Re: ????? ??????????? ??????????? Dustin Callison v. Corizon Health, Inc.
??????????????????????????????????? Superior Court No. 16CECG01663
Hearing Date: ?????????? Thursday December 21, 2017? ?????? ?(Dept. 501)
Motion: ????????????????????? Plaintiffs? Motion for Summary Judgment or Adjudication (or JOP in the alternative)
Tentative Ruling:
To Grant Summary Adjudication of claims based upon violations of Government Code section 845.6 and Medical Negligence.
To Deny Summary Adjudication of claims based upon violation of the Bane Act.
To Deny JOP for claims based upon violation of the Bane Act.?
Explanation: ?
Government Code ? 845.6 ? against public entity and employees (e.g. Defendant Fresno County Dep?t of Public Health, Defendant Fresno County Sheriff?s Dept., Defendant Mims, and Defendant Pomaville)
A public entity is liable for injuries proximately caused by an act or omission of an employee of the public entity within the scope of his or her employment if the act or omission would otherwise have given rise to a cause of action against the employee or his or her personal representative. (Govt. Code ? 815.2.)
Here, Plaintiff alleges that Government Code section 845.6 creates a cause of action under Section 815.2 because when there is actual or constructive knowledge of a need for immediate medical care, a duty of reasonable action to summon medical care is created. (Govt. Code ? 845.6; Lawson v. Superior Court (2010) 180 Cal.App.4th 1372; Watson v. State of California (1993) 21 Cal.App.4th 836, 841; Johnson v. County of Los
Angeles (1983) 143 Cal.App.3d 298, 317; Hart v. County of Orange (1967) 254
Cal.App.2d 302, 307.) In support thereof, Plaintiff alleges that despite several complaints and grievances against Defendants Thomas and Corizon, Defendants Pomaville and Mims failed to act, in that they continually failed to provide adequate medical care. However, the undisputed material facts do not support a finding of failure to summon medical care. Rather, each time that Plaintiff requested medical care, he was treated. (UMF, 1-4, 6, 20.) This is adequate to withstand a Section 845.6 claim. According to precedent such as Castaneda v. Dept. of Corrections and Rehab. (2013) 212 Cal.App.4th 1051, 1072-1074, whether or not the care was adequate is of no consequence. Granted.
Medical Negligence ? against Defendant physicians employed by Corizon Healthcare
Claims arising from a healthcare provider?s alleged malpractice are barred if not filed within one year after: (1) the plaintiff suspects he sustained injury due to wrongdoing or (2) a reasonable person would have suspected he sustained injury due to wrongdoing.
Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391; Code Civ. Proc., ?340.5.)
Here, the undisputed material facts support only one conclusion: Plaintiff knew of his injuries upon compliance with the Government Claims Act on April 21, 2015. (UMF, 1011; see also FAC, Attach.) And he did not file suit until May 24, 2016, more than one year later. (Ibid.) Granted.
Bane Act – against Defendants Thomas and Corizon Healthcare
California’s Bane Act, codified at Civil Code sections 52.1(a) and (b), provides a private right of action for damages against any person, whether acting under color of law or not, who interferes or attempts to interfere ?by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws? of California.
Here, Plaintiff?s claim is based upon his allegations that Defendants Corizon and Thomas? retaliatory practices constituted ?threats, intimidation, or coercion,? and violated his right to adequate medical care. (see Estelle v. Gamble (1976) 429 U.S. 97, 101; see also Jett v. Penner (9th Cir. 2006) 439 F.3d 1091, 1096.) In essence he alleges that, despite serious medical need, he was denied access to proper medical treatment as a result of his participation in an investigation related to Defendants? services. He alleges to have been subjected to non-standard medical practices and to have suffered unfavorable relocations.
To meet their burden then, Defendants must submit admissible evidence showing that ?plaintiff does not possess, and cannot reasonably obtain, needed evidence.? (Aguilar, supra, 25 Cal.4th at 854.) Defendants submit various answers to their RFAs and the declaration of Dr. Michelle Thomas to show that Plaintiff had no serious medical need, that he was not subjected to non-standard medical practices, and that he did not suffer unfavorable relocations for the purposes of punishing or dissuading him from pursuing medical treatment. (UMF, 12-18.)? Defendants also attempt to argue statute of limitations. (Ibid.)
Regarding Plaintiff?s answers to Defendants requests for admissions (UMF, 17), they are submitted to negate the causation element. However, they are not, as Defendants contend, factually devoid, and they do not contain admissions disproving an essential element of Plaintiff’s claim. Rather, they contain multiple assertions regarding causation (e.g. Plaintiff alleges to have suffered infection as a result of the non-standard feeding method implemented by Defendant Thomas and as a result of being relocated). (see
Villa v. McFerren (1995) 35 Cal.App.4th 733, 749; see also Sheffield v. Eli Lilly Co. (1983) 144 Cal.App.3d 583, 611.) More, Plaintiff also asserts lack of control (of evidence) as a defense. (see Union Bank v. Sup.Ct. (1995) 31 Cal.App.4th 573, 590 only where plaintiffs have had adequate opportunity for discovery, may their factually-devoid responses to discovery requests ?show? that one or more elements of their claim ?cannot be established.?) Finally, Defendants cannot shift the burden regarding non-standard medical procedures using responses to interrogatories; to shift this burden requires expert testimony. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) Denied.
Regarding serious medical need and non-standard medical practices, Defendants rely heavily on the declaration of Dr. Thomas. (UMF 12-17.) However, it is unclear whether Dr. Thomas has the required credentials. From her declaration, it is unclear if she is currently practicing, and her declaration states only that she specializes in family practice, has twenty years? experience, and is a UC Davis graduate. (Thomas Dec., filed: 10/5/17 ? 1.) But, ?[t]o qualify a witness as a medical expert it must be shown that the witness (1) has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject, and (2) is familiar with the standards required of physicians under similar circumstances. (Seneris v. Haas (1955) 45 Cal.2d 811, 833.) Nonetheless, (in large part) Dr. Thomas?s declaration contains only denials and conclusory statements. Dr. Thomas explains her actions, but she never defines the applicable standards of care. Instead, she concludes only that she acted ?within the standard of care,? which is insufficient for summary adjudication. (Johnson v. Sup.Ct. (2006) 143 Cal.App.4th 297, 307.) Denied.
Regarding undesirable relocation, Defendants again rely on Dr. Thomas. (UMF 12-17.)
And though Dr. Thomas does state that one move was medically appropriate (Thomas
Dec., filed: 10/5/17, ? 16), she also states that she ?was unaware of any mold infestation,? and that she ?did not perceive any leaks in his cell? or ?medically unacceptable risk of infection.? (Id. at ? 14.)? And she states that ?to the best of her recollection,? custody staff initiated the relocation and that she ?did not attempt to violate [Plaintiff?s rights] knowingly.? (Id. at ? 16, 17.) More, she states that she did not ?consciously disregard any serious medical need of his.? (Id. at ? 17.) This is insufficient to negate Plaintiff?s allegations because in this situation, moving parties control the overwhelming majority of critical evidence (e.g. moving party’s declarations are from the sole witness to material facts and deal with the declarant’s state of mind, such that opposing party is unable to file controverting declarations). (Code Civ. Proc., ? 437c, subd. (e); see also KOVR-TV, Inc. v. Sup.Ct. (1995) 31 Cal.App.4th 1023, 1031; Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1046.) Denied.
Regarding Statute of Limitations, this defense is dependent upon a finding that a Bane Act claim is synonymous with negligence, but no convincing argument or legal support is provided in support thereof. And moving parties? contention that the gravamen of the two causes of action is the same is insufficient. (Cal. Rules of Court, rule 3.1113; see also Quantum Cooking Concepts v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 933934.) Denied.
Regarding Judgment on the Pleadings, if the moving party has already demurred unsuccessfully on the same grounds alleged in the motion for judgment on the pleadings, the motion does not lie unless there has been a material change in applicable case law or statute since the ruling on the demurrer. (Code Civ. Proc., ? 438, subd. (g)(1).) Here, Defendants request judgment on the pleadings for claims based upon the Bane Act, but this issue has already been resolved via demurer. (see Min.
Order adopting Ten., filed: 11/1/16.) Therefore, as Defendants cite no material change in applicable case law or statute since that ruling, this motion cannot lie.? Denied.
Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure section 1019.5(a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling????????????????? MWS??????????????????????? 12/20/17
Issued By: ???????????????????????????????????????????on???????????????????????????????????????????????????? .
(Judge?s initials) ?????? ??????????? ??????????? ??????????? (Date