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David S. Hernandez v. Yuba County Sheriff's Department

July 27, 2011

DAVID S. HERNANDEZ, PLAINTIFF AND APPELLANT,
v.
YUBA COUNTY SHERIFF'S DEPARTMENT, DEFENDANT AND RESPONDENT.



(Super. Ct. No. CVPO090000327)

The opinion of the court was delivered by: Raye , P. J.

Hernandez v. Yuba County Sheriff's Dept.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff David S. Hernandez brings this pro se judgment roll appeal from the judgment in favor of defendant Yuba County Sheriff's Department, entered after the court struck his first amended complaint for failure to comply with the California Tort Claims Act (Act). (Gov. Code, § 810 et seq.)

We find no error and shall affirm the judgment.

BACKGROUND

Plaintiff filed his original complaint against defendant in April 2009. He alleged he went to his daughter's school to "have a[n] on site visit" with her in November 2007 and was prevented from doing so by sheriff's deputies. The complaint sought damages on theories of "vicarious liablity [sic]/ discrimination."

Based on motion papers not in the record on appeal, the court entered an order granting defendant's motion for judgment on the pleadings. That order is not in the record, but the court later characterized it as "order[ing] that plaintiff have leave to amend his complaint to allege compliance with the Torts Claim Act," and "direct[ing plaintiff] to append both the claim and the rejection thereof, if any, to his amended pleading."

Plaintiff then filed his "first amended complaint in tort." Paragraph No. 2 of that pleading alleges: "As the claimant, plaintiff filed form 915(a), for injury and damages against Yuba County Sheriff Department of Yuba County, and did so prior to filing suit with defendant." The claim and rejection are not appended to the pleading.

The trial court then made the order at issue in this appeal, striking the first amended complaint and entering a judgment of dismissal. The court opined that although "[p]aragraph 2 [of the first amended complaint] appears to allege compliance with the Torts Claims Act[,] . . . neither the purported claim, nor the reject[ion] are appended thereto. [¶] Compliance with the Torts Claim Act is mandatory and jurisdictional" and "[a] complaint which does not properly plead compliance with the Act fails to state a cause of action as a matter of law." The order states that judgment "hereby is[] entered in favor of the defendant[.]"*fn1

DISCUSSION I. Applicable Standards of Review

On appeal, a judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. Thus, an appellant must affirmatively demonstrate reversible error. (Denham v. Superior Court (1970) 2 ...


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