JAMES MILLER v. AMIR KASHANI (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff and appellant James L. Miller (plaintiff) appeals the dismissal of his medical malpractice action against defendants and respondents Dr. Amir Kashani (Kashani) and the County of Los Angeles (County),¹ after the trial court sustained, without leave to amend, defendants' demurrer to plaintiff's third amended complaint.   We affirm the judgment.

BACKGROUND

1. Factual Background

Plaintiff alleges that on July 28, 2007, he went to the LAC + USC Medical Center to seek treatment for a head injury.   His right eye was bloodshot.   An emergency room doctor ordered x-rays of the injured area.   The same doctor subsequently informed plaintiff that “something wasn't adding up” and ordered a CT scan of plaintiff's head.

A CT scan report dictated by Dr. Michael Kobayashi was attached to plaintiff's first amended complaint.   The report states that plaintiff was a 52-year-old man who had sustained blunt head trauma and was experiencing left orbital proptosis.²  In the report, Dr. Kobayashi noted that the CT images of plaintiff's face revealed multiple fractures on the left side of his face as well as a fracture on his right side.   Dr. Kobayashi further noted a “possible abnormal attenuation” in plaintiff's right eye.   He recommended further clinical evaluation of both eyes.

At approximately 4:00 a.m., plaintiff was informed that the CT scan showed he had a fracture to his left eye and that the eye needed surgery.   A nurse escorted plaintiff to meet Dr. Barrese, who informed plaintiff about the procedure that would take place.   Plaintiff asked Dr. Barrese, “Is there any other way?”   Dr. Barrese responded that he would send plaintiff to the “optometrist department” to examine the injured area before the surgery.

After being escorted to the “optometrist office,” plaintiff was approached by an “Oriental doctor” who said he would have to dilate plaintiff's eyes before the examination.   After plaintiff's eyes were dilated, a second doctor performed the examination.   During the examination, plaintiff complained of discomfort, but the doctor did not stop.   At the conclusion of the examination, the doctor “made a statement in the nature of ‘you're the guinea pig.’ ”

Plaintiff attached to his first amended complaint a July 29, 2007 eye clinic record report signed by Kashani.   That report states in part:  “Rec'd to wait 4-6 weeks for swelling to resolve and reevaluate for wall repair.”   The report further states:  “Return to Kashani ․ on 8/3 @ 1 pm.”

Plaintiff left the examining room and walked down the hall to the surgery department.   There, he learned that Dr. Barrese was gone.   The relief doctor informed plaintiff that he could go home.   Thereafter, plaintiff began experiencing problems with the vision in his right eye, which became blurry and sensitive to sunlight.

2. Procedural History

Plaintiff filed the instant action against the County on June 25, 2009, alleging causes of action for general negligence, intentional tort, premises liability, and gross negligence.   Although plaintiff alleged in his complaint that the County is a public entity, he did not allege that he had complied with the applicable claims statutes or that he was excused from so complying.

Five days later, plaintiff filed a first amended complaint, adding allegations concerning the underlying facts and attaching his medical records as exhibits.   The amended complaint did not allege compliance with or excuse from complying with the applicable claims statutes.

The County demurred to the first amended complaint on the grounds that plaintiff had failed to plead compliance with or excuse from complying with the Government Claims Act (Gov.Code, § 905 et seq.) and that plaintiff had failed to plead facts stating a cause of action.

While the demurrer was pending, plaintiff amended his complaint to add Kashani as a defendant.   The amended complaint alleged that Kashani committed “medical malpractice and misus[e] of equipment.”

Kashani demurred to the complaint on the same grounds asserted by the County, as well the additional ground of failing to allege facts describing Kashani's alleged wrongdoing.   Plaintiff filed demurrers and motions to strike the defendants' demurrers.   Defendants treated these documents as oppositions to their demurrers and filed reply briefs.

While the demurrers were pending, plaintiff moved to amend his complaint.   Attached to the motion was a proposed second amended complaint that, like the previous complaints, did not allege compliance with or excuse from complying with the applicable claims statutes.

On October 22, 2009, the trial court sustained the defendants' demurrers and allowed plaintiff 20 days leave to amend.   The court denied plaintiff's motion to strike the defendants' responses.

On November 16, 2009, plaintiff served a “Notice of Motion to Amend Pleading.”   Although the motion stated that the amended pleading was attached as an exhibit, no exhibits were attached.

Defendants filed a demurrer and a motion to strike, treating plaintiff's motion as a second amended complaint.   Plaintiff moved to strike the demurrer and filed a “Notice of Motion and Motion to Amend the Amended Pleading.”   The motion set forth proposed amendments to the complaint, consisting of the text of various statutes, but no argument or explanation as to how or why the statutes applied.

On December 29, 2009, plaintiff filed a “Notice of Motion and Motion to Amend Second Amended Pleading of Plaintiff” and a “Notice of Motion and Motion to Amend Civil Case Cover Sheet.”   The defendants treated these documents as oppositions to the demurrer and motion to strike and filed a reply.   Plaintiff moved to strike the reply.

On January 11, 2010, the trial court sustained defendants' demurrer and ordered plaintiff to file and serve a third amended complaint within 20 days, “in conformity with specificity requirements for claims against public entities, and to plead compliance with the Government Tort Claims Act.” The court directed defendants to respond to the amended complaint within 30 days.

On February 1, 2010, plaintiff filed a “Notice of Motion and Motion to Amend Pleading and Amendment to Pleading.”   The motion consisted primarily of quotations from statutes that plaintiff asked be inserted into his complaint.   Plaintiff also argued that the doctrine of res ipsa loquitur applied, but did not explain how or why the doctrine was applicable.   Defendants treated plaintiff's motion as a third amended complaint and filed a demurrer and a motion to strike it.

On March 9, 2010, while the demurrer and motion to strike was pending, plaintiff filed a “Notice of Motion and Motion to Amend Second Complaint P.I., P.D., W.D. Form.” The proposed amended pleading added causes of action for civil rights and assault with a dangerous weapon.   It also included the following allegation as to why plaintiff was excused from complying with the Government Claims Act:  “Under West's Annotated California Codes, Government Code § 950.4, Exception to bar cause of action:  Plaintiff James L. Miller, will incorporate, actual incorporation of Gov't.Code § 950.4.” Plaintiff included the text of Government Code section 950.4, but did not set forth any facts explaining how that statute applied to his case.

Also on March 9, 2010, plaintiff moved to amend his civil case cover sheet.   He also demurred to defendants' motion to strike and moved to strike their demurrer.

On March 24, 2010, the trial court sustained defendants' demurrer in its entirety, without leave to amend.   The court then dismissed the case under Code of Civil Procedure section 581, subdivision (f).  The trial court's minute order states that there are “Further findings/rulings as fully reflected in court reporter's notes.”

Plaintiff filed the instant appeal.   In designating the record on appeal, plaintiff elected to proceed without a reporter's transcript of the proceedings below.

THE PARTIES' CONTENTIONS

Plaintiff contends the trial court erred by sustaining defendants' demurrers without leave to amend because his compliance with the Government Claims Act was excused under Government Code sections 950 and 950.4.³

Defendants contend plaintiff forfeited his appellate challenge to the dismissal of his action because the trial court's findings and rulings are set forth in the reporter's transcript of the proceedings below and plaintiff failed to designate a reporter's transcript as part of the record on appeal.   Defendants further contend the trial court properly sustained their demurrers because plaintiff failed to allege facts showing his compliance with or excuse from complying with the claim presentation requirements set forth in the Government Claims Act, and because the complaint was fatally uncertain.

DISCUSSION

I. Standard of Review

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled.   The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.  [Citations.]  The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]  The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken.  [Citations.]’  [Citation.]   However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.  [Citation.]”  (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)   The legal sufficiency of the complaint is reviewed de novo.  (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)

If the trial court sustained the demurrer without leave to amend, the reviewing court must decide whether there is a reasonable probability the plaintiff could cure the defect with an amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)   If an amendment could cure the defect, the trial court abused its discretion and the judgment must be reversed;  if not, no abuse of discretion occurred.  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)   The plaintiff has the burden of proving an amendment would cure the defect.  (Ibid.)

II. Government Claims Act

Subject to certain exceptions that are not applicable here, the Government Claims Act provides that “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented ․ until a written claim therefor has been presented to the public entity․”  (§ 945.4.) Compliance with the statutory claim presentation procedure is an element of a cause of action for damages against a public entity.   Consequently, failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a complaint to a general demurrer.  (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1237, 1239-1245.)

Plaintiff concedes that the County is a public entity.   He apparently also concedes that Kashani is an employee of a public entity who was acting in the scope of his employment, and that the Government Claims Act applies to this action.   Plaintiff contends, however, that his compliance with the claim presentation requirements was excused under sections 950 and 950.4.

Section 950.4 allows a plaintiff who has failed to comply with statutory claim presentation requirements to prosecute an action against a public employee if the plaintiff “pleads and proves” ignorance of the involvement of a public entity or public employee within the six-month period following the accrual of the plaintiff's cause of action.  (Moore v. Morhar (1977) 65 Cal.App.3d 896, 901;  §§ 911.2, 950.4.)  Section 950.4 provides:

“A cause of action against a public employee or former public employee is not barred by Section 950.2 if the plaintiff pleads and proves that he did not know or have reason to know, within the period for the presentation of a claim to the employing public entity as a condition to maintaining an action for such injury against the employing public entity, as that period is prescribed by Section 911.2 or by such other claims procedure as may be applicable, that the injury was caused by an act or omission of the public entity or by an act or omission of an employee of the public entity in the scope of his employment as a public employee.”

To obtain relief under section 950.4, the plaintiff must “exercise reasonable diligence in ascertaining the facts giving rise to his or her cause of action.”  (Moore v. Morhar, supra, 65 Cal.App.3d at p. 902.)

Plaintiff's inclusion of the text of section 950.4 in his third amended complaint was insufficient to establish that he was entitled to relief under that statute.   He did not plead ignorance of public entity or public employee involvement in his injury, nor did he allege facts demonstrating reasonable diligence in ascertaining the circumstances underlying his claim.   The trial court accordingly did not err in sustaining the demurrer to plaintiff's third amended complaint.

Plaintiff contends that he “will prove excuse from compliance with the Act and presenting claim timely by offering (incorporation by reference) of” section 950.   Plaintiff's mere “incorporation by reference” of statutory provisions, without alleging facts that show how those provisions apply, is insufficient to demonstrate compliance with or excuse from the statutory claim presentation requirements.

Section 950, moreover, does not excuse plaintiff's compliance with the claim presentation requirements.   The statute provides:  “Except as otherwise provided in this chapter, a claim need not be presented as a prerequisite to the maintenance of an action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee.”  (Italics added.)   One of the exceptions referred to in section 950 is set forth in the statute that immediately follows it-section 950.2.   Section 950.2 provides in relevant part:  “Except as provided in Section 950.4, a cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred․”

The Law Revision Commission comments to section 950.2 state that the statute “makes it clear that suit against a public employee or former employee is barred when a suit against the entity is barred (1) by failure to present any claim at all or (2) by presenting a claim that is insufficient, too late or for any other reason inadequate to support an action against the employing public entity.”  (Cal. Law Revision Com. com., 32A, Pt. 1A West's Ann. Gov.Code (2010 ed.) foll. § 950.2, p. 110.)   Thus, under the Government Claims Act, “[p]resentation of a claim against a public employee or former public employee for injury resulting from an act or omission in the scope of his public employment is not a prerequisite to the maintenance of an action against the employee, but presentation of a claim against the employing public entity is a prerequisite to bringing such an action.  [Citations.]”  (Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1034.)   Plaintiff failed to comply with the requisite claim presentation requirements, and he failed to demonstrate why he should have been excused from doing so.⁴  The trial court accordingly did not err by sustaining defendants' demurrer.

Plaintiff has also failed to suggest how he would amend the complaint to correct these defects.   The burden of proving a reasonable possibility of amending the complaint to state a cause of action is squarely on the plaintiff.  (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)   The trial court therefore did not abuse its discretion by sustaining the demurrer without leave to amend.

DISPOSITION

The judgment is affirmed.   Defendants are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_, J.

CHAVEZ

We concur:

_, P. J.

BOREN

_, J.

DOI TODD

FOOTNOTES

FN1. Kashani and the County are referred to collectively as defendants..  FN1. Kashani and the County are referred to collectively as defendants.

FN2. Proptosis of the eye is the forward projection or displacement of the eyeball.  (Merriam-Webster's Medical Dictionary (2011) .).  FN2. Proptosis of the eye is the forward projection or displacement of the eyeball.  (Merriam-Webster's Medical Dictionary (2011) .)

FN3. All further statutory references are to the Government Code unless otherwise indicated..  FN3. All further statutory references are to the Government Code unless otherwise indicated.

FN4. Because we hold that plaintiff's claims are barred as the result of his failure to comply with the Government Claims Act, we need not address defendants' arguments that plaintiff's claims are also barred by his failure to designate a reporter's transcript as part of the record on appeal and because he failed to allege facts stating a cause of action..  FN4. Because we hold that plaintiff's claims are barred as the result of his failure to comply with the Government Claims Act, we need not address defendants' arguments that plaintiff's claims are also barred by his failure to designate a reporter's transcript as part of the record on appeal and because he failed to allege facts stating a cause of action.