Filed 11/23/20 Fletcher v. Desert Regional Medical Center CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RUSSELL FLETCHER,

Plaintiff and Appellant,

v.

DESERT REGIONAL MEDICAL CENTER,

Defendant and Respondent.

E073558

(Super.Ct.No. PSC1706645)

OPINION

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

James M. Hodges for Plaintiff and Appellant.

Agajanian, McFall, Weiss, Tetreault & Crist, Philip D. Weiss, Paul L. Tetreault and Rina L. Yoo for Defendant and Respondent.

I. INTRODUCTION

Russell Fletcher (plaintiff) filed a civil suit seeking damages against Desert Regional Medical Center (defendant). Plaintiff alleges while a patient at defendant’s medical facility, he was sexually battered or sexually assaulted during the administration of a sponge bath by a certified nursing assistant (John Doe) employed by defendant. Plaintiff alleged defendant was liable for John Doe’s actions under a theory of respondeat superior as well as under a theory of negligent hiring, training, and supervision. On

July 17, 2019, the trial court granted defendant’s motion for summary adjudication as to each cause of action and summary judgment on the complaint. Judgment was entered thereafter and plaintiff appealed.

However, following issuance of our tentative opinion in this matter, plaintiff filed a request for dismissal of his appeal. We, therefore, exercise our discretion to dismiss the appeal.

II. FACTS AND PROCEDURAL HISTORY

A. Complaint

On November 30, 2017, plaintiff filed a civil complaint against Desert Regional Medical Center and John Doe. The complaint alleged three causes of action for (1) general negligence, (2) sexual assault, and (3) sexual battery. Specifically, plaintiff alleged that while he was a patient at defendant’s medical center, he was subjected to sexually offensive contact by a nursing assistant (John Doe). The complaint alleged defendant was liable for John Doe’s conduct because it “failed to properly investigate, train, supervise and monitor John Doe Nursing Assistant.”

B. Defendant’s Motion for Summary Judgment

1. Moving Papers and Supporting Evidence

On May 2, 2019, defendant filed a motion for summary judgment or, in the alternative, summary adjudication of each cause of action in plaintiff’s complaint. Defendant argued (1) it was not vicariously liable for any alleged sexual assault by John Doe because such acts, even if true, were outside the scope of John Doe’s employment, and (2) with respect to any direct liability for negligent hiring or supervision, defendant met the appropriate standard of care.

In support of summary judgment, defendant submitted a copy of plaintiff’s complaint; a copy of defendant’s personnel file for John Doe, including documents pertaining to the background screening conducted during John Doe’s hiring process; and relevant portions of plaintiff’s deposition testimony regarding his allegations. Defendant also submitted the declaration of an expert on acute care hospital management who offered opinions that defendant’s hiring of John Doe did not fall below the applicable standard of care.

Defendant also submitted the declaration of an expert in acute nursing

care. The expert declared she had been a licensed nurse in California for over 20 years; had clinical nursing experience in over eight different acute care facilities over the course of her professional career; and had been involved with performing internal peer review and assessment of nursing care for over three years. She reviewed plaintiff’s medical records at defendant’s facility, plaintiff’s complaint, and plaintiff’s deposition testimony. Based upon that review, she opined that defendant did not breach the applicable standard of care with respect to supervising John Doe. She explained that the applicable standard of care does not require nurses to monitor or supervise a certified nursing assistant in the administration of a patient bath or the rendering of other personal care assistance.

2. Opposition to Summary Judgment and Opposition Evidence

In opposition to summary judgment, plaintiff submitted various documents purporting to be excerpts from defendant’s human resources policy manual; a document purporting to be a standard blank form generated by the California Health and Human Services Agency for use in reporting misconduct; documents from defendant’s personnel file pertaining to John Doe; and documents purporting to be a sampling of “numerous articles” discovered by plaintiff’s attorney that contained allegations of inadequate staffing at defendant’s medical facility. These documents were attached to the declaration of plaintiff’s counsel, which also included various opinions as to how the documents should be interpreted, as well as argument in response to defendant’s motion.

Plaintiff also submitted the declaration of a registered nurse to offer an opposing expert opinion. Plaintiff’s nursing expert declared that she was licensed in California and had more than 35 years of experience in various clinical settings. She stated that she reviewed the declaration of defendant’s nursing expert in support of summary judgment, and she opined that defendant’s expert declaration did “not adequately address [a registered nurse’s] accountability with regard to supervising a [certified nursing assistant] who provides care to patients.” The expert explained that she personally reviewed defendant’s career website; recounted that the website represented that a certified nursing assistant was to provide care under the direct supervision of a registered nurse; and noted that this language was consistent with various unidentified regulations and statutes governing nursing. In light of such, the expert opined that defendant’s expert failed to adequately explain what it means to “monitor or supervise” a certified nursing assistant. However, she did not offer her own opinion regarding what monitoring or supervision should entail.

Plaintiff’s nursing expert also opined that defendant’s registered nurse “failed to supervise the appropriate care for [plaintiff’s] hygiene needs and . . . failed to use available resources efficiently.” She based her opinion on the fact that the registered nurse, and not the certified nursing assistant, is responsible for choosing the appropriate plan of care for a patient; that a sponge bath would not be appropriate for an ambulatory patient without medical indications of a potential fall risk; and that it would be “an extreme deviation from the standard of efficient use of resources” to offer sponge baths.

Finally, plaintiff’s expert criticized the background screening process conducted by defendant, offering the opinion that simply contacting professional references would be inadequate because any reports of prior misconduct would only be contained in an employee’s personnel file with prior employers.

3. Evidentiary Objections in Reply

In reply, defendant submitted written evidentiary objections. In addition to objecting to the various opinions contained within and the documents attached to the declaration of plaintiff’s counsel, defendant objected to the opinions offered by plaintiff’s nursing expert. Specifically, defendant objected to (1) the entire declaration by plaintiff’s expert for lack of foundation (objection No. 16); (2) the expert’s recitation of representations on defendant’s career website regarding the respective roles of nurses and certified nursing assistants (objection No. 17); (3) the expert’s opinion that a sponge bath was not appropriate for an ambulatory patient without medical indication as a fall risk (objection No. 18); (4) the expert’s opinion that a sponge bath was a deviation from “the standard of efficient use of resources” (objection No. 19); (5) the opinion that a certified nursing assistant cannot independently choose to administer a sponge bath as part of a patient’s plan of care (objection No. 20); and (6) the opinion that the background check process was inadequate because the only way to discover prior complaints against John Doe would be to review his personnel file with previous employers (objection No. 21).

C. Hearing and Ruling on Summary Judgment

On July 17, 2019, the trial court heard oral argument on defendant’s motion for summary judgment. During that hearing, plaintiff conceded summary adjudication would be proper on the second cause of action for sexual assault and the third cause of action for sexual battery. Further, plaintiff conceded that he was no longer attempting to pursue a theory of negligent hiring but was instead only pursuing a claim that defendant was negligent in training and supervising John Doe.

Following argument, the trial court entered a minute order granting summary adjudication as to each cause of action and, as a result, summary judgment on the complaint. The trial court made no rulings on any of defendant’s evidentiary objections, apparently believing that no objections had been submitted. Judgment was entered on July 31, 2019, and plaintiff appealed.

III. DISCUSSION

Following completion of briefing, issuance of our tentative opinion, and request for oral argument in this matter, plaintiff filed a request for dismissal of his appeal. Once the record on appeal has been filed in the reviewing court, a party is not entitled to dismissal as a matter of right, and dismissal is instead within the reviewing court’s discretion. (Jackpot Harvesting, Inc. v. Applied Underwriters, Inc. (2019) 33 Cal.App.5th 719, 728, fn. 10; see Cal. Rules of Court, rule 8.244(c).) We exercise our discretion to do so in this case, and plaintiff’s appeal is dismissed.

IV. DISPOSITION

The appeal is dismissed. Respondent to recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.