Bunnell v. Department of Corrections

• Decision Date: 22 June 1998
• Docket Number: No. C025611,C025611
• Citation: 64 Cal.App.4th 1360,76 Cal.Rptr.2d 58
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 4806, 98 Daily Journal D.A.R. 6805 Michael D. BUNNELL, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant and Respondent.

Page 58

76 Cal.Rptr.2d 58

64 Cal.App.4th 1360, 98 Cal. Daily Op. Serv. 4806,

98 Daily Journal D.A.R. 6805

Michael D. BUNNELL, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant and Respondent.

No. C025611.

Court of Appeal, Third District, California.

June 22, 1998.

Certified for Partial Publication. ^*

[64 Cal.App.4th 1362] James E. McGlamery for Plaintiff and Appellant.

Schachter, Kristoff, Orenstein & Berkowitz, John D. Adkisson, Gail Cecchettini Whaley and Paul D. Warenski, San Francisco, for Defendant and Respondent.

SIMS, Associate Justice.

In this civil action seeking damages for allegedly unlawful wiretapping under federal and state statutes (18 U.S.C. § 2510 et seq.; Penal Code, § 630 et seq.), plaintiff Michael D. Bunnell appeals from summary judgment entered in favor of defendant California Department of Corrections (CDC). Plaintiff contends the trial court incorrectly concluded that CDC, as a state governmental entity, was not subject to liability under the federal or state statutes. We shall conclude we need not address this issue, because plaintiff's complaint is barred by the applicable federal and state statutes of limitations, which CDC presented as an alternate ground for summary judgment. In the unpublished portion of this opinion, we shall discuss why the statute of limitations bars plaintiff's state law claim; in the published portion, we shall explain why plaintiff's federal claim is also barred by the statute of limitations. We shall therefore affirm the judgment. ¹

FACTUAL AND PROCEDURAL BACKGROUND

In 1991 plaintiff was employed by CDC as chief deputy warden at Deuel Vocational Institution (DVI). In April 1991, another CDC employee, correctional officer Wayne Green (who is not a party to this lawsuit), was investigating criminal activity in the prison in his capacity as a member of DVI's security squad. Green placed a wiretap on a captain's clerk's telephone within a DVI office. The parties dispute whether Green's supervisor knew of Green's action when it occurred. The monitoring device remained attached to the telephone until March 1992 and recorded telephone conversations, including those of plaintiff.

On April 8, 1992, Department of Justice Special Agent Albert Fox interviewed plaintiff and played for him tape recordings made from the wiretap on the captain's clerk's telephone.

Based on information derived from the wiretap, CDC sought to terminate plaintiff's employment for misconduct.

In March 18, 1993, a criminal information against plaintiff was filed, based on information derived from the wiretap, alleging (1) misappropriation of public monies to the use of a prison inmate for cosmetic dentistry, (2) removal of public documents from an inmate's file before a Parole Board hearing, and (3) conspiracy to violate the liberty of others arising from administrative segregation of three inmates following a fight between other inmates. In the criminal proceeding, Bunnell filed a motion to suppress evidence obtained through the wiretap, on the grounds that the interception of telephone communications violated the federal wiretapping statutes (18 U.S.C. § 2510 et seq.) and the California wiretapping statutes (Pen.Code, § 631 et seq.). The trial court On December 15, 1993, while his writ petition was pending in this court, Bunnell filed a civil lawsuit against CDC and others seeking damages for an unlawful wiretap under federal and state wiretap statutes. (That lawsuit was later dismissed by plaintiff.)

denied the suppression motion, and Bunnell sought review in this court by filing a petition for writ of mandate.

In January 1994, upon our review of the trial court's denial of the suppression motion in the criminal case, this court issued a writ of mandate, holding suppression of the evidence obtained by the wiretap was compelled by the federal wiretapping statutes, since the trial court erred in determining that the wiretap was permissible as falling within the exemption under the federal statute for conduct within the ordinary course of law enforcement duties (18 U.S.C. § 2510(5)(a)(ii)). (Bunnell v. Superior Court (1994) 21 Cal.App.4th 1811, 26 Cal.Rptr.2d 819.) The exemption was inapplicable because the wiretap had not been in the ordinary course of the officer's duties. (Id. at p. 1823, 26 Cal.Rptr.2d 819.) Since we concluded that exclusion was compelled by federal law, and since California law could not be less protective than the federal act, we found it unnecessary to decide the issue of the California wiretap statutes. (Id. at p. 1825, 26 Cal.Rptr.2d 819.) We remanded to the trial court to determine whether evidence other than the intercepted communications should be suppressed as having derived from the unlawful interception. (Ibid.)

In August 1994, in the prior civil lawsuit, CDC moved for summary adjudication of claims other than the federal wiretap claim under 18 United States Code section 2510, on statute of limitations grounds. The trial court denied the motion, concluding Government Code section 945.3 ² operated to toll the statute of limitations while the criminal case was pending. ³

In November 1994, plaintiff voluntarily dismissed the prior civil suit.

On February 27, 1995, the criminal case was dismissed.

On April 20, 1995, plaintiff filed the civil lawsuit which is the subject of this appeal. The first amended complaint, which is the operative pleading, sought damages against CDC (and the Department of Justice, which is not a party to this appeal) for (1) violation of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2510 et seq.), and (2) violation of California's Invasion of Privacy Act (Pen.Code, § 630 et seq.). The pleading alleged CDC "authorized and participated in the wire tap" and violated state and federal law "by the placement of the previously-described wiretap on the telephone within D.V.I. and by listening to plaintiff's conversations on that telephone."

In September 1996, CDC filed a motion for summary judgment or summary adjudication on the grounds that: (1) the statute of limitations barred the complaint; (2) state public entities are not liable for violations of the federal or state wiretap laws; (3) plaintiff consented to the wiretap because he was deemed to be aware of prison regulations which allowed monitoring of the phone; (4) CDC had absolute immunity from liability for disclosure of wiretap information in judicial and administrative proceedings; and (5) CDC had no vicarious liability because Green had qualified immunity in that the illegality of the wiretap was not clearly established at the time Green acted.

With respect to the statute of limitations matter, CDC argued the action was barred by the one-year limitations period for the Plaintiff opposed the summary judgment motion. With respect to the statute of limitations defense, plaintiff argued the trial court was bound by the ruling in the prior civil lawsuit (which plaintiff voluntarily dismissed) that the limitations period was tolled pending the criminal proceedings, pursuant to Government Code section 945.3. Plaintiff presented no facts as to when the criminal proceedings began or ended. Thus, plaintiff responded to the limitations points in CDC's separate statement of undisputed facts by stating "the statute of limitations defense was previously briefed, argued and submitted to Judge Earl Warren in the form of a Motion for Summary Judgment by C.D.C. This motion was denied. Judge Warren ruled that the statute of limitations for filing the civil action was tolled during the pendency of the criminal action. As a result, defendants' claim in Issue No. 1 is lacking in merit." Plaintiff's memorandum of points and authorities in opposition to summary judgment asserted the trial court in the prior lawsuit applied Government Code section 945.3 to toll the statute of limitations. Plaintiff argued to the trial court that CDC's statute of limitations argument was nothing more than a very belated motion for reconsideration. ⁴

state claim (Code Civ. Proc., § 340), and the two-year limitations period for the federal claim (18 U.S.C. § 2520(e)). CDC asserted as undisputed fact that (1) the wiretap was disclosed to plaintiff on April 8, 1992, when the Department of Justice agent [64 Cal.App.4th 1366] interviewed him and played some of the tapes for plaintiff; and (2) plaintiff filed the complaint on April 20, 1995. CDC did not mention Government Code section 945.3's tolling pending criminal proceedings.

CDC replied: "This is a new action because plaintiff dismissed the previous lawsuit.... Defendant did not previously seek a ruling on a statute of limitations defense to Plaintiff's federal statutory wire tap cause of action because Plaintiff's first lawsuit was filed within two years of his being on notice of the interception of his communications. However, this second lawsuit was filed nearly three years after Plaintiff was on notice of this cause of action and the state tolling provisions of Government Code section 945.3 have no effect upon the federal statutory two-year limitations period." CDC submitted copies of court documents showing criminal charges against plaintiff were filed on March 18, 1993, and were dismissed on February 27, 1995. CDC demonstrated that, even with tolling during pendency of the criminal proceedings, plaintiff's state law claim was filed 29 days after the one-year limitations period had run. CDC argued that, pursuant to the Supremacy Clause of the United States Constitution, Government Code section 945.3 did not apply to the federal claim, because the federal wiretap law carried its own limitations period.

On November 8, 1996, the trial court issued an order granting CDC's motion for summary judgment. The court did not rule on the statute of limitations issue but instead determined CDC, as a state governmental entity, was not directly liable for violations under the federal or state wiretap laws.

Plaintiff appeals...