Appeal Brief
I was told by an attorney reviewing the essential integration of points and authorities to be sure technically I was at least adequate, "This is the best work you've done."
The mental health technician acted without discretion. For a definition of this see DISCRETION
PAGE 2
Appellants First Brief
Filed by Pro per Appellant Christopher A. Brown
TOPICAL INDEX
I. PREFATORY STATEMENT Page 3
II. STATEMENT OF APPEALABILITY Page 3
III. STATEMENT OF THE CASE Page 3
IV. STATEMENT OF FACTS Page 4
V. APPLICATION TO PRODUCE EVIDENCE Page 5
VI. ISSUE OF LIABILITY AND IMMUNITY Page 7
VII. PRECEDENT OF GOVERNMENT CODE 855.8 (d) Page 7
VIII. MISLEADING ACTIONS/STATEMENTS Page 9
IX. FALSE RULES OF COURT Page 12
XI. APPLICATION TO PRODUCE EVIDENCE Page 12
XII. ARGUMENT Page 14
XII. CONCLUSION Page 15
CASES & STATUTES
Bassett v. Johnson, (1949) 211 P.2d 939, 94 C.A. 2d 807), Page 6
Michael E. L. v County of San Diego 183 Cal.App.3 d515 Page 7
Muskopf v Corning Hospital District, (1961) 55 Cal. 2d 211,219 Page 8
Johnson v State of California (1968) 69 Cal.Rptr. 240 Page 8
Lopez v So. Cal. Rapid Transit District (1985) 40 Cal. 3d 780, 792-793 Page 8
Guess v State of California (1979) 96 Cal. App. 3d 111 Page 8
Mabry v Scott 51 C.A. 2d 247 [7]Page 6
Pack v Vartanian (1965) 42 Cal.Rptr. 729 Page 6
Hennerly v Bank of America Nat. T & S. Assn. (1951) 228 P.2d 79Page 6
Tinsley v Bauer (1954) 271 P.2d 110 Page 7
STATUTES
Civil Code 3333.1(c) (2), Page 7
Code of Civil Procedure 956a (Repealed law, see G.C. 909) Page 6
Government codes 815.2 Page 8, Page 9
Government code 820.2 Page 9
Government Code 854.8 Page 10,11
Government Code 855 (a) Page 11
Government codes 855.8 Page 8, 10,11
Government Code 855.8 (d) Page 8
Government Code 909Page 6
California Evidence Code section 452 (g), (h) Page 12
Welfare and Institutions Code section 5001 (c),(d),(e) Page 12
Local Court rules 23 and 41.Page 5, 13
Plaintiff and Appellant, Christopher A. Brown appeals to the Court of Appeal of the State of California , Second Appellate District, division 6, from the Judgment entered on January 8, 1999 in Department II of the above entitled court.
Notice of Entry of Judgment was served by Defendant and Respondent County of Santa Barbara on January 27, 1999.
Date;_________________Christopher A. Brown, Plaintiff and Appellant in pro per
I. PREFATORY STATEMENT
This is an appeal by Christopher A. Brown from a judgment of the Superior Court of Santa Barbara County California in an action instituted by Christopher A. Brown against Santa Barbara County for negligence and psychiatric malpractice.
The action below was tried without a jury and culminated in a judgment sustaining a demurrer filed by the County of Santa Barbara County entered on January 27, 1999. This appeal is taken from that judgment, which effectively terminates the action. Notice of appeal was timely filed on Mach 25, 1999.
II STATEMENT OF APPEALABILITY
The judgment of the Superior court effectively terminates the action and so is appealable.
III STATEMENT OF THE CASE
This action arises from plaintiffs attempts to utilize the County of Santa Barbara's Mental Health Care provider for the treatment of a condition known to him. Plaintiffs has made repeated attempts to inform the defendants physicians of his condition by the utilization of information defendant is bound by state law to preserve, use and make available to the public for the public good.
The County of Santa Barbara as a health provider engaged in the practice of healing arts had a duty, within its scope of duties, and ability to provide competent health care to Christopher A. Brown.
California State Government or Health and safety codes the trial court must acknowledge and utilize in the regulation of the defendants duties, have been unrecognized as well as the legislative intents of state laws accordingly. Appellant has been denied fair and impartial hearings and the right to amend his complaint.
IV STATEMENT OF FACTS
Because this appeal arose from the trial courts sustaining a demurrer to the complaint without leave to amend, the issue is whether plaintiff and appellant has stated, or could state a cause of action under any possible legal theory. For such purposes, all material facts pleaded in the complaint, and those that arise by reasonable implication, must be deemed true. Liability and immunity were issues that the plaintiff was unable to clarify for the trial court at hearing and so will be answered in this appeal.
Christopher A. Brown, plaintiff, requested in his MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO STRIKE, (CT 24/21) the trial court to take
judicial notice of the properly filed claim form stamped by the clerk of the board, dated March 23, 1998. The order sustaining the demurrer does not reflect whether the trial court did so.
Plaintiffs MOTION TO RECONSIDER contains a request for judicial notice of California Welfare and Institutions Code section 5001 (c),(d) (CT 38/10,27),the order sustaining the defendants demurrer without leave for plaintiff to amend does not reflect the trial courts notice of 5001.
Plaintiffs complaint (CT 2/20,21) states the duties of a physician regarding the identification of a patients condition and the first cause of action in legal theory.
Plaintiffs opposition to the demurrer (CT 24/10,14) defines the malpractice liability of the public employee engaged in the lawful practice of "one of the healing arts" with regard to the act of omission embodied in the county mental health departments unwillingness to inspect public records or inform itself as to the plaintiffs condition. The inspection of the records would have confirmed the plaintiffs claims of his condition, facilitating treatment defining the point at which the mental health departments failure to inspect records constitutes a breach of duty the defendant has to the plaintiff.
APPLICATION TO PRODUCE EVIDENCE
The Appellant seeks to place before the review facts, outside the record, establishing the named employee and the refusal of the county mental health department to inspect public records and does so, pursuant to California rules of court rule 23 and rule 41, with a motion to admit the evidence and add it to the defective record, the plaintiffs complaint as EXHIBIT ONE.
The production of evidence is for the purpose of affirming appellants ability to state, a cause of action, rather than to judge the facts in the evidence. Plaintiff/appellant is not an attorney and has not properly integrated evidence
into his pleadings to assure a competent record for review in the post trial environment created by the granting of a demurrer without leave to amend.
Combining the prejudice of the trial court with Plaintiffs inexperience has resulted in a situation where the evidence was not included in the record and the decision to grant the defendants demurrer without leave deprives plaintiff of the opportunity to introduce evidence, into the record, at trial. Evidence essential in the event of review. Repealed law Code of Civil Procedure 956a, replaced by Government code 909, [notes 161, 162, 164] relies on case citation utilizing C.C.P. 956a in appellate review considerations of G.C. 909 regarding the introduction of evidence on appeal as in note 161;
Mabry v Scott 51 C.A. 2d 247 [7] Appeal-Questions of law and fact-Rule under Code of Civil Procedure 956a.-Taking Evidence- "Generally, testimony is taken by an appellate court only when it is necessary as a basis for the affirmance or reversal of a judgment with direction to the trial court. Where knowledge of the additional facts by the trail court would not have altered the findings as to the fairness and necessity of the compromise agreement in question, a motion to produce evidence additional testimony an appeal will be denied."
A situation similar to Bassett v. Johnson, (1949) 211 P.2d 939, 94 C.A. 2d 807, where a letter already in the record, never introduced in evidence or mentioned at the trial, was discovered by the appellate court that then appointed the trial judge as a referee for the taking of additional evidence resulting in findings that were favorable to the plaintiff.
Consistently when weight of evidence was at issue, in the denial of the introduction of additional evidence, denial was because the evidence "...if received, would serve no useful purpose. Pack v Vartanian (1965) 42 Cal.Rptr. 729..... or, "would not have been determinative to the case" Hennerly v Bank of
America Nat. Trust & savings Assn. (1951) 228 P.2d 79, or ".....testimony would not compel reversal." Tinsley v Bauer (1954) 271 P.2d 110
In the Appellants case the evidence literally substantiates the cause of action, and with consideration the resolution of the immunity issue, would compel reversal justifying the introduction of evidence by precident of cases.
ISSUE OF LIABILITY AND IMMUNITY
Plaintiffs citation of civil code, 3333.1, in his complaint (CT 5/25,27), is presented in defendants demurrer (CT 10/20,22) with only the non applicable, initial aspects of 3333.1 and ignores the statement of fundamental end intent of 3333.1(c) (2) to limit liability to;
".........within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital."
The defendant, as a psychiatric health care provider regulated by California State statute law, has, within its scope of services as it is licensed without restriction by licensing agency or hospital, the duty to use public information in its possession for the treatment of plaintiff. Information the defendant is required by state law to preserve and make available as a municipality, as well as use as a health care provider in the fulfillment of its duty, as a physician, to the plaintiff, was denied the plaintiff, one of the people of the state of California.
PRECEDENT OF GOVERNMENT CODE 855.8 (d)
Appellant cites case law supporting the application of Government Code 855.8 (d) to the defendants liability in plaintiffs pleadings.
Michael E. L. v County of San Diego 183 Cal.App.3 d 515
At page 535, paragraph 2, Further evidence , according to the opinion of Dr. Thomas Rusk, plaintiffs psychiatric expert, the lack of attempt, to........counsel,
........... establish therapy, ............ warn and insure that therapy is attended, "fell below the standard of care, i.e., constituted negligence."
Appellant maintains that information from the patient constitutes the best information regarding the patients condition and that without proper information, counseling, therapy or warning, particularly in the field of psychiatry, is certain to be incompetent.
At page 536 paragraph 2. "Muskopf v Corning Hospital District, (1961) 55 Cal. 2d 211,219, plaintiff cites from Johnson v State of California (1968) 69 Cal.Rptr. 240 and adds italics. "when there is negligence, the rule is liability, immunity is the exception.
Later in paragraph 2 page 536 the plaintiff cites, The Supreme Court in Lopez v Southern Cal. Rapid Transit District (1985) 40 Cal. 3d 780, 792-793 as recently reiterated this basic principle, stating: "We have also held that , in government tort cases" the rule is liability, immunity is the exception..."
At page 538 paragraph 3 plaintiff has an identical argument citing the same exemption, Government code 855.8(d), from immunity and application of law as the appellant cites, where there would be no immunity for the county who would be vicariously liable for the therapists negligence under Government codes 855.8 and 815.2 (G.C.815 (CT 24/5) as in Guess v State of California (1979) 96 Cal. App. 3d 111 "under sections 856, 855.8 and 815.2. public entities are vicariously liable for such wrongs." ie ,injuries proximately caused by the negligence or wrongful acts of public employees.
Appellant cites from, Guess v State of California (1979) 96 Cal. App. 3d 111.
At page 112 (2) GOVERNMENT TORT LIABILITY 13- Grounds for relief,-liability Arising from Governmental activity-Medical-Public health-Mental patients. "Exonerates public employees from liability for using due care......However it does not shield employees for a negligent or wrongful act or omission in carrying out such a determination to confine, release or parole.
Thus under vicarious liability provisions of Government code 815.2, a public entity would be vicariously liable for such negligent or wrongful omissions on the part of its employees in carrying out ministerial acts flowing from discretionary decisions."
Appellant cites a portion of Government code 820.2,
5. Legislative intent
In enactment of State tort claims legislation, legislature intended (a) to make public entities liable where their employees were liable, (b) to continue immunity to public employees from discretionary acts within the scope of their employment , and (c) to create liability on part of governmental entities when injury was caused by failure to perform mandatory duty;
Appellant refers to an authority on the meaning of words for concise application of the law in his appeal.
Websters Third New INT. Dictionary; "Discretion: Ability to make decisions, which represent a responsible choice and for which an understanding is lawful, right, or wise may be pre-supposed."
Clearly the inability of the Mental Health technician named in plaintiffs complaint to use information in the defendants possession for the identification of the patient, plaintiffs condition was not "discretionary" in a sense of lawfulness, rightness, or wisdom.
MISLEADING ACTIONS/STATEMENTS
Plaintiff is not an attorney and is unable to locate an attorney and is not capable of compensating for inconsistent, deceptive, misleading actions/statements of the county counsel towards the trial court and plaintiff.
The granting of the demurrer without leave to amend is based on the inconsistent or deceptive statements (RT 2-21) of the county counsel at the hearing of the motion to demurrer concerning the plaintiffs properly filed claim form.
The letter from County risk management (CT 30), filed with the plaintiffs OPPOSITION TO THE MOTION TO STRIKE on December 14, 1998, acknowledges correct filing of the claim form and denies the claim. The County Counsel had ample time to review the letter and to discover that the form was missing from their file and replace it rather than implying that because counsel to the defendant does not have a copy of the properly filed form in their file, it might not exist. Misleading the court. The trial courts request for defendants counsel to comment on "both issues" (RT 2/18,19) is ignored by counsel who changes the subject by introducing the "statutory immunities" (RT 2/23). The trial court allows the defendants counsel failure to provide requested comment on the issue of the letter from Charles Mitchell of risk management then the court accepts the change of subject (RT 2/24,25) to statutory immunities.
The misleading statements of County counsel concerning statute liability of defendant, government code 855.8, at the demurrer hearing (RT 2/26,27) are accepted by the court (RT 2/28) and immediately following the statements of the county counsel, the court does not recognize (RT 2/28) Government code 854.8 (d) referred to in plaintiffs opposition to the demurrer (CT 24/8,14).
Government code 854.8 (d)
"Nothing in this section exonerates a public employee from liability for injury caused by his negligence or wrongful act or omission. The public entity may but is not required to pay any judgment........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.............any judgment based on a claim against a public employee who is lawfully engaged in the practice of one of the healing arts."
Appellant in pro per states plainly, here in review, that at the hearing he was shocked, traumatized, by the trial courts inability (RT 4/1) to be aggressive
in its grasp and application of the full extent of each and every law plaintiff cited while only understanding the words of the defendants attorney. Indeed appellant felt as though his pleadings had not been read or reviewed at all.
Plaintiff at the demurrer hearing, still attempting to oppose defendants counsel contention that there was "no way around statutory immunities" (RT 2/22,23), quotes excerpts from his complaint (CT 3/15,28) concerning Government Code 854.8. The County Counsel then misleads (RT 4/5) the court further concerning plaintiffs complaint and the naming of the employee (CT 2/23,25).
The counsel for the defendant indirectly leads court (RT 4/6,8), to accept that "information" is not the primary tool of mental health care and that information in its possession is not a facility. Contrary to the fact that information is accepted, as a "facility", by common, decent and standard rational, within the specific healing art of mental health and elsewhere throughout medicine.
Counsel for the defendant presents plaintiffs deficient pleading in the his opposition to the demurrer (CT 25/21,22) an oversight of the pro per plaintiff constituted by a failure to cite at the hearing Government code 855 (a) regarding the defendants failure to "exercise reasonable diligence to comply with applicable state statute or regulation". Counsel for defendant presents again, deficient representation of statute law, Government code 855.8 (RT 4/13,14) misleading the court, and the court without recognizing again the end statement (d) of Government code 855.8 (RT 4/15), grants the order sustaining the demurrer.
Plaintiff states in his affidavit in his MOTION FOR RECONSIDERATION (CT 37/12,14) the inconsistency of the county counsels statements of December 18, 1998 and the statements of deputy counsel Koelsch on January 8, 1999.
In plaintiffs MOTION FOR RECONSIDERATION (CT 38/11,) plaintiff request for notice of matters which may be judicially noticed contains a typo. California Evidence Code section 452 (b), (g),(h) is defective in the complaint as, 452 (b) (c) (CT 38/17,19).
452 (b) "legislative enactment's of any state"
452 (g) "Common knowledge and verifiable facts.")
Plaintiff requested judicial notice of legislative enactment's, California State Welfare and institutions Code, section 5001 (c).
5001 (c), "To guarantee public safety."
The citation in plaintiffs complaint is deficient as plaintiffs case is medically or legally applicable, without named exclusion, to the public protection and benefit by relationship to the legislative intent of 5001. (a) thru (g).
The trial court finds the plaintiffs REQUEST FOR JUDICIAL NOTICE of legislative enactment's, fraudulent (RT 5/19) as well as plaintiffs common knowledge and verifiable facts, matters of life and death,(CT 40/9,23) after citation of Evidence code 452 (g), (h), typo (CT 38/18).
Plaintiff explains his pro per status to the trial court, "I'm in pro per" (RT 6/17,19) (note error in reporters transcript) and that the injuries sustained, as claimed, would cause deficiencies or omissions in his legal pleadings. The trial court will not hear the plaintiff (RT 6/20,22) as it provides opportunity for the county counsel to erroneously, maliciously demean plaintiffs attempts to find legal recourse.
FALSE RULES OF COURT
Defendant has used its control of published rules of court and the county counsel to submit to plaintiff, false rules of court.
Or references to false rules of court, or misinformation intended to cause plaintiff distraction, confusion, embarrassment, damage to reputation or credibility and emotional or mental anguish by intentionally distracting and detracting from plaintiffs, available time for taking timely legal actions, when defendant mailed to plaintiff a "Memoranda" concerning local court rule 208d, a rule not listed in the book of local court rules purchased by plaintiff from the superior court clerk on December 4, 1998.
APPLICATION TO PRODUCE EVIDENCE
The appellant seeks to place before the review, facts outside the record establishing the manipulation of public information in conjunction, with the legal action in appeal, or to affirm the misconduct of the defendant within the period of the time of the hearings of the trial court, in his legal action. Appellant request the review assure a competent record for review in the post trial environment created by the granting of a demurrer without leave to amend.
The evidence supporting the fact is the cover sheet of the unfiled memoranda, the cover sheet of the local court rules and a page from the index of the rules. Pursuant to California rules of court, rule 23 and rule 41 these facts are submitted with a motion to admit the evidence and add it to the record as EXHIBIT TWO.
Defendant intentionally substituted an attorney who was prepared to deceive the trial court.
An irregularity of the courts scheduled calendar, December 18, 1998, for the hearing of the defendants MOTION TO STRIKE AND DEMURRER and delayed proceedings without notice to January 8, 1999. The delay was arranged by the defendant, allowing the defendant to place an alternative county counsel who was prepared to deceive the trial court concerning the plaintiffs properly filed claim form as it was admittedly possessed by the county counsels office and
described to the plaintiff by a deputy county counsel as stated in the affidavit in the plaintiffs motion for reconsideration.
Plaintiffs condition continues to worsen and his suffrage of damages has increased due to defendants falsifications.
The procedural history of this case is short and all trial actions after the delayed demurrer hearing of December 18, 1998 lack recognition of law or fairness to plaintiff. Plaintiff has lost his residence, most of his possessions and his self employment has suffered as his facility for working and providing income has been seriously compromised by the defendants deliberate, malicious, false statements at the hearing in trial court causing plaintiffs loss of reputation, publicity or credibility, depriving the plaintiff of the possibility of engaging private physicians in the application of appropriate treatment and the services of attorneys essential to the function of the legal system or legal protection of the plaintiff in any legal action that may arise.
ARGUMENT
Plaintiff presented adequate documentation of the presence of public records, essential to the intake technician at Santa Barbara County Mental Health to substantiate plaintiffs descriptions of his condition. With consideration of other exclusive material provided by plaintiff/patient, adequate in amounts for the justification of the informing of the mental health department by the inspection of public records. Information essential in securing adequate and competent treatment for the plaintiff, was denied.
The defendant has failed to observe codes of the state of California dynamically breaching its duty to the plaintiff. The trial court has demonstrated its prejudice when failing to recognize the appellants legally valid causes of action as well as statute law and the intention of State legislation depriving the plaintiff of fair and impartial hearings.
CONCLUSION
It is requested that for the reasons stated that the ruling be reversed. The judgment should be reversed, and a judgment of specific performance should be ordered for the appellant.
Date;_______________
Respectfully submitted
Christopher A. Brown, Plaintiff and Appellant in pro per