Cooper v. Torchia

Filed 10/23/06 Cooper v. Torchia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Hayes, Judge. Affirmed.

Courtney Cooper, a prisoner at Calipatria State Prison, appeals from a judgment dismissing his civil rights claim (42 U.S.C. § 1983^[1]) after the trial court sustained a demurrer without leave to amend. Cooper sued Dr. Richard Torchia based on Dr. Torchia's failure to treat Cooper for an infection he suffered in February 2004. We

hold Cooper failed to allege facts showing Dr. Torchia was deliberately indifferent to Cooper's need for treatment so as to support a section 1983 claim. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of evaluating the sustaining of the demurrer, we summarize the facts alleged in Cooper's pleadings. Cooper filed two lawsuits against Dr. Torchia. The first lawsuit pertained to two surgeries Dr. Torchia performed on Cooper's jaw in 2001; this lawsuit was summarily adjudicated in Dr. Torchia's favor. The second lawsuit pertained to an infection suffered by Cooper in February 2004 in the area of the jaw surgery, and was premised on an allegation that Dr. Torchia refused to treat the February 2004 infection. Although the case before us involves only the second lawsuit, for a full understanding of the case we shall also summarize the facts relating to the first lawsuit.

A. The First Lawsuit

On March 15, 2001, Cooper's right jaw was fractured during an altercation at Calipatria State Prison. Cooper was examined by Dr. Phillip Dupler, a dentist at the prison's Central Health Unit. Dr. Dupler ordered that Cooper be transported to the prison's contract medical provider (Alvarado Hospital Medical Center) for surgery on his jaw. On March 16, 2001, Dr. Torchia performed the surgery at Alvarado Hospital. On March 19, 2001, Cooper was returned to the prison's Central Health Unit. On March 22, 2001 a prison physician contacted Dr. Torchia because Cooper was experiencing persistent swelling and extreme pain. Dr. Torchia recommended use of an ice pack and monitored Cooper's condition by telephone.

On March 30, 2001, Dr. Dupler ordered X rays at the Central Health Unit and determined Cooper's jaw was damaged and unstable. Cooper was returned to Alvarado Hospital, and on March 31, 2001, Dr. Torchia performed corrective surgery. On April 2, 2001, Cooper was transported back to the prison's Central Health Unit. On or about April 6, 2001, Cooper's surgical wound became infected and he was treated for this condition at the Central Health Unit. On May 15, 2001, Dr. Torchia examined Cooper at Alvarado Hospital as a follow-up consultation. Cooper was still experiencing persistent swelling, and Dr. Torchia advised him that if the swelling did not subside within 30 days, Cooper would be transported to Alvarado Hospital for an MRI. In late June 2001, Cooper was placed in the general prison population, and his subsequent medical consultations were conducted at the prison's "B" Facility Medical Unit.

Meanwhile, on May 16, 2001, Cooper filed a grievance with the prison because the swelling and pain persisted and he had not been taken to Alvarado Hospital for an MRI. In response to the grievance, in October 2001 Cooper was taken to Alvarado Hospital to receive a second opinion from Dr. Perry Mansfield. Dr. Mansfield opined that no MRI was necessary and that Cooper was healing satisfactorily. The prison administration denied the grievance.

On November 4, 2002, Cooper filed a complaint alleging that during the first surgery on March 16, 2001, Dr. Torchia violated his civil rights under section 1983 and acted negligently by failing to implant a stabilizing screw in his jaw. The complaint also alleged that from March 22 to March 31, 2001, Dr. Torchia improperly failed to respond to Cooper's requests for medical assistance.

On November 18, 2002, Dr. Torchia extracted a wisdom tooth from Cooper at Alvarado Hospital. Cooper felt his face was still prominently swollen, but Dr. Torchia told him there was no need to worry and that his swelling had subsided.

On or about May 5, 2003, Cooper amended his complaint, adding an allegation that the infection he suffered after the second surgery occurred because Dr. Torchia did not properly close his surgical wound.

In or about June 2003, Dr. Torchia moved for summary judgment. To support his motion, Dr. Torchia submitted a declaration from an expert medical doctor stating that Dr. Torchia's treatment of Cooper was "well within" the standard of care, including appropriate internal fixation during the March 16, 2001 surgery and appropriate performance of the March 31, 2001 surgery.

On October 6, 2003, the trial court granted Dr. Torchia's summary judgment motion. The trial court ruled the statute of limitations had expired and Cooper had failed to refute Dr. Torchia's expert declaration stating Dr. Torchia met the standard of care.

B. The Second Lawsuit

On August 11, 2004, Cooper filed his second lawsuit against Dr. Torchia. In this complaint, Cooper essentially reiterated his allegations against Dr. Torchia regarding the March 2001 surgery and the postoperative swelling and pain. He further set forth allegations based on an infection he suffered in February 2004. According to Cooper, on February 24, 2004, he went to the prison's "B" Facility Medical Unit complaining of extreme pain because of persistent swelling. He was examined by a dentist and taken to the Central Health Unit for X rays. The Central Health Unit dentist diagnosed a "serious life threatening infection" in the area of his right jaw where the surgery had been performed and in the area where the wisdom tooth had been extracted. Cooper's condition required immediate antibiotics, a tetanus shot, the immediate extraction of a portion of a plate that had been implanted during the March 16, 2001 surgery, and the immediate extraction of two teeth in the area where the plate was implanted. The emergency surgery was performed "by the prison's Chief Dentist and an off-site contracted DDS-Oral Surgeon/Maxillofacial specialist, Dr. Richard E. Barsan." Cooper alleged that the totality of Dr. Torchia's treatment led to the complications necessitating further surgeries and left him susceptible to temporomandibular joint disorder.

1. First Demurrer with Leave to Amend and First Amended Complaint

On January 28, 2005, Dr. Torchia successfully demurred to the complaint. The trial court ruled that the allegations based on a medical malpractice claim were barred by res judicata. However, the trial court granted Cooper leave to amend his section 1983 allegations, stating that Cooper should specify the conduct giving rise to his claim, and where and when it occurred.

On April 1, 2005, Cooper filed a first amended complaint. He expanded on his allegations pertaining to the February 2004 infection. He alleged that at the time of his treatment at the Central Health Unit on February 24, 2004, he was informed by the prison's medical staff that "(1) . . . neither . . . Dr. Torchia nor . . . Alvarado Hospital desire to provide medical or dental services to [Cooper], save for a life threatening emergency only where no other health care provider is otherwise available to provide such treatment(s) elsewhere; [and] (2) that any necessary examinations, treatments, or surgery regarding the right Mandible, Jaw, or Teeth will not be performed by anyone connected with . . . Alvarado Hospital." He alleged the prison medical staff acknowledged Cooper's need for surgery by Dr. Torchia or other medical personnel connected with Alvarado Hospital, but informed Cooper that the reason he was not transported to Alvarado Hospital was that Dr. Torchia and Alvarado Hospital had "refus[ed] to provide care and treatment" to Cooper. Accordingly, Cooper underwent "emergency treatments" at the prison's Central Health Unit. Cooper alleged that Dr. Torchia was an agent of the State of California through a contractual agreement with the Department of Corrections, that he exhibited a deliberate indifference to Cooper's serious medical needs, and that his conduct was in retaliation for Cooper's unsuccessful lawsuits against him.^[2]

2. Second Demurrer Without Leave to Amend

On May 2, 2005, Dr. Torchia filed a demurrer to the first amended complaint. Dr. Torchia argued the allegation that he refused to treat Cooper for an infection on February 24, 2004, did not state a cause of action because: (1) Cooper did not allege any damages arising from this alleged refusal, and Cooper alleged he received treatment from another health care provider; (2) the statements allegedly made by Dr. Torchia reflected that he would have treated Cooper for his life-threatening infection if no other provider was available; and (3) Cooper did not allege that Dr. Torchia knew about Cooper's need for treatment or that Cooper had requested treatment from him on February 24, 2004.

On May 26, 2005, Cooper filed an opposition to the demurrer, arguing (1) he was not required to allege that Dr. Torchia knew of his condition on February 24, 2004, because Dr. Torchia was under contract to provide medical treatment when contacted by the prison, and (2) the allegations in his complaint reflected that "Dr. Torchia was contacted on February 24, 2004 by the prison and refused to treat" him.

On June 3, 2005, the trial court sustained Dr. Torchia's demurrer without leave to amend. The trial court ruled that Cooper failed to allege that Dr. Torchia knew about the February 2004 infection or that he refused to treat the infection. Further, the court found that Cooper had not alleged, and could not allege, he was injured by the alleged breach of the treatment contract because "he did in fact receive the necessary treatment while in the prison's medical facility."^[3]

3. Cooper's Objection to Dismissal

On August 8, 2005, Dr. Torchia moved ex parte to dismiss the complaint based on the sustaining of the demurrer. On August 10, 2005, Cooper filed an objection to the dismissal motion, arguing that the demurrer should not have been sustained without leave

to amend. Cooper submitted a declaration stating he could amend the complaint to include the following allegations. After X rays were taken at the prison's Central Health Unit on February 24, 2004, the prison's Chief Dental Officer (Dr. Garsh) told Cooper he needed immediate medical treatment because of a life-threatening infection; accordingly, Dr. Garsh was going to contact Dr. Torchia and make arrangements to have Cooper transported to Alvarado Hospital to be seen by Dr. Torchia. After contacting Dr. Torchia, Dr. Garsh informed Cooper that Dr. Torchia had refused to treat Cooper; that the prison did not have another contract maxillofacial surgeon, and that Cooper would be admitted to the prison's infirmary for monitoring until another maxillofacial surgeon could be contracted. On March 1, 2004, Dr. Garsh told Cooper that because he could not contract with another maxillofacial surgeon, and because of Cooper's need for immediate surgery, arrangements had been made for an oral surgeon (Dr. Barsan) to come to the prison and assist Dr. Garsh with the needed surgical procedure. Dr. Garsh informed Cooper that the prison's emergency room was "not equipped for the surgical procedure that [he] needed, however[,] he and Dr. Barsan would still attempt it." On March 2, 2004, Drs. Garsh and Barsan performed the surgery. Following the surgery, Dr. Garsh told Cooper that they extracted the two abscessed teeth, and were only able to remove part "of the infected mandible area (fixation plate) because they did not have the necessary surgical equipment." Dr. Garsh stated the treatment may not be definitive, and that Cooper may need further surgery in the future. Cooper declared that because of Dr. Torchia's refusal to treat him on February 24, 2004, he was "subjected to substantial harm/or risk by having to wait eight days lingering in a life threatening infection, and again on March 2, 2004 by having to undergo surgery in the prison's emergency room which was not adequately equipped for/or to complete the surgical procedure that [he] needed."

On August 30, 2005, the court granted Dr. Torchia's motion to dismiss. In its minute order, the court noted that a second amended complaint that had been served on defendants was not in the court file, and that to the extent such a complaint was submitted, "there [was] no basis to file an amended pleading at this juncture."

DISCUSSION

Governing Legal Principles

Because a civil rights action under section 1983 is based on federal statutory law, federal law governs substantive issues in section 1983 cases. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 560 (Bach); Garcia v. Superior Court (1996) 42 Cal.App.4th 177, 181.) Further, to ensure full protection and uniformity in federal civil rights cases, federal pleading rules govern the issue of whether a complaint adequately alleges a section 1983 claim sufficient to survive a general demurrer. (Bach, supra, 147 Cal.App.3d at pp. 561-563; accord Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1088; Greene v. Zank (1984) 158 Cal.App.3d 497, 503; see County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 298-300.) Because this case involves the sustaining of a demurrer to a section 1983 complaint, we will primarily rely on federal law to evaluate the propriety of the dismissal.

"'To uphold a dismissal [for failure to state a claim for relief, the federal counterpart of our general demurrer], it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved.'" (Bullock v. City and County of San Francisco, supra, 221 Cal.App.3d at p. 1088, brackets in original.) The court accepts the allegations in the complaint as true and construes the allegations, and any reasonable inferences that may be drawn from them, in the light most favorable to the plaintiff. (Perkins v. Kansas Dept. of Corrections (10th Cir. 1999) 165 F.3d 803, 806.) Dismissal is proper "only where it is obvious that the plaintiff cannot prevail on the facts he alleged and it would be futile to give him an opportunity to amend." (Ibid.)

When a section 1983 complaint is drafted by a pro per litigant, the complaint is held "to 'less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears '"beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."'" (Estelle v. Gamble (1976) 429 U.S. 97, 106; Bach, supra, 147 Cal.App.3d at pp. 563-564.) The court must liberally construe the complaint, and "'interpret [it] to raise the strongest arguments that [it] suggests."' (Soto v. Walker (2d Cir. 1995) 44 F.3d 169, 173.) Further, a pro per prisoner bringing a civil rights action should be "'fairly freely' afforded an opportunity to amend his complaint, even if he makes the request after the court has entered judgment dismissing his original complaint." (Satchell v. Dilworth (2d Cir. 1984) 745 F.2d 781, 785.)^[4] When evaluating whether the complaint should be dismissed, the court may also consider information contained in the pro per plaintiff's opposition papers. (Indelicato v. Suarez (S.D.N.Y. 2002) 207 F.Supp.2d 216, 218.)

Notwithstanding the liberality afforded pleadings filed by pro per plaintiffs, they must still provide the essential elements necessary to state a claim. "'[A] liberal interpretation of a [pro se] civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.'" (Pena v. Gardner (9th Cir. 1992) 976 F.2d 469, 471.) Moreover, a court need not grant leave to amend when a pro per prisoner repeatedly fails to cure the deficiencies in the complaint notwithstanding the opportunity to amend. (See Hines v. Graham (N.D.Tex. 2004) 320 F.Supp.2d 511, 517, 529.)

A prisoner may bring a section 1983 civil rights claim when the state has exhibited "deliberate indifference" to the prisoner's serious medical needs. (Estelle v. Gamble, supra, 429 U.S. at p. 104.) "[D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' [citation] proscribed by the Eighth Amendment." (Ibid.) Deliberate indifference may be shown "'when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.'" (McGuckin v. Smith (9th Cir. 1992) 974 F.2d 1050, 1059, overruled on other grounds in WMX Technologies, Inc. v. Miller (9th Cir. 1997) 104 F.3d 1133, 1136.) A prisoner's right to bring a section 1983 claim based on deliberate indifference can extend to the actions of a private doctor under contract with the state to provide treatment to prisoners. (West v. Atkins (1988) 487 U.S. 42, 54-56; Sykes v. McPhillips (N.D.N.Y. 2006) 412 F.Supp.2d 197, 201-204, and fn. 1.)

However, not "every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." (Estelle v. Gamble, supra, 429 U.S. at p. 105.) Deliberate indifference cannot be shown by mere negligence or inadvertence. (Id. at pp. 105-106.) For example, denials of care arising from negligent diagnoses or treatment do not rise to the level of a constitutional violation. (Id. at p. 106.)

Rather, deliberate indifference requires a showing of actual intent to harm or recklessness. (Farmer v. Brennan (1994) 511 U.S. 825, 836-840; Brown v. Williams (D.Del. 2005) 399 F.Supp.2d 558, 564.) Recklessness is measured by a subjective standard, requiring actual "know[ledge] . . . [of] a substantial risk of serious harm and disregard[ ] [of] that risk by failing to take reasonable measures to abate it." (Farmer, supra, at pp. 836-840, 847.) "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference." (Id. at p. 837.) An inmate may show an official's subjective awareness of a substantial risk through circumstantial evidence, and "a factfinder may conclude that a[n] . . . official knew of a substantial risk from the very fact that the risk was obvious." (Id. at p. 842; Brown v. Williams, supra, 399 F.Supp.2d at p. 564.)

An inmate evoking Eighth Amendment protection must also show that his or her medical needs were serious. (Brown v. Williams, supra, 399 F.Supp.2d at p. 564.) Seriousness may be demonstrated by such factors as a physician's diagnosis that treatment was required, or a showing that the inmate was suffering from chronic and substantial pain. (Ibid.; Gutierrez v. Peters (7th Cir. 1997) 111 F.3d 1364, 1373.) When a prisoner's allegations are based on a refusal to provide treatment, the prisoner must show the refusal "exposed [him] to undue suffering or the threat of tangible residual injury." (Westlake v. Lucas (6th Cir. 1976) 537 F.2d 857, 860.) Similarly, a section 1983 claim based on delayed treatment requires a showing that the delay caused harm. (McGuckin v. Smith, supra, 974 F.2d at p. 1060; Page v. Norvell (D.Or. 2000) 186 F.Supp.2d 1134, 1139.)

On appeal, we exercise de novo review of a trial court's dismissal of a section 1983 complaint for failure to state a claim. (McGuckin v. Smith, supra, 974 F.2d at p. 1054.) We affirm the dismissal if it is proper on any grounds, regardless of the grounds relied upon by the trial court. (See Ruiz v. McDonnell (10th Cir. 2002) 299 F.3d 1173, 1182.)

Analysis

As we shall explain, we hold (1) the trial court did not abuse its discretion in effectively denying Cooper leave to amend his complaint to add facts asserted in his declaration opposing the dismissal, and (2) alternatively, even if we consider the allegations set forth in Cooper's declaration opposing the dismissal, he has failed to allege facts to support a claim that Dr. Torchia acted with deliberate indifference.

Cooper's first amended complaint unequivocally indicates that the necessary emergency surgery was performed at the prison's medical facility. If Cooper's February 2004 infection was properly treated by another health care provider, Dr. Torchia's refusal to treat him cannot constitute deliberate indifference because there was no harm generated by Dr. Torchia's conduct. Thus, the first amended complaint fails to state a claim for a section 1983 violation by Dr. Torchia. Moreover, although Dr. Torchia premised his second demurrer on the absence of harm argument, Cooper's opposition to the demurrer did not respond to this position nor explain how the pleading might be amended.

It was only after the court sustained the demurrer without leave to amend and Dr. Torchia moved ex parte to dismiss the complaint, that Cooper first submitted papers (in the form of a declaration) setting forth his claims that he was harmed by Dr. Torchia's failure to treat him because his surgery was delayed and was performed in an under-equipped facility. Cooper could have added these allegations in his first amended complaint, or at a minimum included them in his pleadings opposing Dr. Torchia's demurrer. In his demurrer, Dr. Torchia explicitly noted the lack of allegations in the first amended complaint that his failure to treat Cooper caused any harm, and yet Cooper ignored this issue in his opposition papers.^[5] Although a pro per prisoner is afforded substantial procedural leeway when bringing a section 1983 civil rights claim, Cooper's significant delay in raising the allegations of harm--notwithstanding his notice of the issue and an opportunity to address it--justified foreclosing him from filing another amended complaint. We conclude the trial court did not abuse its discretion when it effectively denied Cooper a second chance to amend the complaint by granting Dr. Torchia's dismissal motion. (See Lopez v. Smith, supra, 203 F.3d at p. 1130 [denial of leave to amend reviewed under abuse of discretion standard].)

Alternatively, even if we ignore Cooper's belated presentation of the harm allegations and treat them as included within the complaint, Cooper has still failed to set forth allegations showing Dr. Torchia had the requisite intent or knowledge to support deliberate indifference. According to Cooper's allegations, when Dr. Torchia was contacted by the prison dentist regarding Cooper's infection and need for immediate surgery, Dr. Torchia responded he would not treat Cooper unless it was a life-threatening emergency and no other health care provider was available to treat him. Thereafter, although another surgeon was found to perform the surgery, there was an eight-day delay in the surgery and the surgery was performed at the under-equipped prison emergency room.

Absent from Cooper's pleadings is any suggestion that Dr. Torchia was apprised that the prison dentist was unable to find another health care provider to provide treatment within a time frame and of a quality comparable to what Dr. Torchia's treatment would have been. Dr. Torchia did not entirely refuse to treat Cooper, but indicated he would treat him if another health care provider was not available. This conditional refusal cannot be characterized as deliberate indifference to Cooper's need for surgery because Dr. Torchia was willing to treat Cooper if necessary. Further, Dr. Torchia cannot be charged with deliberate indifference based on the ensuing delay and inadequate facilities, when he had no knowledge that timely, suitable, alternate treatment arrangements were not forthcoming. It is apparent that Cooper recognized that Dr. Torchia's knowledge of his need for treatment was an essential element of his deliberate indifference claim. Cooper addressed the issue of Dr. Torchia's knowledge of his medical needs in his declaration opposing the dismissal, and yet failed to set forth any facts suggesting Dr. Torchia was told that no other timely, adequate treatment options were available.

This is not a case against officials who failed to take timely steps to provide treatment to a prisoner who appeared before them in need of care. (See, e.g., Reed v. Dunham (10th Cir. 1990) 893 F.2d 285, 287; Brownlee v. Conine (7th Cir. 1992) 957 F.2d 353, 355.) Rather, this case is against a doctor, located at an off-site private hospital, who told prison medical staff he would not provide treatment unless no other treatment was available. As to Cooper's allegation that Dr. Torchia was under contract to treat prisoners, this could raise issues pertaining to breach of contract, but does not alone show Dr. Torchia was deliberately indifferent to Cooper's medical needs when he declined to provide treatment. Absent facts supporting an inference that Dr. Torchia knew no other suitable treatment was available, Dr. Torchia cannot be charged with intent to harm or knowledge of a risk of serious harm necessary to show deliberate indifference for a civil rights claim.

Because Cooper failed to allege facts showing Dr. Torchia's deliberate indifference, the trial court properly sustained the demurrer without leave to amend and dismissed the complaint.^[6]

DISPOSITION

The judgment is affirmed. Parties to bear their own costs on appeal.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

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^[1] Subsequent statutory references are to title 42 of the United States Code, unless otherwise specified.

^[2] Cooper also named Alvarado Hospital as a defendant in the underlying lawsuit based on the failure to treat the February 2004 infection, and Alvarado Hospital obtained a demurrer in its favor. However, Alvarado Hospital is not a party to this appeal.

^[3] In his first amended complaint setting forth his section 1983 claim, Cooper also included allegations pertaining to Dr. Torchia's March 2001 treatment. In his demurrer to the first amended complaint, Dr. Torchia argued the claims pertaining to the March 2001 treatment were barred by the statute of limitations and res judicata. The trial court did not address the allegations pertaining to the March 2001 treatment in its ruling sustaining the demurrer without leave to amend. (See fn. 6, post.)

^[4] Since the 1996 enactment of the Prison Litigation Reform Act (see Cade v. Newman (D.N.J. 2006) 422 F.Supp.2d 463, 465), the federal courts have considered, with varying results, whether in some instances the Act has altered the federal rules otherwise governing amendments in prisoners' lawsuits (see Vanderberg v. Donaldson (11th Cir. 2001) 259 F.3d 1321, 1324-1325; Lopez v. Smith (9th Cir. 2000) 203 F.3d 1122, 1125-1130). For purposes of resolving the case before us, we need not examine this issue.

^[5] Dr. Torchia's demurrer states: "[Cooper] does not allege that he received inadequate or substandard treatment . . . as a result of Dr. Torchia's alleged refusal to treat him . . . ." (Capitalization omitted.)

^[6] For the first time in his reply brief, Cooper argues that he should also be allowed to pursue his allegations pertaining to Dr. Torchia's treatment in March 2001, contending the statute of limitations did not bar these allegations under principles of equitable tolling and "continuing wrong." Because he did not raise these arguments before the trial court nor in his opening brief on appeal, we decline to address them. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)