Opinion
C084799
12-03-2018
BRIAN SCACCIA, Plaintiff and Appellant, v. SUTTER MEDICAL FOUNDATION, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CV141820)
Anne Ringkamp (mother), an elderly and chronically ill woman, passed away at Sutter Davis Hospital after being removed from a ventilator. Her son, plaintiff Brian Scaccia, sued family members, the treating physician, and "Sutter" entities he believed were associated with Sutter Davis Hospital, asserting a myriad of causes of action. This appeal deals with only one "Sutter" defendant -- Sutter Medical Foundation (the Foundation)--and the claims plaintiff seeks to assert against it.
Plaintiff appeals from the judgment of dismissal following the trial court's order sustaining the Foundation's demurrer to his second amended complaint without leave to amend. We affirm because there are no charging allegations against the Foundation in the second amended complaint and plaintiff fails to meet his burden of showing how the additional proposed allegations noted in his appeal meet the legal elements of the causes of action he wishes to assert against it. Thus, plaintiff has not shown he can assert claims sufficient to bring the Foundation within the ambit of this lawsuit. Plaintiff's further attacks on the trial court are unsupported and we decline to consider his contentions that fall outside the scope of this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff's three requests for judicial notice are denied. Plaintiff filed the requests after the Foundation filed its brief and the documents are irrelevant to the determination of this appeal.
I
The Background Allegations
The case generally arises out of the following allegations: Plaintiff took mother to Sutter Davis Hospital in September 2013 because it appeared she had suffered a stroke. A scan revealed mother had a large liver tumor. The treating physician, Daniel Kennedy, believed mother had terminal cancer -- a diagnosis with which plaintiff disagreed. Kennedy did not treat mother's stroke and she returned home. In November 2013, mother returned to the hospital with severe respiratory distress. Within days, she contracted an intestinal infection and was placed on a ventilator. Lab tests supported plaintiff's belief mother did not have cancer but neither the hospital nor Kennedy informed plaintiff of the results. Instead, the lab tests revealed plant matter in mother's lungs, which suggested "foul play." When Kennedy asked for authorization to remove mother from the ventilator, plaintiff refused. Kennedy later obtained authorization from plaintiff's brother to do so, which was against mother's wishes as stated in her advance health care directive. Kennedy told plaintiff he was removing mother from the ventilator because he had discovered an inoperable bloody occlusion in mother's lungs, but he did not advise plaintiff of his brother's involvement. Mother died after she was removed from the ventilator and had received morphine.
We do not discuss the claims asserted against plaintiff's family members, as they are irrelevant to this appeal.
II
The Pleading Proceedings Predating The Second Amended Complaint
Plaintiff and the Estate of Anne Ringkamp (Estate) filed this action against various defendants on November 12, 2014. On January 9, 2015, they filed an amended complaint, adding defendants and causes of action. The Foundation was not named as a defendant in the initial complaint and was not individually named as a defendant in the first amended complaint. In the caption of the first amended complaint, the Foundation was identified as an "also known as" alias for "Sutter Health"; the named defendant was "Sutter Health aka Sutter Health Sacramento Sierra Region aka Sutter Medical Foundation." In the allegations, this defendant was described as: "Defendant Sutter Health is believed to be the same as Sutter Health Sacramento Sierra Region and Sutter Medical Foundation (hereafter 'Sutter Health')." No other mention is made of the Foundation in the first amended complaint.
On April 29, 2015, the trial court sustained the demurrer filed by defendant "Sutter Health Sacramento Sierra Region dba Sutter Davis Hospital" as to all causes of action brought by the Estate and each of plaintiff's causes of action, except for wrongful death, with leave to amend. The trial court gave the Estate and plaintiff until June 2, 2015, to amend the complaint. On July 2, 2015, plaintiff filed an ex parte motion for a continuance to amend the complaint pending results from a probate hearing and dispositive motions by other defendants. The trial court granted the request, extending the time to file the amended complaint to August 6, 2015.
On August 13, 2015, the trial court sustained Kennedy's demurrer to the first amended complaint as to all causes of action brought by the Estate and each of plaintiff's causes of action, except for wrongful death, with leave to amend. Kennedy and the Foundation initially filed the demurrer jointly; however, the Foundation subsequently filed an answer to the first amended complaint and was, therefore, not included in the order sustaining Kennedy's demurrer.
On October 7, 2015, the trial court denied plaintiff's motion for leave to file a second amended complaint because the declaration submitted in support of the motion did not comply with the California Rules of Court.
On November 30, 2015, the trial court granted Kennedy and the Foundation's motion to dismiss the causes of action in plaintiff's complaint subject to demurrer pursuant to Code of Civil Procedure section 581, subdivision (f)(2). The court found plaintiff had not shown good cause for failing to file an amended complaint.
All further section references are to the Code of Civil Procedure unless otherwise specified.
The record does not contain a copy of the motion and the order does not specify which causes of action were dismissed. Presumably, based on the trial court's order sustaining Kennedy's demurrer, all causes of action except for the wrongful death cause of action were dismissed.
In late 2016, plaintiff filed two motions for leave to file a second amended complaint. The trial court denied both motions as untimely because plaintiff was given "over a year's time to file an amended complaint" after the court sustained demurrers by defendants with leave to amend, and he failed to do so.
On November 14, 2016, plaintiff filed a notice of and fourth motion for leave to file a second amended complaint "for the sole purpose of adding punitive damages and correcting names and not to add allegations per the October 12, 2016 ruling and add Sutter Health as a defendant." The trial court granted this motion in part, stating "[l]eave is granted only to amend defendants' names and for no other purpose."
III
Second Amended Complaint
The second amended complaint was filed by plaintiff only; the Estate was removed as a plaintiff. In the caption, plaintiff identified the Foundation as a defendant. In the introductory paragraphs, plaintiff alleged: "Sutter Medical Foundation is [sic] located at 1014 Market St., Sacramento, CA 95834 and represented by Schuering Zimmerman & Doyle, LLP, 400 University Ave., Sacramento, CA 95825" and "Defendant Sutter Health is believed to be Sutter Health Sacramento Sierra Region ('SHSSR') doing business as Sutter Davis Hospital at 2000 Sutter Place, Davis, CA. It and/or SHSSR is represented by Wilke, Fleury, Hoffelt, Gould & Birney, LLP, 400 Capitol Mall, Twenty-Second Floor, Sacramento, California 95814."
The following causes of action were asserted against defendants with "Sutter" in its name: (1) first cause of action for false light was asserted against "Sutter Health"; (2) second cause of action for defamation was asserted against "Sutter Health"; (3) fifteenth cause of action for fraud was asserted against "Sutter Health"; (4) sixteenth cause of action for medical negligence was asserted against "Sutter Health"; (5) seventeenth cause of action for wrongful death was asserted against "Sutter Health" and "Sutter Davis"; (6) eighteenth cause of action for "decisions law" was asserted against "Sutter Health"; and (7) nineteenth cause of action for breach of confidentiality was asserted against "Sutter Health."
The remaining causes of action were asserted against family members.
IV
The Demurrer And Order
The Foundation filed a demurrer to the second amended complaint, arguing the pleading was uncertain and failed to assert any cause of action against it. In opposition, plaintiff stated: "Had the Court not overly burdened Plaintiff, the Second Amended Complaint, a knee-jerk response to the Court's erroneous ruling denying the August Motion to Amend and prior decisions, Plaintiff would not have submitted the Second Amended Complaint ('SAC'). Since the SAC only corrected names and did not cure errors in the text that would prevent a successful demurrer, Plaintiff was harmed by doing so." Plaintiff also asserted the "proper response to a demurrer is to amend the complaint" and requested permission for late filing of his opposition.
The trial court sustained the Foundation's demurrer without leave to amend, stating: "There are 492 paragraphs and 22 causes of action contained in plaintiff's [second amended complaint]. The only reference to [the Foundation] in the [second amended complaint] is in paragraph six, wherein it identifies [the Foundation's] location . . . . None of the 22 causes of action are directed at [the Foundation].
"In opposition, plaintiff argues that his filing of the [second amended complaint] was a 'knee-jerk response' and that he would not have submitted the [second amended complaint], but for the Court overly burdening him. [Citation.] Now that he has filed the [second amended complaint], plaintiff claims he has been harmed. [Citation.]
"Plaintiff's entire opposition is dedicated to blaming the Court of [sic] his failure to file a proper complaint. Plaintiff fails to explain how he could properly amend his complaint to state a cause of action against [the Foundation]."
Plaintiff filed a motion for reconsideration, which the trial court denied. The trial court entered judgment in favor of the Foundation on March 28, 2017. Plaintiff appeals.
DISCUSSION
I
The Demurrer
Plaintiff argues the trial court abused its discretion by sustaining the demurrer without leave to amend because: (1) it was untimely; (2) the Foundation was precluded under section 430.41, subdivision (b) from raising arguments it could have raised by demurrer to the earlier version of the complaint; (3) plaintiff presented "ample evidence of cognizable claims" against the Foundation; and (4) the trial court construed the demurrer as a motion for summary adjudication. Plaintiff further asserts the trial judge was biased against him. None of these arguments is availing. Because we hold the trial court properly sustained the demurrer without leave to amend, we need not and do not address plaintiff's claim that the trial court construed the demurrer as a motion for summary adjudication.
A
The Demurrer Was Timely Filed
Plaintiff asserts the trial court erred in considering the Foundation's untimely demurrer because it was filed 32 days after the Foundation received service of the second amended complaint. The deadline for filing a demurrer does not, however, run from the date of receipt of service. "A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint." (§ 430.40, subd. (a).) This time period is extended by five calendar days if served by mail within California. (§ 1013, subd. (a).) Accordingly, the deadline to file a demurrer to a complaint served by mail within California is 35 days from the date of mailing shown on the proof of service.
Here, the proof of service shows plaintiff served the second amended complaint on the Foundation's counsel by mail on December 16, 2016. The deadline to file the demurrer was January 20, 2017, which was the day the demurrer was filed. Accordingly, the Foundation's demurrer was timely.
B
There Was No Section 430 .41, Subdivision (b) Violation
Section 430.41, subdivision (b) provides: "[a] party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer." Plaintiff argues the Foundation filed a demurrer to the first amended complaint, which the court "denied for being untimely," and thus the "court erred by granting [the Foundation] a second chance to demurrer to the exact same causes of action in the [first amended complaint]."
There are two problems with plaintiff's argument. First, the section only applies to a demurrer filed after a demurrer to an earlier version of the pleading was sustained, and plaintiff relies on the trial court's "denial" of the Foundation's prior demurrer. Second, the Foundation's demurrer to the second amended complaint arose out of the very changes plaintiff made to the defendant designations and descriptions in the second amended complaint. Therefore, the demurrer was not "on grounds that could have been raised by demurrer to the earlier version of the complaint." (§ 430.41, subd. (b).)
C
The Demurrer Was Properly Sustained Without Leave To Amend
1
Standard Of Review
"A demurrer tests the legal sufficiency of the complaint. We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all material facts alleged in the complaint, but not contentions, deductions or conclusions of fact or law. We also consider matters that may be judicially noticed." (Brown v. Smith (2018) 24 Cal.App.5th 1135, 1141.) Plaintiff must affirmatively demonstrate error and specifically "show that the facts pleaded are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer." (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052.) We will affirm the judgment if there is any basis on which the demurrer could have been properly sustained. (Ibid.)
"When a demurrer is sustained without leave to amend, this court decides whether a reasonable possibility exists that amendment may cure the defect; if it can we reverse, but if not we affirm. The plaintiff bears the burden of proving there is a reasonable possibility of amendment. [Citation.] The plaintiff may make this showing for the first time on appeal." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.)
Because we have no duty to search the record for evidence, we will disregard factual contentions not supported by a proper citation to the record. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379; see City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.) In addition, we will not address contentions that are not developed with argument and citations to authority. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
2
Plaintiff Failed To State A Cause Of Action Against The Foundation
Plaintiff mentioned the Foundation only once in the second amended complaint, in paragraph six where he merely lists the Foundation's address and identifies its legal counsel. Plaintiff did not identify the Foundation as a defendant and did not assert any of the causes of action against it. Plainly, plaintiff alleged no facts sufficient to state a cause of action against the Foundation, and the demurrer was therefore appropriately sustained.
3
Plaintiff Fails To Show He Can Amend The Complaint
To State A Cause Of Action Against The Foundation
Plaintiff has the burden of proving there is a reasonable possibility of amending the second amended complaint to state a cause of action against the Foundation. (Rakestraw v. California Physicians' Service, supra, 81 Cal.App.4th at p. 43.) "To satisfy [his] burden on appeal, a plaintiff 'must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.' [Citation.] The assertion of an abstract right to amend does not satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the 'applicable substantive law' [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary." (Id. at pp. 43-44.)
"The burden of showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. [Citation.] Where the [plaintiff] 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." (Rakestraw v. California Physicians' Service, supra, 81 Cal.App.4th at p. 44.) Plaintiff is bound by the same rules that apply to parties represented by counsel. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210 [a party acting as his 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"].)
Plaintiff argues he can amend the second amended complaint to assert causes of action for "elder abuse, battery, fraud, wrongful death, negligence, and conspiracy" against the Foundation by including the following allegations: (1) the Foundation "inappropriately maintained an electronic database with statements encouraging malpractice"; (2) the Foundation "created a fraudulent claim of a blood infection allowing others to imprison [mother] on a ventilator"; (3) the Foundation's "admissions and other evidence implicates [the Foundation] in assisting in the creation of a fraudulent cause of death"; (4) the Foundation "admitted its involvement in medicine decision-making near time of death"; (5) the Foundation "is liable for malpractice by affiliated workers under the theory of ostensible agency"; and (6) the Foundation "had financial conflicts of interest that they failed to disclose."
The Foundation claims plaintiff did not request leave to amend in the trial court. Although plaintiff did not use such precise language, plaintiff did assert "a proper response to a demurrer is to amend the complaint" and asked the court to "allow a proper response . . . by amendment."
Plaintiff does not clearly and specifically set forth the applicable substantive law, the legal basis for the amendment, or how the factual allegations satisfy all required elements of each cause of action, as required on review. (Rakestraw v. California Physicians' Service, supra, 81 Cal.App.4th at p. 43.) He provides no pertinent discussion and analysis in that regard either and we fail to see how these allegations support the causes of action plaintiff seeks to assert against the Foundation.
For example, plaintiff appears to direct the allegations that the Foundation "created a fraudulent claim of a blood infection" and "assist[ed] in the creation of a fraudulent cause of death" to a fraud cause of action; however, plaintiff does not allege the elements required to assert fraud, i.e., that these were material facts, knowledge of the falsity, intent to induce reliance, actual and justifiable reliance, or resulting damage. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.) It is further unclear how the allegations regarding the Foundation's electronic database and financial conflict of interest have any legal effect for purposes of supporting the causes of action plaintiff seeks to assert.
We also note plaintiff fails to explain how mother's enrollment in a grant-funded program leads to a financial conflict of interest by the Foundation and how the mere notation of her participation in the program in her medical file has any legal effect.
Plaintiff's allegation that the Foundation is liable for the actions by Kennedy and the hospital under an ostensible agency theory is also insufficient to support any cause of action. "An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him." (Civ. Code, § 2300.) "Liability of the principal for the acts of an ostensible agent rests on the doctrine of 'estoppel,' the essential elements of which are representations made by the principal, justifiable reliance by a third party, and a change of position from such reliance resulting in injury." (Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 761.) Ostensible authority must be established through the acts or declarations of the principal and not the acts or declarations of the agent. (People v. Surety Ins. Co. (1982) 136 Cal.App.3d 556, 562.)
In his briefing, plaintiff acknowledges the essential elements to allege ostensible agency. He lists a number of alleged representations that purportedly "meet the first element" and claims "[f]acts support the second element because [the Foundation] is a well-known group that at times seemingly acts philanthropically, which is attractive to people when choosing healthcare providers." We could explain why plaintiff is incorrect with respect to the foregoing, but we need not do so because plaintiff fails to explain or analyze how the alleged representations were relied upon and fails to identify the change in position from such reliance resulting in injury -- both essential elements to allege ostensible authority. (Preis v. American Indemnity Co., supra, 220 Cal.App.3d at p. 761.)
Finally, plaintiff's allegation that the Foundation "admitted its involvement in medicine decision-making near time of death" is contradicted by the very documents upon which he relies and to which plaintiff cites in his brief. The documents are plaintiff's requests for admission to the Foundation, all of which the Foundation denied. Contrary to plaintiff's assertion, the Foundation admitted nothing regarding "involvement in medicine decision-making." Moreover, plaintiff does not explain or discuss how the Foundation's "involvement" translates into a cognizable cause of action.
Plaintiff argues the trial court's previous denial of his August 2016 motion for leave to file an amendment placed him in a "catch-22" position because he could not file a proposed amendment in response to the Foundation's demurrer. He also argues the trial court ignored evidence that he inadvertently deleted references to the Foundation in his second amended complaint. The problem with these arguments is that, on appeal, plaintiff has been given the opportunity to explain what causes of action he can assert against the Foundation, and he has failed to do so. Therefore, these arguments do not assist him.
Plaintiff has not adequately discharged his burden to demonstrate a viable amendment is possible. There is accordingly no basis to reverse the ruling sustaining the demurrer without leave to amend.
D
There Is No Evidence Of Judicial Bias
Plaintiff contends the trial judge demonstrated actual bias. Specifically, he argues the trial judge: (1) abused his discretion by "giving only a semblance of a stay (~ 5 hours) to harm opposition to [the Foundation's] demurrer"; (2) violated plaintiff's rights to due process and equal protection; (3) "hid truth with alt-facts and doublespeak"; (4) " 'misconstrued' code-noncompliant discovery responses favorably for defendant"; and (5) "showed bias, and intent, by not encouraging settlement despite defendants' desire prior to his taking the case."
We initially note plaintiff produced no reporter's transcript of the hearings of which he complains, and we do not accept his version of the events. It is plaintiff's burden to provide an adequate record on appeal. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Failure to provide an adequate record on an issue requires that the issue be resolved against him. (Id. at pp. 1295-1296.)
Plaintiff further fails to explain, discuss, or cite any authority to support his remaining contentions and, thus, those arguments are forfeited. (Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448.) We find no evidence whatsoever of actual bias by the trial judge in the record. Plaintiff's argument that the judge ignored his evidence, failed to review the information and documents presented to the court, and misconstrued his evidence is unsupported.
II
Plaintiff's Remaining Contentions
Plaintiff's remaining contentions are: (1) the trial court "prejudicially harmed [him] by failing to stay the 2015 demurrers pending probate resolution"; (2) the "unconstitutional Civil Discovery Act prejudicially harmed [him], in conjunction with judges allowing unresolved and unsanctioned defendant discovery abuse since 2015"; (3) the "court abused discretion and denied due process resulting in rejection of [his] August 2016 amendment, with prejudice"; (4) "§ 1008 does not give courts the right to ignore [their] own violations of constitutional rights on grounds that the rights are not 'new' "; (5) "MICRA prejudicially harmed [his] case resulting in dismissal"; (6) "[s]anctions under the Civil Discovery Act are inequitable, fail to meet intended purposes and must be invalidated and replaced"; (7) the "expert requirement is inherently unfair to poor or unrepresented parties"; (8) the "[c]ourts should modernize [their] interpretation of the Evidence Code to make [it] more equitable while making courts more efficient"; and (8) the trial court erred in dismissing the Estate's survival claims.
To the extent plaintiff attempts to challenge the trial court's denial of his motion to reconsider the ruling on the Foundation's demurrer, we note there is no authority for an appeal from such an order. (Valvo v. University of Southern California (1977) 67 Cal.App.3d 887, 891.) --------
None of these contentions deals with the order sustaining the demurrer without leave to amend against plaintiff, which is the subject of this appeal. "The existence of an appealable judgment is a jurisdictional prerequisite to an appeal." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) In civil matters, our jurisdiction is limited to judgments and orders described in sections 904.1, 904.2, 904.3, and 904.5. (§ 904.) Our jurisdiction is further limited in scope to the notice of appeal and the judgment from which the appellant appeals. (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.)
The basis for this appeal is the judgment of dismissal following the order sustaining the Foundation's demurrer without leave to amend, which is appealable under section 904.1, subdivision (a)(1). Our jurisdiction is limited to review of that judgment and order. Because none of plaintiff's foregoing contentions falls within the scope of this appeal or raise contentions of error that could result in reversal of the judgment at issue here, we do not consider them.
DISPOSITION
The judgment is affirmed. The Foundation shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Butz, J.