Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC-09-485543
Pollak, J.
Plaintiff Mario Patrick Katona, appearing in propria persona, appeals from a judgment entered in favor of defendant City and County of San Francisco (the city) on his complaint for damages arising out of injuries Katona suffered while he was an inpatient at the city’s psychiatric facility. The city obtained judgment on the pleadings on the ground that as a public entity it is immune from liability for Katona’s injuries. Katona failed to properly oppose the motion in the trial court. On appeal, he argues, in addition to other things, that he should be granted leave to amend to allege an exception to the city’s statutory immunity. We shall affirm.
Factual and Procedural Background
In February 2009, Katona filed a complaint for personal injury against the city. The complaint alleges that Katona suffered an “injury to [his] right shoulder due to negligence and excessive force used by staff in an incident of restraint.” The complaint alleges further that on February 21, 2008, he was committed to the city’s psychiatric facility for a 72-hour hold at the request of his outpatient doctor. After being sedated, he was placed in a seclusion room where he fell asleep. When he awoke in the middle of the night, he was startled to find himself in the seclusion room and asked to be moved to a room with more privacy. When his request was denied, he “grew upset” and was ultimately placed in restraints in the seclusion room. Katona complained to a staff member that the restraint placed on his right wrist was “causing extreme pain in [his] right shoulder.” Despite his pleas, the restraint on Katona’s right wrist was not adjusted. After being sedated a second time, Katona slept for an additional two to four hours. He “awoke screaming in agony after [his] right shoulder had been bearing the burden of being stretched in an extremely painful position for several hours.” A staff member responded to his screams but denied his request to have the restraints adjusted.
On November 24, 2009, the city moved for judgment on the pleadings on the ground that it was immune from liability for Katona’s alleged injury under Government Code section 854.8, subdivision (a)(2), which provides that a public entity is not liable for “[a]n injury to an inpatient of a mental institution.” Katona did not file a written opposition to the motion and the court issued a tentative decision granting the motion based on his failure to oppose it. When Katona appeared at the hearing the following day, the court informed him that it was too late to oppose the motion. Katona explained that he misunderstood the court’s procedure and thought both parties were supposed to appear at the hearing to argue the motion. He added, “I met with the deputy city attorney... [at the case management hearing] on December 4th.... [H]e gave me the piece of paper that specified December 30, 9:30 a.m.... and he said he was going to be here today to basically try to have the case thrown out, and I told him that I would be there to ask... for more time.” Katona’s advisory attorney requested a 30-day continuance to allow Katona time to file a written opposition. The court denied the request for continuance and granted the motion for judgment on the pleadings. Thereafter, the court issued a written order granting defendant’s motion without leave to amend. The order states that “[t]he court considered the moving papers and the papers on file with the court. No opposition papers were filed and no arguments were heard.” Katona filed a timely notice of appeal.
All statutory references are to the Government Code unless otherwise noted.
Discussion
“A defendant’s motion for judgment on the pleadings is equivalent to a belated general demurrer to a plaintiff’s complaint and is governed by the same standard of appellate review that applies to such a demurrer. [Citation.] On a plaintiff’s appeal from a judgment on the pleadings (as is the case here), the appellate court thus accepts as true all properly pleaded factual allegations (but not contentions, deductions or conclusions of fact or law) in the challenged complaint and gives them a liberal construction.” (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127.) In evaluating the propriety of judgment on the pleadings, our review is de novo, and we independently determine whether the complaint stated facts sufficient to constitute a cause of action. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.) We review the trial court’s denial of leave to amend for an abuse of discretion. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 602.)
Ordinarily, a party’s failure to oppose a motion at the trial court would constitute waiver of appellate review. A special rule, however, applies to demurrers. “ ‘A trial court’s order sustaining a demurrer without leave to amend is reviewable for abuse of discretion “even though no request to amend [the] pleading was made.” [Citation.] While it is the plaintiff’s burden to show “that the trial court abused its discretion” and “show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading” [citation], a plaintiff can make “such a showing... for the first time to the reviewing court.” ’ ” (Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.) Accordingly, we consider Katona’s arguments on the merits.
Katona expends considerable effort arguing that the judgment should be reversed because the city’s alleged misrepresentations are at fault for his failure to properly oppose the motion for judgment on the pleadings. Contrary to Katona’s suggestion, the statements allegedly made by the deputy city attorney at the case management conference do not appear to have been designed to mislead Katona. Moreover, Katona is responsible for complying with the applicable court rules and opposing counsel had no obligation to advise him in that regard. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [“as is the case with attorneys, pro. per. litigants must follow correct rules of procedure”].) In any event, we need not resolve this argument, or Katona’s additional argument that he should have been granted a continuance to oppose the motion, because as discussed post, further amendment would have been futile. Any potential error with regard to these arguments was not prejudicial.
Katona argues that the city was not entitled to judgment on the pleadings because his complaint properly alleges a cause of action for negligence. Section 854.8, subdivision (a)(2), however, provides immunity for the city against direct claims of negligence. (County of Los Angeles v. Superior Court (1965) 62 Cal.2d 839, 844.) The statute “embodies an absolute, broad immunity prevailing over all other provisions of the Tort Claims Act.” (Guess v. State of California (1979) 96 Cal.App.3d 111, 119; see also Guzman v. County of Los Angeles (1991) 234 Cal.App.3d 1343, 1349 [noting that section 854.8 is “to be construed broadly”].) Accordingly, judgment on the pleadings was proper even assuming Katona’s complaint alleged an otherwise legally sufficient cause of action for negligence.
Katona also argues that he should be granted leave to amend to allege facts demonstrating that his claims fall within the exception to government immunity found in section 855. Section 855, subdivision (a) provides, “A public entity that operates or maintains any medical facility that is subject to regulation by the State Department of Health Services, Social Services, Developmental Services, or Mental Health is liable for injury proximately caused by the failure of the public entity to provide adequate or sufficient equipment, personnel or facilities required by any statute or any regulation of the State Department of Health Services, Social Services, Developmental Services, or Mental Health prescribing minimum standards for equipment, personnel or facilities, unless the public entity establishes that it exercised reasonable diligence to comply with the applicable statute or regulation.” In Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 307, the court emphasized that this exception to immunity should be narrowly construed. Section 855 “applies only to violations of those statutes and regulations that ‘prescrib[e] minimum standards for equipment, personnel or facilities.’ ” (Ibid.) The court added, “It is clear... that Government Code section 855 was not intended to interfere with the exercise of a public medical facility’s discretion to make decisions as to the standards and levels of equipment, personnel and facilities to be provided, or to impose liability when the public medical facility’s exercise of discretion resulted in injury. Instead, Government Code section 855 was intended to impose liability only when the statute or regulation sets forth a specific standard that gives the public medical facility clear notice as to the minimum requirements with which it must comply.” (Id. at p. 308.)
On appeal, Katona argues that his injury was proximately caused by the city’s violation of a number of statutes and regulations. However, none of these statutory or regulatory provisions provide a basis for an exception to governmental immunity under section 855. First, Katona argues that the city violated California Code of Regulations, title 22, section 70577, which provides that restraint of patients “shall be used only when alternative methods are not sufficient to protect the patient or others from injury” and that “[p]atients in restraint by seclusion or mechanical means shall be observed at intervals not greater than 15 minutes.” (Cal. Admin. Code, tit. 22, § 70577, subds. (j)(1), (j)(3).) Subdivision (k)(1)(I), of section 70577 provides further that “[a]ll patients shall have rights which include, but are not limited to, the following:... All other rights as provided by law or regulations.” With the exception of the requirement that patients in restraints be observed every 15 minutes, this regulation, as quoted above, does not provide a “specific minimum standard” sufficient to put the city on “notice as to the minimum requirements with which it must comply.” (Lockhart v. County of Los Angeles, supra, 155 Cal.App.4th at p. 308.) Nor does this regulation relate to the provision of “adequate or sufficient equipment, personnel or facilities” as required by section 855.
Katona also cites Welfare and Institutions Code section 5325.1, subdivisions (b) and (c), which provide, “It is the intent of the legislature that persons with mental illness shall have rights including, but not limited to, the following: [¶] (a) A right to treatment services which promote the potential of the person to function independently. Treatment should be provided in ways that are least restrictive of the personal liberty of the individual. [¶] (b) A right to dignity, privacy, and humane care.” This statute also may not form the basis for an exception to immunity because it does not provide a detailed minimum standard for the provision of adequate equipment, personnel or facilities.
Finally, Katona relies on Health and Safety Code section 1180.4, which provides in relevant part, “(f) A facility described in subdivision (a) of Section 1180.2 or subdivision (a) of Section 1180.3 shall avoid the deliberate use of prone containment techniques whenever possible, utilizing the best practices in early intervention techniques, such as deescalation. If prone containment techniques are used in an emergency situation, a staff member shall observe the person for any signs of physical duress throughout the use of prone containment. Whenever possible, the staff member monitoring the person shall not be involved in restraining the person. [¶]... [¶] (h) A facility described in subdivision (a) of Section 1180.2 or subdivision (a) of Section 1180.3 may not use physical restraint or containment as an extended procedure. [¶] (i) A facility described in subdivision (a) of Section 1180.2 or subdivision (a) of Section 1180.3 shall keep under constant, face-to-face human observation a person who is in seclusion and in any type of behavioral restraint at the same time. Observation by means of video camera may be utilized only in facilities that are already permitted to use video monitoring under federal regulations specific to that facility. [¶] (j) A facility described in subdivision (a) of Section 1180.2 or subdivision (a) of Section 1180.3 shall afford to persons who are restrained the least restrictive alternative and the maximum freedom of movement, while ensuring the physical safety of the person and others, and shall use the least number of restraint points. [¶] (k) A person in a facility described in subdivision (a) of Section 1180.2 and subdivision (a) of Section 1180.3 has the right to be free from the use of seclusion and behavioral restraints of any form imposed as a means of coercion, discipline, convenience, or retaliation by staff. This right includes, but is not limited to, the right to be free from the use of a drug used in order to control behavior or to restrict the person's freedom of movement, if that drug is not a standard treatment for the person's medical or psychiatric condition.” Again, this statute does not provide a detailed minimum standard for the provision of adequate equipment, personnel or facilities. In addition, as the city points out, the statute is not applicable because the psychiatric facility at which Katona was injured is not a “facility described in subdivision (a) of Section 1180.2 or subdivision (a) of Section 1180.3.”
In light of Katona’s inability to allege an exception to the immunity provided in section 854.8, the court properly granted the city’s motion for judgment on the pleadings without leave to amend.
Katona has filed four requests for judicial notice. On June 9, 2010, he requested judicial notice of his medical records as well as certain discovery responses and other court documents. On September 17, 2010, he requested judicial notice of additional medical records. On December 1 and 3, 2010, he requested judicial notice of his psychiatric diagnosis and related documents. Katona’s request for judicial notice are denied on the ground of relevancy.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.