Filed 7/24/17 Smith v. Dept. of Corrections CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Placer)
----




LAWRENCE E. SMITH,

Plaintiff and Appellant,

v.

DEPARTMENT OF CORRECTIONS AND REHABILITATION et al.,

Defendants and Respondents.
C077795

(Super. Ct. No. SCV0033966)




The trial court sustained the demurrer of defendants California Department of Corrections and Rehabilitation (CDCR) and Anthony Kaestner to a complaint filed by plaintiff Lawrence Smith on December 10, 2013, on the grounds the action was not commenced within the statutory period and the CDCR has immunity under Government Code section 845.8, subdivision (a). The complaint alleged causes of action for intentional tort and negligence premised on allegations that defendants paroled one Joseph Kidd, and issued Kidd a parole identification card in Smith’s name. Defendants issued the parole identification card to Kidd in 2007, and Smith learned that Kidd had stolen his identity in early 2011.
Smith argues the statute of limitations does not bar this action because the damages he alleged in this action did not occur until August 2013. He relies on the continuous accrual doctrine to assert that each damage caused by the wrongful issuance of a parole identification card to Kidd gives rise to a new cause of action. The continuous accrual doctrine does not apply here because that doctrine requires that all the elements of a claim arise on a recurring basis, and Smith complains of only one wrongful act against the defendants (the wrongful issuance of the parole card), which occurred outside the limitations period. He further argues CDCR does not have immunity because this case does not involve determining whether to parole Kidd, the terms under which Kidd was released, or a decision to revoke Kidd’s parole pursuant to Government Code section 845.8.
We conclude this action is time-barred because Smith was aware of and suffered appreciable actual damages from his identity theft outside the two-year limitations period, even though he suffered additional harm more recently. Because we conclude the action is time-barred, we need not resolve the immunity question.
FACTUAL AND PROCEDURAL BACKGROUND
On June 10, 2011, Smith filed a complaint in a prior case against CDCR and Anthony “Ketner,” in which he alleged he first learned that Kidd had stolen his identity in “early 2011.” Smith’s initial complaint, filed December 10, 2013, was a Judicial Council form complaint asserting causes of action for “Intentional Tort” and negligence. Both causes of action were based on the following allegations. In 1984 Kidd stole and began to use Smith’s identity. Kidd used Smith’s name and Social Security number, obtained and used credit cards in Smith’s name, received income tax refunds due Smith, received Medicare benefits charged to Smith, and used Smith’s identity to get married.
In 1993, Kidd was arrested in California and charged with various felonies. Kidd was fingerprinted and entered into various law enforcement databases as Smith, but he was ultimately incarcerated under his own name. In 2005, Kidd was released on parole under the supervision of parole agent Kaestner. In 2007, Kaestner issued Kidd a parole identification card in Smith’s name. Kidd violated his parole by leaving California, and a warrant was issued for his arrest for felony parole violation and welfare fraud. Smith was arrested in Florida for Kidd’s felony parole violation and welfare fraud and was held for eight days before he could prove that he was not the parole violator named in the arrest warrant.
In early 2011, Smith first learned that it was Kidd who had stolen his identity. In August 2013, Smith tried to renew his Florida driver’s license, and learned his license had been suspended because of a driving under the influence (DUI) conviction in New Mexico. Kidd, using a California license issued in Smith’s name, had been cited for a DUI in December 2012 in New Mexico, and tried and convicted in May 2013. Also in August 2013, the state of Tennessee informed Smith it had outstanding arrest warrants in his name for crimes committed by Kidd.
The initial complaint alleged that all Smith’s injuries were a result of “Kaestner knowingly giving a false identification to Kidd in the name of Larry Smith.” It alleged that “[e]ach and every incident causes a new injury to Mr. Smith, as a result of the conduct of Mr. Kaestner, the most recent being May, 2013.”
In April 2014, Smith filed a first amended complaint in this action. He again alleged causes of action for intentional tort and negligence. The facts alleged were substantially the same, except that the first amended complaint omitted the allegations that Smith was mistakenly jailed for Kidd’s parole violation, and Smith first learned that Kidd stole his identity in early 2011. We nevertheless read these facts in to the amended complaint. (Vallejo Development Co v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946 [where amended complaint omits facts alleged in a prior complaint without explanation, we will read the omitted facts into the amended complaint].)
Defendants demurred to the first amended complaint. In sustaining the demurrer, the trial court ruled that both causes of action are governed by a two-year statute of limitations. Quoting Howard Jarvis Taxpayers Association v. City of La Habra (2001) 25 Cal.4th 809, 815 (Howard Jarvis), the court ruled: “ ‘ “Generally, a cause of action accrues and the statute of limitation begins to run when a suit may be maintained. [Citations.] ‘Ordinarily this is when the wrongful act is done and the obligation or the liability arises, but it does not “accrue until the party owning it is entitled to begin and prosecute an action thereon.” ’ [Citation.] In other words, ‘[a] cause of action accrues “upon the occurrence of the last element essential to the cause of action.” ’ [Citations.]” [Citation.]’ ”
The trial court noted that the first amended complaint “omits previous allegations that identified plaintiff as learning Kidd stole his identity in 2011. This is not a tangential fact, but serves as basis for identifying when plaintiff allegedly knew of the perpetual identity theft he was subject to over the years and began the clock for the statute of limitations. ‘The courts . . . will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed.’ (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) ‘Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless.’ (Ibid.) These are the circumstances in this instance, the prior complaint includes inconsistent allegations and the court cannot turn a blind eye to this fact.”
The trial court also ruled that the complaint failed because the allegations did not plead sufficient facts to establish that the immunity of Government Code section 845.8, subdivision was not applicable.
DISCUSSION
The parties agree that the relevant statute of limitations is two years. (Code Civ. Proc., § 335.1.) Plaintiff claims his complaint is nevertheless timely because a new tort accrued in 2013 when Smith attempted to renew his driver’s license and discovered it had been suspended because of Kidd’s DUI conviction in May 2013. He argues for the first time on appeal that the intentional tort alleged in his form complaint was the tort of conversion, and that since damages are an element of conversion, the statute of limitations did not begin to run until his damages occurred.
Preliminarily, Smith has no cause of action for conversion against the defendants named in his complaint. “The tort of ‘conversion’ has been defined as follows: ‘Conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.’ [Citation.]” (Hartford Financial Corp. v. Burns (1979) 96 Cal.App.3d 591, 598.) In this case, neither defendant wrongfully exerted dominion over any personal property of Smith.
“Traditionally, a claim accrues ‘ “ ‘when [it] is complete with all of its elements’—those elements being wrongdoing [or breach], harm, and causation.” ’ [Citations.]” (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191.) The statute of limitations in a tort action commences upon the occurrence of the last element essential to the cause of action. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582.) Where the last element to occur is damages, the cause of action accrues and the statute of limitation begins to run on the occurrence of “ ‘appreciable and actual harm, however uncertain in amount,’ that consists of more than nominal damages. [Citation.] ‘[O]nce plaintiff has suffered actual and appreciable harm, neither the speculative nor uncertain character of damages nor the difficulty of proof will toll the period of limitation.’ [Citation.]” (Id. at pp. 582-583.)
An exception to the accrual rule stated above is the delayed discovery rule. (Stella v. Asset Management Consultants, Inc., supra, 8 Cal.App.5th at p. 191.) The delayed discovery rule postpones the running of the statute of limitations until the plaintiff suspects or should suspect that someone has done something wrong to him. (Id. at p. 192.) “ ‘A plaintiff need not be aware of the specific “facts” necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.’ [Citation.]” (Ibid.)
In the present case, Smith’s cause of action against defendants for issuing Kidd a parole identification card in Smith’s name accrued at the unspecified date when Smith was arrested and held in jail for Kidd’s crime of violating parole. At that time, there had been wrongdoing, harm, and causation. Although the wrongdoing occurred in 2007 when the card was issued, no harm arguably occurred until Smith was arrested. The complaint does not specify a date for Smith’s arrest and incarceration, but we know that it was prior to early 2011 because Smith filed a complaint on June 10, 2011, against defendants, which alleged that “[i]n early 2011, through payment records sent to Kidd’s estranged wife and provided to Smith, he first learned that it was Joseph Kidd who had stolen his Identity.” Thus Smith’s discovery of a cause of action, the only fact that delays accrual of the cause of action, occurred in early 2011, and certainly no later than June 10, 2011, when Smith filed a complaint alleging the same wrongdoing alleged here.
Smith offers no allegation sufficient to invoke the continuous accrual doctrine, an exception to the statute of limitations. “[U]nder the theory of continuous accrual, a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a suit for relief may be partially time-barred as to older events but timely as to those within the applicable limitations period.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192, fn. omitted.) However, the continuous accrual doctrine does not apply unless all elements of a claim, i.e., wrongdoing, harm, and causation, arise on a recurring basis, such that a cause of action accrues each time a wrongful act occurs. (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1341.) “Because each new breach of such an obligation provides all the elements of a claim—wrongdoing, harm, and causation [citation]—each may be treated as an independently actionable wrong with its own time limit for recovery.” (Aryeh, at p. 1199.)
For example, Howard Jarvis, supra, 25 Cal.4th 809, held that collection of taxes under an unconstitutional tax ordinance triggered a new limitations period each time the illegal tax was collected. Installment contracts and leases with periodic rental payments are other examples of situations to which the continuous accrual doctrine might apply. (Gilkyson v. Disney Enterprises, Inc., supra, 244 Cal.App.4th at p. 1341.) Smith alleges a new instance of harm that occurred in 2013 when he could not renew his driver’s license, but he alleges only one wrongful act committed by defendants in 2007. Without a new wrongful act within the two-year limitations period, no new cause of action accrued.
All of the elements of Smith’s claims having occurred prior to early 2011, and his discovery having occurred at that time as well, his complaint filed on December 10, 2013, is patently barred by the two-year statute of limitations. Because we determine the complaint is barred by the statute of limitations, we need not address whether defendants are immune from liability.
DISPOSITION
The judgment of dismissal is affirmed. Defendants shall recover their costs on appeal.



/s/
Blease, Acting P. J.


We concur:



/s/
Robie, J.



/s/
Butz, J.