Curl v. Roe
Filed 7/31/06 Curl v. Roe CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 EIGHT
| WILLIAM CURL, Plaintiff and Appellant, v. ERNEST ROE, Defendant and Respondent. | B184318 (Los Angeles County Super. Ct. No. BC256675) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Frank Y. Jackson, Judge. Affirmed.
William Curl, in pro. per., for Plaintiff and Appellant.
Bill Lockyer, Attorney General, James M. Humes, Chief Assistant Attorney General, James M. Schiavenza, Senior Assistant Attorney General, Joel A. Davis and Albert Y. Muratsuchi, Deputy Attorneys General, for Defendant and Respondent.
* * * * * * * * * *
Appellant William Curl, representing himself, appeals from the order of dismissal following the sustaining of respondent's demurrer to his operative third amended complaint. The trial court's ruling was based on appellant's failure to petition for relief from the claim filing requirement within the mandatory six-month period set forth in Government Code section 946.6(b).[1]
This is the second time Mr. Curl has been before us. In an unpublished decision (Curl v. Roe (March 25, 2004, B160597)), we reversed the order of dismissal following the sustaining of the demurrer to his original complaint. We held that the trial court erred in not allowing appellant to amend his complaint to allege he submitted his claim and application for leave to file a late claim to prison officials on or before the one-year anniversary of his date of injury.[2] Concluding that no petition pursuant to section 946.6 was timely made in the superior court in the case at bench and no excuse for noncompliance was pleaded, we affirm the judgment.
PROCEDURAL HISTORY
1. Third Amended Complaint
The operative third amended complaint was filed on February 14, 2005, after remand from this court and after the sustaining of demurrers to a first amended complaint and second amended complaint, both with leave to amend.[3] Appellant, a state prison inmate serving life without the possibility of parole, alleged his finger was partially amputated on December 11, 2000, by sharp extensions protruding from a prison chain-link fence. Moreover, he alleged he handed a claim, as well as a request to file a late claim, to prison officials exactly one year after the date of injury, on December 11, 2001. Finally, he alleged he pleaded and proved compliance with the claim presentation requirement and facts to justify noncompliance, in that after the Board denied him leave to file a late claim, the court sustained the demurrer without leave to amend, and he had no other recourse but to petition for a writ of mandamus, which he alleged was filed in the appellate court.
The Board to which appellant handed the claim and request to file a late claim concluded his claim â€
