Rocco v. Serna CA5
Appellant, Frank Rocco, filed an action against respondent, correctional officer Xavier Serna, for negligence in failing to protect appellant from being attacked by his cellmate. Respondent filed a demurrer to the complaint based on appellant’s failure to timely submit a claim under the Government Claims Act (Gov. Code, § 810 et seq. (the Act)). The court sustained the demurrer and dismissed the complaint without leave to amend.
Appellant challenges the trial court’s ruling on appeal. He concedes that he did not timely file a claim under the Act. However, he alleges for the first time on appeal that he was excused from the timely filing of a claim based on his incapacitation resulting from the injuries suffered in the attack. Upon review, we affirm.
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