Filed 9/21/16




                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

EMMA ESPARZA,
                                                                F071761
        Plaintiff and Appellant,
                                                      (Super. Ct. No. VCU256571)
        v.

KAWEAH DELTA DISTRICT HOSPITAL,                               OPINION
        Defendant and Respondent.



        APPEAL from a judgment of the Superior Court of Tulare County. Bret D.
Hillman, Judge.
        Quinlan, Kershaw & Fanucchi and David M. Moeck for Plaintiff and Appellant.
        Weiss Martin Salinas & Hearst, Lisa M. Martin and Carol A. O’Neil for
Defendant and Respondent.
       This appeal from a judgment of dismissal raises the following question about
proper pleading: What facts must a plaintiff allege to adequately plead he or she
complied with the claims presentation requirement of the Government Claims Act?1
       This question was answered in Perez v. Golden Empire Transit Dist. (2012) 209
Cal.App.4th 1228 (Perez), where we held that “a plaintiff may allege compliance with the
claims presentation requirement in the Government Claims Act by including a general
allegation that he or she timely complied with the claims statute.” (Id. at p. 1237, fn.
omitted.)
       In this case, plaintiff checked the boxes to item 9.a of the Judicial Council Form
for pleading a personal injury cause of action and thereby alleged that she was required to
comply with a claims statute and had complied with applicable claims statutes. Later in
her pleading, plaintiff alleged that she “served a claim on Kaweah Delta District Hospital
pursuant to Cal. Gov. Code §910 et seq. on or at December 3, 2013.”
       Plaintiff’s additional allegation about serving a claim on or at a specific date does
not contradict her general allegation of compliance. Consequently, applying the rule
adopted in Perez, we conclude she adequately alleged compliance with the Government
Claims Act and the demurrer should have been overruled. We publish this decision to
confirm the holding of Perez and set forth our interpretation of the California Supreme
Court’s decision in DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983
(DiCampli). We do not read DiCampli, a summary judgment case that did not address
the adequacy of the pleadings, as impliedly disapproving Perez or the rule allowing
plaintiffs to plead compliance with the claims statutes using a general allegation.
       We therefore reverse the judgment and remand for further proceedings.




1      The act is set forth in division 3.6 of title 1 of the Government Code, which begins
with section 810. All unlabeled statutory references are to the Government Code.


                                             2.
                             FACTS AND PROCEEDINGS
The Medical Malpractice Claim
       Plaintiff Emma Esparza was hospitalized at defendant Kaweah Delta District
Hospital2 from about June 3, 2013, to about June 8, 2013. During her stay, defendant’s
employees administered the wrong dosage of a medication named Gentamicin to
plaintiff. Specifically, they gave her 100 milligrams instead of the prescribed amount of
10 milligrams. The actions of defendant’s employees breached the applicable standard
care. This breach caused plaintiff to suffer vertigo, loss of hearing, balance issues,
visions issues and other damages including, but not limited to, medical expenses.
The Pleadings
       On June 2, 2014, plaintiff filed a medical malpractice action against defendant.
The operative pleading in this case is plaintiff’s second amended complaint, which
consisted of a completed Judicial Council form PLD-PI-001 (rev. Jan. 1, 2007)—the
form complaint for personal injury claims—and a one-page attachment.
       The second amended complaint alleged: “Plaintiff is required to comply with a
claims statute, and [¶] … has complied with applicable claims statutes ….” Plaintiff
made this allegation by checking the boxes for item 9.a on the Judicial Council form.
The page attached to the form complaint included the additional allegation that plaintiff
had “served a claim on Kaweah Delta District Hospital pursuant to Cal. Gov. Code §910
et seq. on or at December 3, 2013.”




2       Plaintiff alleged that defendant Kaweah Delta District Hospital is an entity that is
part of Kaweah Delta Health Care District, a public entity. In its demurrer, defendant
stated that it is Kaweah Delta Health Care District and was erroneously sued as Kaweah
Delta District Hospital. Defendant also stated that Kaweah Delta District Hospital is a
division of the district.


                                             3.
The Demurrer
       Defendant demurred to the second amended complaint on the grounds that it failed
to allege compliance with the Government Claims Act or, alternatively, its allegations
were uncertain, ambiguous, or unintelligible with regard to compliance with the
Government Claims Act. Defendant asserted plaintiff’s allegation that she served a claim
on defendant did not match up with the requirements of Government Code sections 910
and 915, subdivision (a). Defendant also asserted that the second amended complaint
failed to state how it responded to plaintiff’s claim—that is, whether defendant “acted on
Plaintiff’s government claim or was deemed to have rejected the claim by not acting on
it.” Based on these purported deficiencies, defendant contended that plaintiff failed to
allege facts showing a disposition of her claim that would authorize her to file a
complaint.
The Trial Court’s Ruling
       In November 2014, the trial court filed a minute order sustaining the demurrer
without leave to amend. The minute order stated that the court could not discern from the
facts stated in the second amended complaint if plaintiff’s medical malpractice claims
were “viable, time-barred, or that plaintiff timely presented a proper claim to [defendant]
to comply with the requirements of the Government Claims Act.” The minute order also
stated plaintiff did not allege facts showing that she had presented her claim to defendant
by one of the methods of service authorized by subdivision (a) of section 915 and
defendant acted on her claim and rejected it or, alternatively, was deemed to have
rejected it by failing to act within the statutory period. The minute order also noted
plaintiff had not alleged facts showing she was excused from complying with the
Government Claims Act.
       In December 2014, a signed order sustaining the demurrer was filed by the trial
court. In March 2015, after a motion to vacate and set aside the order sustaining the



                                             4.
demurrer was denied, the trial court entered a judgment in favor of defendant. Plaintiff
filed a timely notice of appeal.
                                       DISCUSSION
I.     STANDARD OF REVIEW
       When a trial court sustains a demurrer on the ground that the complaint does not
state facts sufficient to constitute a cause of action, the appellate court independently
reviews the allegations and determines their sufficiency. (Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1126.) When conducting this independent review, appellate
courts “treat the demurrer as admitting all material facts properly pleaded, but do not
assume the truth of contentions, deductions or conclusions of law. [Citations.]” (City of
Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 (Dinuba).) Where a pleading
includes a general allegation and an inconsistent specific allegation, the specific
allegation controls over the inconsistent general allegation. (Perez, supra, 209
Cal.App.4th at p. 1236.)
II.    HOW TO ALLEGE COMPLIANCE WITH THE CLAIM REQUIREMENT
       A.     A General Allegation of Compliance Is Allowed
       In Perez, we discussed State of California v. Superior Court (2004) 32 Cal.4th
1234, Code of Civil Procedure section 459,3 and Ley v. Babcock (1931) 118 Cal.App.
525, before concluding “that a plaintiff may allege compliance with the claims
presentation requirement in the Government Claims Act by including a general allegation




3       Code of Civil Procedure section 459 provides in part: “In pleading the
performance of conditions precedent under a statute …, it is not necessary to state the
facts showing such performance, but it may be stated generally that the party duly
performed all the conditions on his part required thereby .…” In Perez, we concluded
that this specific provision controlled over the general rule that statutory causes of action
must be pleaded with particularity. (Perez, supra, 209 Cal.App.4th at p. 1237, fn. 3.)


                                              5.
that he or she timely complied with the claims statute.”4 (Perez, supra, 209 Cal.App.4th
at p. 1237, fn. omitted.) That discussion need not be repeated here because it already is
published. (Id. at pp. 1236-1237.)
       In this appeal, defendant argues that Perez is no longer good law because it was
decided two months before the California Supreme Court decided DiCampli, supra, 55
Cal.4th 983 and was implied overruled. We disagree.
       In DiCampli, a patient sued two surgeons and a county hospital for malpractice.
(DiCampli, supra, 55 Cal.4th at pp. 987-988.) The patient’s attorney prepared a letter
notifying the defendants, in accordance with Code of Civil Procedure section 364, of her
intent to sue them for negligence. (DiCampli, supra, at p. 987.) The attorney personally
delivered the letter to an employee of the medical staffing office in the hospital’s
administration building, but did not deliver a copy to the county’s clerk or auditor or the
clerk of the county’s board of supervisors. (Ibid.) The county filed a motion for
summary judgment, contending the patient failed to comply with the Government Claims
Act because her claim was never presented to or received by a statutorily designated
recipient as required by section 915. (DiCampli, supra, at p. 989.) The trial court
granted the motion for summary judgment. (Ibid.) The court of appeal reversed the trial
court, concluding the patient had substantially complied with the claim presentation
requirements of the Government Claims Act. (DiCampli, supra, at p. 989.) The
California Supreme Court reversed the court of appeal, which reinstated the order
granting the county’s motion for summary judgment. (Id. at p. 998.) The Supreme Court
determined the plain language of section 915 required delivery of the claim to one of the

4      Restating this principle using language from the standard of review applicable to
demurrers, we conclude: When a pleading states that the plaintiff has complied with the
claims statute, it has properly pleaded an ultimate fact—that is, the statement of
compliance is not a conclusion of law. (Cf. Skopp v. Weaver (1976) 16 Cal.3d 432, 437
[allegation that defendants were plaintiff’s agents during the transaction in question is an
averment of ultimate fact, not a conclusion of law].)


                                             6.
persons designated in the statute. (DiCampli, supra, at p. 992.) Consequently, the court
rejected the statutory interpretation that allowed substantial compliance with the claim
delivery requirement. (Ibid.)
       For the reasons stated below, we conclude that the California Supreme Court’s
decision in DiCampli did not overrule Perez or otherwise disapprove the principle that
the ultimate fact of compliance with the claims presentation requirement in the
Government Claims Act can be pled using a general allegation.
       First, DiCampli, supra, 55 Cal.4th 983, did not mention Perez or the adequacy of
the pleadings before it. Consequently, the court did not explicitly disapprove Perez or its
rule that a general allegation is sufficient to plead compliance.
       Second, DiCampli cannot be interpreted as impliedly disapproving Perez. The
applicable and long-established rule is that cases are not authority for propositions not
considered. (Vasquez v. State (2008) 45 Cal.4th 243, 254.) It is important to note that
DiCampli was not a pleading case and did not purport to address, in dicta or otherwise,
what was necessary to plead compliance with the claims presentation requirement in the
Government Claims Act. Instead, DiCampli addressed the merits of a motion for
summary judgment, the proper interpretation of the claim delivery requirements in
section 915, and whether there was a triable issue of material fact regarding the patient’s
compliance with the statutory delivery requirements. Consequently, DiCampli is not
authority for the proposition that a general allegation of compliance with the claims
presentation requirement is inadequate.
       Our interpretation of the impact of DiCampli on Perez is supported by the fact that
defendants have cited, and we have located, no published decision that concludes
DiCampli implicitly disapproved Perez. A decision from the Second Appellate District
issued a year and a half after DiCampli cited Perez for the following principle: “A
plaintiff may allege compliance with the claims requirements by including a general
allegation that he or she timely complied with the claims statute.” (Gong v. City of

                                              7.
Rosemead (2014) 226 Cal.App.4th 363, 374 (Gong).) The court in Gong did not
explicitly consider the effect of DiCampli on Perez or even mention DiCampli.
Consequently, Gong suggests that Perez was not impliedly overruled by DiCampli, but is
not authority for that proposition. (Vasquez v. State, supra, 45 Cal.4th at p. 254.) To
summarize, no court has explicitly interpreted DiCampli in the manner urged by
defendants and at least one published decision has cited Perez with approval.
       Based on the foregoing, we conclude the holding in Perez remains good law and
plaintiffs are allowed to plead compliance with the claims presentation requirement in the
Government Claims Act using a general allegation. Consequently, we apply the holding
in Perez to the allegations made in plaintiff’s second amended complaint.
       B.     Plaintiff’s Allegations of Compliance
              1.     The General Allegation
       Here, plaintiff checked the boxes for item 9.a on Judicial Council form PLD-PI-
001 and alleged: “Plaintiff is required to comply with a claims statute, and [¶] … has
complied with applicable claims statutes ….” In comparison, the first amended
complaint in Perez alleged: “‘On January 15, 2010, Plaintiff filed a timely claim
complying with the required claims statute.’” (Perez, supra, 209 Cal.App.4th at p. 1237.)
We concluded this allegation was “sufficient to plead compliance with the claim
presentation requirement of the Government Claims Act.” (Ibid.)
       First, we note that the inclusion of the word “timely” in the allegation made in
Perez was not essential and does not distinguish it from the general allegation made in
this case. An allegation that a plaintiff has “complied with applicable claims statutes” is
reasonably interpreted as meaning the claim was timely. (Dinuba, supra, 41 Cal.4th at p.
865 [complaint given a reasonable interpretation by reviewing court]; Code Civ. Proc., §
452 [liberal construction of pleadings].)




                                             8.
       Second, defendant’s argument that Judicial Council pleading forms are not
demurrer-proof, while relevant, does not address directly to the adequacy of the
allegations made in this case. (See People ex. rel. Dept. of Transportation v. Superior
Court (1992) 5 Cal.App.4th 1480, 1482 [Judicial Council form complaints are not
invulnerable to demurrer].) We agree with the general principle that Judicial Council
form complaints are not invulnerable to a demurrer. Conversely, Judicial Council form
complaints do not always fail to state a cause of action and, thus, they are not necessarily
susceptible to demurrer. The logical implication from these polar opposite principles is
that use of a Judicial Council form complaint is not a determinative factor in deciding
whether or not to sustain a demurrer. Instead, a reviewing court must examine the
particular allegations in the form pleading and determine whether those allegations
satisfy the pleading requirements established by California law.
       In this case, the pleading requirements established by California law are set forth
in Perez. Applying the pleading requirement adopted in Perez to plaintiff’s general
allegation of compliance with applicable claims statutes, we conclude plaintiff’s
allegation was adequate under California law. Accordingly, we have not held plaintiff’s
allegations were adequate simply because they were made by checking boxes on a
Judicial Council form complaint. Rather, plaintiff’s allegation that she “has complied
with applicable claims statutes” was adequate because it properly pleaded an ultimate fact
and thereby satisfied the pleading requirements set forth in Perez and reiterated in Gong.
As a result, a plaintiff is not required to specifically plead (1) the method of service used
to present the claim to the defendant or (2) whether the defendant explicitly rejected the
claim or, alternatively, was deemed to have rejected the claim by failing to act within the
statutory period.




                                              9.
              2.     The Additional Allegation and Its Effect
       Defendant’s second challenge to the adequacy of plaintiff’s pleading relates to the
wording of the allegation in the attachment to the form complaint, which states she
“served a claim on Kaweah Delta District Hospital pursuant to Cal. Gov. Code §910 et
seq. on or at December 3, 2013.” Defendant argues that this specific allegation is
ambiguous and the ambiguity renders it inconsistent with plaintiff’s general allegation of
compliance. In particular, defendant emphasized the uncertainty and ambiguity created
by the phrase “on or at” the specified date.
       Our analysis of defendant’s argument about inconsistency begins by defining the
word “inconsistent.” In the context of propositions, ideas and beliefs, “inconsistent”
means “so related that both or all cannot be true or containing parts so related <~
statements>.” (Webster’s 3d New Internat. Dict. (1993) p. 1144.) Therefore, statements
or allegations of fact are “inconsistent” when both cannot be true. (McDonald v.
Southern California Ry. Co. (1894) 101 Cal. 206, 212.) For example, it is inconsistent
for a plaintiff to state in a declaration that the defendant used force greater than necessary
after testifying in a deposition that the defendant did not apply any force. (King v.
Andersen (1966) 242 Cal.App.2d 606, 610.)
       Here, plaintiff’s general allegation of compliance can be true even if she served a
claim on defendant on or at December 3, 2013. Therefore, her allegations are not
inconsistent. Defendant’s attempt to create inconsistency through ambiguity is not
supported by a citation to authority and appears as little more than an effort to resurrect
the long-abandoned common law rule that pleadings must be taken most strongly against
the pleader. In Perez, we explicitly rejected this approach to interpreting pleadings
because it was contrary to Code of Civil Procedure section 452’s rule of liberal
construction. (Perez, supra, 209 Cal.App.4th at p. 1238.) Consequently, we conclude
that plaintiff’s general allegation of compliance with the claims presentation requirement




                                               10.
was not contradicted by or inconsistent with her allegation about service of her claim on
or at December 3, 2013.
      As a result, we conclude that plaintiff adequately alleged compliance with the
claims presentation requirement in the Government Claims Act. Accordingly, the
demurrer should have been overruled.
                                     DISPOSITION
      The judgment is reversed. The trial court is directed to vacate its order sustaining
the demurrer and to enter a new order overruling the demurrer and requiring defendant to
answer the second amended complaint. Plaintiff shall recover her costs on appeal.

                                                                _____________________
                                                                          FRANSON, J.
WE CONCUR:


 _____________________
HILL, P.J.


 _____________________
SMITH, J.




                                           11.
