Filed 5/13/16 Bodnar v. County of Riverside CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THOMAS BODNAR,

         Plaintiff and Appellant,                                       E063288

v.                                                                      (Super.Ct.No. RIC1403250)

COUNTY OF RIVERSIDE et al.,                                             OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.

Affirmed.

         Thomas Bodnar, in pro. per., for Plaintiff and Appellant.

         Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham and Amy Wong for

Defendants and Respondents.

         In April 2014, plaintiff and appellant Thomas Bodnar (Bodnar) sued defendants

and respondents County of Riverside, C. Bianco, C. Harris, J. Whitting and T. Torrenti

(defendants) for personal injuries plaintiff allegedly sustained during an arrest on

January 6, 2006. The trial court sustained defendants’ demurrer without leave to amend

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on the grounds that the action was time-barred and plaintiff failed to adequately plead

compliance with the Government Tort Claims Act (Gov. Code, § 900 et seq.). Judgment

was entered in favor of defendants. We conclude that the statute of limitations issue is

dispositive and affirm the judgment.

                    I. PROCEDURAL BACKGROUND AND FACTS

       On April 1, 2014, Bodnar initiated this action against defendants, alleging that on

January 6, 2006, they injured his shoulder and violated his constitutional rights while

effectuating an arrest.1

       On November 21, 2014, defendants demurred on the grounds the complaint was

barred by the two-year statute of limitations (Code Civ. Proc., § 335.1) and Bodnar failed

to plead compliance with the Government Tort Claims Act. In opposition, Bodnar

alleged that he had filed a claim in June 2006, but it was rejected.2 He further sought

leave to amend in order to state facts sufficient to constitute a cause of action.

       On January 6, 2015, the trial court sustained defendants’ demurrer without leave to

amend. Judgment was entered on January 26, 2015.

                                     II. DISCUSSION

A. Standard of Review.

       On an appeal from a judgment of dismissal on a demurrer, we treat plaintiffs’

       1  Bodnar’s arrest was part of an operation performed in conjunction with the NBC
television show “To Catch a Predator III.”

       2  For purposes of this discussion, we assume that Bodnar timely presented his
claim on June 9, 2006, and it was denied by operation of law, 45 days later on July 24,
2006. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240; Gov. Code,
§ 911.6.)

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factual allegations as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-

967.) We accept as true facts appearing in exhibits attached to the complaint, and to the

extent they conflict with the allegations in the pleading, we give them preference.

(Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767-768.) “We also

consider matters that may be judicially noticed. [Citation.]” (Reynolds v. Bement (2005)

36 Cal.4th 1075, 1083, fn. omitted.)

       We review the sufficiency of the factual claims de novo, and we review the trial

court’s determination not to grant leave to amend for abuse of discretion. (Blank v.

Kirwan (1985) 39 Cal.3d 311, 318.)

B. Analysis.

       Defendants asserted that Bodnar’s action is barred by the applicable statute of

limitations under Code of Civil Procedure section 335.1, which provides that an action

for injury to an individual caused by the wrongful act or neglect of another must be

brought within two years. Moreover, any suit against a public employee must be

commenced within the time prescribed by Government Code section 945.6, subdivision

(a), for bringing an action against the public entity—i.e. within six months of the time a

claim is denied by the entity and written notice is given, or within two years from the

accrual of the cause of action if written notice is not given. Here, Bodnar would have had

until January 6, 2008, to commence his action. He did not filed suit until April 2014, so

the suit is time-barred.

       Bodnar contends that the time for filing suit against defendants was tolled under

Government Code section 945.6, subdivision (b), which provides for tolling where “‘a


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person is unable to commence a suit on a cause of action described in subdivision (a)

within the time prescribed in that subdivision because he has been sentenced to

imprisonment in a state prison . . . .’” (Gov. Code, § 945.6, subd. (b).) However,

Bodnar’s reliance on Government Code section 945.6, subdivision (b) is misplaced.

Since 1976, state prisoners have had the civil right to initiate civil actions while

incarcerated. (Pen. Code, § 2601, subd. (d).) As such, the six-month extension period

specified in Government Code section 945.6, subdivision (b) for commencing a civil

action against a public entity is now, practically speaking, inoperative. (Moore v.

Twomey (2004) 120 Cal.App.4th 910, 914, fn. 2.) Bodnar presents no authority to the

contrary, or any analysis why Government Code section 945.6, subdivision (b) is

applicable in light of Moore v. Twomey. Moreover, both parties agree that Bodnar

initially filed suit in federal court against defendants for excessive force under 42 United

States Code section 1983 in Bodnar v. Riverside County Sheriff’s Department et al., case

No. EDCV-11-00092 DSF (OP) (Cal. C.D. 2011).

       Alternatively, Bodnar argues that the time period (from January 2006 to

September 2009) for filing suit against defendants was tolled under Government Code

section 945.3. Government Code section 945.3 provides in part: “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


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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.” By his own admission, the

criminal charges against him reached final disposition in September 2009. Nonetheless,

Bodnar did not initiate this action until April 2014, well beyond the statute of limitations.

Defendants’ demurrers to Bodnar’s complaint were properly sustained.

       Furthermore, the trial court correctly denied Bodnar leave to amend. Both at the

trial court and on appeal Bodnar failed to show how he could plead around the statute of

limitations if given the chance to amend. (San Diego City Firefighters, Local 145 v.

Board of Administration etc. (2012) 206 Cal.App.4th 594, 606.) The statutory bar to this

action is apparent from the face of the pleadings and from matters judicially noticeable.

Accordingly, the trial court did not err in sustaining defendants’ demurrers to the

complaint without leave to amend.

                                       III. DISPOSITION

       The judgment is affirmed. Defendants are awarded costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 HOLLENHORST
                                                                                             J.
We concur:


       RAMIREZ
                               P. J.

       CODRINGTON
                                  J.
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