Judge Olivia Rosales, Case 22STCV11722 2022-09-20 Tentative Ruling

DEFENDANTS CITY OF SOUTH GATE, SAM HOUX, DONNY SANCHEZ, ANTHONY REYES’ DEMURRER TO PLAINTIFF DANIEL CANIZALES’ COMPLAINT IS OVERRULED.

This is a state tort action arising out of a violation of the civil rights of Plaintiff Daniel Canizales (“Plaintiff”) when he was shot on January 29, 2019, by police officers employed by the City of South Gate Police Department.

On April 6, 2022, Plaintiff filed his complaint against City of South Gate, Sam Houx, Donny Sanchez, Anthony Reyes (collectively “Defendants”) and Doe 1 to 10 asserting three causes of action: (1) battery; (2) negligence; and (3) violation of Bane Act (Civil Code section 52.1).

On May 27, 2022, Defendants filed a demurrer to the complaint, arguing that it is barred by the statute of limitations.

A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.¿When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) A demurrer may be sustained “only¿if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd.¿(2009) 45 Cal.4th 992, 998.)

Defendants request the Court to take judicial notice of court filings (“RJN”). Specifically, Defendants seek judicial notice of: (1) documents related to the criminal prosecution against Plaintiff (Exhibit A); (2) the first federal civil complaint by Plaintiff (Exhibit B); (3) the stipulation dismissing that federal action (Exhibit C); (4) the second federal civil complaint by Plaintiff (Exhibit D); (5) the motion to dismiss briefing in the second federal civil action (Exhibit E); and (6) the judgment of dismissal in the second federal civil action (Exhibit F).

Plaintiff opposes, arguing that the Court should not take judicial notice of the facts contained in the documents. Plaintiff does not identify any specific facts.

The Court grants the RJN. The RJN are all court filings, which are the proper subject of judicial notice. (Evid. Code, § 452, subd. (d).) The court is not mandated to accept the truth of its their contents or the parties’ interpretation of those contents. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Defendants make three arguments: (1) Plaintiff’s lawsuit is untimely pursuant to the parties’ tolling agreement (Demurrer 3:18-21), which is a valid agreement because it is supported by adequate consideration (id. 4:22-7:22) and is unambiguous (id. 8:1-9:18); (2) even assuming the tolling agreement is not controlling, Plaintiff’s action was not timely filed within the applicable statute of limitations period (id. 13:5-14:6); and (3) Plaintiff is not entitled to equitable tolling (id. 9:19-13:4).

The Court summarizes the key timeline of events in the following table, which is generally undisputed except for as noted in the footnote:

The general timeline, as discussed above, is undisputed. Instead, the parties dispute how the Court should view the tolling agreement.

The June 24, 2019, stipulation is an agreement to: (1) dismiss the first federal action without prejudice, and (2) toll any applicable statute of limitations. (RJN Ex. C.) The Court sets forth the relevant language in full:

4. The parties stipulate and agree to the “tolling” of any State of California claims (causes of action) which were previously the subject of a timely filed Claim for Damages; and the parties agrees to the “tolling” of any state or federal Statute of Limitations in any re-filed lawsuit, whether filed in state court or federal court by Plaintiff subject to the limitations below.

5. The parties agree that any State of California or federal Statute of Limitations shall be “tolled” only during the period of time that the criminal charges [relating to the incident that forms the basis for the instant civil lawsuit] are pending before a superior court against Plaintiff DANIEL CANIZALES, specifically Los Angeles County Superior Court Case No. VA150873.

7. Upon completion of the criminal proceedings in Los Angeles County Superior Court Case No. VA150873, such as of the date of entry of any of the following, whichever occurs first: a Plea of Not Guilty, or Nolo Contendere, or Guilty, or a jury verdict or dismissal, Plaintiff DANIEL CANIZALES shall have one hundred twenty (120) calendar days to file a civil lawsuit either in State Court or Federal Court.

Defendants argue that Paragraph 7 of the tolling agreement serves as shortening of the statute of limitations period. Defendants are correct that parties may alter the statutory limitations period for claims between them. (Hensel Phelps Construction v. Superior Court (2020) 44 Cal.App.5th 595, 614.) The ultimate consideration is whether the agreement is reasonable. (See Zamora v. Lehman (2013) 214 Cal.App.4th 193, 206-208 [clauses reducing applicable statute of limitations period are valid if reasonable].) The critical issue is whether a modification provides sufficient time for a party to pursue a judicial remedy. Plaintiff does not dispute that 120 days is insufficient time, nor can he reasonably do so. (See Demurrer 4:14-21 [persuasively explaining the time period is sufficient, especially when considering Plaintiff already had filed a lawsuit based on the underlying incident].)

Instead, Plaintiff argues that the tolling agreement is not valid because it is not supported by adequate consideration and is ambiguous.

The Court first addresses the issue of consideration, which is an essential element of a contract. (Civ. Code, § 1505.) Consideration is “[a]ny benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor.” (Id., § 1605.) “[T]here are two requirements in order to find consideration. The promisee must confer (or agree to confer) a benefit or must suffer (or agree to suffer) prejudice.” (Steiner v. Thexton (2010) 48 Cal.4th 411, 420-421.) Additionally, this exchange must actually be bargained for: “the benefit or prejudice must have induced the promisor’s promise.” (Id. at p. 421.)

First, Defendants argue that the stipulation conferred a benefit on Plaintiff because he no longer had to litigate the civil matter, which could have required him to waive his Fifth Amendment right against self-incrimination at the time of his deposition in the civil action. (Demurrer 5:13-6:21.) The Court disagrees.

Defendants note that the federal judge handling the federal civil action indicated to the parties that he would not entertain a stay of the action even though a criminal prosecution was expected to be filed against Plaintiff, and therefore, the parties agreed it was in both of their interests to dismiss the action and enter into a tolling agreement. (See Demurrer 5:14-6:3.) But this argument is outside of the four corners of Plaintiff’s complaint and the documents judicially noticed. Further, Plaintiff disputes Plaintiff’s alleged motivation for agreeing to the dismissal. Resolution of that factual dispute is an evidentiary issue improper at the demurrer stage. Did Plaintiff actually agree to the tolling agreement because of his worry how to proceed with a civil deposition? Because if Plaintiff did not do so for that reason, then the benefit gained from the dismissal was not actually bargained for and did not actually induce the promise.

The Court does not need to examine whether a dismissal obtained for that reason actually confers a benefit, i.e., whether the consideration was adequate. Nevertheless, the Court notes that there is a high burden to challenge the adequacy of consideration. (Daneshmand v. City of San Juan Capistrano (2021) 60 Cal.App.5th 923, 934 [“[T]he amount of consideration necessary in any case is merely that of a ‘peppercorn.’ [Citation.]”].) To the extent that this specific benefit was actually bargained for, the Court would have deemed the consideration adequate based on the briefing before it. Plaintiff cannot reasonably argue that there are no facts to support the possibility of a civil deposition whereby he would have had to invoke his Fifth Amendment rights. Defendants would have undisputedly deposed Plaintiff and asked him questions directly about the incident. It is theoretically possible that Plaintiff would have answered them without invoking his Fifth Amendment rights, but that possibility is so unlikely that the Court finds it not a reasonable outcome especially when considering the nature of the underlying incident, which did eventually lead to a felony charge pursuant to Penal Code section 422. In any event, by postponing a deposition until a future time, which presumably would occur after the criminal prosecution commenced or finished, Plaintiff would have benefited by narrowing the preparation for a deposition with his counsel, who could spend less time (or no time to the extent that the criminal prosecution had completed) advising whether Plaintiff should not answer certain questions lest it might subject himself to criminal prosecution. That consideration is adequate consideration.

Second, Defendants argue that the stipulation conferred a benefit on Plaintiff because it tolled the applicable state or federal statute of limitations. (Demurrer 6:22-7:22.) The Court disagrees.

Defendants argue that Plaintiff cannot enjoy the tolling protections from Government Code section 945.3, which tolls the limitations period within which to bring a civil rights action against a peace officer during the time criminal charges arising from the same set of facts as the lawsuit are “pending” against the potential plaintiff. Government Code section 945.3 states in relevant part:

No person charged by indictment, information, 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, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, 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.

(Gov. Code, § 945.3, emphasis added; see also Lockett v. County of Los Angeles (9th Cir. 2020) 977 F.3d 737, 740 (Lockett) [tolling during the pendency of a criminal case applies to the statute of limitations for federal 42 U.S.C. § 1983 claims].)

Here, the incident occurred on January 29, 2019. The two-year statute of limitations for Plaintiff’s 42 United States Code section 1983 claims therefore started on that incident date. (Lockett, supra, 977 F.3d at p. 740.) On February 19, 2019, Plaintiff filed a claim for money damages pursuant to the Government Tort Claims Act. That claim was rejected on March 29, 2010, which started the clock on the six-month statute of limitations for Plaintiff’s state law claims. (Gov. Code, § 945.6.) On April 2, 2019, Plaintiff filed a federal action, which tolled[2] the statute of limitations. (See Straley v. Gamble (2013) 217 Cal.App.4th 533, 538 [“And, the statute of limitations in civil actions stops running the moment the complaint is filed, not when it is served.”].) Accordingly, Plaintiff still had 178 days remaining on the applicable state law statute of limitations and over a year and a half left on the federal statute of limitations. On June 6, 2019, criminal charges were brought against Plaintiff arising out of the incident on January 29, 2019.

There is no dispute that Plaintiff’s civil action is “based upon the conduct of the peace officer relating to the offense for which the accused [was] charged.” Based upon a plain reading of Government Code section 945.3, the limitations period for Plaintiff’s state and federal claims were automatically tolled. Defendants were legally bound to allow for tolling of the statute of limitations. Therefore, there was no consideration under the tolling agreement because Plaintiff’s claims were already being tolled as a matter of law. (San Luis Obispo Local Agency Formation Commission v. City of Pismo Beach (2021) 61 Cal.App.5th 595, 600 [“A promise to do something the promisor is legally bound to do is not consideration. [Citation.]”].)

In making this ruling, the Court disagrees with Defendants’ argument that Government Code section 945.3 only prohibits the commencement of a civil action. Defendants primarily rely on Damjanovic v. Ambrose (1992) 3 Cal.App.4th 503 (Damjanovic). Defendants argue that the Court of Appeal in Damjanovic held that Government Code section 945.3 prohibits the commencement of a civil action and is not applicable to pending lawsuits, as stated in Damjanovic citing a different case: “[T]here is neither statutory nor case authority for the proposition that once an action is commenced, the time within which the action must be served and prosecuted is similarly tolled.” (Damjanovic, supra, 3 Cal.App.4th at p. 509.) However, Defendants’ reliance on Damjanovic is not persuasive because their argument depends on extending the holding too far to hold that Government Code section 945.3 does not apply to any civil action once that action already was filed. Damjanovic was considering both Government Code section 945.3 and Code of Civil Procedure section 583.210 and the holding Defendants rely on was stated in part to distinguish a different statute involving actions after they were already commenced. Finally, accepting Defendants’ interpretation of Damjanovic would undermine the purpose of Government Code section 945.3, which is to prohibit criminal defendants from using civil lawsuits to gain leverage in criminal plea bargaining. (Id. at p. 508.) If the Court were to adopt Defendants’ argument, then litigants would have to bring actions concurrently with their criminal prosecutions in order to comply with the statute of limitations, defeating the entire purpose of Government Code section 945.3. Defendants’ interpretation is unreasonable.

Because the Court finds that there is a lack of consideration for the tolling agreement, the Court does not find that the tolling agreement is a valid contract. Therefore, to the extent that Plaintiff timely filed his case, which the Court discusses further below, the Court overrules the demurrer.

Plaintiff also argues that the tolling agreement is not valid because it is ambiguous.

As explained earlier, Plaintiff does not dispute that the parties can enter into a contract to shorten statute of limitations. However, Plaintiff argues that a contract of this nature must satisfy certain requirements, which includes clear and explicit language, and this specific contract does not contain the required language. Plaintiff’s recitation of the law on this issue is correct and Defendants do not otherwise dispute it. (Western Filter Corp. v. Argan, Inc. (9th Cir. 2008) 540 F.3d 947, 953 (Western Filter).)

The ultimate issue is whether the tolling agreement is ambiguous regarding the agreement to modify and shorten the applicable statute of limitations.

The Court must read the tolling agreement in context of all the terms. (Civ. Code, §§ 1638 [“The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.”], 1641 [“The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.”], 1643 [“ A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.”].)

Although the principle of contra proferentem does not apply (Civ. Code, § 1654), a comparable principle does apply whereby the stipulation to limit a statute of limitation is strictly construed against the party seeking to invoke the provision. (Western Filter, supra, 540 F.3d at p. 953; but see Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1029 [no California court has cited this principle since 1969].). The Court finds it appropriate to apply this principle, even though not recently applied by any published California case, because of the policy preference to favor the statute of limitations periods as enacted by the Legislature.

Here, the Court again sets forth the relevant language of the tolling agreement:

Paragraph 4 states that the agreement is “subject to the limitations below.” Plaintiff argues that this phrase does not specify what limitations are being modified and shortened in Paragraph 7. This argument is not persuasive because it ignores the context and entirety of the agreement including Paragraphs 5 and 7 that specify the limitations relate to a pending criminal prosecution and what constitutes a completion of that prosecution. The principle as identified in Western Filter does not otherwise affect this analysis. A strict construction of the tolling agreement still results in Defendants’ favored interpretation because of a lack of ambiguity.

Accordingly, the Court finds that the tolling agreement does not fail because of ambiguity.

Plaintiff still must show that the action is timely even if the tolling agreement does not apply, which the Court finds it does not because of a lack of consideration. The parties dispute whether the action is still timely.

The incident occurred on January 29, 2019. On February 19, 2019, Plaintiff filed a claim for money damages pursuant to the Government Tort Claims Act. That claim was rejected on March 29, 2019, which started the clock on the 6-month statute of limitations for Plaintiff’s state law claims, leaving Plaintiff until September 29, 2019, to file his complaint. (Gov. Code, § 945.6.) On April 2, 2019, Plaintiff filed a federal action. The parties dispute whether this filing has any significant effect to the timeliness issue.

On one hand, Plaintiff argues that the April 2, 2019 filing tolled the statute of limitations. On the other hand, Defendants argue that it did not. The Court agrees with Plaintiff.

As a preliminary matter, the Court notes that Defendants did not adequately address this issue in Reply, merely arguing that the timeliness issue depends on the tolling agreement. (See Reply 5:17-25.) The Court could treat Defendants’ failure to rebut Plaintiff’s lengthy argument in his Opposition (Opposition 9:21-12:18) as a concession on the merits. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Defendants’ reliance on their cited caselaw is unavailing. Defendants cite Wood v. Elling Corp. (1977) 20 Cal.3d 353 (Wood) and Thomas v. Gilliland (2002) 95 Cal.App.4th 427 (Thomas) in support of their demurrer. These cases involve different situations in which plaintiffs attempted to use voluntary dismissals to circumvent a statute of limitations issue. Wood involved Code of Civil Procedure section 581a, which contains distinct language whereby the Supreme Court reasoned that the unique nature of the statute meant that “the applicability of the pertinent statute of limitations is restored as if no action had been brought.” (Wood, supra, 20 Cal.3d at p. 359.) In Thomas, the Court of Appeal largely relied on Wood’s reasoning and noted that the plaintiff had dismissed the action in bad faith. (Thomas, supra, 95 Cal.App.4th at pp. 432-435.) The facts are not similar here, because Plaintiff did not dismiss the 2019 federal action trying to defeat a statute of limitations defense, instead, he dismissed it to comply with Government Code section 954.3.

Additionally, Plaintiff’s filing of the 2019 federal action granted it a special tolling period pursuant to 28 United States Code section 1367, subdivision (d), which stops the clock of state court statute of limitations and holds the statute of limitations in abeyance during the pendency of the federal suit. (Artis v. District of Columbia (2018) 138 St. Ct. 594, 597-598.)

Therefore, the statute of limitations calculations show that this action is timely:

1. Plaintiff had 178 days after the dismissal of the 2019 federal action on July 6, 2021.

2. The filing of the 2021 federal action on November 4, 2021, stopped the running of the statute of limitations at 57 days.

3. Plaintiff had 57 days plus 30 extra days from 28 United States Code section 1367, subdivision (d) after the dismissal of the 2019 federal action on March 28, 2022.

4. Plaintiff filed this action on April 6, 2022, only 9 days after the March 28, 2022, dismissal and with several months to spare.

Plaintiff timely commenced this action assuming the tolling agreement is invalid. Accordingly, the Court overrules the demurrer.

Because the Court finds that the tolling agreement is not valid and Plaintiff’s action is timely, the Court does not need to examine whether the action is alternatively timely on the basis of equitable tolling.

[1] Defendants identify in their briefing the date as February 9, not February 19. However, Plaintiff alleges that this date is February 19. (Complaint ¶ 23.)

[2] The Court finds in Plaintiff’s favor on this issue as further discussed below.

Date	Event
January 29, 2019	Plaintiff was shot, i.e., the incident occurred
February 19, 2019[1]	Plaintiff filed a claim for money damages pursuant to the Government Tort Claims Act
April 2, 2019	Plaintiff filed federal civil suit in the United States District Court for the Central District of California bearing Case Number 2:19-cv-02472-PA-MAA
June 6, 2019	Criminal case commences against Plaintiff in Los Angeles County Superior Court Case No. VA150873
June 24, 2019	The parties file a joint stipulation to dismiss and stipulation of tolling agreement for 2:19-cv-02472-PA-MAA action
February 4, 2020	Plaintiff’s criminal case re-filed with additional violation of Penal Code section 69
July 6, 2021	Plaintiff pleaded guilty and was convicted of violation of Penal Code section 69 with other charges dismissed in Los Angeles County Superior Court Case No. VA150873
November 4, 2021	Plaintiff files federal civil suit in the United States District Court for the Central District of California bearing Case Number 2:21-cv-08729-PA-MAA
March 25, 2022	The federal court dismisses the 2:21-cv-08729-PA-MAA action
April 6, 2022	Plaintiff filed this state court action under Los Angeles County Superior Court Case No. 22STCV11722