INTRODUCTION
In this opinion, we address two distinct issues arising from a lawsuit against the State of California. The first issue is whether the state’s litigation conduct estops it from raising noncompliance with the claim presentation provisions of the Government Claims Act (the Act) (Gov. Code, §§ 810, 900 et seq., 945.4).
The state’s Department of Corrections and Rehabilitation (variously the State or Department of Corrections) appeals from a judgment in favor of plaintiffs, the estate of Francisco Castaneda and his heir Vanessa Castaneda.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background
1. County custody
Francisco Castaneda was convicted of violating Health and Safety Code section 11378 for possession of a controlled substance with the intent to sell and proceeded into custody in Orange County from October 21 to 26, 2004, and January 16 to May 15, 2005. He was then in custody in Los Angeles County from October 28 to December 5, 2005. While in custody in Orange and Los Angeles Counties, Castaneda complained of pain during urination and of a growth that had been on his penis for approximately two years. He was seen by nurses and a physician.
2. State custody
Castaneda was transferred to State custody on December 5, 2005, and remained there until January 12, 2006.
Three weeks later, Dr. Leong noted discharge, a foul smell, and that Castaneda had difficulty retracting the foreskin. In his differential diagnosis, Dr. Leong considered a thickened foreskin, a skin rash, or cancer. To “rule out skin pathology,” i.e., cancer, required a urology biopsy. Because Dr. Leong was not a urologist, his job was not to treat, but to refer Castaneda to a urologist.
Dr. Leong referred Castaneda for a urology consult to undergo a biopsy to rule out (1) squamous cell carcinoma of the penis, and (2) leukoderma with phimosis (discoloration). The State’s “Health Care Services Physician Request for Services” form requires the referring doctor to indicate whether the “Requested Treatment/Service is,” “Emergent,” “Urgent,” or “Routine.” Dr. Leong circled “Routine,” which under Department of Corrections policy meant the requested service should be provided within 90 days. Dr. Leong agreed that his referral was not really routine, but explained the condition did not require a 72-hour response, which would make the referral “Urgent.” As Dr. Leong wanted to select a timeframe for the service, he wrote, “ASAP, within one to two weeks” further down on the form, under “Estimated time for service delivery, recovery, rehabilitation and follow-up.” Dr. Leong never saw Castaneda again because the prisoner was transferred before the next scheduled appointment.
Procedurally, the Health Care Services Physician Request for Services forms are sent to the utilization management nurse who relies on the three designations, “Emergent,” “Urgent,” and “Routine,” when passing the forms on to the chief medical officer for review. Dr. Leong’s Health Care Services Physician Request for Services form for Castaneda was denied by Dr. Robert Mekemson, North Kern State Prison’s acting chief physician and surgeon. The reason for the denial, Dr. Mekemson explained, was that Castaneda was being transferred the following morning to his permanent placement at Richard J. Donovan Correctional Facility where the prisoner would be screened again and the “Routine” referral would be handled.
Castaneda arrived at Donovan on January 12, 2006, and was examined by Nurse Practitioner Susan Pasha on February 7, 2006, within the 90-day period of the “routine” referral. Nurse Pasha was aware that Dr. Leong had recommended a urology consult to rule out carcinoma. Nurse Pasha noted a
Castaneda was scheduled to go to a urology clinic on March 29, 2006. However, he was released to the federal authorities on March 26, 2006.
3. Diagnosis
Castaneda was in the custody of Immigration and Customs Enforcement from March 26, 2006, to February 5, 2007.
Nine days after his release from federal custody, Castaneda was diagnosed by doctors at Harbor-UCLA Medical Center with invasive squamous cell carcinoma, keratinizing type, involving the foreskin and glands and invading the corpus spongiosum penis. Castaneda had his penis amputated, but the cancer had spread to his lymph nodes. He died a year later on February 16, 2008.
II. Procedural history
Castaneda filed a complaint in federal court, which included medical malpractice allegations against the treating physicians. That action is ongoing.
Turning to state court, Castaneda presented a timely government tort claim under the Act and after it was rejected, brought this action in January 2008 alleging a single cause of action for violation of section 845.6. Nearly 16 months after Castaneda died, in May 2009, Yanira, the decedent’s sister, was substituted in on behalf of Castaneda’s estate with respect to the survivor action, and Castaneda’s daughter Vanessa as heir and beneficiary of the estate, through her mother and guardian, Lucia Pelayo, amended the complaint to allege a new, separate cause of action for wrongful death. (Code Civ. Proc., §§ 377.60-377.62.) Vanessa never filed a government tort claim.
The State moved for judgment on the pleadings on the ground, inter alia, that the estate and Vanessa failed to comply with the Act, with the result they
After trial, the jury returned a verdict in favor of the estate and Vanessa in the amounts of $234,557 and $1.5 million, respectively. The State filed its timely appeal. Additional facts will be presented in the discussion portion of this opinion.
DISCUSSION
I. Government Claims Act
“A motion for judgment on the pleadings, like a general demurrer, challenges the sufficiency of the plaintiff’s cause of action and raises the legal issue, regardless of the existence of triable issues of fact, of whether the complaint states a cause of action. [Citation.]” (Brownell v. Los Angeles Unified School Dist. (1992)
“The intent of the Tort Claims Act is not to expand the rights of plaintiffs against governmental entities. Rather, the intent of the act is to confine potential governmental liability to rigidly delineated circumstances. [Citation.] [f] The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity [citations]. The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint. [Citation.]” (Munoz v. State of California (1995)
“Compliance with the claims provisions is mandatory. [Citations.]” (Johnson v. San Diego Unified School Dist., supra,
a. Castaneda’s tort claim was sufficient.
The State contends that the judgment in favor of the estate must be reversed because the sole cause of action against the State, for failure to summon immediate medical care, was not fairly reflected in Castaneda’s government tort claim.
Castaneda’s tort claim explained the circumstances leading to his injury thusly: “Cal DOC failed to provide adequate and necessary medical care for a known serious medical need, resulting in the failure to timely diagnose and treat penile cancer, resulting in penectomy and development of metastatic terminal cancer.”
In his ensuing complaint against the State only, Castaneda alleged his action is based on a violation of section 845.6. Section 845.6, as will be amplified later, carves out of the general immunity of the State for injuries to prisoners, limited State liability when a public employee, acting within the scope of his employment, “knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.”
In its motion for judgment on the pleadings, the State specifically argued Castaneda’s tort claim did not allege a failure to summon immediate medical care. As it did below, the State cites Nelson v. State of California (1982)
“[A] claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’ [Citations.] As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions [citation], the claims statute ‘should not be applied to snare the unwary where its purpose has been satisfied’ [citation].” (Stockett, supra,
Castaneda’s tort claim contained the facts sufficient to give the Board notice to investigate and evaluate his claim. The claim cited the dates and place of Castaneda’s State custody and “generally stated the ‘circumstances’ ” of the Department of Corrections’s response to Castaneda’s alleged immediate medical need. (Stockett, supra,
b. The trial court abused its discretion in denying the State’s motion for judgment on the pleadings with respect to Vanessa’s wrongful death cause of action because she never complied with the Act.
1. Vanessa did not file a tort claim and so she never fulfilled a condition precedent to her suit.
This is not a case in which Vanessa filed a tort claim late, filed an incomplete or insufficient tort claim form, or filed her claim with the wrong entity. Vanessa never filed a tort claim on her own behalf.
Generally, each claimant must file his or her own tort claim. When people suffer separate and distinct injuries from the same act or omission, they must each submit a claim. One claimant cannot rely on a claim presented by another. (California Restaurant Management Systems v. City of San Diego (2011)
It has long been the law in California that “[a]n action for wrongful death is wholly distinct from an action by the decedent, in his lifetime, for the injuries which ultimately cause his death [citation]. An important right of one class of plaintiffs has been built upon this distinction in the area of governmental immunity [citation].” (Lewis v. City and County of San Francisco (1971)
2. There are no facts to support estoppel for Vanessa’s noncompliance.
The trial court denied the State’s motion for judgment on the pleadings ruling that the State was estopped to assert noncompliance with the Act. The court based its ruling on the State’s “affirmative conduct throughout the subject litigation (and the related federal action),” which conduct “deterred plaintiff from timely filing a claim.” The court cited the following facts to support estoppel; (1) the extensive discovery in the state and federal actions; (2) the court found the State had “recognized in its May 2008 Case Management Statement that plaintiffs could amend the pleading to add the heirs”; (3) the mediation in July 2008, which apparently included discussion of Vanessa’s wrongful death cause of action; and (4) the State first raised Vanessa’s failure to comply with the Act over a year after expiration of Vanessa’s statutory time to present a late claim. Finding the State was on notice of Vanessa’s claim, the court ruled the State would suffer no prejudice from an amendment to add a wrongful death action on behalf of Vanessa. We
“A public entity may be estopped from asserting the limitations of the tort claims statutes where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act. The required elements for an equitable estoppel are: (1) the party to be estopped must be apprised of the facts; (2) the party to be estopped must intend his or her conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) the other party must rely upon the conduct to his or her injury. [Citation.]” (Munoz v. State of California, supra,
“Estoppel most commonly results from misleading statements about the need for or advisability of a claim . . . .” (John R. v. Oakland Unified School Dist. (1989)
Vanessa made no showing that the State made any misrepresentation or concealed a material fact that Vanessa relied on to decide not to file a claim. She points to nothing in the statements made by the deputy attorney general during discovery, in the State’s case management statement, or in the positions taken to defend the State during this litigation, that constitutes an affirmative misrepresentation or concealment of material facts concerning the need for, or advisability of, a tort claim. We are also surprised that the trial court could, as it did, base estoppel on statements made, or discussions had, during mediation. “[Statements made during mediation and mediation materials are confidential not only during the mediation, but also after the mediation ends.” (Simmons v. Ghaderi (2008)
The trial court also concluded the State was estopped from asserting noncompliance with the Act because the State waited until after the statutory time to present a late claim expired to move for judgment on the pleadings. Effectively, the court found by remaining silent about Vanessa’s obligation to comply with the Act until the deadline to file a late claim passed, the State snared Vanessa into noncompliance. However, “ ‘ “[m]ere silence will not create estoppel unless the silent party was under some obligation to speak, and a party invoking such estoppel must show that it was the duty of the other to speak ....”’ [Citation.]” (Becerra v. Gonzales, supra,
Ard, supra,
Nor could Vanessa have reasonably relied on the deputy attorney general’s conduct to decide not to file a claim, and so the fourth element of estoppel is not present. (Munoz v. State of California, supra,
Vanessa counters that no case holds that the Act requires beneficiaries to file a tort claim for wrongful death that accrued after the decedent’s lawsuit was filed. She argues that a separate filing requirement while the estate’s case was ongoing elevates form over substance and contravenes the purposes of the Act. Vanessa overlooks that she was obligated under the Act to file her own tort claim reflecting her theory of recovery. She could not substitute Castaneda’s tort claim for her own. The State was on notice that Castaneda was suing for the injuries he sustained while alive. Merely because the Board denied Castaneda’s claim does not mean that it would have reached the same result for Vanessa. The State’s exposure to Castaneda’s damages is vastly different in kind and nature from its exposure to a wrongful death action by a daughter with all of the attendant possibilities of extremely high damages if liability were established. Because Vanessa did not give the Board an indication that she might bring a wrongful death action before she sought to amend the complaint to add her cause of action, she denied the Board the opportunity to investigate the facts particular to her claim, to decide whether to settle it, and hence to include her' claim in its fiscal planning. (Johnson v. San Diego Unified School Dist., supra, 217 Cal.App.3d at pp. 696-697.) Consequently, requiring Vanessa to file a separate tort claim based on wrongM death comports with the purpose of the Act and does not elevate form over substance.
Finally, Vanessa cites Phillips v. Desert Hospital Dist. (1989)
Yet, unlike Phillips, Vanessa never filed any written document indicating her intent to sue. Following Vanessa’s logic, if papers filed after litigation commenced—motions, points and authorities, and the like—were treated as tort claims under the Act, then a complaint could substitute as a claim, subverting the purposes of the Act. The exception would swallow the rule. Finally, as explained, because Vanessa’s cause of action was wholly distinct from Castaneda’s, nothing he filed could be considered a tort claim on her behalf. Thus, not only did Vanessa’s mediation brief, her case management statement, and Castaneda’s documents, not constitute a tort claim as presented under Phillips, but also it is undisputed that the Board never received her papers filed in this action so the notice and defense-waiver provisions of sections 911 and 911.3 were not triggered.
As Vanessa never complied with the Act’s requisites, and as there is no basis to estop the State from raising her noncompliance, the judgment in favor of Vanessa must be reversed.
II. The State’s immunity under sections 844.6 and 845.6
The undisputed evidence establishes that the State is immune to suit pursuant to sections 844.6
Public entities in California are not liable for tortious injury unless liability is imposed by statute. (§ 815.) “[Sovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set
Section 845.6 states in relevant part, “Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but, except as otherwise provided by Sections 855.8 and 856 [(concerning mental illness and addiction)], a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.”
The first clause of section 845.6 establishes the immunity generally of both the public entity and its employees from liability “for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody.” (Italics added.) The second phrase creates a limited public-entity liability when (1) the public employee “knows or has reason to know [of the] need,” (2) of “immediate medical care,” and (3) “fails to take reasonable action to summon such medical care.” (§ 845.6, italics added.)
Section 845.6 is very narrowly written to authorize a cause of action against a public entity for its employees’ failure to summon immediate medical care only, not for certain employees’ malpractice in providing that care. The 1963 Law Revision Commission comments to section 845.6 clarify, “This section limits the duty to provide medical care for prisoners to cases where there is actual or constructive knowledge that the prisoner is in need of immediate medical care. The standards of medical care to be provided to prisoners involve basic governmental policy that should not be subject to review in tort suits for damages.” (Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code (1995 ed.) foil. § 845.6, p. 459, italics added.) Thus, section 845.6 creates out of the general immunity a limited cause of action against a public entity for its employees’ failure to summon immediate medical care only. (Watson, supra,
A narrow reading of section 845.6 is also compelled as a matter of statutory interpretation. First, the duty to summon is presented as the exception to the broad, general immunity for failing to furnish or provide medical care. Second, section 845.6 imposes the duty to summon on “public employees” generally, not medical care providers in particular.
The distinction between failure to summon medical care—for which the State can be held liable under section 845.6—on the one hand, and negligence in providing care—for which the State is immune—on the other hand, was addressed in Nelson v. State of California, supra,
The State argues that the judgment here must be reversed because on the facts presented at trial, it did summon health care as contemplated by section 845.6. It points to Dr. Leong and Nurse Pasha who were both summoned to examine Castaneda. The State argues its omissions thereafter are issues of medical malpractice, not a failure to summon. We agree.
On this record, the State summoned medical care for Castaneda. Indeed, it did more than summon, it treated him. Both Dr. Leong and Nurse Pasha assessed him; both included cancer as part of their differential diagnosis; both diagnosed his condition; and both referred him for further treatment, namely, medication and a biopsy. Under Nelson and Watson, the failure of these two public employees to provide further treatment, or to ensure further diagnosis or treatment, or to monitor Castaneda or follow up on his progress, are all facts which go to the reasonableness of the medical care provided, but do not constitute a failure to summon medical care. (Watson, supra, 21 Cal.App.4th at pp. 841-843; Nelson v. State of California, supra, 139 Cal.App.3d at pp. 80-81.)
The estate counters that Dr. Mekemson, who denied Dr. Leong’s request for a biopsy “for illegitimate reasons” and without “medical justification,” violated Department of Corrections’s policy. As the wording of the estate’s argument presupposes, the decision to deny Dr. Leong’s referral involves the exercise of medical judgment. (Nelson v. State of California, supra,
Citing Jett v. Penner (9th Cir. 2006)
Apart from the fact that Jett is a federal decision and “a decision of a federal district court has no precedential value in this court; at best, it is persuasive authority only . . . [citations]” (United Firefighters of Los Angeles City v. City of Los Angeles, supra,
Jett also contradicts the Legislature’s determination, in enacting section 845.6, not to require followup or monitoring of medical care. “As the bill [for section 845.6] was originally introduced the public employee was required to ‘see’ to it that a prisoner needing medical care received it. As amended he was required only to ‘summon’ medical care.” (Sanders v. County of Yuba (1967)
The facts of this case, viewed in the light most favorable to the verdict, do not amount to a failure to summon medical care or a violation of section 845.6. Therefore, as a matter of law the State remains immune to liability for Castaneda’s injuries. (§§ 844.6, 845.6.)
The judgment is reversed in its entirety with directions to enter judgment in favor of defendant State of California. Each party to bear its own costs on appeal.
Klein, P. J., and Kitching, J., concurred.
Respondents’ petition for review by the Supreme Court was denied May 1, 2013, S208851. Kennard, J., was of the opinion that the petition should be granted.
All further undesignated statutory references are to the Government Code.
For clarity, we will refer to Yanira and Vanessa Castaneda by their first names, but mean no disrespect thereby.
We have considered and rejected Vanessa’s argument based on the doctrine of substantial compliance. That doctrine applies only when there is a defect in form; it does not apply if a claimant has not filed a tort claim at all. (Nelson v. County of Los Angeles, supra,
We decline to read into the comment in the State’s case management statement that “Plaintiff may amend the Complaint to add the heirs and representatives of the Estate of Francisco Castaneda who is now deceased” (italics added) as permission to amend the complaint in the known absence of a tort claim, or as evidence that the deputy attorney general knew whether Vanessa had complied with the Act, Vanessa’s arguments to the contrary notwithstanding. Simply because the deputy attorney general was aware that Castaneda had died and left an heir, does not mean that the deputy attorney general knew whether that heir
Vanessa cites us to federal cases addressing the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.) in an effort to persuade us that she should not have been required to file a tort claim where the State was already deeply embroiled in litigation over Castaneda’s tort claim. Federal
Section 911 reads, “Any defense as to the sufficiency of the claim based upon a defect or omission in the claim as presented is waived by failure to give notice of insufficiency with respect to the defect or omission as provided in Section 910.8, except that no notice need be given and no waiver shall result when the claim as presented fails to state either an address to which the person presenting the claim desires notices to be sent or an address of the claimant.” (Italics added.)
Section 911.3 concerns what a public entity must do when a claim is filed late and provides in subdivision (b) that “Any defense as to the time limit for presenting a claim described in subdivision (a) is waived by failure to give the notice set forth in subdivision (a) within 45 days after the claim is presented, except that no notice need be given and no waiver shall result when the claim as presented fails to state either an address to which the person presenting the claim desires notices to be sent or an address of the claimant.”
Section 844.6 reads, “(a) Notwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code, a public entity is not liable for: If] (1) An injury proximately caused by any prisoner. [tQ (2) An injury to any prisoner. HQ (b) Nothing in this section affects the liability of a public entity under Article 1 (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code. HQ (c) Except for an injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under Chapter 2 (commencing with Section 830) of this part. HQ (d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission. The public entity may but is not required to pay any judgment, compromise or settlement, or may but is not required to indemnify any public employee, in any case where the public entity is immune from liability under this section; except that the public entity shall pay, as provided in Article 4 (commencing with Section 825) of Chapter 1 of this part, any judgment based on a claim against a public employee who is lawfully engaged in the practice of one of the healing arts under any law of this state for malpractice arising from an act or omission in the scope of his employment, and shall pay any compromise or settlement of a claim or action, based on such malpractice, to which the public entity has agreed.”
The statute does impose liability on health care providers for injury proximately caused by malpractice. Castaneda sued the employee physicians and nurses in federal court, not in this state court action. The only defendant at issue in this action is the State.
In its petition for rehearing, the estate focuses on the last clause of section 845.6 that subjects the State to liability for an employee’s failure to “take reasonable action to summon” medical care. The estate argues its claim for violation of section 845.6 was “based on the State’s failure ‘to take reasonable action’ to carry out the urgent urology consult and biopsy requested by both Dr. Leong and Nurse Pasha.” (Italics added.). This argument conflates summoning medical care with the “carrying] out” of, or provision of, treatment. The estate is seeking to hold the State liable for failing to take reasonable action to furnish medical care, which is simply another way of arguing that the State negligently provided medical care, i.e., a consult or biopsy. Pursuant to Nelson v. State of California, the State is immune to liability for that conduct. (Nelson v. State of California, supra, 139 Cal.App.3d at pp. 80-81.)
Johnson v. County of Los Angeles (1983)
Given our holding we need not reach the State’s remaining contentions on appeal.