Writs & Appeals

Pagarigan v. Greater Valley Medical Group (2006, Cal.App. 2d Dist.) 2006 WL 2425298 (unpublished)

     The Second District Court of Appeal held that various consumer rights statutes that plaintiffs’ attorneys routinely allege in long term care litigation do not apply to the provision of health care services. The plaintiffs appealed after defendants’ demurrers were sustained by the trial court. In addition to requesting reinstatement of the various causes of action, including elder abuse, the plaintiffs argued they were entitled to claim treble damages under California Civil Code section 3345 [authorizing trebling of penalties and fines for unfair business practices against senior citizens]. In rejecting plaintiffs’ claim, the court held that Civil Code section 3345 and California’s Unfair Competition/Unfair Business Practices law (Business & Professions Code section 17200) do not apply to elder abuse claims. The Court further held that California’s Consumer Legal Remedies Act (Civil Code section 1750), which protects consumers against unfair and deceptive business practices, does not apply to the provision of health care services or custodial care.

Renko v. Northridge Care Center (2005, Cal.App. 2d Dist.) 2005 WL 2045352 (unpublished)

     Plaintiffs alleged that a nursing home allowed a resident to develop Stage IV pressure sores that became infected with flesh-eating bacteria which ate into important organs and structures in his body including portions of his genitalia, eventually causing his death. Plaintiffs sued the facility licensee, management company, and individual officers and shareholders, contending that the defendants retained insufficient staff in order to promote profitability. The individual officers/shareholders were alleged to have controlled and managed the business of the facility and personally directed and controlled the conduct of the nursing staff. Following a successful demurrer disposing of the entire action, plaintiffs appealed. The Court of Appeal held that the defendants’ decisions were motivated by lawful financial arrangements and established nothing more than negligence. Causes of action for elder abuse, wilful misconduct, fraud, and intentional tort against the facility licensee were dismissed, as were any possible recovery for attorney’s fees, pre-death noneconomic damages, or punitive damages. The management company and the officers/shareholders were completely dismissed from the case because allegations that they “controlled and managed” the facility were insufficient to establish a duty of care to the resident.

Goliger v. AMS Properties, Inc. (2004) 123 Cal.App.4th 374

     A skilled nursing facility resident’s daughter signed a care facility’s arbitration agreement as a “responsible party.” The facility moved to compel arbitration of the resident’s claims and the daughter’s wrongful death claim. Despite the fact that the daughter had been making the mother’s healthcare decisions, the court held that the lack of a written power of attorney made the daughter’s agreement to waive the mother’s right to a jury trial unenforceable. The case reinforced recent California case law holding that a written power of attorney is of critical importance in enforcing an arbitration agreement that is signed by a family member.

Ostayan v. Nordhoff Townhomes Homeowners Ass’n. Inc. (2003) 110 Cal.App.4th 120

     A former townhome owner brought an action against the homeowners association for negligence, breach of fiduciary duty, and constructive trust after the association received a substantial settlement for earthquake damage to the townhome complex and gave part of the proceeds to current townhome owners. The former homeowner claimed that he was entitled to the proceeds because he had owned the home at the time of the earthquake and only recently had sold his townhome. He claimed that the Homeowner’s Association owed a duty to inform him that an insurance bad faith lawsuit was going to be filed. In affirming summary judgment for the Homeowner’s Association, the Court held that the association did not owe the former owner a fiduciary duty to inform him of filing of insurance litigation.

Ventura Unified School District v. Superior Court (2001) 92 Cal.App.4th 811

    A minor plaintiff was injured while operating a machine in shop class at his high school located in Ventura County. He was transported for emergency surgery to a medical facility operated by a public entity in Los Angeles County. The plaintiff filed a lawsuit in Los Angeles County against the school district for negligent supervision and dangerous condition of public property and against the medical facility for medical malpractice. After the medical facility settled with plaintiff shortly before trial and was dismissed, the school district moved for a change of venue to Ventura County. The Court of Appeal reversed the trial court’s denial of the motion, holding that the trial court lacked discretion to decline to follow Code of Civil Procedure section 394 which confers upon a public entity the absolute right to a change of venue to the county where the accident occurred. The court further held that there was no unreasonable delay on the part of the school district and, thus, no waiver under section 394.

Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291

     A patient brought an action for professional negligence, sexual battery, and intentional and negligent infliction of emotional harm against an ultrasound technician, a hospital and others. The plaintiff alleged that the technician sexually molested her during the course of an ultrasound examination. After the trial court granted the hospital’s motion for summary judgment on the grounds that the hospital was not vicariously liable for the battery as a tort committed within the scope of the technician’s employment. Attorneys with the firm filed an amicus brief on behalf of a skilled nursing facility advocating the position that a sexual battery is outside the course and scope of employment as a matter of law. The California Supreme Court ultimately agreed with this analysis.

     The Court held that the technician’s conduct was beyond the scope of his employment as a matter of law, and, therefore, the hospital could not be vicariously liable under the doctrine of respondeat superior. The examination provided no occasion for a work-related dispute or any other work related emotional involvement with plaintiff. As with nonsexual assaults, a sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. Although the examination involved physical contact with plaintiff, the assault on her did not originate with, and was not a generally foreseeable consequence of, that contact. Moreover, the battery did not arise from any abuse of job-created authority. The technician was not vested with any coercive authority, and the trust plaintiff was asked to place in him was limited to conduct of the examination.

Accardi v. Superior Court (1993) 17 Cal.App.4th 341

     A former police officer brought an action against a city and several individuals alleging causes of action for sexual harassment. The trial court sustained defendants’ demurrers without leave to amend finding the cause of action for sexual harassment was time-barred and the emotional distress claims were preempted by Labor Code section 132a as being exclusively within the remedy of workers’ compensation. The Court of Appeal overruled the trial court, holding for the first time in California that the continuing violations doctrine applied to sexual harassment claims. Under this doctrine, a well-established pattern of conduct that creates a hostile work environment over a period of years is not barred by the statute of limitations so long as one of the acts of harassment or discrimination occurred within the limitations period.

Roach v. Lewis (1993) 14 Cal.App.4th 1179

     The plaintiff filed his personal injury lawsuit four days short of the remaining statute of limitations and delayed in serving the defendants until almost three years after the complaint was filed. Defendants moved to dismiss for failure to prosecute. The Court of Appeal affirmed the trial courts dismissal of the action. The Court held that the trial court properly concluded plaintiff’s proffered excuses for the delay - that her husband’s case and certain aspects of her case had settled, she was afraid of premature settlement since further physical complications from the accident might have developed, and she sought to avoid the stress of discovery - were neither credible nor reasonable. It held that when the trial court has ruled on a motion to dismiss for delay in prosecution, unless a clear abuse of discretion is shown or unless there has been a miscarriage of justice, a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. The burden is on the party complaining to establish an abuse of discretion.

Care Enterprise West v. Superior Court (Jacqueline H. Segal) (2003, Cal. App. 4th Dist., Div. 2) Court of Appeal, Case Number E032970 (unpublished)

    This important decision helped define the law concerning a health care provider’s liability for punitive damages based on the ratification of misconduct by a “managing agent.” Plaintiff asserted that a nursing home’s substandard care was ratified by the corporation based upon evidence the facility’s Director of Nursing Services had participated in care planning and supervised the delivery of care to plaintiff’s decedent, thereby justifying an award of punitive damages. Civil Code § 3294(b) requires that in claims for punitive damages claims against an employer, egregious conduct must be either committed directly by the employer or the employer must have ratified or authorized the egregious conduct. In the case of a corporation, the relevant conduct or authorization/ratification must be by an officer, director, or managing agent of the corporation. In granting plaintiff’s motion pursuant to Code of Civil Procedure § 425.13, the trial court ruled that the plaintiff’s evidence of corporate ratification was sufficient to go to a jury. Defendant petitioned the Fourth District Court of Appeal for a Writ of Mandate, asserting legal error in the trial court’s interpretation of Civil Code § 3294(b). The Court of Appeal granted the writ and directed the Superior Court to enter a different order - that the plaintiff’s evidence was insufficient to permit the issue of punitive damages to go to the jury. Specifically, the Court of Appeal held that the evidence presented by plaintiff was insufficient to establish that the facility’s Director of Nurses had been given authority to adopt and establish corporate policy. Neither the title of Director of Nurses, nor the participation in care planning or supervision of care were, in and of itself, sufficient to satisfy the legal definition of managing agent for purposes of applying the elements of Civil Code § 3294(b). In making it’s ruling, the Court of Appeal specifically rejected the case law relied upon by the plaintiff (derived from the CEB practice guide “California Elder Law Litigation: An Advocates Guide”) as having no application to the issue of who may be a managing agent for purpose of determinations under Civil Code § 3294(b). (Note: The CEB guide still cites to NLRB v. Health Care & Retirement Corp. (1994) 51 U.S. 572 and NLRB v. Kentucky River Community Care, Inc. (2001) 532 US 706 in a section entitled “Who is a Managing Agent.” The cases address the unrelated issue of whether registered nurses belong in a management level collective bargaining unit. )

Flores v. Evergreen at San Diego, L.L.C. (2007) 148 Cal.App.3d 581.

    This published appeal addressed the issue of whether a spouse could bind the other spouse to an arbitration agreement signed during admission to a skilled nursing facility. Beach | Whitman | Cowdrey attorneys contended that individuals had authority to enter into arbitration agreements for their spouses because spouses have a fiduciary duty under California statutes to provide for health care. The Court of Appeal held that the spousal duty to provide health care does not create the power to contractually bind each other in the agency context. The court held that individuals are required to hold a power of attorney if they intend to enter into a binding arbitration agreement on behalf of their spouses.

Victoria Starkey v. Covenant Care, Inc. (2004, Cal.App. 2 Dist.) 2004 WL 206209 (unpublished)

     Appellant, Victoria Starkey, filed a personal injury action against Covenant Care, on behalf of her mother Elizabeth Kurrus arising from Kurrus’ treatment during her stay at a Covenant Care nursing facility. Shortly after Starkey filed the injury action, she asked Covenant Care to provide the medical records concerning her mother’s stay. Multiple subsequent requests were made by Starkey, and then by Starkey’s attorney, Russell Balisok. Covenant Care General Counsel Andrew Torok informed Balisok that his record requests were defective. Balisok never asked for an explanation and instead filed a separate action against Covenant Care and Torok, alleging that the delay in producing the records was an Unlawful Business Practice [Business and Professions Code § 17200 et. seq.] engineered to enable Covenant to review and change the records to protect itself from potential malpractice actions. In the bench trial of the unfair business practices action, the trial court found that Starkey’s authorizations and requests for records were defective. The trial court also ruled that Starkey’s status as Kurrus’s daughter was not sufficient in and of itself to require release of the records under California law. The trial court also ruled that the content of communications between the parties regarding release of the records were privileged under Civil Code section 47, subdivision (b) and could not be the source of liability. But, the court concluded, even if it had permitted the communications into evidence, Covenant Care still would have prevailed. Starkey appealed from the judgment. The Court of Appeal affirmed that Covenant Care’s refusal to release the records, was due to the defective requests for them, and not the result of any unlawful practice.