Filed 3/13/20 Arellano v. R.J. Donovan Prison 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

R.J. DONOVAN PRISON,

Defendant and Respondent.

D074147

(Super. Ct.

No. 37-2015-00031414-CU-MM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed.

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

Xavier Becerra, Attorney General, Danielle F. O’Bannon, Assistant Attorney General, Richard F. Wolfe and Edward P. Wolfe, Deputy Attorneys General, for Defendant and Respondent.

Raul Arellano brought a lawsuit against R.J. Donovan Prison and various staff members on a medical malpractice claim related to his seizure disorder. The trial court granted summary judgment in favor of five of the seven defendants. After the remaining two defendants were not timely served, the trial court dismissed the remainder of the case.

Arellano appealed both resulting judgments. We cannot review the first because we dismissed that appeal and issued a remittitur after Arellano failed to designate the record on time. (Cal. Rules of Court, rule 8.121(a).) We now review Arellano’s second appeal—from the judgment of dismissal as to the remaining two defendants—and affirm because he does not raise any arguments about why the dismissal for failure to serve them was in error.

FACTUAL AND PROCEDURAL BACKGROUND

Raul Arellano allegedly suffered a ten-minute seizure on a summer night in 2014 while in his cell at Richard J. Donovan Correctional Facility. By his account, Nurse H. Melton caused his seizure when she allegedly denied him an evening dose of his Keppra medication. But Arellano sometimes missed doses voluntarily to avoid side effects. He preferred his old Neurontin prescription (which was not renewed by his doctor after 2011) to treat his seizure disorder.

Arellano sued Nurse Melton and Dr. J. Chau for medical malpractice. He holds Melton responsible for causing the alleged seizure and believes Chau should have taken him off Keppra and reinstated his Neurontin prescription. Arellano brought Dr. S. Roberts (the chief medical executive), M. Glynn (the chief executive officer) and J. Lewis (the deputy director) into the suit because each of them reviewed and denied an administrative appeal in which he asked for Neurontin and monetary damages for the purported incident with Melton. He also named warden Daniel Paramo, on the theory that Paramo was responsible for the actions of all prison officials and staff. Lastly, he named California Correctional Healthcare Services (CCHCS).

Arellano properly served defendants Melton, Chau, Glynn, Roberts and Paramo. From September 2016 to April 2018, his lawsuit proceeded toward trial. He was given multiple extensions and opportunities to correct defects in his complaint.

In December 2017, the trial court granted summary judgment on behalf of defendants Melton, Chau, Glynn, Roberts and Paramo and entered judgment of dismissal on January 11, 2018. Arellano filed a “motion to appeal ruling of summary judgment” in late January 2018. The superior court surmised he meant it as a motion for reconsideration, but since the court had already entered the judgment of dismissal, it could not reconsider. His motion was instead treated as a notice of appeal.

By March 2018, Arellano still had not properly served defendants J. Lewis and CCHCS. As a result, the court granted their motion to dismiss for delay in service of summons and entered a judgment of dismissal in April. Arellano then sent a letter in June asking the superior court to send paperwork so he could properly appeal the April judgment. His letter was treated as a notice of appeal. Out of courtesy, this court sent Arellano a letter in June giving him instructions to access an online step-by-step guide useful to self-represented litigants. He wrote back requesting a hard copy of the step-by-step guide, which we sent to him in July.

In accordance with California Rules of Court, rule 8.140(a), the court informed Arellano on June 13 that his first appeal (filed in January) was in default for failure to designate the record and could be dismissed if he did not do so by June 28, 2018. We sent another notice on August 24 informing Arellano that his second appeal (filed in June) was also in default for failure to designate the record and could be dismissed if he did not do so by September 10, 2018. Arellano did not designate any record for either of his appeals until September 11, 2018. It was received by this court on October 2, 2018, the same day we dismissed his first appeal for failure to designate the record in time. (Cal. Rules of Court, rule 8.140(b)(1).) We issued a remittitur on his first appeal in early January 2019. We did not dismiss his second appeal.

DISCUSSION

Arellano argues that summary judgment in favor of defendants Melton, Chau, Glynn, Roberts and Paramo was improper. This was the subject of his first appeal. As the Attorney General correctly observes, we are unable to review this claim. When an appellate court issues a remittitur, it loses jurisdiction—in other words, we no longer have authority to review the case. (Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5 [jurisdiction returns to the lower court once remittitur issues]; 9 Witkin, Cal. Proc. (5th ed. 2008) Appeal, § 844, pp. 906‒907.) Although Arellano did not request that we recall the remittitur, we note that we cannot do so absent mistake, inadvertence, or fraud. (Isenberg v. Sherman (1932) 214 Cal. 722, 725; 9 Witkin, supra, Appeal, § 847, pp. 909‒910.) None of those exceptions apply in this case. We properly issued the remittitur in January because we had already dismissed Arellano’s first appeal in October for failure to timely designate the record—which necessarily provides the basis for any review of the trial court decision.

Although we still have jurisdiction over Arellano’s second appeal, it also suffers from a fatal defect: Arellano never made any argument as to why he thinks the trial court erroneously dismissed his suit against two defendants he did not properly serve. An appellant’s failure to raise an argument in the opening brief waives it for purposes of appeal. (Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4.) And even when this omission was pointed out to Arellano in the respondents’ brief, he did not supply a relevant argument in his reply brief. For this reason, we affirm the trial court’s April judgment without addressing the merits of the ruling.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.