IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
July 27, 2011
DAVID S. HERNANDEZ, PLAINTIFF AND APPELLANT,
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.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.)
The appellant's obligation to follow the California Rules of Court includes (1) presenting each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made (Cal. Rules of Court, rule 8.204(a)(1)(B), (2)(A));*fn2 (2) providing an adequate record that affirmatively demonstrates error (rule 8.120 et seq.); (3) supporting all appellate arguments with legal analysis and appropriate citations to the material facts in the record (rule 8.204(a)(1)(C)); and (4) showing exactly how the error caused a miscarriage of justice (rule 8.204(a)(2)(A); Cal. Const., art. VI, § 13). If the appellant fails to comply with any of these rules, the contentions are forfeited. (Rule 8.204(a)(1)(B); Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240.)
Lack of legal counsel does not entitle an appellant to special treatment. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.) A pro se litigant is held to the same restrictive rules of procedure as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
II. Plaintiff Has Not Shown the Court Erred in Striking His First Amended Complaint
Code of Civil Procedure section 436 gives the trial court the authority to strike out any pleading, in whole or in part, that fails to conform to the laws of this state, a court rule, or the court's prior rulings "at any time in its discretion, and upon terms it deems proper." An order striking a pleading is reviewed for abuse of discretion, and the burden is on the plaintiff to establish such abuse. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.)
The trial court struck plaintiff's first amended complaint because he failed to comply with the court's previous orders that any amended complaint allege compliance with the Act and that he append or attach the purported claim and the rejection thereof to his amended pleading.
Under the Act, a person wishing to sue a public entity for personal injuries must first submit a claim to the entity within six months of the date the cause of action accrued. (Gov. Code, §§ 911.2, 945.4.) "The claim presentation requirement serves several purposes: (1) it gives the public entity prompt notice of a claim so it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available; (2) it affords opportunity for amicable adjustment, thereby avoiding expenditure of public funds in needless litigation; and (3) it informs the public entity of potential liability so it can better prepare for the upcoming fiscal year." (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) The failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a suit against the public entity. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
Plaintiff argues on appeal the court had no "just cause to dismiss the case" for his failure to attach the tort claim because "evidence of the 915(a) tort claim filed against [defendant] was openly admitted to exist by [defendant] during [the] hearing."
We reject plaintiff's argument. An appellant must support assertions of fact with citations to the record. (Rule 8.204(a)(1)(C).) We do not credit party representations about what was said during a hearing without a citation to the record. Moreover, the bare assertion that a claim was submitted by plaintiff--even if acknowledged by defendant--would not have been enough to satisfy the Act. A proper claim for personal injury damages must, for example, have been made in accordance with the timelines required by the Act. (See Gov. Code, § 911.2.) Even had the trial court accepted plaintiff's allegation in the first amended complaint that he had presented a claim, plaintiff neither alleged nor showed by attachment of that claim that it was timely; thus, the first amended complaint fails to allege that a claim, if made, was made in compliance with the Act.*fn3 Under these circumstances, the trial court properly struck the pleading.
III. Plaintiff Has Shown No Error in Connection with His Motion to Disqualify Judge Givens
Plaintiff's opening brief also recites that he "has filed a motion to disqualify the court's judge Debra Givens based on Penal Code section 170 et seq., which was based on [his] belief that . . . judge Debra Givens would be bias[ed]" and she had refused to recuse herself.
Plaintiff's brief does not cite to the record on appeal, and the appellate record does not contain plaintiff's motion to disqualify Judge Givens.*fn4 Thus, any claim of error related to the motion to disqualify is forfeited. (Rule 8.204(a)(1)(B)(C).)
Even were his claim not forfeited, it is not cognizable on appeal. "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" within 10 days after service of the written notice of entry of the court's order determining the question of disqualification. (Code Civ. Proc., § 170.3, subd. (d).) Plaintiff apparently did not challenge the court's minute order by writ petition. He may not do so now.
The judgment is affirmed.
We concur: HULL , J. HOCH , J.