Smith v. S.F. Police Dept. CA1/2

Filed 6/26/15 Smith v. S.F. Police Dept. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

WAYNE W. SMITH, Plaintiff and Appellant, A140866 v. SAN FRANCISCO POLICE (San Francisco City and County DEPARTMENT et al., Super. Ct. No. CGC-12-518791) Defendants and Respondents.

Wayne W. Smith appeals from a trial court order dismissing this action for failure to serve the summons and complaint. He asks this court for an extension of time to serve the summons and complaint. We affirm. STATEMENT OF THE CASE AND FACTS On February 29, 2012, appellant filed a complaint against San Francisco Crime Laboratory Technician Deborah Madden for general negligence and other causes of action.1 The complaint alleged that the defendant “habitually failed to do the required thing,” was “careless, not paying enough heed; neglectful” and “inattentive,” and “was negligen[t] from the time she was arrested on October 2, 2007 for domestic violence and assault charges and being investigated for tampering with drugs.” The complaint stated that Madden was arrested in 2007 1 The complaint describes this as an action “for professional negligence, fraud, false arrest, violation of constitutional right, negligence, pain and suffering, harassment, conviction, medical expenses, wage loss, general damage compensatory damages, punitive damages.”

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and found guilty in 2008 of domestic violence and assault charges; was investigated for tampering with drug evidence, admitted taking small quantities of cocaine from the San Francisco Police Department Drug Laboratory, and pleaded guilty to a drug possession charge on June 3, 2011. According to the complaint, “The defendant was a key witness at plaintiff’s jury tr[ia]l, and also gave her testimony, and vouch[ed] for the weight and purity of seized drugs, but instead used the cocaine. (See Exh. C-G).” Appellant claimed to have suffered damages from Madden’s professional negligence “such as: Violation of constitutional right, a conviction, pain and suffering, wage loss, medical expenses, general damages, harassment, fraud, false arrest, punitive damages.” He sought compensation in the amount of $122,000 and costs. Attached to the complaint, without explanation, is a 14-page typewritten document consisting of the “Statement of Facts” and “Memorandum of Points and Authorities” sections of what is apparently a writ petition. This document attaches the exhibits C through G referenced in appellant’s brief, which are newspaper articles about the investigation of Madden’s conduct and resulting dismissal of many drug cases. The excerpt from the writ petition argues that the unnamed petitioner was convicted of a drug offense after a trial in which Madden testified about her testing of the narcotics, and that the prosecution’s failure to disclose the exculpatory evidence concerning Madden’s tampering with evidence and convictions violated the petitioner’s constitutional rights and undermined confidence in the jury’s verdict. There is no indication whether the petition was appellant’s or another individual’s. On May 14, 2012, a proof of service was filed stating that service by the sheriff had been unsuccessful because the person to be served, Deborah Madden, was no longer employed at 850 Bryant Street, San Francisco. In July, a case management conference that had been scheduled for August 1, 2012, was cancelled and set for November 7, 2012. The November date was then cancelled and appellant was ordered to show cause on January 8, 2013, why