Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. William F. Fahey, Judge, Nos. BC 306639 c/w Nos. BC 335084, BC 334048, BC 333020.
Law Offices of David Drexler and David Drexler for Plaintiffs and Appellants Maria Rodriguez, Bertha Rodriguez, Monica Rodriguez, Osbaldo Rodriguez and Stephanie Marie Felix.
Marcus, Watanabe, Snyder & Dave and Michael G. Dave for Defendants and Respondents Tuftco Corporation, Tuftco Sales Corporation and Gowin-Card, Inc.
Hager & Dowling, Thomas J. Dowling and Jessica M. Johnson for Defendant and Respondent Fireman’s Fund Insurance Company.
OPINION
ROTHSCHILD, J.
This lawsuit arises from a 1976 workplace injury suffered by Raul Rodriguez, who passed away in 2005. The plaintiffs in the present action are Maria Rodriguez (Raul’s ex-wife), Bertha Rodriguez (Raul’s wife at the time of his death), Monica Rodriguez (Raul’s daughter), Osbaldo Rodriguez (Raul’s son), and Stephanie Marie Felix (Bertha’s daughter and Raul’s stepdaughter). Plaintiffs’ third amended complaint alleges claims for breach of contract, fraud, intentional infliction of emotional distress, and wrongful death against Fireman’s Fund Insurance Company, Tuftco Corporation (Tuftco), Gowin-Card, Inc. (Gowin), and Tuftco Sales Corporation (Sales). All defendants demurred, and the trial court sustained the demurrers, some with leave to amend and some without. After plaintiffs elected not to amend their complaint further, the trial court entered a judgment of dismissal. Plaintiffs appeal. We affirm.
We shall henceforth refer to the plaintiffs by their first names, to avoid confusion. No disrespect is intended. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)
Our summary of the facts is drawn from the plaintiffs’ properly pleaded or implied factual allegations, together with matters of which the trial court took judicial notice. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
In 1976, Raul was severely injured at his workplace in an accident involving a carpet roll-up machine. Fireman’s Fund was both the worker’s compensation insurer for Raul’s employer and the liability insurer for Gowin, the manufacturer of the machine.
Although the third amended complaint alleges that Fireman’s Fund was Gowin’s liability insurer, a settlement agreement signed by Raul and Maria, of which the trial court took judicial notice, states that Fireman’s Fund was the claims adjuster for Gowin’s liability insurer, Associated Indemnity Corporation. For our purposes, nothing turns on this discrepancy.
Fireman’s Fund conspired with Raul’s employer to prevent Raul and his then-wife, Maria, from retaining counsel and filing a personal injury lawsuit. Raul and Maria eventually retained counsel nonetheless and in 1978 filed suit against Gowin and its parent corporation, Tuftco. The case proceeded to trial before a jury, which determined by special verdict that Gowin was liable but Tuftco was not. The jury determined that Raul’s damages were $4 million and that Gowin was 60 percent at fault (Raul’s and his employer’s comparative fault accounted for the remaining 40 percent).
While the suit against Gowin and Tuftco was pending, Raul and Maria’s attorneys discovered the prior conspiracy to prevent them from retaining counsel and filing suit. Raul and Maria then filed suit against Fireman’s Fund and Raul’s employer, seeking to recover damages caused by the unlawful conspiracy. In 1984, Fireman’s Fund settled the claims against it for $2 million. The case against Raul’s employer went to trial, and Raul and Maria won an $8 million verdict, not all of which has been collected.
The written settlement agreement with Fireman’s Fund provides that both Raul and Maria and “their heirs, executors, administrators, successors, and assigns, do release and forever discharge . . . all claims, demands and actions that exist . . . or which may hereafter accrue . . . for injuries and damages” relating to the claims asserted in the then-pending litigation. The agreement states that it “is not intended to terminate [Raul and Maria’s] existing and continuing rights to collect Worker’s Compensation benefits payable as a result of” Raul’s workplace injury.
The agreement further states that it “has been explained to [Raul and Maria] by their attorneys, . . . and that [Raul and Maria] understand[] its terms and provisions and are relying upon their own knowledge and judgment, and upon advice of counsel, as to their injuries and damages, and as to FIREMAN’S FUND’S liabilities therefor, and not upon any statements or representations of FIREMAN’S FUND which are not embodied in this document.” The agreement also includes the following integration clause: “No promise, inducement or agreements not embodied in this document have been made to [Raul and Maria], and it contains the entire agreement between the parties hereto.” The agreement was signed by Raul and Maria and approved “as to content and form” by their attorneys. (All caps. omitted.)
As a result of the multiple blood transfusions, surgeries, and other medical treatment he received for his injuries, Raul contracted hepatitis C. The hepatitis C caused him to develop liver disease. Fireman’s Fund refused to pay for treatment of Raul’s hepatitis C and liver disease.
The third amended complaint alleged that Fireman’s Fund “obtained bogus medical opinions” to justify its refusal to pay for treatment. In its respondent’s brief on appeal, Fireman’s Fund asserts, without citation of any support in the record, that it refused to pay because it had obtained a medical opinion that Raul had had hepatitis C before the 1976 accident, and that the hepatitis C and consequent liver disease were therefore not covered by the worker’s compensation policy.
On November 24, 2003, Raul filed suit against Fireman’s Fund for breach of contract, negligent and intentional infliction of emotional distress, and declaratory relief, on the basis of Fireman’s Fund’s refusal to pay for the treatment of his liver disease. Fireman’s Fund demurred, arguing that all of the claims were subject to the exclusive jurisdiction of the Worker’s Compensation Appeals Board. Rather than oppose the demurrer, Raul filed a first amended complaint, which both added a claim for fraud and deceit and included allegations concerning the unlawful conspiracy that was the subject of the prior litigation. Fireman’s Fund again demurred, arguing again that the claims were subject to the exclusive jurisdiction of the Worker’s Compensation Appeals Board, and that any claims based on the prior unlawful conspiracy were barred by accord and satisfaction, pursuant to the 1984 settlement agreement. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal.
Raul appealed, and we reversed (Rodriguez v. Fireman’s Fund (Apr. 5, 2005, B176511) [non-pub. opn.]). Raul had argued, both in opposition to the demurrer and on appeal, that when the earlier litigation against Fireman’s Fund settled, Fireman’s Fund agreed to pay all of Raul’s medical expenses for the rest of his life. We concluded that if Raul could sufficiently allege such a construction of the 1984 settlement agreement, his claim for breach of that agreement would not be subject to the exclusive jurisdiction of the Worker’s Compensation Appeals Board. We therefore reversed in order to give Raul “an opportunity to amend to provide his construction of the [1984] Settlement Agreement’s terms[.]” We also expressly declined to decide whether the fraud claim was barred by the doctrine of accord and satisfaction.
We filed our opinion on April 5, 2005. Raul died the next day.
On May 6, 2005, Maria (who was no longer married to Raul when he died) filed a complaint against Fireman’s Fund for breach of contract, fraud and deceit, and intentional infliction of emotional distress. On May 26, 2005, in Raul’s original suit on remand from this court, Raul’s daughter and successor in interest, Monica, filed a second amended complaint against Fireman’s Fund, alleging claims for breach of contract, fraud and deceit, and intentional infliction of emotional distress. Also on May 26, 2005, Monica, Bertha (Raul’s wife at the time of his death), Osbaldo (Raul’s son), and Stephanie (Bertha’s daughter and Raul’s stepdaughter) filed a complaint against Fireman’s Fund for wrongful death and intentional infliction of emotional distress. And on June 15, 2005, Bertha, Monica, Osbaldo, and Stephanie filed a complaint against Tuftco, Gowin, and Sales (another wholly owned subsidiary of Tuftco) for “negligence/wrongful death.”
All of the complaints alleged that Fireman’s Fund had settled the original litigation “for two million dollars, plus an agreement to pay any and all of Raul’s medical expenses for life.” (Bold omitted.) None of the complaints alleged how the 1984 settlement agreement could itself be construed as guaranteeing lifetime medical coverage for Raul. Three of the complaints did, however, allege that Fireman’s Fund had “insisted that the agreement to provide lifetime medical coverage not be fully set forth in the [1984] settlement agreement[.]”
Fireman’s Fund demurred to all of the complaints against it. The trial court sustained the demurrers with leave to amend, and it consolidated all four actions for all purposes. It further instructed plaintiffs (1) to plead the alleged contract with specificity, (2) to plead the fraud claim with specificity, and (3) to omit the allegations concerning events that occurred before the 1984 settlement and the alleged promise to pay Raul’s medical expenses for life.
The record does not reflect any response by Tuftco, Gowin, or Sales to the complaint against them. The trial court’s docket indicates that when the complaint was filed no summons was issued, so it appears that those defendants had no duty to respond at that time.
The requirement to plead the contract with specificity apparently derived from the court’s concern that the face of the complaint did not indicate whether the alleged agreement to pay all of Raul’s medical expenses was oral or written. At the hearing on the demurrer, plaintiffs’ counsel stated that the agreement was in writing. The court then asked “Why isn’t it alleged verbatim or attached?” Plaintiffs’ counsel responded, “I can do that.”
On September 9, 2005, Monica, Bertha, Osbaldo, Stephanie, and Maria filed a third amended complaint in the consolidated action against Fireman’s Fund, Tuftco, Gowin, and Sales, alleging claims for breach of contract (against Fireman’s Fund), fraud and deceit (against Fireman’s Fund), intentional infliction of emotional distress (against all defendants), and “negligence/product liability” (against Tuftco, Gowin, and Sales). The third amended complaint, like its immediate predecessors, alleged that Fireman’s Fund agreed to pay all of Raul’s medical expenses for life, and it did not omit the allegations concerning events that occurred before 1984. Unlike its predecessors, however, it did not allege that Fireman’s Fund insisted that the agreement to provide lifetime medical coverage be left out of the 1984 settlement agreement. Rather, it alleged to the contrary that “Fireman’s Fund’s representative, Judy Gold, insisted that Fireman’s Fund[’s] agreement to provide lifetime medical coverage was included in the written settlement agreement.” But it did not allege any manner in which the 1984 settlement agreement could be construed as guaranteeing lifetime medical coverage.
All defendants again demurred. The trial court sustained without leave to amend the demurrers of Tuftco and Gowin. It also sustained without leave to amend the demurrers to the emotional distress claim. It sustained with leave to amend Sales’ demurrer to the “negligence/product liability” claim. And it sustained with leave to amend Fireman’s Fund’s demurrer to the contract and fraud claims.
The court was again concerned about whether the alleged contract was oral or written. When questioned on this point at the hearing, plaintiffs’ counsel said “It’s both.”
Plaintiffs chose not to amend their complaint further. The trial court entered a judgment of dismissal, and plaintiffs timely appealed.
STANDARD OF REVIEW
“When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) Courts must also consider judicially noticed matters. (Ibid.) In addition, we give the complaint a reasonable interpretation, and read it in context. (Ibid.) If the trial court has sustained the demurer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, . . . we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. (Ibid.) If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. (Ibid.) The plaintiff has the burden of proving that an amendment would cure the defect. (Ibid.)” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Claims dismissed after a demurrer was sustained with leave to amend, however, are subject to a different standard of review. With respect to those claims, we presume that the complaint states as strong a case as is possible. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) We accordingly must affirm the judgment of dismissal if the complaint is objectionable on any of the grounds raised by the demurrer. (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)
DISCUSSION
I. The Contract Claim
The trial court sustained Fireman’s Fund’s demurrer to the contract claim in the third amended complaint with leave to amend. We agree that the claim fails to state facts sufficient to constitute a cause of action.
The trial court took judicial notice of the 1984 settlement agreement, and plaintiffs do not challenge the court’s ruling. The settlement agreement on its face contains no provisions guaranteeing payment of all of Raul’s medical expenses for life. The agreement is integrated, and it states that Raul and Maria relied upon their own judgment and the advice of their own lawyers, not on any representations by Fireman’s Fund, in entering into it. The third amended complaint does not allege any manner in which the agreement could be construed as guaranteeing payment of all of Raul’s medical expense for life.
On appeal, plaintiffs raise two arguments concerning the contract claim. First, they contend that the trial court erred in instructing them not to plead facts concerning events that occurred “prior to the 1984 settlement agreement.” Assuming for the sake of argument that the contention is correct, it is of no consequence, because with or without those allegations the third amended complaint fails to allege any manner in which the settlement agreement can be construed as guaranteeing to pay all of Raul’s medical expenses for life.
In connection with this argument, plaintiffs focus on the following statement in our prior opinion: “The parties’ conduct in carrying out their agreement can be a factor in determining the intent of the parties.” The statement is irrelevant to plaintiffs’ argument concerning the pre-1984 allegations, because the parties’ conduct in carrying out the 1984 agreement took place after they entered into the agreement. Moreover, the third amended complaint alleges no conduct in carrying out the agreement that would support plaintiffs’ claim that Fireman’s Fund agreed to pay all of Raul’s medical expenses regardless of whether they were related to his 1976 workplace injury. Plaintiffs do not allege, for example, that Fireman’s Fund ever paid any medical expenses that were not caused by that injury.
Second, plaintiffs argue that the trial court erred in requiring them to plead the contract with specificity, and that it was sufficient for plaintiffs to plead the “legal effect” of the contract. (Bold and italics omitted.) The argument fails. A claim for breach of contract is subject to demurrer if it cannot be determined from the pleading whether the alleged contract was oral, written, or implied by conduct. (Code Civ. Proc., § 430.10, subd. (g).) Insofar as the trial court’s ruling reflected only this statutory requirement, it was correct. But even assuming for the sake of argument that the ruling erroneously required some additional degree of specificity, the breach of contract claim in the third amended complaint would still fail to state facts sufficient to constitute a cause of action. On its face, the 1984 settlement agreement does not require Fireman’s Fund to pay all of Raul’s medical expenses for life. Moreover, because of the integration clause, no other alleged agreement, whether oral or written, could impose that requirement. (Haggard v. Kimberly Quality Care, Inc. (1995) 39 Cal.App.4th 508, 517-518.) The third amended complaint alleges no alternative interpretation of the terms of the agreement, including the integration clause.
For all of these reasons, we affirm the judgment of dismissal as to the claim for breach of contract.
II. The Fraud Claim
The trial court sustained Fireman’s Fund’s demurrer to the fraud claim in the third amended complaint with leave to amend. The gravamen of the fraud claim is that Fireman’s Fund induced Raul and Maria to enter into the 1984 settlement agreement by promising to pay all of Raul’s medical expenses for life, and that Fireman’s Fund never intended to keep that promise.
On appeal, plaintiffs’ only argument concerning the fraud claim is that the trial court erred by requiring plaintiffs “to delete all allegations which precede the 1984 settlement between [Raul and Fireman’s Fund].” The argument lacks merit because it misrepresents the trial court’s ruling. With respect to the fraud claim, the court ordered plaintiffs to delete “all allegations which precede the 1984 settlement negotiations.” (Italics added.) The court did not order plaintiffs to delete the allegations concerning the negotiations themselves, and those allegations formed the basis for plaintiffs’ fraud claim. Because plaintiffs’ sole argument concerning the fraud claim fails, we affirm the judgment of dismissal as to that claim.
In light of the 1984 settlement agreement, the fraud claim on its face fails to state facts sufficient to constitute a cause of action. Because the settlement agreement was integrated, the parol evidence rule precludes plaintiffs from attempting to prove that Fireman’s Fund independently made a fraudulent promise to pay all of Raul’s medical expenses for life. (See, e.g., West v. Henderson (1991) 227 Cal.App.3d 1578, 1583-1584.)
III. The “Negligence/Product Liability” Claim
With respect to the claim for “negligence/product liability,” the trial court sustained the demurrers of Tuftco and Gowin without leave to amend and sustained the demurrer of Sales with leave to amend. Plaintiffs argue that none of the demurrers should have been sustained. We disagree.
Tuftco was a defendant in Raul and Maria’s 1978 personal injury suit and was found not liable. Because the interests of Raul’s heirs were adequately represented in that litigation, collateral estoppel prevents the heirs from now suing Tuftco for wrongful death on the basis of the same underlying facts. (Brown v. Rahman (1991) 231 Cal.App.3d 1458, 1460-1464.) Plaintiffs argue, to the contrary, that the prior judgment did not determine that Tuftco was not liable. Rather, they contend that the judgment determined only that Tuftco (1) did not manufacture the machine that injured Raul, and (2) was not the alter ego of Gowin, the machine’s manufacturer. Plaintiffs argue that they are therefore free to pursue their claim against Tuftco on the basis of theories of agency and respondeat superior, which were not adjudicated in the prior lawsuit. The argument fails, because plaintiffs’ new legal theories do not undermine the preclusive effect of the prior judgment in Tuftco’s favor. (Evans v. Celotex Corp. (1987) 194 Cal.App.3d 741, 746-747.)
Plaintiffs also argue that the trial court’s reliance on “extrinsic evidentiary material,” namely, the judgment in the prior litigation involving Tuftco and Gowin, was improper and in effect converted the demurrers into motions for summary judgment. (Italics omitted.) The argument lacks merit. Tuftco, Gowin, and Sales filed a request for judicial notice of the judgment, and the trial court granted it. Plaintiffs do not challenge that ruling, and it was in any event correct. (Evid. Code, § 452, subd. (d).) It is proper for the trial court to consider judicially noticed matters in ruling on a demurrer. (Code Civ. Proc., § 430.30, subd. (a).)
Gowin, however, was also a defendant in that earlier litigation and was found liable. Because “California’s wrongful death statute[] confers a cause of action on the heirs of an injured person independent of that person’s claim for personal injuries[,]” the heirs may pursue a wrongful death claim “even when the decedent ha[s] already recovered for personal injuries in a prior action.” (Brown v. Rahman, supra, 231 Cal.App.3d at pp. 1460-1461, fn. omitted.) The trial court therefore erred when it determined that the prior personal injury judgment bars plaintiffs’ claim against Gowin.
California’s wrongful death statute has undergone considerable revision since Brown v. Rahman was decided, but the revised statute still confers an independent cause of action on the decedent’s heirs. (See Code Civ. Proc., § 377.60.)
Gowin argues nonetheless that the claim was properly dismissed because plaintiffs did not sufficiently allege proximate causation. In particular, Gowin argues that because Raul allegedly died as a result of liver disease that was caused by a hepatitis C infection that resulted from medical care he received for injuries caused by the machine that Gowin manufactured, Gowin’s role in causing Raul’s death is too remote to form the basis for tort liability. We agree. “‘Where, subsequent to the defendant’s negligent act, an independent intervening force actively operates to produce the injury, the chain of causation may be broken. It is usually said that if the risk of injury might have been reasonably foreseen, the defendant is liable, but that if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is a superseding cause, and the defendant is not liable.’” (Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1032, quoting 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 975, p. 366.) Plaintiffs’ counsel has expressly conceded that hepatitis C was unknown in the 1970s. The hepatitis C infection and liver disease were independent intervening forces, and the risk to Raul was not reasonably foreseeable—Gowin could not reasonably have foreseen that a person injured by the carpet roll-up machine would contract a previously unknown blood-borne disease as a result of medical treatment provided for the injuries, or that the disease so contracted would cause further complications resulting in the person’s death. The hepatitis C and liver disease were therefore superseding causes, precluding plaintiffs from holding Gowin liable for Raul’s death.
“[W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court. [Citation.]” (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1.)
Finally, Sales (i.e., Tuftco’s subsidiary, and hence Gowin’s sister corporation) was not a defendant in the 1978 personal injury suit, so the issue of collateral estoppel does not arise. The trial court sustained Sales’ demurrer with leave to amend on the ground that the third amended complaint did not allege facts showing either duty or legal causation. On appeal, plaintiffs present two arguments to the contrary. First, they argue that the third amended complaint alleges that Sales is an alter ego of Tuftco. It does so allege, but being Tuftco’s alter ego cannot be a basis for imposing liability on Sales, because Tuftco itself has been adjudicated nonliable.
Second, plaintiffs argue that they have alleged that Sales “was responsible in some way for the design/manufacture of the carpet roll-up machine” that injured Raul. The third amended complaint does allege that “Tuftco, Sales and Gowin designed, manufactured, equipped and distributed” such machines, that “[t]hey had sold or leased” one such machine to Raul’s employer, and that “Tuftco, Sales and Gowin located, installed, started up, maintained, modified, handled and controlled” that machine. But the third amended complaint contains no allegations specific to Sales that would support a finding of liability. Given that (1) plaintiffs unequivocally admit that Gowin manufactured the machine, (2) Tuftco was previously adjudicated nonliable, and (3) every fact alleged against Sales is also alleged identically against both Gowin and Tuftco, we are unable to discern the basis for Sales’ purported liability. We simply do not know what Sales is alleged to have done for which it should be held to answer in tort. We therefore conclude that the trial court properly sustained Sales’ demurrer.
IV. The Emotional Distress Claim
Plaintiffs’ raise no arguments on appeal concerning their claim for intentional infliction of emotional distress, so it is deemed abandoned. (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 9, fn. 1.) We therefore affirm the judgment of dismissal as to the claim for intentional infliction of emotional distress.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
VOGEL, J., Concurring and Dissenting.
I concur with the majority opinion except its conclusion that an independent intervening act broke the chain of causation and thus defeated plaintiffs’ wrongful death claim against Gowin. (Typed opn., p. 11.)
Third party negligence that is the immediate cause of an injury will be viewed as a superseding cause only when it is so highly extraordinary as to be unforeseeable. (Landeros v. Flood (1976) 17 Cal.3d 399, 411.) To conclude, as does the majority, that the infection caused by the medical care Raul received for the injury caused by Gowin’s machine is a superseding cause, we must be able to say, as a matter of law, that complications from medical care are so highly extraordinary as to be unforeseeable. I don’t see how we can say any such thing.
The fact that hepatitis C was unknown in the 1970’s is legally irrelevant. The foreseeability required is of the risk of harm, not of the particular intervening act, and the defendant may be liable if its conduct was a substantial factor in bringing about the harm, notwithstanding that it neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred. (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 18-19; Ash v. Mortensen (1944) 24 Cal.2d 654, 657 [“where one who has suffered personal injuries by reason of the tortuous act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds him liable therefor”]; cf. Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 635-636.)
The majority’s conclusion -- that, as a matter of law, “Gowin could not reasonably have foreseen that a person injured by the carpet roll-up machine would contract a previously unknown blood-borne disease as a result of medical treatment provided for the injuries, or that the disease so contracted would cause further complications resulting in the person’s death” (typed opn. at p. 11) -- presumes too much. All Gowin had to foresee was that, as a result of the physical injury caused by its machine, Raul could suffer an infection or other medical complications. Beyond that, it is a question of fact for a jury to decide whether, on these particular facts, the medical complications produced harm of a kind and degree so far beyond the risk Gowin should have foreseen that it would be unfair to hold Gowin responsible. (Torres v. Xomox Corp., supra, 49 Cal.App.4th at pp. 18-20.)
I would reverse the judgment as to Gowin.