Smith v. Dept. of Corrections and Rehabilitation CA3

Filed 4/10/15 Smith v. Dept. of Corrections and Rehabilitation CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

LAWRENCE E. SMITH,

Plaintiff and Appellant, C074711

v. (Super. Ct. No. SCV0032798)

DEPARTMENT OF CORRECTIONS AND REHABILITATION et al.,

Defendants and Respondents.

In 2006, Lawrence E. Smith spent eight days in jail for crimes actually committed by Joseph Kidd, who had stolen Smith’s identity. In 2011, Smith filed a claim with the California Department of Corrections and Rehabilitation (CDCR) before suing CDCR and Kidd’s parole agent, Anthony Kaestner,1 for damages. After the California Supreme Court decided DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983 (DiCampli-Mintz), Smith dismissed his action in the superior court, and filed a claim with

1 Initially, erroneously sued as “Ketner.”

1

the correct agency -- the Victim Compensation and Government Claims Board (Board) -- in January 2013. After the Board denied the claim, Smith filed a petition for filing a late claim in superior court. The superior court denied the petition for filing a late claim, and Smith appeals. On appeal, Smith contends his petition for filing a late claim should have been granted on grounds (1) his claim was equitably tolled because the Supreme Court, in DiCampli-Mintz, supra, 55 Cal.4th 983, clarified the law regarding which agency should be served with a government claim, and (2) the “CDCR should be estopped from claiming that [Smith]’s claim was deficient” due to the representations made by the Attorney General’s office. We conclude Smith presented his 2011 claim to the wrong government agency. Even if Smith had presented the claim to the correct government agency in 2011, it would have been untimely. Consequently, we need not consider whether the issuance of DiCampli-Mintz somehow tolled the claim from 2011 to 2013. We also need not consider Smith’s tolling and estoppel contention because the representations upon which he focuses were made in 2011 and 2012 -- when his claim was already time barred. Accordingly, we affirm. FACTUAL AND PROCEDURAL HISTORY The undisputed facts show Smith was arrested and jailed for eight days in 2006 because Joseph Kidd had committed crimes using Smith’s identity. However, Smith did not file his claim with CDCR until March 2011. Smith’s only explanation for the five- year delay was that “[i]n early 2011, through payment records sent to Kidd’s estranged wife and provided to Smith, he first learned that it was Joseph Kidd who had stolen his [i]dentity.” In June 2011, Smith filed a complaint against CDCR and Kidd’s parole agent. Smith’s complaint does not include any information that Smith attempted to find the person responsible for damages arising out of the theft of his identity during the five years before Smith’s March 2011 claim to CDCR.