Case Name: Laura Wenke v. Susan W. Buchholz, Ph.D., et al.
Case No.: 2013-1-CV-257720

Currently before the Court are the following matters: (1) the motion by defendant Susan W. Buchholz, Ph.D. (“Susan”) for summary judgment of the complaint of plaintiff Laura Wenke (“Plaintiff”) or, in the alternative, summary adjudication of the first cause of action for professional negligence; and (2) the joinder in Susan’s motion by defendant William M. Buchholz, M.D. (“William”).

Factual and Procedural Background

This is a medical malpractice action arising out of psychological treatment provided to Plaintiff by Susan and William (collectively, “Defendants”). (Complaint, ¶¶ 2-3, 6.) Susan is a licensed clinical psychologist engaged in the practice of providing psychotherapeutic and/or medical treatment. (Id. at ¶ 2.) William is a physician engaged in the practice of medicine. (Id. at ¶ 3.)

From approximately February 2011 through September 14, 2011, Defendants provided “psychotherapeutic and medical examinations and treatment to Plaintiff for anxiety and depression, said treatment including but not limited to prescribing and monitoring medications known as Lexapro and Ativan.” (Complaint, ¶ 6.) Plaintiff’s use of Lexapro and Ativan allegedly “put her into a bizarre, dissociated, and violence-prone psychological state on September 15, [2011], during which she unconsciously and unknowingly attacked and stabbed her estranged husband with a knife, causing him serious injuries.” (Id. at ¶ 7.) Consequently, Plaintiff “was immediately incarcerated on criminal charges, and currently remains incarcerated thereon.” (Ibid.)

Plaintiff alleges that Susan “acted negligently in the course of providing psychotherapeutic and/or medical examinations and treatment to [her], which negligence including but not limited to the failure of [Susan] to exercise due care in recommending and monitoring [her] usage of Lexapro and Ativan.” (Complaint, ¶ 9.) Plaintiff further alleges that William “acted negligently in the course of providing medical examinations and treatment to [her]” by failing “to exercise due care in prescribing and monitoring [her] usage of Lexapro and Ativan.” (Id. at ¶ 16.) As the proximate result of Defendants’ alleged negligence, Plaintiff suffered damages, including expenses relating to health care treatment, loss of earnings, loss of earning capacity, pain, suffering, mental anguish, loss of liberty and “limitations in her enjoyment of life.” (Id. at ¶¶ 10-12 and 17-19.)

On December 13, 2013, Plaintiff filed the complaint against Defendants, alleging causes of action for: (1) professional negligence (against Susan); (2) professional negligence (against William); and (3) negligence (against Doe defendants).

On September 25, 2017, Susan filed the instant motion for summary judgment of the complaint or, alternatively, summary adjudication of the first cause of action for professional negligence. The following day, William filed a notice of joinder in Susan’s motion, memorandum of points and authorities, and separate statement. Plaintiff filed papers in opposition to both matters on November 30, 2017. On December 8, 2017, Susan filed a reply in support of her motion. Subsequently, on December 11, 2017, William filed a reply in support of his joinder.

Discussion

I. William’s Joinder

In his notice of joinder, Williams states that he “hereby joins in [Susan’s] Motion for Summary Judgment, or in the Alternative, Summary Adjudication ….” (Joinder, p. 1:21-23.) He further states that he “incorporates by reference any and all pleadings, declarations and supporting papers filed and served in support thereof.” (Id. at p. 1:24-26.) In his memorandum of points and authorities, William asserts that he “now moves for summary judgment based on the collateral estoppel effect of the criminal proceeding barring Plaintiff from re-litigating her contention that she is not responsible for her planned, premeditated, and intentional assault on [her then husband].” (Id. at p. 2:14-17.) William “requests the court grant his motion for summary judgment on the grounds that Plaintiff’s claims are precluded by collateral estoppel because the criminal verdicts have been affirmed.” (Id. at p. 6:11-13.) William also submits a separate statement of undisputed material facts (“UMF”), setting forth eight UMF. However, William does not himself submit any evidence in support of his UMF. Notably, the evidence cited in William’s separate statement in support of his UMF is: Plaintiff’s complaint; documents of which Susan requested judicial notice; and some of Susan’s UMF. (William’s Sep. Stmt., pp. 2-4.)

Code of Civil Procedure section 437c, subdivision (b)(1) states that a party moving for summary judgment or summary adjudication must support the motion with affidavits, declarations, and other discovery materials. (Code Civ. Proc., § 437c, subd. (b)(1); Frazee v. Seely (2002) 95 Cal.App.4th 627, 636; Village Nurseries, L.P. v. Greenbaum (2002) 101 Cal.App.4th 26, 46.) “In order to establish a prima facie case for summary judgment, a moving party defendant must present admissible evidence establishing a complete defense to the claim or that plaintiff will be unable to prove an essential element of the claim. [Citation.] Only then is the opposing party required to present admissible evidence in opposition. [Citation.] When a party merely joins in a motion for summary judgment without presenting its own evidence, the party fails to establish the necessary factual foundation to support the motion.” (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661, italics added.)

Here, William failed to present any evidence, instead merely stating that he “incorporates by reference any and all pleadings, declarations and supporting papers filed and served in support thereof.” (p. 1:24-26.) Accordingly, William’s request for joinder is DENIED.

II. Susan’s Motion for Summary Judgment or, Alternatively, Summary Adjudication

Under Code of Civil Procedure section 437c, Susan moves for summary judgment of the complaint or, in the alternative, summary adjudication of the first cause of action for professional negligence on the grounds that:

Plaintiff cannot establish that any act or omission on [her] part … was a substantial factor in causing [Plaintiff] to attack her estranged husband and sustain any “injury” including incarceration for the attack. More specifically, … [Plaintiff] was deemed by a jury in the criminal proceeding entitled The People of the State of California v. Laura Jean Wenke, San Mateo County Superior Court Case No. SC-075652A, to have been sane and acting willfully, deliberately and with premeditation in the attempted murder of her husband, Randall Wenke, on September 15, 2011[,] such that the doctrine of collateral estoppel precludes her from re-litigating the issue of whether Plaintiff “unconsciously and unknowingly attacked and stabbed her estranged husband with a knife, causing him serious injuries.” (Plaintiff’s Complaint, ¶ 7, 2:15-18.) The specific causation issue presented in this action, to wit, whether Plaintiff’s medications caused her to “unconsciously and unknowingly” attack and stab her estranged husband, was presented to the criminal jury through medical expert testimony and specifically rejected. This issue having been litigated and decided, collateral estoppel precludes re-litigation of the element of causation.

(Susan’s Ntc. Mtn., p. 2:2-17.)

A. Nature of the Motion

Though Susan states that she is moving for summary judgment or, alternatively, summary adjudication, the only claim alleged against Susan in the complaint is the first cause of action for professional negligence. Thus, in actuality, Susan simply seeks summary judgment of the complaint, as alleged against her, as her motion with respect to the first cause of action for professional negligence, if successful, would dispose of the lawsuit in its entirety. Consequently, the Court construes the instant motion as one for summary judgment alone.

B. Request for Judicial Notice

Susan asks the Court to take judicial notice of the following items: a certified copy of the Information filed in the matter of The People of the State of California v. Laura Jean Wenke (San Mateo County Superior Court, Case No. SC-075652A) (the “Criminal Case”); certified copies of nine Phase I Verdicts filed in the Criminal Case; certified copies of four Phase II Verdicts filed in the Criminal Case; the unpublished decision of the First District Court of Appeal in People v. Wenke (Cal. Ct. App., Mar. 17, 2016, No. A142905) 2016 WL 1056777; portions of the reporter’s transcript of proceedings from the trial in the Criminal Case; a certified copy of the First District Court of Appeal docket in the Criminal Case; and a certified copy of the Abstract of Judgment—Prison Commitment—Indeterminate filed in the Criminal Case.

Each of these items is a court record that is relevant to the pending motion. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

Accordingly, Susan’s request for judicial notice is GRANTED as to the existence of the court records and the truth of the results reach in documents such as orders, statements of decision, and judgments. (See Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 90 [“To determine whether to preclude relitigation on collateral estoppel grounds, judicial notice may be taken of a prior judgment and other court records.”].)

C. Legal Standard on Motions for Summary Judgment

The pleadings limit the issues presented for summary judgment and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion”].)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a).) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-718.)

D. General Law Regarding Causation in Medical Malpractice Claims

“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Super. Ct. (2006) 143 Cal.App.4th 297, 305, citing Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) Thus, “[i]n a medical malpractice action, a plaintiff must prove the defendant’s negligence was a cause-in-fact of injury.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 (Jennings).)

To show the element causation cannot be established in a medical malpractice action, the defendant must present expert testimony opining that the plaintiff’s injury was not “caused by anything that defendants did or failed to do. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 508.) The test for proving causation in a medical malpractice case is the substantial factor test. (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1092.) “Conduct can be considered a substantial factor in bringing about harm if it has created a force or series of forces which are in continuous and active operation up to the time of the harm, or stated another way, the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another.” (Id. at p. 1093, internal citations and quotation marks omitted.)

“Like breach of duty, causation also is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864; see Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354 [“the issue of proximate cause ordinarily presents a question of fact. However, it becomes a question of law when the facts of the case permit only one reasonable conclusion.”]; see also Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1304, fn. 2 [causation is generally a factual issue for trial after the scope of duty (i.e., what precautionary measures were reasonably required) is determined].)

E. General Law Regarding the Doctrine of Collateral Estoppel

“Collateral estoppel (more accurately referred to as ‘issue preclusion’) ‘prevents relitigation of previously decided issues,’ even if the second suit raises different causes of action. [Citation.] Under California law, ‘issue preclusion applies (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.’ [Citation.] The issue preclusion bar ‘can be raised by one who was not a party or privy in the first suit.’ [Citation.]” (Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, 1088 (Kemper).)

“In deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation.” (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1233.)

F. Susan’s Arguments and Evidence

Susan argues that Plaintiff cannot establish the element of causation (i.e., that any act or omission on her part was a substantial factor in causing Plaintiff’s damages) because the jury in the Criminal Case found Plaintiff to be sane and acting willfully, deliberately, and with premeditation when Plaintiff attempted to murder her husband on September 15, 2011. (Ntc. Mtn., 2:2-5.) Susan asserts that “[t]he specific causation issue [presented] in this action” is “whether Plaintiff’s medications caused her to ‘unconsciously and unknowingly’ attack and stab her estranged husband ….” (Ntc. Mtn., 2:12-15.) Susan states that this same issue “was presented to the criminal jury through medical expert testimony and specifically rejected.” (Ntc. Mtn., 2:14-16.) Susan contends that the doctrine of collateral estoppel, therefore precludes Plaintiff her from “re-litigating the issue of whether Plaintiff ‘unconsciously and unknowingly attacked and stabbed her estranged husband with a knife, causing him serious injuries.’ ” (Ntc. Mtn., 2:10-17; Mem. Ps. & As., p. 1:4-6.) In essence, Susan contends that the issue of causation presented in this case was previously litigated and necessarily decided in the Criminal Case against Plaintiff. (Mem. Ps. & As., p. 1:4-10.)

In support of her argument, Susan presents 177 UMF. As is relevant here, the UMF, and Susan’s supporting evidence, establish that the San Mateo District Attorney filed an Information against Plaintiff for attempting to murder Randall Wenke “willfully, unlawfully, and with malice aforethought” on September 15, 2011. (UMF Nos. 4-5; RJN, Ex. E.) Plaintiff was also charged with assault with a knife, assault with a stun gun or taser, and infliction of corporal injury. (UNF Nos. 4-8; RJN, Ex. D.) Plaintiff pleaded not guilty and not guilty by reason of insanity. (RJN, Ex. D.)

In the first phase of the criminal trial, Plaintiff testified about the impact of the medications, Lexapro and Ativan, on her mental state. (UMF Nos. 16-21.) Plaintiff’s defense attorney presented expert testimony to the jury about: Plaintiff’s use of the medication; the affect starting and stopping those medications might have on a patient; the side effects of those medications; the affect that those medications might have had on Plaintiff’s mental state; the improper monitoring of Plaintiff’s use of the medications; the adverse effects that improper monitoring could have; the possibility that an unmonitored person taking such medications might develop a mental condition, like mania; and the reasonably probability that an untreated mental condition, as well as the administration of the medications, caused Plaintiff’s behavior on September 15, 2011. (UMF Nos. 43-68 and 81-89.) The prosecutor cross-examined Plaintiff and the experts regarding the foregoing. (UMF Nos. 21, 28-36, 37-42, 59-63, 69-80.) The prosecutor also presented opposing expert witnesses who also testified about the effects and Plaintiff’s use of the medications. (Ibid.)

In closing argument, defense counsel argued that the medications could cause mental conditions; intoxication can include experiencing the side effects of medication; Plaintiff was not warned about the side effects of the medications she was taking; Plaintiff’s mental state worsened when she started and stopped the medication; Plaintiff was severely mentally ill; it was reasonably probable that the attack on Plaintiff’s husband was caused by Plaintiff’s mental disorder and use of the medications; the medications, along with Plaintiff’s mental disorder, could cause the specific intent to kill; and Plaintiff was involuntarily intoxicated due to the side effects of the medication. (UMF Nos. 128-138.) In closing, the prosecutor argued that even though the defense asserted that the use and improper monitoring of the medication usage was the cause of the attack, Plaintiff did not suffer the side effects described, she was not intoxicated, her reaction to the medication was not the cause of the attack, and she possessed the requisite mens rea. (UMF Nos. 123-124 and 139-147.)

The jury in the Criminal Case was then asked to decide Plaintiff’s mental state as part of the verdict, i.e., was the attempted murder committed willfully, deliberately, and with premeditation within the meaning of Penal Code section 189. (UMF Nos. 110-147.) The trial court explained that to convict Plaintiff of attempted murder the jury would need to find that the act was intentional, Plaintiff intended to kill, she weighed the considerations for and against her choice, and knowing the consequences decided to kill. (Ibid.) The trial court instructed the jury that a decision to kill made impulsively without careful consideration of the choice and its consequences is not premeditated and deliberate. (Ibid.) The trial court also instructed the jury regarding voluntary and involuntary intoxication. (Ibid.) The jury then found Plaintiff guilty of attempted murder, i.e., that she willfully, deliberately, and with premeditation attempted to kill Randall Wenke. (UMF Nos. 9-13 and 148-150; RJN, Ex. B.)

After Plaintiff was found guilty, the issue of Plaintiff’s sanity was tried. (UMF Nos. 151-168.) The defense presented expert testimony that Plaintiff was vulnerable to the medications; Susan improperly monitored Plaintiff’s medication usage; the way the drug was administered contributed to Plaintiff’s mental state; Plaintiff was insane; and Plaintiff fell into a dissociative state prior to the offense such that she was not capable of understanding that nature, quality, or wrongfulness of her actions during the attack. (UMF Nos. 151-162, RJN, Ex. D.) Plaintiff’s defense attorney argued that the failure to properly monitor Plaintiff’s usage of the drugs was the “spark or catalyst” of the attack while the prosecutor asserted that the medications did not alter Plaintiff’s mental state and the defense’s argument could not be believed (UMF Nos. 164-168.) The trial court instructed the jury to determine whether it was more likely than not Plaintiff was legally insane when she committed the crimes, i.e., she had a mental disease or defect and, because of that disease or defect, she was incapable of knowing or understanding the nature and quality of her acts or was incapable of knowing or understanding that her act was morally or legally wrong. (UMF Nos. 163.) The jury eventually found Plaintiff to be legally sane at the time of the attack. (UMF No. 169.)

Susan points out that Plaintiff appealed her conviction and the First District Court of Appeal affirmed the judgment. (UMF Nos. 170-175; RJN, Ex. D.) Plaintiff’s later attempts for review of her conviction by the California Supreme Court and United States Supreme Court were denied. (UMF Nos. 175-176; RJN, Ex. CC.)

G. Susan Fails to Meet Her Initial Burden on Summary Judgment

In light of the foregoing, the Court finds that Susan fails to meet her initial burden on summary judgment because she has not met the “identical issue” requirement. The “ ‘identical issue’ requirement addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. ([Citation.])” (Lucido v. Super. Ct. (1990) 51 Cal.3d 335, 342; see Evans v. Celotex Corp. (1987) 194 Cal.App.3d, 741, 745.) “To apply the collateral estoppel bar, the issue must have been raised and decided in the prior proceeding. [Citation.] But collateral estoppel applies ‘even if some factual matters or legal theories that could have been presented with respect to that issue were not presented.’ [Citation].” (Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, 1089.) “ ‘Accordingly, where the previous decision rests on a ‘different factual and legal foundation’ than the issue sought to be adjudicated in the case at bar, collateral estoppel effect should be denied.’ [Citations.] Precisely defining the issue previously decided and the one sought to be precluded is critical.” (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1513.)

As is relevant here, Susan’s evidence demonstrates that the jury in the Criminal Case was asked to decide (1) whether Plaintiff possessed the requisite mental state to commit attempted murder—i.e., whether the attempted murder committed willfully, deliberately, and with premeditation —and (2) whether she was insane—i.e., whether she had a mental disease or defect and, because of that disease or defect, she was incapable of knowing or understanding the nature and quality of her acts or was incapable of knowing or understanding that her act was morally or legally wrong. Plaintiff argued that she was insane and did not have the requisite mens rea, in part, because her medication usage altered her mental state. The jury rejected Plaintiff’s argument that she was insane and did not possess the requisite mental state. Thus, the factual issues actually litigated in the Criminal Case were whether Plaintiff’s medication usage altered her mental state such that she should be deemed insane and lacking the requisite mens rea.

The professional negligence theory upon which Plaintiff proceeds in this case does not present identical factual issues necessarily decided by the jury in the Criminal Case in connection with Plaintiff’s defense that she was insane and did not have the requisite mens rea. In the complaint, Plaintiff initially provides background information regarding her treatment with the Defendants and the attack on her then husband. (Complaint, ¶¶ 6-7 [from approximately February 2011 through September 14, 2011, Defendants provided “psychotherapeutic and medical examinations and treatment to Plaintiff for anxiety and depression, said treatment including but not limited to prescribing and monitoring medications known as Lexapro and Ativan”; her use of the medications allegedly “put her into a bizarre, dissociated, and violence-prone psychological state on September 15, [2011], during which she unconsciously and unknowingly attacked and stabbed her estranged husband with a knife, causing him serious injuries”; thereafter, she “was immediately incarcerated on criminal charges, and currently remains incarcerated thereon.”].) Next, Plaintiff alleges that Susan “acted negligently in the course of providing psychotherapeutic and/or medical examinations and treatment to [her], which negligence including but not limited to the failure of [Susan] to exercise due care in recommending and monitoring [her] usage of Lexapro and Ativan.” (Id. at ¶ 9.) Plaintiff further alleges that as the proximate result of Susan’s alleged negligence, she suffered damages, including expenses relating to health care treatment, loss of earnings, loss of earning capacity, pain, suffering, mental anguish, loss of liberty, and “limitations in her enjoyment of life.” (Id. at ¶¶ 10-12.) Thus, with respect to the issue of causation, the relevant factual issue at stake in this lawsuit is whether Susan’s negligent provision and monitoring of medication was a proximate cause of Plaintiff’s alleged damages.

That factual allegations at stake in the Criminal Case—that Plaintiff’s medication usage altered her mental state such that she should be deemed insane and lacking the requisite mens rea—are not identical to the causation allegations in this lawsuit—that Susan’s negligent provision and monitoring of medication was the proximate cause of Plaintiff’s damages.

Accordingly, Susan does not meet her initial burden and her motion for summary judgment is DENIED.