Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS031464
NEEDHAM, J.
De’Wayne German Thomas (Thomas) appeals from a judgment of dismissal entered after the trial court sustained respondent’s demurrer to Thomas’ medical malpractice complaint without leave to amend. Thomas contends the court erred in concluding that his complaint was time-barred under the provisions of Government Code section 945.6. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In December 2006, while Thomas was an inmate in a state medical facility, Dr. Jahangiri allegedly prescribed him Venlafaxin XR in addition to the Prozac he had been taking. As the result of taking these two medications, Thomas allegedly suffered from a life-threatening neurological condition.
Thomas filed a claim with the Victims Compensation and Government Claims Board (Board) on May 8, 2007. A notice of rejection of his claim was mailed to him on June 25, 2007. As Thomas acknowledges, the rejection notice contained the warning: “Subject to certain exceptions, you have only six months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6.”
Thomas filed his medical malpractice complaint in this action on May 28, 2008—more than 11 months after the notice of rejection of his claim was mailed—seeking damages in a number of causes of action that were based on the prescription of Venlafaxin XR.
Respondent filed a demurrer to the complaint, on the ground the complaint was time-barred because it was not filed within six months of the mailing of the rejection of his claim. (Gov. Code, § 945.6.) In support of its demurrer, respondent requested judicial notice of Thomas’ governmental tort claim and the rejection notice that was mailed to him on June 25, 2007. There is no indication in the record that Thomas filed any opposition to the demurrer or to the request for judicial notice.
The trial court issued its tentative ruling to sustain the demurrer without leave to amend. Neither party requested an appearance. The court then issued its order sustaining the demurrer without leave to amend and entered a judgment of dismissal.
This appeal followed.
II. DISCUSSION
In reviewing an order sustaining a demurrer, we assume the truth of all well-pleaded material facts, as well as those facts that may be implied or inferred from the express allegations. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We consider as well any matters that may be judicially noticed. (Ibid.) We then determine de novo whether the allegations stated any cause of action as a matter of law. (Ibid.) Where, as here, the demurrer is sustained without leave to amend, we determine whether the plaintiff established a reasonable possibility that the defect in the complaint could be cured by amendment. (Ibid.; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
As applicable here, the filing and denial of a claim is a condition precedent to maintaining an action for damages against the state and its agencies. (Gov. Code, § 945.4; Illerbrun v. Conrad (1963) 216 Cal.App.2d 521, 524; see Gov. Code, §§ 905, 905.2.) There is no dispute that Thomas timely filed a claim with the Board before commencing his lawsuit against respondent, or that notice of the claim’s rejection was mailed to Thomas on June 25, 2007.
There is also no dispute that a lawsuit against a public agency or public employee, for which a claim is required, must ordinarily be commenced within six months after the claim rejection was mailed. (Gov. Code, §§ 945.6, subd. (a)(1), 950.6, subd. (b); Rogers v. Centrone (1968) 261 Cal.App.2d 361, 362-365 [demurrer properly sustained without leave to amend where complaint against school district employee was filed seven months after rejection of claim].)
Thomas filed his lawsuit about 11 months after the mailing of the rejection of his claim, long after the six-month deadline had expired. Thomas’ lawsuit is time-barred.
Thomas’ sole contention to the contrary is that a tolling provision in subdivision (b) of Government Code section 945.6 gave him additional time to file his complaint. The provision states: “When a person is unable to commence a suit on a cause of action described in subdivision (a) within the time prescribed in that subdivision because he has been sentenced to imprisonment in a state prison, the time limit for the commencement of such suit is extended to six months after the date that the civil right to commence such action is restored to such person,” unless the plaintiff did not make a reasonable effort to commence suit or obtain restoration of his right to do so.
Thomas urges that his injuries occurred while he was “serving a twenty-four month prison imposed security segregation sentence,” and then on January 9, 2008, “after serving approximately (14) months of his (24) month segregation sentence, plaintiff was released from segregation and returned for normal housing within the prison’s general population.” Therefore, he argues, the expiration of his time to commence the lawsuit was July 6, 2008 (six months after his release from segregation housing).
Thomas’ argument is unavailing, for a number of reasons. First, Thomas did not raise this argument in the trial court, and there is no allegation in his complaint from which to infer that he was “unable to commence a suit” while he was in segregated housing. (§ 945.6, subd. (b).) To the contrary, he alleges that during the period he was in segregated housing he: wrote a grievance complaint in April 2007 and provided notice that he intended to file a lawsuit in 90 days (i.e. July 2007, while he was still in segregated housing); filed a claim with the Board in May 2007; sought review of the Board’s ruling from June 2007 until November 2007; and exhausted his administrative remedies in November 2007. The face of the complaint, therefore, does not support application of the statutory tolling period. Nor did Thomas request leave to amend the complaint to include any such allegation.
Second, Thomas’ opening brief in this appeal provides no legal authority or citation to the record supporting his assertion that he was precluded from filing his complaint while he was in segregated housing. He therefore fails to establish any error.
Third, subdivision (b) of Government Code section 945.6 is of questionable effect anyway. In Moore v. Twomey (2004) 120 Cal.App.4th 910, 914, footnote 2, the court pointed out that this tolling provision, enacted in 1965, reflected the fact that prisoners at the time did not retain the right to initiate civil actions, and had to apply for a restoration of that right. The situation changed in 1975, when Penal Code section 2601 was enacted to provide that prisoners do retain the right to initiate civil actions. The court in Moore concluded that subdivision (b) of Government Code section 945.6 “appears to lack any continuing vitality” and stated: “The statute of limitations for commencing a government tort claim action is not tolled by virtue of a plaintiff’s imprisonment. [Citation.]” (Moore, supra, 120 Cal.App.4th at p. 914 & fn. 2.)
In sum, Thomas fails to establish that the tolling provision of Government Code section 945.6, subdivision (b), extended the time for the filing of his complaint. The demurrer was properly sustained.
Thomas does not contend that the trial court erred in denying leave to amend. Nor is there any basis for such a conclusion: because the defect in the complaint was its untimeliness, the defect could not be cured by amendment.
The trial court did not err in sustaining the demurrer to Thomas’ complaint without leave to amend.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., BRUINIERS, J.