Zhang v. County of L.A. CA2/1 ( 2023 )

Filed 2/27/23 Zhang v. County of L.A. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
JEFF BAOLIANG ZHANG, B319492
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 21STCV27611)
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from the judgment of the Superior Court of
Los Angeles County, Armen Tamzarian, Judge. Affirmed.
Jeff Baoliang Zhang, in pro. per., for Plaintiff and
Appellant.
Collinson, Daehnke, Inlow & Greco and Laura E. Inlow
for Defendants and Respondents.
____________________________
Plaintiff and appellant Jeff Baoliang Zhang appeals
from a judgment dismissing with prejudice his lawsuit against
defendants and respondents County of Los Angeles (erroneously
sued as Los Angeles County Public Defender Office), Jonathan
Petrak, and Rourke Stacy, after the court sustained a demurrer
to Zhang’s operative complaint with leave to amend, and Zhang
failed to file an amended complaint. We affirm.
FACTS AND PROCEEDINGS BELOW
Zhang alleged the following facts in the operative complaint
and/or they are reflected in documents of which we take judicial
notice (see Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6).
On December 15, 2011, Zhang was engaged in a “peaceful
protest before the Chinese communist consulate in [Los Angeles]
because their agents had been heatedly after [him] for [his] life
due to [his] pro-democracy writings about China.” Consulate
staff “illegally removed [Zhang’s] protest signboards to the
trash[ ]can,” whereupon Zhang, “[f]eeling [his] constitutional
rights were violated by the Chinese communists, . . . fired some
shots at the closed side[ ]door of the empty consulate building
to express [his] strong protest.” Zhang was criminally charged.
During his criminal proceedings, several different deputy public
defenders represented him, including Petrak and Stacy.
Petrak first represented Zhang in February of 2012.
Petrak expressed doubt to the criminal court about Zhang’s
mental competency to stand trial. This led to the mental health
court conducting a competency hearing and concluding in March
2012 that Zhang was “mentally incompetent within the meaning
of [s]ection 1368 of the Penal Code.” The court suspended
criminal proceedings and ordered him committed to Patton State
Hospital (PSH).
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In December of 2013, Zhang wrote a petition for writ
of habeas corpus asserting that his public defender “slandered
[him] two times and forced [him] to stay in [a] mental hospital.”
The operative complaint and record on appeal are unclear as to
whether Zhang filed the petition.
In January 2014, Zhang was released from PSH as
competent to stand trial. Stacy represented Zhang at two
hearings in August and September of 2014. In November of
2014, Zhang fired the public defender’s office and retained
private counsel. Zhang’s private attorney “coerced [him] to
take [a] plea bargain.” In 2015, Zhang entered a plea of nolo
contendere to the charges of aggravated assault and a firearm
sentencing enhancement, and on October 15, 2015, the court
sentenced him to serve nine years in prison. He was released
from prison in June of 2019 and sent to Atascadero State
Hospital, from which he was released in July 2020.
On July 28, 2021, Zhang filed his original complaint
against the “Los Angeles County Public Defenders Office.”
On December 10, 2021, Zhang filed his first amended complaint,
naming as defendants “Los Angeles County Public Defender
Office,” Petrak, and Stacy. On February 10, 2022, the court
sustained a demurrer with leave to amend within 15 days.
Zhang was present in court for the hearing on the demurrer,
and the court served him with the minute order that same day.
Rather than file an amended complaint, Zhang filed a
document he entitled “Plaintiff ’s Strong Disagreement to the
Three Major Issues in the Tentative Ruling,” which contained
neither an amended complaint nor anything resembling
a complaint. Defendants filed an ex parte application to have
the case dismissed based on Zhang’s failure to amend. The court
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granted Zhang a continuance, and Zhang filed a document
entitled “Plaintiff ’s Strong Objection to the Defendants’
So-Called Ex Parte Application,” which the court considered
as an opposition. Zhang appeared at the hearing on the
application and presented oral argument. The allotted time
for Zhang to file an amended complaint had expired, and the
court dismissed the case with prejudice. Zhang filed a timely
notice of appeal.
DISCUSSION
The record does not contain anything indicating Zhang
has ever filed or attempted to file a second amended complaint,
as the court granted him leave to do. On appeal, he appears to
argue that he has a constitutional right to petition for relief in
any form he chooses, that the word “amend” can have multiple
meanings, and thus that the document entitled “Plaintiff ’s
Strong Disagreement to the Three Major Issues in the Tentative
Ruling” serves as his second amended complaint. We disagree.
To the extent Zhang’s appeal can be understood as
appealing the judgment as a result of the court’s order sustaining
the demurrer, and thus as challenging the bases on which
the court sustained the demurrer, it is without merit. Zhang’s
claims suffer from numerous fatal deficiencies, which we need
not discuss, because his purported claims are all time barred.
The operative complaint does not clearly identify a cause of
action, but the court identified—and Zhang does not dispute—
that the possible causes of action are: fraud, elder abuse, legal
malpractice, and a federal civil right cause of action under
section 1983 of title 42 of the United States Code (section 1983).
The statute of limitations for fraud is three years (Code Civ.
Proc., § 338, subd. (d)); for elder abuse, two years (id., § 335.1);
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for legal malpractice, one year after the discovery of the wrongful
act or four years after the wrongful act (id., § 340.6, subd. (a));
and for a section 1983 claim, two years (Mills v. City of Covina
(9th Cir. 2019) 921 F.3d 1161, 1166).
Because Zhang drafted a habeas petition in December
2013 alleging the same wrongful conduct on which his instant
legal malpractice claim is based, the record reflects that Zhang
discovered the allegedly wrongful conduct underlying that claim
no later than December 2013. The statute of limitations on that
claim thus expired no later than December 2014, several years
before Zhang filed his initial complaint. As to the remaining
causes of action, none of the respondents’ alleged conduct
post-dates Zhang’s sentencing in October 2015. Thus, the latest
of the statutes of limitations on the remaining three causes of
action expired no later than October 2018. His claims first made
in the July 2021 complaint are barred.1
Finally, Zhang appears to be arguing that threats
and intimidation by unidentified county or state officials
in unspecified ways equitably tolled the limitations periods,
but he has failed to allege the requisite “calculated conduct or
representations by the [defendant] public entity or its agents
that induced [him] to remain inactive and not to comply with
the claims-presentation requirements.” (Ortega v. Pajaro
1 Although Code of Civil Procedure can toll a limitations
period for an additional two years based on a plaintiff ’s
incarceration (see Code Civ. Proc., § 352.1, subd. (a)), “[t]his
section does not apply to an action against a public entity or
public employee.” (Id., subd. (b).) Even if it did apply, however,
Zhang’s claims would still be time barred.
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Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1045.)
Accordingly, we affirm.
DISPOSITION
The judgment is affirmed. Respondents are awarded
their costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.
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