Case Number: KC066671 Hearing Date: June 10, 2014 Dept: J

Re: Xue W. Liy v. State Compensation Insurance Fund (KC066671)

DEMURRER TO COMPLAINT (X2); MOTION TO STRIKE PORTIONS OF COMPLAINT (X2)

Moving Parties: Defendant Foothill Presbyterian Hospital; Defendants Irwindale Industrial Clinic, Sandstone Physical Therapy Group, Jack Solomon Feldsher, M.D., Joel S. Felsher, D.O., Greg Von Terry, R.P.T., and Robert Almanza, P.A.

Respondent: Plaintiff Xue W. Liu

POS: Moving and Replies OK; Opposing papers are not accompanied by a requisite proof of service

The Complaint, filed 2/20/14 by Plaintiff in propria persona, asserts causes of action for:

1. Fraud
2. Fraudulent concealment
3. Fraudulent promise
4. Constructive fraud
5. Fraudulent and reckless spoliation of evidence
6. Willful misconduct
7. Negligence
8. Medical battery and abuse
9. Forgery
10. Labor law violations
11. Personal injury

The Case Management Conference is scheduled for 6/24/14.

(1) DEMURRER OF DEFENDANT FOOTHILL PRESBYTERIAN HOSPITAL:

Defendant Foothill Presbyterian Hospital (“Foothill”) demurs to all causes of action in Plaintiff’s Complaint on the grounds that they fail to state facts sufficient to constitute a cause of action pursuant to CCP §430.10(e), and are vague pursuant to subsection (f). Plaintiff alleges that he was electrocuted by a medical device in 2002 while receiving electrotherapy, and taken to the emergency room at Foothill. He alleges Foothill did not completely document his visit, and forcibly discharged him.

Foothill claims that all eleven causes of action are based on the professional negligence of healthcare providers, so they are barred by the one year statute of limitations contained in CCP §340.5. The alleged emergency room visit was in 2002, but the Complaint was not filed until 2/20/14. Thus, these claims are barred. Even if Plaintiff’s allegations of delayed discovery in July or September of 2012 are used (Complaint, ¶24), the one-year period ran out before Plaintiff filed his Complaint on February 20, 2014.
The demurrer to each cause of action is sustained on this basis. However, the court will nonetheless discuss the other grounds for demurrer.

FIRST CAUSE OF ACTION FOR FRAUD, SECOND CAUSE OF ACTION FOR FRAUDULENT CONCEALMENT, THIRD CAUSE OF ACTION FOR FRAUDULENT PROMISE, FOURTH CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD, and FIFTH CAUSE OF ACTION FOR FRAUDULENT OR RECKLESS SPOLIATION OF EVIDENCE:

These causes of action are are based upon allegations that Foothill did not properly document Plaintiff’s condition and treatment (¶¶25-66). The elements of fraud are: (1) a representation, usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation; and (5) damages resulting from that justifiable reliance. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73). Specific facts of the alleged fraud or concealment must be alleged. Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331. Plaintiff alleges that nurses at Foothill intentionally omitted information from Plaintiff’s medical record. Plaintiff fails to allege what “representations” were made, who made the representations, what their intent was, how that person intended to defraud Plaintiff, Plaintiff’s justifiable reliance thereon, and Plaintiff’s resulting damages. At most, these allegations would be allegations of medical negligence, which is barred by the statute of limitations as discussed above, and not an intentional tort. As for the spoliation claim, causes of action for intentional and negligent spoliation are barred as a matter of law. (Coprich v. Sup.Ct. (2000) 80 Cal.App.4th 1081.) The demurrer to the first five causes of action is also sustained on these grounds.

SIXTH CAUSE OF ACTION FOR WILLFUL MISCONDUCT:

This cause of action alleges that Foothill and its staff “maliciously and inhumanly forced Plaintiff to leave the ER and Plaintiff was abandoned and exposed with pain and confuse [sic] in the outside of the building to wait for pick up.” (¶65). Three elements are necessary to raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril. New v. Consolidated Rock Products co. (1985) 171 Cal.App.3d 681, 689-690. Here, Plaintiff’s uses of the words “maliciously and inhumanely” are in sufficient, by themselves, to establish willful misconduct. The demurrer is also sustained on this ground.

SEVENTH CAUSE OF ACTION FOR NEGLIGENCE:

This cause of action is barred by the one-year statute of limitations, as discussed above.

EIGHTH CAUSE OF ACTION FOR MEDICAL BATTERY AND ABUSE:

This cause of action alleges no facts to support such a claim. “The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.” Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241. If by “abuse” Plaintiff means Elder Abuse under Welfare & Institutions Code §15657 et seq., then Plaintiff has failed to allege that he is a dependent adult or elder to have standing to make that claim. In addition to being barred by the statute of limitations, the demurrer is sustained on these additional grounds.

NINTH CAUSE OF ACTION FOR FORGERY:

This cause of action alleges that Foothill forged medical records to intentionally cover what really caused his injury, and that he left the ER against medical advice. Forgery is not a civil cause of action, but a type of fraud. Here, it lacks sufficient facts, as discussed above, and it is barred by the statute of limitations. The demurrer is sustained.

TENTH CAUSE OF ACTION FOR LABOR LAW VIOLATIONS:

This cause of action incorporates by reference all prior allegations, including those against Foothill, but fails to mention Foothill in the caption. This cause of action is unintelligible as against Foothill, who is not alleged to be Plaintiff’s employer. The demurrer is also sustained on these grounds.

ELEVENTH CAUSE OF ACTION FOR PERSONAL INJURY:

This cause of action fails to provide notice to Foothill what tort is being alleged, and any cause of action for personal injury is barred by the statute of limitations. The demurrer is sustained.

(2) MOTION TO STRIKE OF DEFENDANT FOOTHILL PRESBYTERIAN HOSPITAL:

In light of the foregoing ruling on the demurrer, the motion to strike is moot.

(3) DEMURRER OF DEFENDANTS IRWINDALE INDUSTRIAL CLINIC, SANDSTONE PHYSICAL THERAPY GROUP, JACK SOLOMON FELDSHER, M.D., JOEL S. FELDSHER, D.O., GREG VON TERRY R.P.T., AND ROBERT ALMANZA, P.A.:

Defendants Irwindale Industrial Clinic; Sandstone Physical Therapy Group; Jack Solomon Feldsher, M.D.; Joel S. Feldsher, D.O.; Greg Von Terry, R.P.T.; and Robert Almanza, P.A. demur to all causes of action in Plaintiff’s Complaint on the grounds that they fail to state facts sufficient to constitute a cause of action pursuant to CCP §430.10(e), and are vague pursuant to subsection (f). Plaintiff alleges that he was electrocuted by a medical device in 2002 while receiving electrotherapy at Defendant Irwindale Industrial Clinic (“Irwindale”).

Defendants claim that all eleven causes of action are time barred by the applicable statutes of limitation; that they are also barred by the doctrine of res judicata; that their conduct is protected under the litigation privilege; and that insufficient facts are alleged to support each claim.

Statute of Limitations:

The statute of limitations for fraud is three years under CCP §338(d), so causes of action one through four and seven are barred. Under CCP §335.1, the statute for personal injury is two years, barring causes of action eight and eleven. CCP §335.1 limits the filing of actions based on a contract, obligation or liability not founded upon an instrument in writing to two years from the date of injury, so causes of action five, six and nine were not timely filed. Finally, under CCP §340.5, the statute of limitations for medical negligence is one year, and all of these causes of action stem from that claim. In this case, the injury occurred in 2002, and the Complaint was filed in 2014. Plaintiff has not alleged facts showing delayed discovery as to these Defendants. The demurrer to the entire Complaint is sustained.

Res Judicata and Retraxit:

Defendants claim that the entire action is barred by the doctrine of retraxit and the doctrine of res judicata. “The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” (7 Witkin, Cal. Procedure (5th Ed. 2008) Judgment, §334, p. 938.).At common law, a retraxit was “a voluntary renunciation by plaintiff in open court of his suit and cause thereof, and by it plaintiff forever loses his action.” Rice v. Crow (2000) 81 Cal.App.4th 725, 733. The same effect is not accorded a dismissal with prejudice. Ghiringhelli v. Riboni (1950) 95 Cal.App.2d 503, 506.

Here, Plaintiff originally sued for these injuries in 2003 (Case No. KC041989, Exh. C, the “Prior Action”). In that Prior Action, he alleged medical malpractice, negligence, lack of informed consent, strict product liability and breach of express and implied warranties against Irwindale Industrial Clinic; Joel S. Feldsher, D.O.; Sandstone Physical Therapy Group; Greg [Von] Terry, RPT; George Perez and Dynatronics Corporation. That case was dismissed, and Plaintiff refilled it (omitting punitive damages) on 11/01/04 against the same defendants (Case No. KC045096). The court takes judicial notice pursuant to Evidence Code §452(d) of these Prior Actions. Defendants Sandstone and Feldsher, D.O. were dismissed with prejudice on 10/23/07 (Exh. D). The remaining defendants, Irwindale, Terry and Perez proceeded through a jury trial ending in a Plaintiff’s verdict on 11/06/07, and a post-trial settlement for $950,000 total (Exh. E). Plaintiff now sues these same Defendants (except Jack Solomon Feldsher, M.D. and Robert Almanza, P.A.) again on the same subject matter and for same injuries, although he has attempted to plead fraud-related claims. The action is barred by res judicata as to these Defendants.

As for the other Defendants, Feldsher, M.D. and Almanza, P.A., who are alleged to have worked together with the other Moving Defendants at Irwindale/Sandstone (¶¶7-8, 10 and 14) in 2002, the exoneration of an employer in a prior action bars a second suit against an employee. Saavedra v. Orange County Consolidated Transportation Etc. Agency, 11 Cal.App.4th 824, 828-829 (1992). Thus, this action is barred as to these Defendants as well. The demurrer to the entire Complaint is sustained on this basis as well.

Litigation Privilege:

Civil Code §47(b) provides a privilege for statements made “in judicial or quasi-judicial proceedings; by litigants or other participants authorized by law; (c) to achieve the objects of the litigation; and having some connection to logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212). Plaintiff alleges that Defendant Terry testified in a deposition in the Prior Action about non-disclosures and other deficiencies in Defendants’ medical reports. (¶¶31, 37, 38, 42, 47, 51-53, 54-56, 65, 77). Since these statements were made during a deposition in the Prior Action by former and present defendant Terry, regarding the conduct of the prior and present Defendants, the litigation privilege applies. As a result, the following causes of action fail to state sufficient facts to constitute a claim and are uncertain: 1-4 based on fraud; 5 for spoliation; 6 for willful misconduct; and 9 for forgery. The demurrer as to causes of action 1-6 and 9 is sustained on this basis as well.

Failure to State Sufficient Facts:

Fraud:

Specific facts of the alleged fraud or concealment must be alleged. Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331. Allegations of fraud against a corporate entity requires the plaintiff to allege “the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614). Here, Plaintiff does not allege specific facts as to every element of fraud for each of the individual Defendants. The allegations are even more deficient as to the alleged corporate employers, Irwindale and Sandstone. The demurrer to causes of action 1-5 is sustained on this basis as well.

Spoliation:

There is no civil liability in tort for spoliation of evidence, intentional or negligent. (Coprich v. Sup.Ct. (2000) 80 Cal.App.4th 1081). “[W]e think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony.” Temple Community Hospital v. Sup.Ct. (1999) 20 Cal.4th 464, 472-473. The demurrer to cause of action 5 is sustained on this basis as well.

Forgery:

There is no tort claim for the concealment or withholding of evidence based on forged documents. Temple Community, supra. The demurrer to cause of action 9 is sustained on this basis as well.

Willful Misconduct:

Three elements are necessary to raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril. New v. Consolidated Rock Products co. (1985) 171 Cal.App.3d 681, 689-690. Here, Plaintiff fails to allege facts sufficient to meet this standard. The demurrer to cause of action 6 is sustained on this basis as well.

Medical Negligence:

Plaintiff’s negligence claim arises from the provision of medical services, so it is medical negligence. However, this issue was litigated and decided in the Prior Action. Plaintiff alleges that he is a “patient and customer” under the care of collective defendants “from Sep. 2001 to now” (¶68), but there are no allegations that he received care after 6/06/02. Thus, there are insufficient facts to support this claim. The demurrer as to cause of action 7 is sustained on this basis as well.

Medical Battery:

“The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.” Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241. Plaintiff does not allege a lack of informed consent. The demurrer as to cause of action 8 is sustained on this basis as well.

Personal Injury:

There is no cause of action entitled “personal injury.” Plaintiff incorporates all prior allegations, but makes to charges specific to any identifiable tort. The demurrer to cause of action 11 is sustained on this basis as well.

(4) MOTION TO STRIKE OF DEFENDANTS IRWINDALE INDUSTRIAL CLINIC, SANDSTONE PHYSICAL THERAPY GROUP, JACK SOLOMON FELDSHER, M.D., JOEL S. FELDSHER, D.O., GREG VON TERRY R.P.T., AND ROBERT ALMANZA, P.A.:

Based upon the sustaining of the demurrer in its entirety, the motion to strike is deemed moot.

The court will hear from Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof as to what additional facts can be alleged to cure the defects discussed above if so.