The opinion
Filed 7/19/22 O’Shea v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARY B. O’SHEA, D079241
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00016628-CU-CR-CTL)
CITY OF SAN DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Affirmed.
Mary O’Shea, in pro. per., for Plaintiff and Appellant.
Mara W. Elliott, City Attorney, Elizabeth L. Atkins, and Tyler L.
Krentz, Deputy City Attorneys, for Defendants and Respondents.
I
INTRODUCTION
In 2014, Mary B. O’Shea was arrested for driving while under the
influence of alcohol (DUI). She pleaded guilty to one count of reckless driving
in violation of Vehicle Code, section 23103, subdivision (a), and was placed on
probation for three years.
Nearly six years later, O’Shea filed the present civil action against the
City of San Diego (hereafter, the City) and members of the San Diego Police
Department (hereafter, the Police Department), alleging the defendants
fabricated incriminating evidence against her and obtained her reckless
driving conviction through unlawful means. The trial court sustained
demurrers to the operative complaint without leave to amend and entered a
judgment of dismissal, reasoning the causes of action were untimely,
improper for claim-specific reasons, or both. We affirm the judgment of
dismissal.
II
BACKGROUND
Because this is an appeal from a judgment entered after the sustaining
of a demurrer, we accept as true the following factual allegations from the
operative complaint. (Dudek v. Dudek (2019) 34 Cal.App.5th 154, 160, fn. 4.)
1
Factual Background
On August 22, 2014, Police Department officer Homayoun Nabizadeh
pulled O’Shea over on suspicion of DUI. O’Shea had a minor in her vehicle at
the time of the traffic stop. She submitted to a blood draw and an alcohol
analysis report later showed she had a blood alcohol content of 0.08 at the
time of the blood draw. She was charged with multiple DUI-related counts,
including DUI with a passenger under the age of 14 (Veh. Code, § 23572,
subd. (a)).
On January 16, 2015, O’Shea pleaded guilty to one count of reckless
driving in exchange for dismissal of the other charges. The plea agreement
2
included a handwritten statement that O’Shea “drove a vehicle recklessly
with alcohol in [her] system….” O’Shea was fined and placed on probation for
a term of three years.
On January 30, 2015, O’Shea filed a complaint against officer
Nabizadeh with the Citizens’ Review Board on Police Practices (hereafter, the
Review Board).1 She alleged he fabricated information on her arrest report
and caused her to endure a “false conviction.” The Review Board complaint
purportedly went uninvestigated.
On January 27, 2016, O’Shea filed a claim with the City alleging officer
Nabizadeh and Internal Affairs Lieutenant Marshall White violated her civil
rights. She alleged the incriminating evidence relating to her conviction was
“fabricated” and Lieutenant White did not investigate the fabricated evidence
when it was brought to his attention. She denied driving recklessly and
stated she “took the plea to avoid jail time and a charge of child
endangerment.” On April 14, 2016, the City denied O’Shea’s claim and
notified her she had six months to file a court action on the claim pursuant to
Government Code section 945.6.
On July 16, 2019, O’Shea filed a petition for writ of error coram nobis
seeking to withdraw her guilty plea on grounds that her trial counsel had
pressured her into accepting the plea agreement and altered the terms of the
plea form after she signed it. On November 1, 2019, the trial court denied
the request to withdraw the guilty plea. O’Shea filed a renewed motion to
1 At the time O’Shea filed her complaint, the Review Board had a
mandate “ ‘to review and evaluate citizens’ complaints against members of
the San Diego Police Department and the San Diego Police Department’s
administration of discipline arising from such complaints.’ ” (Davis v. City of
San Diego (2003) 106 Cal.App.4th 893, 896, fn. 2.)
3
withdraw her guilty plea and a motion for reconsideration, both of which the
court denied as well.
On October 2, 2019, O’Shea filed a second claim with the City largely
repeating the same allegations against officer Nabizadeh and Lieutenant
White. She averred officer Nabizadeh lied on his police report and “bore false
witness” against her, a member of the Police Department crime lab fabricated
a DUI certificate to reflect that she had a blood alcohol content of 0.08, and
Lieutenant White failed to investigate her complaints about fabricated
evidence. Further, she alleged Internal Affairs Captain Anastasia Smith
failed to investigate the fabricated evidence when she learned about it. On
September 2, 2020, the City notified O’Shea her claim was a duplicate of her
previous claim and the matter was finalized.
2
The Complaint
On May 26, 2020, O’Shea filed the present civil action. She filed the
operative first amended complaint on December 16, 2020.
The operative complaint—a sprawling, 95-page pleading with dozens of
additional pages of attachments—asserted causes of action against the City
and numerous members of the Police Department including officer
Nabizadeh, Lieutenant White, Captain Smith, Chief of Police David Nisleit,
former Chief of Police Shelley Zimmerman, and crime lab manager Jennifer
Shen (collectively, the Individual Defendants). It alleged the following causes
of action against the defendants: (1) violations of O’Shea’s federal civil rights
(42 U.S.C. § 1983; hereafter, section 1983); (2) fraud; (3) conspiracy (42 U.S.C.
§ 1985; hereafter, section 1985); (4) unlawful business practices (Bus. & Prof.
Code, § 17200 et seq.; hereafter, the UCL); (5) illegal wiretapping (Pen. Code,
§ 629.50); (6) violations of O’Shea’s right to privacy (Cal. Const., art. 1, § 1);
4
(7) due process and equal protection violations (id., § 7); (8) unreasonable
search and seizure (id., § 13); (9) negligence; (10) intentional infliction of
emotional distress (IIED); and (11) injunctive relief.
The complaint is difficult to comprehend at times. As best we can
discern, it alleges officer Nabizadeh falsified information on the police report
documenting O’Shea’s arrest and both officer Nabizadeh and crime lab
manager Shen falsified incriminating evidence relating to her blood draw. It
alleges Lieutenant White, Captain Smith, and former Chief of Police
Zimmerman failed to investigate the falsified evidence. It alleges Chief of
Police Nisleit “participate[d] in the cover-up” by sharing falsified evidence
with O’Shea. Additionally, it alleges officer Nabizadeh, Lieutenant White,
and other unidentified members of the Police Department eavesdropped on
her telephone calls and erased certain records for telephone calls that she
had with members of the Police Department. According to the complaint, the
defendants took these actions to conceal her unlawful arrest and the Police
Department’s “widespread practice of charging DUI suspects” with child
endangerment in instances where they are pulled over with minors in their
vehicles.
3
The Demurrers
On January 15, 2021, the City demurred to the operative complaint. It
asserted O’Shea’s first and third causes of action (sections 1983 and 1985)
must be dismissed for several reasons. First, the causes of action were time-
barred because they were subject to a two-year statute of limitations (Code
Civ. Proc., § 335.1); O’Shea discovered the alleged civil rights violations no
later than January 30, 2016, when she filed her first claim with the City; and
O’Shea brought suit more than two years later. Second, the causes of action
5
were not cognizable under Heck v. Humphrey (1994) 512 U.S. 477 (Heck)
because O’Shea’s reckless driving conviction remained valid and a judgment
in her favor would necessarily imply the conviction was invalid. Third, the
section 1983 cause of action was deficient to the extent it pleaded a claim
under Monell v. Department of Social Services (1978) 436 U.S. 658 (Monell)
because it did not allege a deprivation of a constitutional right or a City-
adopted policy, custom, or practice that was deliberately indifferent to such a
right. Finally, the section 1985 cause of action failed because O’Shea did not
allege race- or class-based discrimination.
As for the remaining causes of action, the City argued the fourth cause
of action (UCL) must be dismissed because it could not be brought against a
governmental entity and, in any event, O’Shea did not file a claim with the
City as required by Government Code section 911.2. The City claimed the
sixth cause of action (privacy) was uncertain because O’Shea did not
articulate facts concerning an alleged violation of her right to privacy. It
asserted the seventh (due process/equal protection) and eighth
(search/seizure) causes of action must be dismissed because private rights of
action for damages may not be brought for alleged violations of the relevant
state constitutional provisions. It argued the ninth cause of action
(negligence) must be dismissed because the City was immune from tort
liability under Government Code section 815. It contended the eleventh
cause of action (injunctive relief) must be dismissed because injunctive relief
is a remedy, not a cause of action. Finally, it argued the complaint was
uncertain in its entirety.
The Individual Defendants also filed a demurrer, which the City joined.
In addition to the generally-applicable arguments just discussed, they argued
the second (fraud), ninth (negligence), and tenth (IIED) causes of action were
6
untimely because a two-year statute of limitations applied to the negligence
and IIED causes of action (Code Civ. Proc., § 335.1); a three-year statute of
limitations applied to the fraud cause of action (id., § 338, subd. (d)); and all
three causes of action accrued, at latest, by January 30, 2016—yet O’Shea did
not sue until May 26, 2020. They sought dismissal of the same three causes
of action on grounds that O’Shea did not file a timely claim against
defendants Shen, Zimmerman, Smith and Nisleit as required by Government
Code section 950.6, and she did not bring suit within six months of the denial
of her initial claim against defendants Nabizadeh and White as required by
Government Code section 945.6. Next, they asserted the fourth (UCL), fifth
(illegal wiretapping), and tenth (IIED) causes of action must be dismissed
because O’Shea did not present those claims to the City as required by
Government Code section 911.2. They contended the fifth cause of action
(illegal wiretapping) must be dismissed because Penal Code section 629.50
does not provide for a private right of action. Finally, they argued they were
immune from liability under Government Code sections 820.2 and 820.4, and
they were entitled to qualified immunity for the first cause of action (section
1983).
O’Shea filed an opposition that was largely nonresponsive to the
defendants’ arguments. To the extent it was responsive, it appeared to
suggest that on April 1, 2021, O’Shea obtained new evidence—a DMV
officer’s statement—which purportedly proved that officer Nabizadeh did not
have probable cause to arrest her. The defendants allegedly withheld this
evidence from her.
The City and the Individual Defendants filed a combined reply in
support of their demurrers.
7
4
The Trial Court’s Ruling on the Demurrers
After a hearing, the trial court sustained the demurrers without leave
to amend. In its order, the court made the following findings relevant to the
City’s demurrer arguments (many of which were equally applicable to the
Individual Defendants):
• The first and third causes of action (sections 1983 and 1985) failed
because: (1) they were untimely; (2) they were not cognizable under
Heck; (3) O’Shea did not plead an unconstitutional policy or custom
necessary to state a Monell claim and, in any event, a municipality
cannot be held liable on a respondeat superior theory under section
1983; and (4) section 1985 does not provide for a private right of action.
• The fourth cause of action (UCL) failed because it alleged statutory
violations by a non-party (the Police Department) and, even if the claim
could be construed as being brought against the City, a UCL claim may
not be asserted against a governmental entity.
• The sixth cause of action (privacy) failed because O’Shea did not plead
facts sufficient to state an actionable privacy claim and she could not
articulate how she would amend her complaint to state such a claim.
• The seventh (due process/equal protection) and eighth (search/seizure)
causes of action failed because constitutional tort claims for damages
are not cognizable under the relevant state constitutional provisions.
• The ninth cause of action (negligence) failed due to Government Code
section 815, which immunizes public entities from tort liability.
• The eleventh cause of action (injunctive relief) failed because it sought
relief from a non-party (the Police Department) and it would “still fail if
applied to the City.”
Turning to the arguments raised in the Individual Defendants’
demurrer, the court made the following findings in its ruling:
• The Individual Defendants were immune from liability under
Government Code sections 820.2 and 820.4, and they were entitled to
qualified immunity for the first cause of action (section 1983).
8
• The second (fraud), ninth (negligence), and tenth (IIED) causes of
action were untimely under the governing statutes of limitations. They
also failed as to defendants Shen, Zimmerman, Smith and Nisleit
because O’Shea did not file timely claims against them. Further, they
failed as to defendants Nabizadeh and White because O’Shea did not
sue them within six months of the denial of her claim against them.
• The fifth cause of action (illegal wiretapping) failed because there is no
private right of action under Penal Code section 629.50, and O’Shea did
not present her claim within six months of its purported accrual.
• The tenth cause of action (IIED) failed because O’Shea did not present
her claim within six months of its accrual.
Based on these findings, the court sustained the demurrers without
leave to amend and entered a judgment of dismissal.2
III
DISCUSSION
A
Legal Principles
“In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts sufficient to
state a cause of action under any legal theory.” (T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) “ ‘We treat the demurrer
as admitting all material facts properly pleaded[.]’ ” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318 (Blank).) We “accept as true not only those facts alleged
in the complaint but also facts that may be implied or inferred from those
expressly alleged.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37
2 Before the court entered the judgment of dismissal, O’Shea moved for
reconsideration of the demurrer order. The court—unaware of the pending
motion—entered judgment without addressing the motion. Thereafter, it
ruled that its entry of judgment deprived it of jurisdiction to entertain the
motion for reconsideration.
9
Cal.App.4th 1397, 1403.) “We do not, however, assume the truth of
contentions, deductions, or conclusions of fact or law.” (Moore v. Regents of
University of California (1990) 51 Cal.3d 120, 125; accord Blank, at p. 318.)
“In considering a trial court’s order sustaining a demurrer without
leave to amend, ‘ “we review the trial court’s result for error, and not its legal
reasoning.” ’ ” (Morales v. 22nd Dist. Agricultural Assn. (2018) 25
Cal.App.5th 85, 93.) We “ ‘affirm the judgment if it is correct on any theory.’ ”
(Ibid.) “And when [a demurrer] is sustained without leave to amend, we
decide whether there is a reasonable possibility that the defect can be cured
by amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.” (Blank,
supra, 39 Cal.3d at p. 318.) “The burden of proving such reasonable
possibility is squarely on the plaintiff.” (Ibid.)
O’Shea is a propria persona litigant. “As a propria persona litigant,
[she] is entitled to the same but no greater consideration than other litigants.
[Citations.] Accordingly, [s]he must follow the rules of appellate procedure.
[Citations.] Those rules require an appellate brief to support each point by
argument and, if possible, by citation to authority and to provide a citation to
the record for a factual assertion. [Citations.] ‘[W]e may disregard factual
contentions that are not supported by citations to the record [citation] or are
based on information that is outside the record [citation]. We may disregard
legal arguments that are not supported by citations to legal authority
[citation] or are conclusory [citation].’ [Citations.] Further, we may treat a
point that is not supported by cogent legal argument as forfeited.” (County of
Sacramento v. Rawat (2021) 65 Cal.App.5th 858, 861.)
10
B
The Trial Court Properly Sustained the Demurrers Without Leave to Amend
O’Shea challenges certain aspects of the demurrer order concerning the
first (section 1983); second (fraud); third (section 1985); and sixth (privacy)
causes of action. We address each of these causes of action in turn.3
1
The Trial Court Properly Sustained the Demurrers
to the Section 1983 Cause of Action Without Leave to Amend
O’Shea contends the trial court erred by denying her leave to amend
her section 1983 claim. However, she does not argue that the court erred by
finding that she failed to plead a viable section 1983 claim in the operative
complaint. Thus, we presume the court correctly sustained the demurrer to
the section 1983 claim and we address only whether the court erred by
denying her the opportunity to amend the claim. (See Careau & Co. v.
Security Pacific Business Credit Inc. (1990) 222 Cal.App.3d 1371, 1386.)
Section 1983 is a federal statute establishing a cause of action that may
be asserted by a “party injured” against “[e]very person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State ..., subjects,
or causes to be subjected, any ... person ... to the deprivation of any rights ...
secured by the Constitution and laws....” (42 U.S.C. § 1983.) “There are two
3 O’Shea does not address the fourth (UCL), fifth (wiretapping), seventh
(due process/equal protection), eighth (search/seizure), ninth (negligence),
tenth (IIED) or eleventh (injunctive relief) causes of action. Because O’Shea
does not address these causes of action, we deem them abandoned. (Alborzi
v. Univ. of Southern California (2020) 55 Cal.App.5th 155, 184 [“[W]here a
demurrer is sustained without leave to amend, the appellant’s failure to
address certain causes of action in the complaint is deemed an abandonment
of those causes of action.”]; Ram v. OneWest Bank, FSB (2015) 234
Cal.App.4th 1, 9, fn. 2 [on appeal from a judgment after an order sustaining a
demurrer, unaddressed causes of action deemed abandoned].)
11
essential elements of a claim under section 1983: (1) the conduct complained
of was committed by a person acting under color of state law; and (2) the
conduct deprived the plaintiff of a right, privilege or immunity secured by the
Constitution or laws of the United States.” (McAllister v. Los Angeles Unified
School Dist. (2013) 216 Cal.App.4th 1198, 1207.)
The trial court sustained the demurrers to O’Shea’s section 1983 cause
of action for several reasons. The court found the claim was untimely under
the applicable statute of limitation; barred pursuant to Heck, supra, 512 U.S.
477; deficient to the extent it sought to plead a Monell-type claim; and
improper as to the Individual Defendants who were both immune from
liability (Gov. Code, §§ 820.2 and 820.4) and entitled to qualified immunity.
On appeal, O’Shea argues she should be allowed to amend her section
1983 cause of action because she learned “new information” from a recently-
obtained DMV officer’s statement, which she says is inconsistent with certain
police reports and child welfare reports documenting her arrest. According to
O’Shea, the DMV officer’s statement indisputably confirms that officer
Nabizadeh lacked probable cause to arrest her. She asserts the new
information “changes the complexion of the case” and proves she experienced
violations of her rights under the Fourth, Eighth, and Fourteenth
Amendments to the U.S. Constitution.
O’Shea has not established, with reasonable possibility, that her
section 1983 claim can be cured by amendment. Indeed, she fails to address
how her proposed amendment, based on her new evidence, would remedy any
of the pleading defects identified in the demurrer ruling.
For example, O’Shea does not explain how amendment would render
her claim cognizable under Heck, supra, 512 U.S. 477. O’Shea’s claim, as
amended, would still rest on allegations that the defendants lacked probable
12
cause to arrest her, subjected her to an unlawful prosecution, and relied on
fabricated evidence to persuade her to plead guilty to a crime she did not
commit. A judgment in her favor on this claim would necessarily imply the
invalidity of her still-extant criminal conviction for reckless driving. Thus,
the claim is not cognizable under Heck. (Heck, supra, 512 U.S. at p. 487
[“[W]hen a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated.”].)
O’Shea also does not discuss how, if at all, she could amend her
section 1983 cause of action to allege a City-adopted policy, custom, or
practice that was deliberately indifferent to a constitutional right—a
prerequisite to a viable Monell claim. Further, she does not address how
amendment would allow her to assert a cause of action against the Individual
Defendants, who—according to the trial court—were immune from liability.
Because O’Shea addresses none of these pleading defects, she has not shown
that the court erred by denying her the chance to file an amended cause of
action under section 1983. (Reeder v. Specialized Loan Servicing LLC (2020)
52 Cal.App.5th 795, 805 [regardless whether a plaintiff may show that a
complaint can be amended for the first time on appeal, the plaintiff must still
show how amendment would cure the pleading defects in the complaint].)
O’Shea appears to contend that amendment could cure at least one of
the pleading defects that the trial court discussed in its demurrer ruling—
namely, the court’s finding that her section 1983 cause of action was
untimely. As best we can discern, she argues the section 1983 cause of action
did not accrue until April 1, 2021, when she obtained the DMV officer’s
13
statement and confirmed the arrest was conducted without probable cause.
We are not persuaded there is a reasonable probability O’Shea’s timeliness
problem—which itself is just one of several fatal defects identified in the
demurrer order—can be cured by amendment.
“A section 1983 cause of action is subject to the forum state’s statute of
limitations for personal injury torts. [Citation.] California’s statute of
limitations governing a personal injury claim is two years. [Citation.]
Federal law governs when a cause of action accrues and when the statute of
limitations begins to run on a federal civil rights cause of action.” (Shalabi v.
City of Fontana (2021) 11 Cal.5th 842, 847.) “The general rule is that a civil
rights claim accrues under federal law ‘when the plaintiff knows or has
reason to know of the injury which is the basis of the action.’ ” (Bonelli v.
Grand Canyon Univ. (9th Cir. 2022) 28 F.4th 948, 952.)
Here, O’Shea knew of her injury by January 30, 2016, at the latest.
Prior to that date, she had already filed a complaint with the Review Board
alleging that officer Nabizadeh falsified information on her arrest report and
caused her to be wrongly convicted. Further, on that date, she filed a claim
alleging she was convicted of a crime she did not commit, officer Nabizadeh
and Lieutenant White violated her civil rights, members of the Police
Department fabricated blood draw evidence, and Lieutenant White refused to
investigate the falsified evidence. Because O’Shea knew of her allegedly false
arrest and conviction by January 30, 2016, the statute of limitations for her
claim expired no later than January 30, 2018. But O’Shea did not bring suit
until May 26, 2020. Therefore, the section 1983 cause of action is untimely.
O’Shea’s proposed amendment would not transform this untimely cause of
action into a timely one. Thus, the trial court correctly sustained the
demurrers to the section 1983 cause of action without leave to amend.
14
2
The Trial Court Properly Sustained the Demurrers
to the Fraud Cause of Action Without Leave to Amend
Like the section 1983 cause of action, O’Shea does not claim that the
trial court erred by sustaining the demurrers to her fraud cause of action.
Rather, she argues she should be allowed to amend her fraud cause of action.
She argues amendment is justified because it is now “known that the
[arresting] officer committed [c]onstitutional violations” against her. Given
the scope of O’Shea’s appellate arguments, we consider only whether she
should be permitted to amend her fraud cause of action.
The trial court sustained the demurrers to O’Shea’s fraud cause of
action, in part, on grounds that it was untimely under the applicable statute
of limitations. “The statute of limitations for fraud is three years. [Citation.]
Although a cause of action generally accrues, triggering the statute of
limitations, when it ‘ “is complete with all of its elements,” ’ accrual is
postponed until a plaintiff discovers, or has reason to discover, the cause of
action.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472.)
O’Shea has failed to demonstrate that amendment would remedy the
untimeliness of her fraud cause of action. As discussed, O’Shea knew, or had
reason to know, that she was the victim of a supposedly fraudulent arrest
and conviction by January 30, 2016. However, she did not bring suit until
May 26, 2020, rendering the fraud cause of action time-barred. Further,
O’Shea’s alleged discovery of additional evidence or information confirming
the defendants’ allegedly improper conduct is inapposite to whether she filed
her cause of action in a timely manner. Therefore, O’Shea has failed to
establish, to a reasonable probability, that she can amend the complaint to
state a timely cause of action for fraud.
15
There are additional reasons O’Shea is unable to state a fraud cause of
action against the Individual Defendants. As the trial court found, O’Shea
presented no claim against defendants Shen, Smith, Zimmerman, or Nisleit,
as required by the Government Claims Act (Gov. Code, § 911.2). She did
present a claim against defendants Nabizadeh and White, but the City
denied the claim and O’Shea did not bring suit within the ensuing six months
as required by Government Code section 945.6. Thus, the court found O’Shea
could not pursue her fraud cause of action against the Individual Defendants.
O’Shea does not address any of these findings. By failing to provide
cogent legal arguments concerning these findings, O’Shea has waived her
challenges and failed to demonstrate that amendment is warranted as to the
Individual Defendants. (See City of Santa Maria v. Adam (2012) 211
Cal.App.4th 266, 286–287 (Santa Maria) [“In order to demonstrate error, an
appellant must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record.”]; see also Singh v.
Lipworth (2014) 227 Cal.App.4th 813, 817 (Singh) [“a rambling and disjointed
series of accusations … [cannot] be considered ‘meaningful legal analysis
supported by citations to authority and citations to facts in the record that
support the claim of error’ ”].)
3
The Trial Court Properly Sustained the Demurrers
to the Section 1985 Cause of Action Without Leave to Amend
The trial court sustained the demurrers to O’Shea’s section 1985 cause
of action after finding that it was untimely and Heck-barred, among other
reasons. O’Shea asserts the court erred in sustaining the demurrers to the
section 1985 cause of action. In support of this argument, she makes factual
contentions that, in her view, suggest the existence of a vast conspiracy to
arrest her without probable cause, convict her through the use of false
16
evidence, and cover up an unlawful prosecution. O’Shea’s factual contentions
do not demonstrate a reasonable probability that she can state a viable
section 1985 cause of action.
In California, a conspiracy claim brought under section 1985 is subject
to the state’s two-year statute of limitations for personal injury actions.
(Taylor v. Regents of Univ. of Cal. (9th Cir. 1993) 993 F.2d 710, 711 [applying
statute of limitations for personal injury actions to section 1985 claim]; Code
Civ. Proc., § 335.1 [two-year statute of limitations applies to personal injury
actions].) “Although California law determines the length of the limitations
period, federal law determines when a civil rights claim accrues.” (Lukovsky
v. City and County of San Francisco (9th Cir. 2008) 535 F.3d 1044, 1048.) In
the Ninth Circuit, a conspiracy claim accrues in accordance with the last
overt act doctrine. (Gibson v. U.S. (9th Cir. 1986) 781 F.2d 1334, 1340.)
“Under this doctrine, ‘[i]njury and damage in a civil conspiracy action flow
from the overt acts, not from “the mere continuance of a conspiracy.” ’ ”
(Ibid.) An overt act is “ ‘[A]n outward act done in pursuance of the crime and
in manifestation of an intent or design, looking toward the accomplishment of
the crime.’ ” (People v. Von Villas (1992) 11 Cal.App.4th 175, 243.)
The trial court found the section 1985 cause of action was untimely
because the applicable statute of limitations was two years, “the actions at
issue here occurred in 2014 and 2015,” and O’Shea brought suit in 2020.
Although O’Shea proclaims the court erred in sustaining the demurrers, she
does not articulate why the court erred. She does not address the court’s
timeliness analysis or identify the date she believes her section 1985 cause of
action accrued; in fact, she does not even argue that the cause of action was
timely. Her failure to provide a cogent legal argument concerning timeliness
waives any challenge she may have to the trial court’s determination on this
17
issue. (Santa Maria, supra, 211 Cal.App.4th at pp. 286–287; Singh, supra,
227 Cal.App.4th at p. 817.)
In the portion of her opening appellate brief discussing the section 1985
cause of action, O’Shea states in passing that in March 2020, Police
Department Captain Stephanie Rose sent her a blood analysis report from
her arrest. It is unclear what relevance, if any, she ascribes to the delivery of
the blood analysis report. But, insofar as she is implying that Captain Rose’s
delivery of the blood analysis report was the last overt act of the conspiracy
giving rise to the section 1985 cause of action, we are not persuaded. None of
the defendants is alleged to have delivered the blood analysis report at issue;
rather, it was allegedly performed by a non-party who has not been identified
as a conspirator or accomplice to the conspiracy. Moreover, the alleged
delivery of the blood analysis report merely confirmed O’Shea’s existing
suspicions that the defendants had fabricated evidence against her to
convince her to plead guilty to reckless driving. There is no claim made that
the blood analysis report was delivered to further any conspiracy. Thus,
O’Shea’s passing reference to Captain Rose’s alleged delivery of the blood
analysis report does not establish that the section 1985 claim was timely.
Given our conclusion that O’Shea has failed to demonstrate error on the issue
of timeliness, it is unnecessary for us to assess whether the section 1985
claim is Heck-barred or subject to dismissal for other reasons.
Further, although O’Shea challenges the propriety of the order
sustaining the demurrers to her section 1985 cause of action, she does not
argue that she can allege additional facts to properly state a claim. Thus, we
do not consider whether amendment could cure the pleading defects of the
section 1985 cause of action. (See Walters v. Boosinger (2016) 2 Cal.App.5th
421, 439, fn. 21 [“[Plaintiff] does not argue on appeal that he could amend his
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complaint to allege additional facts such that he could properly state a claim
for quiet title pursuant to this theory. Accordingly, we conclude that
[plaintiff] has not demonstrated how he could amend his complaint to
properly state such a claim.”]; Brown v. Deutsche Bank National Trust. Co.
(2016) 247 Cal.App.4th 275, 282 [“[Plaintiff] does not address how she could
amend her complaint to assert a valid cause of action. We therefore agree
with defendants that she has forfeited any argument that the trial court
abused its discretion in sustaining the demurrer without leave to amend.”].)
4
The Trial Court Properly Sustained the Demurrers
to the Privacy Cause of Action Without Leave to Amend
On appeal, O’Shea states she “[c]an [s]atisfy the [s]ixth [c]ause of
[a]ction” because the “facts illustrate that [officer Nabizadeh] violated her
right to freedom, safety and privacy over and over ….” She then states that
officer Nabizadeh subjected her to a “false arrest,” fabricated evidence “to
obtain a conviction at any cost,” and “forced [her] to endure a needle.” As
best we can discern from these statements, O’Shea appears to argue that the
trial court erred by denying her the chance to amend her complaint to allege
a violation of her right to privacy under the state constitution. To the extent
we have properly interpreted O’Shea’s argument, we conclude she has not
shown a reasonable possibility that she can plead a valid cause of action for
violation of her right to privacy.
“[A] plaintiff alleging an invasion of privacy in violation of the state
constitutional right to privacy must establish each of the following: (1) a
legally protected privacy interest; (2) a reasonable expectation of privacy in
the circumstances; and (3) conduct by defendant constituting a serious
invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1, 39–40 (Hill).) “A defendant may prevail in a state constitutional
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privacy case by negating any of the three elements just discussed or by
pleading and proving, as an affirmative defense, that the invasion of privacy
is justified because it substantively furthers one or more countervailing
interests. Plaintiff, in turn, may rebut a defendant's assertion of
countervailing interests by showing there are feasible and effective
alternatives to defendant’s conduct which have a lesser impact on privacy
interests.” (Ibid.)
Insofar as O’Shea contends that her supposed arrest without probable
cause and her unlawful conviction establish a violation of her constitutional
right to privacy, O’Shea has not shown that she is entitled to amend her
complaint. In particular, O’Shea’s claim of a violation of her constitutional
right to privacy would necessarily imply the invalidity of her reckless driving
conviction; thus, it would not be cognizable under Heck, supra, 512 U.S. 477.
O’Shea’s assertion that officer Nabizadeh “forced [her] to endure a
needle” also does not establish, to a reasonable probability, that she can
allege a valid cause of action for violations of her right to privacy.
Irrespective of whether an arrestee possesses a legally protected privacy
interest in his or her blood, O’Shea has not demonstrated that she had a
reasonable expectation of privacy under the circumstances because, by her
own account, she voluntarily consented to the blood draw at issue.4 Her
consent to the blood draw fatally undermines any notion that her privacy
rights were violated. (Hill, supra, 7 Cal.4th at p. 26 [“If voluntary consent is
present, a defendant’s conduct will rarely be deemed ‘highly offensive to a
4 In particular, the operative complaint states that O’Shea told officer
Nabizadeh “she would prefer to take a blood test” because she had a form of
asthma that would make it difficult for her to submit to a breathalyzer.
Elsewhere, the operative complaint stated that O’Shea “requested [a] blood
[draw] due to asthma ….”
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reasonable person’ so as to justify tort liability.”]; TBG Ins. Services Corp. v.
Superior Court (2002) 96 Cal.App.4th 443, 450, fn. 5 [“we view [real party in
interest’s] consent as a complete defense to his invasion of privacy claim”].)
O’Shea has not identified any other allegations supporting her privacy
cause of action. Therefore, she has failed to demonstrate that there is a
reasonable possibility that she could allege a viable cause of action for
violation of her constitutional right to privacy.
C
The Trial Court Committed No Other Reversible Error
In addition to attacking the merits of the demurrer order, O’Shea
contends the trial court displayed judicial bias against her during the
demurrer hearing. We reject this argument because the record does not
disclose even a whisper of judicial bias.
O’Shea argues the trial court exhibited bias against her because it did
not issue a tentative ruling on the demurrers, which supposedly would have
allowed her to prepare for the hearing more effectively. The court’s decision
not to issue a tentative ruling does not establish bias. Indeed, the Rules of
Court expressly grant trial courts the option to issue tentative rulings—or not
to do so. (Cal. Rules of Court, rule 3.1308(e) [the California Rule of Court
governing tentative rulings “does not require any judge to issue tentative
rulings”]; see Super. Ct. S.D. County, Local Rules, rule 2.1.19.B [“Prior to the
hearing, any civil department may issue a tentative ruling in a law and
motion matter, in the sole discretion of the assigned judge.”].)
O’Shea argues the court also showed bias against her because, during
the hearing, it stated that it “agree[d] with the City’s position on every basis”
set forth in its demurrer. Similarly, she asserts the court demonstrated bias
by ruling against her on her privacy cause of action. The court’s rulings and
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its expression of its opinions regarding the parties’ arguments does not evince
bias. (People v. Farley (2009) 46 Cal.4th 1053, 1110 [“ ‘[A] trial court’s
numerous rulings against a party—even when erroneous—do not establish a
charge of judicial bias, especially when they are subject to review.’ ”]; Jack
Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023,
1031 [“Expressions of opinion uttered by a judge, in what he conceived to be a
discharge of his official duties, are not evidence of bias or prejudice.”].)
Next, O’Shea contends the court was biased because it “side[d] with the
defendants without even knowing the causes of action” in the complaint. In
support of this claim, she cites an excerpt from the reporter’s transcript in
which the court opined as follows: “Is there a fraud cause of action in this
complaint? What cause of action is the fraud cause of action? I don’t think
you’ve alleged fraud as a cause of action.” O’Shea’s reference to the record is
both incomplete and misleading. During the colloquy at issue, the court
asked clarifying questions like those just discussed because O’Shea
mislabeled her fraud cause of action as a claim brought under Civil Code
section 3294, the general statute governing punitive damages. The trial
court’s efforts to clarify the nature of O’Shea’s mislabeled fraud cause of
action does not reveal bias on the part of the court.
Finally, O’Shea argues the court was biased because it did not allow
her to speak during the demurrer hearing. The record belies this argument.
The court afforded O’Shea ample opportunity to articulate her arguments
why the demurrers should be overruled. To the extent O’Shea asserts she
should have had unfettered authority to speak whenever she wanted during
the hearing, we do not agree. A trial court’s inherent power to control
litigation before it entitles the court “ ‘ “to exercise reasonable control over all
proceedings connected with pending litigation ... in order to insure the
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orderly administration of justice.” ’ ” (Elkins v. Superior Court (2007) 41
Cal.4th 1337, 1351; see Code Civ. Proc., § 128, subd. (a)(3) [“Every court shall
have the power … [t]o provide for the orderly conduct of proceedings before it,
or its officers.”].) The trial court acted well within the scope of its inherent
authority during the demurrer hearing.
D
O’Shea Has Not Established that
Amendment is Warranted to Add New Defendants
O’Shea argues in passing that she should be permitted to amend her
complaint to add the Police Department and certain unnamed doe defendants
as new defendants to the case. However, she does not identify the specific
causes of action she would allege against each new defendant, the allegations
she would make against each such defendant, or the means by which she
could cure each of the generally-applicable pleading defects discussed
elsewhere in this opinion. For all these reasons, O’Shea is not entitled to
amendment to add new defendants into the case.
IV
DISPOSITION
The judgment is affirmed. Each party is to bear its own appellate costs.
McCONNELL, P. J.
WE CONCUR:
AARON, J.
DATO, J.
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