Estrada v. Kaiser Foundation Hospital
Filed 1/24/14 Estrada v. Kaiser Foundation Hospital CA2/4
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
TERESA ESTRADA,
Plaintiff
and Appellant,
v.
KAISER FOUNDATION HOSPITAL
et al.,
Defendants
and Respondents.
B247912
(
Super.
Ct. No. PC052278)
APPEAL from judgments of the
Randy Rhodes, Judge. Reversed in part
and Affirmed in part.
Teresa Estrada, in pro. per., for
Plaintiff and Appellant.
Gittler & Bradford, Randy A. Berg and
Stephen H. Marcus for Defendant and Respondent Kaiser Foundation Hospitals.
Pollak, Vida & Fisher, Daniel P.
Barer and Anna L. Birenbaum for Defendant and Respondent County of Los Angeles.
La Follette, Johnson, De Haas, Fesler
& Ames, Christopher P. Wend and David J. Ozeran for Defendant and
Respondent Samer Alaiti, M.D.
Taylor Blessey, Barbara M. Reardon and
Dean J. Smith for Defendant and Respondent Paul Grodan, M.D.
Plaintiff
Teresa Estrada appeals from judgments of dismissal in favor of defendants
Kaiser Foundation Hospitals
(Kaiser), County of Los Angeles (erroneously sued as Olive View Medical Center), Samer Alaiti, M.D., and
Paul Grodan, M.D., after all of those defendants’ demurrers to Estrada’s second
amended complaint were sustained without leave to amend. We affirm the judgments as to County of Los Angeles, Dr. Alaiti, and Dr.
Grodan, but reverse as to Kaiser.
BACKGROUND
Estrada worked as a housekeeping
attendant for Kaiser. She alleges that
she was exposed to certain infections
while cleaning an empty patient room in May 2008, because the room was not
identified as an isolation room. The
following month, Estrada developed sores inside her mouth and on her
scalp. When the sores did not go away
after she applied over-the-counter
operated by the County of Los Angeles) on July 2, 2008 for diagnosis and treatment.
Initially, Estrada’s condition was
diagnosed as impetigo and a fungal infection. She was instructed to use a medicated soap and
shampoo, and to return if the sores did not subside. She returned on July
6, 2008, and was diagnosed with multiple infections. She was admitted to the hospital for several
days and treated with intravenous antibiotics.
At the time she was discharged, the sores were healing and she was able
to eat. She was instructed to return to
Olive View’s dermatology clinic in a week.
When Estrada went to the dermatology
clinic as instructed, the physician there ordered a skin biopsy. He concluded she had pemphigus vulgaris, an
autoimmune disorder, and prescribed prednisone for her. A few weeks later, Estrada went to her heart
doctor, who told her that her skin was infected and she needed immediate
treatment. He told her to go directly to
a nearby hospital, where she was admitted and given
to go back to Olive View’s dermatology clinic; when she did so, she was
instructed to continue to take prednisone for pemphigus vulgaris.
Several days later, on August 27, 2008, Estrada retained the Law Firm of
Kenneth H. Rowen (LFKHR) to file a workers’ compensation claim against Kaiser. LFKHR submitted the claim form the following
day. LFKHR also arranged for Estrada to
be evaluated by Samer Alaiti, M.D. in connection with her workers’ compensation
claim, and provided him with Estrada’s records from Olive View. On December
31, 2008, Dr. Alaiti reported to LFKHR that he had reviewed the records from
Olive View, and he concluded there was no causation between Estrada’s condition
and her exposure while cleaning rooms at Kaiser.
Several months later, Estrada received
a letter from LFKHR, informing her that an appointment had been scheduled for
her to be examined by Dr. Paul Grodan.
Dr. Grodan was provided with Estrada’s medical records from several
Kaiser facilities, as well as her records from Olive View. Estrada was questioned and examined by Dr.
Grodan in July 2009. In March 2010, she
was told by LFKHR that Dr. Grodan provided a report stating that her injuries
were not work-related. She discharged
LFKHR as her attorney a few months
later.
Estrada continued to have outbreaks of
sores, and went to various hospitals for treatment. By November 2010, her ex-husband, who had
compiled her medical history and accompanied her to the hospitals, suggested to
the treating physicians that her sores may be drug-induced; some of the
physicians agreed it was possible that the sores could be drug-induced rather
than pemphigus vulgaris. In April 2011,
Estrada was admitted to USC Medical Center, where she again received
intravenous antibiotics. She was tested
for pemphigus vulgaris, and the test came back negative.
In the meantime, Estrada, now
representing herself, continued to prosecute her workers’ compensation claim
before the Workers’ Compensation
Appeals Board (WCAB), and on January 17, 2012, she entered into a
settlement agreement with Kaiser. On
that date, Estrada signed a form “Compromise and Release†that contained the
following paragraph: “Upon approval of
this compromise agreement by the Workers’ Compensation Appeals Board or a
workers’ compensation administrative law judge and payment in accordance with
the provisions hereof, the employee releases and forever discharges the
above-named employer(s) and insurance carrier(s) from all claims and causes of
action, whether now known or ascertained or which may hereafter arise or develop
as a result of the above-referenced injury(ies), including any and all
liability of the employer(s) and the insurance carrier(s) and each of them to
the dependents, heirs, executors, representatives, administrators or assigns of
the employee. Execution of this form has
no effect on claims that are not within the scope of the workers’ compensation
law or claims that are not subject to the exclusivity provisions of the
workers’ compensation law, unless otherwise expressly stated.â€
Attached to the form “Compromise and
Release†was a typewritten addendum, with certain handwritten
modifications. Under the heading “Body
Parts†was the following typewritten paragraph:
“Included in this settlement is any potential claim of injury to
applicant’s head/headaches, Staphylococcus aureus, staph infection, chronic
pain, internal organs, hypertension, hypertensive cardiomyopathy, congestive
heart failure, Pemphigus vulgaris, and skin infection.†The parties added the handwritten words “workers
compensation†after the word “potential,†and handwrote “& hair loss†at
the end of the sentence. The addendum
also included a section headed “Denial of Injury.†The typewritten part of that section included
the following: “This settlement is based
upon the AME opinion of Paul Grodan, M.D. [d]ated July
7, 2009. Dr. Grodan states that based
upon his evaluation of the applicant and his review of the current medical
file, he is unable to establish a nexus between the applicant’s multiple
medical conditions and employment at Kaiser Foundation Hospital.†The parties added an additional date for Dr.
Grodan’s report, and handwrote an additional sentence following the above
quoted sentence: “Applicant disputes Dr.
Grodan’s report and agrees to settlement to avoid litigation in this workers
compensation case.â€
A week before signing the “Compromise
and Release†in the workers’ compensation case, Estrada, representing herself,
filed the instant lawsuit. Using a form
complaint, which attached a form cause of action for intentional tort, Estrada
alleged a single cause of action for battery, stating that defendants “inflicted
the Plaintiff with a drug-induced rash lasting for nearly three years.†She also attached a 14-page typewritten
document, setting out her claim in more detail. In essence, Estrada alleged that Kaiser (1) obtained
the account and case numbers for Estrada’s case, which were linked to Olive
View’s dermatology clinic, and solicited Olive View to create a new chart with
a diagnosis of pemphigus vulgaris, prescribe prednisone, and schedule monthly
appointments with Estrada for the purpose of generating medical records stating
that she has pemphigus vulgaris; (2) solicited LFKHR to produce a fraudulent
written subpoena and notice statement to obtain Estrada’s medical records from
Olive View and then disclose those records to Dr. Alaiti and Dr. Grodan; and (3)
solicited Dr. Alaiti and Dr. Grodan to produce fraudulent medical evaluations
criticizing Estrada’s account of her occupational injuries. Finally, in the form “Exemplary Damages
Attachment†to the complaint, Estrada alleged that Kaiser “had willfully and
intentionally violated California Civil Code Section 56.10 and California Labor
Code Section 3820 in [an] effort to avoid liability and any compensation for
the Plaintiff’s occupational injuries,†by (as best we can ascertain from the
confusing allegations) dictating the contents and disclosure of Estrada’s
medical files.
Estrada filed a first amended
complaint less than two weeks later. The
first amended complaint was also a form complaint, but it did not include the
form cause of action for intentional tort.
Instead it simply attached a modified version of the typewritten
attachment to the original complaint.
The modified version added a prayer for relief, as well as allegations
that asserted Estrada was exempt from the government tort claim filing
requirements with regard to Olive View.
After demurrers were sustained with
leave to amend, Estrada filed the second amended complaint, the complaint at
issue here. Although she again used a
form complaint, she attached to it a 40-page typewritten complaint setting out
a detailed “chronological history†and purporting to allege two causes of
action: intentional infliction of
emotional distress (against LFKHR and Olive View), and civil battery (against all
of the defendants).
title="">[2] Estrada also attached a form cause of action
for intentional tort naming all of the defendants, and a form exemplary damages
attachment. Although the complaint is
difficult to navigate, the basis for her claims appears to remain essentially
the same: she alleges that Kaiser (1)
gave Olive View an “assessment plan†for Estrada, apparently directing Olive
View to diagnose her with pemphigus vulgaris and treat her with prednisone; (2)
solicited LFKHR to produce fraudulent documents relating to Estrada’s medical
records from Olive View, including letters stating that it provided those
records to Dr. Alaiti and Dr. Grodan; and (3) solicited Dr. Alaiti and Dr.
Grodan to produce unauthorized reports stating that her injuries were not
work-related.
Each of the defendants filed a
demurrer to the second amended complaint.
Kaiser argued (1) the trial court had no jurisdiction over Estrada’s
claims because they fall under the exclusive jurisdiction of the WCAB (Lab.
Code, § 5300); (2) Estrada released all claims against Kaiser related
to her injuries; (3) the battery cause of action is barred by the two-year
statute of limitations for battery (Code Civ. Proc., § 335.1); and (4) the
complaint fails to state facts sufficient to state a cause of action. The County of Los Angeles (erroneously sued
as Olive View Medical Center) argued (1) Estrada’s claims are barred because
she failed to comply with the requirements of the Government Claims Act (Gov.
Code, § 900 et seq.); (2) the claims are barred by the statute of
limitations for professional negligence (Code Civ. Proc., § 340.5); (3)
the complaint fails to state a cause of action against the County because it
does not allege any statutory basis for the County’s liability; and (4) the
complaint is uncertain. Both Dr. Alaiti
and Dr. Grodan argued that Estrada’s claims are barred by the litigation
privilege (Civ. Code, § 47, subd. (b)) and the statute of limitations
(Code Civ. Proc., §§ 335.1, 338, 340), and her complaint fails to state a
cause of action against them.
The trial court sustained each
demurrer without leave to amend, and dismissed each defendant. Estrada filed notices of appeal from each
dismissal.
A.
Because this appeal comes to us upon
the sustaining of demurrers without leave to amend, we must assume the truth of
the properly pleaded factual allegations in the complaint (to the extent we are
able to comprehend them), but not contentions, deductions, or conclusions of
law. We also consider judicially noticed
matters in determining whether the complaint states facts sufficient to
constitute a cause of action. (
318.) “If the complaint states a cause
of action under any theory, regardless of the title under which the factual
basis for relief is stated, that aspect of the complaint is good against a
demurrer. ‘[W]e are not limited to
plaintiffs’ theory of recovery in testing the sufficiency of their complaint
against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause
of action under any legal theory. The
courts of this state have . . . long since departed from holding a plaintiff
strictly to the “form of action†he has pleaded and instead have adopted the
more flexible approach of examining the facts alleged to determine if a
demurrer should be sustained.’†(
(1998) 19 Cal.4th 26, 38-39.)
B.
Sustained Without Leave to Amend
As noted, Kaiser raised four grounds
in its demurrer: (1) Estrada’s claims
fell under the exclusive jurisdiction of the WCAB; (2) Estrada released all
claims against Kaiser related to her injuries; (3) the statute of limitations
barred Estrada’s claim for battery; and (4) the complaint fails to allege facts
sufficient to state a cause of action. Although we sympathize with the trial court in
trying to decipher the complaint, which is extraordinarily confusing, we
conclude that Estrada has alleged sufficient facts to state a cause of action
outside the exclusive jurisdiction of the WCAB and the terms of the release,
and that she filed her complaint within two years after she discovered her
alleged claim. Therefore, the court
erred in sustaining Kaiser’s demurrer without leave to amend.
1.
Not Apply
Under California’s workers’
compensation law, claims related to injuries suffered by an employee in the
course and scope of her employment generally are subject to the exclusive
jurisdiction of the WCAB. (
Comp. Ins. Fund (2001) 24 Cal.4th 800, 810-811 (Vacanti).) As the Supreme
Court explained, “The underlying premise behind this statutorily created system
of workers’ compensation is the ‘“compensation bargain.â€â€™ [Citation.]
Pursuant to this presumed bargain, ‘the employer assumes liability for
industrial personal injury or death without regard to fault in exchange for
limitations on the amount of that liability.
The employee is afforded relatively swift and certain payment of
benefits to cure or relieve the effects of industrial injury without having to
prove fault but, in exchange, gives up the wider range of damages potentially
available in tort.’ [Citation.]†(Id.
at p. 811.)
“To effectuate this theoretical
bargain, the Legislature enacted several provisions limiting the remedies
available for injuries covered by the WCA [i.e., the Workers’ Compensation Act]
(the exclusive remedy provisions).†(
Acknowledging that determining the exact parameters of workers’
compensation exclusivity can be difficult, the Court summarized certain guiding
principles: “In determining whether
exclusivity bars a cause of action against an employer or insurer, courts
initially determine whether the alleged injury falls within the scope of the
exclusive remedy provisions. Where the
alleged injury is ‘collateral to or derivative of’ an injury compensable by the
exclusive remedies of the WCA, a cause of action predicated on that injury may
be subject to the exclusivity bar. . . . [¶] If
the alleged injury falls within the scope of the exclusive remedy provisions,
then courts consider whether the alleged acts or motives that establish the
elements of the cause of action fall outside the risks encompassed within the
compensation bargain. ‘[I]n some
exceptional circumstances the employer is not free from liability at law for
his intentional acts even if the resulting injuries to his employees are
compensable under workers’ compensation.’
[Citation.] Where the acts are ‘a
“normal†part of the employment relationship’ [citation], or workers’
compensation claims process [citation], or where the motive behind these acts
does not violate a ‘fundamental policy of this state’ [citation], then the
cause of action is barred. If not, then
it may go forward.†(
Kaiser argues that Estrada’s claims
against it are barred by the workers’ compensation exclusivity rules because “all
of the acts attributable to Kaiser (whatever those acts are) were geared
towards defending against or defeating [Estrada’s] worker’s compensation claim.â€
Kaiser asserts that the present case on
point with Mitchell v. Scott Wetzel
Services, Inc. (1991) 227 Cal.App.3d 1474 (Mitchell), in which the appellate court found that a claim based
upon an employer’s in-house insurance administrator’s misconduct during workers’
compensation proceedings was subject to the exclusive jurisdiction of the WCAB. (Id.
at p. 1481.) Kaiser’s assertion is a bit
too facile.
In Mitchell,
the plaintiff alleged that the administrator had repeatedly delayed
rehabilitation and disability payments, threatened to terminate benefits for
untrue reasons, misrepresented to the plaintiff that checks had been mailed,
stopped payment or put a hold on checks that had been delivered, misrepresented
the availability of a rental car to take the plaintiff to a medical
examination, and committed perjury before a WCAB judge. (Mitchell,
supra, 227 Cal.App.3d at pp.
1477-1478.) The appellate court began
its analysis by noting there is “a judicially created exception to the WCAB’s
exclusive jurisdiction over insurers.
Conduct which ‘goes beyond the normal role of an insurer’ renders the
insurer vulnerable to suit as a ‘person other than the employer.’†(Id.
at p. 1479, quoting Unruh v. Truck
Insurance Exchange (1972) 7 Cal.3d 616, 630-631 (Unruh).) It then closely
examined the allegations of the plaintiff’s complaint to determine whether the
conduct alleged went beyond the normal role of insurer.
The appellate court noted that most of
the plaintiffs’ allegations “essentially involve the payment of benefits, the enforcement
of the payment of benefits, the discontinuance
of benefits, or rights incidental to
the payment of benefits. . . . But for
the failure of [the administrator] to pay benefits (by issuing timely
negotiable checks), [the plaintiff] would have no complaint.†(Mitchell,
supra, 227 Cal.App.3d at p. 1480, italics
added.) With regard to the allegations
of perjury, the court found that “[t]he alleged perjury occurred in the course
of a WCAB enforcement proceeding, and
was motivated by [the administrator’s] desire to deprive the WCAB of
information relevant to possible penalties.
It is hard to imagine any matter bearing more directly on enforcement of
payments.†(Mitchell, supra, 227 Cal.App.3d at p. 1481, italics added.) With regard to the administrator’s
misrepresentation about the rental car, the court observed that this alleged
conduct was “the closest [the administrator] comes to stepping out of the role
of insurer,†since “[i]nsurers do not normally provide rental cars.†(Ibid.) But the court found that even there, the
activity was within the exclusivity provisions because it was closely connected
to the payment of benefits, since “[t]he alleged misrepresentation occurred in
the context of travel arrangements incidental to a medical examination which
was part of the processing of [the plaintiff’s] claim.†(Ibid.) The court concluded that “[a]s reprehensible
as [the administrator’s] conduct may have been, it concerned how and when
benefits are paid -- something manifestly within a workers’ compensation
insurer’s role,†which distinguished it from Unruh. (Ibid.)
In this case, a close examination of
the allegations of the complaint (a difficult job, we concede) reveals that at
least some of Estrada’s claims are based on alleged conduct that “goes beyond
the normal role of an insurer†or employer, allegedly causing injury to Estrada
beyond her purported industrial injury, and thus within the judicially-created
exception to the WCAB’s exclusive jurisdiction.
(Unruh, supra, 7 Cal.3d at p. 630.)
Specifically, in paragraphs 114 through 116 of the second amended
complaint, Estrada alleges that: (1)
Kaiser is self-insured (paragraph 114); (2) Kaiser (presumably in its role as
insurer) was given Estrada’s account and case numbers, which were linked to
Olive View’s dermatology clinic and gave Kaiser control to write information
that would be recorded in the medical records (paragraph 115); and (3) Kaiser
gave Olive View an “assessment plan†to be implemented on Estrada, which called
for Estrada to be diagnosed with pemphigus vulgaris and treated with prednisone
(paragraph 116). These allegations are
reiterated, in varying forms, elsewhere in the complaint. For example, in paragraph 149, Estrada
alleges that Olive View “allowed [Kaiser] to intervene on [Olive View’s]
initial treatment plan for plaintiff.â€
In paragraph 159, she alleges that Kaiser “developed a plan for which
[it] proposed a medical assessment plan which would account for Plaintiff’s
skin injuries.†She alleged in paragraph
151 that two weeks after she started taking prednisone (as prescribed by Olive
View), she developed on a previously unaffected area of her skin sores that
were different than the sores she had when she first sought treatment. And she alleged in paragraph 163 that she did
not, in fact, have pemphigus vulgaris, but instead had a drug-induced rash that
was similar in appearance to pemphigus vulgaris.
As improbable as the allegations
appear, on demurrer we must assume their truth.
And if it were true that an employer, in its role as self-insurer, interfered
with an employee’s medical treatment by convincing the medical professionals
treating the employee’s industrial injury to intentionally state an incorrect
diagnosis and order treatment that would only worsen the employee’s condition
rather than cure it, we conclude those acts would go far “beyond the normal
role of an insurer†or employer. (
a cause of action predicated on those allegations would not be barred by the
workers’ compensation exclusivity rule, and Kaiser’s first ground for demurrer
fails.
2.
Against Kaiser
Kaiser’s second ground for demurrer
also fails. Kaiser contends that the
release Estrada signed in settlement of her workers’ compensation claim bars
the instant lawsuit. In making this
argument, Kaiser quotes only the portion of the document that states Estrada
released “all claims and causes of action, whether now known or ascertained or
which may hereafter arise or develop as a result of the above-referenced
injury(ies).†But the sentence
immediately following the sentence Kaiser quoted states: “Execution of this form has no effect on
claims that are not within the scope of the workers’ compensation law or claims
that are not subject to the exclusivity provisions of the workers’ compensation
law, unless otherwise expressly stated.â€
Because we have found that a cause of action based on the allegations we
identified in the previous section would not be barred by the workers’
compensation exclusivity rule, it also would not be barred by the release
Estrada signed.
3. The
Statute of Limitations Does Not Bar Estrada’s Claim
Kaiser’s demurrer cannot be sustained
on the third ground Kaiser asserted, i.e., the statute of limitations. The statute of limitations for battery or
intentional infliction of emotional distress is two years. (Code Civ. Proc., § 335.1.) Kaiser observes that all of the conduct that
Estrada alleges it did, including the alleged infliction of pemphigus vulgaris
or treatment with prednisone, occurred in 2008.
Kaiser also notes that Estrada was aware that she was suffering from an
outbreak of sores by December 2, 2008. Therefore, Kaiser argues that Estrada’s
complaint, originally filed in January 2012, was untimely.
We disagree with Kaiser’s analysis. Although Kaiser is correct that Estrada was
aware that she was suffering from an outbreak of sores in 2008, she alleges
(albeit not very well) that she did not know that Kaiser intervened in her
medical treatment -- by directing Olive View to misdiagnose her with pemphigus
vulgaris and treat her with prednisone -- which she seems to allege prevented
her from getting the proper treatment for those sores, until sometime after she
and her ex-husband received her files from LFKHR in July 2010. Thus, the statute of limitations for her cause
of action against Kaiser did not accrue until sometime after July 2010, when
she discovered Kaiser’s alleged conduct.
(Aryeh v. Canon Business
Solutions, Inc. (2013) 55 Cal.4th 1185, 1192-1193 [common law discovery
rule, which postpones accrual of a cause of action until the plaintiff
discovers, or has reason to discover, the cause of action, applies to statute
of limitations unless the statute legislatively supplants it].) Accordingly, Kaiser’s demurrer could not be
sustained on statute of limitations grounds.
4. Estrada
Has Alleged Sufficient Facts to State a Cause of Action for
Emotional Distress, But Not For Battery
Estrada’s confusing second amended
complaint purports to allege three causes of action, two of which are found in
the typewritten complaint attached to the form complaint, and a third form
cause of action for intentional tort. The
form cause of action, however, does not allege any facts stating a cause of action, and therefore it is subject to
demurrer.
The second cause of action, which
names Kaiser as a defendant, is for civil battery. “The elements of civil battery are (1)
defendant intentionally performed an act that resulted in a harmful or
offensive contact with the plaintiff’s person; (2) plaintiff did not
consent to the contact; and (3) the harmful or offensive contact caused injury,
damage, loss or harm to plaintiff.†(
Cal.App.4th 516, 526-527.) Estrada
appears to allege that Kaiser’s conduct in giving Olive View an assessment plan
to be implemented upon her ultimately resulted in the harmful contact that
occurred when she went to USC Medical Center to be treated in April
2011, and the nurses had to peel away her clothing, which had adhered to the
lesions on her body. While Estrada’s
description of this process no doubt demonstrates harmful and offensive
contact, it does not allege civil battery because she consented to that contact
(regardless of its alleged source).
Therefore, the cause of action for battery against Kaiser was properly
dismissed on demurrer.
Nevertheless, although the first named
cause of action, for intentional infliction of emotional distress, is asserted
only against LFKHR and Olive View, we conclude that Estrada has alleged
sufficient facts -- which we must assume to be true for the purpose of
demurrer, regardless of their improbability -- to state a cause of action
against Kaiser for intentional infliction of emotional distress. “‘The elements of a cause of action for
intentional infliction of emotional distress are (1) the defendant engages in
extreme and outrageous conduct with the intent to cause, or with reckless
disregard for the probability of causing, emotional distress; (2) the plaintiff
suffers extreme or severe emotional distress; and (3) the defendant’s extreme
and outrageous conduct was the actual and proximate cause of the plaintiff’s
extreme or severe emotional distress.
[Citation.] “[O]utrageous conductâ€
is conduct that is intentional or reckless and so extreme as to exceed all
bounds of decency in a civilized community.
[Citation.] The defendant’s
conduct must be directed to the plaintiff, but malicious or evil purpose is not
essential to liability. [Citation.]’ [Citation.]â€
(So v. Shin (2013) 212
Cal.App.4th 652, 671.)
Estrada’s allegation that Kaiser
directed Olive View to misdiagnose her sores as pemphigus vulgaris and treat
her with prednisone, which she alleges caused an outbreak of painful sores all
over her body, satisfies these elements.
Therefore, Kaiser’s demurrer to her complaint was improperly sustained
without leave to amend.
C.
View Are Barred by Her Failure
to Comply With The Government Claims Act
As noted, the County of Los Angeles
(erroneously sued as Olive View Medical Center) asserted as one of the grounds
for its demurrer that Estrada’s claims against it were barred because she
failed to comply with the requirements of the Government Claims Act (Gov. Code,
§ 900 et seq., also known as the California Tort Claims Act). Although the record does not disclose whether
the trial court sustained the County’s demurrer on this ground, Estrada appears
to concede that it did in her Appellant’s Opening Brief. The trial court was correct.
“Actions against a public entity, such
as the County, are governed by the California Tort Claims Act (Gov. Code, § 900
et seq.). Under the Tort Claims Act, a
plaintiff may not maintain an action for damages against a public entity unless
a written claim first has been presented to the defendant and has been
rejected. (Gov. Code, §§ 905,
945.4). A claim based on a personal
injury cause of action must be presented within six months of the date the
cause of action accrued. (Gov. Code, § 911.2). After six months, a plaintiff may apply to
the public entity for leave to present a late claim. The application must be presented within a
reasonable time, not to exceed one year after the cause of action accrued (Gov.
Code, § 911.4). If the application
is denied, the plaintiff may, within six months, petition the court for an
order for relief from the claims-presentation procedures (Gov. Code, § 946.6). [Citation.]
The court, however, lacks jurisdiction to grant relief if the
application to file a late claim was filed more than one year after the cause
of action accrued.†(
Cal.App.4th 29, 34.) The Supreme Court
has held that “a plaintiff must allege facts demonstrating or excusing
compliance with the claim presentation requirement. Otherwise, his complaint is subject to a
general demurrer for failure to state facts sufficient to constitute a cause of
action.†(State of California
(2004) 32 Cal.4th 1234, 1243.)
In this case, Estrada alleges in her
second amended complaint that she complied with the Tort Claims Act by filing a
claim form with an application for leave to present a late claim on January 19, 2012.
That allegation does not demonstrate compliance with the claim
presentation requirement, however, because the complaint alleges that she
suspected wrongdoing by Olive View (i.e., the County) in November 2010. At that time, her claim against the County
accrued (see K.J. v. Arcadia Unified
School Dist. (2009) 172 Cal.App.4th 1229, 1241 [claim accrues when the
plaintiff suspects a factual basis for it]), and she had six months to file a
claim with the County, or one year to file an application for leave to file a
late claim. (Gov. Code, §§ 911.2,
911.4.) Therefore, her allegation that
she did not file her claim or application to file a late claim until January
2012 establishes that she did not
comply with Tort Claims Act. Thus, the
trial court properly sustained the County’s demurrer without leave to amend.
D.
Alaiti and Dr. Grodan Are Barred
By The Litigation Privilege
Estrada’s causes of action against Dr.
Alaiti and Dr. Grodan are, in essence, based upon allegations that each of them
submitted false medical evaluation reports in connection with her workers’
compensation claim.
title="">[4] Dr. Alaiti and Dr. Grodan each demurred on
the ground, among others, that Estrada’s causes of action were barred by the
litigation privilege, Civil Code section 47, subdivision (b). Once again, although the record on appeal does
not reveal the basis upon which the trial court sustained their demurrers,
Estrada appears to concede that the court found that the litigation privilege
barred her causes of action. The trial
court was correct.
Civil Code section 47, subdivision (b)
“provides that ‘A privileged publication . . . is one made: [¶] .
. . [¶]
(b) In any . . . (2) judicial
proceeding. . . .’ That
privilege is absolute [citation], and applies to communications involving
quasi-judicial proceedings, including workers’ compensation proceedings. [Citation.]â€
(Harris v. King (1998) 60
Cal.App.4th 1185, 1187.) Moreover, the
privilege applies even when the publication was “prepared and communicated
maliciously and with knowledge of its falsity.â€
(Id. at p. 1188.) The privilege applies to bar all claims based
upon the publication, other than claims for malicious prosecution. (Ibid.)
The second amended complaint alleges
that LFKHR, the law firm she retained to represent her with regard to her
workers’ compensation claim, arranged for Estrada to see Dr. Alaiti so he could
evaluate her in connection with the workers’ compensation claim, and that Dr.
Alaiti provided the report to LFKHR. The
complaint also alleges that Dr. Grodan provided his report in his capacity as
the Agreed Medical Examiner for her workers’ compensation claim. Because Estrada’s claims against the two
doctors are based upon the reports each doctor provided in connection with a
workers’ compensation proceeding, they are barred by the litigation privilege. Therefore, the trial court properly sustained
their demurrers without leave to amend.
The
judgment in favor of Kaiser Foundation Hospitals is reversed. The judgments in favor of the County of Los Angeles, Samer Alaiti, M.D., and
Paul Grodan, M.D. are affirmed. All
parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
Acting P. J.
We concur:
MANELLA, J. EDMON, J.*
*Judge of the Los Angeles Superior Court,
assigned by the Chief Justice pursuant
to
article VI, section 6 of the California Constitution.
discussion of the background facts is based upon several documents in the
record, because the second amended complaint, which is the complaint at issue
in this appeal, is not particularly clear.
We limit our discussion to those facts that are relevant to the
demurrers at issue in this appeal.
the heading of the second cause of action identifies only Kaiser and Olive
View, the allegations appear to implicate the other defendants as well.
