Hoch v. Ahlin CA5

Filed 11/10/22 Hoch v. Ahlin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

CORY HOCH,
F082657
Plaintiff and Appellant,
(Super. Ct. No. 16CECG04169)
v.

PAM AHLIN, as Director, etc. et al., OPINION
Defendants and Respondents.

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver
Kapetan, Judge.
Cory Hoch, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Gregory D. Brown and Lisa A. Tillman, Deputy Attorneys General, for Defendants and
Respondents.
-ooOoo-

* Before Franson, Acting P. J., Smith, J. and DeSantos, J.
 In this appeal, appellant Cory Hoch challenges the trial court’s decision to grant a
motion for judgment on the pleadings brought on behalf of respondents Pam Ahlin and
Audrey King, and to deny his request for the appointment of counsel. Following our
review, we affirm both rulings by the trial court.
PROCEDURAL SUMMARY
On December 7, 2016, appellant filed a petition for writ of mandate against
respondents, alleging claims connected to the implementation of California Code of
Regulations, title 9, section 891.1 A generous reading of the petition reveals allegations
supporting the following claims:
1. Violations of the First and Fourteenth Amendment to the United States
Constitution involving the rights of free speech, assembly, and association;
2. Similar violations of the right to free speech, assembly, and association
found in the California Constitution (Cal. Const., art. I, §§ 2–3);
3. A violation of the Americans with Disabilities Act (ADA) (42 U.S.C.
§ 12101 et seq.);
4. A violation of the Rehabilitation Act (29 U.S.C § 701 et seq.);
5. A challenge that the state did not comply with the requirements of the
Administrative Procedures Act when enacting California Code of Regulations, title 9,
section 891;
6. Failure to provide equipment needed to access the internet;
7. Professional (medical) negligence (Code Civ. Proc., § 425.13);

1 This particular petition has a different trial court case number than the trial court
case number listed for this case in the appeal. However, no other petition for writ of
mandate exists in any of the records filed in this case with the correct case number.
Because this petition was provided following a request to augment the record by
appellant, who specifically references a December 7, 2016, petition, we accept this as the
correct petition in this appeal.

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 8. Violations of California Code of Regulations, title 22, sections 71501,
72527, and 73523 (involving patients in state psychiatric hospitals);
9. The discrimination between classes of mentally ill patients at the State
Department of State Hospitals, under the Unruh Civil Rights Act (Civ. Code, § 51);
10. Elder abuse (Welf. & Inst. Code, § 15630);
11. Libel (Civ. Code, § 45); and
12. Declaratory relief on whether California Code of Regulations, title 9,
section 891 was properly enacted.2
In addition to the various claims listed above, appellant sought damages for emotional
distress and other harms. Appellant also sought injunctive relief, the appointment of
counsel, and access to equipment allowing him to use the internet.3
Respondents filed a response to the first amended petition for writ of mandate on
March 10, 2017, by filing an answer, with four affirmative defenses.4 In April 2017,
respondents filed a notice listing four separate pending cases they believed were relevant
to the issues raised by appellant in his petition. While these cases were pending in both

2 Appellant has not challenged the trial court’s determination that while a
declaratory relief action is not necessarily barred by the statute of limitations, this claim
lacked merit as alleged. Because this portion of the ruling was not addressed by appellant
in this appeal, we will not address it here.
3 In this action, appellant did not seek the return of his laptop, just internet access
with equipment to be provided by Coalinga State Hospital (CSH).
4 The record provided does not explain when the petition was amended or whether
the petition referenced in footnote 2 was the amended petition. When seeking review, an
appellant is required to provide a record that adequately addresses the issues the court has
been asked to review. (Cal. Rules of Court, rule 8.120; Pool v. City of Oakland (1986) 42
Cal.3d 1051, 1069 [It is appellant’s burden to affirmatively demonstrate prejudicial error
through an adequate record on appeal.].) The record must support any allegations of
claimed error and must facilitate an appellate court’s review of those claims. (In re
Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498–499.)

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federal and state courts, the trial court in this matter ordered appellant’s case to be trailed
until the federal case was resolved.5
This matter was revived in June 2020. In addition to a notice that they were
requesting a change in counsel, respondents also provided an update on the status of the
related cases. Respondents soon thereafter sought leave to amend their answer on
June 29, 2020. This motion to amend was granted by the trial court in September 2020,
resulting in the addition of two affirmative defenses. At that time, the trial court noted
none of the related cases were still pending and set the case for a case management
conference. In October 2020, appellant asked for counsel to be appointed to represent
him in this matter.
Respondents filed a motion for judgment on the pleadings on January 19, 2021.
Appellant did not oppose this motion in writing but did appear at the hearing on the
motion via court call.6 At the conclusion of the hearing, the trial court granted the
judgment on the pleadings and denied appellant’s request for the appointment of counsel.
The tentative ruling became the final order of the trial court on March 18, 2021, and was
attached to a notice of entry of judgment filed on March 22, 2021. Appellant filed a
notice of appeal on April 1, 2021.

5 One of the cases listed as pending before this court was In re Robinson (2017) 19
Cal.App.5th 247, that decided whether the appellant was entitled to the return of
equipment that had been confiscated. Two other cases on the list were also appealed to
this court but were dismissed before any resolution.
6 Although issuing a tentative ruling on the motion for judgment on the pleadings,
the trial court continued the hearing to allow appellant to appear before a final ruling was
made.

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 FACTUAL SUMMARY
Appellant is currently housed at CSH. Appellant was first sent to CSH between
September 2006 and July 2008.7 Appellant returned to CSH in September 2009.
Before filing this petition for writ of mandate, appellant initiated three separate
lawsuits.8 The first was filed in December 2010 in the United States District Court for
the Eastern District of California and concerned a search of his room in CSH and the
seizure of his laptop and a gaming system. This action was decided in an unpublished
opinion in October 2015, granting summary judgment against appellant. (Hoch v.
Mayberg (E.D.Cal. Oct. 28, 2015, 1:10-cv-02258 AWI DLB PC) 2015 U.S. Dist. Lexis
147067.) The second was filed in January 2013 in the Fresno County Superior Court
seeking mandamus and declaratory relief against a CSH employee. The third action was
also filed in the Fresno County Superior Court in November 2015 seeking mandamus
against a different CSH employee.
DISCUSSION
In this appeal, appellant has chosen not to challenge every ruling made by the trial
court. Appellant only challenges the trial court’s decision allowing respondents to amend
their answer, the conclusion that the relevant statute of limitations barred his petition
from proceeding, and the denial of his request for the appointment of counsel. For the
reasons discussed below, we affirm the trial court’s rulings on these issues, and address

7 While respondents refer to appellant as a “sexually violent predator,” appellant
disputes this designation. Nothing has been placed in the record provided to this court
verifying whether this designation was ever formally assigned to appellant. Appellant
refers to his status as a “civil detainee.”
8 Respondents filed a request for judicial notice with this court of these three actions
and provided copies of the initial pleadings filed by appellant in those cases. We grant
the request for judicial notice for the limited purpose of acknowledging the existence of
those cases.

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other substantive defects in appellant’s petition that would have prevented the matter
from going forward.
I. Respondents’ Motion to Amend the Answer Was Properly Granted
Appellant contends the failure to include an affirmative defense referencing the
statute of limitations in the original answer resulted in a waiver of this defense to his
petition. Under Code of Civil Procedure section 473, subdivision (a), courts are given
broad authority to amend any pleading if to do so would further the interests of justice. A
request to amend an answer to add an affirmative defense alleging an action is barred by
a statute of limitations has been found to be within a trial court’s discretion. (Vedder v.
Superior Court In and For Lassen County (1967) 254 Cal.App.2d 627, 629; Code Civ.
Proc., §§ 473, 576.) A request to add a statute of limitations defense is entitled to as
much consideration as an amendment asserting any other claim or defense. (Vedder, at
p. 629.) “The statute of limitations is not a disfavored defense.” (Vedder, at p. 629.)
Appellant’s assertion that the case of Quigley v. Garden Valley Fire Protection
Dist. (2019) 7 Cal.5th 798, supports his conclusion that the failure to raise the statute of
limitations in the first version of respondents’ answer requires this court to conclude the
defense was waived is misplaced. The Quigley case stood for the proposition that
fundamental jurisdictional bars to litigation, such as the bar of governmental liability,
could not be waived simply because there was a failure to raise that particular affirmative
defense in the initial response to a complaint. (Id. at pp. 806–807.) While the case does
note nonjurisdictional affirmative defenses “ordinarily” can be waived, the case did not
say the failure to raise a defense would prevent a party from seeking an amendment to
add such a defense. (Id. at p. 807.)
We review a motion to amend a pleading for an abuse of discretion. (Tung v.
Chicago Title (2021) 63 Cal.App.5th 734, 747.) “[T]he trial court has wide discretion in
allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling
of the trial court in such matters will be upheld unless a manifest or gross abuse of

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discretion is shown.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.) We
find no abuse of discretion here.
II. The Judgment on the Pleadings
A ruling or decision will not be disturbed on appeal if it is ultimately correct under
a theory of the law that applied when the ruling was made. (People v. Brown (2004) 33
Cal.4th 892, 901.) By simply focusing on the statute of limitations, appellant loses sight
of other reasons why portions of his petition for writ of mandate could not proceed.
A motion for judgment on the pleadings may be made at any time before trial or
even during the trial itself. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) The
motion may be made on the grounds that the pleading fails to state facts sufficient to
constitute a legally cognizable claim. (Ibid.) Our task on appeal is to determine whether
the petition brought by appellant stated a cause of action. (Ibid.)
A. Appellant Failed to Allege He Met the Requirements of the
Government Claims Act
Under Government Code section 911.2, a cause of action alleging some form of
personal injury brought against an entity of the state must first be presented “not later
than six months after the accrual of the cause of action.” Government Code section 945.4
further provides:

“no suit for money or damages may be brought against a public entity on a
cause of action for which a claim is required … until a written claim
therefor has been presented to the public entity and has been acted upon by
the board, or has been deemed to have been rejected by the board .…”
The “failure to timely present a claim for money or damages to a public entity bars a
plaintiff from filing a lawsuit against that entity.” (State of California v. Superior Court
(2004) 32 Cal.4th 1234, 1239.)
The standard of review for a ruling on a judgment on the pleadings is the same as
that applied when considering the granting of a general demurrer. (Mendoza v.
Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1401.) Therefore, a plaintiff must

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allege facts demonstrating or excusing compliance with the claim presentation
requirement or be subject to a general demurrer for failing to state facts sufficient to
constitute a cause of action. (State of California v. Superior Court, supra, 32 Cal.4th at
p. 1243.) “ ‘[W]e are not bound by the determination of the trial court, but are required
to render our independent judgment on whether a cause of action has been stated.’ ”
(Mendoza, at p. 1401.) When conducting this analysis, we treat the properly pleaded
allegations of the petition as true, and liberally construe the allegations with an intent to
provide substantial justice. (Ibid.)
Excluding the federal claims brought under the United States Constitution, the
federal Rehabilitation Act, and the ADA, all other claims raised by appellant involve
state claims that first required compliance with Government Code section 945.4. There
are no allegations in appellant’s petition for writ of mandate stating he filed a claim with
the relevant governmental agency prior to filing his petition in the trial court. In contrast,
respondents presented a document showing that while appellant filed claims in a variety
of other prior actions he brought against public entities, there was no record of a claim
filed that was connected to this specific action.
Appellant did not dispute this fact, made no showing he could cure the defect, and
made no request to amend his petition to correct this defect. (See Blank v. Kirwan (1985)
39 Cal.3d 311, 318; Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481,
1491.) For this reason alone, the trial court was justified in the decision to grant the
judgment on the pleadings, at least with respect to the state claims.
B. Appellant’s Claims Were Also Barred by the Applicable Statute of
Limitations
The only claims that did not require the filing of a governmental claim were the
federal claims.9 Civil actions, without exception, can only be commenced within

9 While we ultimately conclude appellant’s state law claims were barred due to the
failure to comply with the Government Claims Act, we also agree with the trial court’s

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prescribed periods of time. (Code Civ. Proc., § 312.) Federal civil rights claims brought
in California have been found to come within the two-year statute of limitations stated in
Code of Civil Procedure section 335.1. (Wallace v. Kato (2007) 549 U.S. 384, 387.)
While federal law does not provide a statute of limitations for claims under the ADA or
the Rehabilitation Act, federal courts in California have applied section 335.1 to these
claims as well. (See Sharkey v. O’Neal (9th Cir. 2015) 778 F.3d 767, 770; see also
Kramer v. Regents of the Univ. of Cal. (N.D. Cal. 1999) 81 F.Supp.2d 972, 973.)
While we recognize that under Code of Civil Procedure section 352.1, individuals
“imprisoned on a criminal charge, or in execution under the sentence of a criminal court
for a term less than for life,” at the time the action accrued, “that disability is not a part of
the time limited for the commencement of the action, not to exceed two years,” we also
note that section 352.1 does not apply to individuals who are civil detainees, or who
pursue claims based on “conditions of confinement, including an action brought …
pursuant to Section 1983 of Title 42 of the United States Code.” (§ 352.1, subds. (a), (c);
see also Jones v. Blanas (9th Cir. 2004) 393 F.3d 918, 927–928.) We, therefore, do not
believe this provision is available to appellant to extend his statute of limitations beyond
the two-year period stated in Code of Civil Procedure section 335.1.
1. The Petition Fails to Allege Facts Supporting an Extension of the
Statute of Limitations
Appellant’s claims are mostly connected to the denial of internet access.
California Code of Regulations, title 9, section 891, was enacted in 2002. Even if we
conclude appellant was denied the opportunity to challenge his right to access the internet
in 2009, when he returned to CSH, the filing of his petition in 2016 came approximately
seven years later.

conclusion that appellant’s state claims were also barred by the applicable statute of
limitations.

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 Generally, the limitations period “runs from the moment a claim accrues.” (Aryeh
v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) California follows the
“ ‘last element’ ” accrual rule, which holds that the statute of limitations runs from “ ‘the
occurrence of the last element essential to a cause of action.’ ” (Ibid.) The general rules
governing statutes of limitations are subject to a handful of modifications and equitable
exceptions that alter the initial accrual of a cause of action, the subsequent running of the
limitations period, or both. (Id. at p. 1192.) These exceptions and modifications include
theories advanced by appellant such as the “discovery rule,” continuing violations, and
equitable tolling. (Ibid.)
The first theory appellant asserts is the “discovery rule,” which postpones the
accrual of a cause of action until the plaintiff discovers, or has reason to discover, the
cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) To
avoid an action from accruing at this time, a plaintiff would have to plead and prove a
reasonable investigation would not have uncovered a factual basis for the cause of action
when the action first accrued. (Id. at p. 803.) A plaintiff claiming delayed discovery has
the burden of pleading facts showing “ ‘(1) the time and manner of discovery and (2) the
inability to have made earlier discovery despite reasonable diligence.’ ” (E-Fab, Inc. v.
Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1324.) The burden is on the
plaintiff to show diligence and conclusory allegations will not, therefore, withstand a
motion for judgment on the pleadings. (Ibid.)
Appellant has not alleged sufficient facts explaining the delay. Appellant relies on
allegations he only became aware of the restrictions to internet access when California
Code of Regulations, title 9, section 4350 was amended in 2015 resulting in policy
changes at CSH requiring the confiscation of items that could connect him to the internet.
However, this allegation is not accurate because although section 4350 was added to
title 9 in 2009 as an emergency regulation, it was not amended until sometime in 2018.
(Cal. Code Regs., tit. 9, § 4350, Register 2009, No. 44 (Oct. 26, 2009) & Register 2018,

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No. 2 (Jan. 12, 2018.) Appellant filed his lawsuit in 2016, before the regulation was
amended. The petition lacks allegations supporting the availability of the delayed
discovery.
The second theory appellant relies upon involves a “continuing violation.” Under
this theory, which often appears in the employment context, there is usually a continuing
course of conduct, such as conduct that creates a hostile environment or the continuous
failure to accommodate a disability. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798,
823.) The claim of harm is based on a continuing series of events, not a single event.
(Id. at p. 824.) In fact, the continuing violation doctrine is available in only limited
circumstances in federal courts, such as in hostile environment cases. (See Bird v. Dep’t
of Human Servs. (9th Cir. 2019) 935 F.3d 738, 748.)
Once again, appellant contends that “each time that there is an amendment to
9 CCR § 4350, there is a new wrong attached to 9 CCR § 891.” There was no
amendment to California Code of Regulations, title 9, section 4350 until 2018, after
appellant already filed his petition in this case. The allegations as stated in appellant’s
petition fail to support a continuing violation justifying the extension of the statute of
limitations.
Finally, appellant believes he should benefit from “equitable tolling.” Under this
theory, a statute of limitations is tolled to prevent the unjust and technical forfeiture of the
right to a trial on the merits when the defendant already has notice. (Bjorndal v. Superior
Court (2012) 211 Cal.App.4th 1100, 1106–1107.) This often arises when a plaintiff is
pursuing an administrative claim before an action in the trial court can be filed. There
were no allegations in the petition supporting the conclusion appellant was prevented
from filing his petition within the periods specified in the relevant statute of limitations.
Furthermore, we know appellant initiated at least three other unrelated actions in
two different courts, one of which involved the confiscation of his laptop gaming system

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in 2010. The allegations in the petition fail to support the availability of equitable tolling
between 2009 and 2016 when he filed the petition in this case.
Our independent review of this issue leads us to conclude the trial court’s ruling
appellant’s petition was barred by applicable statutes of limitations was correct.
III. The Trial Court Did Not Abuse Its Discretion When It Refused to Appoint
Counsel to Represent Appellant
Appellant contends his constitutional rights were violated when the trial court
denied his request for the appointment of counsel. This court in Smith v. Ogbuehi (2019)
38 Cal.App.5th 453, provided an overview of the constitutional and statutory right of
access to the courts and the resulting need for the appointment of counsel for indigent
prisoners in civil cases.10 (Id. at pp. 465–469.) We joined Apollo v. Gyaami (2008) 167
Cal.App.4th 1468 and Wantuch v. Davis (1995) 32 Cal.App.4th 786 in concluding that a
plaintiff who is an indigent prisoner may not be deprived of meaningful access to civil
courts when “ ‘a party to a bona fide civil action threatening his or her personal or
property interests.’ ” (Ogbuehi, at p. 465, quoting Apollo, at p. 1483.) Addressing how
to consider the right to access in the civil courts, this court stated:

“The exercise of a trial court’s discretion is guided by a three-step inquiry
established in published appellate decisions. [Citations.] First, the trial
court determines whether the prisoner is indigent. Second, the court
determines whether the lawsuit involves a bona fide threat to the inmate’s
personal or property interests. If both conditions are satisfied, the trial
court must consider the measures available to protect appellant’s right of
meaningful access to the courts, including the appointment of counsel.
Where the indigent prisoner’s civil action is bona fide and his or her access
to the court is being impeded, a trial court must provide a remedy; it may
not choose to do nothing.” (Smith v. Ogbuehi, supra, 38 Cal.App.5th at
p. 458.)

10 We recognize appellant is a civil detainee rather than a prisoner. However, we
believe the standard set out in Ogbuehi applies here. We also note appellant relied
favorably on the Ogbuehi case in his reply brief.

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 Following our application of this three-step inquiry, we conclude the trial court did
not abuse its discretion. Specifically, because this three-step inquiry applies to
appellant’s motion for the appointment of counsel, we must consider whether the trial
court abused its discretionary authority when it concluded the motion was moot because
appellant’s claims were barred or had no merit. We interpret the trial court’s decision
that the claims were barred or lacked merit as the equivalent of deciding appellant’s civil
action was not “bona fide” for purposes of the three-step inquiry.
Because we have determined that the trial court was correct in granting the motion
for judgment on the pleadings, it logically follows that the causes of action alleged lacked
merit and were not bona fide. In other words, the defects in appellant’s pleadings are not
the sort that could be cured by the appointment of counsel. The statute of limitations has
run and the time for presenting a claim under the Government Claims Act has expired.
An appointed attorney would not be able to change those facts.
The trial court did not abuse its discretion when denying appellant’s request for
the appointment of counsel.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs.

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