Opinion
B316566
05-03-2024
WENDY NORRIED, Plaintiff and Appellant, v. VENICE FAMILY CLINIC et al., Defendants and Respondents
David Vernon Welker for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, Cassidy C. Davenport, Dana L. Stenvick; Kjar, McKenna & Stockalper, Patrick E. Stockalper and Molshree Gupta for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STCV17235 Mark H. Epstein, Judge.
David Vernon Welker for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, Cassidy C. Davenport, Dana L. Stenvick; Kjar, McKenna & Stockalper, Patrick E. Stockalper and Molshree Gupta for Defendants and Respondents.
BAKER, ACTING P. J.
David Welker (Welker), an attorney, litigated several cases on behalf of himself and others in connection with the death of his brother, Darrell Norried (Darrell), in 2017. This is one of those cases-one in which Welker and his sister Wendy Norried (Wendy) asserted various causes of action against defendants Venice Family Clinic and the Regents of the University of California (collectively, the Clinic) based on the Clinic's conduct in responding to their requests for information regarding Darrell's medical care. They also sought a declaration that various provisions of the Medical Injury Compensation Reform Act of 1975 (MICRA) are unconstitutional. We are asked to decide whether the trial court erred in sustaining the Clinic's demurrer without leave to amend.
I. BACKGROUND
Darrell became a patient of the Clinic in July 2017 and was treated by physician's assistant Ernest Ortiz (Ortiz) on two occasions in July and August 2017. Plaintiffs allege Ortiz failed to inform Darrell of side effects associated with certain medication he prescribed and failed to monitor Darrell's response to the drug. Darrell died of hypertensive heart disease in September 2017.
This lawsuit and two others followed, with Welker representing the plaintiffs (including himself) in each. We begin with a brief summary of the two related cases, which the court referred to in the challenged ruling in this action.
This court granted the Clinic's request for judicial notice of the amended complaint, first amended complaint, second amended complaint, third amended complaint, fourth amended complaint, notice of ruling on demurrer and motion to strike the second amended complaint, and order granting summary judgment in Stratman v. Ortiz, Los Angeles Superior Court No. 8STCV09440 as well as the complaint in Norried v. Ortiz, Sacramento Superior Court No. 34-2020-00291405. (Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a).)
A. Related Litigation
In Stratman v. Ortiz, Los Angeles Superior Court No. 18STCV09440, the court granted summary judgment in favor of the Clinic, Ortiz, and various other individuals on medical malpractice claims brought by Wendy as personal representative of Darrell's estate. The court previously sustained a demurrer to a cause of action for negligent infliction of emotional distress premised on (1) Welker and Darrell's nephew, Brayden Witt (Witt), watching Darrell die; and (2) Welker and Wendy being rudely rebuffed by Clinic staff when they requested medical records and information following Darrell's death. With respect to the latter theory-which, as we shall discuss, is directly relevant to this case-the court determined the Clinic owed no duty of care to Welker or Wendy. The court denied leave to amend this cause of action because this was the third time it had been subject to a pleading challenge and there were no proffered allegations that would cure the defect.
In Norried v. Ortiz, Sacramento Superior Court No. 342020-00291405, Welker represents himself, Wendy, and Witt in a purported class action against Ortiz and the Clinic seeking a declaratory judgment that certain provisions of MICRA are unconstitutional. Specifically, the action challenges Civil Code section 3333.2's cap on noneconomic damages in an action against a health care provider based on professional negligence and Business and Professions Code section 6146's cap on attorney contingency fees in such actions. The appellate record includes no information on the current status of this litigation.
B. This Lawsuit
1. Plaintiffs' complaint
In the operative first amended complaint, Welker and Wendy assert causes of action against the Clinic for negligent infliction of emotional distress, intentional infliction of emotional distress, and violation of the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.). They also seek a declaratory judgment that the same MICRA provisions challenged in the Sacramento County action are unconstitutional.
Another cause of action was dismissed with prejudice in February 2021 and is not relevant to this appeal.
The cause of action for negligent infliction of emotional distress is substantially similar to one of the theories alleged in the Stratman case. Plaintiffs allege that when Welker called the Clinic after Darrell died and asked to speak with Ortiz or someone else regarding his care, he received "rude" and "impatient" responses, as well as "false promises" to pass messages along to Ortiz and to call back. Welker submitted a written request for medical records, and Wendy was met with "rude" treatment when she followed up regarding the status of the request. The Clinic allegedly failed to respond to the records request within the statutory deadline.
Plaintiffs' cause of action for intentional infliction of emotional distress is also based on the Clinic's allegedly rude, impatient, and false statements concerning their requests for information relating to Darrell's care.
As to the request for declaratory relief, plaintiffs allege they cannot afford to pay an attorney's hourly fees to pursue a medical malpractice action against the Clinic and several attorneys declined to represent them on a contingency basis because MICRA makes it uneconomical to do so. Welker's complaint alleges he is therefore representing himself and others, though he "is borderline incompetent to handle th[is] case" and he "has little idea what he is doing." Plaintiffs asserted MICRA's limits on noneconomic losses and contingency fees violate various provisions of the California Constitution.
2. The Clinic's demurrer, and plaintiffs' opposition and motion to strike
The Clinic demurred to the operative complaint, arguing, among other things, that plaintiffs failed to state facts sufficient to constitute a cause of action. The Clinic argued the cause of action for negligent infliction of emotional distress failed because it did not owe plaintiffs a duty of care. The cause of action for intentional infliction of emotional distress failed because the alleged conduct was not so extreme and outrageous as to exceed all bounds of decency. The UCL cause of action failed because plaintiffs did not allege any unfair, unlawful, or fraudulent business practice. The claim for declaratory relief failed, among other reasons, because there is no actual controversy between the parties relating to MICRA.
In their opposition to the demurrer, plaintiffs argued the Clinic owed them a duty not to negligently inflict emotional distress by virtue of its statutory obligation to timely respond to medical records requests, its "repeated[ ] lie[s]" about calling them back, plaintiffs' "inherit[ance]" of the Clinic's relationship with Darrell, and various public policy considerations. As to intentional infliction of emotional distress, plaintiffs argued the Clinic's alleged rudeness and lies were indeed outrageous. As to the UCL cause of action, plaintiffs argued the Clinic's alleged lies amounted to a fraudulent and unfair business practice and its failure to comply with the statutory deadline applicable to plaintiffs' request for Darrell's medical records was unlawful. Plaintiffs additionally argued, as to their declaratory relief claim, that an actual controversy concerning the validity of MICRA existed because MICRA prevented them from retaining an attorney and the Clinic declined to "stipulate that MICRA is unconstitutional ...."
In addition to opposing the demurrer on the merits, plaintiffs moved to strike it as untimely. The Clinic's responsive pleading was due on April 1, 2021. On that date, the Clinic filed a declaration by attorney Melissa Wetkowski (Wetkowski) averring that it made a good faith attempt to meet and confer regarding a contemplated demurrer, it had not yet been able to meet and confer with plaintiffs, and it was entitled to a 30-day extension under Code of Civil Procedure section 435.5, subdivision (a). When the Clinic filed its demurrer 30 court days later, on May 3, 2021, it submitted a declaration by attorney Molshree Gupta (Gupta) attaching an email it sent at 4:34 p.m. on Friday, March 26, 2021, inviting Welker to meet and confer regarding the demurrer. Welker replied on Sunday, March 28, that "it would be useful to meet and confer on these issues." Gupta stated the meet-and-confer held on April 26, 2021, was acrimonious and did not address the merits of the operative complaint or the demurrer. Plaintiffs argued the Clinic was not entitled to an extension and its demurrer was therefore untimely because Wetkowski's statements regarding a good faith attempt to meet and confer were false and, in any case, her declaration did not explain why the parties could not meet and confer.
Plaintiffs also requested entry of the Clinic's default and filed an ex parte application to order the clerk to enter the Clinic's default.
3. Ruling on the demurrer and motion to strike
The trial court denied plaintiffs' motion to strike the demurrer and sustained the demurrer without leave to amend.
Regarding plaintiffs' motion to strike, the trial court found the demurrer was timely filed because the Clinic made a good faith effort to meet and confer before obtaining the 30-day extension. Further, even if the demurrer had not been timely filed, the trial court determined it would exercise its discretion to hear it.
On the merits of the demurrer, the trial court found the operative complaint did not state facts sufficient to constitute a cause of action. The claim for negligent infliction of emotional distress was deficient because plaintiffs did not allege facts to establish the Clinic owed them a duty to avoid negligently causing them emotional distress. The court explained the Clinic did not voluntarily assume such a duty to plaintiffs, it did not stand in a special relationship toward plaintiffs, and no such duty is imposed by law. As for the cause of action for intentional infliction of emotional distress, the trial court determined the allegations of rudeness, failure to return calls, and failure to timely produce Darrell's medical records did not meet the applicable legal standard, i.e., the complained-of actions were not so extreme and outrageous as to go beyond all bounds of decency. Plaintiffs' UCL claim failed, the trial court reasoned, because they did not allege any unfair, unlawful, or fraudulent business act or practice. As to the claim for declaratory relief, the trial court mentioned MICRA has "already survived" plaintiffs' constitutional challenges in other cases but concluded there is no ripe controversy to adjudicate anyway because "plaintiffs' quarrel is with the Legislature . . ., not defendants."
The trial court denied plaintiffs' leave to amend because, although "this [was] the first demurrer that the [c]ourt ha[d] ruled on," this case "does not exist in a vacuum." The trial court reasoned "[t]he gravamen of plaintiffs' claims" in this and the Stratman action are the same "as to their individual injuries." The plaintiffs in Stratman had "been given ample opportunity to amend" and failed to state a claim despite "their best efforts." The trial court saw "no indication that the situation [in this case] would be different ...."
Wendy appeals the trial court's order dismissing the entire action without prejudice. Welker did not file a notice of appeal and is not a party to this appeal.
In this case, we exercise our discretion to treat the order as appealable notwithstanding the absence of a judgment of dismissal in the record. Where "'the trial court has sustained a demurrer to all of the complaint's causes of action, appellate courts may deem the order to incorporate a judgment of dismissal, since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment.' [Citation.]" (Melton v. Boustred (2010) 183 Cal.App.4th 521, 527528 & fn. 1.)
II. DISCUSSION
Neither Wendy's procedural objections nor her substantive challenges to the trial court's demurrer ruling have merit.
Procedurally, Wendy contends the trial court should not have considered the Clinic's demurrer because the Clinic did not attempt to meet and confer in good faith and because Wetkowski's declaration was insufficient to trigger the 30-day extension. Failure to meet and confer is not grounds to overrule a demurrer, however, and even if the demurrer was untimely, Wendy has forfeited any challenge to the trial court's exercise of its discretion to consider it.
Substantively, each of the causes of action fail to state a claim against the Clinic. The cause of action for negligent infliction of emotional distress fails because the Clinic owed them no relevant duty of care. Specifically, the Clinic did not assume a duty to care for plaintiffs' emotional condition, plaintiffs did not (in their individual capacities) inherit any special relationship existing between the Clinic and Darrell, and public policy factors (to the extent they are applicable) do not weigh in favor of recognizing a duty because plaintiffs' claimed emotional harm was not foreseeable. Plaintiffs' cause of action for intentional infliction of emotional distress fails because alleged rudeness and failure to return phone calls is not extreme and outrageous behavior. Plaintiffs' UCL cause of action fails because they did not state a viable claim for restitution or injunctive relief. And the declaratory relief claim fails because there is no actual controversy warranting a court declaration of rights.
A. The Trial Court Properly Considered the Demurrer
"Before filing a demurrer . . ., the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." (Code Civ. Proc., § 430.41, subd. (a).) "If the parties are not able to meet and confer at least 5 days before the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer." (Code Civ. Proc., § 430.41, subd. (a)(2).)
Wendy contends the Clinic's March 26, 2021, email was not a good faith attempt to meet and confer because the Clinic sent the email late on a Friday afternoon, the Clinic could have called instead, and the email did not propose a specific time to meet and confer. Even if Wendy is correct that the Clinic's efforts fell short of the good faith standard set forth in Code of Civil Procedure section 430.41, subdivision (a)(2), it is still the case that subdivision (a)(4) of the statute states defects in the meet and confer process '"shall not be grounds to overrule or sustain a demurrer."' (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 515; Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 356 ["We need not address the adequacy of the [defendant's] efforts to meet and confer, as any insufficiency in the process would not undermine the trial court's ruling on the [defendant's] demurrer"].)
Wendy alternatively contends the 30-day extension was not triggered because Wetkowski's declaration did not explain why the parties did not meet and confer five days prior to the original responsive pleading deadline. She does not, however, challenge the trial court's ruling that it would exercise its discretion to consider the demurrer even if it was not timely filed. (Code Civ. Proc., § 473, subd. (a)(1) [a court may, "in furtherance of justice, and on any terms as may be proper, . . . enlarge the time for answer or demurrer. . ."].) Instead, she only contends, incorrectly, that the trial court "mysteriously failed to address the issue or rule on it." Any challenge to the court's exercise of discretion is accordingly forfeited. (Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 786 [issues not addressed as error in a party's opening brief are forfeited].)
B. The Trial Court Properly Sustained the Demurrer
1. Negligent infliction of emotional distress
"[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. [Citations.] That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. [Citation.]" (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984985.) In general, "unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of [the] defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests. [Citations.]" (Id. at 985; accord Erlich v. Menezes (1999) 21 Cal.4th 543, 555.)
"The law of negligent infliction of emotional distress in California is typically analyzed . . . by reference to two 'theories' of recovery: the 'bystander' theory and the 'direct victim' theory." (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.) The distinction "is found in the source of the duty owed by the defendant to the plaintiff. The 'bystander' cases . . . address 'the question of duty in circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.' [Citation.]" (Id. at 1072.) "In contrast, the label 'direct victim' arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff ...." (Id. at 1073.)
Here, plaintiffs' negligent infliction of emotional distress claim is based on a direct victim theory. Wendy argues the Clinic assumed a duty to forthrightly disclose information regarding Darrell's care, the Clinic stood in a special relationship toward her because she represented Darrell's estate, and policy factors weigh in favor of imposing a duty in these circumstances. None of these arguments has merit.
Wendy argues the Clinic voluntarily assumed a duty to her and Welker by "promis[ing] to contact Ortiz and . . . to check on the status of their medical records request." Wendy offers no argument, however, that her emotional condition was an object of the purported duty. Instead, she suggests "serious emotional distress" was "foreseeable." The foreseeability of emotional distress does not, however, make Wendy's emotional condition an object of any duty the Clinic may have assumed regarding the disclosure of information regarding Darrell's treatment. (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 470 ["foreseeability that serious emotional distress might result, without more, is not enough"].) Providing information regarding the treatment of an already-deceased patient is "materially unlike a physician undertaking to deliver a child, a therapist agreeing to treat a patient, a mortuary contracting to provide burial services, or a doctor telling a patient to advise her husband that she has syphilis." (Id. at 475 [citing Burgess v. Superior Court (1992) 2 Cal.4th 1064, Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, Christensen v. Superior Court (1991) 54 Cal.3d 868, and Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916].)
Wendy argues the Clinic stood in a special relationship to her because the Clinic "voluntarily entered into a physicianpatient relationship with Darrell" and she "stepped into Darrell's shoes" interacting with the Clinic on behalf of Darrell's estate. But neither she nor Welker is alleged to have formally represented Darrell's estate, and Wendy has not brought this action in a representative capacity. Whatever the Clinic's ongoing duties to Darrell's estate, these are not owed to the estate's personal representatives in their individual capacities. (See, e.g., Prob. Code, § 9820, subd. (a) [authorizing personal representative to "[c]ommence and maintain actions and proceedings for the benefit of the estate"].)
The first amended complaint alleges only that Welker "anticipates being appointed . . . as the Personal Representative of the Estate of Darrell Norried."
Relying on a handful of the factors identified in Rowland v. Christian (1968) 69 Cal.2d 108, Wendy argues public policy considerations impose on health care providers a duty to avoid negligently causing emotional distress to parties seeking information concerning a decedent's care. Strictly speaking, that is not quite the correct use of the Rowland factors. Those factors determine whether, in a particular case, there is reason to depart from the "fundamental principle" set forth in Civil Code section 1714 that a person is liable for injuries caused by their failure to exercise reasonable care. (Id. at 112.) Our Supreme Court has repeatedly emphasized, however, that this "fundamental principle" does not encompass damages arising from purely emotional distress. (Potter, supra, 6 Cal.4th at 984 ["there is no duty to avoid negligently causing emotional distress to another" and damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff]; Thing v. La Chusa (1989) 48 Cal.3d 644, 668, fn. 11 ["Recovery for [negligent infliction of emotional distress], when no other injury is present, has never been subject only to the general principles of foreseeability applied in Rowland"]; see also So. Cal. Gas Leak Cases (2019) 7 Cal.5th 391, 398-399 [holding, in discussion of whether the defendant had a duty to guard against purely economic losses, that although a duty of care is presumed "in cases involving traditionally compensable forms of injury . . . like physical harm to person or property," "[w]hat Civil Code section 1714 does not do is impose a presumptive duty of care to guard against any conceivable harm that a negligent act might cause"].)
Wendy cites Christensen v. Superior Court (1991) 54 Cal.3d 868 rather than Rowland, which discusses both the Rowland factors and policy considerations set forth in Biakanja v. Irving (1958) 49 Cal.2d 647. (Christensen, supra, at 885-886, 891.) We focus on the Rowland factors not only because Wendy does so, but also because Biakanja does not apply. The factors discussed in Biakanja determine whether the relationship between a promisor and a third party is sufficient to justify imposing liability for purely economic losses to the latter. (Biakanja, supra, at 650; So. Cal. Gas Leak Cases (2019) 7 Cal.5th 391, 400-401.) As we have already discussed, plaintiffs in their individual capacities were not intended beneficiaries of any agreement between Darrell and the Clinic.
The Rowland factors include "foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland, supra, 69 Cal.2d at 113.)
Even if Civil Code section 1714 applies, the Rowland factors actually weigh against holding the Clinic liable for plaintiffs' emotional distress. (See, e.g., Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 208 [holding that there is no duty to avoid negligently causing emotional distress to another but reasoning, in the alternative, that the Rowland factors did not weigh in favor of recognizing a duty of care].) It is natural to be upset by a stonewalling customer service representative. But it is not foreseeable that such treatment will result in serious emotional distress, which may be found only "'where a reasonable [person] normally constituted[ ] would be unable to adequately cope with the mental distress engendered by the circumstances ....' [Citation.]" (Thing, supra, 48 Cal.3d at 668, fn. 12.)
Wendy nonetheless argues her distress was foreseeable because she was in a vulnerable condition following Darrell's death and the Clinic "knew plaintiffs were becoming increasingly upset with each phone call due to plaintiffs' tone and the increased urgency with which they asked [the Clinic] to follow through on their promises." But the failure to provide forthright responses to requests for information regarding the medical treatment of a deceased brother is not akin to the type of conduct that gives rise to viable claims of negligent infliction of emotional distress. The obstacles presented by the Clinic came at a difficult time for plaintiffs, but plaintiffs had options to compel compliance. Moreover, we see no basis to conclude a reasonable person in Wendy's position (the inquiry is objective, not subjective) would be unable to adequately cope under the circumstances alleged in the operative complaint.
Because we hold it was not foreseeable that Wendy would suffer serious emotional harm as a result of the alleged conduct, we forgo discussion of the remaining Rowland factors. (Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1253 ["'If the court concludes the injury was not foreseeable, there was no duty [and t]here is no need to discuss the remaining considerations'"].)
2. Intentional infliction of emotional distress
"A cause of action for intentional infliction of emotional distress exists when there is '"'"(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct."'"' [Citations.] A defendant's conduct is 'outrageous' when it is so '"'extreme as to exceed all bounds of that usually tolerated in a civilized community.'"' [Citation.] And the defendant's conduct must be '"'intended to inflict injury or engaged in with the realization that injury will result.'"' [Citation.]" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)
The Clinic's conduct as alleged was not sufficiently extreme and outrageous to support a claim for intentional infliction of emotional distress. As a general matter, rude statements and failures to return phone calls do not qualify as extreme and outrageous. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 295 ["'ordinary rude or insulting behavior is not enough'"].) Perhaps recognizing this, Wendy contends there are extenuating circumstances here. But we are unpersuaded.
Wendy contends the Clinic's conduct was extreme and outrageous because she was grieving Darrell's death. Although "'[t]he extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress'" (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1008, quoting Rest.2d Torts, § 46, com. f, p. 75), this cannot mean every slight or indignity inflicted on grieving individuals gives rise to a tort claim. Even under the circumstances here, the alleged conduct does not rise above "'ordinary rude or insulting behavior ....' [Citation.]" (McCoy, supra, 216 Cal.App.4th at 295.)
Wendy's argument that the Clinic's "repeatd[ ] lie[s]" regarding her and Welker's requests for information elevates a customer service failure to the level of extreme and outrageous conduct also lacks merit. The case Wendy cites in support of this argument, Symonds v. Mercury Savings & Loan Assn. (1990) 225 Cal.App.3d 1458, involved repeated collections calls by the defendant financial institution to the plaintiff. (Id. at 1462.) Here, by contrast, plaintiffs initiated the calls to the Clinic. Being given the runaround by customer service representatives is not analogous to repeatedly receiving unwanted calls.
Wendy's further contention that the Clinic's conduct was outrageous in light of its role as a medical provider is similarly unpersuasive. Wendy makes much of the physician-patient relationship and its potential extension to representatives of a patient's estate, but the Clinic had no relationship to Wendy in her individual capacity.
Wendy's speculation concerning the Clinic's motives also fails to elevate rude conduct to extreme and outrageous conduct. Wendy relies on the Restatement (Third) of Torts, which lists "the motivation of the actor" among the factors determining whether the actor's conduct is extreme and outrageous. (Rest.3d Torts, § 46, cmt. (d).) But as the Restatement emphasizes in the same comment, "[o]rdinary insults and indignities are not enough for liability to be imposed, even if the actor desires to cause emotional harm." (Ibid.)
3. UCL
Wendy contends she has stated (or could amend the complaint to state) a UCL claim premised on the Clinic's allegedly false promises to call her and Welker back and its untimely response to their request for medical records. Although the trial court determined plaintiffs failed to allege an unlawful, unfair, or fraudulent business act or practice, our de novo review reveals another fatal defect: There is no viable theory under which Wendy may be entitled to restitution or injunctive relief.
"The UCL affords private plaintiffs the ability to seek injunctive relief and restitution in response to unfair conduct. [Citations.] But the UCL does not itself authorize an award of damages or attorney's fees. [Citation.]" (California Medical Assn. v. Aetna Health of California Inc. (2023) 14 Cal.5th 1075, 1085; accord Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 ["We have stated that under the UCL, '[p]revailing plaintiffs are generally limited to injunctive relief and restitution'"].) Where a plaintiff "fail[s] to present a viable claim for restitution or injunctive relief (the only remedies available) and fail[s] to propose any amendment that would cure the defect, [their] complaint fail[s] to state a viable UCL claim, and the trial court properly sustain[s] [a] demurrer[ ] without leave to amend." (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 467.)
Wendy has not pled facts showing she is entitled to restitution under the UCL. "Restitution is not a punitive remedy. The word 'restitution' means the return of money or other property obtained through an improper means to the person from whom the property was taken. [Citations.]" (Clark v. Superior Court (2010) 50 Cal.4th 605, 614.) Plaintiffs alleged the Clinic's conduct caused a variety of financial losses-including travel expenses, "two car accidents and a scooter accident," and the loss of Welker's job-but they did not allege the Clinic acquired any funds belonging to them.
Wendy's request for injunctive relief is also defective. She requests "an order . . . preventing the withholding of medical records when a family member dies" and "requiring unfair and deceptive business practices cease." She does not allege any facts, however, suggesting the conduct complained of is likely to recur. (Madrid, supra, 130 Cal.App.4th at 464 ["the general rule is that an injunction may not issue unless the alleged misconduct is ongoing or likely to recur"]; Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1326-1327 ["In order to grant injunctive relief under the UCL, 'there must be a threat that the wrongful conduct will continue'"].) At most, Wendy claims the Clinic has a continuing incentive to "cover[ ] up" patients' medical records following adverse events. The same is true, however, for any medical provider. In the absence of any non-speculative reason to believe the conduct alleged in this case is likely to recur, injunctive relief is unwarranted and the UCL claim fails.
In a letter brief filed at this court's invitation, Wendy concedes she has not pled facts supporting either restitution or injunctive relief under the Unfair Competition Law. For the first time in her letter brief, however, Wendy proposes to amend the operative complaint to state a claim for injunctive relief. This proposal is forfeited. (Golden Door Properties, supra, 53 Cal.App.5th at 786.)
4. Declaratory relief
Code of Civil Procedure section 1060 provides, in pertinent part, that "[a]ny person . . . who desires a declaration of his or her rights or duties with respect to another . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties ...." (Emphasis added.)
"'"The 'actual controversy' language in Code of Civil Procedure section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties. [Citation.]" [Citation.] It does not embrace controversies that are "conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court." [Citation.] Thus, while a party may seek declaratory judgment before an actual invasion of rights has occurred, it must still demonstrate that the controversy is justiciable. [Citation.] And to be justiciable, the controversy must be ripe.' [Citation.] '"To determine whether an issue is ripe for review, we evaluate two questions: the fitness of the issue for judicial decision and the hardship that may result from withholding court consideration."' [Citation.] The twopronged test for ripeness has also been described as follows: '(1) whether the dispute is sufficiently concrete so that declaratory relief is appropriate; and (2) whether the parties will suffer hardship if judicial consideration is withheld.' [Citation.]" (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 418.)
Wendy contends an actual controversy exists here because MICRA's caps on noneconomic damages and contingency fees "deprived [them] of qualified and experienced counsel to handle [their] complex wrongful death medical malpractice litigation[ ] and [the Clinic] has refused to stipulate that MICRA is not applicable ...." Wendy's argument is similar to that of the plaintiffs in Dominguez, supra, 87 Cal.App.5th 389; they claimed their attorneys would withdraw from representing them in a medical malpractice case unless the same provisions of MICRA challenged here were declared unconstitutional. (Id. at 412, 414.) The Court of Appeal in that case held there was no actual controversy because the dispute was "conjectural and hypothetical" and "all manner of speculation" would be required to determine the plaintiffs would suffer hardship in the absence of relief. (Id. at 418-419.) Although the circumstances of this case are different in certain respects-Wendy was assertedly unable to retain counsel other than Welker and she (or more precisely, Darrell's estate) has already suffered an adverse summary judgment ruling in the Stratman litigation-the differences do not give rise to an actual controversy. Here, as in Dominguez, plaintiffs' alleged injury requires us to speculate as to the results that another attorney might achieve or might have achieved in the medical malpractice case.
C. Wendy Has Not Shown the Trial Court Abused Its Discretion in Denying Leave to Amend
"If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]" (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) "To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action. [Citations.] Absent such a showing, the appellate court cannot assess whether or not the trial court abused its discretion by denying leave to amend." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890; accord Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [explaining the burden of demonstrating a reasonable possibility that an amendment could cure the defect "is squarely on the plaintiff"].)
Wendy contends the trial court erred in looking to the plaintiffs' failure to successfully amend the complaint in the Stratman action as a basis for denying her leave to amend in this case because Stratman involved different plaintiffs and different causes of action. At least with respect to the cause of action for negligent infliction of emotional distress, however, the trial court in Stratman analyzed the same direct victim theory with respect to the same plaintiffs.
Wendy's suggestion that Stratman alleged only a bystander theory of negligent infliction of emotional distress is incorrect. The second amended complaint in that action alleged both bystander and direct victim theories. And Wendy's suggestion that Welker was "[t]he only plaintiff that overlapped" in the two actions is irrelevant even if true. As the trial court noted in its order sustaining the demurrer to the cause of action for negligent infliction of emotional distress, "[i]t [wa]s unclear if [Wendy] [was] a plaintiff.... To the extent she [was], the analysis . . . applie[d] equally to her as it [did] to the other plaintiffs."
In any case, Wendy has made no effort to demonstrate she could allege facts sufficient to overcome the deficiencies we have discussed. Instead, she speculates that a more experienced attorney might be able to do so. But Welker's inexperience is not a relevant consideration; the case is on appeal now and the requisite showing must be made to warrant a remand for an additional opportunity to amend. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31 ["A party who chooses to act as his or her own attorney '"'is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys"'"].) Wendy has therefore forfeited the issue. (Brown v. Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 282 [holding that the plaintiff "forfeited any argument that the trial court abused its discretion in sustaining the demurrer without leave to amend" by failing to "address how she could amend her complaint to assert a valid cause of action"]; Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 44 ["Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend"].)
DISPOSITION
The judgment is affirmed. The Clinic shall recover its costs on appeal.
We concur: MOOR, J., KIM, J.