Jackson v. Truong CA4/2

Filed 6/11/21 Jackson v. Truong 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ANTORINETTE JACKSON,

Plaintiff and Appellant, E073434

v. (Super.Ct.No. RIC1715688)

FRANK TRUONG OPINION

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,

Judge. Affirmed.

Tofer & Associates and Michael P. Green for Plaintiff and Appellant.

Rob Bonta and Xavier Becerra, Attorney Generals, Danielle F. O’Bannon,

Assistant Attorney General, Elizabeth S. Angres, Gary Ostrick, and Thomas M.

McMahon, Deputy Attorneys General, for Defendant and Respondent.

Plaintiff and appellant Antorinette Jackson appeals the grant of summary judgment

in favor of defendant and respondent Frank Truong, M.D. On August 21, 2016, Jackson

was incarcerated in the California Department of Corrections and Rehabilitation (CDCR)

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at the California Institute for Women (CIW). Jackson slipped and fell in the shower and

broke her ankle. She had surgery outside CIW at the Riverside County Regional Medical

Center (RCRMC) and returned for three weeks to CIW between September 8, 2016, and

September 21, 2016, during which time she was treated by Dr. Truong and other prison

staff. Jackson developed an infection during this time and had to have additional surgery

at RCRMC on September 26, 2016, to close an open wound on the ankle.

It is well-established that a state prisoner must exhaust available administrative

remedies before filing a lawsuit in state or federal court. Title 15 of the California Code

of Regulations section 3084 et. seq.1 establishes a multilevel administrative review

process for the resolution of prison grievances. Jackson filed pursuant to section 3084

several Inmate/Parolee Appeal Forms, CDCR Form 602 (Form 602) relating to her

broken ankle. Jackson did not name Dr. Truong, her treating physician at CIW, or

specifically file a grievance based on her treatment in September 2016, in any Form 602

filed with CIW. Jackson filed a complaint against Dr. Truong in Riverside County

Superior Court alleging medical malpractice. Dr. Truong’s motion for summary

judgment to dismiss the complaint was granted on the grounds that Jackson had failed to

exhaust her administrative remedies.

1 Title 15 of the Code of Regulations section 3084 was renumbered in September
1, 2017. The current process for inmate grievances appears in section 3480 et seq,
effective June 1, 2020. All further statutory references to the California Code of
Regulations section 3084 et seq. refer to the version prior to September 1, 2017, unless
otherwise indicated.

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 Plaintiff claims on appeal that the trial court improperly granted Dr. Truong’s

motion for summary judgment as (1) she properly exhausted her administrative remedies;

and (2) it would be futile to require her to file an additional administrative action to

exhaust remedies. We conclude the motion for summary judgment was properly granted.

FACTUAL AND PROCEDURAL HISTORY

A. STATEMENT OF FACTS

The facts are drawn from the undisputed material facts submitted by Dr. Truong

and the additional undisputed material facts provided by Jackson.

On August 21, 2016, Jackson fell in the shower while incarcerated at the CIW and

broke her ankle. Jackson was transferred to the RCRMC by ambulance for surgery. She

underwent surgery on September 8, 2016. Her ankle was set in a three-sided splint. She

was instructed not to put weight on her ankle and to keep the splint dry, clean and intact.

She was to get help if she experienced any increased pain or soreness at the surgery site,

or the splint was too tight.

Jackson was seen at CIW on several occasions between September 8, 2016, and

September 26, 2016. On September 9, 2016, she complained of pain and was given

additional pain medication. Jackson was seen by Dr. Truong on September 13, 2016. Dr.

Truong was her primary care physician at CIW from 2013 through 2018. He noted that

the splint was intact and she could wiggle her toes. Additional pain medication was

given to Jackson. Jackson was seen by a registered nurse on September 15, 2016. She

complained of pain and wanted a refill of her pain medication. Jackson could wiggle her

toes and no edema was present. Dr. Truong was contacted and he continued her pain

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medication. Jackson was seen on September 21 and 23, 2016 at CIW and she

complained of swelling and pain.

Jackson stated that she felt ill during this time with pain, chills, fever and she felt

weak like she had the flu. Jackson insisted that Dr. Truong ignored her pain and refused

to remove the splint on her ankle to check the wound. Dr. Truong stated he would have

referred her to RCRMC if she had made the complaints to him. On September 26, 2016,

she was seen at RCRMC and the wound on her ankle was dehiscent (open) and infected;

it was not gangrenous. Jackson had to have a second surgery at RCRMC to close the

wound on her ankle. Jackson had further surgery on December 1, 2017.

On September 9, 2016, Jackson submitted a Form 602 to the Inmate Appeals

Office at CIW complaining that she had slipped on a bar of soap in the shower at CIW.

She complained that the ADA compliant shower was not working at CIW and that she

received inadequate care at CIW until the ambulance arrived to take her to RCRMC. The

Form 602 was initially rejected by the Inmate Appeals Office. She submitted a new

appeal designated HC 16028624. It incorporated the Form 602 filed on September 9,

2016. On January 31, 2017, the Form 602 was partially granted in that she was found to

be entitled to continued medical treatment as all inmates were entitled to medical

treatment. However, her request for $475,000 in compensation was denied as beyond the

appeals process. Between September 2016 and the time she filed her complaint for

damages on August 22, 2017, Jackson never filed a Form 602 mentioning Dr. Truong’s

name despite filing nine other Form 602s with the Inmate Appeals Office. Jackson never

filed a Form 602 between September 1, 2016, and December 1, 2016, complaining about

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the medical care provided by Dr. Truong or even implying that she received inadequate

medical care from Dr. Truong. It was not until June 2017, when she filed a Form 602

designated HC 17028866 that she indirectly accused Dr. Truong of inadequate medical

care. In the Form 602, she did not complain about Dr. Truong’s treatment in September

2016, but rather complained about her current medical treatment, the refusal to provide

her ice for her ankle and that she was denied an MRI. The Form 602 in case HC

17028866 was denied and she did not file an appeal. Jackson did not appeal any of the

Form 602 claims that she filed.

B. PROCEDURAL HISTORY

1. FIRST AMENDED COMPLAINT

Jackson originally filed a complaint in the Riverside County Superior Court

against Dr. Truong and the State of California through the CDCR on August 22, 2017, for

two causes of action, which consisted of (1) medical malpractice against Dr. Truong

under California law between August 21, 2016, and November 5, 2016; and

(2) deprivation of rights under color of state law pursuant to 42 U.S.C. section 1983. She

alleged that Dr. Truong failed to properly monitor her ankle and leg, and failed to

diagnose the infection around the surgical site.

The cause was removed to federal district court and she filed a first amended

complaint (FAC) adding a third cause of action for a violation of California Government

Code section 845.6. The FAC was returned to the Riverside County Superior Court after

the second and third causes of action, and the claim against the State of California in the

first cause of action, were dismissed. The only remaining cause of action in the FAC was

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the medical malpractice claim against Dr. Truong. Jackson’s action specifically

complained that Dr. Truong was indifferent and negligent in the care of her ankle

between August 21, 2016, and November 5, 2016, because RCRMC found that her

wound was infected and dehiscent on September 26, 2016.

2. SUMMARY JUDGMENT MOTION

Dr. Truong filed his notice of motion and motion for summary judgment of the

FAC on May 16, 2019 (Motion). Dr. Truong alleged that Jackson had failed to properly

exhaust her administrative remedies pursuant to Title 15 of the California Code of

Regulations with respect to the facts and claims against Dr. Truong. The Motion was

based on the separate statement of undisputed facts, the request for judicial notice,

deposition transcripts, and the declarations of S. Gates, W. Thorpe, and Deputy Attorney

General Gary Ostrick.

Dr. Truong contended that Jackson had failed to exhaust her administrative

remedies by filing a Form 602 naming Dr. Truong and raising the claim that she received

inadequate medical care between September 2016 and August 2017. Even if it could be

implied that she raised an issue about the medical care she received from Dr. Truong

during that time period, she did not exhaust the claim to the third level of review as

required by sections 3084.1 and 3084.7.

In support of the Motion, Dr. Truong submitted the declaration of S. Gates. He

was the Chief of the Health Care Correspondence and Appeals Branch at the CDCR. He

explained there were three levels for an inmate appeal. The first and second levels of

review were at the prison facility—in this case, CIW. The third level of review was to

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the Health Care Correspondence and Appeals Branch office. Gates also reviewed the

Form 602s filed by Jackson while she was incarcerated at CIW from 2014 until August 8,

2017. Those Form 602s were attached to Gates’s declaration.

This included the Form 602 filed on September 9, 2016, by Jackson complaining

about her falling in the shower at CIW and the inadequate treatment prior to the

ambulance arriving. There was no mention of Dr. Truong. This Form 602 was rejected;

she refiled the same Form 602 and it was designated case number HC 16028624. That

appeal also did not mention Dr. Truong or the medical care she received between

September 8, 2016, and September 26, 2016. It did include additional language that

Jackson had infection at the surgical site and that she had long-term problems with the

ankle. Dr. Truong was involved in the review of the appeal. The appeal was partially

granted giving her continued medical treatment but denied as to her request for $475,000

compensation because it was “beyond the scope of the appeals process.” She was

advised to file an appeal to the second level of review if she was unhappy with the result.

From January 2017 until June 2017, she filed several additional Form 602

complaints but they were all denied and she did not appeal beyond the first level of

review; none mentioned Dr. Truong’s name or her medical treatment in September 2016.

In June 2017, she filed a Form 602 complaining that she wanted ice packs for her ankle

and a MRI. She did not mention Dr. Truong by name or reference her medical care in

September 2016.

Dr. Truong also provided in support of the Motion a declaration from W. Thorpe

who was the inmate appeals coordinator at CIW. Thorpe received appeals from inmates,

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which were not health related. No appeals filed by Jackson between September 2016 and

September 2017, named Dr. Truong.

In further support of the Motion, Dr. Truong presented Jackson’s deposition

testimony. She had filed a Form 602 in case HC 16028624 that detailed her being upset

when she was taken from the shower. The wheelchair was too small and her foot was

dangling. She never appealed the Form 602 in that case. She recalled advising Dr.

Truong that she did not feel good and that she had chills. She asked him to look at her

leg but he would not take off the splint. She was unsure if Dr. Truong could have

removed the splint and replaced it at CIW. He told her he could not get in the splint to

look at the wound. He told her to wait for her follow-up appointment at RCRMC. A

week after the surgery she felt weak and had hot and cold flashes. She felt like she had a

bad case of the flu on September 26, 2016.

Dr. Truong also provided medical records from RCRMC. Jackson’s response to

Dr. Truong’s requests for admission were also included. She admitted she did not submit

or file a Form 602 complaining about medical care by Dr. Truong during the period from

September 2016 to December 31, 2016, or appeal any to the third level of review. She

submitted no appeals to the third level after breaking her ankle. In response to

interrogatories, Jackson complained that Dr. Truong should have been aware of the

possibility of infection and did not properly inspect her wound.

3. JACKSON’S OPPOSITION TO THE MOTION

Jackson filed opposition to the Motion. Jackson admitted she had not exhausted

her administrative remedies specifically against Dr. Truong but insisted that she had

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exhausted as to the medical treatment by the staff. She won the appeal as to medical

care. Further, less specificity is required to exhaust an administrative appeal. Jackson

also argued it would be futile to require her to file another administrative appeal raising

the same issues to just include Dr. Truong’s name. In support of the opposition to the

Motion, Jackson submitted records from CIW and RCRMC, and additional excerpts from

her deposition, and Dr. Truong’s deposition.

4. REPLY TO OPPOSITION

Dr. Truong filed a reply to Jackson’ opposition to the Motion. Dr. Truong insisted

that Jackson had failed to exhaust her administrative remedies. Section 3084 et. seq. was

very specific on exhaustion requirements and Jackson had not met the requirements.

Jackson made no attempt to distinguish her case from other cases cited by Dr. Truong as

to the exhaustion requirements. Further, she had failed to exhaust any of her

administrative remedies to the third level of review as required by section 3084 et. seq.

Further, she never filed a Form 602 that directly or indirectly complained about Dr.

Truong’s care in September 2016. Finally, Jackson failed to show that the futility

exception applied to her case.

5. RULING

The Motion was heard on July 30, 2019. Prior to the hearing, the trial court issued

a tentative ruling. The trial court planned to grant the Motion on the ground that Jackson

had failed to exhaust her administrative remedies. Relying on section 3084.1,

subdivision (b), the trial court noted that Jackson had failed to name Dr. Truong in the

Form 602. Further, even if she did not need to name Dr. Truong, she failed to comply

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with section 3084.2, subdivision (a)(3), by omitting any facts or argument that she was

complaining about the medical care received from Dr. Truong. The Form 602 only

referred to the inadequate wheelchair, the condition of the shower and the lack of

transport. Moreover, even if the Form 602 could be considered to have raised the

complaint about Dr. Truong and his medical care, Jackson failed to exhaust the claim as

required through the second and third levels of review.

The trial court also rejected that the futility exception applied. Jackson failed to

present evidence what the outcome of the proceedings would have been if she had

presented her grievance regarding the medical care provided by Dr. Truong to the Inmate

Appeals Office. Further, she presented no evidence of what the result would have been

through the second and third levels of review.

At the hearing, Jackson insisted that when she refiled the Form 602 in November

2016, after the September 9, 2016, Form 602 had been rejected, she included facts that

she had a post-surgical infection. This was sufficient to raise the issue of inadequate

medical care. Her claim was partially granted so she did not need to appeal. Jackson

only had to put the prison on notice of her claims and did not need to be factually

specific. She did not have to name Dr. Truong in order to exhaust her administrative

remedies. Further the futility exception applied because if she filed again naming Dr.

Truong, the result would be the same.

Dr. Truong responded that Jackson never filed a Form 602 complaining about

inadequate medical treatment. In fact, the relief she sought was continued medical

treatment. Further, she had to exhaust her remedies through the third level of review.

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The futility exception did not apply because she never raised the issue of inadequate

medical treatment.

The trial court adopted the tentative ruling. The judgment granting the Motion

was entered on July 30, 2019. Jackson filed a timely notice of appeal from the grant of

the Motion.

DISCUSSION

A. STANDARD FOR SUMMARY JUDGMENT

“A trial court will grant summary judgment where there is no triable issue of

material fact and the moving party is entitled to judgment as a matter of law. A

defendant moving for summary judgment must prove the action has no merit. He does

this by showing one or more elements of plaintiff’s cause of action cannot be established

or that he has a complete defense to the cause of action. At this point, plaintiff then bears

the burden of showing a triable issue of material fact exists as to that cause of action or

defense.” (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466; see also Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850 (Aguilar).) “A trial court may only

grant a motion for summary judgment if no triable issues of material fact appear and the

moving party is entitled to judgment as a matter of law.” (Schachter v. Citigroup, Inc.

(2009) 47 Cal.4th 610, 618.)

If the moving defendant meets its burden of showing evidence “that one or more

elements of the cause of action . . . cannot be established, or that there is a complete

defense to the cause of action . . . the burden shifts to the plaintiff . . . to show that a

triable issue of one or more material facts exists as to the cause of action or a defense

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thereto. The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to

show that a triable issue of material fact exists but, instead, shall set forth the specific

facts showing that a triable issue of material fact exists as to the cause of action or a

defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at

p. 849.) “[A] party ‘cannot avoid summary judgment by asserting facts based on mere

speculation and conjecture, but instead must produce admissible evidence raising a triable

issue of fact.’ ” (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199

Cal.App.4th 1132, 1144-1145.)

“In ruling on the motion, the court must ‘consider all of the evidence’ and ‘all’ of

the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence

[citations] and such inferences [citations], in the light most favorable to the opposing

party.” (Aguilar, supra, 25 Cal.4th at p. 843.) Our review of the summary judgment is

de novo. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224,

230.)

B. ADMINISTRATIVE PROCEDURE

“Under both state and federal law, a prisoner must exhaust available

administrative remedies before seeking judicial relief. . . . The exhaustion requirement is

jurisdictional: a court cannot hear a case before a litigant exhausts administrative

remedies.” (Wright v. State (2004) 122 Cal.App.4th 659, 664-665 (Wright); see also In

re Serna (1978) 76 Cal.App.3d 1010, 1014 [“The well established doctrine of exhaustion

of administrative remedies applies to grievances lodged by prisoners”].)

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 “California prison regulations establish . . . that a prisoner may seek review by

appeal of ‘any policy, decision, action, condition, or omission by the department or its

staff’ that has a material adverse effect upon [her] ‘health, safety, or welfare.’ ”

(Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1380 (Parthemore).) To commence

the administrative appeal process, the prisoner must file a Form 602 explaining the issue

under appeal and the relief requested. (§ 3084.2, subds. (a)(1) & (a)(2), 3084.6, subd.

(c).) The administrative appeal process consists of the first, second and third formal

levels of review. (§ 3084.7)

The prisoner in the Form 602 “shall list all staff members(s) involved and shall

describe their involvement in the issue.” This includes the first and last name of the staff

member and the dates involved. If the staff member name is unknown, the prisoner must

include some kind of identifying information. (§ 3084.2, subd. (a)(3).) The inmate must

include all relevant facts pertaining to the issue on appeal. (§ 3084.2, subd. (a)(4).)

Section 3084.8, subdivision (b)(1), requires the submission of an appeal within 30 days of

the occurrence of the event upon which the inmate requests relief.

If the appeal at the first level of review does not resolve the grievance, the prisoner

may proceed through the second and third levels of review. (§§ 3084.2, subds. (c) & (d),

3084.7, subds. (a)-(c).) Administrative remedies are not deemed exhausted until the

appeal proceeds to a third level review, and administrative remedies are not deemed

exhausted as to any new issue, information or person not included in the originally

submitted Form 602. (§ 3084.1, subd. (b); see also Parthemore, supra, 221 Cal.App.4th

at p. 1380.) Completion of the third level of review is required before administrative

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remedies are deemed exhausted for purposes of filing a lawsuit in the state or federal

courts. (§ 3084.1, subd. (b); see Wright, supra, 122 Cal.App.4th at p. 667.)

“Requiring proper exhaustion of administrative remedies in accordance with these

procedures serves multiple goals: it may mitigate damages; promote judicial economy;

encourage prisoners to make full use of the prison grievance processes; provide prisons

with a fair opportunity to correct their own errors; reduce the quantity of prisoner suits;

and provide a record for courts to review. [Citations.] [¶] Partly because the purpose of

a grievance procedure such as the one at issue here is to alert the prison to a problem and

facilitate its resolution, exhaustion of administrative remedies is required even when

money damages or other relief sought by the prisoner is unavailable.” (Parthemore,

supra, 221 Cal.App.4th at p. 1380.)

C. FAILURE TO EXHAUST

Jackson insists she exhausted her administrative remedies. While admitting that

she did not name Dr. Truong, she claims she did enough to raise that she received

inadequate medical care by providing that she had a surgical site infection and long term

damage to the ankle. She further claims Dr. Truong was aware of the appeal because he

was tasked to review the appeal at the first level of review.

As stated, section 3084.2, subdivision (a)(3) provides that “the inmate or parolee

shall include the staff member’s last name, first initial, title or position, if known, and the

dates of the staff member’s involvement in the issue under appeal.” In Wright, supra,

122 Cal.App.4th 659, the court rejected that an inmate need only “substantially comply”

with the exhaustion of administrative remedies. The court found that “[t]he exhaustion

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requirement is jurisdictional: a court cannot hear a case before a litigant exhausts

administrative remedies.” (Wright, at pp. 664-665.)

In accordance with section 3084.2, subdivision (a)(3), Jackson was required to

name Dr. Truong in her Form 602. Jackson concedes that she never included his name.

It was clear that Jackson was aware of Dr. Truong’s name as he had been her personal

physician. Jackson failed to exhaust her administrative remedies by not naming Dr.

Truong.

Additionally, administrative remedies are not deemed exhausted as to any new

issue, information or person not included in the originally submitted Form 602.

(§ 3084.1, subd. (b).) Here, the Form 602 submitted by Jackson on September 9, 2016,

and then resubmitted on December 1, 2016, did not mention Dr. Truong’s name or his

provided medical care. She complained about the shower being unsafe and that she was

humiliated by the size of the wheelchair used at CIW, and the lack of transportation. She

only alleged that she had an infection at the surgical site and would require lifetime

treatment. At no time did she allege that the infection or other problems she had with her

ankle was due to the treatment she received from Dr. Truong in September 2016.

In the FAC, Jackson alleged for the first time that between August 1, 2016, and

November 5, 2016, Dr. Truong failed to properly monitor her ankle, failed to diagnose

her infection and failed to properly treat the infection. Jackson failed to exhaust her

administrative remedies as to the claims alleged in the FAC.

Further, in Wright, the court found it lacked jurisdiction because the matter was

still pending in the third level of review when the complaint was filed. The court found,

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“Wright failed to exhaust his available administrative remedy because, as he

acknowledges, his third formal level review had not been resolved at the time he filed his

first amended complaint. An inmate who has not completed the review process provided

under section 3084.1, subdivision (a) has not exhausted the available administrative

remedies.” (Wright, supra, 122 Cal.App.4th at p. 667.)

Here, there is no dispute that Jackson, even if we could consider that her Form 602

implied that she was referring to Dr. Truong and the medical malpractice claims, she

never appealed to the third level of review. Because Jackson did not pursue to the third

level of review, she did not exhaust her administrative remedies. (Wright, supra, 122

Cal.App.4th at p. 667.) The Wright court noted that this exhaustion requirement applies

even if an inmate is only seeking monetary damages, which are “unavailable in the

administrative process.” (Id. at p. 668.) The court noted that “[e]xhausting the

administrative process in this case would also take advantage of the Department’s

expertise to make findings of fact, apply the law to the facts, and provide a record for the

courts to review.” (Wright, at p. 669.)

Although Jackson’s request for continued medical treatment was granted when she

filed her Form 602 in December 2016, her request for monetary compensation was

denied. She did not further appeal this decision. Based on the findings in Wright, she

needed to exhaust her administrative remedies by appealing to the second and third levels

of review. Jackson did not exhaust her administrative remedies to appeal to the third

level of review. Jackson insists that she did not have to appeal the finding on her Form

602 because it was partially granted as to medical treatment and denied as to the

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monetary compensation, which could not be obtained in the administrative process.

However, Jackson makes no effort to distinguish Wright or explain how it is not

applicable to this case. As such, we reject her claim.

Jackson failed to name Dr. Truong when filing her Form 602 seeking continued

medical treatment and compensation in the amount of $475,000; she never stated facts

that alerted the Inmate Appeals Office that she was injured due to Dr. Truong not

providing proper medical care between August 21, 2016, and November 5, 2016; and she

failed to exhaust her appeal through the third level of the review. The trial court properly

granted the Motion on the ground of failure to exhaust administrative remedies.

D. FUTILITY EXCEPTION

Jackson further claims the trial court erred by granting the Motion because it

would have been futile to require her to file a new administrative action naming Dr.

Truong. The result would be the same because her medical injuries remain the same and

the prison had predetermined the issues against her.

Under California law, “ ‘ “futility is a narrow exception to the general rule” ’

requiring exhaustion of remedies.” (Steinhart v. County of Los Angeles (2010) 47 Cal.4th

1298, 1313 [taxpayer suit].) “The exception applies only if the party invoking it can

positively state that the administrative agency has declared what its ruling will be in a

particular case.” (Ibid.)

Here, Jackson never presented the factual issue to CIW that she was seeking

redress for the medical care she received from Dr. Truong in September 2016. Although

the prison reviewed her claim that she needed continued medical treatment due to her

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falling and breaking her ankle in the shower, it was not asked to address the adequacy of

her medical care at CIW. Further, she requested compensation but did not state it was

due to inadequate medical care.

As such, this court cannot speculate how the Inmate Appeals Office at CIW would

have resolved the issue of inadequate medical care provided by Dr. Truong. The CIW

may have taken different action if they had been alerted by Jackson that she believed she

received inadequate medical care from Dr. Truong. Thus, Jackson cannot establish

futility in pursuing the required administrative procedures.

DISPOSITION

The judgment by the trial court granting the Motion is affirmed. As the prevailing

party, respondent is awarded his costs on appeal.

MILLER
Acting P. J.

We concur:

SLOUGH
J.

RAPHAEL
J.

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