Filed 12/14/17 Soest v. Mojave Air and Space Port CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

ERNEST DEAN SOEST,

Plaintiff and Appellant,

v.

MOJAVE AIR AND SPACE PORT et al.,

Defendants and Respondents.

F073496

(Super. Ct. No. BCV-15-100851)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield, Judge.
Ernest Dean Soest, in pro. per., for Plaintiff and Appellant.
Cunningham Swaim, Michael J. Terhar and Kathy A. Schmeckpeper for Defendants and Respondents.
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Appellant, Ernest Dean Soest, filed a complaint on August 27, 2015, alleging causes of action for false arrest, false imprisonment, and violation of civil rights against respondents, Mojave Air and Space Port (MASP), and two MASP employees, Stuart Witt and Kevin Wojkiewicz. According to appellant, on September 10, 2013, respondents wrongfully caused the county sheriff to arrest appellant and take him into custody. Appellant asserts that respondents falsely accused appellant of taking an aircraft without the owner’s consent in violation of Penal Code section 499d.
Respondents demurred to the complaint. The trial court sustained the general demurrer to the complaint on the ground that appellant failed to allege compliance with the California Tort Claims Act. The trial court sustained the demurrer without leave to amend to the causes of action for false imprisonment and false arrest on the ground that the statute of limitations barred those two causes of action. The court further sustained the demurrer to the two causes of action for violation of civil rights on the ground they were “vague and duplicative as they appear to be based on the same set of facts.”
After appellant failed to file an amended complaint within the statutory time, respondents filed an ex parte application to dismiss the entire action. (Code Civ. Proc., § 581, subd. (f)(2).) Before the hearing, appellant attempted to file an amended complaint. However, appellant again did not allege compliance with the Tort Claims Act. Moreover, appellant included causes of action for false arrest and false imprisonment despite the court having denied leave to amend those claims.
The trial court concluded that December 21, 2015, was the last day to file the amended complaint. Because appellant did not attempt to file the amended complaint until January 6, 2016, the trial court granted the motion to dismiss.
Appellant challenges the sustaining of the demurrer to the causes of action for false imprisonment and false arrest on the ground that, under Government Code section 945.3, the statute of limitations was tolled during the period the charges were pending against him. Appellant further asserts the court should not have dismissed the action without allowing him to file his first amended complaint.
Appellant’s claim that the statute of limitations was tolled has no merit. Further, the trial court did not abuse its discretion when it dismissed the action. Accordingly, the judgment will be affirmed.
DISCUSSION
1. Standard of review.
In reviewing a ruling on a demurrer, the appellate court’s only task is to determine whether the complaint states a cause of action. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824.) In doing so, the court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Further, the court must give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Ibid.) The complaint’s allegations must be liberally construed with a view to attaining substantial justice among the parties. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.)
When the trial court sustains a demurrer without leave to amend, the appellate court must decide whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) If so, the trial court abused its discretion and the judgment will be reversed. (Ibid.) However, the burden is on the appellant to show the manner in which the complaint can be amended and how the amendment will cure the defect. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (Goodman).)
2. The statute of limitations bars the false arrest and false imprisonment causes of action.
A plaintiff must commence an action for false imprisonment within one year of accrual of that cause of action. (Code Civ. Proc., § 340, subd. (c).) Although appellant’s complaint states causes of action for both false imprisonment and false arrest, they are not separate torts. “False arrest is but one way of committing a false imprisonment, and they are distinguishable only in terminology.” (Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 673.)
A cause of action for false imprisonment accrues upon termination of the imprisonment, not at the time the criminal proceedings end. (Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 606.) Thus, appellant’s false imprisonment claim accrued when he was released from custody.
Appellant alleges MASP employees had him arrested by deputy sheriffs on September 10, 2013. Although appellant does not state the date of his release from custody, he alleges the superior court dismissed the charges against him on February 7, 2014. Thus, appellant’s imprisonment ended no later than February 7, 2014. Accordingly, appellant needed to file his complaint no later than February 7, 2015. However, appellant filed his complaint on August 27, 2015. Therefore, the one-year statute of limitations bars the false imprisonment and false arrest causes of action.
Regarding whether appellant could amend his complaint, he argues that Government Code section 945.3 tolled the statute of limitations. That section provides, in part:
“No person charged by … complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, … while the charges against the accused are pending before a superior court.
“Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a superior court.”
According to appellant, the prosecutor refiled the charges on July 24, 2014, and the superior court did not dismiss those charges until September 9, 2015, which was after appellant filed the complaint.
However, Government Code section 945.3 only applies to civil actions against a peace officer or the public entity employing that peace officer. The Penal Code narrowly and specifically defines “peace officer” and subjects such status to carefully prescribed limitations and conditions. (Pen. Code, § 830 et seq.; Service Employees Internat. Union v. City of Redwood City (1995) 32 Cal.App.4th 53, 60.) Airport employees are not included in the peace officer designations.
Appellant argues that, because he alleges that MASP employee Witt is the chief executive officer of MASP and therefore the “de facto head of security” who directed that appellant be charged with a crime, Witt is a peace officer under Penal Code section 830.33, subdivision (d). That section confers peace officer status on “any person regularly employed as an airport law enforcement officer” if the “primary duty of the peace officer is the enforcement of the law” in or about the airport properties. Contrary to appellant’s claim, even if he is the “de facto head of security,” Witt does not fall within the definition of “peace officer.” It is not the primary duty of a chief executive officer to enforce the law.
In sum, appellant’s false imprisonment cause of action accrued no later than February 7, 2014. Thus, the complaint filed on August 27, 2015, more than one year later, is barred by the statute of limitations. Accordingly, the trial court properly sustained the demurrer to the false imprisonment and false arrest causes of action without leave to amend.
3. Appellant’s failure to allege compliance with the Tort Claims Act bars the complaint.
MASP is a public entity. Accordingly, appellant was required to comply with the California Tort Claims Act in bringing his action against MASP and its employees. (Gov. Code, § 810 et seq.; County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.)
No person may sue a public entity or public employee for “money or damages” unless that person has presented a timely written claim to the public entity and the public entity has denied the claim or the claim is deemed denied by lapse of time. (Gov. Code, § 945.4.) Thus, presentation of a timely claim is a condition precedent to commencing the suit against the public entity. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1777.)
A plaintiff must present a claim relating to a cause of action for personal injury, including false arrest and false imprisonment, or injury to personal property “not later than six months after the accrual of the cause of action.” (Gov. Code, § 911.2; Ridley v. City and County of San Francisco (1969) 272 Cal.App.2d 290, 292.) If the injured party misses this deadline, he or she may apply to the public entity for leave to present the claim. (Gov. Code, § 911.4, subd. (a).) However, this application must be presented to the public entity “within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.” (Gov. Code, § 911.4, subd. (b).)
Here, appellant alleged no facts in his August 27, 2015, complaint demonstrating that he complied with the Tort Claims Act. Failure to timely comply with the requirements of this act bars the action and failure to plead compliance with the claim requirements is a ground for demurrer. (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239; V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509.) Thus, the trial court correctly sustained the demurrer to the complaint on this ground.
The trial court did not state a specific time within which appellant could amend the complaint. Therefore, appellant had 10 days from service of notice of the order to file an amended complaint. (Cal. Rules of Court, rule 3.1320(g).) As noted above, when appellant failed to file an amended complaint, MASP moved to dismiss the action.
Before the hearing on the motion to dismiss, appellant attempted to file an amended complaint on January 6, 2016. However, again, appellant alleged no facts in this amended complaint demonstrating compliance with the Tort Claims Act. Therefore, a demurrer to this complaint would also have been sustained.
The trial court received the amended complaint but refused to file it. The court concluded the last day to file the amended complaint was December 21, 2015, and, since the complaint was still defective, exercised its discretion to dismiss the action and enter judgment in MASP’s favor.
Appellant states the trial court abused its discretion in refusing to file the amended complaint. However, appellant has not supported this claim with argument or citation to authority. Thus, we deem this contention to be without foundation and abandoned. (Kensington University v. Council for Private Postsecondary Etc. Education (1997) 54 Cal.App.4th 27, 42-43.)
Further, appellant has not met his burden to show how he can amend the complaint to cure the defect. (Goodman, supra, 18 Cal.3d at p. 349.) He has attached various documents to his opening brief labeled as requests for judicial notice 1, 2 and 3. Requests 1 and 3 consist of the superior court dockets for the criminal proceedings and request 2 is copies of two letters allegedly sent to MASP. One letter, dated June 10, 2014, is a demand for payment made by appellant. The second letter purports to be a claim sent to MASP dated November 25, 2015. First, appellant has not complied with the applicable rules for seeking judicial notice and thus, we will not consider this material. (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744.) Moreover, even if we were to consider the purported claim dated November 25, 2015, its existence would not cure the Tort Claims Act defect. The “claim” was not sent within six months of the accrual of the cause of action and did not precede the filing of the complaint as required by Government Code section 945.4. Accordingly, we affirm the trial court’s dismissal of appellant’s action.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.


LEVY, Acting P.J.
WE CONCUR:



GOMES, J.



SMITH, J.