Blais v.
Filed 6/25/12 Blais v. Riverside County Regional Medical Center CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
MICHAEL BLAIS,
Plaintiff
and Appellant,
v.
RIVERSIDE COUNTY
REGIONAL MEDICAL
CENTER,
Defendant
and Respondent.
E053507
(Super.Ct.No.
RIC451384)
OPINION
APPEAL
from the Superior Court
of
County. John W.
Vineyard, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Dismissed.
Veatch
Carlson, Christopher R. Baker and Gina Genatempo for Plaintiff and Appellant.
Rinos
& Martin, Dimitrios C. Rinos, Linda B. Martin and Adrianna C. Paige, for
Defendant and Respondent.
Plaintiff
and appellant Michael Blais appeals after the trial court granted summary
judgment in favor of defendant and respondent Riverside County Regional Medical
Center (Center) on plaintiff’s personal injury action on the grounds that
plaintiff failed to comply with the Tort Claims Act (Gov.Code,
I. PROCEDURAL BACKGROUND AND FACTS
Plaintiff
suffered a work-related injury
in 1996, which resulted in “problems with his neck and . . . a
gradual onset of pain in his lower back and left leg.†In 2003 plaintiff was described as a
“60-year-old male with a long history of heavy smoking and walked with a
cane.†He had already undergone two
prior cervical spine
surgeries. Plaintiff became a
patient of Dr. David Siambanes in 2003 when the doctor recommended and
performed cervical spine surgery. While
the surgery provided some pain relief, plaintiff “complained of ongoing lower
back pain as well as pain that radiated into his legs.†By December 2004, plaintiff “was severely
debilitated and required a cane for ambulation[, and] [h]e exhibit[ed] poor
range of motion of the lumbar spine.â€
Dr. Siambanes recommended “an anterior fusion from L4 to the sacrum
and posterior fusion from T10 to S1 with correction of the deformity and
decompression of the lateral recess at L4-5.â€
After plaintiff was cleared for surgery, Dr. Siambanes explained
the procedure and discussed the risks and benefits. On March 22,
2005, plaintiff went to the Center, a Riverside
County owned and operated hospital,
to undergo an “anterior-posterior fusion at L4-L5 and L5-S1 with posterior
fusion T10 to the sacrum using iliac bolts and an iliac graft.†Within three days after the surgery,
plaintiff noticed something wrong with his left foot. Plaintiff remained hospitalized at the Center
until he was transferred out on March 31.
During this hospitalization, plaintiff developed ulcers on his left
foot. Later, he developed “left foot
osteomyelitis†and a “drop foot†condition of his left lower extremity. By April 11, plaintiff stated that his
back pain was nearly completely resolved; however, he suffered left leg
discomfort, including pressure sores to his left heel and dorsum of the left
foot, and decreased sensation. The last
appointment that plaintiff had with Dr. Siambanes was in January or
February 2006.
On
March 2, 2006, plaintiff
served the County of Riverside
(County) with a claim for damages based on negligence resulting from his March 22, 2005, surgery and his
postsurgical care from March 22 to March 31,
2005. On March 20, 2006, plaintiff
applied for permission to present a late claim on the grounds that his claim
did not arise until August 31,
2005, the date upon which he was released from the care and
treatment of Dr. Siambanes. On April 4, 2006, the County denied
plaintiff’s claim on the grounds that it failed to “satisfy the criteria listed
in Government code section 911.6(b) for leave to present a late
claim . . . .â€
Plaintiff was told that if he wished to initiate a court action, he
“must first petition the appropriate court for an order relieving [him] from
the provisions of Government Code section 945.4,†and that “[s]uch petition
must be filed with the court within six (6) months from the date [his]
application for leave to present a late claim was denied.â€
Without filing any petition, on June 12, 2006, plaintiff filed a
complaint against the Center for medical negligence based on alleged negligence
“with respect to [his] March 22,
2005 surgery, and . . . his postoperative care and
treatment.â€
title="">[3] On November 24,
2010, the Center moved for summary
judgment on the grounds that plaintiff failed to comply with the California
Tort Claims Act in bringing his action against the Center. The trial court agreed, granted the Center’s
motion, and on February 28, 2011,
entered judgment in favor of the Center.
II. REQUEST FOR DISMISSAL
After
this case was fully briefed and a tentative opinion had been drafted and mailed
to the parties, and after oral argument had been scheduled, on June 1, 2012, counsel for
appellant filed a request for dismissal of the appeal.
An
appellant may not dismiss an appeal as a matter of right. (Huschke
v. Slater (2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on
attorney for unreasonable delay in notifying appellate court that parties had
settled and dismissed the underlying case].)
Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “On
receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the
remittitur.†(Italics added.) Thus, dismissal is discretionary. Here, because the resolution of the case is
fact specific, we grant the request.
V. DISPOSITION
The
appeal is dismissed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Government Code unless otherwise indicated.
name="_ftn2" title=""> [2] Plaintiff also named David Siambanes, D.O.,
and Arnold Tabuenca, M.D., as additional defendants; however, they were
dismissed pursuant to stipulation on August 30,
2006.
