McAlpine v. Superior Court

• Decision Date: 29 March 1989
• Docket Number: No. A044020,A044020
• Citation: 257 Cal.Rptr. 32,209 Cal.App.3d 1
• Court: California Court of Appeals Court of Appeals
• Parties: Edward McALPINE et al., Petitioners, v. ALAMEDA COUNTY SUPERIOR COURT, Respondent, Christopher FRANCOIS, Real Party in Interest.

Page 32

257 Cal.Rptr. 32

209 Cal.App.3d 1

Edward McALPINE et al., Petitioners, v. ALAMEDA COUNTY SUPERIOR COURT, Respondent Christopher FRANCOIS, Real Party in Interest.

No. A044020.

Court of Appeal, First District, Division 5, California.

March 29, 1989.

Ronni Jackl, Todd Boley, Law Offices of Edwin J. Wilson, Jr., Oakland, for petitioners.

No appearance for respondent.

Kyle Gee, Henrikson & Gee, Oakland, for real party in interest.

LOW, Presiding Justice.

Government Code section 945.3 tolls the statute of limitations on government tort actions while related criminal charges are pending against a plaintiff. We hold that for the purposes of the statute, criminal charges are "pending" until the date of judgment, not the date of conviction.

Petitioners City of Berkeley and Berkeley police officers McAlpine and Nelson (collectively City) are defendants in a tort action brought by real party in interest Christopher Francois, for personal injuries sustained from a gunshot wound suffered during an encounter with Officer McAlpine. City demurred to Francois' complaint on the ground that the action was barred by the six-month statute of limitations of Government Code section 945.6, subdivision (a)(1). ¹ The trial court overruled the demurrer, agreeing with Francois that the statute of limitations had been tolled by section 945.3 and that Francois' complaint was timely. City contends the trial court erroneously interpreted the tolling statute and seeks a writ of mandate compelling the court to vacate its order and sustain the demurrer without leave to amend. We issued an order to show cause in lieu of an alternative writ and heard oral argument. We believe the trial court correctly interpreted the statute.

The facts alleged are provisionally accepted as true by virtue of City's demurrer. (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 162, fn. 2, 216 Cal.Rptr. 661, 703 P.2d 1.) On September 5, 1986, Officer McAlpine stopped a motorcycle because its driver and passenger, Karlos Hill and Francois, matched a citizen's description of recent robbery suspects. Although the citizen supposedly did not report that the robbers had used a firearm, McAlpine--who was working alone--nevertheless approached the motorcycle with his gun drawn and instructed the suspects to keep their hands in view. Hill drove away from the scene of the stop; although neither Hill nor Francois was armed or had made a threatening move toward McAlpine, the officer "suddenly and rapidly, and without verbal challenge, emptied his revolver" at Hill and Francois, killing Hill and wounding Francois in the back. The complaint accuses McAlpine of intentionally wounding Francois and of violating Berkeley's rules on the use of lethal force by police. The complaint alleges that Nelson and Berkeley negligently supervised McAlpine and failed to have a "defined policy or procedure for felony or other stops for officers working alone."

Three days after the shooting incident, on September 8, 1986, a criminal complaint was filed against Francois charging him with armed robbery, attempted robbery, and auto theft. Meanwhile, Francois filed a tort claim against City on December 12, 1986. Notice of denial of the claim was mailed to Francois on January 6, 1987. Under section 945.6, subdivision (a)(1), the mailing of the written denial notice automatically triggered the six-month statute of limitations for a tort action against City.

Francois' ability to bring a tort action was temporarily stalled, however, by the pendency of the criminal proceedings. Section 945.3 provides, in part, that "[n]o 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 ... 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 charges against the accused are pending before a justice, municipal or superior court." (Emphasis added.)

On February 24, 1987, Francois entered a nolo contendere plea to armed robbery and attempted robbery before the municipal court sitting as magistrate. (Pen.Code, § 859a.) The court found Francois guilty based on the plea, and the matter was certified to superior court for sentence and judgment. (A plea of nolo contendere is the functional equivalent of a plea of guilty for purposes of the criminal law [Pen.Code, § 1016, subd. 3].) On May 29, 1987, the superior court sentenced Francois to five years probation with a year in county jail.

On September 8, 1987, Francois commenced his tort litigation against City by filing an action in the United States District Court for the Northern District of California. The federal complaint alleged all the causes of action in the current state complaint as well as additional causes of action based on federal law. On April 15, 1988, the instant complaint was filed in Alameda County Superior Court; the federal action was dismissed three days later.

City demurred on the ground that Francois' lawsuit was untimely. City contended that the criminal charges were only "pending" within the meaning of section 945.3 until the date of conviction, i.e., the February 24, 1987, entry of the nolo plea. If the charges were no longer pending as of that date, the six-month statute of limitations of section 945.6, subdivision (a)(1) would have been triggered and would have expired August 24, 1987, before either Francois' federal or state actions were filed.

Francois responded that the criminal charges were "pending" within the meaning of section 945.3 until the date of sentencing, May 29, 1987, thus extending the six-month limitations period until November 29, 1987. Francois then argued that under the doctrine of equitable tolling, the September 1987 federal filing further tolled the statute of limitations on the state complaint. Under the equitable tolling doctrine, an alternative remedy pursued during the limitations period, such as a timely filed federal action, will toll the statute of limitations. (See Addison v. State of California (1978) 21 Cal.3d 313, 319, 146 Cal.Rptr. 224, 578 P.2d 941; Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 154 P.2d 399.) Francois argued that his federal action was filed within the six-month period dating from the date of sentencing and its pendency tolled the statute of limitations until the date the state complaint was filed in April 1988.

The trial court overruled the demurrer, concluding that criminal charges are "pending" until "the judgment is finally entered in a criminal case, which is at the time of sentencing, and the plea bargain, if any there was, has been consummated." Under Francois' reading of the statute, his state complaint is timely under the conjunctive operation of section 945.3 and the doctrine of equitable tolling. Under City's reading, the federal complaint was untimely and the doctrine of equitable tolling inapplicable thus, Francois' complaint is not timely and subject to demurrer. ²

" 'The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.]' " (T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 277, 204 Cal.Rptr. 143, 682 P.2d 338.) "In determining such intent, the court turns first to the words of the statute." (Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 607, 224 Cal.Rptr. 631, 715 P.2d 590.) City refers us to the wording of section 945.3 and invokes the rule that a statute should be interpreted in accord with the "usual, ordinary meaning of its language unless doing so would undermine its manifest legislative purpose or lead to absurd results." (People v. Young (1987) 192 Cal.App.3d 812, 816, 237 Cal.Rptr. 703.) Relying on the usual custom of examining the "plain dictionary meaning" of statutory language, City observes that the dictionary meaning of "pending" is "[b]egun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment." (Black's Law Dict. (5th ed. 1979) p. 1021, col. 1.) Since the definition of a criminal "charge" is generally phrased in terms of the accusatory pleading (see op. cit. supra, at p. 336), City reasons that the charge is no longer pending at the point of "settlement or determination of the accusation," i.e., at the stage of proceedings where the question of guilt or innocence of the charges is resolved. Guilt is determined by verdict or a plea of guilty, which constitutes the conviction of the charges. (Stephens v. Toomey (1959) 51 Cal.2d 864, 869, 338 P.2d 182.) City therefore concludes that criminal charges are pending only until conviction by verdict or plea, and not the subsequent pronouncement of judgment and sentence.

City overlooks both an explicit legislative definition of the term "pending" and additional language of section 945.3. Taken together, these two factors undermine City's argument and demonstrate that Francois' position is harmonious with the Legislature's intent. Code of Civil Procedure section 1049 states that an "action is deemed to be pending from the time of its commencement until its final determination upon appeal...." (That code also defines "action"--either civil or criminal--as "an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." [Code Civ.Proc., § 22, emphasis added; see Code Civ.Proc., §§ 30, 31.] ) The third paragraph of section 945.3 states that "[f]or the purposes of this section, charges pending before a justice, municipal, or superior court do not include appeals...." (Emphasis added.) By...