Petition for Writ of Certiorari — Jeff Baoliang Zhang, Petitioner v. Kory Knapke

COURT OF APPEAL - SECOND DIST.

FILED

May 18, 2023

EVA McCLINTOCK, Clerk

Joy Dilday

Filed: 5/18/23

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JEFF BAOLIANG ZHANG,

Plaintiff and Appellant,

v.

B318744

(Los Angeles County

Super. Ct. No.

21STCV27604)

KORYKNAPKE,

Defendant and Respondent.

APPEAL from an order of the Superior Court of

Los Angeles County, Michael L. Stern, Judge. Affirmed.

Jeff Baoliang Zhang, in pro. per., for Plaintiff and

Appellant.

Cole Pedroza, Kennth R. Pedroza, Dana L. Stenvick;

Reback, McAndrews & Blessy, Raymond L. Blessey and Sean L.

Cooper, for Defendant and Respondent.

App. '

Deputy Clerk

Jeff Baoliang Zhang was charged with attempted murder in

December 2011 after firing shots at the Chinese consulate in

Los Angeles following a protest. Dr. Kory Knapke, a forensic

psychiatrist, was appointed in February 2012 to conduct a

competency examination of Zhang. Dr. Knapke’s report led to a

finding that Zhang was not competent to stand trial within the

meaning of Penal Code section 1368 and to his commitment to

Patton State Hospital. Zhang was ultimately found competent,

pleaded no contest in 2015 to aggravated assault and shooting at

an inhabited dwelling with related firearm enhancements and

was sentenced to nine years in state prison. He was released

from prison in June 2019 but committed to Atascadero State

Hospital as a mentally disordered offender (MDO) until

July 2020.

Zhang, representing himself, sued Dr. Knapke on July 28,

2021. After a demurrer to the original complaint was sustained

with leave to amend, Zhang filed a first amended complaint

alleging causes of action for fraud, elder abuse, other unspecified

intentional torts and violations of federal law and the United

States Constitution. Zhang asserted, in part, that Dr. Knapke

created a “counterfeit” version of his February 5, 2012 report to

the court in the summer of 2017 that was used in proceedings to

continue his post-prison confinement as an MDO. He further

alleged in his amended complaint that a March 2013 report by

Dr. Knapke containing a false diagnosis of delusions, which,

according to Zhang’s original complaint, Dr. Knapke showed him

at that time and had been used to continue the finding he was

not competent to stand trial, was also a “counterfeit,” not created

until 2019 for use in the MDO proceedings.

App 2

The trial court sustained without leave to amend

Dr. Knapke’s demurrer to the first amended complaint, ruling

Zhang’s claims were barred by the three-year statute of

limitations in Code of Civil Procedure section 338, subdivision (d).

The court also ruled Zhang had failed to allege sufficient facts for

a cause of action under the elder abuse statute. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Zhang’s Original Complaint

Zhang was arrested on December 15, 2011 for firing shots

at the Chinese consulate after protest signs he had been using

were confiscated while he was at lunch.1 His original complaint

focused on three purported actions by Dr. Knapke that created or

continued a false picture of his mental health—the original

February 2012 report regarding Zhang’s competence to stand

trial, a “counterfeit” version of that report purportedly prepared

“around summer 2017,” and Dr. Knapke’s March 2013 report that

was the basis for the superior court’s finding that Zhang

remained not competent to stand trial at that time.

1

In a statement attached as an exhibit and incorporated in

his complaint, Zhang explained, “On 12-15-2011,1 went and

made a new protest at the Chinese consulate in LA because for a

long time, their agents and mobsters had been heatedly after me

for my life due to my political ideas about China and my criticism

after their judicial corruption. I displayed eight big signboards

which denounced their murder plots and their persecution

against me .... [Upon returning from lunch, I] found all the

signboards disappeared. I immediately realized that the

consulate staff had removed them away. . . . [In despair I] reeled

down the car window and used my legal weapon to fire some

shots at the closed side-door of the empty Chinese consulate.”

Pi PP .

3

Specifically, Zhang alleged Dr. Knapke was hired on

February 2, 2012 and interviewed Zhang at the Twin Towers

Correctional Facility where he had been in custody since his

arrest. Zhang’s original defense attorney (a deputy public

defender) told Zhang that Dr. Knapke had made a positive

evaluation of him: “‘The doctor believes you are a man of

intelligentsia [sic].’ That was all for Knapke’s mental evaluation

about Plaintiff at that time.”2 Notwithstanding this report,

Zhang alleges that a different public defender thereafter deceived

the superior court mental health department, which found Zhang

not competent to stand trial. Zhang was sent to Patton State

Hospital for involuntary antipsychotic medication and

treatment.3

2

In the section of his report dated February 5, 2012 labeled

“Psychiatric-Legal Opinions,” attached to Zhang’s complaint,

Dr. Knapke stated that Zhang “appears to be a very intelligent

individual” and that he understood the charges and proceedings

against him. However, Dr. Knapke opined, “The defendant

suffers from Delusional Disorder, Persecutory Type. He

currently has a vast paranoid conspiracy theory that Communist

Chinese agents have been persecuting him for years because of

his anti-Communist activism. He believes his Chinese agents are

attempting to assassinate him. He also believes the Chinese

agents have infiltrated the American Mafia organizations and as

a result he also believes mobsters are attempting to kill him as

well. ... [!]...[!] [T]he defendant ruminates on his

persecutory delusions to such an extent that I believe it impairs

his ability to rationally cooperate with his attorney.”

3

Zhang in July 2021 sued two of the public defenders who

had represented him during the time he was found not competent

to stand trial, apparently for legal malpractice, fraud and elder

abuse. The trial court sustained a demurrer with leave to amend.

App .

4

Zhang was returned to county jail in mid-February 2013.

Dr. Knapke came to see Zhang a second time in March 2013 and

allegedly showed Zhang a “fake medical report with the diagnosis

of 'delusion’” based on an intentional misrepresentation by

Dr. Knapke of Zhang’s diagnosis while at Patton State Hospital.

Zhang alleged that Dr. Knapke’s March 2013 false medical report

“sabotaged” his scheduled release, caused him to be sent back to

Patton and led to his confinement for the following eight years.

Zhang additionally alleged that in the summer of 2017,

while Zhang was confined at the California Institute for Men in

Chino, Dr. Knapke wrote a “counterfeit evaluation” of his mental

health, replacing his original positive February 2012 report with

a negative one, declaring that Zhang had serious mental

problems. That false report, which retained the February 5, 2012

date, was used to support the finding that Zhang was an MDO

and his commitment to Atascadero State Hospital for treatment

in June 2019.

Zhang alleged a cause of action for fraud, based on

Dr. Knapke’s reportedly false March 2013 mental health

evaluation and alteration in the summer of 2017 of his original,

positive mental health report made in February 2012. Zhang

asserted, “Since March 2013 to the time Plaintiff was discharged

from [Atascadero State Hospital] in July 2020, Defendant’s

two fake reports played a very hostile and important part in

harming the Plaintiff.” He also alleged a federal law violation

(perjury) based on the two counterfeit medical reports and a

violation of his sacred rights as a United States citizen in

Zhang failed to file an amended complaint. A judgment of

dismissal with prejudice was affirmed on appeal. (Zhang v.

County of Los Angeles (Feb. 27, 2023, B319492) [nonpub. opn.].)

hff . 5

violation of the Fourteenth Amendment. He sought $200 million

in damages.4

Dr. Knapke demurred and moved to strike portions of the

complaint, arguing Zhang had failed to allege fraud with the

requisite specificity and the fraud cause of action was, in any

event, barred by Code of Civil Procedure section 338,

subdivision (d)’s three-year statute of limitations.5 In his

opposition Zhang insisted the complaint sufficiently identified

two frauds, “One happened on March 20, 2013, the other

happened in summer 2017.” As for his failure to file within three

years of learning of the fraud as early as 2013, Zhang argued he

was unable to do so because of his wrongful detention from

December 2011 to July 2020.

The trial court sustained Dr. Knapke’s demurrer to the

original complaint on November 3, 2021. Zhang was given leave

to amend.6

2. Zhang’s First Amended Complaint

Zhang filed a first amended complaint on November 19,

2021, which contained a greatly expanded description of Zhang’s

4

Zhang filed a statement of damages in September 2021

that divided his request for damages into categories, including a

prayer for $30 million in damages because he “[l]ost eight years

of freedom due to the counterfeit medical report in 2013.” The

statement also specified that he sought $50 million in punitive

damages.

5

The record on appeal does not include Dr. Knapke’s

demurrer and motion to strike; but Zhang’s opposition papers,

which are included, quoted the pertinent portions of those

documents.

6

The record on appeal does not include the trial court’s

ruling on the demurrer.

App. 6

mistreatment by Dr. Knapke and others.7 The amended pleading

asserted “this case is about fraud and intentional tort liability”;

realleged Zhang’s claims for violating federal law (perjury) and

the United States Constitution; and added a new cause of action

for elder abuse. Zhang again alleged that Dr. Knapke’s

February 5, 2012 report was “a completely counterfeit document

[that] never existed at that time. The full content was created

[at] a later date in order to send Plaintiff to the mental hospital

again or to keep such a bad record for my mental history.”

However, although Zhang alleged, as he had in his original

complaint, that the February 5, 2012 report was not actually

prepared until the summer of 2017, elsewhere in the first

amended complaint Zhang quoted a December 14, 2014

evaluation by another mental health professional that referred

to, and quoted from, Dr. Knapke’s 2012 report in which

Dr. Knapke diagnosed Zhang as having a “delusional disorder,

persecutory type” and noted that, after the treatment team at

Patton believed Zhang had been restored to competency and

returned him to county jail (in 2013), Dr. Knapke again wrote

“the defendant had not reached trial competency due to his

continuing delusional beliefs (for example, that a jury trial would

be preferred because this would ‘. . . minimize the Chinese

government’s influence on the legal proceedings.’” Zhang

included the December 14, 2014 report as an exhibit to his

pleading.

The first amended complaint again alleged that Dr. Knapke

brought with him in March 2013 a false evaluation stating Zhang

7

Zhang’s original complaint with attachments was 36 pages

long. His first amended complaint with exhibits totaled 112

pages.

App. 7

was delusional, but also alleged, “As for the second report dated

03-21-2013, Plaintiff believes it should be written by Defendant

in summer 2019 for my MDO treatment” and that, “[T]he second

mental report by Defendant dated 03-21-2013 was in fact created

around summer 2019 to send Plaintiff to the mental hospital for

the third time although Plaintiff has not seen its full contents till

this date.”

Among the exhibits attached to, and incorporated in, the

first amended complaint were (1) the minute order dated

March 2, 2012 from the superior court’s mental health

department 95 finding Zhang mentally incompetent within the

meaning of Penal Code section 1368 and committing him to the

Department of Mental Health for placement at Patton State

Hospital, which stated, “Counsel waive oral testimony of

Doctor Kory Knapke. Certificates of medical examiner are

received in evidence by reference”; and (2) the minute order dated

April 10, 2013, again finding Zhang incompetent to stand trial

and recommitting him to Patton State Hospital, which stated

Dr. Knapke’s report dated March 21, 2013 had been received, and

noted, “Counsel waives oral testimony of DR. KORY KNAPKE.

Certificates of Medical Examiner are received in evidence by

reference.”

The newly added cause of action for elder abuse included

the allegation that Zhang was 68 years old in April 2012 when he

was sent to Patton State Hospital for involuntary treatment and

69 years old when he was returned to Patton in May 2013. The

treatment he received because of Dr. Knapke’s slanders and

failure to provide a fair evaluation was “absolutely unnecessary”

and caused Zhang to suffer “serious harm mentally and

• 8

physically” not only in 2012 and 2013 but also “for quite a few

years to 2019 and afterwards.”

3. Dr. Knapke’s Demurrer and the Trial Court’s Ruling

Dr. Knapke demurred to the first amended complaint on

December 21, 2021. The demurrer emphasized that in his

original complaint Zhang had alleged Dr. Knapke made a

counterfeit medical report in 2013 and another counterfeit

evaluation in 2017 and “‘[t]hese two reports aimed at bringing

serious harms to Plaintiffs mental health.’” Then, in an effort to

avoid the statute of limitations after Dr. Knapke’s demurrer to

the original complaint had been sustained, Zhang alleged for the

first time that the report dated March 21, 2013 had actually been

created in the summer of 2019. Dr. Knapke argued the new

allegation was prohibited by the sham pleading doctrine, Zhang’s

cause of action for fraud was based on conduct that had occurred

nine years earlier and thus barred by the governing statute of

limitations, and Zhang had again failed to plead fraud with the

requisite specificity. With respect to the new cause of action for

elder abuse, Dr. Knapke argued Zhang had failed to seek leave of

court to add this claim; it, too, was barred by the applicable

statute of limitations (two years pursuant to Code of Civil

Procedure section 335.1); and Zhang failed to properly plead the

elements of the cause of action, including that the necessary

custodial relationship existed between Zhang and Dr. Knapke.

In his response to the demurrer Zhang now asserted that

Dr. Knapke made three counterfeit reports: one with a diagnosis

of “delusion” that Dr. Knapke showed Zhang on March 20, 2013;

a second one revealed to Zhang in the summer of 2017 that was

dated February 5, 2012; and a third report revealed to Zhang in

the summer of 2019 dated March 21, 2013 that Zhang had not

9

previously seen. Zhang contended there was no contradiction

between the allegations in his original complaint and the first

amended complaint and the sham pleading doctrine did not

apply.

Zhang also argued his first amended complaint was

sufficiently specific, noting he had repeatedly alleged that

Dr. Knapke made false accusations and false reports, which

forced him to stay in the mental hospital in 2012, 2013 and 2019.

And he contended he had been unable to file his lawsuit any

earlier because his unlawful confinement and isolation while in

custody prevented him from representing himself or obtaining

fair representation in his criminal and civil matters.

The trial court sustained the demurrer without leave to

amend and dismissed the lawsuit. In its ruling the court

explained that Zhang’s causes of action for fraud and elder abuse

were based on a report by Dr. Knapke written in 2012 and 2013

that had been part of Zhang’s psychiatric record for eight or nine

years and “Plaintiff concedes that he was aware of the report for

all of this period of time since 2013 and has tried to have it

deleted or not have an effect on his custodial status.”

Notwithstanding Zhang’s argument in opposition to the demurrer

that he discovered the effects of the report only in 2017, the court

continued, his claims are barred by the three-year statute of

limitations in Code of Civil Procedure section 338, subdivision (d).

In addition, the court ruled, Zhang had not alleged sufficient

facts demonstrating reckless, fraudulent or malicious conduct to

plead a cause of action for elder abuse. Finally, the court added,

“Whether plaintiff has causes of action that he might file in

federal court, as orally suggested by him at length during oral

argument, is beyond the scope of this Court’s jurisdiction.”

A’p-p 4 10

Zhang filed a timely notice of appeal.

DISCUSSION

1. Standard of Review

A demurrer tests the legal sufficiency of the factual

allegations in a complaint. We independently review the trial

court’s ruling on a demurrer and determine de novo whether the

complaint alleges facts sufficient to state a cause of action or

discloses a complete defense. (Mathews u. Becerra (2019)

8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017)

4 Cal.5th 145, 162.)

We assume the truth of the properly pleaded factual

allegations, facts that reasonably can be inferred from those

expressly pleaded and matters of which judicial notice has been

taken. (Evans v. City of Berkeley (2006) 38 Cal. 4th 1, 20; accord,

Centinela Freeman Emergency Medical Associates v. Health Net

of California, Inc. (2016) 1 Cal.5th 994, 1010; Schifando v. City of

Los Angeles (2003) 31 Cal.4th 1074, 1081.) However, “[i]f facts

appearing in the exhibits contradict those alleged, the facts in the

exhibits take precedence.” (Holland v. Morse Diesel Internat.,

Inc. (2001) 86 Cal.App.4th 1443, 1447; accord, Westamerica Bank

v. City of Berkeley (2011) 201 Cal.App.4th 598, 607 [“‘The wellpled allegations that we accept as true necessarily include the

contents of any exhibits attached to the complaint. Indeed, the

contents of an incorporated document. . . will take precedence

over and supersede any inconsistent or contrary allegations set

out in the pleading’”]; Hoffman v. Smithwoods RVPark, LLC

(2009) 179 Cal.App.4th 390, 400 [“[u]nder the doctrine of truthful

pleading, the courts ‘will not close their eyes to situations where

a complaint contains allegations of fact inconsistent with

App. 11

attached documents, or allegations contrary to facts which are

judicially noticed’”].)

A demurrer based on an affirmative defense is properly

sustained when the face of the complaint and matters judicially

noticed clearly disclose the defense or bar to recovery.

(See Favila v. Katten Muchin Rosenman LLP (2010)

188 Cal.App.4th 189, 224; see also Stella v. Asset Management

Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; Marina Tenants

Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d

122, 130-132.) If “‘the complaint’s allegations or judicially

noticeable facts reveal the existence of an affirmative defense, the

“plaintiff must ‘plead around’ the defense, by alleging specific

facts that would avoid the apparent defense. Absent such

allegations, the complaint is subject to demurrer for failure to

state a cause of action.

(.Esparza v. County of Los Angeles

(2014) 224 Cal.App.4th 452, 459.)

???>?

We affirm the judgment if it is correct on any ground stated

in the demurrer, regardless of the trial court’s stated reasons

(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967;

Las Lomas Land Co., LLC v. City of Los Angeles (2009)

177 Cal.App.4th 837, 848), but liberally construe the pleading

with a view to substantial justice between the parties. (Code Civ.

Proc., § 452; Ivanoff v. Bank of America, N.A. (2017)

9 Cal.App.5th 719, 726; see Schifando v. City of Los Angeles,

supra, 31 Cal.4th at p. 1081.)

“‘Where the complaint is defective, “[i]n the furtherance of

justice great liberality should be exercised in permitting a

plaintiff to amend his [or her] complaint.’”” (Aubry v. Tri-City

Hospital Dist., supra, 2 Cal.4th at p. 970.) A plaintiff may

demonstrate for the first time to the reviewing court how a

A??. 12

V

complaint can be amended to cure the defect. (Code Civ. Proc.,

§ 472c, subd. (a) [“[w]hen any court makes an order sustaining a

demurrer without leave to amend the question as to whether or

not such court abused its discretion in making such an order is

open on appeal even though no request to amend such pleading

was made”]; see Sierra Palms Homeowners Assn. v. Metro Gold

Line Foothill Extension Construction Authority (2018)

19 Cal.App.5th 1127, 1132 [plaintiff may carry burden of proving

an amendment would cure a legal defect for the first time on

appeal].) However, leave to amend should not be granted where

amendment would be futile. (See Ivanoff v. Bank of America,

N.A., supra, 9 Cal.App.5th at p. 726; see also Rubenstein v. The

Gap, Inc. (2017) 14 Cal.App.5th 870, 881 [“‘[w]hile such a

showing can be made for the first time to the reviewing court

[citation], it must be made”’].)

2. Zhang’s Lawsuit Was Properly Dismissed as Timebarred

Zhang’s first amended complaint alleged, in essence, that

Dr. Knapke falsely diagnosed Zhang with a mental illness and

prepared reports for the superior court’s mental health

department incorporating the false diagnosis, which, in turn, led

to Zhang’s involuntary commitment and improper treatment, all,

apparently, at the behest of the Chinese government. Based on

those allegations, Zhang purported to state causes of action for

fraud, elder abuse and violation of his federal civil rights. Each

of those claims is barred by the applicable statute of limitations—

three years from discovery of the facts for fraud (Code Civ. Proc.,

§ 338, subd. (d));8 two years for an elder abuse claim based on

8

The plaintiffs justifiable reliance on the defendant’s

misrepresentation or actionable nondisclosure is an essential

App. 13

physical or mental abuse under Code of Civil Procedure

section 335.1 (see Benun v. Superior Court (2004)

123 Cal.App.4th 113, 125-126 [applying Code of Civil Procedure

section 335.1 governing personal injury actions to elder abuse

claim]);9 and two years pursuant to the statute of limitations

governing personal injury actions for Zhang’s cause of action for

deprivation of civil rights under title 42 United States Code

section 1983 (section 1983 cause of action) (see Shalabi v. City of

Fontana (2021) 11 Cal.5th 842, 847 [“[a] section 1983 cause of

action is subject to the forum state’s statute of limitations for

personal injury torts”].)10

element of a cause of action for fraud. (See In re Tobacco II Cases

(2009) 46 Cal.4th 298, 326; Mirkin v. Wasserman (1993) 5 Cal.4th

1082, 1096; Missakian v. Amusement Industry, Inc. (2021)

69 Cal.App.5th 630, 653.) Zhang, of course, does not allege that

he relied on Dr. Knapke’s false reports of his delusional disorder.

Accordingly, even were it timely, the cause of action for fraud

would be properly dismissed for failure to state sufficient facts.

9

Although Welfare and Institutions Code section 15657.7

establishes a four-year limitations period for financial elder

abuse, the Elder Abuse Act does not specify the limitations period

applicable to claims for physical abuse and infliction of emotional

distress under the Act. The two-year statute of limitations for

personal injury claims as set forth in Code of Civil Procedure

section 335.1 presumably governs those claims, as held in Benun

v. Superior Court, supra, 123 Cal.App.4th 113, 125-126, but an

argument can be made that the three-year statute of limitations

in Code of Civil Procedure section 338, subdivision (a), applicable

to statutory causes of action, governs. Zhang’s elder abuse claim

is time-barred under either statute.

10

Zhang’s allegations regarding perjury do not state a cause

of action under California law. (Pollock v. University of Southern

App. 14

Zhang’s pleading presented a confusing chronology; but the

exhibits attached to it unequivocally established that Dr. Knapke

performed his court-ordered services in 2012 and 2013, many

years before Zhang filed his original complaint on July 28, 2021.

Zhang alleged, as he must, that Dr. Knapke interviewed him in

February 2012 and March 2013. His allegation that

Dr. Knapke’s original evaluation was positive and that the

unfavorable report dated February 5, 2012 was not prepared

until summer 2017 (which would still be outside the governing

two- and three-year limitations periods) is contradicted by

Zhang’s additional allegations that Dr. Knapke’s “false

accusations and false reports” forced him to stay in the mental

hospital beginning in 2012, as well as by his allegation that Dr.

Phani Tumu, in his December 14, 2014 evaluation of Zhang

pursuant to Evidence Code section 730, “cited quotes from Kory

Knapke’s report dated 02-05-2012 as an important source to tell

that Plaintiff had got serious mental problems.” As discussed,

Zhang’s pleading included excerpts from Dr. Tumu’s report that

expressly referred to Dr. Knapke’s February 5, 2012 report and

attached Dr. Tumu’s report as an exhibit.

Similarly, the June 29, 2015 report from Dr. Andrea

Bernhard, quoted by Zhang in his first amended complaint and

attached as an exhibit, referred to Dr. Knapke’s February 5, 2012

California (2003) 112 Cal.App.4th 1416, 1429 [“[t]here is no civil

cause of action for ‘perjury’”]; accord, Lambert v. Carneghi (2008)

158 Cal.App.4th 1120, 1143, fn. 9; Kappel v. Bartlett (1988)

200 Cal.App.3d 1457, 1463.) To the extent Zhang sought to allege

Dr. Knapke’s reports violated his rights under the United States

Constitution or title 18 United States Code section 1621

(perjury), any such claim, if cognizable at all, would necessarily

fall within the ambit of his section 1983 cause of action.

15

report, which “opined that Mr. Zhang was incompetent to stand

trial.” Moreover, the minute order from the March 2, 2012

hearing at which Zhang was found incompetent was attached and

incorporated into the pleading. That order identified Dr. Knapke

(oral testimony waived) and received into evidence the medical

certificates necessary to commit Zhang to Patton State Hospital.11

Even if Zhang had not made his own inconsistent allegations, the

contents of the documents he attached as exhibits supersede any

contrary allegations set out in the pleading. As did the trial

court, we disregard the allegation that Dr. Knapke’s negative

February 5, 2012 report did not exist until 2017.

As to the March 2013 report by Dr. Knapke, Zhang

conceded in his opposition to the demurrer that Dr. Knapke

prepared a report dated March 20, 2013, which was the basis for

the court’s 2013 order committing him to Patton State Hospital

for a second time. But he then argued there was an additional

negative report, dated March 21, 2013, that was not prepared by

Dr. Knapke until summer 2019 for use in the MDO proceedings.

In his first amended complaint, however, Zhang insisted there

were only two negative reports by Dr. Knapke—the purportedly

counterfeit February 5, 2012 report made in 2017 and a new

counterfeit report, dated March 21, 2013, created in summer

2019.

u

Zhang alleged in paragraph 115 of the first amended

complaint, “In early March 2012, Defendant began to make false

comments or counterfeit reports to harm the Plaintiff who was a

mentally healthy man. Defendant sent Plaintiff to PSH [Patton

State Hospital] as Defendant was the only doctor listed on the

first Court Minute Order dated 03-02-2012.”

App. 16

Like the claim the February 2012 report was not created

until 2017, neither of these internally inconsistent sets of

allegations regarding a counterfeit 2019 report withstands

scrutiny. Dr. Tumu’s 2014 report stated that Dr. Knapke’s

second report following Zhang’s initial release from Patton State

Hospital indicated Zhang had not reached trial competency due

to his continuing delusional beliefs. Zhang was then recommitted

to Patton on April 10, 2013. The minute order from that hearing,

attached as an exhibit to Zhang’s first amended complaint,

identified the medical evaluation received in evidence as

Dr. Knapke’s report “dated 03/21/13.” There was only one March

2013 report by Dr. Knapke. It was dated March 21, 2013 and

existed more than six years prior to the summer of 2019.

Zhang’s allegations he was unaware of the 2012 and 2013

reports when they were submitted to the court do not save his

untimely complaint under the delayed discovery rule. To

reiterate, both Dr. Knapke’s original February 2012 report and

his second report of March 2013 leading to Zhang’s

recommitment to Patton State Hospital were described in

Dr. Tumu’s December 2014 evaluation report. And

Dr. Bernhard’s June 2015 report quoted Zhang as being familiar

with Dr. Tumu’s report, criticizing it as ‘“a big fraud, it is

deceptive, it is harmful to me.’” Thus, even accepting as true

Zhang’s allegations that he had not seen either of Dr. Knapke’s

formal reports at the time, he was necessarily familiar with their

general contents—Dr. Knapke’s diagnosis that Zhang suffered

from persecutory delusions—by June 2015. Accordingly, all

causes of action based on allegations that Dr. Knapke reported

that false diagnosis to the court accrued at least six years before

Zhang’s lawsuit was filed. (See, e.g., Jolly v. Eli Lilly &

App. 17

Co. (1988) 44 Cal.3d 1103, 1110 [“[u]nder the discovery rule, the

statute of limitations begins to run when the plaintiff suspects or

should suspect that her injury was caused by wrongdoing, that

someone has done something wrong to her”]; Alexander v. Exxon

Mobil (2013) 219 Cal.App.4th 1236, 1251 [“The limitations period

begins once the plaintiff has notice or information of

circumstances to put a reasonable person on inquiry. Subjective

suspicion is not required. If a person becomes aware of facts

which would make a reasonably prudent person suspicious, he or

she has a duty to investigate further and is charged with

knowledge of matters which would have been revealed by such an

investigation” (cleaned up)]; McCoy v. Gustafson (2009)

180 Cal.App.4th 56, 108 [same]; see also State of California ex rel.

Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th

402, 417 [a plaintiff is on inquiry notice when “‘he at least

suspects . . . “that someone has done something wrong” to him

[citation], “wrong” being used, not in any technical sense, but

rather in accordance with its “lay understanding””’].)

Zhang’s effort to avoid the preclusive effect of the governing

limitations periods by alleging the harmful consequences of

Dr. Knapke’s 2012 and 2013 reports continued until 2020 as a

result of his confinement as an MDO is misplaced. Zhang’s

claims against Dr. Knapke arise from Dr. Knapke’s 2012 and

2013 reports to the court. Any causes of action relating to those

discrete acts accrued years before the lawsuit was filed. (See

Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737,

745 [“[I]f continuing injury from a completed act generally

extended the limitations periods, those periods would lack

meaning. Parties could file suit at any time, as long as their

injuries persisted. This is not the law. The time bar starts

App. 18

running when the plaintiff first learns of actionable injury

[citation], even if the injury will linger or compound”].) The

“continuous violation” or “continuous accrual” doctrine, in

contrast, involves recurring or continuous conduct, not ongoing

effects based on prior misconduct. (See, e.g., Richards v. CH2M

Hill, Inc. (2001) 26 Cal.4th 798, 823 [ongoing disability

discrimination in employment]; Wyatt v. Union Mortgage Co.

(1979) 24 Cal.3d 773, 786 [last overt act in a civil conspiracy to

commit an ongoing fraud]; see also Aryeh v. Canon Business

Solutions, Inc. (2013) 55 Cal.4th 1185, 1200-1201 [recurring

imposition of fraudulent charges for copier rental]; Gilkyson v.

Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1341

[recurring duty to pay music royalties].)12

Zhang’s reliance on equitable tolling is similarly without

merit. “[E]quitable tolling is a narrow remedy that applies to toll

statutes of limitations only ‘occasionally and in special

12

Zhang does not—and cannot—allege a caretaking or

custodial relationship existed between him and Dr. Knapke.

Accordingly, Zhang’s allegations that the harsh conditions of his

confinement through 2020 constituted elder abuse are immaterial

for purposes of assessing the timeliness of his claims. (See Winn

v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155 [“a

claim of neglect under the Elder Abuse Act requires a caretaking

or custodial relationship—where a person has assumed

significant responsibility for attending to one or more of those

basic needs of the elder or dependent adult that an able-bodied

and fully competent adult would ordinarily be capable of

managing without assistance”]; Kruthanooch v. Glendale

Adventist Medical Center (2022) 83 Cal.App.5th 1109, 1129 [the

Elder Abuse Act “does not apply unless the caretaking

relationship is ‘robust’ and the measure of responsibility assumed

by the caretaker is ‘significant’”].)

App. 19

situations.’” (Saint Francis Memorial Hospital v. State Dept, of

Public Health (2020) 9 Gal.5th 710, 724.) “[EJquitable tolling

today applies when three ‘elements’ are present: ‘[(1)] timely

notice, and [(2)] lack of prejudice, to the defendant, and

[(3)] reasonable and good faith conduct on the part of the

plaintiff.’ [Citation.] These requirements are designed to

£balanc[e] . . . the injustice to the plaintiff occasioned by the bar of

his claim against the effect upon the important public interest or

policy expressed by the [operative] limitations statute.’” (Id. at

724-725; accord, Tarkington v. California Unemployment Ins.

Appeals Bd. (2009) 172 Cal.App.4th 1494, 1503, see McDonald v.

Antelope Valley Community College Dist. (2008) 45 Cal.4th

88, 102.)

In his briefs in this court Zhang insisted the delayed filing

of his lawsuit should be excused because “[isolation and fear of

death threat prevented [him] from filing it earlier in prison, [and]

the poor financial situation and unstable living conditions after

release also delayed the legal work.” Absent from this argument

for equitable tolling is any indication that Dr. Knapke was

notified of Zhang’s claims at any time prior to Zhang’s belated

filing of his original complaint in late July 2021. In contrast, in

Lewis v. Superior Court (1985) 175 Cal.App.3d 366, the lone

equitable tolling (or “implicit tolling,” as the Lewis court called it)

authority cited by Zhang, the defendant and its insurer were on

notice of the plaintiffs personal injury claim prior to the running

of the limitations period, and active settlement negotiations were

ongoing. (Id. at p. 377.) However, the plaintiffs lawyer, a sole

practitioner, was struck by an automobile and suffered lifethreatening head injuries five days before the limitations period

fa'pp. 20

ran. The lawsuit was filed only six weeks late, after the lawyer

was released from the hospital and resumed his practice.

In sum, none of Zhang’s causes of action was timely filed.

Neither the delayed discovery doctrine nor equitable tolling saves

his lawsuit.13

DISPOSITION

The order dismissing Zhang’s first amended complaint is

affirmed. Zhang’s motion for sanctions is denied. Dr. Knapke is

to recover his costs on appeal.

PERLUSS, P. J.

We concur.

---------

FEUER, J.

ESCALANTE, J.*

13

In his respondent’s brief Dr. Knapke argued, because

Zhang’s claims were all based on Dr. Knapke’s role as a courtappointed medical examiner, his conduct and reports were

protected by Civil Code section 47, subdivision (b)(2)’s litigation

privilege, as to Zhang’s state law causes of action, and by quasi­

judicial immunity as to Zhang’s federal civil rights claim. We

need not address whether these defenses, not raised in the trial

Court, have merit and could properly be decided on demurrer.

Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

App. 21

SUPREME COURT

FILED

Court of Appeal, Second Appellate District, Division Seven - No. B318744

Jorge Navarrete Clerk

S280454

IN THE SUPREME COURT OF CALIFORNIA

En Banc

JEFF BAOLIANG ZHANG, Plaintiff and Appellant,

v.

KORY KNAPKE, Defendant and Respondent.

The petition for review is denied.

GUERRERO

Chief Justice

App.

2 6 2023

Deputy

App«t\ A i x

6

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

Reserved for Clerk s File Stamp

FILED

COURTHOUSE ADDRESS:

Superior Court of California

Countyo! LosAngstes

Stanley Mosk Courthouse

111 North Hill Street, Los Angeles, CA 90012

PLAINTIFF(S):

:

~

~

W-

Jeff Baoliang Zhang, Ph.D ~

DEFENDANT(S):

02/07/2022

ft Csrier.&eeeugve o&as i Oasfc aiCous

M‘Al3nfe

1

~~

~

“

Kory Knapke

ORDER OF DISMISSAL

CASE NUMBER:

21STCV27604

On the motion of the court

and

__pursuant to the provisions of section

of the Civil Code of Procedures,

__pursuant to Local Policy and / or Local Rules,

it is hereby ordered that the within action is dismissed

^ with prejudice as to

__without prejudice as to

^ entire action

__complaint only

__cross complaint of

other

It is further ordered that____________________

to recover costs as provided by law

__in the sum of $_____________

__per filing memorandum of costs (1033 CCP et. Se|^^.,

Dated: 02/07/2022

Michael L. Stem/Judge

Judicial Officer

LACIV 140 (Rev. XX/XX)

LASC Approved 07-04

ORDER OF DISMISSAL

(Page 1

of

2)

sinr\ diX C

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

Civil Division

Central District, Stanley Mosk Courthouse, Department 62

21STCV27604

JEFF BAOLIANG ZHANG, PH.D vs KORY KNAPKE

Judge: Honorable Michael L. Stem

Judicial Assistant: M. Alaniz

Courtroom Assistant: P. Figueroa

February 7, 2022

10:44 AM

CSR: None

ERM: None

Deputy Sheriff: None

APPEARANCES:

For Plaintiff(s): No Appearances

For Defendant(s): No Appearances

NATURE OF PROCEEDINGS: Ruling on Submitted Matter

The Court, having taken the matter under submission on 02/02/2022 for Hearing on Demurrer with Motion to Strike (CCP 430.10), now rules as follows:

Plaintiff’s First Amended Complaint alleges causes of action for fraud and elder abuse based on

a report written by the defendant in 2012 and 2013 that has been part of his psychiatric record

during the past eight or more years and affected his classification within the prison system and

release from custody. Plaintiff concedes that he was aware of the report for all of this period of

time since 2013 and has tried to have it deleted or not have an effect on his custodial status. He

bases his opposition to the demurrer and motion to strike upon “discovery” of the effects of the

report in 2017.

Notwithstanding the plaintiffs eloquent argument at the hearing on the demurrer and motion to

strike, his claims are barred by the relevant three-year statute of limitations set forth in Code of

Civil Procedure section 338(d) based on his failure to timely plead them within the statutory

period. He also has not alleged sufficient facts under the Elder Abuse statute demonstrating

reckless, fraudulent or malicious conduct by the defendant for the Court to conclude that plaintiff

has sufficiently pleaded a cause of action for elder abuse. See, Delaney v. Baker, 20 Cal.4th 23,

31 (1999). Whether plaintiff has causes of action that he might file in federal court, as orally

suggested by him at length during oral argument, is beyond the scope of this Court’s jurisdiction.

For these reasons, the demurrer is sustained without leave to amend. The motion to strike is

moot. The Court orders the Amended Complaint (1st) filed by Jeff Baoliang Zhang, Ph.D on

11/19/2021 dismissed with prejudice.

H WttnitJL.

m.

Michael L. Stem/Judge

Minute Order

Page 1 of2

A]»^. 2.3

Doc# 1 Page# 1 - Doc ID = 1930533494 - Doc Type = Minute Order

(Page 2

of

2)

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

Civil Division

Central District, Stanley Mosk Courthouse, Department 62

21STCV27604

JEFF BAOLIANG ZHANG, PH.D vs KORY KNAPKE

Judge: Honorable Michael L. Stem

Judicial Assistant: M. Alaniz

Courtroom Assistant: P. Figueroa

February 7, 2022

10:44 AM

CSR: None

ERM: None

Deputy Sheriff: None

Clerk is to give notice.

Certificate of Mailing is attached.

Minute Order

Page 2 of 2

A??. 1 if

Doc# 1 Page# 2 - Doc ID = 1930533494 - Doc Type = Minute Order

Additional material

from this filing is

available in the

Clerk's Office.