Opinion
D071767
11-22-2017
THOMAS BODNAR, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE, Defendant and Respondent.
Thomas Bodnar, in pro. per., for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Amy Wong and Eric Angel for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIC1612567) APPEAL from an order of the Superior Court of Riverside County, Gary B. Tranbarger, Judge. (Retired Judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Thomas Bodnar, in pro. per., for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Amy Wong and Eric Angel for Defendant and Respondent.
Thomas Bodnar filed a Claim for Damage to Person or Property with the Riverside County Board of Supervisors for "new medical conditions" stemming from a prior injury. The Board rejected the claim as untimely. On appeal, Bodnar argues his claim is timely either because the statute of limitations for his original injury is tolled until he is released from prison, or because his claim for "new" medical conditions accrued within the requisite period. We reject these contentions and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2016, Bodnar filed a Claim for Damage to Person or Property with the County of Riverside Board of Supervisors. In the claim, he alleged that Riverside County Sheriff's detectives dislocated his left shoulder during his arrest in January 2006, and since January 2016, he has been experiencing symptoms of arthritis, including sharp pain, numbness, and lost mobility in his left shoulder and arm. Somewhat inconsistently, Bodnar asserted these "new medical conditions" were ongoing and constant since the 2006 injury.
The Board rejected the claim as untimely because it "was not presented within six months of the event or occurrence as required by law." It characterized "the event or occurrence" as the January 2006 arrest, the date of the initial shoulder injury. Bodnar next applied to the Board for leave to present a late claim. The Board denied his application for failing to satisfy Government Code section 911.6, subdivision (b). Bodnar then filed a petition for relief with the superior court, which was also denied.
Government Code section 911.2, subdivision (a) requires personal injury claims against public entities to be presented within six months of the accrual of the cause of action.
DISCUSSION
On appeal, Bodnar offers two theories why his June 2016 claim is timely. First, he contends the statute of limitations for his original 2006 injury is tolled pursuant to Government Code sections 945.3 and 945.6, subdivision (b). Alternatively, he argues that his 2016 claim is permissible because his cause of action for "new" medical conditions accrued in January 2016.
Bodnar also contends his claim is timely because the Board chose not to contest the timeliness of portions of a similar claim filed in 2013. However, the Board's response to the prior claim does not compel it to take the same approach here.
I
Government Code section 945.3 states that no person can bring a civil action against a public entity while criminal charges are pending against him. Government Code section 945.6, subdivision (b) in turn provides that "[w]hen a person is unable to commence a suit on a cause of action [against a public entity] within the time prescribed in that subdivision because he has been sentenced to imprisonment in a state prison, the time limit for the commencement of such suit is extended to six months after the date that the civil right to commence such action is restored to such person." Reading these two statutes together, Bodnar asserts his claim is timely because the statute of limitations for his 2006 injury is tolled until six months after his release from prison.
Briefing and correspondence in this case indicate that Bodnar remains in prison. --------
Bodnar's argument fails to appreciate the difference between a claim filed with a public entity and a civil action filed with the court. Government Code sections 945.3 and 945.6 address an individual's ability to file a lawsuit in court. In fact, section 945.3 explicitly states that "[n]othing in this section shall prohibit the filing of a claim with the board of a public entity, and this section shall not extend the time within which a claim is required to be presented pursuant to section 911.2."
Furthermore, Penal Code section 2601, subdivision (d) specifically grants the right to initiate civil actions to persons sentenced to imprisonment. As the court recognized in Moore v. Twomey (2004) 120 Cal.App.4th 910 (Moore), Penal Code section 2601, subdivision (d) repeals Government Code section 945.6, subdivision (b) by implication. (Moore, at p. 914, fn. 2.) The statute of limitations for Bodnar's 2006 injury was not tolled under either provision, and has therefore expired.
II
Alternatively, Bodnar asserts his claim is timely because his cause of action for "new" medical conditions accrued in January 2016. Principally, Bodnar rests this argument on the delayed discovery rule. He contends the new medical conditions were not known to him at the time of the 2006 injury, and that he had no indication these conditions would appear in the future. However, the delayed discovery rule does not apply to injuries that are complications of a previous injury, as opposed to separate and distinct injuries. (See Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788.) Rather, once a plaintiff has suffered actual and appreciable harm, the speculative or uncertain character and extent of damages will not extend the limitations period. (Davies v. Krasna (1975) 14 Cal.3d 502, 514.) Bodnar's cause of action for the new medical conditions thus accrued in January 2006 when he first suffered actual and appreciable harm.
Bodnar briefly argues that his cause of action for the new medical conditions accrued in January 2016 pursuant to the continuing violation doctrine or the theory of continuous accrual expressed in Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185. Under the continuing violation doctrine, a series of small harms, each of which may not be actionable on their own, may be treated as a single course of conduct actionable in its entirety, notwithstanding some of the harms may have occurred outside the limitations period. (Id. at p. 1198.) According to the theory of continuous accrual, separate, recurring invasions of the same right can each trigger their own statute of limitations. (Ibid.) With continuous accrual, only the harms suffered within the limitations period are actionable. (Id. at p. 1199).
Under the continuing violation doctrine and the theory of continuous accrual, the offender harms the victim more than once. For example, the continuing violation doctrine is often applied in harassment cases, wherein the offender harasses the victim day after day until eventually the victim recognizes the series of harms as a single course of misconduct. (See, e.g., Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1058 [retaliatory harassment by employer]; Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 345 [harassing debt collection activities].) The theory of continuous accrual is often applied in cases involving periodic charges. (See, e.g., Aryeh, supra, 55 Cal.4th at p. 1200 [each time Canon billed Aryeh triggered a new statute of limitations]; Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 821 [each tax levied by the city triggered a new statute of limitations].)
In this case, however, Bodnar does not assert that the County has harmed him more than once. Rather, Bodnar claims the County injured him once, in January 2006, but that the injury worsened over the next ten years. The continuing violation doctrine and the theory of continuous accrual are not applicable to cases in which there is but one injury. Accordingly, we conclude that Bodnar's June 2016 claim presented ten years after his one and only injury is not timely under either the continuing violation doctrine or the theory of continuous accrual.
DISPOSITION
The order is affirmed. Each party shall bear their own costs on appeal.
DATO, J. WE CONCUR: HALLER, Acting P. J. AARON, J.