Tate v. UC Davis Medical Center CA1/3 ( 2021 )

Filed 4/9/21 Tate v. UC Davis Medical Center CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
LIONEL TATE, SR.,
Plaintiff and Appellant, A156602
v. (Solano County
UC DAVIS MEDICAL Super. Ct. No. FCS051099)
CENTER et al.,
Defendants and
Respondents.
LIONEL TATE, SR.,
Plaintiff and Appellant, A159818
v.
CALIFORNIA DEPARTMENT (Solano County
OF CORRECTIONS AND Super. Ct. No. FCS051099)
REHABILITATION et al.,
Defendants and
Respondents.
Lionel Tate, Sr., a state prisoner proceeding in pro per, sued the
California Department of Corrections (the Department), Correctional Officer
J. Mann, the University of California Medical Center at Davis (UC Davis)
and Dr. Michael Moore for injuries Tate allegedly sustained while being
transported from UC Davis to a prison hospital. The trial court dismissed
the action in a series of rulings due to Tate’s failure to comply with the
Government Claims Act (Gov. Code, §§ 810 et seq.) and the statute of
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limitations for medical negligence. We conclude the court ruled correctly,
and, further, that it properly rejected Tate’s multiple requests for entry of
default. We therefore affirm the judgment.
BACKGROUND
In September 2016 Tate underwent surgery at UC Davis. According to
the complaint, he and Dr. Moore agreed he would be discharged back to
California State Prison, Solano the day after surgery “to [perform his] normal
daily routine.” Instead, he was transported to the prison hospital at Sierra
Conservation Center in Jamestown.
Tate alleged that during the drive to Sierra Conservation Center he
“was handcuffed, shackled, strapped in a van that had long bench (couch)
type seats, under pain medication, with a tube (drain) hanging out of the
surgery in his neck. Going up the steep grade on the road, around sharp
curves, and rollercoaster road caused plaintiff to bounce all over the van (‘the
Freddie Gray Experience’).[1] When [he] arrived at SCC-Jamestown he was
sore all over his body from the bouncing around in the van.” Tate “refused all
medication and medical care for fear of other harm that could be
‘accidentally’ caused to [him]” during the nine days he remained at the Sierra
Conservation Center hospital.
Tate alleged that Dr. Moore and UC Davis (jointly, the medical
defendants) negligently violated their agreement to discharge him directly
back to prison and that, in so doing, Dr. Moore “negligently went along with
[the Department’s] deliberate ploy” to retaliate against him for an unrelated
claim he had previously filed against it. Officer Mann escorted Tate to
1 This was apparently referring to the 2015 death of Freddie Carlos
Gray, Jr. during transport in a Baltimore police van. (See Death of Freddie
Gray < https://en.wikipedia.org/wiki/Death_of_Freddie_Gray> [as of April 9,
2021].)
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Jamestown and was allegedly part of the Department’s scheme to send him
there on the “Freddie Gray Experience.” The complaint sought $50,000,000
in compensatory damages, plus punitive damages.
The medical defendants demurred to the complaint, arguing the claims
against them were barred by Tate’s failure to comply with the Government
Claims Act and the one-year statute of limitations for medical negligence.
The court sustained the demurrer without leave to amend. It ruled: “The
complaint alleges that Plaintiff was aware of his alleged injury on September
15, 2016 when he was transported from the hospital to Sierra Conservation
Center. Yet he did not file this action until June 29, 2018, which was more
than one year later. Therefore, the action is barred by the one-year statute of
limitations of CCP Section 340.5.” The court also found the complaint failed
to allege sufficient facts to show Tate filed a government claim against the
medical defendants before filing suit and was therefore barred by the
Government Claims Act. Accordingly, the claims against the medical
defendants were dismissed.
Tate proceeded to file an amended complaint against the Department
and Officer Mann. The Department moved for judgment on the pleadings,
asserting the action was barred by Tate’s failure to comply with the
Government Claims Act and, in support, requesting judicial notice of the fact
that he failed to submit a government claim regarding the incident. The
request for judicial notice was supported by a certification prepared by
custodian of records Alexandra Gottlieb declaring that a diligent search of the
Government Claims Program’s records failed to locate any claims pertaining
to the incident. Officer Mann demurred to the amended complaint on the
same basis.
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The court granted the request for judicial notice and found Tate had
not filed a pertinent government claim. On that basis it sustained Officer
Mann’s demurrer and granted the Department’s motion for judgment on the
pleadings without leave to amend.2
Tate filed timely separate appeals from the ensuing judgments of
dismissal. In light of the substantial legal and factual overlap between the
two appeals, we now order the two appeals consolidated for disposition.
DISCUSSION
I. Tate’s Claims Against the Medical Defendants Are Barred by the
Statute of Limitations
As noted, the court found Tate’s claims against the medical defendants
were barred by the one-year limitations period for any “action for injury or
death against a health care provider based upon such person's alleged
professional negligence,” commencing on the date “the plaintiff discovers, or
through the use of reasonable diligence should have discovered, the injury.”
(Code Civ. Proc., § 340.5; Larson v. UHS of Rancho Springs, Inc. (2014) 230
Cal.App.4th 336, 346 (Larson).) Tate disagrees, asserting he sued UC Davis
and Dr. Moore for violating a “doctor-patient agreement” to discharge him
back to the state prison at Solano. This, he maintains, sounds in ordinary,
not professional, negligence.3 This assertion is meritless.
2 Over the course of the litigation the court also denied Tate’s requests
for entry of default as to all defendants. We discuss Tate’s challenge to those
denials in section III, pp. 8-10, post.
3Tate also alleged an intentional tort claim, but that cause of action
named only the CDCR, not the medical defendants. However, even if there
were some ambiguity in that regard, the result is the same. The trial court
sustained the medical defendants’ demurrer to the intentional tort claim on
the ground of uncertainty and the sole reference to that ruling in Tate’s
opening brief is a statement, unsupported by legal argument or citation to
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“[W]hen a plaintiff asserts a claim against a health care provider on a
legal theory other than professional negligence, courts must determine
whether the claim is nonetheless based on the health care provider’s
professional negligence.” (Larson, supra, 230 Cal.App.4th at p. 347; see Flores
v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 82.) Our focus
in making that determination is “on the nature or gravamen of the claim, not
the label or form of action the plaintiff selects.” (Larson at p. 347; Hensler v.
City of Glendale (1994) 8 Cal.4th 1, 22-23].)
Here, notwithstanding Tate’s attempt to characterize his claim as
(apparently) for negligent breach of contract,4 its gravamen is the harm he
allegedly suffered during, and due to, being transferred to the hospital at
Sierra Conservation Center after surgery. A physician’s decision to discharge
a patient to a care facility and the arrangements for the patient’s transfer
there are integrally related to the patient’s medical care and, therefore,
undoubtedly a component of the rendering of medical care “within the scope
of services for which the provider is licensed.” (§340.5, subd. (2); see Barris
v. County of Los Angeles (1999) 20 Cal.4th 101, 109-110 [claim against
hospital for failing to stabilize emergent patient before transferring to
another medical facility sounded in professional negligence].) Tate’s claims
pertinent authority or the record, that “[t]he complaint is clear on the
intentional tort.” Matters not properly raised or that lack adequate legal
discussion and appropriate references to the record will be deemed forfeited.
(Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656; Kurinij v. Hanna &
Morton (1997) 55 Cal.App.4th 853, 867; Dietz v. Meisenheimer &
Herron (2009) 177 Cal.App.4th 771, 779-801.) This is such a case.
4 We express no opinion as to whether the law would recognize such a
claim if it were timely filed and not otherwise barred.
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against the medical defendants were therefore subject to, and barred by,
section 340.5’s one-year limitations period.
II. Tate’s Action Against the Prison Defendants is Barred by the
Government Claims Act
As noted, the trial court found Tate’s action against the prison
defendants was barred by his failure to submit a claim as required by the
Government Claims Act. We agree.
A. Applicable Law
Suits for money or damages filed against a public entity are regulated
by statutes contained in Division 3.6 of the Government Code, commonly
referred to as the Government Claims Act. “We have previously noted that
‘[s]ection 905 requires the presentation of “all claims for money or damages
against local public entities,” subject to exceptions not relevant here. Claims
for personal injury and property damage must be presented within six
months after accrual; all other claims must be presented within a year.
[Citation.] “[N]o 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 and has
been acted upon . . . or has been deemed to have been rejected. . . .”
[Citation.] “Thus, under these statutes, failure to timely present a claim for
money or damages to a public entity bars a plaintiff from filing a lawsuit
against that entity.” ’ ” (DiCampli-Mintz v. County of Santa Clara (2012) 55
Cal.4th 983, 989-990.)
“[A] plaintiff must allege facts demonstrating or excusing compliance
with the claim presentation requirement. Otherwise, his complaint is subject
to a general demurrer for failure to state facts sufficient to constitute a cause
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of action.” (State of California v. Superior Court (2004) 32 Cal.4th 1234,
1243.)
We apply the same standard of review for a judgment on the pleadings
as for a demurrer. (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1312.)
“ ‘ “We treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law. [Citation.] We
also consider matters which may be judicially noticed.” ’ ” (Evans v. City of
Berkeley (2006) 38 Cal.4th 1, 6; Joslin v. H.A.S. Ins. Brokerage (1986) 184
Cal.App.3d 369, 374 [complaint otherwise good on its face is subject to
demurrer when judicially noticed facts render it defective]; Code Civ. Proc., §
430.30, subd. (a).) “Indeed, when the allegations of the complaint contradict
or are inconsistent with [judicially noticed] facts, we accept the latter and
reject the former.” (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033,
1040; Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-1753 (Fowler).)
B. Analysis
Tate checked the box on his form complaint indicating he had complied
with the applicable claims statutes. However, based on Ms. Gottlieb’s
certification, the prison defendants asked the court to judicially notice the
fact that Tate had not submitted a government claim. The court properly
granted the request pursuant to Evidence Code section 452, subdivision (c),
which authorizes judicial notice of the official records of state agencies.
(Evid. Code § 452, subd. (c); Fowler, supra, 42 Cal.App.4th at pp. 1752-1753;
Chas. L. Harney, Inc. v. State (1963) 217 Cal.App.2d 77, 85-86.)
Fowler is squarely on point. There, based on the declaration of a state
employee who was familiar with and had searched the relevant records, the
court of appeal held the trial court properly judicially noticed the fact that the
records of the State Board of Control did not contain a claim related to
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Fowler’s action. (Fowler, supra, 42 Cal.App.4th at pp. 1752-1753.) The same
is true here. Just as in Fowler, the records of the Government Claims
Program, as evidenced by Ms. Gottlieb’s certification, were the proper subject
of judicial notice and established that Tate’s action against the prison
defendants was barred by his failure to comply with the Government Claims
Act.
III. Tate Was Not Entitled to Entry of Default
As we understand his arguments, Tate asserts the court erred in
denying his various requests to enter default as to each of the defendants.
Specifically, he contends the medical defendants and Officer Mann defaulted
by filing their demurrers after the time allowed for responsive pleadings and
that, although the Department filed a timely general denial, a general denial
does not qualify as a responsive pleading and “thus, amounts to a default.”
These contentions are meritless.
A. Background
Tate’s original complaint was filed on June 29, 2018, and personally
served on the medical defendants on July 19, 2018. On August 23, 2018, the
medical defendants demurred and moved to strike portions of the complaint.
Tate subsequently submitted a request for entry of default, which was denied
with the notation, “demurrer filed 8/23/18.”
On March 21, 2019, after the court sustained the medical defendants’
demurrer, Tate filed an amended complaint against the Department and, for
the first time, Officer Mann. Although the record on appeal does not appear
to include a proof of service, the Department appears to concede service of the
amended complaint was effected by mail on March 10. The Department filed
a general denial on April 11, 21 days after Tate filed the amended complaint
and proof of service and, it seems, 31 days after service by mail. Tate
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thereafter requested a default judgment. The request was denied with the
notation that the Department’s general denial was already on file.
The amended complaint was personally served on Officer Mann on May
21, 2019. His demurrer was filed June 20, 2019, 30 days after service, and,
again, Tate’s ensuing request for entry of default was denied because the
demurrer was on file.
B. Analysis
Default may be entered if the defendant is served but fails to respond
by filing an answer or other responsive pleading or motion within the time
allowed by statute. (Code Civ. Proc., § 585, subds. (a)-(c).) Here, the
Department filed its general denial to the amended complaint within the
statutory time to respond. (Code Civ. Proc. §§ 471.5, subd.(a) [30 days to
respond], 1013, subd. (a) [5-day extension for service by mail].)
Notwithstanding Tate’s contrary assertion, a general denial is a sufficient
responsive pleading where, as here, the complaint is unverified. (Code. Civ.
Proc., §§ 431.30, subd. (d), 446.)
Tate does not dispute that Officer Mann’s demurrer was filed within 30
days of being served with the amended complaint on May 21. Instead, he
appears to contend it was nonetheless untimely because he also effected
service on Officer Mann on March 10 and March 21. Those claims are
unsupported by anything Tate cites or that we have found in the record.
“ ‘The appellate court is not required to search the record on its own seeking
error.’ [Citation.] Thus, ‘[i]f a party fails to support an argument with
necessary citations to the record,’ . . . the argument [will be] deemed to have
been waived. ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; see
Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043,
1051, fn. 9.) Tate’s assertions that Officer Mann fraudulently evaded earlier
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attempts to serve the summons and complaint, as well as his scattershot
collection of claims of fraud and deception aimed at the other defendants, are
equally unsupported by the record and, therefore, fail for the same reason.
The medical defendants do not deny that their demurrer was filed after
the time to respond elapsed, but that does not end the matter. “[I]t is now
well established by the case law that where a pleading is belatedly filed, but
at a time when default has not yet been taken, the plaintiff has, in effect,
granted the defendant additional time within which to plead and he is not
strictly in default.” (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141.)
Thus, “ ‘[i]t is generally recognized that an untimely pleading is not a nullity,
and it will serve to preclude the taking of default proceedings unless it is
stricken.’ ” (Ibid.) The medical defendants filed the demurrer on August 23,
2018, a week before Tate signed his request for default and 21 days before it
was filed. Accordingly, it was properly denied.
In summary, our review discloses no error in the underlying
proceedings.
DISPOSITION
The judgments of dismissal are affirmed. The respondents are entitled
to costs on appeal.
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_________________________
Wiseman, J.*
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Jackson, J.
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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