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Mitchell A. Caravayo v. Glen James

April 18, 2012

MITCHELL A. CARAVAYO, PLAINTIFF AND APPELLANT,
v.
GLEN JAMES, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 45197)

The opinion of the court was delivered by: Murray , J.

Caravayo v. James

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Mitchell A. Caravayo is a pro se litigant in the custody of the California Department of Corrections and Rehabilitation (CDCR). Caravayo filed a negligence action against Dr. Glen James and other defendants. The trial court sustained Dr. James's demurrer to Caravayo's first amended complaint and Caravayo was given leave to amend. Caravayo failed to amend, the trial court dismissed his case, and Caravayo appealed.

On appeal, Caravayo raises several arguments attacking the dismissal of his case and the trial court's ruling on the demurrer. We ultimately conclude the trial court properly dismissed Caravayo's case against Dr. James, the only demurring defendant. We also conclude, however, that the trial court should not have dismissed Caravayo's case as to the remaining defendants. We affirm the dismissal as to Dr. James and remand for further proceedings.

BACKGROUND

On June 15, 2007, Caravayo filed a negligence action in Lassen County Superior Court against Dr. James, James E. Tilton, Tom Felkner, and Does 1-10. Over two years later, on June 22, 2009, without having served any defendant, Caravayo filed a first amended complaint, the operative pleading.

Like the original complaint, the first amended complaint is an amalgam of Judicial Council forms and other documents. The parties are the same, except that the first amended complaint adds the CDCR as a defendant. The body of the first amended complaint (contained within several Judicial Council forms) alleges three separate causes of action for negligence -- the first against Dr. James; the second against Does 1-5; and the third against Does 6-10.

Roughly five months after filing his first amended complaint, Caravayo effectuated service on Dr. James. Dr. James is the only defendant who has been served in this case and the only respondent on appeal.

I. Caravayo's Cause of Action against Dr. James

According to the first amended complaint, on November 9, 2005, while incarcerated at the High Desert State Prison (High Desert), Caravayo was "hit and/or kicked at least 10-20 times in the front and back of [his] head" by an unnamed individual. The impact bloodied Caravayo's nose and caused "temporary loss/memory [sic], temporary mental confusion and clouded consciousness." Caravayo was taken by wheelchair to the prison infirmary where he received a stitch above his right eye and "chomp[ed] on some gauze." The first amended complaint avers that Dr. James was employed at High Desert. The first amended complaint identifies various actions Dr. James purportedly failed to take with respect to providing medical care to Caravayo.

Allegedly, Dr. James did not conduct "as thorough a neurological examination or evaluation as could [have been] given." There were no X-rays taken of Caravayo's face or head "to determine any non-observable facts having physical existence." "At no time did Dr. Glen James or any other doctor ask [Caravayo] to walk heel to toe in a straight line in order to determine whether [Caravayo] could maintain an independent upright movement without erratic osilation [sic] or staggering." "At no time did Dr. Glen James or ant [sic] other doctor ask [Caravayo] to hop on one foot in order to determine the presence of any infirmaties [sic]." "At no time did Dr. Glen James or any other doctor question [Caravayo] whether he perceived any symptoms like retrograde amnesia, vertigo, nausea, loss of coordination, numbness in the extremedies [sic] . . . , or any other clinical symptom relative to serious impairment to the brain." "At no time did Dr. Glen James or any other doctor disclose all material facts relative to serious impairment to the brain which could not be commonly appreciated by [a] reasonable person in [Caravayo's] position." "At no time did Dr. Glen James disclose a forecast admonishing and outlining a prediction of any probable outcome of [Caravayo's] impaired brain and the proximate consequences were he to suffer more blows to the face and head." Dr. James also allegedly failed to "document any personal medical information in support of his prescribing medication."

The first amended complaint alleges that Dr. James "did act negligently in the manner described above" and failed "to exercise the standard of care that a reasonably prudent doctor would have exercised in a similar situation." As "a proximate result of defendant [Dr.] James'[s] conduct," Caravayo "has suffered and continues to suffer in the form of pain and suffering and emotional distress."

Caravayo attached documents to his first amended complaint including an "Inmate/Parolee Appeal Form" known as a CDC 602. The CDC 602 is accompanied by handwritten continuation pages and other supporting materials.

II. The Demurrer

Dr. James demurred to the first amended complaint on four grounds: (1) Caravayo's action against Dr. James was barred by the statute of limitations, (2) the first amended complaint fails to allege facts sufficient to state a cause of action for negligence against Dr. James; (3) Dr. James is immune from suit under Government Code section 855.6, and (4) Caravayo failed to exhaust his administrative remedies. In support of his demurrer, Dr. James requested judicial notice of certified records from the CDCR Inmate Appeals Branch.

Caravayo belatedly filed an opposition, and a trial court commissioner held a hearing on the demurrer on March 11, 2010. Caravayo and Dr. James, through his counsel, appeared telephonically. At the hearing, the commissioner sustained the demurrer on all grounds and granted leave to amend.

On March 23, 2010, the commissioner issued a formal order on the demurrer. The order granted Dr. James's request for judicial notice and sustained the demurrer on all grounds. The order also granted Caravayo 30 days from the date of the order to file and serve a second amended complaint. On April 1, 2010, Dr. James mailed a copy of the order, with a notice of entry, to Caravayo.

III. Subsequent Filings And Proceedings

On April 12, 2010, Caravayo filed a "Proposed Order; Objection" in which he objected to the "proposed" order on the demurrer.*fn1 Caravayo argued that the order failed to reflect that the court granted his request for judicial notice of a prison regulation (Cal. Code Regs., tit. 15, § 3000.5, subd. (f)), and denied his "request for a Declaration of Rights as to that section." Caravayo further argued that the order failed to reflect that leave to amend was separately granted with respect to each ground on which the demurrer was sustained.

On April 19, 2010, the trial court held a case management conference (CMC). Dr. James, through his counsel, appeared at the CMC, but Caravayo did not. Dr. James requested dismissal pursuant to Code of Civil Procedure section 581, subdivision (f)(2) (section 581(f)(2)).*fn2 The court entered a minute order directing the clerk to serve an "OSC Re: Sanctions" on Caravayo "for failure to file a further case management statement and failure to appear at the case management conference." The minute order set a hearing for May 6, 2010. The minute order indicated that the hearing would address the "status of [the] 2nd amended" complaint.

On April 21, 2010, the clerk mailed a notice to Caravayo indicating that a hearing was set for May 6, 2010 on "why sanctions should not be imposed for failure to comply with Delay Reduction Rules."

On April 26, 2010, Caravayo filed a document entitled "Ex Parte Notice; Emergency Exception" (Ex Parte Notice). Therein, Caravayo explained why he had failed to appear at the CMC; namely that "Courtcall" had faxed the "wrong access code" for his telephonic appearance. Caravayo also requested additional time, beyond the 30 days given, to file his second amended complaint. Caravayo represented that on March 17, 2010, he was removed from the prison's general population and placed in administrative segregation and that prison staff had "seized" his "legal material." Prison staff did not "hand over [his] legal material until Apr. 16, 2010." In light of these circumstances, Caravayo stated that he would not be able to comply with the 30-day deadline to amend. Caravayo stated that since April 16, 2010, he had been "formatting his amendments" and he "believe[d]" he could "make the necessary adjustments." He requested until May 21, 2010 to file a second amended complaint. In the context of explaining his need for an extension of time, Caravayo quoted rule 3.1320(h) of the California Rules of Court, which states: "A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2)."*fn3 Wisely anticipating such a motion, Caravayo stated, "if this court were to issue an O.S.C. why [Caravayo's] complaint should not be dismissed before ruling on an anticipated ex parte application on Dr. James['s] behalf[,] [Caravayo] can explain the situation[] unless, of course, the court accepts [Caravayo's] ex parte notice sufficient to satisfy that need."

On April 30, 2010, Caravayo filed a "Notice Of Objection And Objection To The Court's Order Of March 23, 2010." Therein, Caravayo objected to the trial court's written order sustaining the demurrer. Caravayo largely reiterated the arguments he previously had raised in his "Proposed Order; Objection" filing. In addition, however, Caravayo cited section 472d and argued that the order did not sufficiently describe each ground on which the demurrer was sustained.

On May 6, 2010, the court held the order to show cause hearing. Caravayo and Dr. James (through his counsel) appeared telephonically. According to Caravayo's appellate briefing, he "argued the same thing at the OSC hearing" as he did in his Ex Parte Notice. The transcript from the May 6, 2010 hearing is not in the appellate record.*fn4 The trial court apparently was unmoved by Caravayo's oral argument and prepared a minute order indicating the case was dismissed for lack of prosecution.

On May 21, 2010, the court entered a formal order of dismissal. The order states in pertinent part: "The court finds that plaintiff has not shown good cause for his failure to timely file and serve a second amended complaint in compliance with this court's order dated March 23, 2010. Therefore, good cause appearing, [¶] IT IS ORDERED that this matter is DISMISSED in its entirety." Caravayo timely appealed from the order of dismissal.

DISCUSSION

Although the trial court's order sustaining the demurrer with leave to amend is not appealable, the trial court's subsequent dismissal order is an appealable final judgment. (§ 581, subd. (d); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1032, fn. 1; Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457 (Otworth).) Caravayo's appeal from the dismissal order allows him to challenge intermediate orders prior to dismissal, including the trial court's order sustaining the ...


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