Brikha v. Chang CA5

Filed 5/3/13 Brikha v. Chang CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA FIFTH APPELLATE DISTRICT

HENRY BRIKHA, F065005 Plaintiff and Appellant, (Super. Ct. No. CV-270128) v.

KENNETH H. CHANG, OPINION Defendant and Respondent.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge. Henry Brikha, in pro. per., for Plaintiff and Appellant. Hall, Hieatt & Connely, Jay A. Hieatt and Stephanie A. Bowen for Defendant and Respondent. -ooOoo- Appellant, Henry Brikha, received medical treatment from respondent, Dr. Kenneth H. Chang, a resident physician employed by the County of Kern (County) at the

* Before Wiseman, Acting P.J., Levy, J. and Peña, J.

County’s hospital, Kern Medical Center. Appellant filed a personal injury complaint against Chang and Kern Medical Center alleging a cause of action for medical malpractice. However, before filing his complaint, appellant did not file a claim with the County, a public entity, as required by the Government Claims Act. (Gov. Code,1 § 810 et seq.) Chang moved for summary judgment based on appellant’s failure to file a claim with the County before bringing suit. Appellant did not oppose this motion. The trial court granted summary judgment in favor of Chang finding that: appellant was required to file a claim with the County prior to filing suit against its former public employee, Chang; appellant failed to file a government claim; and Chang, a former public employee, acted within the scope of his employment with the County when he rendered care to appellant. On appeal, appellant contends that Chang is not immune from liability and therefore summary judgment should not have been granted. However, contrary to appellant’s position, the claim filing requirement is not a “nebulous, unnecessary and ineffective administrative hurdle.” Rather, timely claim presentation is a condition precedent to the ability to maintain an action against the public entity and/or the public entity’s employee. Accordingly, the judgment will be affirmed. DISCUSSION Our review of a summary judgment is de novo. Therefore, we must decide independently whether the undisputed material facts warrant judgment for the moving party as a matter of law. (California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1590-1591.)