GOMES, J.
Roberto Rangel is incarcerated in state prison. Proceeding in propria persona, he sued the Fresno Police Department and eight individual employee defendants — Pedro Santillan, P.O., Epifanio Cardenas, P.O., Reymundo Camacho, P.O., John Galvan, P.O., Vicki Munoz, Sgt., M. Vincen, P.O., Jerado Chamalbide, detective, and Matthew Schiotis, detective (collectively respondents), alleging they breached a contract to pay him for his work as a confidential informant and participant in illegal drug sales.
Rangel, who speaks only Spanish, contends the trial court denied him due process and meaningful access to the court because (1) it did not allow a fellow inmate, who he designated his "next friend," to appear at the hearing on the demurrer and act as his advocate and interpreter, (2) it allowed oral argument to proceed with a correctional officer acting as interpreter, and (3) it failed to acknowledge his lack of English skills. Rangel also contends respondents are estopped from asserting the statute of limitations as a defense because he reasonably relied on their promises to settle his claim and he is not required to comply with the Government Claims Act. We affirm the judgment.
On February 26, 2009, Rangel filed a complaint alleging four of the individual defendants forced him to sign a contract to act as their confidential informant and engage in illegal drug sales in exchange for payment of $4,000 per month, which contract was breached when he was not paid for the work he performed from August 1999 to June 2001. Rangel alleged he was excused from complying with a claims statute because he was "currently incarcerated." He further alleged he was delayed in presenting the charges, and entitled to equitable tolling of the statute of limitations, because he (1) is an indigent inmate, (2) is unfamiliar with all of the laws, (3) must obtain his information through mail correspondence, (4) must use an interpreter due to lack of knowledge of the English language, and (5) had difficulty accessing the prison law library due to lockdowns and unfamiliarity with research skills.
On June 26, 2009, respondents filed a demurrer to the complaint, with the hearing scheduled for August 5, 2009. Respondents asserted the demurrer should be sustained as to the breach of contract cause of action because (1) the statute of limitations had expired, (2) Rangel failed to file a government claim, (3) the terms of the contract are uncertain, unenforceable and unlawful, and (4) Rangel failed to allege facts sufficient to state a claim.
Rangel filed written opposition to the demurrer on July 14, 2009. He admitted his breach of contract claim was founded on a written contract. He asserted the statute of limitations had not expired because he was entitled to equitable tolling due to "extraordinary circumstances beyond his control" that made it impossible to file a timely complaint, namely the lack of Spanish language assistance. Rangel explained that the books in the prison law library are only in English and claimed he would have filed the complaint earlier had he seen any notice in the prison alerting him about the limitations period.
Rangel submitted a written motion requesting the court allow him to appear telephonically at the August 5, 2009 hearing on the demurrer, explaining that an "outside source" and a fellow inmate had been assisting him with writing, typing and bringing the motion. Rangel also submitted written requests to the court for orders directing prison authorities (1) not to charge him for the telephone call for the hearing, and (2) to allow him to appear telephonically at the hearing.
On August 3, 2009, the court issued a written tentative ruling sustaining the demurrer without leave to amend. Recognizing that Rangel was incarcerated and would not have access to the tentative ruling before the August 5 hearing date, the court continued the oral argument to August 19, 2009. The court noted that Rangel had been approved for a fee waiver and arrangements would be made for him to appear telephonically free of charge. In its tentative ruling, the court explained that the dates alleged in the complaint show clearly and affirmatively that the statute of limitations had run on all claims pursuant to Code of Civil Procedure sections 337, subdivision (1) (four years for a written contract) and 339, subdivision (1) (two years for an oral contract). The court found that the limitations period was not tolled for imprisonment and the doctrine of equitable tolling did not apply.
On August 18, 2009, Rangel filed a motion to continue the August 19 oral argument for 14 days. Rangel asserted that (1) he did not speak English and needed the court's approval for an inmate "next friend" to act as interpreter at the telephonic conference, which approval must be conveyed to the prison authorities so they would allow the "next friend" to be present during the conference, (2) he may have left out important dates and information in the complaint which will show he did not exceed the statute of limitations, (3) neither he nor his "inmate advisor" is trained in the law, and he learned only recently that he is not barred from proceeding in his claim against respondents, (4) he needed additional time to read several appellate court decisions, and (5) he was preparing a response to the tentative ruling based in part on his assertion that the respondents are estopped from relying on the statute of limitations due to their conduct.
Attached to the motion was Rangel's declaration, in which he stated that after he was arrested, he attempted to collect monies promised for his services and from 2001 to 2007, offers were made to settle the account but no payment was ever made. In 2008, he filed a "state civil claim" alleging breach of contract. Rangel stated he did not speak, read or write English, and only had an elementary level education in Mexico. His claim was filed with the assistance of a fellow inmate, Gilberto Benitez, who is bilingual and has experience filing a civil action in California, although he is not a licensed attorney or trained in the law. Rangel explained that he regarded Benitez as his "next friend," that Benitez authored the declaration, which he read to Rangel in Spanish, and Rangel agreed with its factual content. Rangel authorized Benitez to prepare all of his future legal briefs and to represent him at oral argument.
Rangel appeared telephonically at the August 19, 2009 hearing on the demurrer. At the outset of the hearing, a correctional counselor explained to the court that Rangel spoke only Spanish, so a staff member would interpret for him. Correctional Officer Francisco Padilla, who confirmed to the court that he spoke Spanish, interpreted for Rangel. The court asked Padilla if he would be able to interpret from English to Spanish and then from Spanish to English. Padilla responded, "Yes." Padilla also promised to translate to the best of his ability under penalty of perjury. The court then stated that Padilla had been sworn.
The court explained to the parties that it had issued a tentative ruling to sustain the demurrer without leave to amend on statute of limitations grounds and had set the oral argument. The court asked Rangel if he would like to say anything, commenting there might be a problem because the tentative ruling was in English. Padilla informed the court that the only thing Rangel wished to say was that he wanted to send a response to the tentative ruling. Respondents' counsel objected to the request, asserting Rangel had plenty of time to send a response. Padilla said that Rangel had found some case law that helped his case, which he needed to research and "get back to you."
At first the court declined to give Rangel additional time, but then asked if Rangel understood the tentative ruling and whether someone had interpreted it for him. Padilla responded that Rangel said another inmate had read it to him, but he's not familiar with the laws, which is why he was looking at other cases and requesting a 14-day extension to do that. The court responded that it would look into the issue where the litigant is a Spanish speaker and a certified interpreter has not translated the tentative ruling, noting it was a due process consideration. The court took the matter under submission, explaining that it was strongly inclined to adopt the tentative ruling, but was concerned that it was not translated for Rangel. After Padilla explained that to Rangel, he said Rangel still thought he needed more time to do some research. The court stated it was taking the matter under submission, and advised Rangel to do his research as soon as possible since a final decision had not yet been made, and if he wanted to submit anything else, he "better move on it." When Padilla asked how many days Rangel had, the court stated he should get something in no later than the following Monday.
On August 25, 2009, Rangel filed a reply to the court's tentative ruling. Rangel asserted that because of his inability to speak English and unfamiliarity with the law, he was not able to argue his position at the hearing or explain why he needed a two-week continuance. Rangel explained that a fellow inmate, who was bilingual, prepared the reply, and asserted he should be allowed to choose his interpreter as it was unfair for a law enforcement member to translate at the hearing on the demurrer since the case was against law enforcement.
Rangel stated he had alleged both oral and written contracts with the Fresno Police Department, therefore Code of Civil Procedure sections 337, subdivision (1) and 339, subdivision (1) both applied. He agreed with the court that neither tolling for imprisonment or equitable tolling applied. Finally, Rangel affirmed that August 1999 through June 2001 were the dates wherein he fulfilled his obligations on the contract without compensation by respondents.
Rangel contended, however, that the breach of contract claim did not accrue until July 18, 2007, because from June 2001 to July 2007, he was engaged in negotiations with respondents to settle his claim. Rangel asserted that his delay in filing the complaint was excused by the following course of conduct: (1) in June 2001, Officer Cardenas offered to settle his claims for $100,000, which Rangel agreed to accept, but payment was never made; (2) in September 2004, the Fresno Police Department acknowledged receiving a personnel complaint from Rangel, and on March 4, 2005, Rangel was advised that after investigation, it was concluded that issues regarding monetary gain and work performed were unfounded and a third issue concerning a firearm could not be proved or disproved; (3) Rangel was advised in July 2005 that his case had been investigated and closed; (4) on January 16, 2007, Rangel submitted a second grievance to Police Chief Dyer asking him to personally investigate the officers mentioned in his complaint so he could be paid money due for work he performed; (5) Internal Affairs notified him on March 6, 2007, that the investigation into the complaint was ongoing and he would be notified when it was completed; (6) on March 21, 2007, an internal affairs officer interviewed him at the prison and offered to pay him $30,000 for the confidential informant work he performed; and (7) he was notified on July 18, 2007 that the investigation had been completed and appropriate corrective action taken when necessary.
On August 26, 2009, the court issued a minute order adopting the tentative ruling as its order. The minute order further stated that while Rangel is a Spanish speaker, civil litigants are required to have their own interpreters and therefore the court did not believe there was a due process issue that precluded it from ruling on the demurrer at that time.
The United States and California Supreme Courts have long recognized a constitutional right of access to the courts for all persons, including prisoners. (Procunier v. Martinez (1974) 416 U.S. 396, 419, overruled on other grounds in Thornburgh v. Abbott (1989) 490 U.S. 401, 413-414; Payne v. Superior Court (1976) 17 Cal.3d 908, 922-923 (Payne).) Although prisoners must forfeit significant rights and privileges as a necessary corollary of prison life, they "`retain those basic rights which are not incompatible with the running of the penal institution.'" (Payne, supra, 17 Cal.3d at p. 913.) In California, these principles are codified in Penal Code section 2600, which provides that a prisoner may "be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests."
Penal Code section 2601, subdivision (d) guarantees prisoners the right to initiate civil actions. Prisoners must have "meaningful access" to the courts to prosecute and defend bona fide civil actions. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792 (Wantuch).) "Meaningful access to the courts by an indigent prisoner `does not necessarily mandate a particular remedy' to secure access." (Ibid.) Instead, courts should devise alternative means to ensure prisoners "meaningful" access to the courts. (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 642; Wantuch, supra, at p. 792.)
"In determining the appropriate remedy to secure access, the trial court should consider the nature of the action, the potential effect on the prisoner's property, the necessity for the prisoner's presence, the prisoner's role in the action, the prisoner's literacy, intelligence and competence to represent himself or herself, the stage of the proceedings, the access of the prisoner to a law library and legal materials, the length of the sentence, the feasibility of transferring the prisoner to court and the cost and inconvenience to the prison and judicial systems." (Wantuch, supra, 32 Cal.App.4th at p. 793.) "The trial court determines the appropriate remedy to secure access in the exercise of its sound discretion. [Citations.] The exercise of the trial court's discretion will not be overturned on appeal `unless it appears that there has been a miscarriage of justice.'" (Id. at p. 794.)
Here, there was no abuse of discretion or miscarriage of justice. Rangel filed written opposition to the demurrer and requested that he be allowed to appear telephonically at the hearing. The court granted that request. When the court determined that Rangel would not receive the tentative ruling in time for the scheduled hearing, it continued the hearing for two weeks, thereby giving Rangel the opportunity to prepare a response. The day before the continued hearing, Rangel filed a request to allow another inmate to interpret for him at the hearing and present argument for him, as well as for additional time to prepare a response to the tentative ruling. At the hearing on the demurrer, the court allowed a correctional officer to act as interpreter after determining his ability to do so. Rangel did not present any oral argument, but instead requested 14 days to file a response to the tentative ruling. The court, concerned that Rangel had a due process right to have the tentative ruling interpreted for him, took the matter under submission so it could research that issue, thereby giving Rangel an opportunity to submit additional information. Rangel submitted a reply to the tentative ruling. After that, the court issued its order adopting the tentative ruling. In our view, the court gave Rangel ample opportunity to prepare any reply to the tentative ruling, both by continuing the original hearing date for two weeks and by taking the matter under submission.
Rangel contends that before conducting the hearing on the demurrer, the court should have ascertained whether he understood the substance of the demurrer and granted his request for his "next friend" to act as his interpreter and advocate. But from the opposition and requests for continuance Rangel filed, it appeared that he did understand the nature of the demurrer and the issues it presented. Rangel did not have a right to use the interpreter of his own choosing, as the selection of an interpreter is within the trial court's discretion. (Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562, 582.) While Rangel does not challenge Correctional Officer Padilla's ability to interpret, he contends Padilla had a conflict of interest because his lawsuit is against law enforcement officers. The only authority Rangel cites, Rule 3-310(B)(3) of the Rules of Professional Conduct, does not apply to Padilla as he is not a member of the state bar. (Rules Prof. Conduct, rule 1-100(A).) Moreover, there is no conflict because Padilla is a prison correctional officer, not a police officer. Finally, while Rangel asserts he needed his "next friend" to assist him in presenting his oral argument, as a non-lawyer the "next friend" could not present argument at the hearing on Rangel's behalf, as one prisoner cannot act as another's legal representative. (In re Harrell (1970) 2 Cal.3d 675, 688-689; see also Bus. & Prof. Code, § 6125 [only members of the State Bar may practice law in California].)
In sum, there was no abuse of discretion or miscarriage of justice in the manner in which the trial court handled the oral argument on the demurrer.
On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled: We independently determine whether the complaint states facts sufficient to constitute a cause of action and decide whether there is a reasonable possibility the defect can be cured by amendment. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).) If the defect can be cured by amendment, the trial court has abused its discretion and we reverse. (Ibid.; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) The burden of proving how the defects in the complaint can be cured by amendment falls on the appellant. (Blank, supra, 39 Cal.3d at p. 318.)
Rangel is not exempt from the rules governing appeals because he is representing himself in propria persona. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to "the same `restrictive procedural rules as an attorney'"].)
Here, the trial court found Rangel's breach of contract claim was barred by the statute of limitations, which is two years for breach of an oral contract (Code Civ. Proc., § 339, subd. 1), and four years for breach of obligations founded on a written instrument (Code Civ. Proc., § 337, subd. 1). Since June 2001 was the last date Rangel claimed he should have been paid, the limitations period expired at the latest in June 2005. His complaint, however, was not filed until February 2009.
Challenging only the denial of leave to amend his breach of contract claim, Rangel contends his complaint is timely because respondents are estopped from asserting the statute of limitations as a defense. He also contends he is exempt from the claim filing requirement of the Government Claims Act because his claim is for unpaid wages and respondents have forfeited the defense of non-compliance with the Claims Act as they did not notify him that he filed a faulty claim or warn him that he had six months to file suit when his claim was rejected.
We begin with the statute of limitations. The doctrine of equitable estoppel to plead the statute of limitations as a defense may be properly invoked in circumstances where the defendant's conduct induces the plaintiff to forbear from filing a timely claim. (Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847-848.) The doctrine derives from the equitable principle that "`no man will be permitted to profit from his own wrongdoing in a court of justice.'" (Ibid.)
Rangel asserts respondents are estopped from invoking a statute of limitations defense because he was engaged in settlement negotiations with them. An estoppel, however, "`does not arise in every case in which there are negotiations for a settlement of the controversy.'" (Lobrovich v. Georgison (1956) 144 Cal.App.2d 567, 573.) In order for the doctrine of equitable estoppel to apply, certain conditions must be present: "[T]he party to be estopped must be apprised of the facts; the other party must be ignorant of the true state of the facts; the party to be estopped must have intended that its conduct be acted upon, or so act that the other party had a right to believe that it was so intended; and the other party must rely on the conduct to its prejudice." (Cal. Cigarette Concessions v. City of L.A. (1960) 53 Cal.2d 865, 869; see also Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.) The conduct in question does not need to be fraudulent, performed in bad faith, or with an intent to mislead the plaintiff. (Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 43.)
Rangel contends he did not file suit within six months of June 2001 because respondents had promised to settle from June 2001 through April 2002, and when it was clear no money was to be paid, he initiated the police department's grievance procedures, which put them on notice of his demand. But Rangel offers no explanation as to why he failed to file suit within four years of April 2002. While Rangel did file a personnel complaint with the Fresno Police Department in September 2004, the matter was investigated and a determination made in March 2005 that his claims for money due were unfounded. As respondents point out, Rangel asking for payment without any reciprocal affirmation of a debt cannot amount to a negotiation. Moreover, there is nothing in the documentation Rangel submitted with his reply to show that respondents made any statements while investigating his complaint that would have induced him not to bring suit.
Rangel did not submit his second grievance until January 2007, which is over four years after he knew in April 2002 that he was not being paid. "`[T]olling can only suspend the running of a statute that still has time to run; it cannot revive a statute which has already run out.'" (65 Butterfield v. Chicago Title Ins. Co. (1999) 70 Cal.App.4th 1047, 1062.) By the same reason regarding tolling, because the statute of limitations period for Rangel's breach of contract claim had expired before he filed his January 2007 claim, any settlement negotiations occurring thereafter cannot be used to estop respondents from invoking the limitations period as a defense.
Because Rangel fails to demonstrate the conditions necessary to invoke the doctrine of equitable estoppel, the trial court did not err when it sustained respondents' demurrer without leave to amend. Since Rangel cannot demonstrate compliance with the limitations period, we need not discuss his claims that he was excused from complying the Government Claims Act.
The judgment is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR.
Cornell, Acting P.J.
Dawson, J.
