Cotton v. La
Filed 9/10/10 Cotton v. La Vida Multi Specialty Medical Center CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
SYLVIA COTTON et al.,
Plaintiffs and
Appellants,
v.
LA VIDA MULTI SPECIALTY MEDICAL CENTER, INC.,
Defendant and
Respondent.
G042694
(Super. Ct.
No. 30-2008-00101022)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of Orange
County, David R. Chaffee, Judge, and Richard Habeck, Temporary
Judge. (Pursuant to Cal. Const., art VI,
§ 21.) Reversed.
Balisok & Associates
and Russell S. Balisok for Plaintiffs and Appellants.
Schmid & Voiles,
Denise H. Greer; Carroll, Kelly, Trotter Franzen & McKenna and David J.
Pruett for Defendant and Respondent.
* * *
This
case involves an appeal from a judgment dismissing plaintiffs' action against
defendant La Vida Multi Specialty Medical Center, Inc. The trial court entered judgment after
sustaining defendant's demurrer to the first amended complaint without leave to
amend on the ground the federal Medicare
Act (42 U.S.C. § 1395 et seq.) preempted the lawsuit. Based on our recent decision in
(2010) 183 Cal.App.4th 437, reversing a judgment for another defendant in
this lawsuit on the same ground, the parties filed a joint stipulation to
reverse the judgment for defendant with directions to remand the matter to the
superior court for further proceedings.
Since the parties' application complies with the requirements of Code of
Civil Procedure section 128, subdivision (a)(8) and our internal operating
procedures, we reverse the judgment in accordance with their request.
Plaintiffs are the
children of T.J. Jackson, deceased.
Jackson, a Medicare beneficiary enrolled in a health care plan named
Secure Horizons operated by PacifiCare of California, Inc., died while
recuperating from surgery to repair a broken leg. Plaintiffs sued several parties, including
defendant, PacifiCare, and another entity named StarCare Medical Group,
Inc. StarCare demurred to the original
complaint, arguing the claims against it were preempted by the Medicare Act. The trial court sustained StarCare's demurrer
without leave to amend and entered a judgment
of dismissal. Plaintiffs filed an
appeal from that judgment.
The first amended
complaint alleged Jackson failed to
receive the medical services required due to a dispute between the defendants
over financial responsibility for the cost of providing them. As a result, he suffered dehydration,
malnourishment, infection, and ultimately death. Defendant and PacifiCare were named in the
amended complaint's causes of action for negligence-willful misconduct (fifth
count), breach of fiduciary duty (sixth count), constructive fraud (seventh
count), bad faith (eighth count), fraudulent concealment (ninth count), and
wrongful death (tenth count). PacifiCare
demurred to the amended complaint, arguing the Medicare Act also preempted the
claims against it. Again, the trial
court sustained the demurrer without leave to amend and dismissed the action
against PacifiCare. Plaintiffs appealed
from that judgment as well.
Defendant also demurred
to the first amended complaint on the same grounds. The trial court sustained the demurrer
without leave to amend and dismissed the action as to defendant. Plaintiffs again appealed the decision.
While this appeal was
pending, we consolidated the StarCare and PacifiCare appeals and reversed both
judgments. In StarCare's case, the
reversal was based on procedural grounds.
(Cotton v. StarCare Medical Group,
Inc., supra, 183 Cal.App.4th at pp. 442-445.) As for the PacifiCare judgment, we agreed the
trial court properly dismissed plaintiffs' seventh cause of action for
constructive fraud but otherwise reversed.
In doing so, we rejected PacifiCare's claim the Medicare Act preempted
the remaining causes of action, plus its alternative assertion that plaintiffs
failed to exhaust their administrative remedies. (Id.
at pp. 445-456.)
In their joint
application to reverse the current judgment, the parties note plaintiffs named
defendant in â€
| Description | This case involves an appeal from a judgment dismissing plaintiffs' action against defendant La Vida Multi Specialty Medical Center, Inc. The trial court entered judgment after sustaining defendant's demurrer to the first amended complaint without leave to amend on the ground the federal Medicare Act (42 U.S.C. § 1395 et seq.) preempted the lawsuit. Based on our recent decision in Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, reversing a judgment for another defendant in this lawsuit on the same ground, the parties filed a joint stipulation to reverse the judgment for defendant with directions to remand the matter to the superior court for further proceedings. Since the parties' application complies with the requirements of Code of Civil Procedure section 128, subdivision (a)(8) and our internal operating procedures, we reverse the judgment in accordance with their request. Plaintiffs are the children of T.J. Jackson, deceased. Jackson, a Medicare beneficiary enrolled in a health care plan named Secure Horizons operated by PacifiCare of California, Inc., died while recuperating from surgery to repair a broken leg. Plaintiffs sued several parties, including defendant, PacifiCare, and another entity named StarCare Medical Group, Inc. StarCare demurred to the original complaint, arguing the claims against it were preempted by the Medicare Act. The trial court sustained StarCare's demurrer without leave to amend and entered a judgment of dismissal. Plaintiffs filed an appeal from that judgment. |
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