Demma v.
Filed 4/10/2013 Demma v. Dominican Hospital CA6
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opinion has not been certified for publication or ordered published for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
SIXTH APPELLATE DISTRICT
SOLOMON ERIC DEMMA,
Plaintiff and Appellant,
v.
DOMINICAN HOSPITAL et al.,
Defendants and Respondents.
H038321
(Santa Cruz County
Super. Ct. No. CV173181)
Introduction
Appellant Solomon
Demma appeals from a judgment dismissing his complaint against Dominican Hospital and its employees Vicki Miranda, George
Jarrow, Nannette Mickiewcz, and Heidi Troutner (collectively Dominican). Demma claims the trial court erred in
sustaining Dominican’s demurrer without leave to amend, asserting that his
complaint sufficiently stated causes of action for
and that his claims are not barred by the statute of limitations under Code of
Civil Procedure section 340.5.
Reviewing Demma’s
complaint on the merits, we find it alleged matters barred by the applicable
it failed to adequately state a claim.
We will therefore affirm the trial court’s judgment in favor of
Dominican.
Factual and
Procedural Background
Demma’s underlying
complaint includes a cause of action for general negligence arising from events
in 2010, as well as two causes of action for intentional torts in March 2011
and August 2011. Demma also requested
punitive damages based on respondents’ “malice†and “oppression†as defined in
Civil Code section 3294.
name="_ftnref1" title="">[1] Demma represented himself in the proceedings
below, and represents himself again on appeal.
The facts alleged in Demma’s complaint are summarized briefly here.
Claim
Demma was a patient at
Dominican Hospital’s Behavioral Health Unit several times in
2010, where he was admitted under Welfare and Institutions Code section 5150
72-hour mental health holds.
name="_ftnref2" title="">[2] On those occasions, Demma was also certified
for additional days of intensive treatment for his mental disorder under
Welfare and Institutions Code section 5250.
Demma claimed that
while at Dominican, staff members negligently evaluated and treated his symptoms,
and that as a result of Dominican’s negligence, his symptoms escalated to the
point where Demma struck fellow patients twice and struck a hospital security
guard once.
The incidents where
Demma struck other patients occurred sometime in August and October 2010. Demma claimed that Dominican staff were
present when he struck the patients, yet hospital staff failed to intervene
despite their knowledge of his symptoms and past behavior. According to Demma, his verbal altercations
with fellow patients ultimately turned physical as a direct result of
Dominican’s failure to act.
The third incident of
alleged general negligence occurred in December 2010. Demma believed that a fellow patient was
stalking him and mimicking his actions.
When Demma requested assistance from hospital staff, they “smirked†and
acted rudely toward him. The staff’s
rude behavior and failure to intervene sparked another escalating situation,
after which Demma was placed in an isolation room, hospital staff called a
security guard, and Demma struck him in the face.
As a result of these
incidents, Demma was taken to the Santa Cruz County jail several times, which placed him in
“grave danger,†according to the complaint
Tort Claim from March 2011
Demma was charged with misdemeanor battery
based on one or more of the incidents alleged in his negligence claim. A hospital social worker told Demma the
charges had been dropped, and Demma’s mother confirmed with the social worker
that the charges were indeed dropped.
Demma asserts that contrary to the information provided by the hospital
social worker, the charges were not dropped.
Due to the misinformation, Demma missed his court date and spent six
days in county jail in March 2011 for failing to appear. The trial judge in Demma’s criminal matter
then referred him, presumably under Penal Code section 1368, to Atascadero State Hospital where he stayed for two months until he was
deemed competent to stand trial. Demma
lost $5,000 in “disability grant monies†during the time he spent at the state
hospital. Demma was ultimately placed on
probation for four years in the misdemeanor case.
Tort Claim from August 2011
On August
14, 2011, Demma was
again taken to Dominican
Hospital by sheriff’s deputies on a Welfare and
Institutions Code section 5150 mental health hold. Hospital personnel kept Demma in the
emergency room instead of the hospital’s Behavioral Health Unit because the
unit refused to admit him due to his previous assaultive behavior at the hospital,
and further refused to have a psychiatrist examine him. Demma claimed that Dominican Hospital employees slandered him to other
institutions, such that other hospitals became too “frightened†to admit
him. Demma argued that the hospital’s
failure to admit and properly evaluate him violated the provisions of Welfare
and Institutions Code section 5150.1 relating to the transport and assessment
of individuals being held under section 5150.
Complaint , Demurrer,
Demma filed a
complaint against Dominican on January 31, 2012, alleging a cause of action for general
negligence and two causes of action for intentional torts. Demma requested actual damages of $5,000 and
punitive damages of $50,000 for malice and oppression.
Dominican demurred to
Demma’s complaint on March 7, 2012. As
to the claim of general negligence, Dominican reasoned that although Demma
labeled his claim “general negligence,†the substance of the complaint sounded
in professional negligence. Accordingly,
Dominican argued that Demma’s claim was barred by the one-year statute of
limitations provided in Code of Civil Procedure section 340.5. Dominican also challenged Demma’s
“intentional tort†cause of action as unclear, failing to state a cause of
action, and appearing to be made by Demma’s mother, Mary Carman, who lacked
standing to bring an action on Demma’s behalf.
Along with its
demurrer, Dominican moved to strike Demma’s request for punitive damages
pursuant to Code of Civil Procedure section 425.13, subdivision (a). Under that section, no claim for punitive
damages arising out of professional negligence by a health care provider may be
made without an order allowing such a claim to be filed in an amended pleading. (Code Civ. Proc., § 425.13.) Dominican argued that since Demma’s complaint
sought damages for acts of professional negligence by its staff, under Code of
Civil Procedure section 425.13, subdivision (a), Demma needed leave of the
court to seek punitive damages.
On April 16, 2012, the
trial court held a hearing on the demurrer, noting that Demma never filed an
opposition. Based on the moving papers
and the argument of Dominican’s counsel, the court sustained the demurrer
without leave to amend, entering judgment in favor of Dominican on April 20,
2012.
Demma filed a timely
notice of appeal on May 16, 2012.
Standard of Review
“ ‘On appeal from a judgment dismissing an action after the sustaining
of a demurrer without leave to amend, the standard of review is well
settled. The reviewing court gives the
complaint a reasonable interpretation, and treats the demurrer as admitting all
material facts properly pleaded. . . .’ â€
(A.C. Label Co. v. Transamerica
Ins. Co. (1996) 48 Cal.App.4th 1188, 1191.)
However, the appellate court does not treat the demurrer as admitting
contentions, deductions, or conclusions of fact or law. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
The appellate court must review the complaint and decide if there is a
reasonable possibility that an amendment may cure the defects. If an amendment may have cured the complaint,
it is an abuse of discretion not to allow leave to amend and reversal is
necessary. (Ibid.) “The plaintiff has
the burden of proving that an amendment would cure the defect.†(Schifando
v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
The determination of
which statute of limitations applies to a particular cause of action is a
question of law that we review de novo.
(McLeod v. Vista Unified School
Dist. (2008) 158 Cal.App.4th 1156, 1164.)
We recognize that
Demma appears before us in propria persona.
However, a self represented party must be “treated like any other party,
and is entitled to the same, but no greater consideration than other litigants
and attorneys.†(Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Self-represented parties are subject to the
same procedural rules as those who are represented by attorneys. (Bianco
v. California Highway Patrol (1994) 24 Cal.App.4th 1113.)
Discussion
On appeal, Demma argues that he
timely filed his complaint because he alleged a claim of general negligence,
not professional negligence, making Code of Civil Procedure section 340.5
inapplicable. Demma further contends that
he sufficiently stated causes of action in the original complaint, and that he
may seek punitive damages without prior approval by the court.
Forfeiture for Failure to Oppose Demurrer or Request Leave to Amend
Dominican argues that
Demma forfeited his claims on appeal when he failed to object to the demurrer
below. We disagree.
Dominican is correct
generally that a party who fails to oppose a motion in the trial court
effectively waives appellate review.
(See Bell v. American Title Ins.
Co. (1991) 226 Cal.App.3d 1589, 1602.)
Nonetheless, “ ‘[a] trial court’s order sustaining a demurrer without
leave to amend is reviewable for abuse of discretion “even though no request to
amend [the] pleading was made.†(Code
Civ. Proc. § 472c, subd. (a).)’ †(
Cal.App.4th 1064, 1072.) Further, “
‘[w]hile it is the plaintiff’s burden to show “that the trial court abused its
discretion†and “show in what manner he can amend his complaint and how that
amendment will change the legal effect of his pleading†[citation], a plaintiff
can make “such a showing . . . for the first time to the reviewing court.†’
†(Ibid.,
citing Performance Plastering v. Richmond
American Homes of California, Inc.
(2007) 153 Cal.App.4th 659, 667-668.)
The fact that Demma failed to oppose the demurrer is therefore not
dispositive of the appeal, as he may still make a showing of how amendments
would cure defects in his complaint.
merits.
Limitations
Code of Civil
Procedure section 340.5 states: “In an
action for injury or death against a health care provider based upon such
person’s alleged professional negligence, the time for the commencement of
action shall be three years after the date of injury or one year after the
plaintiff discovers, or through the use of reasonable diligence should have
discovered, the injury, whichever occurs first. In no event shall the time for
commencement of legal action exceed three years unless tolled for any of the
following: (1) upon proof of fraud, (2)
intentional concealment, or (3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of the injured
person.†The statute defines “health
care provider†to include “any person licensed or certified pursuant to
Division 2 (commencing with Section 500) of the Business and Professions Code,
or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic
Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section
1440) of Division 2 of the Health and Safety Code; and any clinic, health
dispensary, or health facility, licensed pursuant to Division 2 (commencing
with Section 1200) of the Health and Safety Code.â€
negligence†as “a negligent act or omission to act by a health care provider in
the rendering of professional services, which act or omission is the proximate
cause of a personal injury . . . , provided that such services are within the
scope of services for which the provider is licensed and which are not within
any restriction imposed by the licensing agency or licensed hospital.†(Ibid.)
Relying on Code of
Civil Procedure section 340.5, Dominican argues that the one year statute of
limitations on Demma’s claims for general negligence had expired when Demma
filed his lawsuit on January 31, 2012, based on injuries alleged to have
occurred in August, October, and December 2010.
Demma argues that the statute of limitations set forth in that section
is inapplicable because he alleged a cause of action for general negligence, not professional
negligence, and that accordingly the correct statute of limitations is found in
Code of Civil Procedure section 335.1.
Code of Civil Procedure section 335.1 provides a two-year limitations
period for battery, assault, injury, or wrongful death due to a defendant’s
wrongful act or negligence.
Whether Demma’s first
cause of action for negligence is time-barred hinges on whether his complaint
alleged professional versus general negligence.
Our Supreme Court has held that general negligence and professional
negligence are not separate causes of action, and that there is only one
standard of care for any given set of facts.
(Flowers v. Torrance Memorial
Hospital Medical Center (1994) 8 Cal.4th 992, 998.) “Since the standard of care remains constant
in terms of ‘ordinary prudence,’ it is clear that denominating a cause of
action as one for ‘professional negligence’ does not transmute its underlying
character. For substantive purposes, it
merely serves to establish the basis by which ‘ordinary prudence’ will be
calculated and the defendant’s conduct evaluated. Nor does it distinguish a claim separate and
independent from some other form of negligence.
As 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.†(
Demma’s first cause of
action alleges professional negligence, regardless of how it may have been
labeled in the complaint. In that cause
of action, Demma alleges that Dominican breached its duty of care as a mental
health facility by allowing his symptoms to escalate and by failing to prevent
him from battering fellow patients and a security guard during the three
separate incidents described in the complaint.
Although Demma asserts
that no professional negligence can be alleged because he explicitly excluded
physicians from his complaint, this argument misconstrues the law. The mere absence of a licensed physician
among the defendants does not preclude a claim of professional negligence. Professional negligence involves a breach of
a duty when rendering a professional
service, such as medical care, and does not require that a defendant be a
licensed professional. (See, e.g.,
50 Cal.App.4th 797, 808-809 [finding professional negligence when hospital
staff either failed to set a brake on rolling X-ray table or failed to hold the
table in place].)
Courts have
consistently upheld a broad interpretation of what constitutes “professional
negligence,†such that it encompasses not only the actions of a highly skilled
physician, but also the acts of staff members employed by licensed healthcare
providers, so long as the act of negligence occurred in the rendering of
healthcare services for which the provider is licensed. (Palmer
v. Superior Court (2002) 103 Cal.App.4th 953, 957 [professional negligence
found in negligent recommendation made by company during a utilization review
to determine if procedure was medically necessary for a patient];
212 Cal.App.3d 1034, 1051-1052 [professional negligence found when hospital
failed to adequately screen competency of medical staff]; Canister v. Emergency Ambulance Service (2008) 160 Cal.App.4th 388,
406-407 [professional negligence found in negligent driving of an ambulance by
an emergency medical technician].)
Accordingly, as a
licensed psychiatric hospital, Dominican’s failure to intervene when Demma had
outbursts of violence toward fellow patients and a security guard, and its
failure to ensure that Demma’s symptoms were properly in check, were all
omissions in the provision of professional psychiatric services. Omissions committed by hospital staff in
rendering professional services arise out of professional negligence and are
accordingly subject to the statute of limitations provided in Code of Civil
Procedure section 340.5.
A related issue is
when the one-year limitations period commenced.
The complaint alleged that Demma was injured due to Dominican’s
negligence on December 17, 2010, when he was arrested for striking a security
guard and taken to county jail, where he was placed in a position of “grave
danger.†However, according to Demma’s
complaint, he also suffered harm from Dominican’s negligence when the other
incidents of battery occurred in August 2010 and October 2010. Accordingly, all of his injuries appear to
have occurred in 2010.
The complaint is thus
untimely, as Demma filed his complaint on January 31, 2012, beyond the
applicable one-year statute of limitations.
Nowhere in the complaint does he allege any
would toll the statute. (Code Civ.
Proc., § 340.5.) Further, Demma does not
identify any amendment that would cure the defect, which is his burden. (Schifando
v. City of Los Angeles, supra, 31
Cal.4th 1074, 1081.)
We therefore find no
error in the trial court’s order sustaining the demurrer without leave to amend
as to the negligence cause of action.
We now turn to Demma’s
causes of action for “intentional torts.†Dominican argues that the complaint fails to
state a claim with regard to both of the intentional torts alleged. For the reasons set forth below, we find that
Demma has failed to state facts sufficient to sustain a cause of action for
either of the intentional torts identified.
2010 Intentional Tort
The first intentional
tort alleged by Demma arose in connection with a 2010 battery at the hospital,
(one of the incidents alleged to support his negligence claim). Demma stated in his complaint that after he
struck an individual at the hospital, he was charged with misdemeanor battery
and was cited to appear in court.
Shortly thereafter, a hospital social worker informed him and his mother
that the charges had been dropped.
Demma, believing that the charges were no longer pending, did not attend
the scheduled court date, and he was later arrested in March 2011 for failing
to appear and spent six days in jail. In
connection with that criminal matter, Demma was referred to Atascadero State
Hospital for two months for restoration of trial
competency. Demma alleged that he
lost disability income during that two-month period.
Even assuming the
truth of all material facts alleged by Demma, we do not see how these facts
constitute an intentional tort cause of action.
Inasmuch as Demma
sought to make a claim of fraud, the complaint would fail for lack of sufficient
particularity and specificity required of a fraud cause of action. (See, e.g., Cooper v. Equity Gen. Insurance (1990) 219 Cal.App.3d 1252,
1262.) To state a viable claim of
intentional misrepresentation, Demma must have pled facts to show: (1) there was a false representation as to a
material fact, (2) Dominican knew of the falsity, (3) Dominican intended to
deceive him, (4) Demma justifiably relied on the misrepresentation, and (5)
there were damages. (See Civ. Code, §
1710, subd. 1; Gonsalves v. Hodgson (1951)
38 Cal.2d 91, 100-101.) Demma failed to
plead facts satisfying all of those elements, as he does not allege that the
hospital social worker deliberately and knowingly intended to deceive him about
the court date.
Demma also failed
sufficiently to plead a cause of action for fraudulent concealment. (Civ. Code, § 1710, subd. 3.) Fraudulent concealment occurs when a fact is
suppressed by someone who has a duty to disclose it. Demma never alleged in his complaint that
Dominican possessed a duty to inform him of his court date, and we cannot see
how such a duty can be imputed to a hospital.
The second intentional
tort was alleged to have occurred sometime in August 2011. Demma alleged that Dominican slandered him to
other medical institutions and as a result, those institutions refused to admit
him. Demma further accused Dominican of
deliberately denying him admission to its Behavioral Health Unit and of denying
him an evaluation by a psychiatrist when he was in the emergency room.
Slander is an oral,
intentional publication of a false fact that causes injury or damage. (Civ. Code, § 46; Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1130.) By the very nature of a claim of slander, the
published fact that causes injury must be false. Demma’s claim of slander must therefore fail,
as he asserted that Dominican slandered him by telling other institutions of
his past incidents of violence at the hospital.
Even if Dominican did publish those statements to other mental health
institutions, the publication was not of a false fact, but the truth. Demma himself plainly stated in his complaint
that he battered fellow patients and a security guard.
As for Demma’s
additional claim that Dominican refused him admission to the Behavioral Health
Unit and an evaluation by a psychiatrist
after he was brought in on a Welfare and Institutions Code section 5150 mental
health hold, we find that he has not sufficiently stated a cause of
action. Demma argues that Dominican
violated Welfare and Institutions Code section 5150.1, which provides that
“[n]o peace officer seeking to transport, or having transported, a person to a
designated facility for assessment under Section 5150, shall be instructed by
mental health personnel to take the person to, or keep the person at, a jail
solely because of the unavailability of an acute bed, nor shall the peace
officer be forbidden to transport the person directly to the designated
facility. No mental health employee from
any county, state, city, or any private agency providing Short-Doyle
psychiatric emergency services shall interfere with a peace officer performing
duties under Section 5150 by preventing the peace officer from entering a
designated facility with the person to be assessed, nor shall any employee of
such an agency require the peace officer to remove the person without
assessment as a condition of allowing the peace officer to depart.â€
Neither Dominican’s
refusal to admit Demma to its Behavioral Health Unit nor his transportation to
county jail describes a violation of Welfare and Institutions Code section
5150.1 or section 5150. Welfare and
Institutions Code section 5150.1 addresses the procedure a peace officer must
take when transporting an individual to a facility. The statute specifies that the facility may
not instruct the peace officer to take the individual to county jail solely
because of a lack of beds, and that the peace officer may not be forbidden to take
the individual directly to the facility or be prevented from taking the
individual to the facility.
Contrary to Demma’s
complaint, the notes of Dr. Andrew Nevitt, the emergency room doctor who
evaluated Demma, indicate that hospital staff did not prohibit deputies from
bringing Demma into the facility.
name="_ftnref6" title="">[6] When reviewing a demurrer, the “allegations
[of a complaint] must be accepted as true,†however, the “facts appearing in
exhibits attached to the complaint will also be accepted as true and, if contrary
to the allegations in the pleading, will be given precedence.†(Dodd
v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627.) According to Dr. Nevitt’s notes, Demma was
held in his own room in the emergency department of the hospital in four-point
restraints due to his risk of violence.
Dr. Nevitt indicated that he had a conversation with another physician,
who informed him that the hospital was considering having Demma transported to
jail for evaluation because no other facility would accept him due to his
violent history. Dr. Nevitt prescribed
medication for Demma, and a sheriff’s deputy later arrived to take Demma to
jail. Dr. Nevitt informed the psychiatrist
on duty at Dominican’s mental health unit about the deputy’s plan to take Demma
to jail, and the psychiatrist accepted responsibility for Demma’s overall
psychiatric condition and advised Dr. Nevitt that Demma would be “adequately
evaluated in the jail.â€
Inasmuch as Demma
claims Dominican committed a tort by refusing to admit him, the Welfare and
Institutions Code makes clear that a facility need not admit all individuals
placed under Welfare and Institutions Code section 5150 holds. Welfare and Institutions Code section 5150.3
reads, “[w]henever any person presented for evaluation at a facility designated
under Section 5150 is found to be in need of mental health services,
available alternative services provided for pursuant to Section 5151 shall be
offered as determined by the county mental health director.†(Italics added.) Further, Welfare and Institutions Code
section 5150.1 prohibits health facilities from refusing to admit patients
solely because of a lack of beds. Here,
it is clear from Demma’s complaint that Dominican’s reluctance to admit him
arose from previous incidents of violence at the facility.
Accordingly, Demma
failed to state a cause of action for intentional tort with regard to this
second incident. Judging from the
relatively confusing narrative of the complaint, it is unclear whether Demma
could amend his complaint to allege a cause of action for either of the two
intentional tort claims. However, the
burden rests with Demma to prove that an amendment would cure the defects
identified. (Schifando v. City of Los Angeles, supra, 31 Cal.4th 1074,
1081.) Demma fails to suggest any such
amendment. His argument on appeal is
simply that the original complaint is sufficient to state a cause of action. That is simply not the case here.
We therefore find that
Demma failed to state a cause of action with regard to either of the two
alleged “intentional torts,†and further failed to show that amendments would
cure the defects in his complaint. Since
we also find that Demma’s claim of professional negligence is barred by the
statute of limitations set forth in Code of Civil Procedure
section 340.5, the issue of whether Demma was allowed to seek punitive damages
without prior approval from the trial court is moot.
Disposition
We
find no abuse of discretion by the trial court in sustaining Dominican’s
demurrer without leave to amend. The
judgment of dismissal is affirmed. Each
party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
Grover,
J.
CONCUR:
Premo, Acting P.J.
Bamattre-Manoukian, J.
Civil Code section 3294 defines “malice†as “conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others,†and defines “oppression†as “despicable conduct
that subjects a person to cruel and unjust hardship in conscious disregard of
that person’s rights.†(Civ. Code, §
3294, subd. (c)(1)-2).)
Welfare and Institutions Code section 5150 allows certain individuals such as
peace officers to involuntarily commit those who are a danger to themselves or
others, or who are gravely disabled as a result of a mental disorder, to a
designated mental health facility for a 72-hour treatment and evaluation.
