Nelson v. State of California

• Decision Date: 21 December 1982
• Parties: Kenneth Draper NELSON, Plaintiff and Appellant, v. STATE of California, et al., Defendants and Respondents. Civ. 25150.
• Court: California Court of Appeals Court of Appeals

Page 479

188 Cal.Rptr. 479

139 Cal.App.3d 72

Kenneth Draper NELSON, Plaintiff and Appellant, v. STATE of California, et al., Defendants and Respondents.

Civ. 25150.

Court of Appeal, Fourth District, Division 2, California.

Dec. 21, 1982.

Hearing Denied Feb. 23, 1983.

[139 Cal.App.3d 74] Miller, Boyko & Bell, Terry D. Harper and Robert K. Schraner, San Diego, for plaintiff and appellant.

George Deukmejian, Atty. Gen., and Randall B. Christison, Deputy Atty. Gen., for defendants and respondents State of California and Dr. Billig.

OPINION

McDANIEL, Associate Justice.

Kenneth Draper Nelson (plaintiff) appeals from the order and judgment dismissing defendants Harvey E. Billig, M.D., Paul Cress, M.D., Terrill R. Holland, Ph.D., Lindberg Hale, and 30 fictitious Doe defendants, and from the judgment following the order which sustained the State of California's demurrer to plaintiff's first amended complaint. The questions on appeal are: (1) when does the time run for service on defendants originally named as Does but whose true names are later added by amendment; and (2) was plaintiff's first amended complaint fatally inconsistent with either his original complaint or his tort claim filed against the State?

FACTS

Plaintiff was incarcerated in the San Diego County Jail. He was then transferred to the California Institute for Men in Chino. While in Chino, he complained of various medical problems including weight loss, thirst, and leg pain. He was examined and treated by the individual defendants. He ultimately became diabetic, and suffered injury to his leg which necessitated the use of a leg brace.

After undertaking to comply with the applicable Government Code claims statutes, ¹ plaintiff on July 20, 1976, filed a complaint explicitly based on medical malpractice against the State of California (State), the Department of Corrections, "John Doe Bills, M.D.," the Regents of the University of California, and 30 Doe defendants. He then filed a separate action against the County of San Diego, "John Doe Frank, M.D.," and 30 Doe defendants. This action was also based on medical malpractice.

The two cases were consolidated. On October 21, 1977, the complaints were amended to substitute Harvey E. Billig, Jr., M.D., for "John Doe Bills, M.D.," and Jules A. Frank, M.D. for "John Doe Frank, M.D." On March 2, 1978, Paul Cress, M.D., Terrill R. Holland, Ph.D., and Lindberg Hale were substituted by amendment for Does I-III.

Dr. Frank was served with summons on August 4, 1980, and Dr. Billig was served on August 5, 1980.

The State moved for judgment on the pleadings on the ground that the complaint did not allege facts sufficient to constitute a cause of action against it, and Dr. Frank moved to dismiss as to himself and Does I-XXX under Code of Civil Procedure section 581a. Dr. Billig also moved to dismiss and to quash service of summons under Code of Civil Procedure section 581a.

The court granted the motions to dismiss, and dismissed the individual named and Doe defendants for failure to return summons within three years from the filing of the complaint. The State's motion for judgment on the pleadings was granted with leave to amend. Plaintiff then filed a first amended complaint on an entirely different theory.

Whereas the original complaint was specifically directed at alleged medical malpractice, the first amended complaint alleged that plaintiff had informed the defendant employees of his arthritic and hypoglycemic conditions, that defendants "were not sufficiently well versed and/or knowledgeable concerning diabetes to themselves render the immediate medical care reasonable and necessary under the circumstances," and that "by reason thereof said employees ... owed a duty to plaintiff to summon immediate and competent medical attention." Plaintiff then went on to allege that defendants breached their duty by failing to summon the necessary medical assistance, all of which proximately caused the injuries and damages arising therefrom of which he complained.

Because this represented a radical departure from the theory of the original complaint and because no claim reflecting such and the facts upon which it was based had ever been presented, the State demurred. The demurrer was sustained, judgment for the State was entered, and this appeal followed.

DISCUSSION

I

With reference to the individual defendants, plaintiff contends that the three-year time limit of section 581a should run from the filing of the amended complaint, and cites Taliaferro v. Riddle, 167 Cal.App.2d 567, 334 P.2d 950 for this proposition.

In Taliaferro, the defendants were dismissed pursuant to section 581a, plaintiff having failed to serve them within the three year period. They were later ordered joined as necessary parties, and were named as defendants in the amended complaint. As such, they came in as new parties and the action commenced anew as to them.

Taliaferro is not controlling here. Taliaferro applies to cases in which defendants are dismissed and then brought in as new, necessary parties. The defendants here were not ordered joined as necessary parties, nor does plaintiff cite authority for the proposition that they are necessary parties. In this case, the named defendants who were substituted in were not new parties, and the time for the purposes of section 581a began to run when the original complaint was filed. (Dresser v. Superior Court, 231 Cal.App.2d 68, 77, 41 Cal.Rptr. 473.)

Plaintiff next contends that he should be excused for failure to comply with section 581a. Even though a plaintiff claims he or she should be excused for failure of timely service, the trial court must dismiss unless the plaintiff makes an adequate showing of diligence or excuse for delay. (Hocharian v. Superior Court, 28 Cal.3d 714, 723, fn. 7, 170 Cal.Rptr. 790, 621 P.2d 829.) Only after plaintiff has met this burden must the court consider whether or not the prejudice to the defendant outweighs the harm to the plaintiff if the action is not dismissed. (Id. at p. 724, 170 Cal.Rptr. 790, 621 P.2d 829.)

In the case here, plaintiff did not make an adequate showing of diligence or excuse for delay. It is clear that he knew the names of Billig, Frank, Cress, Holland, and Hale by March 2, 1978. He also had ample time to propound interrogatories to discover the names of any other Doe defendant. Nonetheless, he failed to serve the defendants within the three year period.

He attempts to excuse this failure by saying that the overlooked the lack of service on the individual defendants for two reasons. First, he failed to notice that the answer filed by the State did not answer for the individual defendants, and assumed that it did because he claims it was the duty of the Attorney General to represent the individual defendants. Failure to read an answer carefully is neither diligence nor excuse for delay.

Secondly, he claims to have been misled by an at-issue memorandum filed by the County of San Diego which stated that all essential parties had been served. He urges that this memorandum induced him to overlook errors in service. This contention was apparently not raised below; in any event, estoppel arises from the declarations or conduct of the party estopped, (City of Long Beach v. Mansell, 3 Cal.3d 462, 488-489, 476 P.2d 423), and here the at-issue memorandum was filed by the County, not by the State or the individual defendants. In addition, reliance must be reasonable (Tresway Aero, Inc. v. Superior Court, 5 Cal.3d 431, 439-440, 487 P.2d 1211). It was plaintiff's duty to see that the individual defendants were served. It was not the duty of the Attorney General; it was not the duty of the County of San Diego. Plaintiff did not even attempt to serve three of the named defendants; to believe that they had been served because of an at-issue memorandum filed by another defendant is not reasonable.

Because no showing of diligence or excuse for delay was made, the trial court was required to dismiss the action, and the question of prejudice to the defendants never arose. The order granting the individual defendants' motions to dismiss will therefore be affirmed.

II

Turning now to plaintiff's appeal from the judgment of dismissal as to the State, both the original complaint and the claim filed with the State Board of Control as a predicate therefor alleged that the State and its doctors were negligent in their examination, diagnosis, and treatment of plaintiff.

The State moved for judgment on the pleadings on the ground that the complaint failed to allege facts sufficient to constitute a cause of action, because, under Government Code section 844.6, the State could not be liable for a prisoner's injury. The motion was granted with leave to amend, and plaintiff filed an amended complaint alleging that employees of the State negligently failed to summon immediate, competent medical care. The State demurred, and the demurrer was sustained without leave to amend.

Government Code section 844.6 provides that a public entity is immune from liability for injuries to prisoners, except that it must pay judgments based on malpractice against public employees who are lawfully engaged in the practice of one of the healing arts.

Another exception to a public entity's immunity from liability for injuries to prisoners is set out in Government Code section 845.6, which states: "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, 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. Nothing in this section exonerates a public employee who is...