Bhagwagar v. City of Los Angeles

Filed 4/5/06 Bhagwagar v. City of Los Angeles CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Joanne B. O'Donnell, Judge. Affirmed.

Law Office of Michael Waddington and Michael Waddington for Plaintiff and Appellant.

Rockard J. Delgadillo, City Attorney, Janet G. Bobigian, Assistant City Attorney, and Lisa S. Berger, Deputy City Attorney, for Defendant and Respondent.

_________________________

Shiraz Bhagwagar (Bhagwagar) appeals the dismissal of her complaint after the trial court sustained a demurrer brought by respondent City of Los Angeles (the City) based on the Government Tort Claims Act. After review, we conclude that the trial court correctly found that Bhagwagar's claims -- which stem from the alleged misconduct of Los Angeles Police Department Officer Shelby Braverman (Braverman) in the 1990's -- were barred by Government Code sections 911.2 and 945.4[1] because they were untimely when they were brought in 2004.

We find no error and affirm.

FACTS

The complaint

As is relevant to this appeal, Bhagwagar alleged:

Bhagwagar and her husband owned the Sea Rock Motel. In November 1995, Bhagwagar contacted the Los Angeles Police Department (LAPD) about her husband's drug use and Braverman arrested Bhagwagar's husband. Following this incident, she and her husband separated.

Subsequently, Braverman periodically visited Bhagwagar to check up on her and search the Sea Rock Motel for drugs. On one such visit, on September 11, 1996, narcotics were allegedly found and she was arrested. She was released by the LAPD under the pretense of a favor to Braverman.

During another visit, Bhagwagar told Braverman about a motel she was interested in purchasing. He said he wanted to see the property, so she agreed to take him. While showing him the interior of one of the rooms, he threw her down on the bed and sexually assaulted her.

On October 29, 1996, Braverman had Bhagwagar arrested for possession of cocaine base. She had to post bail. On December 17, 1996, she was arrested for possession for sale of cocaine base and again had to post bail. Braverman was present at the arrest. She was arrested again on February 27, 1997, this time for possession for sale of cocaine base and for sale, transportation, or offer to sell a controlled substance. Bhagwagar spent six months in jail before she received permission to post bail. Even though she knew she was innocent, she entered a plea bargain on the advice of counsel because she did not want to spend any more time in jail. She was ordered to pay a fine and was given probation for three years.

In March 2004, Bhagwagar went to Long Beach traffic court to register for community service stemming from a traffic violation. While there, she spoke to a deputy district attorney about her previous drug arrests. Initially, he said he could not help. But once he learned that Braverman was involved, he helped her get a public defender and get her plea vacated.

Bhagwagar filed a claim for damages against the City on June 25, 2004. She attached a copy of her claim for damages to the complaint. The claim for damages stated that Braverman was convicted for acts of moral turpitude and that she was not notified of his convictions until March 2004. The City rejected Bhagwagar's claim for damages on the grounds that it was not presented within a year of the accrual of the cause of action.

Based on her arrests in 1996 and 1997, Bhagwagar sued the City for false arrest, negligent retention, negligent training, negligent supervision, negligent failure to act or warn, and violation of the California Constitution.

The demurrer

The City filed a demurrer and argued that Bhagwagar's complaint was barred by section 945.4 because she did not file a claim for damages with the City Clerk within six months of the accrual of the cause of action as required by section 911.2. According to the City, she was on notice of her potential claims when she was arrested three times in 1996 and one time in 1997, and therefore had no basis to claim delayed discovery. Next, the City pointed out that Bhagwagar did not file an application for leave to file a late claim or an application to be relieved from the requirements of the Government Tort Claims Act.

In opposition, Bhagwagar cited the delayed discovery rule and argued that her cause of action did not accrue until March 2004 when she learned of Braverman's convictions for acts of moral turpitude.

The demurrer was sustained without leave to amend.

The case was dismissed and this appeal followed.

STANDARD OF REVIEW

A demurrer challenges the sufficiency of the allegations in a complaint. (Canton Poultry & Deli, Inc. v. Stockwell, Harris, Widom & Woolverton (2003) 109 Cal.App.4th 1219, 1225-1226.) When an action is dismissed following a demurrer, the Court of Appeal's task is to review the sufficiency of the complaint de novo and exercise its independent judgment as to whether a cause of action has been stated. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) It must â€