Wells v. Bezdek

Filed 8/22/07 Wells v. Bezdek 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.

Abi Levi Wells, in pro. per, for Plaintiff and Appellant.

LeBeau Thelen, W. Steven Shayer and Thomas P. Feher for Defendant and Respondent.

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The demurrer of defendant William D. Bezdek, M.D. (respondent) to the second amended complaint of plaintiff Abe Levi Wells (appellant) was sustained with leave to amend. Appellant failed to file a third amended complaint within the time specified by the court. He now appeals pro se from the judgment dismissing the action. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

Appellant is a prison inmate currently housed at Salinas Valley State Prison. Respondent is a cardiologist under contract with the Department of Corrections and Rehabilitation. Appellant became respondents patient in November 1999, after suffering from a heart attack which required appellant to undergo quadruple bypass surgery. Because appellant continued to suffer from life-threatening arrhythmia, a defibrillator was implanted in his chest in December 1999.

In the years following his surgery, appellant began to suffer from severe depression and was put on antidepressant medication and treated by a psychiatrist and psychologist in the prison. In late 2002, appellant began to contemplate suicide, and on January 9, 2003, during an appointment at respondents office in Bakersfield, asked respondent about the possibility of removing his defibrillator.

During the January appointment, appellant and respondent had a lengthy discussion pertaining to [appellants] desire to end his life. Appellant explained he did not want the defibrillator to interfere with a suicide attempt by delivering shocks to his heart if it detected an unusual heartbeat. Respondent expressed sympathy to appellants position after their discussion during which appellant confirmed that he was a lifer and that he had already served eight years for a nonviolent offense and would likely die in prison courtesy of Californias 3 Strikes law. Appellant specifically defined a lifer as a prisoner serving a life sentence.

On February 28, 2003, respondent surgically removed appellants defibrillator. Despite appellants expressing a desire to commit suicide, respondent never attempted to obtain any medical or psychiatric care for appellant. Respondent later claimed to have consulted with appellants psychiatrist prior to the surgery to ensure that appellant was competent to make a decision regarding the removal of his defibrillator. However, no such consultation ever took place.

As a result of respondents removal of his defibrillator, appellant attempted suicide on June 20, 2003, by ingesting sharp objects. Despite the fact he was passing blood and in severe pain, appellant was denied medical care and placed naked in a strip-cell where he was shackled by the ankles and wrists. On June 29, 2003, appellant underwent emergency surgery for a ruptured bowel and burst appendix, and underwent a second surgery on August 2, 2003.

Appellant filed his original pro se complaint against respondent on March 29, 2005, alleging five causes of action arising out of respondents removal of appellants defibrillator on February 28, 2003. On July 19, 2005, the trial court sustained, with 20 days leave to amend, respondents demurrer on the grounds that appellant failed to state facts sufficient to constitute a cause of action (Code Civ. Pro.,  430.10, subd. (e)) and the pleadings were uncertain, ambiguous, and unintelligible (Code Civ. Pro.,  430.10, subd. (f)).^[2] The court also granted respondents motion to strike all allegations or references to punitive damages based on appellants failure to comply with section 425.13.^[3]

After obtaining an extension of time, appellant filed a first amended complaint on September 28, 2005. Appellant alleged six causes of action and additional facts to support his claims. On October 17, 2005, respondent again demurred and moved to strike appellants punitive damages allegations. The trial court heard the matter and took it under submission on November 14, 2005.

On December 1, 2005, the trial court issued a minute order sustaining the respondents demurrer with 30 days leave to amend. The courts order states in part: Based on the face of the first amended complaint, the plaintiffs claims appear to be barred by applicable statutes of limitation and failure to timely comply with the tort claims statutes. The allegations are otherwise ambiguous and uncertain as the bases for the plaintiffs claims and lack specificity re compliance with the claims statutes. (Unnecessary capitalization omitted.) The court also granted respondents motion to strike, without leave to amend until plaintiff has satisfied the requirements of CCP section 425.13 for purposes of asserting a claim for punitive damages. (Unnecessary capitalization omitted.)

After seeking another extension of time, appellant filed a second amended complaint on January 30, 2006. The second amended complaint sets forth four causes of action: two under federal law and two under state law. The first two causes of action allege violations of the Eighth Amendment pursuant to 42 United States Code section 1983. The third and fourth causes of action set forth medical malpractice claims.

On February 21, 2006, respondent again demurred on the grounds appellant failed to state sufficient facts to constitute a cause of action and the pleadings were uncertain, ambiguous, and unintelligible. Among other things, respondent argued appellants claims were time-barred. Respondent also moved to strike appellants punitive damages claims, which appellant again included despite the courts previous rulings.

The trial court sustained respondents demurrer by minute order on March 29, 2006. The court granted leave to amend, ordering appellant to serve and file his third amended complaint no later than thirty (30) days from the date of service by mail of this minute order by the clerk. (Unnecessary capitalization omitted.) The court further found that the motion to strike was moot in light of its ruling on the demurrer.

Respondent filed an ex parte motion to dismiss the action with prejudice on May 11, 2006, after appellant failed to file a third amended complaint. The court granted the ex parte motion and a judgment of dismissal was subsequently entered on May 16, 2006. This appeal followed.

DISCUSSION

Appellants main contentions on appeal are that the trial court improperly sustained the demurrer to the second amended complaint and granted respondents ex parte motion to dismiss his action. For reasons discussed below, we find appellants contentions to be without merit. We also reject appellants other claims on appeal which are made without sufficient record support or are otherwise improper.

I. Principles of Appellate Review

This appeal requires us to revisit and restate some basic, fundamental principles of appellate review. A judgment or order of a lower court is presumed to be correct on appeal[.] (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.] (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The burden is on the appellant to overcome the presumption of correctness and to provide an adequate appellate record to demonstrate error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Failure to furnish an adequate record will result in affirmance of the order appealed from. (Id. at pp. 1295-1296.)

A party appearing in propria persona is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.] (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) [T]he in propria persona litigant is held to the same restrictive rules of procedure as an attorney. [Citations.] (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126; accord, First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)

II. The Demurrer

Where a demurrer is sustained with leave to amend and the complaint is not amended within the time allowed, it is presumed that the complaint states as strong a case as is possible [citation]; and the judgment of dismissal must be affirmed if the unamended complaint is objectionable on any ground raised by the demurrer. [Citation.] (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585; Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 981.) A demurrer is properly sustained if the complaint does not allege facts sufficient to constitute a cause of action under any legal theory or if the alleged facts are unintelligible. ( 430.10, subds. (e), (f); Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1811-1812; Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.)

Here, the trial court properly sustained respondents demurrer to the second amended complaint on the ground it fails to allege facts sufficient to constitute a cause of action because its claims are time-barred. In the second amended complaint, appellant specifically alleges that [t]he claims giving rise to the onset of this action accrued on February 28, 2003. However, he filed no complaint until March 29, 2005, over two years later. As a result, appellants medical malpractice claims are barred by the

applicable one-year statute of limitations ( 340.5), and his federal claims are barred by the two-year statute of limitations for personal injury actions ( 335.1).^[4]

Appellant attempted to avoid the statute of limitations bar by alleging that his claims were timely by operation of section 352.1, subdivision (a), which provides for the tolling of a statute of limitations for a period of up to two years based on the disability of imprisonment. However, the language of the tolling provision applies only to plaintiffs imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life. ( 352.1, subd. (a); italics added.) As noted above, appellants second amended complaint contains allegations that appellant is a lifer which he specifically defines as a prisoner serving a life sentence. Thus, under the facts alleged in the second amended complaint, section 352.1 does not apply to toll the applicable statutes of limitations. Accordingly, the trial court properly sustained the demurrer on the ground appellants claims were time-barred and found the related motion to strike appellants punitive damages claims was moot. We decline to consider appellants other arguments concerning the statutes of limitations which are based on documents attached to his opening brief and are not part of the record on appeal.

III. Dismissal for Failure to Amend

Section 581 subdivision (f)(2) provides that a trial court may dismiss a complaint if after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal. Dismissal of an action under this section is reviewed for abuse of discretion and the appellant has the burden of establishing such abuse. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.)

Insofar as we can discern, appellant is arguing that he was not given a fair opportunity to amend the second amended complaint due to respondents delayed service of notice of the courts order granting leave to amend.^[5] But the trial courts order specifically provided that appellant had 30 days from service of the clerks notice of the minute order to serve and file the third amended complaint. Therefore, respondent was not required to serve a separate notice of the ruling and the time to file an amended complaint began to run from service of the clerks notice. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) 7:136, p. 7-53.) Appellant does not claim that he did not receive a copy of the minute order, which the clerks certificate of mailing shows was mailed to both appellant and the Salinas Valley State Prison Litigation Coordinators Office on March 29, 2006. If appellant believed he had insufficient time to prepare an amended complaint between the time he received the order, and the expiration of the 30-day amendment period, he could have requested an extension of time as he had done in the past. He never made such a request. Appellant cannot now complain that he was denied a fair opportunity to amend his complaint. In sum, we have found no abuse of discretion in the trial courts dismissal of the action and appellant has established none.

IV. Appellants Other Claims

Having concluded the trial court properly sustained the demurrer to the second amended complaint, and dismissed, we briefly address appellants remaining claims.

First, appellant has failed to affirmatively demonstrate that the trial court erred in ordering him to pay discovery sanctions in the total amount of $897.60. The only record concerning the courts order is a registry of actions in the clerks transcript, which shows the order was made on December 7, 2005, in connection with the trial courts grant of unopposed motions by respondent to compel appellants further responses to form and special interrogatories. There is no basis in the record for us to conclude that the courts ruling was erroneous.

Second, we find no merit in appellants claim that the trial court erroneously denied his request for appointment of counsel. He relies, as he did below, on authorities involving indigent prisoners named as defendants in civil suits. (See e.g., Payne v. Superior Court (1976) 17 Cal.3d 908; Yarbrough v. Superior Court (1985) 39 Cal.3d 197; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792.) As the trial court correctly noted in its minute order dated March 29, 2006, there is no authority to support appointment of counsel for a plaintiff in a civil action.

Third, appellant has failed to affirmatively demonstrate error in regards to his claim that he was denied access to the courts because a court clerk refused to supply him with forms, and he was thus forced to prepare his second amended complaint free-hand.

Lastly, we reject appellants attempt to raise alleged errors that happened after the judgment was entered in this case; i.e., claims concerning his attempt to file a third amended complaint, and respondents asserted refusal to provide him free copies of the reporters transcripts which were ordered by respondent.^[6] [M]atters that occurred after rendition of an appealed judgment usually will be disregarded on the appeal; i.e., parties cannot challenge an appealed judgment based on postjudgment occurrences. [Citations.] (Eisenberg et al, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006)

8:176, p. 8-118.)

DISPOSITION

The judgment of dismissal is affirmed. Respondent is to recover his costs on appeal.

_____________________

HILL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

WISEMAN, J.

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^[1] The facts are gleaned from the allegations in the operative second amended complaint. We accept the allegations as true only for purposes of analyzing the propriety of the order sustaining the demurrer.

^[2] All further references are to the Code of Civil Procedure unless otherwise stated.

^[3] Section 425.13, provides in part: (a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.

^[4] For actions under 42 U.S.C. 1983, courts apply the forum states statute of limitations for personal injury actions, along with the forum states law regarding tolling . (Jones v. Blanas (9th Cir. 2004) 393 F.3d 918, 927.)

^[5] Again, appellant refers to exhibits he has attached to his appellate brief, which are not part of the record on appeal. Based on these exhibits, appellant claims he did not receive a copy of the notice from respondent until April 21, 2006, and therefore, he should have had until May 21, 2006, to file the third amended complaint.

^[6] We further note that in an order entered on October 24, 2006, this court denied a motion by appellant to require respondent to serve him with copies of all exhibits in this case, including copies of the reporters transcripts. The order states in relevant part, The request, as it related to the reporters transcripts, is denied because appellant has failed to cite any legal authority to support his request for an order directing respondent to provide him with copies of them. (Unnecessary capitalization omitted.) Appellant makes no mention of this ruling in his opening brief filed on November 27, 2006.