Filed 2/2/16 Love v. Cal. Highway Patrol CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


LEE ANDRE LOVE,                                                              2d Civil No. B260035
                                                                           (Super. Ct. No. NC058835)
     Plaintiff and Appellant,                                                (Los Angeles County)

v.

CALIFORNIA HIGHWAY PATROL et
al.,

     Defendants and Respondents.



         Lee Andre Love, acting as his own attorney, appeals the judgment of dismissal
entered after the trial court sustained without leave to amend the demurrers of
respondents (the California Highway Patrol (CHP), CHP Commissioner Joseph Farrow,
and CHP Officers Raquel Stage, Martin Geller, Leon Hines and Edward McElroy).
Love’s claims were premised on his arrest, which he contends was the result of racial
profiling, and the seizure of marijuana.1 The trial court sustained the demurrer because
most of the 19 causes of action are barred by the statutes of limitations, and several
causes of action lack merit as a matter of law. We affirm.



         1
        Following his arrest, the prosecution charged Love with felony possession and
transportation of marijuana for sale. A jury acquitted him of those felonies and convicted
him of two counts of a lesser included misdemeanor (simple possession). This court
reversed his convictions. (People v. Love (Oct. 4, 2012, B235156) [nonpub. opn.].)
                  FACTUAL AND PROCEDURAL BACKGROUND
       “Because this matter comes to us on demurrer, we take the facts from plaintiff’s
complaint, the allegations of which are deemed true for the limited purpose of
determining whether plaintiff has stated a viable cause of action. [Citation.]” (Stevenson
v. Superior Court (1997) 16 Cal.4th 880, 885.)
       Love claims that on November 6, 2009, he was in lawful possession of medical
marijuana, under the Compassionate Use Act (CUA) (Health & Saf. Code, § 11362.5 et
seq.). He was driving the marijuana to a dispensary when CHP Officers Geller and Stage
stopped the car, without legal cause, as a result of racial profiling. They questioned him.
Love stated he possessed marijuana and a physician’s recommendation for marijuana.
The officers asked him to get out of the car. He complied. The officers searched the car,
found and seized marijuana from its trunk, and arrested Love.
       On May 10, 2010, the prosecution charged Love with felony possession of
marijuana for sale and felony transportation of marijuana for sale (Health & Saf. Code,
§§ 11359, 11360, subd. (a)). At trial, Love argued that he possessed the marijuana
lawfully under the CUA. The court gave the jury a special instruction on the applicability
of the CUA to the charged felonies. The jury acquitted Love of the charged felonies but
convicted him of two counts of a lesser included misdemeanor (simple possession). The
court granted Love probation, with a term that he serve 90 days in county jail, and
entered judgment on July 21, 2011. Love appealed from the judgment.
       In an opinion dated October 4, 2012, we reversed Love’s misdemeanor
convictions because the trial court erroneously failed to instruct the jury that the CUA
instruction applied to lesser included offenses. We concluded that substantial evidence
supported the misdemeanor simple possession convictions, and remanded the case to the
trial court. On December 19, 2012, that court issued an “order for return of property.”
“On or before” December 24, 2012, an “inventory/ property deputy” informed Love that
his marijuana had been destroyed. Love did, however, recover the money that was seized
from him upon his arrest. On January 11, 2013, the trial court dismissed the criminal
case pursuant to Penal Code section 1385.


                                             2
       On May 7, 2013, Love filed a complaint against respondents. Thereafter he filed a
first amended complaint. Respondents demurred and the trial court granted Love leave to
amend. Love filed a second amended complaint seeking relief based on the following 19
causes of action: (1) race discrimination in violation of title 42 United States Code
section 1983 (section 1983) against CHP Commissioner Farrow; (2) violation of article I,
section 13 of the California Constitution; (3) race discrimination in violation of title 42
United States Code section 2000d et seq. against the CHP; (4) violation of the Fifth
Amendment to the United States Constitution; (5) violations of section 1983 and the
Fourth and Fourteenth Amendments to the United States Constitution; (6) violation of
the commerce clause of the federal Constitution; (7) violations of title 42 United States
Code sections 1981 (section 1981) and 1983; (8) violations of title 42 United States Code
sections 1985 and 1986 (section 1986) (conspiracy to violate constitutional and civil
rights); (9) violation of Government Code sections 11135 and 11139; (10) violation of
article I, section 7 of the California Constitution (due process); (11) inverse
condemnation; (12) violation of Civil Code section 52.1; (13) intentional infliction of
emotional distress; (14) negligent infliction of emotional distress; (15) false
imprisonment; (16) conversion; (17) violation of section 1983 and the Fourteenth
Amendment to the United States Constitution; (18) violation of section 1983 and the First
Amendment to the United States Constitution; and (19) declaratory relief. The trial court
sustained respondent’s demurrer and dismissed the complaint without leave to amend.
                                       DISCUSSION
       “‘A demurrer tests the legal sufficiency of the complaint . . . .’ [Citations.] On
appeal from a dismissal after an order sustaining a demurrer, we review the order de
novo, exercising our independent judgment about whether the complaint states a cause of
action as a matter of law. [Citations.] We give the complaint a reasonable interpretation,
reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all
material facts properly pled. [Citation.] We must also accept as true those facts that may
be implied or inferred from those expressly alleged. [Citation.] If no liability exists as a
matter of law, we must affirm that part of the judgment sustaining the demurrer.


                                              3
[Citation.] [¶] While the decision to sustain or overrule a demurrer is a legal ruling
subject to de novo review on appeal, the granting of leave to amend involves an exercise
of the trial court’s discretion. [Citations.] When the trial court sustains a demurrer
without leave to amend, we must also consider whether the complaint might state a cause
of action if a defect could reasonably be cured by amendment. If the defect can be cured,
then the judgment of dismissal must be reversed to allow the plaintiff an opportunity to
do so. The plaintiff bears the burden of demonstrating a reasonable possibility to cure
any defect by amendment. [Citations.] A trial court abuses its discretion if it sustains a
demurrer without leave to amend when the plaintiff shows a reasonable possibility to
cure any defect by amendment. [Citations.] If the plaintiff cannot show an abuse of
discretion, the trial court’s order sustaining the demurrer without leave to amend must be
affirmed. [Citation.]” (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1500-1501, fn.
omitted; Balikov v. Southern Cal. Gas Co. (2001) 94 Cal.App.4th 816, 819-820.)
                      Government Code section 945.3 Tolling Claim
       Appellant contends that his federal civil rights causes of action are saved by
Government Code section 945.3, which he argues tolled the statutes of limitations for
such actions, until October 4, 2012, the filing date of the opinion in People v. Love,
supra, B235156. We disagree.
       Government Code section 945.3 provides in relevant part as follows: “No person
charged by indictment, information, complaint, or other accusatory pleading charging a
criminal offense may bring a civil action for money or damages against a peace officer or
the public entity employing a peace officer based upon conduct of the peace officer
relating to the offense for which the accused is charged, including an act or omission in
investigating or reporting the offense or arresting or detaining the accused, while the
charges against the accused are pending before a superior court. [¶] Any applicable
statute of limitations for filing and prosecuting these actions shall be tolled during the
period that the charges are pending before a superior court. [¶] For purposes of this
section, charges pending before a superior court do not include appeals . . . .” (Italics
added.)


                                              4
       As alleged in the complaint, the federal causes of action arising from Love’s arrest
and the seizure of his marijuana (first, third, fourth, fifth, seventh, eighth, seventeenth and
eighteenth causes of action) accrued on his arrest date, November 6, 2009. (Wallace v.
Kato (2007) 549 U.S. 384; Lukovsky v. City & County of San Francisco (9th Cir. 2008)
535 F.3d 1044, 1048-1049.) On May 10, 2010, the prosecution filed criminal charges
against Love in superior court, which commenced the tolling period under Government
Code section 945.3. That tolling period ended on July 21, 2011, when the superior court
entered judgment. (Gov. Code, § 945.3; McAlpine v. Superior Court (1989) 209
Cal.App.3d 1, 6-8.)2
                                  Equitable Tolling Claim
       Loves cites Cervantes v. City of San Diego (9th Cir. 1993) 5 F.3d 1273, 1275,
1277 (Cervantes), and similar cases in arguing that equitable tolling bars the running of
the statute of limitations through the end of his appeal in the criminal action, on
November 19, 2012, when we issued a remittitur in People v. Love, supra, B235156. We
disagree. In Cervantes, a wrongful termination case, the Ninth Circuit concluded that
California’s equitable tolling rules relieved the “‘plaintiff from the bar of a limitations
statute’” for filing a wrongful termination action in court while he pursued an
administrative remedy that would reduce the extent of the damages or injuries for which
he sought relief in the court action. (Id. at p. 1275.) Cervantes sought comparable
remedies in the administrative and judicial proceedings, such as reinstatement and lost
income. In pursuing a criminal appeal, Love did not seek remedies comparable to the
declaratory relief, injunctive relief and damages described in his civil complaint.




       2
        In addition to relying upon Government Code section 945.3 in arguing that his
claims did not accrue until October 4, 2012, Love cites Heck v. Humphrey (1994) 512
U.S. 477 (Heck). He contends that under Heck, his section 1983 civil rights claims did
not accrue until October 4, 2012, when we reversed his convictions in People v. Love,
supra, B235156. We conclude that Love waived this issue by failing to raise it below.

                                              5
      The Statutes of Limitations Bar the Federal Claims in the First, Third, Fourth,
           Fifth, Seventh, Eighth, Seventeenth and Eighteenth Causes of Action
       Federal civil rights claims under section 1983 are subject to California’s statute of
limitations for personal injury claims. (Aiuto v. City & County of San Francisco (2011)
201 Cal.App.4th 1347, 1354.) California’s statute of limitations for personal injury
claims is two years. (Code Civ. Proc., § 335.1.) That statute also applies to claims under
title VI of the Civil Rights Act of 1964 (Taylor v. Regents of the Univ. of Cal. (9th Cir.
1993) 993 F.2d 710) and claims under section 1981 (Roman v. County of Los Angeles
(2000) 85 Cal.App.4th 316, 322-323). Claims under section 1986 are subject to a one-
year statute of limitations. (42 U.S.C. § 1986.)
       As alleged in the complaint, Love’s section 1983 civil rights claims (first, fourth,
fifth, seventeenth and eighteenth causes of action), his title VI claim (third cause of
action), his section 1981 claim (seventh cause of action), and his section 1986 claim
(eighth cause of action) accrued on November 6, 2009, when respondents arrested him
and seized his marijuana. The two-year, or 730-day, statute of limitations provided by
Code of Civil Procedure section 335.1 commenced running on November 6, 2009, and
ran for a total of 185 days, until the filing of the information on May 10, 2010. At that
point, the tolling provided by Government Code section 945.3 commenced, with 545
days left under Code of Civil Procedure section 335.1. The tolling ended on July 21,
2011, when the criminal court sentenced Love and entered judgment. The Code of Civil
Procedure section 335.1 two-year statute of limitations ran 545 days later, on January 22,
2013. (January 20 and 21, 2013, were a Sunday and a holiday, respectively.) The
section 1986 one-year statute of limitations ran on Friday, January 20, 2012. The
applicable statutes of limitations barred the federal claims (first, third, fourth, fifth,
seventh, eighth, seventeenth and eighteenth causes of action) before Love filed his May
7, 2013 complaint.3

       3
         As to the CHP, the trial court properly sustained the demurrer to the first cause of
action under section 1983 against CHP Commissioner Farrow in his official capacity on
an additional ground—i.e., California cannot be sued under section 1983 because a state

                                                6
The State Law Claims Alleged in the Second, Ninth, Tenth, Eleventh, Twelfth, Fourteenth,
 Fifteenth, Sixteenth and Nineteenth Causes of Action Are Barred Because Love Did Not
      File a Timely Claim with the Victim Compensation Government Claims Board
       The state law causes of action allege claims against a public entity and its
employees. “A claim relating to a cause of action for . . . injury to person or to personal
property . . . shall be presented [to a local public entity] not later than six months after the
accrual of the cause of action.” (Gov. Code, §§ 911.2, 915, subd. (a); City of Los Angeles
v. Superior Court (2008) 168 Cal.App.4th 422, 427.) For purposes of Government Code
section 911.2, a cause of action accrues on the date the cause of action is deemed to
accrue for the statute of limitations, which would apply to a dispute between private
litigants. (Gov. Code, § 901; Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201,
209.) Government Code section 945 does “not extend the time within which a claim is
required to be presented pursuant to Section 911.2.” (Gov. Code, § 945.3.)
       The statute of limitations for conversion is generally triggered by the wrongful act
of taking the plaintiff’s property. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1432-
1433.) As alleged in the complaint, the conversion action accrued on November 6, 2009,
when respondents allegedly wrongfully seized Love’s medical marijuana without his
consent. Love first filed a claim with the Victim Compensation and Government Claims
Board on January 4, 2013, more than six months after November 6, 2009. The claim was
not timely filed. (Gov. Code, § 911.2.) Compliance with the claim filing requirement of
Government Code section 911.2 is an essential element of a cause of action against a
public entity or public employee. (State of California v. Superior Court (2003) 32
Cal.4th 1234, 1239.)4


is not a “person” for purposes of that statute. (Will v. Mich. Dep’t. of State Police (1989)
491 U.S. 58.) Love’s action against Commissioner Farrow in his official capacity is the
equivalent of a suit against California. (Ibid.)
       4
        Respondents did not raise Love’s failure to present a timely claim in the trial
court. We nonetheless consider this issue because filing such a claim is an essential
element of every cause of action. The trial court sustained the demurrer to the state law

                                               7
       Citing Pace Industries, Inc. v. Three Phoenix Co. (9th Cir. 1987) 813 F.2d 234,
237, Love argues that the January 4, 2013 claim was timely filed because respondents’
violations against him were continuing in nature, and upon each violation of his rights, it
triggered a new period of limitations. We disagree. As alleged in the complaint, the
causes of action accrued upon Love’s arrest and the seizure of his property. In alleging
his conversion claim, Love arguably tried to rely on the delayed discovery rule. That rule
allows a plaintiff to “plead around” the statute of limitations. (Fox v. Ethicon Endo-
Surgery, Inc. (2005) 35 Cal.4th 797, 808.) In order to state a cause of action that is
otherwise barred by the statute of limitations under the delayed discovery rule, however,
a plaintiff must specifically allege facts showing “‘(1) the time and manner of discovery
and (2) the inability to have made earlier discovery despite reasonable diligence.’” (Ibid.,
italics omitted.) The complaint alleges that Love learned after December 19, 2012, and
“on or before” December 24, 2012, that the marijuana had been destroyed. The
complaint does not, however, allege facts which establish that Love exercised reasonable
diligence in discovering the destruction of the marijuana. Thus, the conversion claim
accrued on November 6, 2009. Love’s failure to present a timely claim to the board
barred his conversion claim and other state law claims. (State of California v. Superior
Court, supra, 32 Cal.4th at p. 1239.)
                        The Sixth, Tenth, Eleventh and Fourteenth
                     Causes of Action Lack Merit As a Matter of Law
       The trial court properly sustained the demurrer to the sixth, tenth, eleventh and
fourteenth causes of action because they lacked merit as a matter of law. The sixth cause
of action seeks relief under the commerce clause. There is no private right of action
under the commerce clause. (International Organization of Masters, Mates & Pilots v.
Andrews (9th Cir. 1987) 831 F.2d 843, 847.)

claims on alternate grounds. For example, it correctly ruled that the twelfth claim of
Civil Code section 52.1 and the thirteenth claim for intentional infliction of emotional
distress were barred by the two-year statute of limitations for personal injury. (Code Civ.
Proc., § 335.1; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 759-760 [Civil
Code section 52.1 claims].) That two-year limitations period ran on January 22, 2013.

                                             8
        The tenth cause of action seeks relief for the violation of Love’s due process rights
under Article I, section 7, subdivision (a) of our state Constitution. California courts
have rejected the creation of constitutional torts arising from citizens’ state constitutional
rights to due process under article I, section 7 of the California Constitution. (Katzberg v.
Regents of the University of California (2002) 29 Cal.4th 300, 328-329.)
        The eleventh cause of action for inverse condemnation seeks relief under Article I,
section 19 of the state Constitution. That section provides as follows in relevant part:
“(a) Private property may be taken or damaged for a public use and only when just
compensation, ascertained by a jury.” Article I, section 19 of the state constitution,
however, authorizes an inverse condemnation claim only where the plaintiff makes the
essential allegation that “the defendant substantially participated in the planning,
approval, construction, or operation of a public project or improvement which
proximately caused injury to plaintiff’s property.” (Wildensten v. East Bay Regional
Park Dist. (1991) 213 Cal.App.3d 976, 979-980.)
        The fourteenth cause of action for negligent infliction of emotional distress fails as
a matter of law. California does not recognize negligent infliction of emotional distress
as a separate tort. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.)
                 Claim for Declaratory Relief (Nineteenth Cause of Action)
        The nineteenth cause of action seeks declaratory relief. A claim for declaratory
relief is subject to the same statute of limitations that applies to a claim for damages
based upon the same conduct, right, law, or violation. (Ginsberg v. Gamson (2012) 205
Cal.App.4th 873, 883.) Because all causes of action in the complaint are time barred or
lack merit as a matter of law, the nineteenth cause of action for declaratory relief is time
barred. Moreover, the sixth, tenth, eleventh and fourteenth causes of action lack merit as
a matter of law because they do not plead the existence of a justiciable controversy.
Absent such a controversy, there is no right to the declaratory relief requested in the
nineteenth cause of action. (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810,
831.)



                                              9
      Love did not show a reasonable possibility of curing the defects in the second
amended complaint. Thus, the trial court was not required to grant him additional leave
to amend the complaint. (Lazer v. Hertz Corp., supra, 69 Cal.App.4th at pp. 1500-1501.)
                                    DISPOSITION
      The judgment is affirmed. Costs on appeal are awarded to respondents.


      NOT TO BE PUBLISHED.




                                         PERREN, J.


      We concur:



             GILBERT, P. J.



             YEGAN, J.




                                           10
                                 Ross M. Klein, Judge
                        Superior Court of Los Angeles County
                         ______________________________

             Lee Andre Love, in pro. per., for Plaintiff and Appellant.
             Kamala D. Harris, Attorney General, Elizabeth S. Angres, Supervising
Deputy Attorney General, and Paul C. Epstein, Deputy Attorney General, for Defendants
and Respondents.
