiff had failed to meet his burden of establishing he filed a government claim with the County prior to filing the SAC. The trial court properly granted the Motion on this ground.
There is no dispute here that the Act applied to Plaintiff's claims and that Plaintiff had to file a government claim prior to filing the SAC. "Section 905 requires the presentation of 'all claims for money or damages against local public entities,' subject to exceptions not relevant here. . . . '[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon . . . or has been deemed to have been rejected.' " (Stockton, supra, 42 Cal.4th at pp. 737-738.)
"The purpose of the claims statutes is not to prevent surprise, but 'to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. [Citations.] It is well-settled that claims statutes must be satisfied even in the face of the public entity's actual knowledge of the circumstances surrounding the claim.' [Citation.] The claims statutes also 'enable the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future.' " (Stockton, supra, 42 Cal.4th at p. 738.)
Section 911.2 provides, "A claim relating to a cause of action for death or for injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action." Section 915 requires that a claim be delivered to, mailed to, or actually received by the clerk, secretary, auditor or governing body of the public entity within the time allotted. Section 910 sets forth what the governmental claim should include to give notice to the government agency of the claim.
In Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 769, the plaintiff sued the City of Riverside and a Riverside Police Department officer due to an auto accident involving her and the officer. Prior to filing a complaint, Plaintiff's counsel sent a letter directly to the officer requesting details of the accident. (Id. at p. 764.) Plaintiff also tried to file a late government claim after she missed the deadline, but it was denied. (Ibid.) The complaint was dismissed based on the defendants' motion for summary judgment on the basis a government claim was not filed. (Id. at p. 765.)
Initially, the appellate court determined the defendants had shown that the plaintiff had not filed a government claim; the burden shifted to the plaintiff to show that a claim was filed and there was a triable issue of fact. (Del Real, supra, 95 Cal.App.4th at pp. 767-768.) The plaintiff relied upon the letter sent directly to the officer as showing she filed a claim. The appellate court found there was "no evidence in the record demonstrating that the letter was actually received by the city clerk, secretary, auditor or governing body within six months of the accident. Summary judgment has been affirmed on the basis of failure to comply with section 915 alone." (Id. at pp. 769-770.) The appellate court also noted the letter did not satisfy the requirement of setting forth the claims and notifying the city that litigation was imminent. (Id. at p. 770.)
Plaintiff does not contend the County was not a public entity under the Act or that Defendant was not acting as an employee of the county. Rather, Plaintiff claims he presented evidence that a government claim was filed but lost by the County, and there was a triable issue of fact as to whether he complied with the Act. However, the record is devoid of evidence that such claim was filed.
Initially, Defendant met his burden that the government claim was not filed. There was no evidence in the SAC that supports a claim was filed.
In the complaint, Plaintiff's counsel only provided the statement that something was filed and that the "Claims" statute was satisfied as required by law. Plaintiff repeated this information in the SAC. As stated by the trial court, a statement made in a complaint is not evidence. "To defeat summary judgment, the plaintiff cannot rely on allegations of the complaint and must show specific facts." (Regional Streel Corp. v. Liberty Surplus Ins. Corp. (2014) 226 Cal.App.4th 1377, 1388.) Plaintiff's citation to his own complaint to support that a government claim was filed is "meaningless." (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054.) "[A] plaintiff must show 'specific facts' and cannot rely on allegations of the complaint." (Ibid.)
Here, both Plaintiff's and his counsel's statements that the "Claims" statute was complied with is not evidence that supports a triable issue of fact was present on whether he filed a claim with the County as required by the Act.
Additionally, Defendant presented evidence that Plaintiff never filed a government claim. Defendant properly presented the declaration of Gil that the County had no record of a government claim filed by Plaintiff. Gil had searched a database containing all claims filed with the County and found no claim presented by Plaintiff regarding the claim against Defendant.
Such evidence was admissible. Evidence Code section 1272 provides that "Evidence of the absence from the records of a business of a record of an asserted act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the nonoccurrence of the act or event, or the nonexistence of the condition, if: [¶] (a) It was the regular course of that business to make records of all such acts, conditions, or events at or near the time of the act, condition, or event and to preserve them; and [¶] (b) The sources of information and method and time of preparation of the records of that business were such that the absence of a record of an act, condition, or event is a trustworthy indication that the act or event did not occur or the condition did not exist." In Fowler v. Howell (1996) 42 Cal.App.4th 1746 the court took judicial notice that a claim was not filed with a government agency based on the declaration of an employee familiar with the records, who declared he or she searched the records and no claim was found. (Id. at pp. 1752-1753.)
Gil declared on March 23, 2016, she had been employed by the County Board of Supervisors for 10 years. She was responsible for entering all government claims filed with the County into a database. Plaintiff suffered his injury in 2012. Gil was certainly qualified to attest to the trustworthiness of these records at least from 2012 until the time the Motion was heard, the relevant time period here. Defendant shifted the burden to Plaintiff to establish that a government claim had been filed.
Plaintiff's evidence did not establish a government claim had been filed. Even if we were to assume the trial court erred by granting Defendant's objections to the declarations of Sandra and Watkins, Plaintiff did not meet his burden. Plaintiff did not provide a copy of the government claim that was filed. Plaintiff further provided no evidence as to the County agency with whom the claim was filed in order for the trial court to determine if the County was given proper notice as required by section 915. Plaintiff did not provide the date the government claim was filed so the trial court could determine if he complied with section 911.2 by filing a timely claim. Finally, the trial court could not determine if Plaintiff complied with section 910 by properly setting forth the details of the claim.
Plaintiff did not meet his burden of showing a triable issue of fact, by failing to establish he complied with the Act. The failure to comply with the Act barred all of the causes of action in the SAC. The trial court properly granted the Motion.
Plaintiff makes vague claims about Defendant having actual malice against him; timeliness of the Motion and demurrer; and the admission of his criminal records. These claims are not sufficiently developed or supported by the record. We need not address these claims. Further, we need not address immunity pursuant to section 822.2.
DISPOSITION
The judgment is affirmed. As the prevailing party, defendant and respondent Marr Christian is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.