Opinion
D069400
02-27-2017
TREMAINE JOHNSON, Plaintiff and Appellant, v. PALOMAR MEDICAL CENTER, Defendant and Respondent.
Tremaine Johnson, in pro. per., for Plaintiff and Appellant. DiCaro, Coppo & Popcke; Robert A. Cosgrove & Associates, Robert A. Cosgrove and Michael R. Popcke 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2014-00043701-CU-MM-NC) APPEAL from a judgment of the Superior Court of San Diego County, Earl H. Maas, III, Judge. Affirmed. Tremaine Johnson, in pro. per., for Plaintiff and Appellant. DiCaro, Coppo & Popcke; Robert A. Cosgrove & Associates, Robert A. Cosgrove and Michael R. Popcke for Defendant and Respondent.
Plaintiff and appellant Tremaine Johnson (Plaintiff), acting in propria persona, filed a complaint for personal injury on December 30, 2014, naming as the sole defendant Palomar Medical Center, a facility where he received medical treatment. Defendant and respondent Palomar Health, a California local health care district, on behalf of Palomar Medical Center, filed a demurrer that was accompanied by requests for judicial notice, contending Plaintiff had failed to allege the required compliance with government claims requirements. (Gov. Code, § 900 et seq., Cal. Tort Claims Act (the Act); further statutory references are to this code unless noted.). The court sustained the demurrer without leave to amend and dismissed the complaint.
On appeal, Plaintiff seems to contend that claims requirements should not apply to him, or that he adequately complied with them. We find no error or abuse of discretion and affirm the judgment of dismissal.
I
COMPLAINT AND DEMURRER; JUDICIAL NOTICE
In his form complaint against Palomar Medical Center for personal injury, Plaintiff did not fill in the box stating he was required to comply with government claims statutes, but he did check the box stating he had complied with them. He left blank the boxes for identification of a defendant as a business organization or public entity. He represented that he was attaching separate causes of action for general negligence, intentional tort, and premises liability, but no such causes of action were attached. Instead, he merely stated that he went to the hospital with flulike symptoms and was given an IV by two nurses, causing a skin reaction.
Palomar Health owns and operates Palomar Medical Center, and we refer to defendant simply as Palomar. (Health & Saf. Code, § 32000 et seq. [local health care district statutory scheme].) The powers and duties of public entities are outlined in section 53000 et seq. Section 53050 within that part defines a public agency, in relevant part, as including "a district, public authority, [or] public agency . . . ."
In his briefs on appeal, Plaintiff adds more details about the problems he encountered at the hospital when he received IV treatment, listing the date as "sometime in October 2013."
Palomar filed a demurrer, arguing in part that each cause of action failed to assert specific supporting facts, because the complaint did not identify the date of the alleged wrongdoing or include any of the allegedly attached causes of action. Mainly, Palomar contended that it could be established through judicial notice, which it requested, that it was a public agency. Plaintiff's complaint was argued to be defective because it failed to plead compliance with the applicable claims statutes or any excuse from compliance. (§ 945.4.)
Since Plaintiff did not designate any of the demurring papers as part of the appellate record, we granted a request by Palomar to augment the record to include the demurrer and the accompanying requests for judicial notice.
In Palomar's judicial notice request, it supplied a partial copy of its amended and restated bylaws, as an official act of a local health care district. (Evid. Code, § 452, subds. (c) [public records]; (h) [facts not reasonably subject to dispute].) In a supplemental request, Palomar supplied copies of various "Statement of Facts" filings from 2013 to 2015, as submitted to the Secretary of State's Roster of Public Agencies (giving changes in board membership, etc.). Palomar also provided a declaration from its director of risk management, stating that it did not receive a claim or other notice from Plaintiff before the filing of this complaint.
Section 53051 requires a district or other public agency to file and update statements of relevant facts, such as their contact information, with the California Secretary of State and with the counties where they are located, which shall make them public. Once these statements are filed pursuant to section 53051, "it becomes the duty of the Secretary of State and the county clerk to place the information so filed in a 'Roster of Public Agencies.' " (Elmore v. Oak Valley Hospital Dist. (1988) 204 Cal.App.3d 716, 722 (Elmore).) --------
The record does not show that Plaintiff filed any opposition to the demurrer. In his opening brief, Plaintiff says he was unable to call into the trial court's courtroom for the telephonic hearing as arranged. The minute order shows that he did not attend the scheduled hearing, at which the court confirmed the tentative ruling to take judicial notice as requested and sustain the demurrer without leave to amend.
Pursuant to the order on demurrer, judgment of dismissal was entered. At a later case management conference, for which Plaintiff was listed as the moving party, the court advised him that it had already ruled on the demurrer and dismissed the case, suggesting that he seek legal advice. He pursues this appeal, representing himself.
II
STANDARDS ON APPEAL
"When a trial court sustains a demurrer on the ground that the complaint 'does not state facts sufficient to constitute a cause of action' [citation], the appellate court conducts a de novo review—that is, it independently decides whether the allegations are sufficient." (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235 (Perez).) We treat a demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. We seek to give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
Where a demurrer was sustained without leave to amend, we utilize an abuse of discretion standard to review the trial court's decision to deny leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. (Ibid.)
In this procedural context, compliance with the Act is not merely a procedural step, but is considered to be a condition precedent to maintaining the action, and is therefore an element for pleading the specific cause of action. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240 (Bodde).) When a plaintiff has failed to allege facts that demonstrate compliance with the claims presentation requirement, or alternatively excuse for compliance, his or her pleading against a public entity becomes subject to a demurrer for failure to state a cause of action. (Id. at p. 1239.)
III
ANALYSIS
Plaintiff's objections to the ruling sustaining the demurrer without leave to amend mainly consist of claims that (1) the filing of his complaint gave enough notice to Palomar about the nature of his requests for relief, and (2) he should not have had to file a claim, because he had problems in ascertaining the identity of Palomar as a public entity or agency.
In ruling on the demurrer, the trial court first noted that Plaintiff had not included sufficient facts about his claims, because he omitted the required attached causes of action. To the extent Plaintiff now claims he made an adequate and timely filing, it is not enough for pleading purposes that he notifies this court in his opening brief that the medical treatment giving rise to his claims occurred sometime in October 2013, as he further describes it. (§ 911.2 [six-month limit imposed, after accrual of a personal injury cause of action, to bring a claim against a public entity for damages].)
In any event, the California Supreme Court has instructed us that a plaintiff suing a public agency may not omit compliance with any applicable claims requirements, because compliance is deemed to be an essential element of the desired cause of action. (Bodde, supra, 32 Cal.4th 1234, 1240.) It was not enough for Plaintiff to check a box on the form complaint alleging he had complied with claims presentation requirements, when it can be shown otherwise through judicially noticeable materials. Also, we are aware that Plaintiff has included new materials as attachments to his opening brief (without compliance with Cal. Rules of Court, rule 8.204(d)). These include his inquiry to the California Secretary of State, Business Programs Division, about "Palomar Medical Center" as an entity, which shows that as of June 2016, he received no records in response. He also attaches the 2015 proof of service of his summons, to argue the sheriff duly served his complaint at the medical center facility. From these items he argues he did not have to file a claim, or his time to do so should be extended, because Palomar's filings with the Secretary of State were supposedly inaccurate or incomplete. (§ 946.4 [lack of required public filings may preclude agency's claims bar or defense]; § 945.6 [stating limitations periods].)
It is not disputed that Palomar Health accepted service on behalf of its facility, Palomar Medical Center, since it appeared in the case by filing a demurrer. The real question is whether Plaintiff can show excuse from claims requirements on the bases he argues. Section 945.4 provides that no suit for damages may be brought against a public entity "until a written claim therefor has been presented to the public entity . . . ." A personal injury claim like this qualifies as this type of suit for damages, under section 910 et seq. (Bodde, supra, 32 Cal.4th 1234, 1239.) And by statute, Palomar qualifies as a public health care district under section 53051, because it is a public agency within the definition given by section 53050 (a public agency includes "a district, public authority, public agency, and any other political subdivision or public corporation in the state, but does not include the state or a county, city and county, or city"). Palomar also qualifies as a local public entity under the definition given by section 900.4, because it is a "district." Health and Safety Code section 32000 et seq. authorize the creation of local health care districts, and they are specifically made subject to a claims presentation requirement under Health and Safety Code section 32492.
To the extent Plaintiff is arguing that he was unsure what kind of agency or entity Palomar is, his argument is undermined because information about its contact information was made available to him as a member of the public, through filings Palomar demonstrated that it made with the Secretary of State. (§ 53051, subd. (c) [establishing duty of Secretary of State and county clerks to establish and maintain public record of a "Roster of Public Agencies."].) Such statements that were filed with the Secretary of State, and indexed in the "Roster of Public Agencies," are documents of which a court can properly take judicial notice. (Elmore, supra, 204 Cal.App.3d 716, 722.) Palomar properly supplied to the trial court certain public filings, statements of facts about its updates to its contact information, pursuant to section 53051, subdivision (a), and requested they be judicially noticed. (Evid. Code, § 452, subd. (c).) A search was made for a claim but none was found. (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-1753 (Fowler) [lack of claim filing established through judicial notice of agency records that were analyzed and reviewed by the relevant custodian of records]; Perez, supra, 209 Cal.App.4th 1228, 1239 [discussing nature of demurrer review and judicial notice].) The trial court did not err in granting judicial notice accordingly and on the additional basis that the nature of Palomar as a public agency cannot be reasonably disputed, within the meaning of Evidence Code section 452, subdivision (h).
Based on Palomar's showing, the trial court appropriately determined that the complaint was subject to demurrer. (Bodde, supra, 32 Cal.4th 1234, 1239; Fowler, supra, 42 Cal.App.4th 1746, 1752.) By filing the complaint prematurely without a claim, Plaintiff did not satisfy the purpose behind the claims requirement, of allowing the agency an opportunity to investigate and settle it before a suit was brought. (Bodde, supra, at p. 1244.) Plaintiff has not shown either to the trial court or this court any possible amendment that would allege an excuse from the applicable claims requirements. (See Lutz v. Tri-City Hospital (1986) 179 Cal.App.3d 807, 811 [no excusable neglect shown where plaintiff did not demonstrate efforts to ascertain public or private status of medical provider].) Accordingly, there was no abuse of discretion or error in the order denying leave to amend and the judgment dismissing the complaint. (Bodde, supra, 32 Cal.4th at p. 1240.)
DISPOSITION
The judgment of dismissal is affirmed. Each party to bear its own costs of appeal.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
HALLER, J. /s/_________
AARON, J.