Voss v. Yancey

Filed 1/19/10 Voss v. Yancey CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Plaintiff Steven Floyd Voss, acting in propria persona, appeals from an order filed on April 13, 2009, dismissing his first amended complaint after the court sustained defendants demurrers without leave to amend.[1] He contends his lawsuit should be reinstated against defendants. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 2, 2008, plaintiff, acting in propria persona, filed a complaint pursuant to federal Civil Rights Act (42 U.S.C.  1983; hereinafter also referred to as Section 1983), alleging three causes of actions based on violations of his federal constitutional rights in Martinez, California on or about the dates of January 27, 1997, and May 1, 1997. Named as defendants were Gary T. Yancey in his position as the Costa Contra County District Attorney; Dale Miller, individually and in his position as Senior Deputy District Attorney; Jordan Funk, individually and in his position as Deputy District Attorney; and Jack Funk and Jeff Bradley, individually and in their positions as deputy public defenders (hereinafter also collectively referred to as California defendants); and Shannon A. Thompson, individually and in her position as Warrant Coordinator for Nevada Department of Prisons; and Robert LeGrand, individually and in his position as Associate Warden of Programs at Lovelock Correctional Center, Lovelock, Nevada (hereinafter also collectively referred to as Nevada defendants). Plaintiff sought monetary relief of punitive damages, in the amount of Five (5) Million Dollars, to be levied against each of the named Defendants, and any other appropriate sanctions as the Court may impose.

California defendants and Nevada defendants filed separate demurrers to the complaint on various grounds including the action was barred by the statute of limitations. Plaintiff opposed the demurrers. The court sustained California defendants demurrer with leave to amend, ruling that the complaint failed to set forth sufficient facts concerning the date of discovery of the acts complained of against these defendants. The court sustained Nevada defendants demurrer without leave to amend on the grounds of lack of subject matter jurisdiction over these defendants and the action against these defendants was barred by the statute of limitations.

On February 19, 2009, plaintiff filed an amended complaint in which he re-alleged verbatim the three causes of action set forth in his initial complaint.[2]

The first cause of action alleges plaintiffs rights to due process of law, equal protection of law, and compulsory protection of law, guaranteed under the Fourteenth Amendment to the United States Constitution, were violated under color of law. In support of this cause of action, plaintiff alleged on or about January 27, 1997, Costa Contra County District Attorney Yancey lodged a felony detainer alleging plaintiff violated California Penal Code section 476a (making, drawing, or passing worthless check, draft, or order) for insufficient checks (7 counts). On the same date, Yancey effectively initiated extradition proceedings in Nevada, soliciting the assistance of Shannon A. Thompson, employed as the Warrant Coordinator for the Nevada Department of Prisons. Thompson requested the assistance of Associate Warden of Programs Robert LeGrand, who asked plaintiff to come to his office in the Lovelock Correctional Center. LeGrand told plaintiff about the felony detainer, and asked plaintiff if he would undertake a request for disposition of the untried charges. Plaintiff refused, stating he would have to contact counsel before he would sign any extradition documents. Without any further communications between plaintiff and LeGrand, or any other agent of California or Nevada, on or about April 11, 1997, agents of the Nevada Department of Prisons relinquished custody of plaintiff and Concord police officers transported plaintiff involuntarily from Nevada to California. Plaintiff alleged he was transferred without a pre-extradition hearing or prior notice that he would be extradited to California. Once in California, defendant was convicted of the seven felony offenses charged in the felony detainer.

Plaintiff further alleged that after receipt of a partial copy of his case file from his former California defense counsel, he identif[ied] various irregularities relating to his extradition: (1) that various Interstate Agreement on Detainers (IAD) forms were inscribed with forged simulations of [his] signature, (2) District Attorney Yancey had been sent the forged IAD documents; and (3) Senior Deputy District Attorney Miller failed to serve him with Californias request for [his] temporary custody and the prisoners agreement to temporary transfer of custody, thereby depriving him of an opportunity to challenge his extradition.

The second cause of action alleged plaintiffs rights to effective assistance of Trial Counsel, due process of law, equal protection of law, compulsory protection of law, and fair trial, guaranteed under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, were violated under color of law. In support of this cause of action, plaintiff alleged he was represented in the California criminal proceedings by appointed deputy public defender Jeff Bradley. Plaintiff asserted Bradley did not give him copies of any court documents or discovery materials, and counsel refused to conduct any pre-trial investigation. Plaintiff was innocent of the charges and believed he had been unlawfully extradited to California because he was not given any pre-extradition hearing and he had not received any prior notice of the actual extradition. Bradley refused to investigate plaintiffs claims or file any pre-trial motion or petition for writ of habeas corpus regarding the extradition. Instead, Bradley demanded plaintiff plead guilty. Because of Bradleys conduct and plaintiffs fear of going to trial represented by Bradley, plaintiff initially conceded to counsels demand and agreed to accept a negotiated plea agreement offered by the district attorney. Plaintiff endors[ed] his signature on the negotiated plea agreement. But within an hour or so of signing, and after he consulted with his family, plaintiff told Bradley he did not want to go through with the plea agreement and he wanted to go to trial. At a May 1, 1997, change of plea hearing, Bradley did not appear and he sent Stand-in-Counsel Jack Funk. Funk told the court plaintiff wanted to enter a guilty plea. Plaintiff, who had never met Funk before that day, told Funk he had changed his mind and had already informed Bradley he wanted to go to trial. Funk told plaintiff it was too late for him to withdraw his plea because he had already signed the plea agreement. Given Funks legally unfounded advice, plaintiff did not protest. The trial court accepted plaintiffs plea. According to plaintiff, the court relied heavily upon the plea form, and whether plaintiff had signed and initialed the form. Plaintiff believed the court was referring to the  negotiated plea agreement  he had endorsed eight days before the hearing. However, when plaintiff received his case file, he learned the April 23, 1997, negotiated plea agreement he had signed was not filed with the court. Instead, he found a forged and fraudulent document, entitled  Advisement of Rights, Waiver and Plea Form,  dated May 1, 1997, which was deficient upon its very face. According to plaintiff, Bradley could not have obtained plaintiffs initialized and signed waivers that appeared on the May 1, 1997 document because plaintiff had met Bradley on only one occasion, April 23, 1997, and Bradley was not present in court on May 1, 1997. Plaintiff additionally alleged he was never informed of a family relationship between his stand-in counsel Jack Funk and Deputy District Attorney Jordan Funk who represented the People at the change of plea proceeding. Plaintiff alleged the failure of his stand-in counsel to inform him of his relationship with the trial prosecutor, and the forged and fraudulent plea form, substantially demonstrated not only a presumptive conflict of interest on the part of Jack Funk, but a conspiratorial scheme undertaken by Bradley, Jack Funk, and Jordan Funk.

The third cause of action alleged plaintiffs rights to take a direct appeal from his criminal conviction and sentence with the assistance of counsel, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, were violated under color of law. In support of this cause of action, plaintiff alleged Bradley, Jack Funk, and Jordan Funk, engaged in conspiratorial acts to deprive plaintiff of his right to a direct appeal of his conviction and sentence. Following entry of the judgment of conviction and sentence, Jack Funk, working together with Bradley and Deputy District Attorney Joshua Funk, told plaintiff he was legally precluded from pursuing any appeal or post-conviction remedies because plaintiff had forfeited all rights to pursue such remedies by entering his no contest plea. Plaintiff also alleges both Bradley and Jack Funk failed to file a notice of appeal on plaintiffs behalf, thereby failing to secure plaintiffs appellate rights and effectively furthering and secreting the conspirator[ial] scheme.

Plaintiff included in the first amended complaint a new section labeled, Timeliness of Complaint. In this section, plaintiff alleged he had been continually imprisoned on a criminal charge since June 28, 1996; and due to his incarceration he was unable to discover the factual predicates necessary to establish a complete and present cause of action until on or after December 30, 2004, when plaintiff was able, for the first time, to attain and review a partial copy of the California public defenders case file relating to his criminal case. The disclosure of the case file resulted from the intervention and a court order entered on November 1, 2004. Even though plaintiff was not aware of the exact dates of his discovery of the factual predicates involved (the acts complained of) within the various counts of his complaint, he alleges all factual predicates were discovered subsequent to his receipt of the partial case file on December 30, 2004, and his receipt of court files and trial transcripts after that date. Assuming an accrual date of December 30, 2004, plaintiff alleged his action was timely as against all defendants.

California defendants again demurred to the first amended complaint on various grounds including the causes of action were barred by the statute of limitations. Plaintiff opposed the demurrer. In a minute order filed on April 13, 2009, the court sustained the California defendants demurrer to the first amended complaint without leave to amend, and the entire action was dismissed without prejudice.[3] Plaintiffs appeal ensued.

DISCUSSION

I. Applicable Standard of Review

On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1445.)[4]    We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]   (Zelig v. County of Los Angeles(2002) 27 Cal.4th 1112, 1126.) If an action appears time barred on the face of the complaint, the plaintiff[] must anticipate the defense and plead facts to negate the bar. [Citation.] Even so, on an appeal following an order sustaining a demurrer, . . . an appellate court is required to construe the complaint liberally to determine whether, assuming the facts pleaded to be true, a cause of action has been stated. [Citation.] [Citations.] (Baltins v. James (1995) 36 Cal.App.4th 1193, 1197, disapproved on another ground in Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 761, fn. 9.) [W]hen [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

II. Statute of Limitations Bars Causes of Action Against All Defendants

Even though plaintiff has alleged federal Civil Rights Act causes of action, federal law directs us to apply our state statute of limitations for personal injury actions, and any closely related rules regarding the tolling or extension of the statute of limitations. (Wallace v. Kato (2007) 549 U.S. 384, 387; see Wilson v. Garcia (1985) 471 U.S. 261, 279-280, superseded on other grounds by statute as discussed in Jones v. R.R. Donnelley & Sons Co. (2004) 541 U.S. 369, 379-380.)

Plaintiffs first amended complaint alleges wrongful acts and omissions against all defendants occurring no later than 1997. The statute of limitations then in effect was one year for personal injury actions (Code Civ. Proc., former  340, subd. (3)). Additionally, the parties do not dispute plaintiff may be entitled to the benefit of the two-year tolling period for incarcerated prisoners as he has been incarcerated since June 1996. (Code Civ. Proc.,  352.1, subd. (a).[5]) Given the applicable one year statute of limitations, and a two-year extension for incarceration, plaintiff had at most three years from 1997 to 2000 to file his complaint alleging violations of the federal Civil Rights Act based on his extradition and criminal prosecution. However, he did not file his complaint until June 2, 2008. Because the maximum period to file a complaint expired in 2000, the entire action was properly dismissed as time-barred against all defendants.[6]

Plaintiff argues, however, that we should deem his lawsuit timely as against all defendants because his federal Civil Rights Act causes of action did not accrue for the purpose of starting the running of the statute of limitations until December 30, 2004, the date he received certain documents from his California public defender relating to his criminal case. We disagree.

Unlike the determination of the applicable statute of limitations and any tolling or extension provisions, the accrual date of a [section] 1983 cause of action is a question of federal law that is not resolved by reference to state law. . . . Aspects of [section] 1983 which are not governed by reference to state law are governed by federal rules conforming in general to common-law tort principles. [Citations.] Under those principles, it is the standard rule that [accrual occurs] when the plaintiff has a complete and present cause of action[,]  [(]Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal. [(1997)] 522 U.S. 192, 201[,] quoting Rawlings v. Ray [(1941)] 312 U.S. 96, 98. . . [)], that is, when the plaintiff can file suit and obtain relief, [citation]. (Wallace v. Kato, supra, 549 U.S. at p. 388.) Even if a plaintiff is incorrectly advised by legal counsel that he has no case, he must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, the consequence of that advice does not delay accrual of the claim until plaintiff is otherwise informed of his rights or he determines to bring suit. (United States v. Kubrick (1979) 444 U.S. 111, 123-124; see Gonzalez v. United States (1st Cir. 2002) 284 F.3d 281, 291, fn. 10.)

In opposition to the demurrers, plaintiff contended he could not allege the three causes of action in the complaint until he received the following documents on December 30, 2004: Concord Police Department offense report regarding the California criminal offenses against him (Appendix E); IAD forms (Appendix G); Advisement of Rights, Waiver and Guilty/No Contest Plea Form, filed May 1, 1997 (Appendix H); and Abstract of Judgment Prison Commitment, filed May 1, 1997 (Appendix I). However, plaintiff does notand cannotallege that without these documents he was unaware of sufficient facts to have framed a federal Civil Rights Act complaint in 1997 based on his extradition and criminal prosecution. Plaintiffs allegations regarding his 1997 discussions with Nevada prison warden LeGrand and his California deputy public defenders, as detailed in the first amended complaint, form the factual predicates for the three causes of action in that complaint. Although, at best, the documents may partially corroborate plaintiffs allegations, they were not needed to frame a complaint. Consequently, plaintiffs inability to secure the documents before December 30, 2004 did not postpone the accrual of his causes of action. (See, e.g., Paige v. Police Dept. of Schenectady (2d Cir. 2001) 264 F.3d 197, 200 [equitable tolling of statute of limitations not applied where plaintiff, having knowledge of the circumstances of the assault upon her, could have alleged a federal civil rights claim based on the assault, even if the police had concealed the investigation file].)

We also reject plaintiffs argument that the imposition of [the] statute of limitations at this juncture would be premature and contrary to the interests of justice because defendants are actively secreting additional material evidence that could conceivably lead to the discovery of additional constitutional violations and additional defendants. As long as a plaintiff has notice of wrongful conduct, a cause of action accrues even though he does not have knowledge of all the details or all of the persons involved. (Compton v. Ide (9th Cir. 1984) 732 F.2d 1429, 1433 (Compton), abrogated on another ground in Agency Holding Corp. v. Malley-Duff & Associates, Inc. (1987) 483 U.S. 143, 148-149, 167.)

Finally, we see no merit to plaintiffs argument that no statute of limitations should apply because of the continuing collateral consequences that flow from his conviction in California, and defendants continuing conspirator[ial] scheme.  [A] cause of action accrues even though the full extent of the injury is not then known or predictable. [Citations.] Were it otherwise, the statute would begin to run only after a plaintiff became satisfied that he had been harmed enough, placing the supposed statute of repose in the sole hands of the party seeking relief. (Wallace v. Kato, supra, 549 U.S. at p. 391.) Plaintiffs reliance on allegations of defendants continuing conspiratorial scheme is also misplaced. It is the wrongful act, not the conspiracy, which is actionable, whether that act is labeled a tort or a violation of [Section] 1983. [Citation.] (Singleton v. City of New York (2d Cir. 1980) 632 F.2d 185, 192 (Singleton); see Compton, supra, 732 F.2d at pp. 1432-1433.) To permit [a plaintiff] to wait and toll the running of the statute [of limitations] simply by asserting that a series of separate wrongs were committed pursuant to a conspiracy would be to enable him to defeat the purpose of the time-bar, which is to preclude the resuscitation of stale claims. (Singleton, supra, 632 F.2d at p. 192.) Thus, the fact that plaintiff may not have discovered the full breadth of the alleged conspiracy until December 30, 2004 does not postpone the accrual of the causes of action. (Compton, supra, 732 F.2d at p. 1433.)

We conclude our discussion by noting we need not determine when the statute of limitations began to accrue on each of defendants alleged wrongful acts. Plaintiffs allegations in his first amended complaint demonstrate that by 1997 he had sufficient information to assert the three federal Civil Rights Act causes of actions against all defendants. Applying the 1997 one-year statute of limitation (Code Civ. Proc., former  340, subd. (3)), and even assuming the applicability of a two-year extension for plaintiffs incarceration (Code Civ. Proc.,  352.1, subd. (a)), the statute of limitations expired in 2000. The lawsuit, first filed on June 2, 2008, was time-barred. Because plaintiff has not shown he could allege facts that would cure the defective [first amended] complaint, the trial court properly exercised its discretion in sustaining the demurrers without leave to amend. (Aguilera v. Heiman, supra, 174 Cal.App.4th at p. 604, fn. omitted.)[7]

DISPOSITION

The order filed April 13, 2009, is affirmed.

_________________________

McGuiness, P.J.

We concur:

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Pollak, J.

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Jenkins, J.

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[1] We deem plaintiffs notice of appeal from an order entered on April 9, 2009, as a notice of appeal from the minute order of dismissal dated April 9, 2009, and filed on April 13, 2009. (Cal. Rules of Court, rules 8.100(a)(2).) The April 13, 2009 order reads, Entire Action Dismissed Without Prejudice. Despite the words, without prejudice,  an order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment. [Citations.] (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699; see Code Civ. Proc.,  581d.) Thus, we treat the April 13, 2009 order as a final judgment from which an appeal lies.

[2] Although plaintiff again named Nevada defendants in the first amended complaint, they did not file a demurrer to the first amended complaint on the ground their earlier demurrer to the complaint had been sustained without leave to amend. However, the court ultimately dismissed the entire action against all defendants after sustaining California defendants demurrer to the first amended complaint without leave to amend.

[3] In a later written order filed on May 14, 2009, the court ruled the California defendants demurrer was sustained without leave to amend on the grounds set forth by Moving Defendants.

[4] We deny plaintiffs request to remand the matter based on certain procedural errors allegedly made by the trial court. As an appellate court, we review the order dismissing the action rather than the reasons for the order. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.) We may affirm the order if any of the grounds stated in the demurrer is well taken, even if not relied on by the trial court. (Ibid.; see Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.)

[5] Code of Civil Procedure section 352.1, subdivision (a), reads: If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335), is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.

[6] On January 1, 2003, new Code of Civil Procedure section 335.1 took effect and extended the statute of limitations for personal injury suits to two years. The new two-year statute of limitations for personal injuries, however, was not retroactive, except for victims of the September 11, 2001 terrorist actions. [Citations.] (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 596; see Stats. 2002, ch. 448,  1.) Thus, when the new Code of Civil Procedure section 335.1 two-year statute of limitations took effect on January 1, 2003, it did not operate retroactively to revive plaintiffs causes of action that were time-barred in 2000. (Aguilera v. Heiman, supra, 174 Cal.App.4th at p. 597.)

[7] In light of our determination, we do not address plaintiffs other contentions.