Rutledge v. AC Transit CA1/5 filed

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Filed 4/7/11 Rutledge v. AC Transit CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FIVE EUGENE DARREL RUTLEDGE, A129184 Plaintiff and Appellant, v. (Alameda County Super. Ct. No. RG09487562) AC TRANSIT, Defendant and Respondent. Plaintiff Eugene Darrel Rutledge (appellant), appearing in pro per, appeals the trial court s grant of defendant AC Transit s (respondent) motion for summary judgment on statute of limitations grounds. Appellant contends the court erred in granting the motion because his personal injury action was timely. He also contends the court erred in denying his motion for a discovery order. We affirm. BACKGROUND Appellant is incarcerated at High Desert State Prison. On February 1, 2006, before his incarceration, he was injured while a passenger on one of respondent s buses. In June 2006, appellant filed a claim for damages with respondent for the injuries he sustained in the February 2006 accident. In May 2007, appellant was incarcerated for a prison term exceeding 20 years for unrelated offenses. On June 15, 2007, respondent mailed a letter to appellant notifying him that his claim had been rejected by operation 1 of law. The letter warned appellant that, under Government Code section 945.6,1 he had only six months from the date of the notice to file a court action based on the claim. On December 4, 2009, appellant filed suit against respondent for injuries resulting from the February 2006 accident. On March 23, 2010, respondent filed a motion for summary judgment on the ground that appellant s action was barred by the statute of limitations. On April 6, 2010, appellant filed a motion seeking an order requiring respondent to provide certain discovery. The motion was denied on April 11. Respondent s motion for summary judgment was granted in June 2010 and the trial court dismissed the action. This appeal followed. DISCUSSION Appellant contends the trial court erred in denying his motion for an order requiring respondent to provide certain discovery. However, the record does not contain any indication that appellant served any discovery requests on respondent, much less a request complying with Code of Civil Procedure section 2031.030, which specifies the format and requirements for discovery requests under Code of Civil Procedure section 2031.010, and is the section upon which appellant relies. The trial court did not err in denying appellant s discovery motion. Appellant also contends the trial court erred in granting respondent s motion for summary judgment on statute of limitations grounds. Under section 945.6, subdivision (a)(1),2 appellant had six months from June 15, 2007, the date of respondent s rejection of his claim for damages, to commence suit against respondent. Although appellant 1 All undesignated section references are to the Government Code. Section 945.6, subdivision (a)(1) provides: Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced: (1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail. 2 2 asserts that he did not receive the rejection notice, he fails to cite any evidence in the record supporting that assertion and he does not argue that the rejection notice failed to comply with section 913. Accordingly, appellant has not shown that the court erred in concluding that the six month statute of limitations was applicable. (See Moore v. Twomey (2004) 120 Cal.App.4th 910, 913-914.) Instead, appellant contends that the statute of limitations was tolled under section 945.6, subdivision (b), which provides for tolling where a person is unable to commence a suit due to incarceration.3 Appellant does not contend that he lacked the civil right (§ 945.6, subd. (b)) to file suit, but contends he was unable to exercise his right to initiate a civil action because he had difficulty accessing the law library in order to prepare his complaint. Appellant s reliance on section 945.6, subdivision (b) is misplaced. As the court explained in Moore v. Twomey, Virtually unchanged since 1965 [citation], the tolling provision contained in subdivision (b) for government tort claims brought by prisoners reflected the fact that prisoners did not then retain the right to initiate civil actions although they could apply for a limited restoration of civil rights. [Citations.] Although Penal Code section 2601 was added in 1975 to provide that prisoners retain the right to initiate civil actions [citations], [] section 945.6, subdivision (b) s extension of the limitations period to six months after the civil right to commence such action is restored to the prisoner (italics added) still assumes a prisoner is unable to commence a government tort claims action because of his imprisonment. As a result, subdivision (b) appears to lack any continuing vitality. [Citation.] (Moore v. Twomey, supra, 120 Cal.App.4th at p. 914, fn. 2.) Section 945.6, subdivision (b) provides: When a 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, 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, except that the time shall not be extended if the public entity establishes that the plaintiff failed to make a reasonable effort to commence the suit, or to obtain a restoration of his civil right to do so, before the expiration of the time prescribed in subdivision (a). 3 3 Appellant presents no authority to the contrary, or any analysis why section 945.6, subdivision (b) is applicable in light of Moore v. Twomey. Neither does appellant cite authority that any difficulty he has encountered in accessing the law library during his incarceration provides a basis for tolling the statute of limitations. Because appellant filed his complaint more than six months after June 15, 2007, the trial court properly granted respondent s motion for summary judgment. DISPOSITION The trial court s judgment is affirmed. Respondent shall recover its costs on appeal. SIMONS, Acting P.J. We concur. NEEDHAM, J. BRUINIERS, J. 4

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