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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CHARLES T. DAVIS,

Plaintiff,

v.

C/O KISSINGER; et al,

Defendants.

No. 2:04-CV-0878-TLN-DAD

ORDER

This matter is before the Court pursuant to Defendants’ Motion in Limine to Dismiss 

Plaintiff’s Untimely State Law Claims. (ECF No. 301.) Defendants move to dismiss Plaintiff's 

claims under the Ralph Act, California Civil Code Section 51.7, and the Bane Act, California

Civil Code 52.1, as well as under California Civil Code Sections 43 and 52.3.1 (ECF No. 301 at 

1.) These claims comprise Count VII of Plaintiff’s allegations. (Joint Statement of Issues 

Remaining for Trial, ECF No. 334.) Plaintiff filed an opposition to Defendants’ motion. (ECF 

No. 316.) The Court held a hearing on this matter on October 27, 2014, and heard the arguments 

of counsel. Plaintiff further filed a supplemental briefing on this issue. (ECF No. 342.) For the 

reasons set forth below, Defendants’ motion is GRANTED.

I. STATEMENT OF FACTS

Plaintiff filed a claim related to the instant action pursuant to the California Government 

Tort Claims Act (“Tort Claims Act”), California Gov. Code § 945.6, and received a rejection of 

 

1 There is some dispute as to whether Plaintiff alleges a claim under California Civil Code Section 52.3. Although 

Defendants move to dismiss this claim in the instant motion, a claim under Section 52.3 is not listed in Parties’ Joint 

Statement of Issues Remaining in the Case. (ECF No. 313.) The parties could not resolve the issue in its October 27, 

2014 hearing. However, the issue is ultimately moot because Defendants’ motion to dismiss is granted as to all 

Plaintiff’s untimely filed claims.

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this claim on November 30, 2001.

2

 Plaintiff initially filed an action on these and other claims 

under Davis v. Kissinger on October 4, 2001. Complaint, Davis v. Kissinger, 2:01-cv-1868 (E.D. 

Cal. Oct. 4, 2001), ECF No. 1. Plaintiff amended that complaint on January 22, 2002. Amended 

Complaint, Davis v. Kissinger, 2:01-cv-1868 (E.D. Cal. Jan. 22, 2002), ECF No. 16. Plaintiff’s 

complaint was dismissed without prejudice on March 18, 2003. Order, Davis v. Kissinger, 2:01-

cv-1868 (E.D. Cal. Mar. 18, 2003), ECF No. 125. Plaintiff then filed the instant action as a new 

complaint on May 3, 2004. (ECF No. 1.) On October 6, 2014, Defendants moved to dismiss

Plaintiff’s state law claims, arguing that Plaintiff failed to file within the six month statute of 

limitations required by Tort Claims Act and his claims must be dismissed. (ECF No. 301.)

II. LEGAL STANDARD

The Tort Claims Act requires that any claim against a government entity for money 

damages must be filed with the applicable government agency before a lawsuit may be filed in 

court. Cal. Gov. Code § 905. Once a claimant receives notice that the claim has been rejected by 

the government entity, the Tort Claims Act requires that “any suit brought against a public entity 

on a cause of action” must be filed “not later than six months after the date such notice is 

personally delivered or deposited in the mail.” Cal. Gov. Code § 945.6(a)(1). This statute of 

limitations must be satisfied or Plaintiff’s claims must be dismissed. J.J. v. Cnty. of San Diego, 

223 Cal. App. 4th 1214, 1219 (2014).

III. ANALYSIS

Defendants assert that these claims must be dismissed because Plaintiff failed to file his 

complaint within the six months provided under the Tort Claims Act. (ECF No. 301 at 1–2.) 

Defendants further argue that Plaintiff’s untimely filing is not excused by his incarceration. (ECF 

No. 301 at 3.) Finally, Defendants assert that Plaintiff’s timely filing of a previous lawsuit under 

Davis v. Kissinger, No. CIVS-01-1868-FCD-JAM (E.D. Cal.), which was dismissed without 

prejudice on March 18, 2003, does not comply with the filing requirement under the Tort Claims 

Act. (ECF No. 301 at 3–4.) Plaintiff responds that these state law claims are not subject to the 

 

2 Defendants provided these dates within their motion. (ECF No. 301 at 1.) Plaintiff does not contest these

assertions and this Court finds no evidence to the contrary within the record. (ECF No. 316.) Therefore, the 

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requirements of the California Government Tort Claims Act. (ECF No. 316.)

A. Application of the California Government Claims Act to State Law Claims

Plaintiff maintains that his Ralph and Bane Act claims are allegations of civil rights 

violations and are therefore not subject to the requirements of the Tort Claims Act. (ECF No. 316 

at 2.) Plaintiff provides no specific analysis with respect to the claims under California Civil 

Code Sections 43 and 52.3. (ECF No. 316.) In support of his claim, Plaintiff cites to Roe v. 

County of Lake, 107 F. Supp. 2d 1146 (2000), Javor v. Taggart, 98 Cal. App. 4th 795 (2002), and 

Devlyn v. Lassen Mun. Utility District, 737 F. Supp. 2d 1116 (2010). Unfortunately, these cases 

do not support Plaintiff’s assertion. 

The facts of Roe v. County of Lake are inapplicable to the case at hand. In Roe, the court 

found that the plaintiff, a pro se litigant, had properly exhausted his administrative remedies and 

filed a timely initial complaint, but failed to properly enumerate his Ralph Act claim. Roe, 107

F.Supp.2d at 1154. The plaintiff then filed an amended complaint, which did properly enumerate 

the Ralph Act claim and other state law theories, but the six month statute of limitations had 

passed by that point. Id. The court determined that because a timely initial complaint had been 

filed, the plaintiff’s amended complaint was not time barred. Id. In the case at hand, Plaintiff’s 

initial complaint included the state law claims, but was filed two and one-half years after his 

government claim was rejected. (ECF No. 301.) Therefore, Plaintiff cannot rely on a timely 

filing to correct his late submission. Similarly, the facts alleged in Javor v. Taggart are 

inapplicable in this case. The court in Javor found that the Tort Claims Act is not applicable to a 

plaintiff’s federal claims under 42 U.S.C. § 1983. 98 Cal. App. 4th at 804–05. The decision in 

Javor specifically states, however, that “the [six-month] claim provision...is a condition 

precedent to the maintenance of an action under state law.” Id. at 805.

Finally, Plaintiff cites to Devlyn v. Lassen Mun. Utility District in support of his assertion 

that Ralph and Bane Act claims do not fall within the Tort Claims Act. (ECF No. 328 at 2.) This 

case is inapplicable because contrary to Plaintiff’s assertion herein, that court found that the case 

law upon which the defendants relied was based on the Unruh Act, rather than the Ralph and 

Bane Acts. Devlyn, 737 F. Supp. 2d at 1123. Further, to the extent that the court found the Tort 

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Claims Act does not apply to Ralph and Bane Act claims, this Court declines to follow that result. 

It bears mentioning that the claims in Devlyn related to an employment discrimination suit and the 

court specifically noted that “threats of violence” lawsuits against police officers were different 

actions with different requirements. Id.

This Court’s review of the case law demonstrates that the majority courts ruling on this 

issue favor applying the Tort Claims Act to Ralph and Bane Act claims. In Arres v. City of 

Fresno, the court held that Plaintiff’s Ralph and Bane Act claims against the City of Fresno 

Police Department and several officers were untimely under the Tort Claims Act. Arres, CV F 

10-1628 LJO SMS, 2011 WL 284971, at *20 (E.D. Cal. Jan. 26, 2011). “The [Tort Claims Act] 

claims procedures applicable to actions against public entities are the same for actions against 

public employees. Compliance with the claims statutes is mandatory. Failure to file a claim is 

fatal to the cause of action.” Id. (internal citations omitted). See also Lanier v. City of Fresno, 

CV F 10-1120 LJO SKO, 2010 WL 5113799, at *13–14 (E.D. Cal. Dec. 9, 2010) (dismissing 

plaintiff’s Ralph and Bane Act claims against two police officers for failure to meet the statute of 

limitations under the Tort Claims Act); Renteria v. City of Maywood, CV 09-4639 PSG, 2009 WL 

3297152, at *6 (C.D. Cal. Oct. 9, 2009) (finding that plaintiff’s Ralph Act claim was time-barred 

under the Tort Claims Act). In Spears v. City & Cnty. of San Francisco, the court dismissed an 

inmate’s Ralph and Bane Act claims that correctional officers physically and sexually assaulted 

him, finding that he failed to file his claim within the statute of limitations. Spears, C 06-4968 

VRW, 2008 WL 2812022, *11–12 (N.D. Cal. July 21, 2008). California state courts have found 

similarly on this issue. Elias v. City of Los Angeles, G039452, 2008 WL 2781186 (Cal. Ct. App. 

July 18, 2008) (dismissing plaintiff’s Bane and Ralph Act claims against numerous public 

employees where plaintiff failed to file within the statute of limitation under the Tort Claims Act); 

Olden v. Hatchell, 154 Cal. App. 3d 1032 (Ct. App. 1984) (holding that a plaintiff must file a 

government claim under the Tort Claims Act even when no public entity is named); Gatto v. 

County of Sonoma, 98 Cal. App. 4th 744 (2002) (holding that the Tort Claims Act applies to the 

Bane Act). The Court finds overwhelming indication that the Tort Claims Act applies to these

state law claims.

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B. Application of the Doctrines of Estoppel and Tolling

Finally, although Plaintiff did not assert these arguments in his opposition (ECF No. 328), 

the Court considered whether Plaintiff could employ the doctrine of estoppel to permit his claims 

to proceed. Plaintiff initially filed these claims in a separate action commenced on October 4, 

2001. Complaint, Davis v. Kissinger, 2:01-cv-1868 (E.D. Cal. Oct. 4, 2001), ECF No. 1. In that 

case, Plaintiff alleged the same state claims brought in this case, which were untimely at initial 

filing, became timely upon his amended filing on January 22, 2002. Amended Complaint, Davis 

v. Kissinger, 2:01-cv-1868 (E.D. Cal. Jan. 22, 2002), ECF No. 16. That complaint was dismissed 

on March 10, 2003. Order, Davis v. Kissinger, 2:01-cv-1868 (E.D. Cal. Mar. 18, 2003), ECF 

No.125. Despite the fact that Plaintiff may have submitted timely claims in his first action, the 

statute of limitations is not tolled or satisfied with respect to this case. Plaintiff is not permitted to 

use the doctrine of equitable tolling to argue that his second complaint is timely. Martell v. 

Antelope Valley Hosp. Med. Ctr., 67 Cal. App. 4th 978, 985 (1998) (equitable tolling does not 

apply where plaintiff pursues successive claims in the same forum).

Moreover, despite the fact that Defendants waited an inexplicable ten years to bring this 

motion, the Court cannot find a basis to find that Defendants have waived the statute of 

limitations. “It is well-settled that claims statutes must be satisfied even in face of the public 

entity’s actual knowledge of the circumstances surrounding the claim. Such knowledge—standing 

alone—constitutes neither substantial compliance nor basis for estoppel.” J.J. v. Cnty. of San 

Diego, 223 Cal. App. 4th 1214, 1219 (2014). Although there are courts who have excused a 

plaintiff’s failure to comply with the statute of limitations, these cases have been limited to 

instances where a defendant’s intentional act prevented timely filing. Munoz v. State of 

California, 33 Cal. App. 4th 1767, 1785 (1995) (denying plaintiff’s request to waive the Tort 

Claims Act statute of limitations where plaintiff failed to demonstrate that the defendants did not 

cause the filing delay). Such facts are not presented in this action. Therefore, Plaintiff may not 

benefit from estoppel or waiver to excuse his untimely filing.

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C. Relevance of Previous Exhaustion Claims

Plaintiff submitted a supplemental brief to this Court arguing that the issue of the state 

claims’ compliance with the Tort Claims Act had already been addressed in this case. (ECF No. 

342.) Specifically, Plaintiff referred this Court to two previous opinions in this case: 1) an order 

issued on March 13, 2007, identified as Electronic Court Filing (“ECF”) number 65 and 2) and 

order issued on September 30, 2009, identified as ECF number 193. (ECF No. 342 at 2.) The 

Court has reviewed both documents and finds that neither supports Plaintiff’s argument that the 

instant issue was previously adjudicated in this case. The order identified as ECF number 193 

discusses the qualified immunity of certain defendants within the context of a summary judgment 

motion and is not at all related to this issue. (ECF No. 193.) With respect to the order identified 

as ECF number 65, the Court finds that the discussion of whether Plaintiff exhausted his 

administrative remedies was related to prison administrative remedies that Plaintiff was required 

to exhaust within the prison system. In reviewing the exhibits attached to parties’ pleadings on 

that issue, the Court finds that the prison’s third and final appeals documents clearly refer inmates 

to the Government Claims Board if they sought further appeal on their actions. (ECF Nos. 29 

and30.) Neither parties’ briefings nor the court’s order addressed the exhaustion or timely filing

of these claims under the Tort Claims Act. (ECF Nos. 29, 30, 52, 65.) Plaintiff has made no 

argument that exhaustion of prison administrative remedies satisfies the requirements of the Tort 

Claims Act—and the Court has not found any law to support such a contention.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss Plaintiff’s Ralph and Bane 

Act claims is GRANTED. (ECF No. 301.)

IT IS SO ORDERED.

Dated: October 28, 2014

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