Filed 1/21/21 Law v. City of L.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
IVAN LAW, B302610
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 19STCV17920)
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Ivan Law, in pro. per., for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Assistant City Attorney, Scott Marcus and Blithe S. Bock
Assistant City Attorneys, for Defendant and Respondent.
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Ivan Law sued the City of Los Angeles (hereafter the City)
for various torts, accusing Los Angeles Police Department officers
of negligently handling the criminal investigation against him
and then falsely arresting him. The trial court sustained the
City’s demurrer without leave to amend and denied Law’s motion
to disqualify the trial judge. Law appeals the judgment after
dismissal and the denial of his motion to disqualify. We affirm.
BACKGROUND
The incident that led to Law’s arrest and incarceration
occurred on July 24, 2016, when Law defended himself from an
attack in his apartment by shooting his assailant. Law was
arrested and charged with attempted murder the day after the
attack. He was arraigned on July 27, 2016 and remained in
custody until July 10, 2018 when he was acquitted after a jury
trial.
On November 24, 2018, Law presented a tort claim to the
City, which it denied on February 8, 2019 on the grounds that his
claim was untimely.
In May 2019, Law sued the City for negligent retention and
supervision, false arrest, malicious prosecution, vandalism,
slander, libel, and abuse of process. The complaint did not
specify a cause of action for false imprisonment, but contained
allegations that Law was falsely imprisoned. The complaint
alleged that the police officers working on Law’s case negligently
conducted the criminal investigation, causing Law to be falsely
imprisoned for two years. Law alleged that he lost his business
because of his incarceration and because the officers destroyed
two of his computers that Law used for his music recording
business. Law also claimed that the officers committed perjury
at his preliminary hearing and trial and slandered him, by
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accusing him of having “a moral standard so low that he would
shoot a man that could not rap.”
The City demurred to Law’s complaint on the grounds that
his complaint was vague and uncertain and that his lawsuit was
barred because he failed to submit a timely government claim
pursuant to the Government Claims Act (Gov. Code, § 810
et seq.). The trial court sustained the City’s demurrer without
leave to amend. In its minute order, the trial court indicated that
it was adopting its oral tentative ruling and sustaining the
demurrer based on the grounds set forth in the moving papers.
Law moved to recuse the trial judge asserting that he
refused to consider Law’s arguments. The trial court denied the
motion and this appeal followed.1
DISCUSSION
Law argues that the trial court erred in sustaining the
City’s demurrer without leave to amend on the ground that his
causes of action were time barred. The City maintains its
argument that Law failed to timely submit a tort claim pursuant
to the Government Claims Act. We agree with the City. We
therefore need not consider the City’s other arguments, raised for
the first time on appeal, that Law’s causes of action were also
barred by the litigation privilege or by specific statutory
immunities.
1 Law elected to proceed without a reporter’s transcript on
appeal.
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I. Law’s causes of action are barred for failure to comply with
the Government Claims Act.
We independently review the sustaining of a demurrer and
whether the complaint alleges facts sufficient to state a cause of
action or discloses a complete defense. (McCall v. PacifiCare of
Cal., Inc. (2001) 25 Cal.4th 412, 415.) We assume the truth of the
properly pleaded factual allegations, facts that reasonably can be
inferred from those expressly pleaded, and matters of which
judicial notice has been taken. (Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081.) We construe the pleading in a
reasonable manner and read the allegations in context. (Ibid.)
We must affirm the judgment if the sustaining of a general
demurrer was proper on any of the grounds stated in the
demurrer, regardless of the trial court’s stated reasons. (Aubry v.
Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
It is an abuse of discretion to sustain a demurrer without
leave to amend if there is a reasonable probability that the defect
can be cured by amendment. (Schifando v. City of Los Angeles,
supra, 31 Cal.4th at p. 1082.) The burden is on the plaintiff to
demonstrate how the complaint can be amended to state a valid
cause of action. (Ibid.) The plaintiff can make that showing for
the first time on appeal. (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
We agree with the City that each of Law’s claims are
barred because he failed to present a timely claim to the City
pursuant to the Government Claims Act.
The Government Claims Act regulates lawsuits for money
or damages against a public entity or employee and establishes
certain prerequisites a plaintiff must meet before he or she can
maintain an action. (DiCampli-Mintz v. County of Santa Clara
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(2012) 55 Cal.4th 983, 989.) A claim for personal injury must be
presented to the public entity within six months after accrual of
the cause of action. (Gov. Code, § 911.2, subd. (a).) Failure to
timely present a claim to a public entity bars a plaintiff from
filing a lawsuit against that entity. (City of Stockton v. Superior
Court (2007) 42 Cal.4th 730, 738.) To overcome a demurrer for
failure to state a cause of action, the plaintiff must allege facts
demonstrating or excusing compliance with the claim
presentation requirement. (State of California v. Superior Court
(2004) 32 Cal.4th 1234, 1239.)
Law cannot overcome this burden. His complaint alleged
causes of action for negligence, false arrest, vandalism, slander,
defamation, and abuse of process. Causes of action for negligence
and property damage (vandalism) accrue when a plaintiff knows
or has reason to suspect the factual basis for those causes of
action. (See Torres v. Department of Corrections & Rehabilitation
(2013) 217 Cal.App.4th 844, 849.) Law alleged that he knew he
had been arrested falsely and that his computers were destroyed
by the officers during the investigation. Thus, those causes of
action accrued on the date of his arrest or shortly thereafter.
Likewise, a cause of action for false arrest accrues on the date of
the arrest. (Mohlmann v. City of Burbank (1986) 179 Cal.App.3d
1037, 1041, fn. 1.) Defamation and libel causes of action accrue
when the defamatory statement is published or communicated to
others. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1237;
Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931–
932.) Law alleged that the defamatory statements were made by
the officers during his preliminary hearing held on August 9,
2016. The limitations period for a claim of abuse of process
accrues when the process begins, which, again, was the date of
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his arrest. (McFaddin v. H. S. Crocker Co. (1963) 219 Cal.App.2d
585, 590.)
Accordingly, Law had six months from the date of his
arrest and arraignment (or at the latest the date of his
preliminary hearing) to present a claim to the City, but he missed
that deadline by almost two years when he filed his claim on
November 24, 2018. This defect cannot be cured through
amendment; thus the trial court did not abuse its discretion when
it denied leave to amend.
Although Law did not allege a separate cause of action for
false imprisonment, his complaint repeats the allegation that he
was falsely imprisoned. We liberally construe the allegations of
the complaint and assume that Law is making a false
imprisonment claim. (See Venice Town Council, Inc. v. City of
Los Angeles (1996) 47 Cal.App.4th 1547, 1557.) Even so, Law’s
claims are barred.
Generally, a false imprisonment cause of action accrues
when the arrestee is released from confinement. (Collins v.
County of Los Angeles (1966) 241 Cal.App.2d 451, 455.) However,
to distinguish between claims for false imprisonment and
malicious prosecution, our Supreme Court held that a false
imprisonment claim ends once legal process begins. (Asgari v.
City of Los Angeles (1997) 15 Cal.4th 744.) In Asgari, the
plaintiff was arrested and remained in prison until his acquittal
seven months later. (Id. at p. 751, fn. 2.) He sued the City for
false imprisonment and recovered a substantial damages award.
The Supreme Court granted review to decide whether the trial
court erred by instructing the jury that the City was liable for
damages to plaintiff resulting from his false imprisonment after
formal legal proceedings began, i.e., after the district attorney
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filed formal charges. (Id. at p. 748.) Asgari held that this
instruction was error, and that the plaintiff was not entitled to
damages for false imprisonment attributable to the period of
incarceration that followed his or her arraignment on criminal
charges. (Ibid.) “To allow a plaintiff who brings an action for
false imprisonment to recover damages suffered as a result of
incarceration after the arrestee has been arraigned on formal
charges (or after a grand jury has returned an indictment)
effectively would nullify, in part, the statutory immunity for
malicious prosecution.” (Id. at p. 754.) Here, although Law
remained in custody, the legal process began after he was
properly arraigned. Therefore, to the extent Law has alleged a
cause of action for false imprisonment, that cause of action
accrued on the date of his arraignment on July 27, 2016. He had
six months from that date to present his claim, but he was two
years late.
II. Law cannot challenge the denial of his motion to disqualify
on appeal.
Law also challenges the judgment in part based on the
denial of his motion to disqualify the trial judge after he
sustained the City’s demurrer. However, Law’s challenge is not
reviewable on appeal from the judgment. “The determination of
the question of the disqualification of a judge is not an appealable
order and may be reviewed only by a writ of mandate from the
appropriate court of appeal sought only by the parties to the
proceeding.” (Code Civ. Proc., § 170.3, subd. (d).) A petition for
writ of mandate is the exclusive method for obtaining appellate
review of the denial of a judicial disqualification motion. (People
v. Freeman (2010) 47 Cal.4th 993, 1000.) Law’s failure to
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prosecute his challenge to the trial court’s disqualification ruling
by way of a petition for writ of mandate is dispositive.
Notwithstanding the exclusive remedy by way of a petition
for writ of mandate, due process entitles a person “to an impartial
and disinterested tribunal in both civil and criminal cases.”
(Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242.) Thus, a party
“ ‘may assert on appeal a claim of denial of the due process right
to an impartial judge.’ ” (People v. Panah (2005) 35 Cal.4th 395,
445, fn. 16.) We construe Law’s argument to include a due
process argument in order to consider his claim. This, however,
does not change the outcome. Law argued that the trial judge
refused to consider his arguments. This claim is not supported
by the record. The trial court considered Law’s opposition to the
City’s demurrer and oral argument but disagreed with Law’s
position. The fact that the trial court ruled against Law does not
indicate the trial judge was biased. (See Brown v. American
Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 674.)
DISPOSITION
The judgment is affirmed. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J. EGERTON, J.
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