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Altamirano v. County of Los Angeles3/3/2003
file a timely claim with the county. On appeal, plaintiff has not discussed that issue. He has therefore waived any argument that his purported causes of action - whether found in the complaint or based on the statements in the government claim form - are timely. (See Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448; Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at pp. 699-700.)
Further, while a plaintiff is permitted to raise new legal theories on appeal from an order sustaining a demurrer without leave to amend (see Economic Empowerment Foundation v. Quackenbush, supra, 57 Cal.App.4th at p. 684, fn. 5), in this case, plaintiff attempts to raise facts not alleged in the body of the complaint but contained in his government claim form, which was incorporated by reference. "Our task is to determine whether the pleaded facts state a cause of action on any available legal theory." (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908, italics added.) Here, they do not.
The complaint, excluding attachments, did not allege facts that would support a cause of action for assault and battery. To permit plaintiff to amend the complaint based on the attachments "would be trifling with justice, and also subversive of sound principles of law." (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 690.) "`A court has inherent power by summary means to prevent an abuse of its process and peremptorily to dispose of sham causes of action.'" (Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1391.)
While plaintiff's verified complaint, excluding attachments, is based solely on alleged acts that took place from June 7, 2000, to June 20, 2000, he seeks to amend the complaint in light of the attached and incorporated government claim form alleging that deputy sheriffs assaulted him on the day of his birth and every day since then, which claim form, because it was incorporated by reference, is also verified. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, p. 6-52, ยง 6:233.) Enough is enough.
We conclude that the trial court properly sustained the demurrer without leave to amend.
III. DISPOSITION
The order of dismissal is affirmed.
NOT TO BE PUBLISHED.
We concur:
SPENCER, P.J.
VOGEL (MIRIAM A.), J.
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