Filed 6/29/20 Warren v. Ahlin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ANDREW WARREN,

Plaintiff and Appellant,

v.

PAM AHLIN et al.,

Defendants and Respondents.

F076767

(Super. Ct. No. 15CECG00978)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T. McGuire, Judge.

Andrew Warren, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Danielle F. O’Bannon, Assistant Attorney General, Alberto L. Gonzalez and Jeremy C. Thomas, Deputy Attorneys General, for Defendants and Respondents.

-ooOoo-

Andrew Warren is a self-represented civil detainee housed at a State Department of State Hospitals facility in Coalinga pursuant to the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.). Warren filed a civil lawsuit alleging tort claims against various state employees. He now appeals from an order sustaining a demurrer to his amended complaint without leave to amend. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Warren resides at Coalinga State Hospital (CSH). On March 16, 2015, Warren filed a civil complaint against Pam Ahlin, Cliff Allenby, Kevin Heart, Audrey King, Brandon Price, Jack Carter, and “Does 1–18.” According to the trial court’s register of actions, Kevin Heart was dismissed from the case in August 2015.

In August 2016, the remaining defendants filed a motion for summary judgment. The trial court treated the motion as one for a judgment on the pleadings and granted it with leave to amend. The register of actions shows Pam Ahlin and Cliff Allenby were subsequently dismissed from the case in January 2017.

On March 8, 2017, Warren filed a first amended complaint. The named defendants consisted of Audrey King, Brandon Price, Jack Carter, Francis Hicks, Robert Olivera, Tamika Walker, Frank Maul, Jonathan Halkum, and R. Crabtree. On March 27, 2017, Warren filed another document labeled as his first amended complaint. The second version is substantively identical to the one filed earlier in the month except for Jonathan Halkum’s name being omitted from the caption.

The parties do not explain why there are two versions of the first amended complaint. We will assume the operative pleading was filed on March 27, 2017, but the assumption does not affect the outcome on appeal. Although Robert Olivera is named as a defendant in both versions, the register of actions shows he was dismissed from the case on May 3, 2017.

On May 17, 2017, Audrey King, Brandon Price, Jack Carter, Francis Hicks, Tamika Walker, Frank Maul, and R. Crabtree (collectively, respondents) filed the subject demurrer. The asserted grounds for demurrer were failure to state valid claims for relief, uncertainty, and untimeliness. Based on issues of standing and the applicable statutes of limitations, respondents requested the demurrer be sustained without leave to amend.

Warren’s first cause of action alleged a violation of his “right to due process pursuant [to] the Fifth, Fourteenth Amendment, Due Process Clause.” The second cause of action sought recovery under section 1983 of title 42 of the United States Code (section 1983) and California’s Government Claims Act (Gov. Code, § 810 et seq., formerly known as the Tort Claims Act) for damages caused by the defendants’ “acts and omissions.” The second cause of action also recited the elements of negligence, and a third cause of action rephrased the negligence claim in terms of defendants’ alleged breach of a “duty under state tort law to provide him with adequate protection against … foreseeable danger.”

Warren’s claims were based on events occurring between February 2012 and January 2015. For background purposes, Warren explained how he had developed an “intimate relationship” with a fellow patient, J.R., and unsuccessfully lobbied for them to be housed together in the same “unit.” Warren and J.R. allegedly made CSH personnel aware of illegal activity by another patient, Eric D., but disclosed the information only after receiving a promise they would be rewarded for the tip by having their housing request granted. The information they provided allegedly resulted in a successful “raid on Eric D[.],” but CSH allegedly “fail[ed] to uphold the contract agreement.” However, there are no contract claims in this case.

Warren blamed CSH, and respondents in particular, for injuries allegedly suffered by J.R. while J.R. was housed in the same unit as patient R. Johnson. It is unclear when J.R. began having problems with Johnson, but Warren alleged Johnson sexually assaulted J.R. numerous times before CSH personnel finally moved J.R. to a new unit in late 2014. Warren separately alleged that Johnson attacked him in a stairwell on the afternoon of December 12, 2014, causing Warren to suffer physical injuries.

Warren alleged a causal connection between his encounter with Johnson in December 2014 and negligence by Crabtree in October 2013. According to Warren, he and another patient had informed Crabtree that Johnson was in possession of, and distributing, child pornography. Acting on this information, Crabtree searched Johnson’s room. During the search, Crabtree “left his investigation notes on Johnson[’s] bed, and Johnson discovered who it was that informed on him.”

In September 2017, respondents’ demurrer was sustained without leave to amend. The trial court partially relied on Government Code section 854.8, which shields public entities from direct and vicarious liability for injuries proximately caused by a patient of a mental institution. The trial court raised the issue of immunity sua sponte and maintained its position even after respondents candidly acknowledged the statute did not apply to them. (See id., subd. (d) [“Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission”].) Warren filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

“A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the trial court’s ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Jones v. Whisenand (2017) 8 Cal.App.5th 543, 550; accord, T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) “We assume the truth of properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken.” (Jones, supra, at p. 550.)

The sustaining of a demurrer without leave to amend is reviewed for abuse of discretion. The test is whether there is a “reasonable possibility” any defects in the complaint can be cured by amendment. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) “The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended.” (Ibid.)

In his opening brief, Warren tells us “the only issue [he] is contesting is the lower court’s ruling that [respondents] are immune from [his] lawsuit.” Under the standard of review, the challenged order “will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.” (Carman v. Alvord (1982) 31 Cal.3d 318, 324; accord, Jones v. Whisenand, supra, 8 Cal.App.5th at p. 550 [“We may affirm … on any ground apparent from the record, regardless of the grounds upon which the trial court sustained the demurrer”].) Respondents do not attempt to justify the trial court’s immunity analysis. Instead, they argue the demurrer was properly sustained on other grounds.

Self-represented litigants are held to the same standards and procedural rules as parties represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638–639.) Therefore, Warren’s failure to address the question of standing and the applicable statutes of limitations results in a forfeiture. “An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument.” (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873; accord, Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [“One cannot simply say the court erred, and leave it up to the appellate court to figure out why”].) Nevertheless, we will briefly discuss the claims against each defendant and explain why the demurrer was properly sustained without leave to amend.

A. Pam Ahlin, Cliff Allenby, Kevin Heart, and Robert Olivera

Respondents argue Ahlin, Allenby, and Heart were “effectively dismissed” when Warren failed to name them in the first amended complaint. “It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them.” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142.) However, as previously noted, Ahlin, Allenby, and Heart were dismissed from the case before either version of the first amended complaint was filed. Warren acknowledges this fact on page 12 of his opening brief.

Olivera is named in both versions of the first amended complaint. As previously noted, Olivera was dismissed from the case on May 3, 2017, two weeks prior to the filing of respondents’ demurrer. Therefore, the claims previously asserted against Ahlin, Allenby, Heart, and Olivera are not at issue in this appeal.

B. Jonathan Halkum

Halkum was named as a defendant in the pleading filed on March 8, 2017. His name does not appear in the first amended complaint filed on March 27, 2017. If the latter document constitutes the operative pleading, the claims against Halkum were dismissed by operation of law. (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th at pp. 1142–1143; Kuperman v. Great Republic Life Ins. Co. (1987) 195 Cal.App.3d 943, 947.)

If the earlier version of the first amended complaint is the operative pleading, the demurrer was properly sustained as to Halkum. Although his name appears in the caption, Halkum is not mentioned in the body of the pleading, which means no causes of action were pleaded against him. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.) “Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 44.)

C. Audrey King and Jack Carter

King and Carter were named in the original and amended versions of the complaint. King was alleged to have been “the Director of CSH” during the relevant time period. Carter was alleged to have been “the Chief of Police Services” for CSH. The factual allegations concerning these defendants exclusively pertain to J.R.’s housing assignments and the injuries allegedly suffered by J.R. while he was housed with patient Johnson.

Warren has no standing to assert claims on behalf of J.R. With regard to federal claims under section 1983, a plaintiff “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” (Warth v. Seldin (1975) 422 U.S. 490, 499; accord, Conn v. Gabbert (1999) 526 U.S. 286, 292–293 [quoting ibid.].) Therefore, the demurrer to the first and second causes of action against King and Carter was properly sustained.

Warren’s claims also fail for lack of standing under California law. (See Code Civ. Proc., § 367 [“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute”].) Again, as a general rule, a litigant “does not have standing to bring a claim asserting a violation of someone else’s rights.” (Brenner v. Universal Health Services of Rancho Springs, Inc. (2017) 12 Cal.App.5th 589, 605.) Warren neither addresses the question of standing nor explains how his claims might be cured by further amendment of the pleadings. Therefore, as to King and Carter, we conclude the demurrer was properly sustained without leave to amend. (Rakestraw v. California Physicians’ Service, supra, 81 Cal.App.4th at p. 44.)

D. Brandon Price

Price was named in the original and amended versions of the complaint. He is alleged to have been “the Hospital Administrator” of CSH during the relevant time period. The pleadings also contain these allegations: “[On] December 17, 2014, [Warren] submitted a letter to Defendant Price concerning the problems he was experiencing with Johnson before the filing of the law suit [sic]. In the letter [Warren] addressed the sexual assaults and the attack he suffered when Johnson assaulted him.” The referenced letter is attached as an exhibit, and it confirms Warren contacted Price five days after he was assaulted by Johnson. Warren’s stated purpose for contacting Price was to obtain the “staff names and position title[s]” of all personnel who were working in “Unit 16,” i.e., Johnson’s unit, at the time of the attack.

“‘[W]here the pleaded facts of negligence and injury do not naturally give rise to an inference of causation the plaintiff must plead specific facts affording an inference the one caused the others.’” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 900–901, quoting Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1066.) Not only is it unclear what Price is alleged to have done wrong, but also missing is the causal connection between his acts or omissions and the injuries Warren may have suffered. (Ibid.; see Berkley v. Dowds (2007) 152 Cal.App.4th 518, 530 [“A wrong without damages is not actionable [citation], unless damages are presumed by law”].) Therefore, as to Price, the demurrer was properly sustained. Given Warren’s failure to explain how the defect could be cured, the trial court did not abuse its discretion by denying leave to amend. (Rakestraw v. California Physicians’ Service, supra, 81 Cal.App.4th at p. 44.)

E. Francis Hicks, Tamika Walker, and Frank Maul

Hicks, Walker, and Maul were not named as defendants in the original complaint. “The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) Based on this principle, respondents argue the claims against Hicks, Walker, and Maul are facially time barred.

“A recognized exception to the general rule is the substitution under [Code of Civil Procedure] section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint.” (Woo v. Superior Court, supra, 75 Cal.App.4th at p. 176.) However, although Warren’s original complaint named as defendants “Does 1 to 18,” neither version of the amended complaint contains any reference to the Doe defendants. Consequently, the Doe defendants were dismissed by operation of law. (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th at pp. 1142–1143.)

Warren does not allege Hicks, Walker, and/or Maul were among the Doe defendants named in the original complaint. Even if such contentions were inferable from the pleadings, Warren’s claims would not relate back unless he was “genuinely ignorant” of their identities when he filed the original complaint. (Woo v. Superior Court, supra, 75 Cal.App.4th at p. 177; see Miller v. Thomas (1981) 121 Cal.App.3d 440, 444–445 [explaining the “kinds of ignorance” that will suffice].) “[I]f the identity ignorance requirement of [Code of Civil Procedure] section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay.” (Woo, supra, at p. 177.) Warren does not address this issue, so his burden of demonstrating the applicability of the relation-back doctrine has not been satisfied. (See Kroll & Tract v. Paris & Paris (1999) 72 Cal.App.4th 1537, 1541 [“On an appeal following a demurrer sustained without leave to amend, the appellant bears the burden of demonstrating [reversible error]”].)

“A federal civil rights cause of action is subject to the forum state’s statute of limitations for personal injury claims.” (Shalabi v. City of Fontana (2019) 35 Cal.App.5th 639, 642, rev. granted Aug. 14, 2019, S256665.) “In California, the statute of limitations for a personal injury claim is two years.” (Ibid., citing Code Civ. Proc., § 335.1.) Warren’s opening brief concedes this case “arises out of an assault on [him] … by another patient, R[.] Johnson, on December 12, 2014.” Warren’s letter to Price on December 17, 2014, leaves no doubt he was aware of his injuries at that time and was preparing to file the current lawsuit. Tamika Walker is alleged to have taken J.R.’s “pass card” and “threaten[ed] [Warren] with the same behavior” during the general time frame of December 2014 through January 2015.

For the reasons discussed, it is apparent the two-year statute of limitations on Warren’s federal and state law claims against Hicks, Walker, and Maul expired prior to the filing of his first amended complaint in March 2017. Therefore, the demurrer to those claims was properly sustained without leave to amend.

F. R. Crabtree

The statute of limitations analysis for Crabtree is slightly different because the original complaint references Crabtree but does not name him as a defendant. The original complaint consisted of a four-page Judicial Counsel form, an attached 22-page pleading, and additional pages of exhibits. The defendants were identified and listed in four separate places, including the caption, and Crabtree was not named as a party. The body of the attached pleading contained allegations regarding Crabtree’s search of patient Johnson’s room in 2013. Crabtree was alleged to have left his notepad in Johnson’s room “by accident,” and to have later informed Warren of his mistake.

Since Crabtree was neither named as a defendant in the original complaint nor served with notice of the lawsuit, he was not a party to the case at that time. (See Code Civ. Proc., § 422.40; Tracy Press, Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1296–1297.) The circumstances are similar to those in Ingram v. Superior Court (1979) 98 Cal.App.3d 483. In Ingram, a plaintiff was prohibited from belatedly asserting claims against a party who had been accused of negligence in the body of the original complaint but not named as a defendant therein. (Id. at pp. 486–489.)

“Amendment to correct a simple mistake in the naming of a party must be sharply distinguished from the question of whether the correctly named party is actually being joined in that action for the first time under the guise of correcting a mistake in form.” (Ingram v. Superior Court, supra, 98 Cal.App.3d at p. 491.) “The straightforward rule is that amendment after the statute of limitations has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Id. at p. 492.)

In his opposition to the demurrer, Warren vaguely alleged Crabtree was one of the originally named Doe defendants. Warren conceded he knew Crabtree’s identity and was aware of his negligence when he filed the original complaint, but argued he did not initially realize Crabtree’s negligence was actionable. The type of ignorance Warren described is only excusable if the law did not recognize the existence of a cause of action when the original complaint was filed and the plaintiff learned of his right to sue “‘by reason of decisions rendered after the commencement of the action.’” (Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88.) Such is not the case here. Therefore, as to Crabtree, we conclude the demurrer was properly sustained without leave to amend.

II. Warren’s Request For Judicial Notice

In support of his reply brief, Warren filed a request for judicial notice of CSH policies identified as Security Administrative Directive Nos. 801, 830, and 868. However, the documents attached to Warren’s request are the amended versions of those policies as of late 2017 and early 2018. The material clearly has no relevance to the dispositive issues on appeal, so the request for judicial notice is denied. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4 [denying request for judicial notice based on plaintiffs’ failure to demonstrate relevance].)

DISPOSITION

The order sustaining respondents’ demurrer without leave to amend is affirmed. The parties shall bear their own costs on appeal.