Opinion
D071507
09-21-2017
RAUL ARELLANO, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.
Raul Arellano, in pro. per., for Plaintiff and Appellant. Xavier Becerra, Attorney General, William C. Kwong, Assistant Attorney General, Thomas S. Patterson, Misha D. Igra, Sylvie P. Snyder, and Suzanne Antley, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00034262-CU-PO-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Affirmed. Raul Arellano, in pro. per., for Plaintiff and Appellant. Xavier Becerra, Attorney General, William C. Kwong, Assistant Attorney General, Thomas S. Patterson, Misha D. Igra, Sylvie P. Snyder, and Suzanne Antley, Deputy Attorneys General, for Defendant and Respondent.
Plaintiff Raul Arellano is a prisoner currently housed by the defendant California Department of Corrections and Rehabilitation (Department) at the Richard J. Donovan Correctional Facility in San Diego County. In this personal injury action Arellano sued the Department for injuries he sustained when he suffered a seizure and fell from an upper bunk at the prison. Arellano alleges the Department is responsible for the negligence of certain employees who knew or should have known that Arellano had a seizure disorder which made it unreasonably dangerous to assign him to an upper bunk. He further claims that he provided the prison officer responsible for bunk assignments with a "medical chrono" form signed by a prison doctor specifying a bottom bunk assignment, but that this was ignored because it could not be confirmed in a computer database.
In addition to the Department, Arellano also sued Corrections Officer Hodge, Warden Daniel Paramo, and several Doe defendants. None of the additional defendants were served. This appeal only addresses the potential liability of the Department.
The trial court sustained the Department's demurrer to Arellano's first amended complaint without leave to amend on grounds that by terms of Government Code section 844.6, the State and its constituent departments are generally immune from liability for injuries to prisoners. Judgment was then entered as to the Department. (See Code Civ. Proc., § 579.)
All statutory references are to the Government Code unless otherwise indicated. --------
DISCUSSION
Section 844.6 subdivision (a)(2) provides that except for limited defined instances, a California public entity "is not liable for [¶] . . . [¶] . . . [a]n injury to any prisoner." Arellano does not dispute the general rule. Instead he argues that the Department's demurrer should not have been sustained without leave to amend because one of several exceptions applies. We address each of these arguments in turn. 1. Motor Vehicle Liability
By its terms, the immunity provided for by section 844.6 does not affect the liability of a public entity under article 1 of chapter 1 of division 9 of the Vehicle Code. (Veh. Code, § 17000 et seq.) Vehicle Code section 17001 makes a public entity liable for injuries "proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment." Arellano admits that defendants were not operating a motor vehicle when they did or failed to do anything connected with his injuries: "[A]lthough deffendants [sic] were not operating a motor vehicle, they were [Department] employees . . . [a]nd did cause[] [a]n injury through either negligently [or] intentionally, or omission of putting me on [the] top bunk." The exception does not apply. 2. Breach of Contract
Section 844.6 provides for an additional exception by referring to section 814, which specifies that "[n]othing in this part affects liability based on contract." Arellano argues that the "medical chrono" from the prison doctor "is equivalent to a contract" and that the Department is liable for its breach. While it is unclear exactly what a "medical chrono" is, what it clearly is not is a contract between Arellano and the Department. It appears to be simply an internal administrative directive. He alleges no facts to indicate the parties intended a legally binding agreement (see Civ. Code, §§ 1427, 1428, 1549; 1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 1) or satisfied the essential element of consideration (Civ. Code, § 1550; CACI No. 302). 3. Failure to Obtain Medical Care
Another exception to the general rule of immunity for prisoner injuries in section 844.6 is provided for by section 845.6, which allows imposition of liability on a public entity if a public employee "knows or has reason to know that [a] prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care." Arellano's complaint tries to suggest that the prison's alleged failure to comply with the instructions in the "medical chrono" falls within this exception. It does not. Liability under this statute "is limited to serious and obvious medical conditions requiring immediate care." (Watson v. State of California (1993) 21 Cal.App.4th 836, 841.) Here, there was no acute condition and no immediate need for care. A failure to take protective or preventative action, no matter how unreasonable, does not qualify.
Although he discussed the "delayed medical care" exception in his trial court papers, for the first time in his reply brief on appeal Arellano tries to argue he should be given leave to amend his complaint to allege an entirely different basis for the Department's liability. He claims that "at the time of my incident when seizure occured [sic] and I fell, medical [aid] was not summoned immediatly [sic], which lead [sic] to days of pain and suffering through months." Still we are not completely sure whether the "pain and suffering" he refers to was the natural result of the fall, or is limited to the exacerbation of his injuries as a result of a delay in summoning medical treatment.
It is true a plaintiff can challenge a trial court's decision sustaining a demurrer without leave to amend by demonstrating for the first time on appeal that additional facts can be alleged which would cure the pleading defect. (Code Civ. Proc., § 472c; see Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044; Mathews v. Harris (2017) 7 Cal.App.5th 334, 369.) But this burden is not met where he waits until his reply brief to identify the new facts that could be pled. (Trustees of Capital Wholesale Electric Etc. Fund v. Shearson Lehman Brothers, Inc. (1990) 221 Cal.App.3d 617, 627; Shimmon v. Franchise Tax Board (2010) 189 Cal.App.4th 688, 694, fn.3.) Absent a good explanation we will not consider this type of argument made for the first time on reply, and we find no basis here to do so. 4. Additional Contentions
The hearing on the Department's demurrer to Arellano's first amended complaint was set for October 28, 2016. Arellano did not mail his opposition until October 27, and it was not received and filed by the superior court until November 3, six days after the hearing. Arellano did not appear at the hearing, which he claims was due to an error by Department officials in facilitating a telephonic court appearance. The trial court's ruling characterizes the Department's demurrer as "unopposed."
Understandably, much of Arellano's opening brief reflects his frustration with what he perceives to have been an inability to fully present his arguments to the trial court. Without expressing any opinion on who or what was responsible for the difficulties, or whether any misunderstanding on Arellano's part was reasonable, we have now fully considered his contentions. Because this appeal ultimately turns on a purely legal issue—whether Arellano has stated a valid claim—the procedural difficulties he experienced at the trial court level did not affect the result.
DISPOSITION
The judgment of dismissal is affirmed.
DATO, J. WE CONCUR: NARES, Acting P. J. AARON, J.