MICHAEL M. ANELLO, District Judge.
Columbus Allen Jr. ("Plaintiff"), currently incarcerated at California State Prison in Calipatria ("CSP-CAL") and proceeding in pro se, constructively filed this action on October 25, 2016.
Plaintiff alleges that Defendant was professionally negligent by failing to obtain Plaintiff's informed consent before administering a shot on September 10, 2015.
The following day, September 15, 2015, Plaintiff filed a patient-inmate health care appeal claiming "no informed consent." See id. at 104. California Correctional Health Care Services ("CCHCS") issued a first level appeal decision on October 16, 2015, and a second level appeal decision on December 7, 2015, finding that Defendant properly obtained Plaintiff's informed consent prior to administering the shot. Plaintiff exhausted the inmate appeals process when CCHCS denied his third and final appeal on March 25, 2016. The California Victims Compensation Board ("the Board") received Plaintiff's claim on March 10, 2016, and denied his claim on April 29, 2016. Plaintiff served Defendant with a notice of intent to sue on May 31, 2016.
Plaintiff filed this action on October 25, 2016, asserting six causes of action against Defendant: (1) battery, (2) a violation of his 8th Amendment rights against cruel and unusual punishment, (3) a deprivation of his constitutional right to due process, (4) a violation of California Civil Code Section 52.1, (5) negligence per se, and (6) professional negligence. See Complaint at 14. Defendant filed an Answer on November 17, 2017. See Doc. No. 48.
Defendant now moves for partial judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing that Plaintiff's professional negligence cause of action is time-barred by the applicable statute of limitations. Defendant contemporaneously requests that the Court take judicial notice of (1) Plaintiff's Complaint and its attached Exhibits labeled as Exhibit 1, and (2) the civil cover sheet to the Complaint, labeled as Exhibit 2. See Doc. No. 56-2. Plaintiff constructively filed an opposition to the motion on July 31, 2018. See Doc. No. 59. Plaintiff then filed an amended opposition on August 9, 2018, where he included an argument for tolling the applicable statute of limitations based on fraud, and attached Defendant's responses to Plaintiff's requests for admissions. See Doc. No. 60 ("Opposition"). Lastly, Defendant filed a reply in support of his motion on September 10, 2018. See Doc. No. 61 ("Reply"). In addition to the reply, Defendant filed a second request for judicial notice, asking the Court to take judicial notice of Plaintiff's sentence. See Doc. No. 61-1 at 3.
Federal Rule of Civil Procedure 12(c) states, "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). If the court must go beyond the pleadings to resolve an issue, the proceeding must be treated as a motion for summary judgment. Fed. R. Civ. P. 12(d); see also Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). There are two exceptions to this rule, a court may consider evidence beyond the pleadings when (1) it takes judicial notice under Federal Rule of Evidence 201, or (2) material is incorporated by reference to the complaint. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
The analysis under Rule 12(c) is substantially identical to an analysis under Rule 12(b)(6). Under both rules a court must decide whether, taking the facts alleged in the complaint as true, the plaintiff is entitled to a legal remedy. See Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012). The Court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). A court "may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss." Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). A motion for judgment on the pleadings should be granted "when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Fleming, 581 F.3d at 925.
Defendant requests that the Court take judicial notice of Plaintiff's Complaint and supporting Exhibits, attached to their request as Exhibit 1, and the civil cover sheet, attached as Exhibit 2. See Doc. No. 56-2 ("RJN 1") at 1. Additionally, in support of his reply brief, Defendant asks the Court to take judicial notice of Plaintiff's sentence per the California Department of Corrections and Rehabilitation ("CDCR") Inmate Locator, which is attached to their second request as Exhibit 1. See Doc. No. 61-1 ("RJN 2") at 1. Plaintiff does not oppose either request.
A court may take judicial notice of a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b); see also Khoja, 899 F.3d at 999; Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). However, a court cannot take judicial notice of disputed facts in public records. Id. Exhibits attached to the complaint are part of the complaint for all purposes, see Fed. R. Civ. P. 10(c); Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001), therefore, the Court does not need to take judicial notice of them.
With regard to Defendant's request that the Court take judicial notice of the Complaint, the Exhibits attached to the Complaint, and the civil cover sheet, these documents are already "part of the pleadings for all purposes," and the Court does not need to take further judicial notice of them. Fed. R. Civ. P. 10(c); Lee 250 F.3d at 688. Therefore, the Court
Turing to Defendant's request that the Court take judicial notice of Plaintiff's life sentence, courts have been reluctant to take judicial notice of documents supporting arguments in the reply brief because the non-moving party does not get a chance to respond. See Martinez v. Extra Space Storage, Inc., No. C 13-00319 WHA, 2013 U.S. Dist. LEXIS 105079, at *4 (N.D. Cal. July 26, 2013); Gutierrez v. Young Bae Chung, No. 1:12-cv-01854-LJO-GSA, 2013 U.S. Dist. LEXIS 24087, at *17 (E.D. Cal. Feb. 21, 2013); see also N.D. Cal. Civil L.R. 7-3 (stating if new evidence is raised in a reply brief, the opposing party gets time to file an objection to reply evidence). However, other courts have taken judicial notice of documents filed in support of arguments raised in the reply brief. See Ivie v. Kraft Foods Glob., Inc., No. C-12-02554-RMW, 2013 U.S. Dist. LEXIS 25615, at *10 (N.D. Cal. Feb. 25, 2013); Natomas Gardens Inv. Grp. Ltd. Liab. Co. v. Sinadinos, 2009 U.S. Dist. LEXIS 39907, at *27 n.7 (E.D. Cal. May 12, 2009). In the instant case, the Court
Additionally, in support of his claim for tolling based on fraud, Plaintiff attaches Defendant's responses to Plaintiff's request for admissions to his opposition. See Opposition at 6. Although Plaintiff does not explicitly request that the Court take judicial notice of the responses, construing a pro se prisoner's pleadings liberally, the Court might assume this is a request for judicial notice. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). In any event, the Court finds Plaintiff's reference to these responses irrelevant. As such, the Court declines to take judicial notice of the responses. See Shalaby v. Bernzomatic, 281 F.R.D. 565, 571 (S.D. Cal. 2012) (declining to take judicial notice of irrelevant material).
Defendant argues that Plaintiff's claim against him is time-barred based on California's statute of limitations for actions involving professional negligence against a health care provider, as set forth in California Code of Civil Procedure Section 340.5. In response, Plaintiff argues three alternative theories. First, Plaintiff contends that the statute of limitations is tolled by Title 42 of the United States Code Section 1997(e). Second, Plaintiff argues that the statute of limitations under Section 340.5 commenced at a later date due to his lack of informed consent to the procedure. Lastly, Plaintiff claims that he can prove Defendant was fraudulent, thereby tolling the Section 340.5 statute of limitations.
California Code of Civil Procedure Section 340.5 provides in pertinent part:
Cal. Civ. Proc. Code § 340.5.
Plaintiff has satisfied the three-year statute of limitations because he filed this action within three years after physical manifestation of the injury. However, under Section 340.5, both the one-year and the three-year limitations periods must be met.
Plaintiff's injury manifested on September 11, 2015, when Plaintiff became ill with an allegedly undisclosed side effect of the shot. See Warren, 57 Cal. App. 4th at 1201-2. At issue is when Plaintiff became aware of the negligent cause of the injury. Defendant argues that Plaintiff knew, or at least should have known, of the purported negligence on September 15, 2015, when Plaintiff claimed lack of informed consent on his first-level health care appeal form. Plaintiff responds that the statute of limitations commenced on December 9, 2015, when he received CCHCS's second level appeal decision, in which CCHCS confirmed that Defendant needed Plaintiff's informed consent before administering the shot.
While Plaintiff may not have discovered the legal theory of informed consent until he received the appeals decision on December 9, 2015, this is irrelevant to the commencement of the statute of limitations. See Graham v. Hansen, 128 Cal.App.3d 965, 972 (1982) (holding lack of knowledge of a legal theory of recovery is irrelevant as "[t]he statute of limitations is not tolled by belated discovery of legal theories, as distinguished from belated discovery of facts"). Rather, it begins when Plaintiff is alerted to the need for investigation of possible negligence — not when Plaintiff is able to confirm such negligence. See Gutierrez v. Mofid, 39 Cal.3d 892, 897 (1985) (holding when the patient's "`reasonably founded suspicions [have been aroused],' and [he] has actually `become alerted to the necessity for investigation and pursuit of [his] remedies' the one-year period for suit begins") (citing Sanchez v. S. Hoover Hosp., 18 Cal.3d 93, 102 (1976)).
Plaintiff may have suspected the negligent cause of his injury when he filed a health care service request form on September 11, 2015, where he described his symptoms and said "[he] thinks it is the shot." Complaint at 66. However by September 14, 2016, Plaintiff's "reasonably founded suspicions [were] aroused," Sanchez, 18 Cal. 3d at 102, because Nurse Ramirez told Plaintiff that the shot Defendant administered was a possible cause of Plaintiff's symptoms. Plaintiff confirmed his suspicions on September 15, 2015, when he filed an inmate heath care appeal, alleging lack of informed consent. Plaintiff's appeal indicates he was certainly "alerted to the necessity for investigation," as he specifically stated that he was investigating Defendant's obligations by filing the appeal. See Opposition at 2, 4.
As explained above, the one-year statute of limitations period in which to bring a professional negligence claim commences when the injury physically manifests, and the plaintiff is aware, or should be aware, of its negligent cause. See Rose 207 Cal. App. 3d at 768. In this case, the pleadings establish that Plaintiff's injury manifested on September 11, 2015, and that he should have been aware of the negligent cause of the injury by September 15, 2015. Therefore, the one-year statute of limitations expired on September 15, 2016. Plaintiff filed this action on October 25, 2016, hence, the action is time-barred unless the limitations period was sufficiently tolled.
Pursuant to California Code of Civil Procedure Section 364, "[n]o action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action." Cal. Civ. Proc. Code § 364(a). Section 364(d) provides that if a plaintiff serves the notice of intent to sue within the last 90 days of the one year statute of limitations under 340.5, then the statute of limitations is tolled for ninety days. Id. § 364(d); see also Derderian v. Dietrick, 56 Cal.App.4th 892, 897-898 (1997).
Defendant contends that the statute of limitations is not tolled by Section 364 because Plaintiff served his noticed of intent to sue more than 90 days before the statute of limitations expired. Plaintiff served Defendant with a notice of intent to sue on May 31, 2016. As explained above, the statute of limitations expired on September 15, 2016; 90 days prior would have been June 17, 2016. Because the notice of intent to sue was not filed after June 17, 2016, within the last 90 days before the expiration of the statute of limitations, Section 364(d) does not toll the statute of limitations.
Next, Defendant reasons that California Code of Civil Procedure Section 352.1 does not toll the statute of limitations because Plaintiff is serving a life sentence. See Reply at 3. Section 352.1 provides,
Cal. Civ. Proc. Code § 352.1(a); see Belton v. Bowers Ambulance Serv., 20 Cal.4th 928, 934 (1999). Courts have interpreted Section 352.1 to exclude prisoners serving life sentences without the possibility of parole from receiving the benefit of tolling, while prisoners serving life sentences with the possibility of parole are entitled to tolling.
Finally, Plaintiff argues that "tolling" is warranted under Title 42 of United States Code Section 1997(e) because he administratively exhausted his claims.
In sum, Plaintiff's cause of action for professional negligence accrued on September 15, 2015. Therefore, Plaintiff needed to file suit by September 15, 2016. See Cal. Civ. Proc. Code § 340.5. Plaintiff constructively filed his Complaint on October 25, 2016. The statute of limitations is not tolled by Code of Civil Procedure Section 364 because Plaintiff filed his notice before the last 90 days of the expiration of the statute of limitations. The statute of limitations is not tolled by Code of Civil Procedure Section 352.1, because Plaintiff is serving a life sentence without the possibility of parole. As a result, Plaintiff's state law claim for professional negligence is time-barred and therefore subject to dismissal.
Based on the foregoing, the Court
