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Ford v. Pedersen1/29/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this case, we consider the propriety of a demurrer sustained without leave to amend in an action filed against a superior court clerk for failure to timely file a complaint.
BACKGROUND
On August 10, 1999, plaintiff Ray B. Ford filed a complaint against Sherri L. Pedersen, Clerk of the Court and Court Administrator of the Superior Court of Monterey County, alleging personal injury from the act of initially rejecting a complaint he had attempted to file. Plaintiff alleged that the delay in filing resulted in personal injury and other damages of "Detriment" and "Deprived right to sue" because one of the named defendants had moved before the eventual nunc pro tunc filing of his complaint.
Previously, in September 1997, plaintiff, then incarcerated at Salinas Valley State Prison, had attempted to file a complaint for personal injury against the prison and its acting warden, Gary Lindsey. The complaint was printed by hand, not typewritten and was initially rejected for filing and returned to plaintiff with a notice stating: "We are unable to accept your complaint unless it is typewritten pursuant to California Rules of Court (201)." Eventually, on April 14, 1998, the complaint was filed nunc pro tunc as of September 24, 1997. However, according to plaintiff, Lindsey had moved and left no forwarding address so he could not be served with the complaint.
On October 22, 1999, defendant Pedersen filed a demurrer stating that the complaint failed to state a cause of action because she as a court officer (Court Administrator) came within the rule of judicial immunity. In a response pleading to plaintiff's document objecting to the demurrer, defendant further asserted that she was immune as a public employee based upon the discretionary immunity set forth in Government Code section 820.2 (hereafter section 820.2).
On November 22, 1999, the trial court sustained the demurrer without leave to amend on the basis of discretionary immunity under section 820.2. Plaintiff's application for reconsideration was denied and judgment was entered on May 22, 2000. Plaintiff timely appeals.
DISCUSSION
In reviewing the ruling on a demurrer, "we are guided by long-settled rules. `We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] . . . When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) All material allegations of the complaint are accepted as true. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8, fn. 3.) As only legal issues are raised, our review is independent of the trial court's review. (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1283.)
The demurrer was granted on the basis of defendant's immunity for discretionary acts under section 820.2. That section provides a general immunity from liability for acts
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