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Louis Francis v. Department of Corrections and Rehabilitation et al

November 10, 2011

LOUIS FRANCIS, PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF CORRECTIONS AND REHABILITATION ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 46748)

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

Francis v. Dept. of Corrections

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On direction from this court on remand, the trial court reinstated plaintiff Louis Francis's personal injury action against three individual California Department of Corrections and Rehabilitation (CDCR) employees, and entered their defaults. It then granted the employees relief from default (Code Civ. Proc., § 473), and sustained their demurrer to the complaint without leave to amend.

In this pro se appeal, Francis contends the trial court erred in granting defendants relief from default based on their attorney's declaration; erred thereafter in sustaining their demurrer; and erred in failing, when it ordered CDCR to pay his court costs, to enter a judgment requiring CDCR to pay by a date certain.

Finding no error, we affirm the judgment.

FACTS AND PROCEEDINGS

For a description of the parties' underlying dispute and the proceedings that led to this appeal, we rely in part on our previous unpublished opinion. (Francis v. California Department of Corrections and Rehabilitation (Mar. 8, 2010, C061160)[nonpub. opn.] (Francis I).)

Francis is a prison inmate, who contends he was injured when prison personnel (1) improperly seized and/or disposed of his personal property and legal materials in 2006 in retaliation for his having filed and pursued a grievance; and (2) caused him to be physically attacked by another inmate in September 2007, refused to protect him from that attack, and then refused to release him from the administrative segregation in which he was placed as a result of the attack. Francis sued CDCR and eight individual defendants: James Tilton, Lea Ann Chrones, M. Dangler, D.B. Lewis, N. Grannis, R. Weeks, Correctional Officer Bartos (for whom the parties give neither a first name nor initial), and R. Gamberg. Each of the individual defendants is sued in his or her personal and official capacities. The complaint was filed on April 14, 2008.

The first demurrer

The individual defendants were not served with the complaint at the same time. When the first defendants were served by Francis, they requested representation from the Office of the Attorney General, and Deputy Attorney General Stanton W. Lee filed a demurrer on their behalf. The demurrer asserted that CDCR is statutorily immune from suit; Francis had failed to timely file the complaint within six months of having had his tort claim rejected (i.e., on or before February 28, 2008) as required by Government Code sections 945.6 and 911.2; and Francis otherwise failed to state a cause of action against any defendant.

While the demurrer was pending, one other defendant was served and requested representation, Deputy Lee joined him in the demurrer. While the demurrer was pending, defendants Gamberg, Weeks, and Dangler were also served with the complaint and sought representation from the Office of the Attorney General, but these defendants never joined in the pending demurrer.

However, the trial court sustained the demurrer as to all served defendants, finding that Francis's lawsuit is barred by the statute of limitations because he failed to file it within the six-month limitations period. Thereafter, a judgment was entered in favor of all defendants.

After the court sustained the demurrer without leave to amend, but before judgment was entered, Francis asked the superior court to enter the defaults of three defendants who had been timely served, but never joined in the demurrer: Gamberg, Weeks, and Dangler. The superior court refused Francis's filing because it mistakenly believed the demurrer of all defendants had been properly sustained.

Realizing his error, the Attorney General responded by filing a separate, second, demurrer on behalf of Gamberg, Weeks, and Dangler. The second demurrer was based on the same legal principles as the first demurrer and was sustained on the same grounds.

Francis I

Francis appealed, arguing the trial court erred in sustaining the demurrers without leave to amend, and erred in refusing to enter the defaults of defendants Gamberg, Weeks, and Dangler. (Francis I, supra, C061160.)

In Francis I, this court found the trial court properly sustained the first demurrer as to the defendants in whose names it was filed, or who joined it, because Francis failed to comply with the Government Claims Act. However, we concluded the trial court erred in refusing to enter the defaults of defendants Gamberg, Weeks, and Dangler because, at the time of Francis's timely request to enter ...


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