Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M99173.
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Plaintiff Richard N. Striley, a self-represented litigant, brought an action against defendant Salinas Valley Memorial Health Care System (Salinas Valley). The superior court sustained Salinas Valley’s demurrer to the original complaint with leave to amend. After Striley filed an amended complaint containing six causes of action, the superior court sustained Salinas Valley’s demurrer for failure to state sufficient facts and for uncertainty without leave to amend. Thereafter, a judgment of dismissal was entered in favor of Salinas Valley.
Salinas Valley was and is named as Salinas Valley Memorial Health Care System in Striley’s complaint and amended complaint. In its demurrers, Salinas Valley referred to itself as “Salinas Valley Memorial Healthcare System, ” although the captions of its demurrers continued to identify Salinas Valley Memorial Health Care System as the defendant. We will identify Salinas Valley by the name used in the captions of the pleadings filed in superior court.
On appeal, we understand Striley to be arguing that at least some of his causes of action are sufficiently stated and that leave to amend should have been granted. For reasons that we will explain, we conclude that Striley should be granted leave to amend his third cause of action, which we understand as attempting to state a claim for battery. We will therefore reverse the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
In August 2009, Striley filed a Judicial Council form complaint against Salinas Valley. The pleading, which Striley verified, contained three causes of action labeled “General Negligence” and one cause of action labeled “Intentional Tort.” The causes of action appear to have been based on medical treatment that Striley purportedly received in March 2009. Attached to the complaint were various documents, including medical records apparently pertaining to the treatment that Striley received.
Salinas Valley filed a demurrer and motion to strike Striley’s complaint. In the demurrer, Salinas Valley contended that Striley failed to state facts sufficient to constitute a cause of action (Code Civ. Proc., § 430.10, subd. (e)) and that the pleading was uncertain (id., § 430.10, subd. (f)). Striley filed written opposition, and Salinas Valley filed reply briefs in support of the demurrer and motion to strike.
Further unspecified statutory references are to the Code of Civil Procedure.
An “uncertain” pleading includes one that is “ambiguous and unintelligible.” (§ 430.10, subd. (f).)
The superior court sustained Salinas Valley’s demurrer and granted Striley leave to amend. The court indicated that it understood the “general gist” of Striley’s claims to be that he was “treated against [his] will, without consent, ” and that he was “misdiagnosed and [his] gallbladder surgery was unnecessary.” The court explained, however, that “missing” from Striley’s pleading were “allegations that show[ed] elements of legal causes of action.” Salinas Valley’s motion to strike was deemed moot in view of the ruling on the demurrer. In a subsequent written order, the court stated that the demurrer by Salinas Valley to Striley’s entire complaint and all the allegations and causes of action contained therein was sustained pursuant to section 430.10 with leave to amend.
B. Amended Complaint
On November 9, 2009, Striley filed an amended Judicial Council form complaint. This time, the pleading, which was again verified, contained six causes of action, three for “General Negligence” and three for an “Intentional Tort, ” against Salinas Valley and Doe defendants. The first three causes of action for “General Negligence” and the fourth cause of action for an “Intentional Tort” were substantially similar to the four causes of action that were alleged in the original complaint.
Salinas Valley filed a demurrer and motion to strike Striley’s amended complaint. In the demurrer, Salinas Valley contended that as to each cause of action, Striley failed to state facts sufficient to constitute a cause of action (§ 430.10, subd. (e)) and the pleading was uncertain (id., § 430.10, subd. (f)). Striley filed written opposition but apparently did not serve Salinas Valley with a copy before the scheduled hearing.
At the January 8, 2010 hearing on Salinas Valley’s demurrer and motion to strike, following argument from Striley, the superior court sustained Salinas Valley’s demurrer to the amended complaint without leave to amend. The court indicated that it understood the “general gist” of Striley’s pleading to be that he was “upset about medical treatment” he received, that he did not think “it was provided voluntarily, ” and that “it was against [his] will....” The court determined, however, that Striley had not “sufficiently” stated a cause of action, despite being given “several times to try to state” the allegations. Salinas Valley’s motion to strike was deemed moot in view of the ruling on the demurrer. The court requested that Salinas Valley submit proposed orders regarding its rulings.
Thereafter, upon receiving from opposing counsel a proposed order concerning the superior court’s ruling on the demurrer, Striley filed a document in which he objected to the substance of the court’s ruling.
C. Notice of Appeal and Proposed Second Amended Complaint
On January 22, 2010, Striley filed a notice of appeal. Thereafter, on January 28, 2010, Striley filed a document in the superior court in which he requested permission to file a second amended complaint. A copy of the proposed pleading was attached. That same day, on a proposed order that had been submitted by Striley, the court referred to Striley’s request as an “[e]x parte communication without proof of service on defendant” and indicated that the request for an order was denied.
D. Judgment of Dismissal
On February 4, 2010, the written order sustaining Salinas Valley’s demurrer to Striley’s amended complaint without leave to amend was filed. In the written order, the superior court stated that the amended complaint “in its entirety is uncertain and fails to state facts sufficient to constitute any cause of action.” The court further stated that Striley had been “given the opportunity to cure the defects contained within the [pleading] and, despite this, has failed to state sufficiently any legally cognizable cause of action” against Salinas Valley.
On February 8, 2010, a judgment of dismissal was filed. Salinas Valley subsequently filed and served a notice of entry of judgment of dismissal.
III. DISCUSSION
Appealability
Striley’s notice of appeal, filed January 22, 2010, indicates that he is appealing from a judgment or order entered on January 15, 2010. The record on appeal does not contain any judgment or order bearing that date.
Striley’s notice of appeal also refers to a “Discretionary Dismissal Without Leave to Amend” and section 904.1, subdivision (a)(1), which provides that an appeal may be taken from a judgment. At the time Striley’s notice of appeal was filed, however, no dismissal or judgment had yet been entered. The superior court had only made an oral ruling that Salinas Valley’s demurrer was sustained without leave to amend. An order sustaining a demurrer without leave to amend is not an appealable order. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 202 (Gu).) Nonetheless, “[b]ecause a judgment of dismissal has actually been entered, we will liberally construe the appeal to have been taken from the judgment of dismissal. [Citations.]” (Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202-203.) We observe that Salinas Valley has argued the merits of the appeal and it would not be misled or prejudiced by our interpretation of the notice of appeal as applying to the judgment of dismissal. (See Gu, supra, 132 Cal.App.4th at pp. 202-203.)
Salinas Valley’s Request for Dismissal
Before considering the substance of Striley’s appeal, we first briefly address Salinas Valley’s request in its responding brief that we dismiss Striley’s appeal. Salinas Valley contends that dismissal is warranted due to Striley’s “failure to raise a claim of reversible error as well as his failure to submit any intelligible argument and authority which would support his position.” Salinas Valley made a similar argument in a previously-filed motion to strike Striley’s opening brief. This court denied the motion on October 6, 2010, and we accordingly deny Salinas Valley’s current request to dismiss Striley’s appeal.
Salinas Valley’s Demurrer
The superior court sustained without leave to amend Salinas Valley’s demurrer to each cause of action for failure to state sufficient facts and for uncertainty. On appeal, we understand Striley to be arguing that the amended complaint sufficiently states causes of action against Salinas Valley.
In connection with his appeal, on November 15, 2010, Striley filed a request for judicial notice and attached (1) a “CIVIL CASE COVER SHEET” that was apparently filed in the superior court and (2) other documents filed in the superior court that are already contained within the clerk’s transcript on appeal. We grant Striley’s request for judicial notice.
“When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. [Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).) However, we do not assume the truth of “ ‘ “contentions, deductions or conclusions of fact or law.” ’ ” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We also ignore “[e]rroneous or confusing labels attached by the inept pleader” and “determine whether the pleaded facts state a cause of action on any available legal theory.” (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908 (Saunders).)
“If the trial court has sustained the demur[r]er, we determine whether the complaint states facts sufficient to state a cause of action.” (Schifando, supra, 31 Cal.4th at p. 1081.) “We will affirm the court’s ruling if it is correct under any legal theory raised in the demurrer, whether the court relied on the theory or not. [Citation.]” (Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940, 946.) Further, “[w]hen a demurrer is sustained without leave to amend the [plaintiff] may advance on appeal a new legal theory why the allegations of the petition state a cause of action. [Citation.]” (20th Century Ins. Co. v. Quackenbush (1998) 64 Cal.App.4th 135, 139, fn. 3.)
“ ‘[I]f the pleadings contain “sufficient particularity and precision to acquaint the defendants with the nature, source and extent of [the] cause of action” the general demurrer should be overruled.’ [Citation.] ‘Even as against a special demurrer, a plaintiff is required only to “set forth in his complaint the essential facts of his case with reasonable precision and with particularity sufficiently specific to acquaint the defendant of the nature, source, and extent of his cause of action.” [Citations.] He need not particularize matters “presumptively within the knowledge of the demurring” defendant.’ [Citation.]” (County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119, 126.)
“If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]” (Schifando, supra, 31 Cal.4th at p. 1081.)
We generally understand Striley to be asserting on appeal that the allegations in his amended complaint concern “the treatment [he] suffered in the defendant’s care.” With this general background in mind, we turn to the allegations of his amended complaint.
First Cause of Action
In the first cause of action in the amended complaint, we understand Striley to be asserting a claim for negligence. More specifically, we understand Striley to be alleging that each of the defendants, including Salinas Valley and the Doe defendants, was practicing as a physician and surgeon, that the existence of the physician-patient relationship gave rise to the “physician’s duty to exercise that degree of skill and care deemed proper by other reasonable practitioners under similar circumstances, ” that gallbladder stones were diagnosed as the cause of Striley’s pain when in fact they were not the cause, that he suffered incisions in his body and the implantation of a drainage tube for three days as a result of the diagnosis, and that the diagnosis was negligently made. We also understand Striley’s negligence claim to be raising issues concerning the conditions under which he signed consent forms. Based on Striley’s briefing on appeal, we also understand him to be contending that he has stated a claim for battery.
Salinas Valley demurred to the first cause of action on the grounds that it failed to state sufficient facts to constitute a cause of action and that it was uncertain. (§ 430.10, subds. (e) & (f).) Regarding the demurrer for failure to state sufficient facts, Salinas Valley argued that Striley failed to sufficiently allege duty, breach, and causation. For example, Salinas Valley contended that the care issues alleged by Striley pertained to “physician care, ” but it (Salinas Valley) “is an entity, not a physician, ” and Striley failed to allege “how the entity could be held legally responsible for this care.” Further, to the extent Striley sought relief based upon “consent” issues, Salinas Valley contended that he failed to allege sufficient facts.
With respect to the demurrer for uncertainty, Salinas Valley generally argued that it could not “tell what causes of action are being alleged against it and what factual allegations support each cause of action.” Salinas Valley also argued that there were several “uncertain phrases and references” in the first cause of action that it did not “know how to interpret” and could not “ascertain in what way they relate to the claim.”
To plead a claim for negligence, the plaintiff must allege “ ‘a legal duty, breach thereof, proximate causation and resulting damage.’ ” (Stafford v. Shultz (1954) 42 Cal.2d 767, 774 (Stafford).) “ ‘[N]egligence may be pleaded in general terms, and that is as true of malpractice cases as it is of other types of negligence cases. Moreover, in a malpractice case, it is sufficient, at least as far as a general demurrer is concerned, to aver that certain treatment was negligently administered by defendant to plaintiff’s damage without alleging in what respect the treatment may have been deficient. [Citations.]’ ” (Ibid.; see also Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.)
In Stafford, the plaintiff alleged that he was under the defendants’ care and that the defendants were practicing as physicians and surgeons. The California Supreme Court determined the allegations were “sufficient to show the relationship of patient and physician between plaintiff and defendants and the legal duty flowing therefrom.” (Stafford, supra, 42 Cal.2d at p. 775.) The plaintiff further alleged “in detail the negligent acts and omissions of all defendants and that as a direct and proximate result thereof, he was injured and suffered damage thereby.” (Ibid.) The California Supreme Court explained that “[w]hile inartistically phrased and set forth, it appears clearly that the allegations of the complaint are sufficient to state a cause of action... against all defendants.” (Ibid.)
With respect to a claim based on lack of informed consent, “a physician has a duty to disclose to a patient ‘the available choices with respect to proposed therapy and... the dangers inherently and potentially involved in each.’ [Citation.]” (Spann v. Irwin Memorial Blood Centers (1995) 34 Cal.App.4th 644, 656 (Spann).) However, “a physician is liable only where the failure to disclose causes the injury. [Citations.] ‘There must be a causal relationship between the physician’s failure to inform and the injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given.’ [Citation.] Moreover, causation must be established by an objective test: that is, the plaintiff must show that reasonable ‘prudent person[s]’ in the patient’s position would decline the procedure if they knew all significant perils. [Citations.]” (Id. at p. 657, italics omitted.)
We determine that Striley fails to allege sufficient facts to state a cause of action against Salinas Valley and that the first cause of action is uncertain. We understand Striley’s allegations to pertain to the acts and/or omissions of physicians and surgeons involved in his care. However, it is apparent from Salinas Valley’s name that it is not a physician or surgeon, notwithstanding the general allegation in the amended form complaint that “[e]ach defendant is a natural person.” Striley fails to allege the relationship, if any, between Salinas Valley and the allegedly negligent physicians and surgeons, and he does not otherwise explain how the facts alleged in the amended complaint provide a basis for imposing liability on Salinas Valley. (See Mayers v. Litow (1957) 154 Cal.App.2d 413, 418 [hospital not liable for acts of doctor who was an independent contractor]; Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 (Perez) [under respondeat superior doctrine, employer may be vicariously liable for employee’s torts committed within scope of employment].)
Further, to the extent Striley is asserting a negligence claim based on a lack of informed consent, he fails to allege any facts concerning causation. Absent from the first cause of action are any allegations showing that had a reasonably prudent person in Striley’s position been informed of certain information, the person would not have consented to the treatment or procedure that Striley underwent. (See Spann, supra, 34 Cal.App.4th at p. 657.)
Moreover, although Striley does not explicitly allege in the first cause of action that a battery was committed against him, to the extent he is attempting to assert such a claim, we determine that he fails to sufficiently state a claim. “Battery is an offensive and intentional touching without the victim’s consent. [Citation.]” (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645 (Kaplan).) In the context of medical treatment, “a battery occurs if the physician performs a ‘substantially different treatment’ from that covered by the patient’s expressed consent. [Citations.]” (Id. at p. 646.) In the first cause of action, Striley makes references to consent forms, including “the signing of... consent forms, ” but does not allege to what extent, if any, the treatment performed on him was substantially different from that to which he apparently consented. Striley also alleges that he “was not given information as to the postoperative recovery treatment, ” but he does not state facts showing how the alleged failure to provide the information constituted or resulted in a battery.
Accordingly, we determine that the superior court properly sustained the demurrer by Salinas Valley to the first cause of action for failure to state sufficient facts and for uncertainty. (§ 430.10, subds. (e) & (f).)
Second Cause of Action
In the second cause of action in the amended complaint, we understand Striley to be attempting to state a claim for negligence, regarding diagnosis, treatment, and lack of informed consent, and a claim for battery. Salinas Valley demurred to this cause of action on the grounds that it failed to state sufficient facts to constitute a cause of action and that it was uncertain. (§ 430.10, subds. (e) & (f).)
The defects that we have identified with respect to Striley’s first cause of action also exist in the second cause of action. As to the negligence claim, Striley fails to allege facts showing a relationship, if any, between Salinas Valley and the allegedly negligent physicians and surgeons involved in his care, or otherwise allege sufficient facts establishing that Salinas Valley breached a duty owed to him. Although the second cause of action includes the statement that “[d]efendants employees insisted the gallbladder was gangrene and acute cholecyetitis and that the surgery had removed the organ, ” Striley does not allege whether these employees of defendants were the same individuals who he apparently claims negligently diagnosed him before the surgery, and he does not otherwise explain the legal significance of the conduct by “[d]efendants employees.” Further, with respect to a negligence claim based on lack of informed consent, Striley fails to allege sufficient facts and the pleading is uncertain regarding the issue of causation, that is, whether “reasonable ‘prudent person[s]’ in the patient’s position would decline the procedure if they knew all significant perils. [Citations.]” (Spann, supra, 34 Cal.App.4th at p. 657.) Lastly, with respect to a battery claim, Striley fails to allege any facts establishing that a “ ‘substantially different treatment’ ” was performed than that covered by his consent. (Kaplan, supra, 162 Cal.App.4th at p. 646.)
Therefore, we determine that the superior court properly sustained the demurrer by Salinas Valley to the second cause of action for failure to state sufficient facts and for uncertainty. (§ 430.10, subds. (e) & (f).)
Third Cause of Action
Regarding the third cause of action in the amended complaint, we understand Striley to be attempting to state a claim for negligence although, as we will explain, we determine that he may be able to sufficiently state a claim for battery upon being given leave to amend. Striley alleges in the third cause of action that defendant is a “health care provider[], ” the “nursing staff” heard his objections to “any IV transfusion of saline solution, ” “would not leave when [he] demanded them to get out, ” “forced” him to undergo the IV transfusion and “would not stop the transfusion, ” and that the IV transfusion was “continued... in massive dos[]ages... against [his] free will.” He also alleges that the nurses “knew by chart orders that [he] refused treatment given by IV transfusion.” According to Striley, a doctor “would not allow the IV treatment to be stopped when requested by” him. Further, “there was not an actual need of IV transfusion, ” as the “saline did not stop pain or treat any condition.”
Salinas Valley demurred to this cause of action on the grounds that it failed to state sufficient facts to constitute a cause of action and that it was uncertain. (§ 430.10, subds. (e) & (f).) Regarding the demurrer for failure to state sufficient facts, Salinas Valley argued that Striley failed to sufficiently allege duty, breach, causation, and damages. For example, regarding allegations concerning physician care, Salinas Valley contended that Striley did not explain how it might be responsible for a physician’s conduct. Salinas Valley further argued that there was no allegation that the care by the nursing staff was negligent or below the standard of care.
We determine that Striley’s third cause of action, although labeled as a cause of action for negligence, appears to state a claim for battery. (Saunders, supra, 224 Cal.App.3d at p. 908 [on appeal, issue is “whether the pleaded facts state a cause of action on any available legal theory” and erroneous labels are ignored].) Under the doctrine of respondeat superior, a nurse’s employer may be held vicariously liable for the nurse’s torts, including intentional torts, committed within the scope of employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296-297; Perez, supra, 41 Cal.3d at p. 967; Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 342.) As we stated above, “[b]attery is an offensive and intentional touching without the victim’s consent. [Citation.]” (Kaplan, supra, 162 Cal.App.4th at p. 645.) To establish a claim for civil battery, the plaintiff must also establish that the offensive touching caused injury, damage, loss, or harm. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.) In the medical context, a battery occurs if “ ‘substantially different treatment’ ” is performed than that covered by the patient’s expressed consent. (Kaplan, supra, 162 Cal.App.4th at p. 646.) In general, “a competent adult has the right to refuse medical treatment, even treatment necessary to sustain life.” (Conservatorship of Wendland (2001) 26 Cal.4th 519, 530.)
In the third cause of action, Striley refers to defendant Salinas Valley as a “health care provider[]” and asserts wrongdoing on the part of the “nursing staff.” From these allegations, it may reasonably be implied that the staff nurses are allegedly employees of Salinas Valley, in contrast to the allegations concerning the doctor, who might be an employee or an independent contractor. Further, the allegations reasonably give rise to the inference that the nurses intentionally and knowingly administered certain treatment to Striley despite his explicit objections that it not be administered to him. Striley also sufficiently alleges facts showing causation and damages where he has alleged, among other things, that a “massive overdoseage” of IV solution was inflicted upon him, that he was in a “distressed state by the method of treatment, ” and that Salinas Valley’s acts “caused the damage” to him. (See State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338 [in torts such as battery, “mental suffering will frequently constitute the principal element of damages”].) In sum, the allegations appear to state a claim for battery against Salinas Valley.
Salinas Valley argues that Striley’s amended complaint does not satisfy the standards for pleading a cause of action against a public entity and, on that basis, it fails to state a cause of action. Salinas Valley never made this argument in the superior court in connection with its demurrer to Striley’s amended complaint. Nevertheless, “[a] claim the complaint fails to state a cause of action is not waived by failing to raise it in a demurrer.” (Cohen v. Equitable Life Assurance Society (1987) 196 Cal.App.3d 669, 673; see § 430.80, subd. (a); Carman v. Alvord (1982) 31 Cal.3d 318, 323-324.)
In connection with its argument that Striley’s amended complaint is insufficient against a public entity, Salinas Valley has twice requested that this court take judicial notice of the fact that it is a public entity. We denied Salinas Valley’s first request “without prejudice to refiling the request with a sufficient showing.” In its most recent motion for judicial notice filed December 23, 2010, Salinas Valley provided a copy of the form that it filed with the California Secretary of State under Government Code section 53051. We take judicial notice of the document, and we assume for purposes of our discussion that Salinas Valley is a public entity.
Government Code section 53051 states: “(a) Within seventy (70) days after the date of commencement of its legal existence, the governing body of each public agency shall file with the Secretary of State on a form prescribed by the Secretary of State and also with the county clerk of each county in which the public agency maintains an office, a statement of the following facts: [¶] 1. The full, legal name of the public agency. [¶] 2. The official mailing address of the governing body of the public agency. [¶] 3. The name and residence or business address of each member of the governing body of the public agency. [¶] 4. The name, title, and residence or business address of the chairman, president, or other presiding officer, and clerk or secretary of the governing body of such public agency. [¶] (b) Within 10 days after any change in the facts required to be stated pursuant to subdivision (a), an amended statement containing the information required by subdivision (a) shall be filed as provided therein. The information submitted to the Secretary of State shall be on a form prescribed by the Secretary of State. [¶] (c) It shall be the duty of the Secretary of State and of the county clerk of each county to establish and maintain an indexed ‘Roster of Public Agencies, ’ to be so designated, which shall contain all information filed as required in subdivisions (a) and (b), which roster is hereby declared to be a public record.” “Public agency” in this context “means a district, public authority, public agency, and any other political subdivision or public corporation in the state, but does not include the state or a county, city and county, or city.” (Gov. Code, § 53050.) A “public entity” includes “the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” (Id., § 811.2.)
Turning to the substance of Salinas Valley’s argument, it contends that Striley has failed to allege the “facts and statutes under which vicarious liability might be imposed under the circumstances of this case” involving a public entity.
“[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ (Gov. Code, §§ 815, subd. (a), 815.6...), and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. [Citation.]... Since the duty of a governmental agency can only be created by statute or ‘enactment, ’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)
Government Code section 815, subdivision (a) states that “[e]xcept as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Government Code section 815.6 provides that “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Salinas Valley itself makes reference to Government Code section 815.2, which provides that “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would... have given rise to a cause of action against that employee or his personal representative, ” unless “the employee is immune from liability.” (Gov. Code, § 815.2, subds. (a) & (b).) In general, “public employees are liable for injuries caused by their acts and omissions to the same extent as private persons. (Gov. Code, § 820, subd. (a).)” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128.) Thus, vicarious liability may be a basis “for liability on the part of a public entity, and flows from the responsibility of such an entity for the acts of its employees under the principle of respondeat superior. [Citation.]” (Ibid.)
Government Code section 820, subdivision (a) provides that, “[e]xcept as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.”
As we have explained, the complaint appears to sufficiently state a claim for battery against Salinas Valley under the respondeat superior doctrine, based on the alleged wrongdoing of Salinas Valley’s staff nurses. Although Striley has not identified in his pleading a proper statutory basis for Salinas Valley’s liability as a public entity, even Salinas Valley appears to acknowledge the statutory basis possibly provided by Government Code section 815.2. “As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459; see also Schifando, supra, 31 Cal.4th at p. 1081.) Consequently, we determine that Striley should be given leave to amend the third cause of action to allege a proper statutory basis for Salinas Valley’s liability for battery.
Turning to Salinas Valley’s special demurrer for uncertainty to the third cause of action, we determine that it should have been overruled. Salinas Valley argued in the superior court that the third cause of action was uncertain as to a number of allegations in various paragraphs and that it did not know “how to interpret or respond to” the pleading. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. [Citations.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) In this case, although the amended complaint is not a model of pleading, as we have explained, it is sufficient to state at least a cause of action for battery. Any ambiguities as to other allegations in the cause of action may be clarified through discovery.
Accordingly, we determine that the demurrer by Salinas Valley to the third cause of action for failure to state sufficient facts (§ 430.10, subd. (e)) should have been sustained with leave to amend and that the demurrer for uncertainty (id., subd. (f)) should have been overruled. In making this determination, we do not foreclose the possibility that an amendment by Striley might be subject to further demurrer or other pleading challenge by Salinas Valley, nor do we express any view on the substantive merit of Striley’s claim.
Fourth Cause of Action
Regarding the fourth cause of action in the amended complaint, we understand Striley to be asserting on appeal that he has stated a claim for negligence or battery. Salinas Valley demurred to this cause of action on the grounds that it failed to state sufficient facts to constitute a cause of action and that it was uncertain. (§ 430.10, subds. (e) & (f).)
By way of the allegations in the fourth cause of action, we understand Striley to be attempting to assert the applicability of the doctrine of res ipsa loquitur. “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a presumption affecting the burden of producing evidence.’ (Evid. Code, § 646, subd. (b).) The presumption arises when the evidence satisfies three conditions: ‘ “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” ’ [Citations.] A presumption affecting the burden of producing evidence ‘require[s] the trier of fact to assume the existence of the presumed fact’ unless the defendant introduces evidence to the contrary. (Evid. Code, § 604; see also id., § 646, subd. (c).) The presumed fact, in this context, is that ‘a proximate cause of the occurrence was some negligent conduct on the part of the defendant....’ (Id., § 646, subd. (c)(1).) If the defendant introduces ‘evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, ’ the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence. (Id., § 646, subd. (c); see also id., § 604.)” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.)
In this case, even assuming the doctrine of res ipsa loquitur applies, its applicability does not relieve Striley of the obligation to sufficiently state a cause of action. In the fourth cause of action, Striley fails to allege sufficient facts to state a cause of action for negligence or battery against Salinas Valley, and his allegations are otherwise uncertain with respect to the elements of a claim for negligence or battery.
Therefore, we determine that the superior court properly sustained the demurrer by Salinas Valley to the fourth cause of action for failure to state sufficient facts and for uncertainty. (§ 430.10, subds. (e) & (f).)
Fifth and Sixth Causes of Action
Striley does not clearly articulate any error in the superior court’s order sustaining the demurrer to the fifth and sixth causes of action of the amended complaint for failure to state sufficient facts and for uncertainty. We therefore deem any issue concerning the ruling on those causes of action as abandoned. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.”].)
Denial of Leave to File Proposed Second Amended Complaint
The superior court sustained Salinas Valley’s demurrer to each cause of action in the amended complaint without leave to amend. We understand Striley to be asserting for the first time in his reply brief on appeal that he should have been allowed to file the proposed second amended complaint that he presented to the superior court on January 28, 2010, after he had already filed a notice of appeal. The proposed second amended Judicial Council form complaint contains four causes of action-three for an “Intentional Tort” and one for “General Negligence.”
“Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) “The California Supreme Court long ago expressed its hostility to the practice of raising new issues in an appellate reply brief.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) “ ‘Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.’ [Citation.]” (Ibid.) Here, Striley does not offer an explanation as to why he failed to raise the issue of leave to amend in his opening brief and instead waited until the reply brief.
However, even assuming Striley had good reason for waiting until the reply brief to raise the issue in this court, we determine that the superior court properly denied leave to file the proposed second amended complaint. Where leave to amend has been denied “we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]” (Schifando, supra, 31 Cal.4th at p. 1081.) Here, Striley fails to clearly articulate how his proposed second amended complaint states any cause of action against Salinas Valley. Accordingly, we conclude that the superior court did not abuse its discretion in denying him leave to file the proposed second amended complaint.
Other Issues
On appeal, Striley makes references to other issues, such as the superior court’s denial of his motion to compel discovery, but he fails to present a well-reasoned argument and relevant legal authority as to each issue.
An appellant must present argument supported by relevant legal authority as to each issue raised on appeal. “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]’ ” (People v. Stanley (1995) 10 Cal.4th 764, 793.)
A litigant is not exempt from compliance with these general rules of appellate practice where the litigant is acting without an attorney on appeal. “Under the law, a party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citations].” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Thus, a self-represented litigant is not entitled to lenient treatment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
Here, in view of Striley’s failure to articulate a well-reasoned argument supported by relevant legal authority as to other issues raised by him, we treat the issues as waived and pass them without consideration.
Lastly, Salinas Valley suggests that this court may reach the arguments that Salinas Valley raised in its motion to strike, which was filed concurrently with its demurrer to Striley’s amended complaint. The superior court, after sustaining the demurrer without leave to amend, determined that the motion to strike was moot. As we have concluded that Striley should be given leave to amend the third cause of action and we will remand the matter, the superior court may consider Salinas Valley’s motion to strike in the first instance.
IV. DISPOSITION
The judgment is reversed. The matter is remanded to the superior court with directions to modify the February 4, 2010 order to (1) overrule the demurrer for uncertainty to the third cause of action and (2) grant leave to amend that cause of action to allege a proper statutory basis for liability against Salinas Valley Memorial Health Care System. The parties are to bear their own costs on appeal.
WE CONCUR: MIHARA, J., duffy, J.