Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCV040474. Ernest J. LiCalsi, Judge.
Law Offices of Frank M. Ennix and Frank M. Ennix for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Steven M. Gevercer and James W. Walter, Deputy Attorneys General, for Defendant and Respondent.
OPINION
POOCHIGIAN, J.
INTRODUCTION
Appellant inmate appeals from a judgment on the pleadings (Code Civ. Proc., § 438, subd. (c)(2)(A)) in a personal injury action arising in a wood shop class in a state correctional facility.
STATEMENT OF THE CASE
On March 27, 2008, appellant Tamika Thomas filed a verified complaint for personal injury in Madera Superior Court. Appellant named the State of California as defendant; alleged causes of action for premises liability, negligence of a public employee, and respondeat superior (Gov. Code, §§ 815.2, 820, subd. (a)); and prayed for compensatory and punitive damages according to proof.
On September 12, 2008, respondent filed an answer generally denying the material allegations of the complaint (Code Civ. Proc., § 431.30) and setting forth 18 affirmative defenses.
On April 9, 2009, respondent filed a motion for judgment on the pleadings (Code Civ. Proc., § 438, subd. (c)(1)(B)(i), (ii)), based upon the statutory grounds that the superior court did not have jurisdiction of the claim and the complaint did not state facts sufficient to constitute a cause of action against respondent, and on nonstatutory grounds involving the court’s inherent power to control litigation.
On April 20, 2009, appellant filed an ex parte application for order to amend her complaint to add an individual public employee as a party defendant (Code Civ. Proc., § 473, subd. (a)). On May 4, 2009, appellant filed a memorandum of points and authorities in support of that application. On that same date, appellant filed points and authorities in opposition to respondent’s motion for judgment on the pleadings.
On May 5, 2009, respondent filed written opposition to appellant’s application to amend the complaint and a reply to appellant’s opposition to the motion for judgment on the pleadings.
On May 11, 2009, the court conducted a contested hearing on the application to amend the complaint and the motion for judgment on the pleadings. The court denied the application to amend and granted the motion for judgment on the pleadings.
On May 22, 2009, the court filed a formal order granting respondent’s motion for judgment on the pleadings. On the same date, the court filed a separate formal judgment in a civil case in favor of respondent.
An order on a motion for judgment on the pleadings is not appealable. If the motion is granted, the appeal should be taken from the judgment itself, as appellant did here. (1 Eisenberg et al, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) § 2:239, p. 2-116, citing Campbell v. Jewish Com. for P. Service (1954) 125 Cal.App.2d 771, 773.)
On July 10, 2009, appellant filed a notice of appeal.
On July 17, 2009, appellant filed an amended notice of appeal from the order granting respondent’s motion for judgment on the pleadings and the separate judgment in favor of respondent.
We affirm.
STATEMENT OF FACTS
In 2006, appellant Tamika Thomas was incarcerated in Valley State Prison for Women (VSP) in Chowchilla, California. On the morning of December 1, 2006, appellant was participating in VSP’s vocational cabinet making program. During one vocational class session, appellant accidentally lacerated one finger and severed two other fingers on her left hand while she used a table saw. The classroom had four table saws. Appellant alleged that instructor L. Williams directed her to use a table saw that did not have a blade guard.
DISCUSSION
I.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY GRANTING THE MOTION FOR JUDGMENT ON THE PLEADINGS
Appellant contends the trial court abused its discretion by granting respondent’s motion for judgment on the pleadings.
Code of Civil Procedure section 438 provides that a defendant may move for, or the trial court may grant on its own motion, judgment on the pleadings if the trial court does not have jurisdiction over the subject matter of the cause of action or the complaint does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(i), (ii) and (c)(3)(B)(i), (ii).) The grounds for the motion must appear on the face of the pleading or from matters of which the trial court may take judicial notice. (Id., subd. (d).) A defendant may file a motion for judgment on the pleadings only after it has filed its answer. (Id., subd. (f)(2).) A motion may be granted with or without leave to amend. (Id., subd. (h)(1).)
A motion for judgment on the pleadings, therefore, is equivalent to a demurrer. (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672 (Kapsimallis).) A motion for judgment on the pleadings tests the sufficiency of the complaint to state a cause of action. (Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1337.) The trial court is required to accept as true all properly pleaded facts and to give those facts a liberal construction. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516 (Gerawan); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Contentions, deductions, or conclusions of fact or law are not accepted as true. (Ibid.) The trial court also may consider facts of which judicial notice may be taken. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1401 (Mendoza).) The trial court may not consider any other extrinsic evidence. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063.)
The motion should be denied if material factual issues exist. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) The motion should be granted only where the plaintiff cannot, as a matter of law, prevail on the merits of the action. (Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146, 1155.) The trial court has discretion in determining whether to grant leave to amend, although leave to amend should be granted whenever there is a reasonable possibility the defect in the complaint may be cured. (Mendoza, supra, 140 Cal.App.4th at p. 1402; Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497, 506.)
We review the trial court’s ruling on a motion for judgment on the pleadings de novo. (Kapsimallis, supra, 104 Cal.App.4th at p. 672.) We do not consider whether the plaintiff will ultimately be able to prove his or her claims. (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) When the issue is whether the plaintiff should have been granted leave to amend, it is the plaintiff’s burden to show the trial court abused its discretion. (Mendoza, supra, 140 Cal.App.4th at p. 1402.)
In the instant case, appellant alleged causes of action for premises liability, i.e., dangerous condition of public property, negligence, and negligence based on the doctrine of respondeat superior. Each cause of action set forth similar factual allegations, such as these taken from the second cause of action for negligence:
Although appellant’s complaint refers to respondeat superior as a cause of action, respondeat superior is more correctly denominated as a doctrine or theory of liability. Under the doctrine of respondeat superior, an employer may be held vicariously liable for an employee’s torts committed within the scope of employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) This doctrine is justified as “‘a rule of policy, a deliberate allocation of a risk.’” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959.) The theory is that an enterprise should not be able to disclaim responsibility for injuries occurring in the course of its characteristic activities. (Mary M. v. City of Los Angeles, supra, at p. 208.) Rather, such losses must be looked upon as a required cost of doing business. (Hinman v. Westinghouse Elec. Co., supra, at pp. 959-960.) Accordingly, ascertaining whether the risk involved was typical or broadly incidental to the enterprise undertaken by the employer determines the scope of employment. (Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1607.) Government Code section 815.2 expressly makes the doctrine of respondeat superior applicable to public employers. (Mary M. v. City of Los Angeles, supra, at p. 209.) “A public entity, as the employer, is generally liable for the torts of an employee committed within the scope of employment if the employee is liable. [Citations.]” (Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1157.)
“Plaintiff herein asserts that on or about 12/1/06 she was incarcerated in Valley State Prison For Women, Chowchil[l]a, CA. and still further, Plaintiff herein avers that at approximately 10:50 am on that date she was working on an assigned project in the Vocational Cabinet Making Shop under the supervision of Public Employee/Vocational Instructor L. Williams, by whom Plaintiff had been directed to use a saw that didnot [sic] have a safety guard.
“(There were four Table Saws at the shop, three of which had guards, and one which did not) Plaintiff initially objected when L. Williams directed her to use the saw without the guard, but shortly thereafter she did as she had been told and started cutting wood with the Table Saw that did not have a guard, when she accidentally lacerated one and/or severed two fingers on her left hand.
“At that point, the Vocational Cabinet Making Shop and/or unit had been immediately shut down and the guard, which had been off the saw (and stored over in a corner of the shop) for about six months, had been put back in [its] proper place on the saw.”
In California, there is no common law tort liability for public entities. Such liability is wholly statutory. (McCarty v. Department of Transportation (2008) 164 Cal.App.4th 955, 975.) Adopted by the Legislature as title 1, division 3.6 of the Government Code, the California Tort Claims Act (Gov. Code, § 810 et seq.) essentially abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal Constitution. (Allyson v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1313.) The intent of the California Tort Claims Act is not to expand the right of plaintiffs in suits against governmental entities. Rather, the intent is to confine potential governmental liability to rigidly delineated circumstances. (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 688.) In plain terms, the California Tort Claims Act provides that a public entity is not liable for an injury arising from an act or omission except as provided by statute. (Gov. Code, § 815, subd. (a); Shamsian v. Department of Conservation (2006) 136 Cal.App.4th 621, 632.)
The causes of action in the instant case are predicated on provisions of the California Tort Claims Act. The applicable immunity is found at Government Code section 844.6, which states:
“(a) Notwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code, a public entity is not liable for:
“(1) An injury proximately caused by any prisoner.
“(2) An injury to any prisoner.
“(b) Nothing in this section affects the liability of a public entity under Article 1 (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code.
“(c) Except for an injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under Chapter 2 (commencing with Section 830) of this part.
“(d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission. The public entity may but is not required to pay any judgment, compromise or settlement, or may but is not required to indemnify any public employee, in any case where the public entity is immune from liability under this section; except that the public entity shall pay, as provided in Article 4 (commencing with Section 825) of Chapter 1 of this part, any judgment based on a claim against a public employee who is lawfully engaged in the practice of one of the healing arts under any law of this state for malpractice arising from an act or omission in the scope of his employment, and shall pay any compromise or settlement of a claim or action, based on such malpractice, to which the public entity has agreed.”
Governmental immunity statutes are intended to confine potential governmental liability to delineated circumstances. Statutes granting such immunity should not be so narrowly interpreted as to expose the government to potential liability that the Legislature intended to preclude. (Reed v. County of Santa Cruz (1995) 37 Cal.App.4th 1274, 1277.) Appellant’s verified complaint named only the State of California as a party defendant and alleged that she was incarcerated at VSP at the time of her injury. Thus, as respondent points out, appellant’s causes of action are barred by Government Code section 844.6.
Appellant nonetheless contends Government Code section 815.2 constitutes an exception to the immunity set forth in section 844.6. Section 815.2 states:
“(a) 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, apart from this section, have given rise to a cause of action against that employee or his personal representative.
“(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
In California, a public entity is not liable for tortious injury unless the liability is imposed by statute. (Gov. Code, § 815; Chester v. State of California (1994) 21 Cal.App.4th 1002, 1004.) The immunity provisions of the California Tort Claims Act (Gov. Code, § 810 et. seq.) generally prevail over liabilities established by other statutes. Sovereign immunity is the rule in California. (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 92, abrogated on another point in Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1138-1139.) Governmental liability is limited to exceptions specifically set out by statute. Thus, the general rule is that a public entity is not liable unless a statute imposes liability. Government Code section 815.2, subdivision (a) is a general statute that provides that a public entity is liable if its employee is liable. However, Government Code section 844.6, subdivision (a)(2) specifically provides that a public entity is not liable for an injury to any prisoner. Particular expressions qualify those that are general (Civ. Code, § 3534), and a specific statute will prevail over a general statute when both statutes deal with the same subject and are inconsistent (see Code Civ. Proc., § 1859; People v. Price (1991)1 Cal.4th 324, 385).
Government Code section 844.6 does not reference section 815.2 as an exception to the rule of immunity for a public entity. Therefore, the State of California, as a public entity, is immune from liability for appellant’s causes of action, and judgment on the pleadings was properly granted. (Wright v. State of California (2004) 122 Cal.App.4th 659, 671-672 [State of California and Department of Corrections held immune from liability for prisoner’s causes of action for intentional infliction of emotional distress and negligence arising from alleged medical malpractice and failure to furnish medical care].)
The trial court did not commit reversible error by granting the motion for judgment on the pleadings.
II.
THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO GRANT APPELLANT LEAVE TO FILE A FIRST AMENDED COMPLAINT
Appellant contends the trial court violated the “‘Modern’ Doctrine of the Rules for Joinder” and abused its discretion by denying her leave to amend the complaint to name VSP instructor/supervisor L. Williams as a party defendant.
According to appellant, the “‘Modern’ Doctrine” consists of “decisional case law authority pursuant to which it is permissible to join a party after the expiration of the statute of limitations.” Code of Civil Procedure section 389 mandates that, whenever feasible, the persons materially interested in the subject of an action should be joined as parties so that they may be heard and the court may render a complete disposition. Subdivision (a) of section 389 defines the persons who ought to be joined if possible, sometimes referred to as “necessary” parties. A determination that the persons are necessary parties is the predicate for the determination whether they are indispensable parties under subdivision (b) of section 389. (Deltakeeper v. Oakdale Irrigation Dist. (2001) 94 Cal.App.4th 1092, 1100.)
She specifically contends California allows great liberality in the amendment of pleadings, especially when the only change is a substitution of parties without alteration of the substantive grounds of the suit. She argues verbatim:
“In the matter at bar, Valley State Prison Instructor/Supervisor L. Williams was the only individual employee of the State identified in the Plaintiff’s complaint as the State employee by whose ‘culpable’ conduct Plaintiff had been injured.
“Plaintiff Thomas’s original complaint DID NOT, however, make the allegations necessary to include L. Williams as a party defendant in the instant action. Plaintiff Thomas subsequently applied for leave of court to file a First Amended Complaint after the applicable statute of limitations had run as to any individual Plaintiff’s [sic] had sought to [sic] permission to amend her complaint and name as a party defendant.
“Plaintiff herein asserts that under the ‘modern’ doctrine (For Joinder) developed by the relevant decisional case law rulings made by the California State Supreme Court and/or Courts of Appeal, her Application For Leave to Amend her Original Complaint would have been granted.
“Plaintiff/Appellant Thomas herein asserts that L. Williams was the only public employee of the State of California that was identified personally in Plaintiff’s Original Complaint, and still further, he was the only public [employee] whose actions, and/or failures to act were believed to be, and/or were described as culpable with regard to the injury sustained by Plaintiff/Appellant Thomas on or about 12-6-2007.”
Appellant conceded in her points and authorities in support of ex parte application for leave to file a first amended complaint:
“Although the culpable State employee/supervisor was identified in the charging allegations of the complaint he was not named individually, as a party defendant, in the complaint by which the instant action was commenced.
“Plaintiff subsequently filed an application by which she has sought leave of court to add the subject individual as a party defendant in the instant action, her reliance upon CCP §§ 473 [amendments permitted by court] et seq., and/or CCP §§ 474 [defendant designated by fictitious name] was misplaced, in that since the identity of the culpable state employee and/or supervisor was known a the time at which Plaintiff[’s] original complaint was filed, he cannot properly be substituted into the instant action as a Doe Defendant.”
Generally, an amended complaint may be filed without leave of court only before responsive pleadings are filed. (Code Civ. Proc., § 472.) After responsive pleadings are filed, an amendment to a complaint--including an amendment to add a defendant--requires leave of court. If the requirements of Code of Civil Procedure section 474 are satisfied, the filing of an amended complaint substituting a new defendant for a fictitious Doe defendant is deemed filed as of the date the original complaint was filed. For the relation-back doctrine of Code of Civil Procedure section 474 to apply, the plaintiff must have been genuinely ignorant of the new defendant’s identity at the time he or she filed the original complaint. If the identity-ignorance requirement of Code of Civil Procedure section 474 is not met, a new defendant may not be added after the statute of limitations has expired. This is true even if the new defendant cannot establish prejudice from the delay. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 175-177.)
As respondent points out, appellant was not ignorant of the identity of L. Williams at the time she filed her original complaint and therefore she was prohibited from adding a new party after the statute of limitations had run.
In the trial court, appellant asserted the doctrine of equitable tolling of the statute of limitations. The equitable tolling of the statute of limitations is a judicially created, nonstatutory doctrine. The doctrine prevents unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations, i.e., timely notice to a defendant of the plaintiff’s claims, has been satisfied. The doctrine generally applies when an injured person has several legal remedies and reasonably and in good faith pursues one of those remedies. The doctrine may apply where a first action, embarked upon in good faith, is found to be defective for some reason. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99-100.) “[T]he three elements necessary to establish the doctrine of equitable tolling are (1) timely notice to the defendant, (2) lack of prejudice to the defendant, and (3) reasonable and good faith conduct on the part of the plaintiff.” (Garabedian v. Skochko (1991) 232 Cal.App.3d 836, 846.) Here, as respondent points out: “L. Williams, the proposed new defendant, would be substantially prejudiced by allowing [appellant] to amend her complaint to name him several years after the incident occurred.”
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P. J., DAWSON, J.
A complaint or cross-complaint shall state the names, if known to the pleader, of any persons described in paragraph (1) or (2) of subdivision (a) who are not joined and the reasons why they are not joined. (Code Civ. Proc, § 389, subd. (c).) Paragraph (1) of subdivision (a) refers to a person in whose absence complete relief cannot be accorded among those already parties. Paragraph (2) of subdivision (a) refers to a person who claims an interest in the action and is so situated that disposition of the action in his or her absence may impair or impede the person’s ability to protect that interest or leave any of the persons already parties subject to a substantial risk of incurring inconsistent obligations by reason of the claimed interest. (Code Civ. Proc., § 389, subd. (a).) In the instant case, appellant was aware of the identity of L. Williams but did not name him as a defendant or state his name and explain why he was not joined as a party (Code Civ. Proc., § 389, subd. (c)).