Estrada v. N. Kern State Prison, F077871

• Court: California Court of Appeals
• Parties: NICK ESTRADA, Plaintiff and Appellant, v. NORTH KERN STATE PRISON, Defendant and Respondent.
• Docket Number: F077871
• Decision Date: 09 October 2019

NICK ESTRADA, Plaintiff and Appellant,
v.
NORTH KERN STATE PRISON, Defendant and Respondent.

F077871

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

October 9, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BCV-17-101449 SDS)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge.

Nick Estrada, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General, Neah Huynh and Misha D. Igra, Deputy Attorneys General, for Defendant and Respondent.

-ooOoo-

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Appellant Nick Estrada is a former prison inmate who is representing himself in this lawsuit. Estrada contends the trial court erred when it considered and sustained the demurrer to his complaint instead of granting his motion for voluntary dismissal. The Attorney General's office agrees, contending this court "should vacate the judgment and direct the superior court to grant Estrada's motion for voluntary dismissal." Based on our review of the appellate record and briefs, we concur in the reasoning presented by the parties.

We therefore reverse the judgment and remand with directions to grant Estrada's motion for voluntary dismissal.

FACTS AND PROCEEDINGS

This litigation began in June 2017 when Estrada submitted a civil complaint and request to waive court fees to the Kern County Superior Court. In October 2017, Estrada filed a first amended complaint.

In April 2018, defendant North Kern State Prison filed a demurrer. Defendant asserted (1) it was immune from liability for any malpractice by an employee in providing medical care to an inmate and (2) the narrow exception of Government Code section 845.6 relating to the failure to summon immediate medical care did not apply in this case. The demurrer was set to be heard on May 15, 2018.

On May 8, 2018, a week before the scheduled hearing on the demurrer, Estrada delivered a motion for voluntary dismissal without prejudice to prison officials for mailing to the superior court. It was mailed to the court the next day.

The May 15, 2018, hearing was scheduled for 8:30 a.m. Estrada appeared on his own behalf and defendant appeared through counsel. Both sides used CourtCall. The parties agree Estrada informed the trial court he had mailed a motion for dismissal to the court and Estrada asked that the dismissal be entered. The court asked the courtroom clerk if the papers had been received and the clerk stated nothing was on record. The

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court proceeded with the hearing and announced it would sustain defendant's demurrer without leave to amend.

Later that morning, at 9:23 a.m., the trial court denied Estrada's motion for voluntary dismissal. The time and date of the court's order was stamped on the first page of the motion.

Within a week, Estrada mailed a motion to the trial court requesting the court to defer its decision on the demurrer and rule on Estrada's motion to dismiss. This motion was filed by the trial court on May 24, 2018.

On June 15, 2018, the court signed and filed an order sustaining the demurrer without leave to amend. On July 3, 2018, the court signed and filed a judgment of dismissal stating the action was dismissed with prejudice as to defendant. On July 5, 2018, the trial court also filed an order dismissing action. Estrada filed a timely appeal.

DISCUSSION

I. LEGAL PRINCIPLES

A. Prison Delivery Rule

The prison delivery rule "provides that the time of the filing constructively occurs, as a matter of law, when the self-represented prisoner properly delivers the notice [of appeal] to the prison authorities for forwarding to the superior court clerk. As such, the rule does not subvert the policies of speedy resolution and...