Parthemore v. Col

• Decision Date: 12 March 2014
• Docket Number: C072611
• Citation: 221 Cal.App.4th 1372,165 Cal.Rptr.3d 367
• Court: California Court of Appeals Court of Appeals
• Parties: Ira Don PARTHEMORE, Plaintiff and Appellant, v. Peter R. COL, Defendant and Respondent.

221 Cal.App.4th 1372

165 Cal.Rptr.3d 367

Ira Don PARTHEMORE, Plaintiff and Appellant,

v.Peter R. COL, Defendant and Respondent.

C072611

Court of Appeal, Third District, California.

Filed December 6, 2013

Review Denied March 12, 2014 ^*

See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 219.

APPEAL from a judgment of the Superior Court of Amador County, Harlan, Judge. Affirmed. (Super. Ct. No. 11CVC07422)

Susan E. Coleman, Kristina Doan Gruenberg, Los Angeles, for Plaintiff and Appellant.

Ira Don Parthemore, in pro. per., for Defendant and Respondent.

HULL, J.

Plaintiff Ira Don Parthemore, an incarcerated person representing himself in pro per, appeals from a judgment dismissing his action against defendant Peter R. Col, an optometrist under contract with the Department of Corrections and Rehabilitation (DCR). The trial court found plaintiff failed to exhaust his administrative remedies, and sustained defendant's demurrer to plaintiff's first amended complaint without leave to amend (Wright v. State of California (2004) 122 Cal.App.4th 659, 19 Cal.Rptr.3d 92).

On appeal, plaintiff argues he was not required to exhaust the administrative remedies available to prisoners before bringing this action because defendant was an independent contractor. In this issue of first impression, plaintiff asserts that the rule embodied in the Government Claims Act, which by definition excludes independent contractors from the definition of public employees to which the Act applies (Gov.Code, §§ 810.2, 820), applies equally to the administrative grievance system that prisoners must exhaust as a prerequisite to trial court jurisdiction, and exempts from the administrative process all claims arising from the acts or omissions of independent contractors. (Cal.Code Regs., tit. 15, § 3084 et seq.)

We disagree. Plaintiff's obligation to exhaust the administrative remedies available to prisoners concerning the medical treatment they receive is independent of the obligation to comply with the Government Claims Act (see, e.g. Wright v. State of California, supra, 122 Cal.App.4th at pp. 670–671, 19 Cal.Rptr.3d 92; Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1155, 52 Cal.Rptr.3d 209). And neither the language of the applicable regulations nor the policies underlying them except the acts and omissions of independent contractors from those as to which a prisoner must exhaust his remedies before bringing this action (Wright v. State of California, supra, 122 Cal.App.4th at pp. 664–665, 19 Cal.Rptr.3d 92). Accordingly, we conclude the trial court correctly ruled that plaintiff's complaint must be dismissed for failure to exhaust administrative remedies.

Facts and Proceedings

Because we are reviewing an order sustaining a demurrer, we accept as true the allegations of fact set forth in plaintiff's complaint(s). (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865, 62 Cal.Rptr.3d 614, 161 P.3d 1168.) Therefore, the facts set forth in this opinion are taken from the allegations in plaintiff's pleadings.

Plaintiff is a prison inmate. Defendant is an optometrist under contract with Mule Creek State Prison.

Defendant examined plaintiff and diagnosed him as having cataracts in both eyes. Defendant advised plaintiff he would require surgery, but failed to schedule it.

Plaintiff filed a health care appeal requesting he be provided with cataract surgery. A further optometry appointment was scheduled for plaintiff with defendant, and the health care appeal was suspended pending that appointment.

At his next appointment with plaintiff, defendant determined that plaintiff's cataracts did not warrant surgery. Defendant also told plaintiff he had completed DCR form 1845, a disability placement program verification, identifying plaintiff as having “legal blindness,” a visual impairment that is not correctable to better than 20/200 visual acuity. Plaintiff alleges defendant deliberately and falsely indicated plaintiff is legally blind so DCR would be compelled to transfer plaintiff to a medical facility capable of providing for the needs of the legally blind.

Plaintiff sought and obtained a reevaluation appointment, at which he asked defendant for a new vision test and new glasses prescription, and asked defendant to reevaluate whether the legal blindness diagnosis could be changed. Defendant did a quick eye test and agreed plaintiff's corrected vision was 20/70, but he declined to change his diagnosis or provide a new prescription.

Plaintiff was subsequently examined by an ophthalmologist, who confirmed that plaintiff's “central” corrected vision was 20/70. Despite this finding, plaintiff was transferred from Mule Creek Prison to the medical facility.

An optometrist at the medical facility examined plaintiff and diagnosed plaintiff as having corrected visual acuity of 20/100 in the right eye and 20/60 in the left. Based on this diagnosis, plaintiff should never have been diagnosed as legally blind or transferred to the medical facility. The optometrist prepared a new DCR 1845 form, noted that plaintiff's vision is “better than 20/200 in both eyes” and indicated plaintiff should be removed from the disability placement program.

Shortly thereafter, however, because plaintiff could not “fully see the new and unfamiliar physical layout” of the medical facility, he stumbled over a fixed bench and broke his right kneecap and several bones in his left shoulder. After he recovered from the fall, plaintiff was transferred back to Mule Creek State Prison.

Plaintiff then sued defendant and asserted claims based on theories of negligence and intentional tort. Defendant's demurrer on the ground the complaint failed to state a cause of action was sustained with leave to amend.

Plaintiff then filed the first amended (operative) complaint. Plaintiff's first cause of action for negligence alleges his fall was the result of defendant's refusal to issue a new eyeglass prescription at plaintiff's reevaluation appointment. Plaintiff's second cause of action for intentional tort alleges his transfer to the medical facility was the consequence of defendant's having deliberately falsified official DCR medical records.

Defendant demurred to the complaint on the grounds plaintiff failed to allege he had exhausted his administrative remedies; and failed to allege facts stating a cause of action for either negligence or intentional tort. Defendant also demurred on the ground plaintiff failed to allege compliance with the Government Claims Act, but he later abandoned that argument, reasoning that the Act does not apply to independent contractors (see Gov.Code, §§ 810.2, 811.4, 820).

Opposing the demurrer, plaintiff argued he was not required to pursue an administrative appeal directed at the actions, decisions or omissions of defendant, an independent contractor. Alternatively, plaintiff asserted, he did exhaust his administrative appeal and he attached to the opposition documents showing he filed an administrative health care appeal form challenging defendant's failure to order cataract surgery, to which he later added a claim defendant falsified the 1845 form by defining plaintiff as legally blind. This appeal was “partially granted” at the second level response, in that a new 1845 form reflected that plaintiff is not legally blind and cataract surgery was scheduled. Finally, plaintiff argued his complaint properly states causes of action for both negligence and intentional tort.

Following a hearing, the trial court found plaintiff failed to demonstrate his exhaustion of administrative remedies, sustained the demurrer without leave to amend, and entered judgment in defendant's favor.

Discussion

IStandard of Review Applicable to Demurrer

Our standard of review of an order sustaining a demurrer is well settled. We independently review the ruling on demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415, 106 Cal.Rptr.2d 271, 21 P.3d 1189.) In doing so, we “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.]” (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865, 62 Cal.Rptr.3d 614, 161 P.3d 1168.)

When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

IIJurisdictional Requirement of Exhaustion of Administrative Remedies

The “rule of exhaustion of administrative remedies is well established in California jurisprudence.” (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321, 25 Cal.Rptr.3d 320, 106 P.3d 976 (Campbell ).) Generally, it means a party must exhaust administrative remedies before resorting to the courts. (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080, 29 Cal.Rptr.3d 234, 112 P.3d 623.) More specifically, “ ‘[t]he doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is provided by statute, regulation, or ordinance, relief must be sought by exhausting this remedy before the courts will act.’ [Citation.]” (Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 99–100, 26 Cal.Rptr.3d 744.)

The “failure to exhaust administrative remedies is a proper basis for demurrer.” (Gupta v. Stanford...