Escalante v. County of Riverside, 031519 CAAPP4-2, E069145

Docket Nº:E069145
Opinion Judge:MCKINSTER J.
Party Name:REFUGIO ESCALANTE, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE, Defendant and Respondent.
Attorney:Refugio Escalante, in pro. per., for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.
Judge Panel:We concur: RAMIREZ P. J., RAPHAEL J.
Case Date:March 15, 2019
Court:California Court of Appeals
 
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REFUGIO ESCALANTE, Plaintiff and Appellant,

v.

COUNTY OF RIVERSIDE, Defendant and Respondent.

E069145

California Court of Appeals, Fourth District, Second Division

March 15, 2019

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIC1615162. Daniel A. Ottolia, Judge. Affirmed.

Refugio Escalante, in pro. per., for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.

OPINION

MCKINSTER J.

Plaintiff Refugio Escalante, in propria persona, sued the County of Riverside erroneously under the name of the Riverside County Sheriff's Department (hereafter the County), alleging deputies at the County's jail were negligent in preventing Escalante from timely receiving medical treatment for ulcerative colitis, and that the jail medical staff negligently misdiagnosed him and prescribed medications, which exacerbated his condition. The County demurred contending, inter alia, that Escalante did not timely submit a government tort claim before filing suit. The superior court sustained the demurrer and granted Escalante 30 days leave to amend. The County served Escalante with notice of the ruling, as directed by the trial court.

Escalante did not file an amended complaint within the time permitted, but instead filed a motion to amend the complaint. The superior court denied the motion, and subsequently granted the County's ex parte application to dismiss the lawsuit and entered judgment dismissing Escalante's complaint with prejudice. On appeal, Escalante argues the superior court itself was required to provide him with notice that it had sustained the County's demurrer with 30 days leave to amend, and that the notice he received from the County was ineffective. We disagree and affirm the judgment.

I.

FACTS AND PROCEDURAL BACKGROUND1

On November 14, 2016, Escalante filed a form complaint alleging general negligence.2 Escalante named as defendants the Riverside County Sheriff's Department and Does 1 through 8. Escalante alleged he suffered general damages and continued to suffer pain and suffering, and he prayed for compensatory and punitive damages according to proof.

In an attachment, Escalante alleged that, while in pretrial detention from May 7, 2013 through November 18, 2014, he suffered severe pain and suffering due to ulcerative colitis. He further alleged that on or about February 20, 2014 through March 2, 2014, he began experiencing severe abdominal pain and bloody stool. Escalante immediately informed jail personnel and was told to fill out a request for medical services. Several days passed before Escalante was finally taken to be examined by medical staff, who diagnosed him with hemorrhoids and prescribed 600 milligrams of Motrin and Pepto-Bismol. After still experiencing severe abdominal pain and bleeding for a few more days, Escalante submitted a grievance that was denied.

About a week later, Escalante showed jail personnel how much blood he was still passing through his stool, and he was immediately taken to the hospital where he was admitted for six days and diagnosed with ulcerative colitis. The doctor's told Escalante that his condition had been exacerbated by the Motrin he had been prescribed, and that he now had an increased risk of colon cancer. The doctors prescribed several medications to Escalante, but he was not given any medications once he returned to the jail. The next day, Escalante was told the jail's medical staff could not find his prescriptions. He was taken back to the hospital a few days later due to complications. Escalante alleged that, as of October 10, 2016, he was under chronic care treatment in state prison where he is still suffering complications from his ulcerative colitis.

Escalante alleged: (1) Does 1 through 8 were the jail custodial and medical staff; (2) the jail custodial staff violated the Eighth Amendment to the United States Constitution by forcing him to wait for treatment in an emergency situation; and (3) the jail medical staff violated the Eighth Amendment by misdiagnosing him and prescribing medications, which further exacerbated his condition.

The County demurred to the complaint contending Escalante failed to timely submit a tort claim within six months of his alleged injuries as mandated by the Government Claims Act. (Gov. Code, § 900 et seq.; see id., §§ 911.2, 945.4.) The County requested the superior court take judicial notice of a declaration from an assistant to the clerk of the Riverside County Board of Supervisors. The assistant clerk declared that the clerk of the board had no record of Escalante submitting a tort claim, timely or otherwise. The County also argued the complaint failed to state a claim for negligence because Escalante...

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