Filed 11/14/19 Arellano v. Sedighi CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RAUL ARELLANO,

Plaintiff and Appellant,

v.

F. SEDIGHI et al.,

Defendants and Respondents.

D074505

(Super. Ct. No.

37-2016-00021416-CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed.

Raul Arellano, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General, Misha D. Igra and Heewon Heidi Seo, Deputy Attorneys General, for Defendants and Respondents.

Raul Arellano is a self-represented inmate in state prison. He sued public entities and their employees for money damages arising from allegedly negligent medical care and other tortious acts. He appeals from a judgment of dismissal entered after the trial court found his complaint was untimely at the pleading stage of the case, under the applicable statutes of limitations (Gov. Code, §§ 945.6, 950.6, further unspecified statutory references are to this code). We agree with the trial court and accordingly, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Given the procedural posture, we draw the facts from the pleadings and matters subject to judicial notice. (Code Civ. Proc., § 438, subd. (d); Smiley v. Citibank (1995) 11 Cal.4th 138, 146 [in reviewing a demurrer or motion for judgment on the pleadings, court accepts all alleged material facts as true].)

In November 2010, Arellano suffered a head trauma that caused him to experience seizures and pain. While incarcerated in a state prison, a neurologist prescribed him a medication, Gabapentin, which alleviated his pain and the number and severity of his seizures.

In November 2011, Arellano was transferred to a different state prison. There, doctors took Arellano off Gabapentin and started him on a treatment plan with different medication. The new medication was not as effective and yielded negative side effects, such as suicidal thoughts. Between 2012 and 2015, Arellano filed grievances seeking to obtain Gabapentin or another more effective form of treatment, which grievances were denied. The grievance review process was conducted and/or overseen by medical personnel (Drs. R. Walker and S. Roberts) as well as nonmedical personnel (M. Glynn and J. Lewis). Arellano also informed nurse practitioner A. Busalacchi of his medical history, but she failed to give him Gabapentin or another, more effective treatment.

The prison recurrently treated Arellano in the infirmary for his pain and suicidal thoughts. In March 2015, a psychiatrist temporarily took him off his pain and seizure medication as part of a treatment plan for Arellano’s suicidal thoughts, i.e., to assess the side effects of the medication. On or about March 11, 2015, Arellano started a new seizure medication (Trileptal), but he had an allergic reaction to it. He was immediately taken off Trileptal. On or about March 13, an unidentified doctor (Dr. Doe) allegedly ordered that Arellano be “permanently” taken off seizure medication.

Within one or two weeks, Dr. Sedighi treated Arellano. Arellano implored Dr. Sedighi to give him Gabapentin. With knowledge of Arellano’s medical history, Dr. Sedighi “decided to leave [him] without any seizure or pain medication.” About five days after seeing Dr. Sedighi, Arellano experienced a seizure that caused him to suffer a neck injury.

Subsequently, Arellano filed a claim with the victim compensation and government claims board (board), which was received by the board in July 2015 (government claim). In his government claim, Arellano stated: “Doctor took me off seizure medication. They wanted to wait until I get a seizure and see what type of seizures I get. This occurred on March 13, 2015. On March 24, 2015[,] I got a seizure and [that] is when my Injury occurred.”

On August 28, 2015, the board notified Arellano that it had rejected his government claim. The notice states, in pertinent part, “you have only six (6) months from the date this notice was . . . deposited in the mail to file a court action on this claim. See Government Code section 945.6.”

Superior Court Proceedings

In or around May 2016, Arellano prepared a complaint for filing in superior court, including an allegation that as of late April 2016, he was suffering severe neck pain that interfered with his ability to sleep. Arellano dated his complaint May 19, 2016, and thereafter delivered it to prison authorities for filing. The complaint was file-stamped by the superior court on June 23, 2016 (filed complaint), and alleges causes of action for negligence and other intentional torts against 10 defendants: (1) California Department of Corrections and Rehabilitation (CDCR), (2) California Correctional Health Care Services (CHCS), (3) Dr. Doe, (4) Dr. Sedighi, (5) A. Busalacchi, (6) Dr. Walker (chief physician and surgeon), (7) Dr. Roberts (chief medical executive), (8) Glynn (chief executive officer), (9) Lewis (deputy director of policy and risk management services), and (10) D. Paramo (warden).

Arellano sued CDCR and CHCS, which are public entities, as employers of the named individual defendants. He sued Dr. Doe, Dr. Sedighi, and Busalacchi, who directly treated him, for their medical negligence or deliberate indifference to his medical needs.

Further, Arellano alleged that the individual defendants involved with reviewing his grievances were negligent or deliberately indifferent for failing to grant him an effective course of treatment. The prison warden was allegedly at fault for failing to hire competent personnel.

Arellano served the filed complaint on defendants at different times. After they were served, CDCR, CHCS and Lewis responded to the complaint with a demurrer and request for judicial notice of Arellano’s rejected government claim. The bases for defendants’ demurrer were that the complaint failed to comply with the Government Claims Act (specifically, its six-month statute of limitations) and that defendants were statutorily immune from liability (§§ 945.6, 950.6, 844.6, 845.6).

Arellano filed an opposition. Of relevance here, he argued that the filed complaint was timely because he had given an initial complaint to prison officials for mailing in January 2016 (initial complaint). When Arellano did not hear anything about the initial complaint, he “decided to re-send a new claim [(the filed complaint)] on or before June 2016.”

Defendants replied, pointing out that the filed complaint contains a signature date and allegations that clearly postdate January 2016 as well as the February 2016 limitations deadline. Defendants argued that, by Arellano’s own statements, the filed complaint was untimely. The trial court took judicial notice of Arellano’s government claim, found the complaint untimely, and sustained defendants’ demurrer without leave to amend.

Meanwhile, the remaining defendants answered the complaint, moved for judgment on the pleadings, and requested judicial notice of Arellano’s rejected government claim. The bases for the motion for judgment on the pleadings were failure to comply with the six-month statute of limitations and statutory immunity as to the nonphysician grievance reviewer and prison warden.

In opposition, Arellano attached a copy of the “Initial Complaint” he claimed he had given a prison officer in January 2016 for mailing/filing with the superior court. He admitted he retained a copy of the initial complaint but chose to file a different, modified document in June 2016—the filed complaint.

The trial court granted defendants’ motion for judgment on the pleadings without leave to amend. Subsequently, the court entered a judgment of dismissal in favor of all defendants. This appeal followed.

DISCUSSION

Timeliness of Complaint

Arellano does not contest that he was notified of his government claim rejection on August 28, 2015, and that the applicable statute of limitations within which he had to file a complaint was six months. (§ 945.6, subd. (a)(1); Addison v. State of California (1978) 21 Cal.3d 313, 315 [§ 945.6 provides six-month limitations period within which suits must be brought against public entities in state court].) Thus, any complaint was required to be filed by February 2016.

Arellano contends his complaint was timely filed based on his argument that he gave an initial complaint to a prison officer on January 1, 2016. According to Arellano, he then heard nothing about the initial complaint for several months but assumed it was timely filed pursuant to the mailbox or prison-delivery rule. The initial complaint was never in fact filed. Arellano states he decided to prepare a different complaint in the May 2016 timeframe—he made “some modifications” to the initial complaint, such as adding more recent events and new allegations. The complaint was undisputedly signed May 19, 2016, and was filed on June 23, 2016, outside of the statute of limitations. The filed complaint does not contain any mention of an initial complaint or allegations regarding reasons for noncompliance with the statute of limitations.

The filed complaint is plainly untimely as it was filed more than six months after Arellano’s government claim was rejected and alleges no facts excusing compliance with the Government Claims Act. The court properly sustained a demurrer and granted judgment on the pleadings. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.) The issue remains whether leave to amend should have been granted so that Arellano could cure the defect, i.e., plead facts to support that the filed complaint was timely based on an initial complaint Arellano maintains was given to prison authorities on January 1, 2016. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [reviewing court decides whether there is a reasonable possibility that the defect can be cured by amendment].) We conclude leave to amend would have been futile. (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1124 [leave to amend properly denied when amended petition would still be barred by statute of limitations].)

Under the judicially developed “prison-delivery rule,” a self-represented prisoner’s notice of appeal or complaint is deemed constructively filed at the time it is properly delivered to state prison employees. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 114 (Silverbrand); Moore v. Twomey (2004) 120 Cal.App.4th 910, 912 [prison-delivery rule applies to filing of civil complaint].) As illustrated in case law, typically a pleading is file-stamped by a court on a date that would otherwise be untimely, but the self-represented prisoner shows that the pleading was timely delivered to prison authorities, usually a few days prior. (See, e.g., Silverbrand, at pp. 111-112 [notice of appeal placed in mail on June 13 to meet June 14 filing deadline, but file-stamped on June 16]; Moore, at p. 913 [complaint mailed by November 21 per prison’s outgoing mail log, yet complaint was file-stamped on December 3 outside of six-month statute of limitations]; Houston v. Lack (1988) 487 U.S. 266, 268-269 [prisoner deposited notice of appeal in prison’s mail 27 days after judgment was entered but document was file-stamped one day after the 30-day filing period].) The “essence” of the prison-delivery rule is to provide self-represented prisoners with an opportunity to file documents on the same footing as nonprisoners and prisoners represented by counsel, ensuring equal access to the courts. (Silverbrand, at p. 121.)

In this case, Arellano admits the filed complaint was not delivered to a prison official until the June 2016 timeframe, well after the limitations period expired. Even assuming Arellano presented an initial complaint to a prison official for filing on January 1, 2016, it would not and could not change the fact that the filed complaint—admittedly, a different document bearing a May 19, 2016, signature date and new allegations—was untimely. We are aware of no authority, and Arellano cites none, supporting the proposition that the prison-delivery rule may be used to deem a constructive filing date for a document based on the date that an earlier, different document was delivered to a prison official. The filed complaint was the document subjected to demurrer and judgment on the pleadings.

Moreover, because the prison-delivery rule is grounded in equitable considerations, we note that it strikes us as entirely unreasonable for Arellano to have waited five months to determine that a purported initial complaint had not actually been filed, particularly given his awareness of the six-month limitations period. It was also not reasonable for Arellano to believe that the prison-delivery rule gave him the unilateral right to prepare a new, untimely complaint for filing. The prison-delivery rule does not “create an exception” or give self-represented prisoners more rights than nonprisoners or represented litigants. (Silverbrand, supra, 46 Cal.4th at pp. 120-121.) According to Arellano, he retained a copy of the initial complaint, and there appears no reason why he could not have presented that same document to a prison official for filing prior to the expiration of the limitations period.

In summary, no set of facts can be pleaded to establish the timeliness of the filed complaint. The trial court did not err in entering judgment for defendants.

DISPOSITION

The judgment is affirmed. Defendants are entitled to costs on appeal.

HALLER, Acting P. J.

WE CONCUR:

O’ROURKE, J.

AARON, J.