Opinion
D056408 Super. Ct. No. 37-2008-00065974-CU-PO-EC
10-17-2011
NATHAN J. SPENCER, Plaintiff and Appellant, v. SHARP GROSSMONT HOSPITAL 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of dismissal from the Superior Court of San Diego County, Randa Trapp and Laura W. Halgren , Judges. Reversed and remanded with directions.
As in the trial court, Nathan J. Spencer is self-represented in this appeal from a judgment dismissing his lawsuit after the trial court sustained a demurrer without leave to amend his original complaint. Spencer contends the court erroneously sustained the demurrer and denied him leave to amend. We reverse the trial court's judgment of dismissal and remand for the trial court to sustain the demurrer and grant Spencer leave to amend his complaint.
FACTUAL BACKGROUND
Spencer alleged against Sharp Grossmont Hospital (Sharp) a cause of action for wrongful death resulting from negligence, and "intentional misconduct that cause[d] physical pain and transferred intent." He sought punitive damages. Spencer alleged that his sister attacked his mother, Mary Spencer, which "induce[d] an asthma attack causing [her] to lack oxygen to the brain for 5 plus minutes." His mother was taken to [Sharp's] emergency room. Spencer alleged the "nurses and doctors lacked training in proper cardiopulmonary resuscitation; ventilator treatment for asthma patie[nts] wrong medication or medications at wrong time and more deficiencies that are significant. Mary Spencer did die at the hands of [Sharp's] staff and . . . ordinary care was not provided."
Spencer's complaint also includes as defendants Valerie Oliver (his sister)("Valerie"), David Oliver, Amber Oliver, Jane Doe (Mary's case manager), Brighton Place, and La Mesa Health Care. This appeal relates solely to Sharp's demurrer.
Sharp demurred to Spencer's complaint and the trial court sustained the demurrer without leave to amend, finding the complaint failed to "indicate any factual basis for liability," or specify facts regarding "how Mary Spencer died and what defendants did to contribute to that death."
DISCUSSION
I. Spencer's Nonconforming Opening Brief
Sharp contends Spencer's opening brief is "woefully deficient, and his contentions should be deemed to be 'forfeited' " because he failed to include any citations to the record as required by California Rules of Court, rule 8.204(a)(1)(C), which provides that each brief must "[s]upport any reference to a matter in the record by a citation."
California Rules of Court, rule 8.204(e)(2), provides that if a non-complying brief is filed, the reviewing court may "(A) [o]rder the brief returned for corrections and refiling within a specified time; [¶] (B) [s]trike the brief with leave to file a new brief within a specified time; or [¶] (C) [d]isregard the noncompliance." We agree Spencer's opening brief is deficient because Spencer "recites . . . '[facts]' without citation to the record" in violation of this appellate rule, and we are entitled to disregard those portions of his brief. (Cal. Rules of Court, rule 8. 204(a)(1)(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947; Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451.)
Nonetheless, California Rules of Court, rule 8.204 does not authorize this court to dismiss Spencer's appeal for violations of this rule; it indicates that an order striking a brief must be combined with leave to file a new brief in compliance with the rules. We did not order Spencer to file a new, complying brief or advise him that without one he risked dismissal of his appeal. (E.g., Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117.) Were we to strike Spencer's brief for the rule violation, we would be compelled to permit him another opportunity to file a brief in compliance with the rule. In this case such recourse is unnecessary, and we elect to disregard the noncompliance in the interest of judicial economy.
II. Standard of Review
"The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer . . . to the pleading on any one or more of the following grounds: [¶] . . . [¶] (e) The pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., § 430.10.) "The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer. A ruling on a general demurrer is thus a method of deciding the merits of the cause of action on assumed facts without a trial." (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 437, fn. 4.) "Neither trial nor appellate courts should be distracted from the main issue, or rather, the only issue involved in a demurrer hearing, namely, whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action." (Griffith v. Department of Public Works (1956) 141 Cal.App.2d 376, 381.)
"A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court's discretion. Therefore, an appellate court employs two separate standards of review on appeal. [Citations.] First, the complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.] In doing so, we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may be properly judicially noticed. Reversible error exists only if facts were alleged showing entitlement to relief under any possible legal theory. [Citations.] [¶] Second, where the demurrer is sustained without leave to amend, reviewing courts determine whether the trial court abused its discretion in doing so." (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.)
III. Sufficiency of the Complaint
A. Review of the Facts Alleged in Spencer's Complaint
When "reviewing a demurrer that is sustained without leave to amend, an appellate court assumes the truth of (1) all facts properly pleaded by the plaintiff, (2) all facts contained in exhibits to the complaint, (3) all facts that are properly the subject of judicial notice, and (4) all facts that reasonably may be inferred from the foregoing facts." (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305.) We may not accept the truth of legal contentions, conclusions of law, or deductions drawn from those legal contentions or conclusions when reviewing the sufficiency of the allegations. (Ibid.) Our de novo review of the demurrer sets forth the necessary elements for each asserted cause of action and evaluates whether Spencer stated facts "sufficient to constitute a cause of action." (Code Civ. Proc., § 430.10.)
Spencer used three distinct forms in drafting his complaint, one each for claims of wrongful death based on negligence; an intentional tort of "intentional misconduct that cause[d] physical pain;" and what he captions an "exemplary damages attachment" for "wrongful death, negligence, fraud, [and] intentional harm." Spencer set forth facts on each form. The claims for wrongful death and intentional misconduct share similar facts with minor differences but the form for "exemplary damages" provides greater detail.
For clarity, we set forth all of Spencer's factual allegations, italicizing those regarding Sharp's alleged conduct. "[A]ll defendants as caretakers and professional staff medically inclined to care for Mary Spencer intentionally cause[d] Mary Spencer harm through frustration, ill will, and the lack of regard for liberty and life." "Valerie slapped Mary's face extremely hard at one point causing her to have a nervous breakdown and become hospitalized." "Valerie . . . knowing she was dead asleep [] did in fact induce an asthma attack causing Mary to lack oxygen to the brain for 5 plus minutes . . . on the night Mary Spencer had to be rushed to the intensive care via emergency room at [Sharp.]" "[The defendants] . . . neglect[ed] to treat and care for Mary Spencer in a reasonable and responsible way in which their job title[s] describes that their care giving to the elder and patient would demand they do." "[N]urses and doctors lacked training in proper cardiopulmonary resuscitation, ventilator treatment for asthma patie[nts,] wrong medication or medications at wrong time and more deficiencies that are significant. Mary Spencer did die at the hands of [Sharp's] staff and the negligence of all above actions by above actors ordinary care was not provided for Mary Spencer during the whole course mentioned above and actions particularly between . . . April 5-8, 2008 when total disregard for Mary's life caused her to pass over." (Italics added.)
Sharp treats each of Spencer's three claims in his complaint as if the facts pleaded for each relates solely to that one claim. In contrast, we review the factual allegations in Spencer's complaint as a whole in assessing the adequacy of each cause of action. (Blank v. Kirwin (1985) 39 Cal.3d 311, 318 ["[W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context"].)
B. Spencer's Claim for Wrongful Death
The elements of the cause of action for wrongful death are the commission of the underlying tort, the resulting death, and the damages suffered. (5 Witkin, Cal. Procedure (5th ed. 2008) Wrongful Death, § 938, p. 352.) "In any action for wrongful death resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence. [Citation.] Negligence involves the violation of a legal duty imposed by statute, contract or otherwise, by the defendant to the person injured, e.g. the deceased in a wrongful death action." (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105.) The complaint must allege "the defendant's legal duty of care toward the [deceased]; . . . the defendant's breach of duty — the negligent act or omission;" death as a result of the breach; and damages sustained by the plaintiff as a result of that death. (See 4 Witkin, Cal. Procedure (5th ed. 2008) Elements of Cause of Action § 576, p. 701.)
"The measure of duty of a hospital is to exercise that degree of care, skill and diligence used by hospitals generally in that community, and required by the express or implied contract of the undertaking. A hospital is liable for want of ordinary care, whether from incompetency of a nurse or failure in duty by a fully qualified nurse." (Rice v. California Lutheran Hospital (1945) 27 Cal.2d 296, 299.) This principle was extended to include a duty to ensure "the competence of its medical staff through careful selection and review." (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 341.)
In his complaint, Spencer pleaded that the "nurses and doctors lacked training in proper cardiopulmonary resuscitation [and] ventilator treatment for asthma patients." He also alleged medications were given at the wrong times and ordinary care was not provided. We conclude that Spencer adequately alleged Sharp owed his mother a duty of care and infer from the facts pleaded that Sharp breached that duty.
Spencer fails, however, in pleading the element causation needed to allege actionable negligence in a claim for wrongful death. He alleges that Sharp's total disregard for his mother's life caused her death, but specifies no particular act or omission that ultimately caused her death. By not specifying these facts, Spencer also fails to meet the burden that a plaintiff must adequately plead facts regarding the resulting death to withstand a demurrer in a claim for wrongful death. Accordingly, we conclude the trial court did not err in sustaining Sharp's demurrer as to the wrongful death cause of action.
C. Spencer's Claim for Intentional Misconduct
Spencer's second cause of action was for "intentional misconduct that cause[d] physical pain and transferred intent."
"A negligent person has no desire to cause the harm that results from his carelessness, [citation], and he must be distinguished from a person guilty of willful misconduct . . . who intends to cause harm. [Citation.] Willfulness and negligence are contradictory terms. [Citations.] If conduct is negligent, it is not willful; if it is willful, it is not negligent. It is frequently difficult, however, to characterize conduct as willful or negligent. A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result. [Citation.] Such a tort has been labeled 'willful negligence,' 'wanton and willful negligence,' 'wanton and willful misconduct,' and even 'gross negligence.' It is most accurately designated as wanton and reckless misconduct. It involves no intention, as does willful misconduct, to do harm, and it differs from negligence in that it does involve an intention to perform an act that the actor knows, or should know, will very probably cause harm. [Citations.] Wanton and reckless misconduct is more closely akin to willful misconduct than to negligence, and it has most of the legal consequences of willful misconduct. Thus, it justifies an award of punitive damages . . . ." (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869-870.)
Spencer's factual allegations most closely align with this hybrid of "willful negligence." He asserts that Sharp's staff acted with total disregard for his mother's life; but the only fact he provided is that medication was improperly administered. Spencer has cited no law supporting his claim that Sharp's conduct rises to the level of willful misconduct. We conclude the trial court did not err in sustaining Sharp's demurrer to the intentional tort cause of action.
D. Spencer's Request for Punitive Damages
Spencer included in his complaint "an exemplary damages attachment" for wrongful death based on negligence and intentional harm.
"In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed." (Code Civ. Proc., § 425.13 subd. (a).) "We recognize that in the medical malpractice context, there may be considerable overlap of intentional and negligent causes of action. . . . [¶] . . . [I]dentifying a cause of action as an 'intentional tort' as opposed to 'negligence' does not itself remove the claim from the requirements of [Code of Civil Procedure] section 425.13 [subdivision] (a)." (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.) Because Spencer failed to obtain a trial court order allowing a claim for punitive damages, the court did not err in sustaining Sharp's demurrer to his claim for punitive damages.
IV. Leave to Amend
Spencer contends the trial court erroneously denied him leave to amend his complaint. " 'Where the complaint is defective, "[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment.(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971.) "A ruling sustaining a general demurrer without leave to amend will only be upheld if the complaint alleges facts which do not entitle plaintiff to relief on any legal theory. [Citation.] Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not. Liberality in permitting amendment is the rule, not only where a complaint is defective as to form but also where it is deficient in substance, if a fair prior opportunity to correct the substantive defect has not been given." (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304.) The plaintiff bears the burden of proving there is a reasonable possibility of amendment, and may make this showing for the first time on appeal. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44.)
Here, the trial court sustained the demurrer on grounds that Spencer's complaint excluded facts "as to how Mary Spencer died and what defendants did to contribute to that death." The trial court thereby signaled such amendment was not facially implausible, and what Spencer might include in an amended complaint. Spencer alleged new facts in his brief that further suggest ways he intends to amend his complaint. We express no opinion as to whether Spencer will be able to successfully file an amended complaint that will withstand a demurrer. In the interest of justice, the trial court should have granted Spencer the opportunity to amend his original complaint to cure the specified defects.
DISPOSITION
The judgment of dismissal in favor of Sharp Grossmont Hospital is reversed. The trial court is directed to enter a new order sustaining Sharp Grossmont Hospital's demurrer to the complaint with leave to amend. Appellant is awarded costs on appeal.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.