sign in sign up
<<
Home , Lawsuit

APPENDIX TABLE of CONTENTS. PAGES.

AppendixA is eight pages...... 1-8 Fourth District of , Division One, April 18, 2018, decision.

AppendixB is one page...... 9 Denial of the Petition for Rehearing.

AppendixC is two pages...... 10-11 California State Court, order.

AppendixD is one page ...... 12 July 18, 2018 Order denying Discretionary Review by the California Supreme Court.

AppendixE is one page...... 13 And contains copies of Article VI, clause 2 and Title 28 U.S.C. § 1291.

AppendixF is one page...... 14 And contains Title 28. U.S.C. § 1367 (d) and Supreme Court Rule 10. (b) and (c). State of California Court of Appeal Fourth Appellate District Division One

Filed 4/19/18 Not to be publishedi Case no. D072560 in official reports. ] : San Diego County Superior Court case no.: 37-2016-00038660- CU-PT-CTL Jack R. Koch, and Appellant,

V. A. Estrella, et al., and Respondents.

Appeal from ajudgment and order of the Superior Court of San Diego County, Lisa C. Schall, Judge.

Affirmed.

Jack R. Koch, in pro per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General,

Misha D. Igra, Neah Huynh and Christopher H. Findley, Deputy Attorneys General, for

Defendants and Respondents.

In 2003, plaintiff Jack Koch sued several state prison officials in federal court, alleging they violated his federal civil rights by wrongfully taking a DNA sample from him while he was an inmate. The federal lawsuit concluded in August 2009. In November 2016, Koch filed this action asserting state- claims against the same prison officials arising from

1 Appendix A the same 2003 DNA-sample incident. Several of these defendants (Demurring

Defendants)'demurred on the basis of and of limitations. The trial court sustained their without leave to amend on untimeliness grounds, and denied Koch's for reconsideration. He both rulings. We affirm.

Factual and Procedural Background

The Federal Lawsuit2

On October 17, 2003, Koch filed the federal lawsuit against state prison officials, alleging they violated his federal civil rights about two months earlier (on August 21,

2003) by forcibly taking a DNA sample from him without a warrant or his consent. Koch alleged the statute that authorizes authorities to take DNA samples from certain offenders (Pen. Code § 296) did not apply to the offense of which he had been convicted.

I Demurring Defendants are E. Fontan, L. Skelton, A. Estrella, A.Maldonado, B. Maldonado, L. Vanderweide, and R. Castaneda. The nondemurring defendants had not yet been served with the lawsuit.

2 In ruling on a demurrer, we may consider matters subject to judicial . (Yvanova v. New Century Mortg. Corp.(2016) 62 Cal. 4th 919, 924 (Yvanova).) On our own motion, and with notice to the parties, we have taken of the federal court's file in Koch's federal lawsuit, Koch v. Lockyer, et al., for the Southern District of California, Case No. 3:03-cv-02067-LAB-LSP (the federal lawsuit). (Evid. Code § 452, subd. (d); id. § 459, subds. (a), (c); id. § 455, subd. (b).) We deny Koch's motion requesting that we take judicial notice of (1) several documents filed in the federal lawsuit, and (2) the superior court's order sustaining the demurrer of E. Contreras, which "occurred approximately five months after" the court entered the at issue in this appeal. The motion is (1) moot as to the specific federal court documents because we have taken judicial notice of the federal court's file on our own motion; and (2) improper as it relates to the superior court's subsequent demurrer order because we generally do not consider matters that occur after the entry of the challenged judgment. (See California School Boards Assn. v. State. (2011) 192 Cal. App. 4th 770, 803.)

2 Appendix A Koch sought monetary and injunctive relief in the form of expungement and destruction of his DNA sample.

The district court granted in the defendants' favor, finding the defendants (1) had not violated Koch's civil rights, and (2) would, in any event, be entitled to against Koch's damages claims. The district court entered a judgment of dismissal.

Koch appealed to the United States Court of Appeals for the Ninth Circuit (Ninth

Circuit). On July 15, 2009, that court issued an unpublished memorandum opinion affirming the judgment in part, and reversing it in part. The Ninth Circuit concluded the sampling of Koch's DNA violated his Fourth Amendment rights because his offense was not subject to the DNA-sample statute. However, "[g]iven the complexity and novelty of the issues presented," the court agreed with the district court that the defendants were entitled to qualified immunity against Koch's damages claims. As to Koch's request for injunctive relief, the Ninth Circuit reversed the judgment and ordered the state to (1) permanently destroy Koch's DNA sample within 30 days, and (2) file an affidavit attesting to compliance with the court's order. The defendants timely complied with the order on August 11, 2009.

Koch petitioned the United States Supreme Court for a of , but the court denied his petition on May 28, 2013. (See Koch v. Estrella (2013) 569 U.S. 1009, 133

S. Ct. 2745.) The court also denied his subsequent petition for rehearing on August 12,

2013. (See Koch v. Estrella (2013) 570 U.S. 942, 134 S. Ct. 37.)

Following proceedings on to the district court, in February 2012 Koch moved

3 Appendix A for leave to file a fourth amended to assert a variety of state-law claims arising from the same 2003 DNA-sample incident. The following month, the district court denied

Koch's motion. The court's order states: "Plaintiffs case is closed and the Court will not accept any further filings from Plaintiff in this closed case."

Koch appealed the district court's order denying leave to amend. In January 2013, the

Ninth Circuit "summarily affirm[ed] the district court's judgment."

No further substantive proceedings occurred in the federal lawsuit. However, the docket report indicates the district court repeatedly denied leave for Koch to file any more documents because the case was closed. Similarly, the Ninth Circuit repeatedly advised Koch that "[n]o further filings will be entertained in this closed case."

This lawsuit

In November 2016, Koch filed his complaint in this action asserting substantially the same state-law claims he sought to assert in the federal lawsuit, against the same prison officials arising from the same 2003 DNA-sample incident. Demurring Defendants demurred on this basis of res judicata and statute of limitations.

Koch opposed the demurrer, arguing his lawsuit was timely filed inasmuch as (1) he filed the federal lawsuit well within the applicable limitations period; (2) the limitations period was tolled the entire time the federal lawsuit was pending; and (3) the federal lawsuit was pending as late as 2015, as evidenced by a November 5, 2015 order issued by the federal court. This order states: "Case closed, no further documents to be filed. Koch must not file or attempt to file any more documents in this case."

The trial court sustained the demurrer without leave to amend, finding "[t]he dates

4 Appendix A alleged in the Complaint show the action is barred by the [applicable] two-year statute of limitations...." The court signed and filed an order dismissing the lawsuit as to the

Demurring Defendants.3

Koch moved for reconsideration, asking the trial court to invoke its "inherent power to correct errors" and to "stri[ke], vacatefl, set-aside and nullif[y] its demurrer ruling. He reasoned the Ninth Circuit's 2009 opinion partially reversed the judgment, and the district court's November 5, 2015 order—both of which were before the trial court when it ruled on the demurrer—show he timely filed this lawsuit. The trial court denied Koch's motion, explaining: "Plaintiff has not presented any new facts or law warranting reconsideration."

DISCUSSION I. The Trial Court Properly Sustained The Demurrer on Statue-of-limitations Grounds

A. Standard of Review

"A demurrer challenges the sufficiency of the complaint by raising questions of law.

[Citations.] Where the complaint discloses on its face that the statute of limitations has run on the causes of action stated in the complaint, it fails to state facts sufficient to constitute a ." (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825,

833.) "For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or

The signed, filed dismissal order is an appealable judgment. (Code Civ. Proc., § 581d Cox V. Superior Court (2016) 1 Cal. App. 5th 855, 858.)

5 Appendix A conclusions of fact or law. We may also consider matters subject to judicial notice." (Yvanovcz, supra,

62 Cal.4th at p. 924.)

B. Tolling Principles

A plaintiff must bring a cause of action within the applicable limitations period. (Code Civ. Proc., §

312.) The limitations period applicable to state-law claims maybe tolled while they are pending in federal court. (See 28 U.S.C.A. § 1367 (d); Artis v. District of Columbia (2018) _U.S. 138 S. Ct.

594 (Artis). The federal statute that governs tolling in this circumstance states:

"The period of limitations for any claim asserted under subsection (a) [regarding supplemental over state-law claims], and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for aperiod of 30 days after it is dismissed unless State law provides for a longer tolling period. "(28 U.S. CA. § 1367(d), italics added.)4

In the past, interpreting this italicized language fell into "two near-equal camps." (City of

Los Angeles v. County of Kern (2014) 59 Cal.4th 618, 622 (City of Los Angeles) .) Some applied the

"grace period" approach, under which the "statute of limitations continues to run while the claim is pending in another forum. But the risk of a time is averted by according the plaintiff a fixed period in which to reffle." (Artis, supra, U.S._, 1385. Ct. 594, 602; see City of Los Angeles, at p.

622.) Others applied the "stop-the-clock" approach, under which the limitations period is suspended

(stops running) while the claim is sub judice elsewhere, then starts running again when the tolling period ends, picking up where it left off." (Artis, at p. 601; City of Los Angeles, at p. 622.)

' The parties have assumed the federal tolling statute applies here, even though Koch's state law claims were never actually pending in federal court. Because this is the only tolling theory the parties have addressed, we will assume without deciding that the statute applies in this circumstance.

6 Appendix A When this case was pending in the trial court, California followed the grace period approach.

(City of Los Angeles, supra, 59 Cal. 4th at p. 622.) However, after the parties completed their briefing in this appeal, the United States Supreme Court construed the federal tolling statute as adopting the stop-the-clock approach. (Artis, supra,_U.S., 138 S. Ct. 594, at p. 598.) We will apply this more lenient approach.

Under the federal tolling statute, the tolling period "includes the time during which a federal appeal with the Court of Appeals is pursued...." (Kendrick v. City of Eureka (2000) 82 Cal. App. 4th

364, 369 (Kendrick); Okoro v. City of Oakland (2006) 142 Cal. App. 4th 306, 311-312.) However,

"[t}his tolling is not extended by the later of a petition for writ of certiorari with the United

States Supreme Court." (Kendrick, at p. 369.)

C. Analysis

Even under the more lenient stop-the-clock approach, Koch's complaint discloses on its face that his claims are time-barred. It is undisputed that the events giving rise to his claims occurred in

August 2003. It is also undisputed that the two-year limitation period set forth in Code of Civil

Procedure section 335.1 applies to Koch's claims.5 Thus, Koch had until August 2005 to sue on his claims.

Koch timely filed his federal lawsuit in October 2003, two months after his claims accrued.

Under the stop-the-clock approach, this suspended the running of the two-year limitations period, leaving 22 months in which to refile following the conclusion of the federal lawsuit. The federal lawsuit concluded in August 2009, when the defendants fully complied with the Ninth

Code of section 335.1 states: "Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another." 7 Appendix A Circuit's order to expunge and destroy Koch's DNA sample. (See Kendrick, supra, 82 CaLApp.4th at p. 369) The Ninth Circuit had affirmed the judgment in all other respects. Thus, Koch had until approximately June 2011 to refile in state court. He did not do so until November 2016—more than five years later. Thus, the trial court properly concluded Koch's claims were time-barred.6

Koch contends his November 2016 refiling was timely because the federal case was still pending as of November 5, 2015, as evidenced by the district court's order of that date. That order, however, merely reiterated the district court's many earlier admonitions to Koch that the case was "closed," and he "must not file or attempt to file any more documents in this case." It would be patently unreasonable to construe this order as reviving the expired limitations period.

H. The Trial Court Did Not Err by DenXngKochs Motion to reconsider Koch's reconsideration motion was based on the contention the trial court erroneously concluded his claims were time-barred. We have already rejected this contention. Ardirig1y, the trial court did not err in denying this motion.

DISPOSITION Affirmed. Koch to pay respondents' costs on appeal.

Hailer, J., We concur: McConnell, P. J., Irion, J.

Court ofAppeal State of California TIWNSJR Kevin J. Lane, Clerk By Deputy Clerk /S/

6 Even if we assume for sake of argument that the federal lawsuit was pending until January 2013, when the Ninth Circuit summarily affirmed the judgment after Koch appealed the denial of leave to amend to add state-law claims, the limitations period would only have been tolled until about October 2015. His November 2016 filing would still have been more than one year late.

8 Appendix A State of California Court of Appeal, Fourth Appellate District Division One

Filed Electronically 05/07/2018 Kevin J. Lane, Clerk By Alissa Galvez Case No. D072560 Superior court no. 37- 00038660-CU-PT-CTL

Jack R. Koch, • Plaintiff and Appellant, Order Denying Rehearing V. A. Estrella, et al., Defendants—Respondents.

The Court:

The petition for rehearing is denied.

McConnell, P.J.

9 Appendix B Xavier Becerra Attorney General of California Michelle Des Jardins Supervising Deputy Atty. General Tiffany Johnson Deputy Attorney General State Bar No. 237309 STAMPED: 600 West Broadway, Filed May 31, 2017 Suite 1800, Clerk of the Superior Court San Diego, CA 92101 By J. Montano. Deputy P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 738-9535 Fax: (619) 645-2581 E-mail: [email protected] Attorneys for Defendants

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO CENTRAL DIVISION

Jack Koch, 37-2016-00038660- Plaintiff, CU-PT-CTL V. [PropoGcd] Order A. Estrella, et al., Sustaining Demurrer Defendants. To Complaint Without Leave To Amend

The demurrer to plaintiffs complaint filed by defendants E. Fontan, L. Skelton, A.

Estrella, A. Maldonado, B. Maldonado, L. Vanderweide, and R. Castaneda came on regularly for on May 12, 2017, at 1:30 p.m. in Department C-46 of this Court, the

10 Appendix C Honorable Lisa C. Schall presiding. Plaintiff appeared in person at the hearing.

Defendants appeared through their counsel of record, Deputy Attorney General Tiffany

Johnson. The Court read and considered the demurrer to the complaint and plaintiffs opposition papers. The Court adopted the tentative ruling and sustained defendants' demurrer, without leave to amend, on the ground that the plaintiffs causes of action are barred because they were filed far outside the statute of limitations. On these bases, the

Court rules as follows:

IT IS ORDERED that defendants' demurrer is sustained. Plaintiffs complaint is dismissed without leave to amend.

Dated: 5/31/17 Is!

The Honorable Lisa C. Schall

11 Appendix C S248878 In the Supreme Court of California En Banc

Not to be Published Stamped: in Official Reports. Filed July 18, 2018 Jorge Navarrete Clerk

Jack R. Koch, Plaintiff and Appellant,

V.

A. Estrella, et al., Defendants and Respondents.

The request for judicial notice is denied as unnecessary because the document subject to the request was designated as part of the record on appeal. (Townsel v.

Superior Court (1999) 20 Cal. 4th 1084, 1087, fn. 1.)

The motion entitled "Motion for Summary Reversal" is denied.

The Petition for review is denied.

Court of Appeal, Fourth Appellate District, Division One No. D072560

CANTIL- SAKAUY Chief Justice

12 Appendix D