Opinion
A146994
08-31-2017
RONALD DAVID RIVERS, Plaintiff and Appellant, v. ELIZABETH EDGAR et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG14721880)
As a condition of parole, Ronald Rivers was required to participate in psychotherapy. His therapist and her supervisor notified his parole officer that Rivers might be suicidal. Rivers then sued the therapist, her supervisor, two additional therapists and their employer Sharper Future, a division of Pacific Forensic Psychology Associates, Inc. (Sharper Future) for, in essence, defamation, breach of contract, and professional malpractice. Demurrers were sustained without leave to amend as to the defamation and breach of contract claims, and the court granted summary judgment on Rivers's cause of action for malpractice.
Appearing in propria persona, Rivers challenges the trial court's order setting aside his entry of Sharper Future's default judgment and its ruling on summary judgment. Both motions were properly granted, so we affirm the judgment.
BACKGROUND
Mental Health Treatment and Termination
As relevant here, the conditions of Rivers's parole included that he attend mental health treatment programs as directed by his parole agent and agree to waive the psychotherapist-patient privilege. Rivers expressly consented to those terms.
Rivers received mental health treatment at Sharper Future from October 2013 until April 2014 after he signed an informed consent form that waived his right to patient-therapist confidentiality and authorized Sharper Future and its staff to discuss confidential information about his treatment with the Department of Corrections and Rehabilitation and his parole agent. The informed consent form specified that patient-therapist confidentiality would not apply if Rivers presented a danger to himself; authorized Sharper Future to communicate with " 'parole and/or third parties' " about his mental condition; and affirmed that Sharper Future " 'doesn't keep any secrets from [his] parole officer.' " Rivers also signed documentation acknowledging that the number and frequency of required weekly treatment sessions would vary depending on what issues he brought into treatment, his treatment history, his therapeutic needs and his readiness to engage in treatment, and that his parole agent would be involved in decisions about the level and frequency of treatment. Rivers also filled out a questionnaire in which he disclosed a history of depression, mood disorder, anxiety, and suicidal tendencies.
Dr. Elizabeth Edgar was Rivers's individual therapist. Her progress note for a December 11, 2013 session reported that Rivers "discussed feeling[s] of being overwhelmed, stressed, and helpless[]" and "discussed thoughts of suicide, sta[t]ing he wished 'it would all just end.' " According to Dr. Edgar's declaration submitted in support of summary judgment, Rivers told Edgar that "he recognized this feeling and thought of suicide as a warning sign for things not going well. I assessed for any plan or actions that he was prepared to take. Although he stated he had attempted suicide in the past but he did not currently have a plan, he did have access to anti-depressants and other medications."
Dr. Edgar consulted with her supervisor, Dr. Mary-Perry Miller. They concluded it was necessary for Rivers's protection for Dr. Edgar to discuss the situation with his parole agent and seek the agent's approval to increase his therapy sessions from monthly to weekly. Dr. Edgar attested that "[t]he standard in the community for mental health care professionals is to take reasonable efforts to protect a patient from harming themselves when they express suicidal ideation and/or intent. In my professional opinion, it was reasonable to inform the parole agent of River's [sic] suicidal ideation as he was best able to ensure that [Rivers] did not have any means, such as drugs or weapons, to complete the suicidal act. The parole agent could also check up on [Rivers] [between therapy visits]." Moreover, "[i]t was prudent to increase the individual sessions from once a month to once a week in order to better monitor and assess [Rivers's] increasing suicidal ideation." The parole agent approved the more frequent services.
Rivers filed a grievance with Sharper Future, claiming that Dr. Edgar's disclosure to his parole agent constituted a breach of trust and requested a new therapist. After discussing the request, Dr. Miller and Dr. Edgar concluded that Rivers needed to address his trust issues by continuing his therapy with Dr. Edgar. That decision was explained to Rivers at a meeting with his parole agent, Dr. Edgar, Dr. Miller, and two other Sharper Future therapists.
It seems that those two counselors were involved in Rivers's group therapy sessions. They were initially named as defendants, but their demurrers were sustained without leave to amend prior to the summary judgment proceedings at issue here.
Rivers then filed a complaint with the California Board of Psychology and sued Sharper Future and all four therapists, alleging defamation and breach of contract. Sharper Future determined that the adversarial relationship created by those actions impaired its ability to provide Rivers professional services in conformity with its ethical obligations. Accordingly, it terminated Rivers's therapy.
Default and Demurrers
Rivers made two attempts to personally serve his first amended complaint by having a sheriff's deputy deliver it to Sharper Future's business address in Sonoma. The first attempt failed because no one was present, and on the second attempt the deputy was informed Sharper Future's agent for service of process was not at that address. Rivers then had a process server send the summons, complaint and acknowledgment of receipt by mail to Sharper Future's Oakland address.
The following month Rivers entered a default against Sharper Future, which moved to set it aside. The court granted the motion. It ruled: "the clerk's June 23, 2014 Entry of Default as to Sharper Future was improper, because Sharper Future was never properly served with the summons and complaint. Plaintiff filed four different proofs of service on June 5, 2014, each indicating that Sharper Future had been served with the summons and complaint by mail and acknowledgement of receipt of service, pursuant to Code of Civil Procedure section 415.30. But none of those proofs of service attached a completed Notice and Acknowledgement of Receipt as required, Plaintiff has not produced any evidence that anyone ever completed a Notice of Acknowledgement of Receipt on behalf of Sharper Future, and the only competent evidence on that issue indicates that no one did. . . . Therefore, Plaintiff has failed to establish that Sharper Future was ever properly served with the summons and complaint."
Rivers filed a second amended complaint. Sharper Future demurred. The court sustained the demurrer to the cause of action for defamation without leave to amend as to all defendants except for Edgar and Sharper Future. The court granted Rivers "one final opportunity to allege facts demonstrating that Edgar made a provably false statement of fact about Plaintiff, and how that provably false statement of fact caused Plaintiff to suffer compensable damages. Statements of opinion (e.g., whether Edgar believed Plaintiff was suicidal) do not give rise to a claim for defamation (see, e.g., Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1552), and Plaintiff has not adequately alleged how Edgar's disclosure of such a statement to the East Oakland Parole Office caused him to suffer damages."
The demurrers to Rivers's breach of contract claim were sustained as to all defendants. The court granted Rivers leave to amend the malpractice claim as to Edgar, Miller and Sharper Future to allege facts showing how they "breached any duty to Plaintiff causing him to suffer damages. Plaintiff does not adequately explain how 'inappropriately increasing' his individual therapy sessions or terminating his treatment after he filed a complaint with the California Department of Consumer Affairs breached any professional duty that a psychotherapist owed him." Demurrers on behalf of the two other therapists were sustained without leave to amend.
Rivers filed a third amended complaint alleging causes of action for defamation and "retaliation." This time the court sustained Sharper Future's demurrer to the defamation claim without leave to amend as to all defendants. "Plaintiff fails to allege facts demonstrating that Edgar (or any of the other Defendants) made a provably false statement of fact about Plaintiff, or how any provably false statement of fact caused Plaintiff to suffer compensable damages." The court construed Rivers's "retaliation" claim as a cause of action for professional malpractice and overruled the demurrer only as to that cause of action.
Summary Judgment
The third amended complaint alleged that (1) Edgar falsely and in breach of confidentiality told Rivers's parole agent he was suicidal; and (2) Sharper Future retaliated against him for filing a grievance with the state by denying his request for a different therapist, increasing the frequency of his sessions, terminating his therapy and refusing to put the reasons for terminating him in writing. Sharper Future moved for summary judgment, asserting Rivers could not prove the essential elements of professional malpractice.
The court agreed. "[T]he undisputed facts establish that Plaintiff agreed to the terms of Defendants' Program Entry Paperwork, which expressly provided, inter alia, that (1) he authorized Defendants to discuss information about his mental condition to his parole agent; and (2) the frequency of Plaintiff's treatment sessions may vary. . . . [¶] The undisputed facts further establish that after Defendants contacted Plaintiff's parole agent about his alleged suicidal ideation-as they were expressly permitted to do in accordance with Plaintiff's executed Informed Consent Agreement—Plaintiff filed an internal grievance, which resolved in accordance with the terms of Defendant's grievance procedure." The court further found as matters of undisputed fact that Sharper Future properly terminated Rivers's therapy because of ethical problems involved in treating someone who was suing them and, based on Sharper Future's unrefuted expert testimony, that defendants complied with the applicable standard of care. The court observed as an independent basis for its ruling that Rivers failed to respond to each of Sharper Future's undisputed facts and cited no evidence in support of his purported factual disputes or additional undisputed facts.
Following an unsuccessful motion for new trial, Rivers filed this timely appeal.
DISCUSSION
I. Relief from Default
Rivers first contends the court erred in setting aside Sharper Future's default judgment because Sharper Future was properly served. We disagree.
Under Code of Civil Procedure section 473, subdivision (d), "[t]he court may. . . on motion of either party after notice to the other party, set aside any void judgment or order." " '[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void' " and may be set aside for improper service. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544; Brown v. Williams (2000) 78 Cal.App.4th 182, 186, fn. 4.)
Further statutory citations are to the Code of Civil Procedure.
The court here found the clerk's entry of default was improper because Sharper Future was not properly served with the summons and complaint. Rivers does not dispute that Deputy Benyak's two attempts to serve the summons and complaint were ineffective. Instead, he asserts he effected substitute service pursuant to section 415.20, subdivision (a) by mailing the summons and complaint to Miller by registered mail on May 16. Not so.
Section 415.20, subdivision (a) provides: "[i]n lieu of personal delivery of a copy of the summons and complaint to the person to be served . . . , a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address . . . , and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof." Here, there is no evidence that Deputy Benyak, a process server or Rivers left a copy of the summons and complaint with anyone, much less a person who was at least 18 years old and was told what the documents were. Nor does the record contain evidence that Rivers properly served Sharper Future by any other means. The court thus properly granted relief from the clerk's entry of default.
While Rivers makes no claim on appeal to having properly effected service by mail pursuant to section 415.30, we observe that the court correctly found he did not because he provided no evidence that the required notice and acknowledgement form was included with the summons and complaint or executed and returned. (§ 415.30, subds. (a)-(c).)
II. Summary Judgment
A. Legal Standards
" 'To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action [citations] or show that an element of the cause of action cannot be established [citations]. [Citation.] The defendant "must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial." [Citation.] [¶] "The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial. [Citation.] . . . Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is any triable issue of fact as to any essential element of a cause of action." ' [Citation.]" (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485, brackets and ellipses in original.)
"In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. [Citation.] The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. [Citation.]" (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703-704.) "We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ' "specific facts," ' and cannot rely upon the allegations of the pleadings. [Citations.]" (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.) "While '[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact' [citation], it is also true '[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.' " (M.B. v. City of San Diego, supra, at p. 704.) "The opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation." (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733.)
B. Analysis
In some aspects it is hard to decipher Rivers's contentions that there were triable issues of material fact related to his professional malpractice claim, but generally they fall into three categories: that Dr. Edgar fabricated her report of suicidal ideation; that her disclosure of this information breached her duty of confidentiality; and that Sharper Future, Edgar and Miller violated the applicable standard of professional care when they refused to give him a new therapist and increased the frequency of, then terminated, his therapy. None of these arguments is substantiated by the record.
Rivers's allegation that Edgars lied about him expressing suicidal ideation was properly rejected. Rivers does not dispute that he had a history of suicidal tendencies before starting therapy. Sharper Future submitted evidence on summary judgment that during a therapy session Rivers told Dr. Edgars "he was experiencing suicidal ideation. Specifically, he stated that he felt overwhelmed, stressed and helpless. He discussed thoughts of suicide, sta[t]ing he wished 'it would all just end,' although he also "identified reasons why he would not commit and why he does not have a plan for committing suicide." Based on that discussion, Dr. Miller and Dr. Edgar made the professional assessment that Rivers was at risk of harming himself.
Rivers's only opposing evidence was the written grievance he submitted to the Department of Consumer Affairs, in which he acknowledged discussing his history of suicidal ideation with Edgar but denied expressing any current thoughts of suicide. "In fact," he wrote, "as we ended our session and we were about to exit the room, she stopped me, reclosed the door and said I just want to make sure that you are not suicidal. I confirmed that I was not suicidal." Assuming those statements to be true and admissible, they are not evidence that a competent professional would not have diagnosed Rivers as at risk for suicide. The standard of care prevailing in the therapeutic community for diagnosis, treatment and care of potentially suicidal patients are not matters of common knowledge (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105-106), so expert opinion was required on whether a competent professional would have interpreted Rivers's comments as indicating suicidal ideation. Sharper Future provided such expert testimony through Edgar and Miller's written testimony. (See Wynner v. Buxton (1979) 97 Cal.App.3d 166, 173 [cross-defendant's uncontradicted expert testimony supported summary judgment].)
Identifying the evidence Rivers relied on to oppose summary judgment is made more difficult by his failure to submit a proper separate statement of material facts in opposition to summary judgment in violation of section 437c, subdivision (b)(3) and rules 3.1350 (f) and 3.1350 (h) of the California Rules of Court. As the court observed, this was a sufficient independent basis to grant the summary judgment. (§ 437c, subd. (b)(3).) --------
In contrast, Rivers's attestation that he dealt with suicidal patients during a previous career as a paramedic did not qualify him as an expert on the psychological assessment and treatment of sex offenders on parole. " '[T]he competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement. In considering whether a person qualifies as an expert, the field of expertise must be carefully distinguished and limited.' " (In re Jordan R. (2012) 205 Cal.App.4th 111, 124.) He offered no other evidence in support of his contention that Edgar's diagnosis was a fabrication, so summary judgment was properly granted as to that claim.
The same holds true for Rivers's claim that Edgar breached confidentiality by reporting her diagnosis to parole officials. Sharper Future submitted Rivers's written authorization to share with officials a broad range of information including Rivers's psychiatric history, risk assessments and treatment records. Moreover, Rivers expressly agreed to waive the psychotherapist-patient privilege as a condition of his parole. Rivers submitted no evidence to contradict the existence, scope or effect of these agreements. Accordingly, his breach of confidentiality claim failed as a matter of law based on those undisputed facts.
Rivers similarly failed to show there was a triable factual dispute as to his claims that Sharper Future wrongfully refused to give him a new therapist, increased the frequency of his sessions, and ultimately terminated his therapy without valid therapeutic reasons and in retaliation for his grievances and lawsuit. On these points, too, Sharper Future submitted admissible evidence that Dr. Edgar and Dr. Miller were familiar with the standards of practice in the community for the treatment of sex offenders on parole; that, in their professional opinion, Dr. Edgar's treatment decisions were at all times within that standard of care; and that the allegedly retaliatory treatment decisions were properly based on appropriate therapeutic and ethical considerations. Rivers submitted no evidence to show the existence of any triable issue of fact on these points. Summary judgment was thus properly granted.
Finally, as we understand it, Rivers appears to assert that the two Sharper Future therapists who conducted his group therapy violated their professional standard of care by "disclosing confidential information about an absent group therapy member to the group members during a therapy session and discussing that information in detail and at length." He did not raise this argument in the trial court in opposition to summary judgment. Accordingly, it is forfeited and he may not raise it now as a basis to challenge the summary judgment ruling on appeal.
The relief from default and summary judgment motion were properly granted.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.