Opinion
A143679
01-24-2017
SEAN QUINN, Plaintiff and Appellant, v. STATE OF CALIFORNIA et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV1400826)
This is an appeal from judgment following the trial court's sustaining of the demurrers filed by defendants State of California, Department of Corrections and Rehabilitation, California Correctional Health Care Services, and Joseph Matan, M.D., as an individual and in his capacity as a state employee (collectively, defendants). Plaintiff Sean Quinn, a former prison inmate, filed suit against defendants asserting causes of action for discrimination in violation of both Title II of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act of 1973 (RA), as well as ordinary medical negligence, after he failed to successfully rehabilitate a medical condition to his fourth metacarpophalangeal, referred to herein as "trigger finger release." After a contested hearing on both demurrers, the trial court found plaintiff had failed to state a valid claim under the ADA or RA, and that his medical negligence claim was barred by the statute of limitations. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 19, 2013, plaintiff filed a civil complaint in Los Angeles County (Case No. BC 521799). After the case was transferred to Marin County, plaintiff filed a first amended complaint in May 2014, asserting causes of action for violation of 42 U.S.C. 1983 and medical negligence. Defendants successfully demurred, with the trial court ruling to sustain their demurrers without leave to amend as to the 42 U.S.C. section 1983 cause of action, and with leave to amend as to the medical negligence cause of action.
The operative complaint, to wit, the second amended complaint (SAC), was then filed on August 14, 2014, and asserted two causes of action, the first for violation of Section 504 of the RA (29 U.S.C. § 794) and Title II of the ADA (42 U.S.C. § 12131 et seq.), and the second for medical negligence. According to this pleading, plaintiff, an inmate at San Quentin State Prison, underwent surgery on his left trigger finger on November 9, 2011 for "trigger finger release." Plaintiff was thereafter seen by a physical therapist on May 10, 2012, during which the physical therapist recommended that he begin aggressive physical therapy for his condition. In the following months, both plaintiff and his physical therapist tried several times to obtain permission from his orthopedist, defendant Dr. Matan, to undergo aggressive physical therapy. However, it was not until July 24, 2012, that plaintiff was able to begin this form of treatment. Plaintiff then had four physical therapy sessions between July 24, 2012 and August 2, 2012. According to the SAC, however, due to the delay in starting aggressive physical therapy following the November 2011 surgery, plaintiff's trigger finger condition remained unchanged from what it was prior to surgery.
Defendants again demurred to the operative complaint and, on September 30, 2014, a hearing was held. Afterward, the trial court sustained the demurrers as to both causes of action, this time without leave to amend. With respect to the first cause of action, the trial court found that plaintiff had failed to allege facts showing that he had a qualifying "disability" or was "otherwise qualified," as required under the ADA/RA. Alternatively, the court found that, contrary to the allegations in the SAC, liability under the ADA/RA does not lie for the provision of substandard medical treatment, the theory upon which plaintiff relies. With respect to the second cause of action, the trial court found that plaintiff's medical negligence claim was time-barred under the applicable statute of limitations, and that, further, he could not rely on the tolling provision of Code of Civil Procedure section 352.1 to avoid this statutory bar because the tolling provision does not apply in actions, like this one, brought against a public entity or public employee for a claim required to first be presented to a state administrative body (here, the Victim Compensation and Government Claims Board). (See Code Civ. Proc., § 352.1, subd. (b); Gov. Code, § 810 et seq.)
Judgment of dismissal with prejudice was thus entered in defendants' favor, prompting this appeal.
DISCUSSION
Plaintiff challenges the trial court's ruling sustaining defendants' demurrers as to both the ADA/RA and medical negligence causes of action. We address the court' ruling with respect to each cause of action in turn below. In doing so, we apply the following legal rules.
A trial court's decision to sustain a demurrer is a legal ruling, subject to de novo review. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) "[W]e give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded, but not the truth of contentions, deductions or conclusions of law. We reverse if the plaintiff has stated a cause of action under any legal theory. [Citation.]" (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 507.)
Conversely, we apply an abuse of discretion standard of review to a trial court's decision to sustain a demurrer without to leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
I. The ADA/RA Cause of Action.
Here, the trial court found plaintiff failed to state a valid claim under the ADA/RA because he failed to allege facts showing that he had a qualifying "disability" or was "otherwise qualified," as required by the ADA/RA. (29 U.S.C., § 794, subd. (a); 42 U.S.C., § 12132.) We agree.
Both the ADA and RA prohibit discrimination on the basis of disability. (29 U.S.C., § 794, subd. (a) ["No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance"]; 42 U.S.C., § 12132 ["no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity"].)
As both parties recognize, "[t]here is no significant difference in the analysis of rights and obligations created by the ADA and [RA]." (Zukle, supra, 166 F.3d at p. 1045, fn. 11; accord Doe v. University of Maryland Med. Sys. Corp. (4th Cir. 1995) 50 F.3d 1261, 1265, fn. 9.) As such, we treat these two statutes collectively for purposes of this appeal and jointly refer to them as "ADA/RA".
"Disability" is defined for purposes of the ADA/RA as a physical or mental impairment that substantially limits one or more of the plaintiff's major life activities, or the existence of a record of such impairment by the plaintiff. (29 U.S.C., § 794, subd. (a), § 705, subd. (2)(B); 42 U.S.C., § 12102, subd. (1).) "Major life activities," in turn, "include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. [¶] . . . [A] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." (42 U.S.C., § 12102, subd. (2).)
Further, to "substantially limit" a major life activity, the alleged disability must prevent or severely restrict the person from doing the activity as compared to others in the general population. (29 U.S.C., § 705, subd. (20)(B), § 794, subd. (a); 42 U.S.C., § 12102, subds. (1), (4); see also Rohr v. Salt River Project Agricultural Improvement & Power Dist. (9th Cir. 2009) 555 F.3d 850, 860 ["in deciding whether the [alleged] impairment is substantially limiting, courts 'must consider the nature and severity of the [plaintiff's] impairment, the duration or expected duration of the impairment, as well as the permanent or long term impact of the impairment' "].)
A "qualified individual with a disability," in turn, means one who "meets the essential eligibility requirements . . . for participation in [a given] program[] provided by a public entity" "with or without reasonable modifications to rules, policies, or practices . . . ." (42 U.S.C., § 12131, subd. (2); accord Zukle v. Regents of the University of California (9th Cir. 1999) 166 F.3d 1041, 1046 [Zukle].)
Thus, as this law reflects, to successfully plead a cause of action under the ADA/RA, the plaintiff must allege, among other things, that he or she has a qualifying disability, or that there is a record of the plaintiff having one. In this case, plaintiff alleges that he suffers from an injury to his left trigger finger that required surgery and has remained unchanged despite this surgery due to defendants' belated provision of aggressive physical therapy and failure to properly train, supervise, develop and implement policies regarding the provision of adequate medical treatment to a prisoner. Plaintiff also alleges that, due to defendants' negligence, he has suffered and continues to suffer "severe injuries to his health, strength and activity, and pain and suffering and other damages." However, contrary to the governing law set forth above, nowhere does plaintiff allege that the injury to his trigger finger has resulted in a mental or physical impairment that "substantially limits" any of his "major life activities." As such, we agree with the trial court that plaintiff has failed to state a valid cause of action under the ADA/RA.
Further, with respect to defendant Dr. Matan, we agree with defendants that, under well-established case law, a cause of action under the ADA/RA lies only against a public entity or person acting under color of state law, and not against an individual. (Schiavo ex rel. Schindler v. Schiavo (11th Cir. 2005) 403 F.3d 1289, 1293, 1299; see also Miller v. King (11th Cir. 2004) 384 F.3d 1248, 1276-1277 ["§ 12132 states that 'no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.' 42 U.S.C. § 12132 ([Italics] added). Thus, the plain language of the statute applies only to public entities, and not to individuals"], vacated on other grounds, (11th Cir. 20016) 449 F.3d 1149.) As such, this cause of action fails as to defendant Dr. Matan for the additional reason that, as a matter of law, he cannot be held personally liable for a violation under the ADA/RA.
Accordingly, we conclude the trial court did not err in sustaining defendants' demurrers without leave to amend as to plaintiff's first cause of action for violation of the ADA/RA. Moreover, given our agreement with the trial court that plaintiff failed to properly allege a qualifying disability and that no individual liability lies as to Dr. Matan, we need not address the court's alternative ground for sustaining the demurrers, to wit, that an ADA/RA violation cannot be premised solely on the alleged provision of, or failure to provide, medical treatment. (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16 ["A trial court's order is affirmed if correct on any theory, even if the trial court's reasoning was not correct"].)
II. The Medical Negligence Cause of Action.
The trial court found that plaintiff's medical negligence claim was time-barred under the applicable one-year statute of limitations (Code Civ. Proc., § 340.5), and that he could not rely on the tolling provision of Code of Civil Procedure section 352.1 to avoid this procedural bar because this provision does not apply where, as here, a public entity or public employee is sued for a claim required under the Government Claims Act to first be presented to the appropriate state hearing board (here, the Victim Compensation and Government Claims Board). (See Code Civ. Proc., § 352.1, subd. (b); Gov. Code, § 810 et seq.) In reaching this decision, the trial court found that plaintiff's complaint was filed more than one year after the "date of the incident" that plaintiff indicated on his government claim form. (See Code Civ. Proc., § 340.5 ["In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first"] [italics added].) We agree with the trial court's conclusion.
As the California Supreme Court explains, "[a] plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof — when, simply put, he at least 'suspects . . . that someone has done something wrong' to him [citation], 'wrong' being used, not in any technical sense, but rather in accordance with its 'lay understanding' [citation]. He has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements. [Citation.] He has reason to suspect when he has ' " ' "notice or information of circumstances to put a reasonable person on inquiry" ' " ' [citation]; he need not know the 'specific "facts" necessary to establish' the cause of action; rather, he may seek to learn such facts through the 'process contemplated by pretrial discovery'; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place — he 'cannot wait for' them 'to find' him and 'sit on' his 'rights'; he 'must go find' them himself if he can and 'file suit' if he does [citation]." (Nogart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398; accord Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.)
Applying these principles here, we find the following facts relevant. According to the SAC, plaintiff underwent surgery of the "left 4th MP joint" for trigger finger release on November 9, 2011. Several months later, on May 10, 2012, plaintiff was initially seen for physical therapy. Shortly thereafter, both plaintiff and his physical therapist requested permission from defendant Dr. Matan, an orthopedist, for plaintiff to begin aggressive physical therapy to treat his finger. However, according to the SAC, despite several efforts by plaintiff and his physical therapist to obtain written permission for this treatment, it was not until July 24, 2012 that the aggressive physical therapy was forthcoming. Specifically, between July 24, 2012 and August 2, 2012, plaintiff received four physical therapy sessions while still incarcerated. However, "[d]ue to the delay in receiving physical therapy, there were no appreciable changes in Plaintiff's condition as a result after waiting nine months post-surgery for physical therapy."
Based on these facts, plaintiff, on or about February 15, 2013, presented a written claim for damages to the State of California, stating that his "[f]ailure to receive timely physical therapy notwithstanding repeated requests for same according to protocol after surgery" led to his damage or injury. When asked to state on the government claim form why plaintiff believed the state was responsible for his injury, he responded: "Because I did not get physical therapy after surgery and it was painful and I kept on trying to get help and also knew there was physical therapy available the entire time."
Plaintiff's claim was acknowledged and denied by the Victim Compensation and Government Claims Board (Board) on February 27, 2013. On September 19, 2013, plaintiff thus initiated this lawsuit, filing the original complaint in Los Angeles County Superior Court (Case No. BC521799). On January 16, 2014, the parties stipulated to change venue to Marin County Superior Court (Case No. CIV 1400826).
As this collection of facts alleged in the SAC demonstrates, plaintiff, at a minimum, suspected a factual basis for all the elements of his medical negligence cause of action as of the date indicated on his government claim form - to wit, August 20, 2012, the date of the incident adopted by the trial court for purposes of setting the appropriate statute of limitations. Specifically, as accurately set forth in the Respondent's Brief, plaintiff was aware of each of the following "facts" necessary to establish his claim as of August 20, 2012: • He was suffering from trigger finger condition while incarcerated in prison; • He had surgery with defendant Dr. Matan to treat this condition in November of 2011; • Following this surgery, he was in pain and needed physical therapy; • He had one visit with a physical therapist in May of 2012, and was advised by this therapist that he required "aggressive physical therapy" to treat his trigger finger; • Both plaintiff and his physical therapist made repeated attempts between May 2012 and July 24, 2012 to get permission from Dr. Matan to undergo aggressive physical therapy; • He did not receive this aggressive physical therapy until July 24, 2012, when he had the first of four such sessions that ended August 2, 2012. • After his fourth and last aggressive physical therapy session on August 2, 2012, his trigger finger condition remained unimproved and his hand nonfunctioning.
As this constellation of "facts" demonstrates, plaintiff knew, as of August 20, 2012, that he was injured, that surgery had not cured or even improved his condition, and that aggressive physical therapy was the recommended treatment. In addition, he knew that, despite his and his physical therapist repeated requests to Dr. Matan for permission to undergo this aggressive physical therapy, two months passed before he actually received the treatment, which, by that time, was ineffective. Under these circumstances, the trial court correctly determined plaintiff had "notice or information of circumstances to put a reasonable person on inquiry" that he had been "wronged" by defendants, including Dr. Matan, in connection with the treatment and rehabilitation of his trigger finger release condition on the identified date. (Nogart v. Upjohn Co., supra, 21 Cal.4th at pp. 397-398; see also Jolly v. Eli Lilly Co. (1988) 44 Cal.3d 1103, 1111 [" 'If plaintiff believes because of injuries she has suffered that someone has done something wrong' the statutory period begins"].) As such, the statute of limitations on his cause of action did in fact begin to run on August 20, 2012, and expired one year later on August 20, 2013. (Code Civ. Proc., § 340.5.) Accordingly, because plaintiff did not file his original complaint until September 19, 2013, his remaining cause of action for medical negligence is indeed time barred.
Finally, in reaching this conclusion, we briefly address plaintiff's new argument for purposes of appeal that his cause of action did not accrue until September 24, 2012, when he was again seen by Dr. Matan and advised that his trigger finger condition was unchanged. Even putting aside his apparent forfeiture of this argument and assuming for the sake of argument that it has record support (defendants contend there is none), the trial court was entitled to accept as true the date of the underlying incident provided by plaintiff in his written claim to the Board (to wit, August 20, 2012). (See SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83 [if facts alleged by plaintiff conflict with the unambiguous facts in an exhibit, the court may rely on and accept as true the contents of the exhibits]; see also Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955 ["While allegations of the complaint are deemed to be true in ruling on the demurrers, where an allegation is contrary to law or to a fact of which a court may take judicial notice, it is to be treated as a nullity"].) Accordingly, the trial court's ruling to sustain the demurrer with respect to the medical negligence cause of action stands.
On appeal, plaintiff has failed to renew his argument, rejected by the trial court below, that Code of Civil Procedure section 352.1 operated to toll the statute of limitations on the basis of his incarceration. As such, we need not address it here in affirming the trial court's statute-of-limitations ruling. Nor must we address defendants' alternative arguments for affirming the trial court's order as to the medical negligence cause of action - to wit, that plaintiff failed to comply with the Government Claims Act by failing to timely file suit following the Board's rejection of his claim, that he failed to allege actual harm caused by medical negligence, and that, pursuant to Government Code section 845.6, a public entity or public employee cannot be held liable for injury proximately caused by the employee's failure to furnish or obtain medical care for a prisoner. As previously stated, we affirm the trial court's ruling on demurrer so long as it is correct on any theory. (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co., supra, 59 Cal.App.4th at pp. 15-16.) --------
III. Sustaining Demurrers without Leave to Amend.
Lastly, we address the trial court's decision to sustain the demurrers as to both causes of action without leave to amend. The governing law is well-established.
As mentioned, we apply the abuse of discretion standard to the trial court's decision to sustain a demurrer without leave to amend, assessing whether there is a reasonable possibility that the defect in the complaint can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Whittemore v. Owens Healthcare-Retail Pharmacy, Inc. (2010) 185 Cal.App.4th 1194, 1199.) "The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) "As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) "Nevertheless, where the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result." (Ibid.)
Having reviewed the relevant facts in light of these rules, we find no reasonable possibility the defects in the SAC could be cured by permitting further amendment of the pleading. First, plaintiff has identified no theory by which he could adequately state any cause of action against defendants for a violation of the ADA/RA. Despite defendants' fierce arguments on appeal regarding the absence of any allegation tending to show that plaintiff's trigger-finger medical condition is a "qualifying disability" for purposes of the ADA/RA, plaintiff continues to offer legal conclusions rather than actual "facts." Plaintiff's reply brief illustrates this fatal flaw, offering only this on the disability issue: "[T]o argue that Plaintiff did not allege that he had a present physical impairment that substantially limits a major life activity is false. Plaintiff's entire complaint revolves around the fact that he is presently impaired as a result of the surgery and the lack of follow up care."
Of course, these conclusory statements are wholly insufficient to meet plaintiff's burden of proving there is a reasonable possibility the defect(s) in the SAC could be cured by another round of amendment. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 68 Cal.App.4th at p. 459.) As such, denial of leave to amend as to the first cause of action was proper.
Second, plaintiff has likewise failed to identify any medical negligence theory that would not be defeated by the governing statute of limitations, and we know of none. As mentioned above, plaintiff argues for the first time on appeal that the accrual date for his claim should be deemed September 24, 2012, when he was told by Dr. Matan at a medical appointment that his condition had not improved. As we have already explained, however, this newly-identified date, even accepting for the sake of argument that there is record support for it, does not change the fact that, for all the reasons stated, plaintiff had reasonable grounds as of August 20, 2012 to suspect that he had been wronged in connection with the treatment of his trigger finger. (Pp. 8-9, ante.) As such, there is no reasonable probability that the timeliness defect in the SAC with respect to the medical negligence cause of action could be cured if leave to amend were granted. Thus, declining to permit leave to amend the second cause of action was a proper exercise of the trial court's discretion.
DISPOSITION
The judgment is affirmed. Defendants shall recover costs on appeal.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Pollak, J.