Case Number: BC649268 Hearing Date: June 15, 2018 Dept: A

Perez v Pasadena Recovery Center, Inc.

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Calendar: 3

Case: BC649268

Date: 6/15/18

Action Filed: 2/3/17

Trial: 8/6/18

MP: Defendant Pasadena Recovery Center, Inc.

RP: Plaintiff Charon C. Perez

SUMMARY OF COMPLAINT:

Plaintiff Charon C. Perez alleges that she sought treatment related to overconsumption of alcohol by participating in an inpatient alcohol treatment facility’s rehabilitation program. She alleges she entered treatment with Defendant Pasadena Recovery Center, Inc. Plaintiff alleges that during her stay with Defendant, she felt extremely over-medicated and became aware of quality of care and safety issues at Defendant’s facility. On July 14, 2016, while returning from an offsite scheduled function, she alleges she walked to the community room and slipped and fell on the floor of a hallway. She alleges there was a large amount of standing water on the floor of the hallway coming from the bathroom but that no warning signs had been placed.

The first amended complaint (“FAC”), filed May 3, 2017, alleges causes of action for: (1) premises liability; (2) negligence; (3) breach of fiduciary duty; and (4) unfair competition law.

RELIEF REQUESTED:

Defendant moves for summary judgment and/or summary adjudication on the grounds that:

The 1st cause of action for premises liability fails because there is no evidence to support this claim;

The 2nd cause of action for general negligence fails because there is no evidence to support this claim and it is impermissibly duplicative of the 1st cause of action;

The 3rd cause of action for breach of fiduciary duty fails because there is no evidence to support his claim as Defendant did not owe Plaintiff any fiduciary duty, and even if it was held vicariously liable for the acts of its independent contractor physicians, the physician did not breach any fiduciary duty owed to Plaintiff; and

The 4th cause of action for unfair/fraudulent business activity fails as there is no triable issue of material fact to establish that Plaintiff suffered actual injury or that Defendant committed any of the alleged predicate acts or practices to justify such a claim.

DISCUSSION:

Evidence

Plaintiff requests judicial notice of: (1) the March 9, 2011 Statement of Information for Defendant from the California Secretary of State website; and (2) the September 14, 2017 Statement of Information, showing no changes to the March 9, 2011 Statement of Information (box 3). The request is granted as courts are allowed to take judicial notice of the official records of the California Secretary of State, an executive department of this state. (Evid. Code § 452(c); Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.)

Plaintiff submitted an evidentiary objection to the entirety of Michael Bloom’s declaration (filed in support of the moving papers). Plaintiff argues that the declaration was not served on Plaintiff with the motion for summary judgment/adjudication and was not provided even though Plaintiff’s counsel requested a copy of the declaration. (Olaso Decl., ¶¶6-9.) In response, Defendant argues that Plaintiff emailed defense counsel at the wrong email address on April 10, 2018, which was corrected on April 12, 2018, and the declaration was sent on April 12, 2018. While CCP §437c(a)(2) provides that notice of the motion and supporting papers must be served at least 75 days before the time appointed for the hearing, the Court has discretion to provide the opposing/objecting party time rather than entering judgment against that party based on a procedural error. (Parkview Villas Ass’n, Inc. v. State Farm Fire & Cas. Co. (2005) 133 Cal.App.4th 1197, 1211 [re failure to comply with separate statement rules].) As such, the objection is overruled since Plaintiff was in receipt of the declaration before filing the opposition. The Court also notes that the objection has no effect on the ruling.

Defendant’s objection to Plaintiff’s declaration is overruled.

Premises Liability (1st cause of action) and Negligence (2nd cause of action)

The elements of a premises liability claim and negligence claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Because a landowner is not the insurer of a visitor’s safety, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability. (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139.) Ordinarily, where a third person causes a dangerous condition on the business proprietor’s property, which is usually the case in these type of actions, the plaintiff must prove that the defendant had actual or constructive knowledge of the dangerous condition for a sufficient time to remedy or warn of the danger. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-07.) However, where the unsafe condition which caused the injury is created by the property owner or its employee during the scope of his employment, the invitee need not prove the owner’s notice or knowledge of the dangerous condition, as knowledge is imputed to the owner. (Sanders v. MacFarlane’s Candies (1953) 119 Cal.App.2d 497, 501; Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 383.)

The premises liability cause of action alleges that Defendant was negligent for allowing a dangerous condition to exist on the premises, such that Plaintiff slipped and injured herself. (FAC, ¶22.) Plaintiff alleges that Defendant owed her a duty of care to prevent her from suffering bodily harm. (FAC, ¶23.) In the negligence cause of action, she alleges that Defendant owed a duty to prevent her from suffering prolonged pain after falling and remaining on the ground. (FAC, ¶26.) While the causes of action are similar and based on the same events, Plaintiff alleges different duties owed by Defendant.

In support of its initial burden of proof, Defendant provides evidence that Plaintiff was a resident at Defendant’s treatment facility. (Fact 4.) This action arises out of an incident that occurred on the premises on July 14, 2016. (Fact 1.) Plaintiff was returning from an offsite scheduled function with Defendant’s staff, when she slipped in the main hallway on water that appeared to be coming from the bathroom. (Fact 15-16.) She testified at her deposition that she did not see the water on the floor where she slipped immediately prior to slipping, and that no one saw her fall. (Fact 17-18.) Plaintiff testified the only person in the vicinity was Defendant’s employee, Joe, who was in the bathroom working on the plumbing, but Joe did not witness her accident. (Fact 19-20.)

Defendant argues that it did not have actual or constructive notice of a dangerous condition on its premises. Defendant points to Plaintiff’s deposition testimony, wherein she admits she did not see the water prior to slipping and her speculation of how long the water was there before she slipped on it. (Fact 17, 22-26.) Defendant also argues that neither it nor its employees were aware of Plaintiff’s fall until Plaintiff went up to Joe. (Fact 21.) Thus, Defendant argues that there is no direct evidence that there was water on the floor of the hallway for any particular period of time and that there was a sufficient period of time for Defendant to have constructive or actual notice of its existence. (See Facts 18-26.) Defendant, relying on the declaration of Michael Bloom (president of Defendant), states that the premises were maintained regularly, all of Defendant’s employees were responsible for inspecting and monitoring the floors, and none of the employees knew about the water on the floor. (Fact 39-42.) Based on these preliminary facts, Defendant has upheld its initial burden.

In opposition, Plaintiff is able to raise triable issues of material fact. Plaintiff testified that at the time she fell, she saw Joe in the bathroom trying to stop the water from shooting out since it looked like the sink had “exploded off” the wall as pieces of ceramic were on the floor. (Pl.’s Depo. at 118:19-119:20.) She testified that she told Joe to get signs to warn people of the water, after she had already fallen. (Pl.’s Depo. at 120:18-17.)

As discussed above, the premises owner’s notice or knowledge of a dangerous condition on its property is imputed to the owner if the unsafe condition was caused by the property owner or its employees. Here, Defendant’s facts show that Joe, an employee of Defendant, was performing plumbing work on Defendant’s premises. Even if Joe did not cause the plumbing issues that in turn caused the water to flow from the bathroom, the fact that he was working on the plumbing at the time and was no notice of the water is sufficient to raise a triable issue of material fact whether an employee of Defendant was on actual notice that water was on the floor of Defendant’s premises. As such, Joe’s knowledge of the water on the bathroom floor and the hallway are imputed to Defendant. Thus, Plaintiff is able to raise a triable issue of material fact regarding whether Defendant was on notice of the water in the hallway, since Defendant’s employee, Joe, was trying to fix the sink in the bathroom where water had been shooting out.

Plaintiff also argues in opposition that Defendant failed to serve on Plaintiff the declaration of Michael Bloom. Nevertheless, even if Bloom’s declaration was or was not considered, there would still be grounds to deny the motion as to the 1st and 2nd causes of action.

The Court will deny the motion as to the 1st and 2nd causes of action.

Breach of Fiduciary Duty (3rd cause of action)

To state a cause of action for breach of fiduciary duty, Plaintiff must allege: (1) the existence of a fiduciary relationship; (2) its breach; and (3) damage proximately caused by that breach. (Roberts v. Lomanto (2003) 112 Cal. App. 4th 1553, 1562.) In the context of a fiduciary owed by a physician to a patient: “(1) a physician must disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment; and (2) a physician’s failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129.)

While a healthcare corporation may not engage in the practice of medicine, “[a] hospital is liable for a physician’s malpractice when the physician is actually employed by or is the ostensible agent of the hospital.” (People ex rel. State Bd. Of Med. Examiners v. Pac. Health Corp. (1938) 12 Cal.2d 156, 158; Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 122 Cal.Rptr.2d 233 [quoting Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 103].)

In the FAC, Plaintiff alleges that Defendant’s physicians acted within the course and scope of their employment/agency and owed a fiduciary duty to Plaintiff/patient. (FAC, ¶29.) Plaintiff alleges the physician breached this duty by failing to obtain Plaintiff’s informed consent regarding why the medications were part of her treatment, the possible side effects, and alternative medication/treatment options. (FAC, ¶30.)

Defendant argues that it cannot be liable for breach of fiduciary duty because it did not owe a duty to Plaintiff. It also argues that it is not liable for the physician’s lack of informed consent but that even if it was, the physician did not breach any duty owed to Plaintiff.

Defendant argues that there are no facts or evidence that the physician who saw Plaintiff at Defendant’s facility had any personal interests unrelated to Plaintiff’s health for which the physician failed to obtain informed consent. However, Defendant provides no evidence in support of this argument or even the name of the physician(s) who treated Plaintiff. (Opp. at p.19.) This is merely a bare argument with no evidentiary support.

Defendant also argues that because it cannot be held vicariously liable for the alleged breach by the physician under an agency theory because it is a corporation (and not a physician) and the physician who saw Plaintiff was not an agent or employee of Defendant. At most, Defendant relies on the declaration of Mr. Bloom to support the fact that Defendant’s physicians are independent contractors and are not employed by or agents of Defendant. (Fact 13.) However, Mr. Bloom does not provide any evidentiary facts showing that the physician in question was not an agent or employee of Defendant (i.e., by way of contracts between Defendant and physicians). (Snider v. Snider (1962) 200 Cal.App.2d 741, 748-49 [a movant’s affidavits must state all requisite evidentiary facts and not merely ultimate facts or conclusions of law or fact].)

Thus, Defendant has failed to uphold its initial burden in summary judgment on the 3rd cause of action.

Unfair Competition Law (4th cause of action)

The purpose of the UCL is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) Section 17200 defines unfair competition to mean and include “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the false advertising law (§ 17500 et seq.)].” (Id.) Since section 17200 is written in the disjunctive, a business act or practice need only meet one of the three criteria, i.e., unlawful, unfair, or fraudulent, to be considered unfair competition under the UCL. (Id.)

Defendant argues that it is entitled to summary adjudication on the UCL claim because Plaintiff did not suffer an actual injury and Defendant did not commit any of the alleged predicate acts or practices to justify such a claim.

As discussed above, Defendant has either failed to establish its initial burden in summary judgment/adjudication as to the 1st, 2nd, and 3rd causes of action, or Plaintiff is able to raise triable issues of material fact. Thus, to the extent Defendant argues this cause of action fails because the prior causes of action fail, this argument lacks merit.

Also, in opposition, Plaintiff argues that there are triable issues of material fact regarding whether Defendant engaged in fraudulent business practices likely to deceive the public since Defendant assured her its facility was the place for her to treat her alcoholism, she paid money to Defendant to enter the facility, but she was overmedicated, was treated like “insurance revenue generators” rather than patients, and placed in an unsafe environment.

Thus, the motion will be denied as to the 4th cause of action.

RULING:

Deny the motion for summary judgment and motion for summary adjudication.