Filed 3/5/20 Tybout v. Desert Cardiology Consultants’ Medical Group, Inc. CA4/2

See Concurring Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

FREDERICK ALTON TYBOUT,

Plaintiff and Appellant,

v.

DESERT CARDIOLOGY CONSULTANTS’ MEDICAL GROUP, INC. et al.,

Defendants and Respondents

E072623

(Super.Ct.No. PSC1900284)

OPINION

APPEAL from the Superior Court of Riverside County. David M. Chapman, Judge. Dismissed.

Frederick Alton Tybout, Plaintiff and Appellant in pro. per.

Cole Pedroza, Kenneth R. Pedroza, and Susannah D. Dahlberg; Kramer, DeBoer & Keane and Kathleen A. Stosuy for Defendants and Respondents.

According to his complaint, Frederick Alton Tybout suffered from congestive heart failure. After his regular cardiologist retired, he consulted Dr. Philip J. Patel, a board-certified cardiologist. Tybout found Dr. Patel’s recommendations to be too aggressive, however, so he terminated his relationship with Dr. Patel. Dr. Patel then informed him that, due to the termination, none of the other board-certified cardiologists in Dr. Patel’s medical group would treat Tybout. And there were no other board-certified cardiologists in Tybout’s “locality.”

Tybout filed this action for an injunction requiring Dr. Patel’s medical group to treat him, unless its members have “reasonable grounds” for not doing so. He disavowed any claim for damages. The trial court sustained a demurrer without leave to amend. Tybout appealed.

We have been informed that, after oral argument, Tybout passed away. Accordingly, the appeal is moot and must be dismissed. Otherwise, we would have affirmed. There is no such thing as a free-standing cause of action for an injunction. Tybout claimed that he stated a cause of action for unreasonable discrimination. To do so, he would have had to allege discrimination based on a protected characteristic; he did not, and he could not. He did not identify any other applicable cause of action, but even if he did, a court could not issue the injunction he sought, because it would compel the performance of personal services.

I

FACTUAL BACKGROUND

Consistent with the applicable standard of review (see part IV, post), the following facts are taken from the complaint.

Tybout lived in Rancho Mirage. As of 2017, he was 88 years old and had been diagnosed with congestive heart failure. In addition, he had a transplanted liver, and his one working kidney was afflicted with chronic kidney disease.

The nature of congestive heart failure is such that a sufferer must be able to consult and to obtain emergency care from a cardiologist in his or her “locality.” It would be both impractical and a hardship for Tybout to have a regular cardiologist anywhere outside his locality. Moreover, Tybout sought a board-certified cardiologist, because board certification is the only way a layperson can be assured of a specialist’s skill and expertise.

Desert Cardiology Consultants’ Medical Group, Inc. (Desert) is a medical group in Rancho Mirage, comprised of approximately 16 board-certified cardiologists. Dr. Patel is the president and one of the members of Desert. There are no other board-certified cardiologists in the locality; thus, Desert has a monopoly.

In the summer of 2017, Tybout’s regular cardiologist retired. In August and/or September 2017, Tybout was hospitalized; during his stay, he was treated by Dr. Patel. When he was discharged, he was told to see Dr. Patel for follow-up.

Dr. Patel recommended an “aggressive” course of treatment. Tybout obtained a second opinion from a cardiologist in Los Angeles; that cardiologist disagreed with Dr. Patel’s recommendations and recommended treatment with medication only. Tybout decided to switch to a different cardiologist in Dr. Patel’s group.

On October 9, 2017, Tybout sent Dr. Patel a letter stating, “I am changing cardiologists at this time so I will not be your patient after this date.” In response, Dr. Patel sent him a letter stating, “I will be available for your emergency cardiac care for the next 30 days. After that time, you will need to establish with a different cardiologist outside of our group.” Thereafter, representatives of Desert confirmed that none of the other cardiologists at Desert would see Tybout because he had been a patient of Dr. Patel.

On January 31, 2018, Tybout sent Dr. Patel a letter asking him to take him back as a patient. Dr. Patel did not respond.

Tybout tried going to two different cardiologists “outside his . . . locality” — i.e., in Palm Springs. The first one saw him briefly, but then stopped communicating with him or returning his calls. The second one turned out to “not be suitable for his care.”

II

PROCEDURAL BACKGROUND

Tybout filed this action against Desert and Dr. Patel (defendants) in 2019. The complaint purported to state a single cause of action “for an injunction.” (Capitalization altered.) It requested an injunction barring Desert from “declin[ing] to give [Tybout] medical care . . . because he left the care of another cardiologist in that group.” It did not seek to prohibit individual cardiologists at Desert from refusing to treat Tybout, provided they do so on “reasonable grounds.” Tybout disavowed any claim for damages.

Desert and Dr. Patel demurred to the complaint. They argued that:

1. There is no right to be treated by a particular physician.

2. An injunction is not available to compel the performance of personal services.

After hearing argument, the trial court sustained the demurrer without leave to amend. It therefore dismissed the complaint as against defendants.

III

ISSUES REGARDING THE HEARING

Tybout contended that the trial court read his opposition to the demurrer only belatedly, and then cursorily; as a result, it had a mistaken understanding of the facts.

We need not reach this contention. Even assuming Tybout was correct, the error is not independently prejudicial. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; see Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) This court reviews an order sustaining a demurrer independently. (See part IV, post.) If the complaint stated a cause of action, we would reverse for that reason alone; if the complaint did not state a cause of action, the asserted error did not affect the outcome.

IV

STANDARD OF REVIEW

“A demurrer is properly sustained when ‘[t]he pleading does not state facts sufficient to constitute a cause of action.’ [Citation.] On appeal, a resulting judgment of dismissal is reviewed independently. [Citation.] ‘“‘[W]e accept as true all the material allegations of the complaint’”’ [citation], but do not ‘assume the truth of contentions, deductions or conclusions of law’ [citation].” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.)

“‘“ . . . [I]t 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. [Citations.]”’ [Citations.] This abuse of discretion is reviewable on appeal ‘even in the absence of a request for leave to amend’ [citation], and even if the plaintiff does not claim on appeal that the trial court abused its discretion in sustaining a demurrer without leave to amend. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971.)

V

CAUSE OF ACTION FOR AN INJUNCTION

Tybout contended that he alleged an equitable cause of action for an injunction.

“Injunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a court may grant a request for injunctive relief. [Citations.]” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65.) Thus, even assuming we were to agree that “the equities favor plaintiff,” there is nothing we could do for Tybout in the absence of an identifiable cause of action.

VI

CAUSE OF ACTION FOR UNREASONABLE DISCRIMINATION

Tybout contended that he stated a cause of action for unreasonable discrimination. He did not claim that he stated a cause of action under the Unruh Civil Rights Act (Civ. Code, § 51 et seq) (sometimes Act).

He did contend, however, that a “disadvantaged” person in his circumstances would have an Unruh Act cause of action, and “[t]o hold that the Unruh . . . Act extends more rights to the disadvantaged than the existing rights of the non-disadvantaged would not only be an oxymoron but also surely never the intent of the legislature.” (Underscoring omitted.)

The Act declares: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).)

In 1970, our Supreme Court held that the protected characteristics listed in the Act are not exclusive; they are “illustrative, rather than restrictive, indicia of the type of conduct condemned.” (In re Cox (1970) 3 Cal.3d 205, 212.) In 1991, however, it held that the Act does not ban all arbitrary discrimination. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1158-1162.) Rather, the Act is limited to discrimination that is based on “personal characteristics” (id. at p. 1161) “of the same kind, class, or nature” as those it lists. (Id. at p. 1159.) The Supreme Court later described such personal characteristics as “traits, conditions, decisions, or choices fundamental to a person’s identity, beliefs and self-definition.” (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 842-843.)

Tybout had a medical condition — alas, more than one. We may assume, without deciding, that he also had a disability. (See Civ. Code, § 51, subd. (e)(1); Gov. Code, § 12926, subds. (m), (n).) Nevertheless, defendants did not discriminate against him because of these characteristics. They discriminated against him because he fired Dr. Patel.

Firing Dr. Patel is not a “decision[] or choice[] fundamental to a person’s identity, beliefs and self-definition,” so as to be analogous to religion or marital status. This is true even if we reframe it, on a higher level of generality, as rejecting aggressive treatment.

The Act demands “[i]ndividualized treatment of others without regard to status . . . .” (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 95.) It does not apply when the plaintiff’s “conduct, as opposed to his status, produced the discrimination alleged to be arbitrary [citation]. The Unruh Act . . . does [not] seek to remedy discrimination based on purely personal grounds.” (Id. at p. 96.) For example, it does not prohibit a bar from refusing to serve a person because he has filed a lawsuit against it. (Gayer v. Polk Gulch, Inc. (1991) 231 Cal.App.3d 515, 519-525.) Desert’s refusal to serve a person who has fired one of its members seems closely analogous.

Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917 came to a similar conclusion on similar facts. There, the plaintiffs sued two doctors for malpractice. The doctors were both members of the same medical group (Scripps). Scripps had a policy of terminating medical care for any patient who sued its members. (Id. at p. 926.) Accordingly, it refused to treat the plaintiffs. (Id. at pp. 926-927.) The plaintiffs sued the medical group, asserting causes of action including violation of the Act. (Id. at p. 927.)

The appellate court held that the medical group was entitled to summary adjudication on the Unruh Act cause of action. (Scripps Clinic v. Superior Court, supra, 108 Cal.App.4th at pp. 931-935.) It explained, in part: “Scripps’s policy does not rely upon a patient’s personal characteristics, but upon that patient’s conduct. [Citation.] We find, therefore, that Scripps’s policy does not constitute the kind of discrimination that the Unruh Civil Rights Act was meant to preclude.” (Id. at p. 934.) It added: “‘[A]ppellant urges that such conduct creates a class of persons who have filed lawsuits. But such logic could be applied to any kind of conduct. Were we to hold that the conduct involved here gave rise to a protected class under the Act, we would open the door for a seemingly endless stream of new cases never contemplated by the Legislature.’ [Citation.]” (Ibid.)

Tybout did not argue that the Act violates equal protection because it treats persons with protected characteristics differently from persons without. Rather, he argued that the distinction is illogical. However, “[t]he principle of equal citizenship . . . guards against degradation or the imposition of stigma. . . . [N]ot all inequalities stigmatize[;] the essence of any stigma lies in the fact that the affected individual is regarded as an unequal in some respect.” (Karst, The Supreme Court 1976 Term Foreword: Equal Citizenship Under the Fourteenth Amendment (1977) 91 Harv. L. Rev. 1, 6, fns. omitted.) Protected characteristics, whether mutable or immutable, are characteristics that are liable to be stigmatized. By contrast, no one would suppose that Tybout was inferior or a second-class citizen because he chose to fire Dr. Patel.

Tybout also argued that limiting the Act to persons with protected characteristics violates the Legislature’s intent. According to the Supreme Court, however, “the Legislature intended to confine the scope of the Act to the specified types of discrimination . . . .” (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at p. 1155.) Tybout’s position cannot be squared with the holding in Harris that the Act does not prohibit all arbitrary discrimination.

Tybout relied on Leach v. Drummond Medical Group, Inc. (1983) 144 Cal.App.3d 362. There, the plaintiffs reported their concerns about a hospital in Ridgecrest to state authorities. (Id. at pp. 366-367, 371.) For that reason, their medical group refused to provide them with further services. (Id. at p. 367.) According to the complaint, “the medical group possesse[d] virtual monopoly control over the provision of medical care in the town of Ridgecrest” and “the nearest comparable medical facility which will accept patients from Ridgecrest [wa]s approximately 100 miles away.” (Id. at p. 366.)

The appellate court held that the plaintiffs had stated a cause of action under the Act. (Leach v. Drummond Medical Group, Inc., supra, 144 Cal.App.3d at pp. 370-372.) In 1983, however, when Leach was decided, the Supreme Court had not yet made it clear that the Act prohibits discrimination only against certain types of protected classes. Accordingly, the defendant there conceded “that plaintiffs, in obtaining medical services, are members of a class of persons protected by the Unruh [Act] . . . .” (Id. at p. 370.) The defendant did argue that its discrimination against the plaintiffs was not arbitrary. (Ibid.) The appellate court, however, rejected this as “not only outside the face of the complaint but also []not reasonably . . . infer[able] from the facts alleged.” (Id. at p. 371.) The defendant also argued that its medical services were “not open to the general public . . . .” (Ibid.) The appellate court responded that the defendant “‘perform[ed] a significant public function’” because it “provide[d] the only medical services within a given geographical area . . . .” (Id. at p. 372.)

In other words, Leach simply did not address the issue that we find dispositive here — whether the alleged discrimination was based on the plaintiff’s membership in a protected class. “It is axiomatic that cases are not authority for propositions that are not considered. [Citation.]” (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043.) The defendant’s alleged monopoly was relevant solely to whether it was a business open to the general public — an element that defendants here cannot seriously dispute.

Finally, Tybout cited White v. Square, Inc. (2019) 7 Cal.5th 1019. Like Leach, however, White did not address the scope of the characteristics that are protected under the Act. There, the plaintiff alleged that the defendant violated the Act by discriminating against bankruptcy attorneys. (Id. at pp. 1023-1024.) The case was certified to the Supreme Court by the Ninth Circuit, which identified only one issue: “Does a plaintiff have standing to bring a claim under the Unruh Civil Rights Act when the plaintiff visits a business’s website with the intent of using its services, encounters terms and conditions that allegedly deny the plaintiff full and equal access to its services, and then leaves the website without entering into an agreement with the service provider?” (Id. at p. 1023.) The Supreme Court held, “The answer is yes.” (Ibid.; see also id. at pp. 1024-1032.) However, it specifically stated that it was not “express[ing] any view on whether a defendant violates the [Unruh] Act by discriminating on the basis of occupation . . . .” (Id. at p. 1032.)

We therefore conclude that Tybout did not allege a cause of action for arbitrary discrimination, under the Act or otherwise. Moreover, he did not show any reasonable possibility that he could amend to state one.

VII

THE NATURE OF THE INJUNCTION SOUGHT

Tybout did not contend that he could state any cause of action other than for an injunction or under the Act. Nevertheless, other causes of action, seem at least potentially applicable, including willful misconduct (Civ. Code, § 1714), elder abuse, intentional interference with prospective economic relations, violation of the Cartwright Act (Bus. & Prof. Code, § 16720 et seq.), unfair competition (Bus. & Prof. Code, § 17200), and intentional infliction of emotional distress.

Defendants contend, however, that Tybout sought an injunction to enforce a contract for personal services, which a court is forbidden to issue. We agree, and we conclude that this is fatal to any potential cause of action.

“An obligation to render personal service” “cannot be specifically enforced . . . .” (Civ. Code, § 3390.) “Especially is this the rule where the relation between the parties to the contract is one of mutual confidence, and the contract stipulates for acts that require special knowledge, skill, or ability, or the exercise of judgment, discretion, integrity, and like personal qualities.” (Poultry Producers of Southern California v. Barlow (1922) 189 Cal. 278, 288.)

“‘The rule that equity will not specifically enforce an obligation to render personal service has been assigned three distinct reasons for its existence. Some courts have based the rule upon the fact that it would be an invasion of one’s statutory liberty to compel him to work for, or to remain in the personal service of, another. It would place him in a condition of involuntary servitude — a condition which the supreme law of the land declares shall not exist within the United States, or in any place subject to their jurisdiction. Another reason assigned for the rule, according to some of the authorities, is that, in view of the peculiar personal relation that results from a contract of service, it would be inexpedient, from the standpoint of public policy, to attempt to enforce such a contract specifically. It is said by the judges who based the rule upon this consideration of public policy that, where one of the contracting parties is to act as the confidential agent of the other, it is necessary, not only for the parties, but for the sake of society at large, that there should be entire harmony and a spirit of cooperation between the contracting parties. The third reason for the rule, as given by other authorities, is that it is inconvenient, or, as others express it, impossible, for a court of justice to conduct and supervise the operations incident to and requisite for the execution of a decree for the specific performance of a contract which involves the rendering of personal services.” (Poultry Producers of Southern California v. Barlow, supra, 189 Cal. at pp. 288-289.)

Tybout argued that the injunction he was seeking would not compel anyone to perform personal services; it would prohibit the cardiologists at Desert from refusing to treat him because he fired Dr. Patel, but they could still refuse to treat him on any “reasonable grounds.”

This would still be an injunction compelling personal services. At least allegedly, all 16 cardiologists at Desert were refusing to treat Tybout because he fired Dr. Patel. Accordingly, Tybout was essentially seeking to compel them to treat him. While the injunction sought would be conditional — “You must perform personal services, if” — it would still be an injunction compelling personal services.

This is particularly clear in light of the three policy considerations stated in Poultry Producers. First, the injunction would be tantamount to involuntary servitude. Second, the injunction would poison the doctor-patient relationship. Third, and most important, it would be impractical for a court to administer such an injunction. All 16 cardiologists could probably come up with some other reason why they did not want to treat Tybout. The court would become enmeshed in determining the bona fides of those reasons. And what if one agreed to treat him but did so (in his view) poorly?

Indeed, Tybout came close to conceding that the issuance of the requested injunction would not be the end of the story. He asserted, “No action can be required of anyone without a further order of the Court beyond the relief requested. If a request is made for such an order, that will be time enough to argue the law on ordering personal service considering the circumstances as they are at that time. The appellant has near certainty the matter will never get to that point.” We cannot be so blithe. The difficulties that Tybout tried to wave away arise from — indeed, are inherent in — the fact that he was seeking an injunction to compel personal services.

Finally, Tybout argued that a demurrer cannot be sustained based on the sufficiency of the request for relief, as opposed to the sufficiency of the cause of action. We recognize that “a demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer of the complaint. [Citations.]” (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562.) This follows from the rule that “a demurrer does not lie to a part of a cause of action [citation] . . . .” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163, italics omitted.) Tybout cited, for example, cases holding that a demurrer will not lie to challenge a prayer for punitive damages. (Id. at pp. 163-164, 166, fn. 9; Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 882-883.)

The problem, however, is not that Tybout pleaded a claim for the wrong kind of relief; rather, he did not plead a claim for any relief. “Although California courts take a liberal view of inartfully drawn complaints, ‘[i]t remains essential . . . that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought.’ [Citation.]” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413, italics added.) “In considering the sufficiency of a complaint, the questions of proper designation of the action or the prayer for relief are not matters of serious concern. The important question is, does the complaint state any cause of action entitling plaintiff to any relief at law or in equity? [Citations.]” (Estergren v. Sager (1940) 39 Cal.App.2d 401, 404.) “‘It is not essential that a complaint state a cause of action for the relief which plaintiff seeks, provided the facts stated show some right of recovery . . . .’ [Citations.]” (Lundberg v. Katz (1941) 44 Cal.App.2d 38, 41-42.)

Ordinarily, damages are one of the elements of a cause of action. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [contract]; Aas v. Superior Court (2000) 24 Cal.4th 627, 646 [tort].) Alternatively, when statutorily authorized — particularly when damages would not be an adequate remedy — the plaintiff may seek an injunction. (Civ. Code, § 3422; Code Civ. Proc., § 526 et seq.) Specialized causes of action — e.g., to set aside a judgment or for partition — may entitle the plaintiff to specialized remedies. Tybout could not state a claim for an injunction, and he did not seek any other remedy.

Finally, even assuming Tybout was correct — even if we should not uphold the order sustaining the demurrer on the ground that he is not entitled to an injunction — he could not show that he has been prejudiced. (See Part III, ante.) On this record, he would not be entitled to any relief, even if he were to prevail after a full trial.

We therefore conclude that Tybout did not state any cause of action. Moreover, it does not appear that he could have stated any cause of action if given leave to amend.

VIII

DISPOSITION

The appeal is dismissed. In the interest of justice, each side shall bear its own costs. (Cal. Rules of Court, rule 8.278(a)(5).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

I concur:

CODRINGTON

J.

[E072623, Tybout v. Desert Cardiology Consultants’ Medical Group Inc. et al.]

RAPHAEL, J., Concurring.

I agree that we must dismiss this appeal because plaintiff Frederick Alton Tybout passed away. In my view, however, we should not explain how we would have decided the case had he lived. As our Supreme Court has stated, we have a duty not to opine on moot issues. “‘[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’” (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132; see, e.g., Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178 [“appellate courts as a rule will not render opinions on moot questions”].)

There are exceptions that occasionally permit us to opine on moot issues, such as on an issue of continuing public interest or on an issue that may recur between the parties. But I can find no exception that fits here. Tybout sought an injunction to obtain medical treatment for himself, an issue that no longer has applicability. For the general rule against opining on moot issues to be meaningful, it seems to me that we should follow it in a case such as this one.

RAPHAEL

J.

Parties and Attorneys
Frederick Tybout v. Desert Cardiology Consultants’ Medical Group, Inc. et al.
Case Number E072623
Party Attorney

Frederick Alton Tybout : Plaintiff and Appellant
9 Surrey Court
Rancho Mirage, CA 92270 Pro Per

Desert Cardiology Consultants’ Medical Group, Inc. : Defendant and Respondent
Susannah Dasha Dahlberg
Cole Pedroza LLP
2295 Huntington Drive
San Marino, CA 91108

Kenneth R. Pedroza
Cole Pedroza LLP
2295 Huntington Drive
San Marino, CA 91108

Kathleen A. Stosuy
Kramer, DeBoer & Keane
74770 Highway 111, Suite 201
Indian Wells, CA 92210

Phillip J. Patel : Defendant and Respondent
Susannah Dasha Dahlberg
Cole Pedroza LLP
2295 Huntington Drive
San Marino, CA 91108

Kenneth R. Pedroza
Cole Pedroza LLP
2295 Huntington Drive
San Marino, CA 91108

Kathleen A. Stosuy
Kramer, DeBoer & Keane
74770 Highway 111, Suite 201
Indian Wells, CA 92210