Hegedus v. Behavioral Health Services
Filed 5/23/13 Hegedus v. Behavioral Health Services CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 THREE
JOHN PAUL HEGEDUS,
Plaintiff
and Appellant,
v.
BEHAVIORAL HEALTH SERVICES, INC., et al.,
Defendants
and Respondents.
B233098
(Los
Angeles County
Super. Ct.
No. NC053201)
APPEAL
from a judgment of the Superior Court
of
County, Patrick T. Madden, Judge. Affirmed.
John
Paul Hegedus, in pro. per., for Plaintiff and Appellant.
Bonne, Bridges,
Mueller, O’Keefe & Nichols, Margaret M. Holm and Kyle C. Worrell for
Defendants and Respondents.
_________________________
After
plaintiff John Paul Hegedus pleaded guilty to
obtaining prescription drugs, the court sentenced him to 365 days in Orange
County jail and stayed 275 days of
the sentence on condition that Hegedus complete a 90-day residential drug
treatment program. Hegedus completed 35
days as a resident of Thomas Redgate
Memorial Recovery
Center (Redgate) before he was
administratively discharged for violating Redgate’s rules. Hegedus, representing himself, sued
Behavioral Health Services, Inc. (BHS), which owns and operates Redgate, and
BHS employees, alleging numerous causes of action arising from his discharge
and the failure to timely resolve his appeal from the discharge. After a 10-day jury trial, the jury was
instructed on intentional infliction of emotional distress, Hegedus’s only
remaining claim. The jury returned a defense
verdict. Hegedus filed this appeal,
contending the jury also should have been instructed on professional
negligence, the common knowledge exception, and negligence per se. We affirm because there was no instructional
error.
FACTUAL
AND PROCEDURAL BACKGROUND
1.
Admission
and Administrative Discharge from Redgate for Rules Violation
Hegedus
acknowledged to counselors at Redgate that he was at the treatment center to
“get out of jail free.†He was admitted
on July 25, 2008.
Redgate – he was admitted in June to the detox unit, but left against medical
advice when he learned that his stay in the detox unit did not count toward his
90-day commitment.
According
to Hegedus, Redgate had some 153 rules to live by while in residential
treatment. Hegedus broke one of the
rules on August 20, while on a pass permitting him to leave the treatment
center. Hegedus turned himself in, and
Kijoma Marsh, his primary drug and alcohol counselor, placed Hegedus on a
“behavior contract.†The behavior
contract mandated that Hegedus comply with Redgate’s rules.
On
August 28, Hegedus broke several rules when he left a Cocaine Anonymous meeting
to answer a phone call. Defendant Emmons
Sebenius, a Redgate drug and alcohol counselor, discovered Hegedus using the
pay phone, which violated the treatment center’s phone rules. The following day, Hegedus was
administratively discharged from Redgate.
Hegedus
invoked the BHS grievance procedure to appeal from his discharge. Dated August 31, Hegedus prepared a letter
addressed to defendant Laurie Dent-Snyder (Snyder), the administrator at
Redgate, seeking reinstatement (appeal letter).
Hegedus got no response from Snyder by his probation officer’s September
5th deadline. Hegedus was arrested and
taken into custody for a probation violation.
While
in jail awaiting his probation revocation hearing, Hegedus continued to make
efforts to be reinstated at Redgate.
Dated September 29, Hegedus addressed a letter to Alyce Belford, the designated
representative in the BHS grievance procedure, and he attached his August 31
appeal letter. Theresa Cannon, the chief
compliance officer for BHS, received the Belford letter and investigated the
allegations. After conducting an
investigation, Cannon concluded that the discharge was handled according to
policy and Hegedus could not return to Redgate.
Cannon, however, arranged for Hegedus’s admission to another BHS
residential treatment program.
On
October 6, Hegedus had his probation revocation hearing. Hegedus’s criminal defense counsel and the
district attorney were aware that Hegedus could have been admitted to another
BHS treatment program, but Hegedus pleaded guilty to a probation violation. Hegedus served 210 days in the Orange
County jail.
2.
Proceedings
Hegedus
filed this action, alleging that he would not have served his jail sentence but
for his wrongful administrative discharge from Redgate. His complaint asserted causes of action for
emotional distress, intentional infliction of emotional distress, violation
of the Unruh Civil Rights Act, and conspiracy against multiple defendants,
including BHS, Marsh, Sebenius, and Snyder.
was the defendants breached their respective duties to him when they “falsely,
recklessly, maliciously, arbitrarily, capriciously, and without probable cause
[wrote] up a pretextual violation of the Redgate phone policy against Plaintiff
so as to operate as a covert conspiratorial mechanism to have him
administratively discharged from the Redgate Residential Rehabilitation
Unit.†Snyder and Marsh also allegedly
breached their duty toward him by failing to comply with the BHS grievance procedure.
3.
Trial
Hegedus
represented himself at trial, drawing on his legal education and his
28 years of experience in civil litigation working as a research
paralegal. His theory at the beginning
of trial was that BHS, through its employees Marsh, Sebenius, and Snyder
violated BHS policies and their professional duties as set forth in the
counselor’s code of conduct (Cal. Code Regs., tit. 9, § 13060, subd. (b)(1)),
by administratively discharging him from Redgate and failing to timely address
his appeal as required under the BHS grievance procedure.
By
closing arguments, Hegedus had dropped the theory that he was discharged based
upon a pretextual violation of the phone policy and narrowly focused on the
failure to adhere to the BHS grievance procedure. Hegedus states: “Appellant’s theory of his case was based
upon his August 31, 2008
appeal of his discharge and Respondents [sic]
negligence for failing to follow the Redgate grievance and appeal procedure
with its three (3) day meeting rule.â€
a.
Hegedus’s Expert is not Qualified to Testify,
and Hegedus Focuses on Negligence Per Se and Intentional Infliction of
Emotional Distress
Although
Hegedus maintained expert testimony was not necessary to prove his negligence
claim, he later conceded the point during trial.
designated expert Kathryn Frost. The
trial court held a foundational hearing and concluded Frost was not qualified
to testify. Following this ruling, the
court stated: “Plaintiff has two causes of
action styled negligence. One entitled
negligence; the other is negligent infliction of emotional distress. I think they’re a single cause of action for
negligence, and I think that under the circumstances of this case plaintiff,
without the testimony of Ms. Frost or without any expert witness, is not
precluded from proceeding as to a claim based upon negligence per se.â€
Hegedus’s
theory of liability shifted to negligence per se, stating on the record
that this was a regulatory case, and not
a professional negligence case against BHS.
As for the individual defendants, Hegedus stated: “I would
concede . . . we needed a counselor standard of care and
we’re not going to go that route. Let’s
just focus on negligence per se and the intentional tort.â€
b.
Regulatory
Violations (Negligence Per Se)
Janelle
Ito-Orille (Ito), complaints unit supervisor with the California Department of
Alcohol and Drug Programs, investigated Hegedus’s administrative complaint
following his discharge from Redgate.
During the course of her investigation, Ito discovered that Snyder had
improperly used the title “MFT,†the acronym for a marriage and family
therapist, when in fact she was an intern and should have used the title
“MFTi.†Snyder was cited for violating
the counselor code of conduct in California Code of Regulations, title 9,
section 13060, subdivision (b)(1). Marsh
also was cited, as he brought to Ito’s attention that he improperly used a
speed note in Hegedus’s chart. A speed
note is a generic notation that a counselor uses for everyone in group
treatment, and Marsh admittedly had a duty to prepare accurate and specific
notes in Hegedus’s chart related to his individual
treatment.
c.
BHS
Grievance Procedure – Three-Day Meeting Rule (Negligence Per Se)
Hegedus
attempted to elicit testimony to establish that violating the BHS grievance
procedure also was a breach of the counselor’s code of conduct (Cal. Code
Regs., tit. 9, § 13060). Cannon
testified that when a program director received a grievance or a complaint
letter from a resident, under the BHS grievance procedure the program director
had three days to contact the resident to schedule a meeting (three-day meeting
rule). The BHS grievance procedure
mandates that the program director give the client a written decision within
three days of the scheduled meeting. If
the client is not satisfied with the decision, the BHS grievance procedure
permits an appeal to a designated administrator, and, if the resident still is
not satisfied, he or she can appeal to BHS executive management.
Cannon
testified, assuming Snyder received Hegedus’s appeal letter, the BHS grievance
procedure states Snyder had to schedule a meeting within three days. Snyder was aware of the BHS grievance
procedure, including the three-day meeting rule. Snyder did not meet with Hegedus.
There
was conflicting testimony as to whether Snyder actually received the appeal
letter. Hegedus testified that he
hand-delivered his appeal letter on August 31 to Marsh. Hegedus also gave a copy of the appeal letter
to former resident John David Lloyd to deliver to Snyder. Lloyd testified that he either put the appeal
letter in the box attached to Snyder’s door, or he slipped it under the
door.
Hegedus
called Sebenius after his discharge, and Sebenius testified Hegedus mentioned
that he wanted to meet with Snyder.
Sebenius did not recall any discussion regarding Hegedus’s appeal
letter.
Marsh
and Snyder testified that they never received Hegedus’s appeal letter. Snyder did not see the appeal letter until
Cannon sent her a copy via e-mail.
Cannon, however, admitted in discovery responses that Hegedus delivered
the appeal letter to Marsh on August 31, and Marsh delivered it to Snyder. Cannon testified these responses were
inaccurate, and she made a mistake because her investigation revealed that
neither Marsh nor Snyder received the appeal letter.
4.
Jury
Instructions
title="">[6]
While
the parties were finalizing jury instructions, Hegedus withdrew his negligence
per se claim. In response to the
withdrawal of Hegedus’s negligence per se claim, the court stated: “Okay.
And that would mean any jury instructions related to a claim of
negligence would obviously be withdrawn and any argument with respect to a
claim for negligence, whether per se or otherwise, would not be permitted. Is that understood, Mr. Hegedus?†Hegedus responded: “Yes, your honor.â€
During
the final discussion on jury instructions, Hegedus reversed course and
requested professional negligence instructions.
Hegedus believed his professional negligence claim had been revived
based on Snyder’s testimony regarding compliance with the three-day meeting
rule. The court responded: “I ruled that you don’t have a standard of
care person, that professional negligence requires an expert witness. I said the only possible way you can get into
a possible negligence claim would be on a per se basis.â€
Hegedus
asked the court to “resubmit the negligence per se based on my
understanding of the court’s decision to not allow instructions on ordinary
counselor standard of care in light of the Snyder testimony yesterday.†The trial court denied the request, stating
Hegedus “stipulated [that] negligence is gone.â€
After
the jury was instructed and had begun deliberations, Hegedus asked the court
why the jury had not been instructed on professional negligence. The court explained that Hegedus did not have
expert testimony to proceed on a claim for professional negligence.
Hegedus
did not request any jury instructions related to the common knowledge
exception. The court asked Hegedus to
prepare a negligence per se instruction, but he did not submit a completed
instruction to the court before he withdrew that claim.
5.
Special
Verdict, Motion for New Trial, Appeal
The
jury by special verdict decided against Hegedus on his intentional infliction
of emotional distress claims and in favor of BHS, Sebenius, and Snyder.
Hegedus filed this timely appeal.
name="_ftnref9" title="">[9]
DISCUSSION
1.
Hegedus’s
Stipulations During Trial
Raising
instructional error on claims for professional
negligence and negligence per se, Hegedus ignores the tactical decisions he
made during trial not to pursue any negligence claim. The trial court and
on Hegedus’s understanding that the jury would not be instructed on
negligence.
“[A]
party may choose to act as his own attorney.â€
(Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1246-1247.) “
‘[S]uch a party is to be treated like any other party and is entitled to the
same, but no greater consideration than other litigants and attorneys. [Citation.]’
[Citation.]†(
self-represented litigants must meet the same standards as the attorneys who
appear before the court. (
An
attorney may bind his or her client with respect to certain procedural matters
during the course of an action.
“ ‘In retaining counsel for the prosecution or defense of a suit,
the right to do many acts in respect to the cause is embraced as ancillary, or
incidental to the general authority conferred, and among these is included the
authority to enter into stipulations and agreements in all matters of procedure
during the progress of the trial.’ â€
(Linsk v. Linsk (1969) 70
Cal.2d 272, 277; Stewart v. Preston
Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1581-1582.)
Although
an attorney may not stipulate to give up the substantive rights of the client,
he or she may select issues and abandon others during the course of a
trial. (Duffy v. Griffith Co. (1962) 206 Cal.App.2d 780, 787,
789.) “The trial attorney is in full
charge of his client’s cause or defense.
When representing the defendant he must determine in the first instance
what defenses shall be averred and what potential ones shall be omitted. At the trial he must have and exercise
discretion to make such tactical decisions as the exigencies of the combat may
dictate. His is the legal knowledge and
skill that must be consulted in that connection, not the views of a layman;
often the decision must be made with celerity and precision. Specifically his is the prerogative of
withdrawing one of two defenses when he concludes that it cannot be sustained
and that its fruitless pursuit may prejudice the other sound defense.†(Id.
at p. 787.) As the Duffy court states, the trial court and opposing counsel are
justified in relying upon the apparent and presumptive authority of the
attorney to make tactical decisions to pursue a cause or defense. (Id.
at p. 788.)
Acting
as his own attorney at trial, with even more authority over his case than the
attorney in Duffy, Hegedus made
tactical decisions related to his negligence claim. He conceded on the record that it was
fruitless to pursue professional negligence against the defendants because he
did not have a qualified expert, and he told the court and defense counsel that
he intended to “focus on negligence per se and the intentional tort.†Hegedus then narrowed the issues by focusing
on establishing regulatory violations to prove negligence per se, under the
theory that a violation of the BHS grievance procedure constituted a violation
of the counselor code of conduct as set for in California Code of Regulations,
title 9, section 13060. Before the jury
was instructed, Hegedus agreed to withdraw his negligence per se claim. Hegedus represented to the court that he
understood the effect of his withdrawal, that is, the jury would not be
instructed on any negligence claim. He
cannot now claim instructional error on the very claims he withdrew and decided
not to pursue at trial.
It
appears that Hegedus’s instructional error arguments are premised on his
unsuccessful attempt to rescind (1) his oral agreement not to pursue a
professional negligence claim, and (2) his decision to withdraw his negligence
per se claim. “[T]he court, in the
exercise of its sound discretion, may set aside a stipulation entered into
through inadvertence, excusable neglect, fraud, mistake of fact or law, where
the facts stipulated have changed or there has been a change in the underlying
conditions that could not have been anticipated, or where special circumstances
exist rendering it unjust to enforce the stipulation.†(L.A.
City Sch. Dist. v. Landier Inv. Co. (1960) 177 Cal.App.2d 744, 750.)
The
trial court did not abuse its discretion in denying Hegedus’s request to be
relieved of his agreement to focus on negligence per se, rather than professional
negligence. Snyder’s testimony, which he
argued was sufficient to establish the standard of care, repeated Cannon’s
earlier testimony related to the BHS grievance procedure and was not an
unanticipated sea change that justified reversing the course of the trial. Taking Snyder’s testimony in the context of
the trial, Hegedus was attempting to establish that the failure to adhere to
the BHS grievance procedure violated the counselor’s code of conduct, a
necessary element in his negligence per se claim. Relieving Hegedus of his agreement to focus
on negligence per se would have prejudiced the defendants, not Hegedus. Based upon Hegedus’s representations, the
defense did not call their designated expert witness.
As
for the negligence per se claim, the record indicates that after the jury was
instructed, Hegedus acknowledged that he had withdrawn that theory of
liability. There also is nothing in the
record to suggest that there were any grounds that would justify setting aside
his agreement to withdraw this claim, other than an unfavorable ruling in his
attempt to revive his professional negligence claim. Under these circumstances, Hegedus has not
shown reversible error.
2.
Instructional
Error
Giving Hegedus the benefit of the doubt,
as the record reflects the court did throughout the trial, we address his claim
of instructional error. Hegedus contends
that the trial court erred in refusing instructions on professional negligence,
the common knowledge exception, and negligence per se. These contentions lack merit. There was insufficient evidence to instruct
the jury on professional negligence; he did not request an instruction on the
common knowledge exception at trial; and Hegedus did not present a complete instruction
to the court to instruct on negligence per se before he agreed to withdraw this
cause of action.
a.
Professional Negligence and Common Knowledge Instruction
Hegedus
contends on appeal that “the court’s decision not to instruct the jury on
professional negligence under the common knowledge exception prejudiced the
outcome of plaintiff’s case and resulted in a miscarriage of justice.†There was no instructional error. As noted, by the time the jury was instructed,
Hegedus’s theory of liability was limited to recovering emotional distress
damages.
title="">[10]
1.
Insufficient
Evidence to Support Professional Negligence Instruction
Hegedus’s
argument that the jury should have been instructed on professional negligence
is a concession that his claim against BHS and its employees required expert
testimony. He argues the trial court
prejudicially erred in refusing to instruct on professional negligence because
Cannon’s and Snyder’s testimony was sufficient expert testimony to establish
duty, breach, and causation. Based upon
our independent review of the record, we are not persuaded.
“A party is entitled upon request to
correct, nonargumentative instructions on every theory of the case advanced by
him which is supported by substantial evidence.†(Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Here, there was insufficient evidence to
instruct.
Whenever
negligence in the execution of one’s professional duties is involved, expert
testimony is generally required to establish the applicable standard of care
and breach of that standard. (See
Dist. (1973) 8 Cal.3d 689, 701-703; Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89,
95.) Hegedus conceded at trial that he
could not present expert testimony on a chemical dependency recovery hospital’s
standard of care and breach of the standard of care as to BHS, its
administrators, and its drug and alcohol counselors. Without expert testimony, there was
insufficient evidence to instruct on professional negligence.
Hegedus
contends, however, that Cannon’s and Snyder’s testimony regarding adherence to
the BHS grievance procedure, including the three-day meeting rule, was
sufficient expert testimony. Hegedus
maintains that Snyder, the administrator at Redgate, testified that all
employees must adhere to BHS policies and procedures.
grievance procedure was not adhered to in his case. This evidence sufficiently apprised the jury
of the BHS grievance procedure and that Redgate did not adhere to these procedures,
without further necessity of expert testimony.
Hegedus, however, has not cited to any expert testimony that the failure
to follow the three-day meeting rule in the BHS grievance procedure was a
substantial factor in causing him to go to jail.
“[P]roffering
an expert opinion that there is some theoretical possibility the negligent act
particular injury is insufficient to establish causation.†(Jennings
v. Palomar Pomerado Health Services, Inc. (2003) 114 Cal.App.4th 1108,
1118.) Expert testimony positing a
“ ‘mere possibility of such causation is not enough; and when the matter
remains one of pure speculation or conjecture, or the probabilities are at best
evenly balanced, it becomes the duty of
the court to direct a verdict for the defendant.’ †(Saelzler
v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776.)
It
is purely speculative that the failure to adhere to the three-day meeting rule
in the BHS grievance procedure was a substantial factor in causing Hegedus to
go to jail. Pursuant to the grievance
procedure, Snyder had three business days after the scheduled meeting to reach
a decision on the appeal. Doing the
simple arithmetic, assuming Snyder received the appeal letter delivered by
Lloyd, or Marsh personally delivered his copy to Snyder on September 1, Hegedus
calculates that Snyder would have had three business days, or until the close
of business on September 4 to schedule the meeting. After the scheduled meeting, Snyder had to
render a decision on the grievance within three business days, or by September
9.
for a probation violation, before a decision would have been required under the
BHS grievance procedure.
It
also is purely speculative that Hegedus would have been reinstated at Redgate
if the meeting had been scheduled.
Hegedus concludes that “[Cannon] also pinned proximate cause on Snyder
by stating that once she received plaintiff’s appeal letter, she offered
reinstatement in four (4) days.†Cannon,
however, upheld the discharge from Redgate.
She testified that Hegedus could not return to Redgate and located
another BHS facility for his treatment.
Hegedus instead pleaded guilty to a probation violation. This evidence establishes, at most, a mere
possibility, which is not enough to present the issue to the jury. Accordingly, there was insufficient evidence
to instruct on professional negligence.
2.
Common
Knowledge Exception Instruction Was Never Requested
To
claim error, Hegedus must show where in the record the instruction was
requested. (Douglass v. Webb (1962) 209 Cal.App.2d 290, 303.) As the Supreme Court has recognized,
“ ‘ “ ‘[i]n a civil case, each of the parties must propose
complete and comprehensive instructions in accordance with his theory of the
litigation; if the parties do not do so, the court has no duty to instruct on
its own motion.’ [Citations.]†[Citation.]’ †(Metcalf
v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.) The
failure to instruct on the common knowledge exception was not error.
In professional negligence cases,
the Supreme Court has articulated a “common knowledge exception†to the expert
testimony requirement.
“ ‘ “The standard of care against which the acts of a
physician are to be measured is a matter peculiarly within the knowledge of
experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony [citations], unless the conduct required by the
particular circumstances is within the common knowledge of the layman.†[Citations.]’
[Citations.] The ‘common
knowledge’ exception is principally limited to situations in which the
plaintiff can invoke the doctrine of res ipsa loquitor, i.e., when a layperson
‘is able to say as a matter of common knowledge and observation that the
consequences of professional treatment were not such as ordinarily would have
followed if due care had been exercised.’
[Citations.] The classic example,
of course, is the X-ray revealing a scalpel left in the patient’s body following
surgery. [Citations.]â€
(Flowers v. Torrance Memorial
Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. omitted (
Hegedus did not request the common
knowledge exception instruction, and he does not articulate or proffer the
instruction that he would have proposed.
Instead, Hegedus argues the trial court should have instructed the jury
on the duty of the hospital (CACI No. 514) and the standard of care (CACI No.
600). Both instructions require expert
testimony. The common knowledge
exception was an afterthought, raised by Hegedus for the first time in his
motion for new trial. Even if it had
been requested, the instruction would not have been appropriate because Hegedus
no longer had any negligence claim by the time the jury was instructed.
To the extent Hegedus views the
common knowledge exception as the equivalent of ordinary negligence, he
“confuses the manner of proof by which negligence must be established and the character
of the negligence itself.†(
Hegedus conceded that the duty of care owed by BHS and its employees
required the degree of skill and knowledge possessed and exercised by members
of that profession, rather than an ordinary standard of care.
the Supreme Court noted in Flowers,
“[a]s to any given defendant, only one standard of care obtains under a
particular set of facts, even if the plaintiff attempts to articulate multiple
or alternate theories of liability.†(
Thus, there was no error in failing to instruct on an inapplicable legal
theory never presented at trial.
b.
Proposed Negligence Per Se Instruction Was Incomplete and
Withdrawn
Even if Hegedus no
longer stands by his agreement to withdraw his negligence per se claim,
there was no error. Hegedus had to
present a complete instruction to the court.
(Metcalf v. County of San
Joaquin, supra, 42 Cal.4th at pp. 1130-1131.) While
Hegedus presented a draft instruction to opposing counsel, it was never
finalized, or presented and rejected by the court. Thus, Hegedus has forfeited this claim of
error.
Hegedus also appears
to contend there was sufficient evidence presented to instruct on negligence
per se based on Ito’s testimony that Marsh and Snyder violated the counselor
code of conduct (Cal. Code Regs., tit. 9, § 13060). “ ‘[T]he doctrine of negligence per
se . . . creates an evidentiary presumption that affects
the standard of care in a cause of action for negligence.’ [Citation.]â€
(Johnson v. Honeywell Internat.
Inc. (2009) 179 Cal.App.4th 549, 555.)
Evidence Code section 669 creates a presumption of negligence where a
defendant “(1) . . . violated a statute, ordinance, or
regulation of a public entity; [¶] (2) The violation proximately caused death or
injury to person or property; [¶] (3) The death or injury resulted from an
occurrence of the nature which the statute, ordinance, or regulation was
designed to prevent; and [¶] (4) The person suffering the death or the
injury to his person or property was one of the class of persons for whose
protection the statute, ordinance, or regulation was adopted.†The first two elements are questions of fact,
while the latter two are questions of law.
(Galvez v. Frields (2001) 88
Cal.App.4th 1410, 1420.)
Hegedus was not
entitled to this instruction as a matter of law. He presented no evidence that his injury,
that is, serving his jail sentence, was related to Marsh’s charting error or
Snyder mistakenly holding herself out as a marriage and family therapist. Moreover, Hegedus did not present evidence
that the failure to adhere to the internal BHS grievance procedure violated a
statute, ordinance, or regulation of a public entity. Thus, Hegedus has not shown
DISPOSITION
The
judgment is affirmed. No costs are
awarded.
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING, J.
stated, all further events occurred in 2008.
also filed an administrative complaint with the California Department of
Alcohol and Drug Programs.
