Tentative Rulings for November 18, 2020 Departments 403 ......2020/11/18 · (See Memo, filed: 11/22/19, pp 10-11.) Finally, defendant submits evidence showing that its Chargemaster

1

Tentative Rulings for November 18, 2020

Departments 403, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward on

these matters. If a person is under a court order to appear, he/she must do so.

Otherwise, parties should appear unless they have notified the court that they will

submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

18CECG04116 Ekelem v. Hamilton, et al., (Dept. 403)

19CECG01789 Atkins v. Bookman, et al. (Dept. 501)

The court has continued the following cases. The deadlines for opposition and reply

papers will remain the same as for the original hearing date.

15CECG00351 Sameer v. Moreno is continued to Wednesday, December 16, 2020

at 3:30 p.m. in Department 503

20CECG01222 Cerda v. Romero is continued to Tuesday, December 8, 2020 at

3:30 p.m. in Department 503.

________________________________________________________________

(Tentative Rulings begin at the next page)

2

Tentative Rulings for Department 403

Begin at the next page

3

(03)

Tentative Ruling

Re: In re: 13641 Third Street, Parlier, CA 93648

Superior Court Case No. 20CECG00966

Hearing Date: November 18, 2020 (Dept. 403)

Motion: By Claimant for Disbursement of Surplus Funds

Tentative Ruling:

To take the matter off calendar, as no moving papers have been filed.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure

section 1019.5, subdivision (a), no further written order is necessary. The minute order

adopting this tentative ruling will serve as the order of the court and service by the clerk

will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 11/13/20 .

(Judge’s initials) (Date)

4

(27)

Tentative Ruling

Re: Bagga v. City National Bank



Motion: By Defendant to Deem Request for Admissions, set one

Admitted

Tentative Ruling:

To deem Defendant’s request for admissions, set one, admitted. (Code Civ. Proc.,

§2033.280, subd. (b).) To deny the request for terminating and evidentiary sanctions.

To impose monetary sanctions in favor of Defendant City National Bank, and

against Plaintiff. (Code Civ. Proc., §§ 2023.010, subd. (d); 2033.280, subd. (c).) Plaintiff is

ordered to pay $1,000 in sanctions to the Dowling Aaron law firm within 30 days of service

of this order.

Explanation:

Where a party fails to timely respond to a propounding party’s requests for

admissions (“RFAs”), the court must grant the propounding party’s motion requesting that

matters be deemed admitted, unless it finds that the party to whom the requests were

directed has served, prior to the hearing on the motion, a proposed response that is

substantially in compliance with Code of Civil Procedure section, 2033.220. (Code of Civ.

Proc., § 2033.280, subd. (c); see also St. Mary v. Superior Court (2014) 223 Cal.App.4th 762,

778 [Where the responding party serves its responses before the hearing, the court “has

no discretion but to deny the motion”].)

In addition, responses to RFAs must be verified by the responding party. (Steele v.

Totah (1986) 180 Cal.App.3d 545, 550.) A guardian ad litem may provide the required

verification. (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496,

1504.) Lastly, without verification, responses are “tantamount to no responses at all.”

(Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

Here, defendant served RFAs, set one, on November 7, 2017. (Slater, Decl. ¶2.)

Only after the court granted a motion to compel did plaintiff attempt to serve a response.

(Slater, Decl. ¶7.) Although the response was signed by plaintiff’s son, as agent and

power of attorney (Ex J), there is no indication that plaintiff’s son had been appointed

guardian ad litem. (Regency Health Services, Inc. v. Superior Court, supra, 64

Cal.App.4th at p. 1504.) Accordingly, the response was not verified and thus

“tantamount to no response[] at all.” (Appleton, supra, 206 Cal.App.3d at p. 636.)

Accordingly, the motion to deem RFAs, set one, admitted is granted.

Defendant also requests terminating, or alternatively, evidentiary, sanctions.

Terminating sanctions are awardable where the recalcitrant party’s actions are willful.

5

(Hartbodt v. Burke (1996) 42 Cal.App.4th 168, 175.) Evidentiary sanctions are appropriate

“[w]here a party has refused to supply information relevant to a particular claim ....”

(Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.) Here, in light of the attempted

response, there does not appear to be willful recalcitrance sufficient to justify a

terminating sanction. Neither has there been a refusal to respond as in Sauer. Thus, the

request for terminating or evidentiary sanctions, at this point, is denied.

In contrast, the court must impose a monetary sanction against the party or

attorney, or both, whose failure to respond necessitated the motion to deem matters

admitted. (Code Civ. Proc., § 2033.280, subd. (c).) Accordingly, a monetary sanction, in

the amount of $1,000 is granted.





Tentative Ruling



6

(30)

Tentative Ruling

Re: Cesar Solorio v. Fresno Community Hospital and Medical Center



Motion: Motion for Summary Judgment, by defendant Fresno Community

Hospital and Medical Center

Tentative Ruling:

To deny defendant’s motion for summary judgment. The court declines to rule on

objections. None are material to the disposition of the motion. (Code Civ. Proc., § 437c,

subd. (q).)

Explanation:

Summary judgment of declaratory relief claims seeking interpretation of written

contracts is proper. (Shaw v. Regents of Univ. of California (1997) 58 Cal.App.4th 44, 52.)

However, interpretation of a written document is a question of law for the trial court to

determine, only where extrinsic evidence is unnecessary. (Temple v. Velcro USA,

Inc. (1983) 148 Cal.App.3d 1090, 1095.) In other words, interpretation is appropriate

where the language is clear, understandable and completely unambiguous. (Ibid.)

“When the meaning of contractual language is doubtful or uncertain and parole

evidence is introduced to aid in its interpretation, the meaning of the contract is a

question of fact. [Citation.] If the meaning or intent is to be determined one way

according to one view of the facts and another way according to another view, the

determination of the disputed matter must be left to the [trier of fact]. [Citation.]”

(Horsemen's Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th

1538, 1559-1560; see also Walter E. Heller Western, Inc. v. Tecrim Corp. (1987) 196

Cal.App.3d 149, 158.)

In the case at bar, defendant argues that: (1) there is no actual or present

controversy; (2) the Conditions of Admission or Service do not contain an open price

term; (3) the Hospital’s charges are reasonable; and (4) the Conditions of Admission

form is neither substantively nor procedurally unconscionable.

Defendant’s first argument – that there is no actual or present controversy, lacks

merit. Defendant argues that plaintiff’s claim is now moot because it recently wrote off

plaintiff’s individual bill. However, this is a class action lawsuit and plaintiff is the

representative. Case law prevents defendants from attempting to “pick off”

representative plaintiffs (such as Mr. Solorio) in class actions. (See e.g., Wallace v.

GEICO General Ins. Co. (2010) 183 Cal.App.4th 1390, 1398-1399.) Moreover, the law is

clear that declaratory and injunctive relief claims are not rendered moot when the

issues are capable of repetition yet evading review, which is exactly the situation in the

7

certified class action situation presented here. (See Saltonstall v. City of Sacramento

(2014) 231 Cal.App.4th 837, 849.)

Defendant’s next argument – that the Conditions of Admission or Service do not

contain an open price term, also fails. In support of this argument, defendant submits a

declaration from its expert on hospital billing practices, Michael Heil. Mr. Heil states that

the term “regular rates and terms” is synonymous and interchangeable with a hospital’s

standard charges or regular rates and terms, and that there is no interpretation in the

hospital industry of the phrase “regular rates” that could be anything other than the

hospital’s charges listed on the published Chargemaster. (UMF, no 18.) Defendant also

submits persuasive authority on the subject. Several non-binding cases are submitted to

show that the phrase “regular rates” can be interpreted as referring to a Chargemaster.

(See Memo, filed: 11/22/19, pp 10-11.) Finally, defendant submits evidence showing

that its Chargemaster rates and publications are in conformity with applicable laws.

(UMF, no. 15, 17, 28.) This evidence is insufficient to support defendant’s position. It

provides the interpretation of hospital industry executives such as Mr. Heil, but it does

not address plaintiffs’ interpretation at all. (See e.g., ASP Properties Group, LP. v. Fard,

Inc. (2005) 133 Cal.App.4th 1257, 1269 [“The fundamental rules of contract

interpretation are based on the premise that the interpretation of a contract must give

effect to the ‘mutual intention’ of the parties. Under statutory rules of contract

interpretation, the mutual intention of the parties at the time the contract is formed

governs interpretation.”].) The evidence is also insufficient because it is refuted by

defendant’s own undisputed material facts nos. 20, 21, 25, 26, and 27, which all confirm

that there exist multiple different payment rates.

Thus, defendant has failed to meet its burden. The phrase “regular rates and

terms” has not been shown to unambiguously refer to the Hospital’s Chargemaster. For

this reason, it is unnecessary to address defendant’s remaining arguments regarding

plaintiff’s failure to raise a triable issue of material fact.

American Hospital Association v. Azar (D.D.C., June 23, 2020, No. 1:19-CV-03619

(CJN)) 2020 WL 3429774, is also persuasive. In relevant part, the Azar Court explained

the parties’ positions as follows:

“Standard charges,” Plaintiffs contend, is an unambiguous term that can only

refer to a hospital's chargemaster charges, and the term cannot be stretched to

apply to custom negotiated charges with third-party payers. . . . For its part, the

agency disputes that “standard charges” refers to chargemaster rates and

maintains that its interpretation, which accounts for the rates that are actually

paid and the different types of patients and payers in the market, is either the

best reading of the statute, or at minimum, a reasonable one. (Id. at *5.)

Ultimately the Azar Court granted the government’s motion for summary

judgment and rejected AHA’s challenges, upholding the final rule, and holding (among

other things) that CMS’s interpretation of the term “standard charges” meant that

numerous different rates paid by different payers is a reasonable interpretation. The

Court stated the following:

8

Plaintiffs’ argument that “standard charges” necessarily means “chargemaster

rates” is also inconsistent with the statute's use of the term “standard,” which

even Plaintiffs admit means “usual, common, or customary.” . . . It is undisputed

that chargemaster rates are not the amounts paid on behalf of 90% percent of

hospitals’ patients, and thus it is hard to see how they can be considered usual,

common, or customary. . . . According to one study, chargemaster prices—

which are typically paid by uninsured patients with no discounts, see AR 4774—

are approximately “2.5 times what most health insurers pay,” Barak D. Richman

et al., Battling the Chargemaster: A Simple Remedy to Balance Billing for

Unavoidable Out-of-Network Care, 23 Am. J. Managed Care e100, e101 (2017),

https://www.ajmc.com/journals/issue/2017/2017-vol23-n4/battling-the-

chargemaster-a-simple-remedy-to-balance-billing-for-unavoidable-out-of-

network-care (cited at 84 Fed. Reg. at 65,538 n.45). (Id. at *7.)

So, as the Court found in Azar, the court here similarly finds that the term “regular

rates” does not unambiguously mean Chargemaster rates. The arguments in Azar are

essentially the same as the arguments here. In the instant case, defendant contends

that its “regular rates” can only be its Chargemaster rates (as was AHA’s position in the

Azar case), and plaintiff contends that defendant’s “regular rates” vary for different

categories of patients and payers (as was the government’s position in Azar).

Accordingly, defendant’s motion for summary judgment is denied. Also,

because the Court of Appeal created and certified a narrow issue class for the purpose

of interpreting whether the term “regular rates and terms” contains an open price term

(see Remittitur, filed: 10/19/18), defendants arguments regarding whether the hospital’s

charges are reasonable and whether the Conditions of Admission form is

unconscionable need not be addressed.

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure

section 1019.5(a), no further written order is necessary. The minute order adopting this

tentative ruling will serve as the order of the court and service by the clerk will constitute

notice of the order.

Tentative Ruling



9



10

(03)

Tentative Ruling

Re: Iturralde v. O’Cain



Motion: by Defendant Linda O’Cain to Set Aside Default

Tentative Ruling:

To grant defendant Linda O’Cain’s motion to set aside the default entered against

her on March 12, 2020. (Code Civ. Proc. § 473, subd. (b).) Defendant shall file and serve

her Answer to the Complaint within 15 days of the date of this order.

Explanation:

Code of Civil Procedure section 473, subdivision (b), provides for discretionary

relief from a default or default judgment that has been entered due to mistake, surprise,

inadvertence, or excusable neglect. (Code Civ. Proc. § 473, subd. (b).) The party seeking

relief must bring his or her motion within a reasonable time, not to exceed six months from

the date of entry of the default or default judgment. (Ibid.)

“Where the mistake is excusable and the party seeking relief has been diligent,

courts have often granted relief pursuant to the discretionary relief provision of section

473 if no prejudice to the opposing party will ensue. In such cases, the law ‘looks with

[particular] disfavor on a party who, regardless of the merits of his cause, attempts to take

advantage of the mistake, surprise, inadvertence, or neglect of his adversary.’” (Ibid,

internal citations omitted.)

“‘[T]he provisions of section 473 of the Code of Civil Procedure are to be liberally

construed and sound policy favors the determination of actions on their merits.’

[Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256.)

“[B]ecause the law strongly favors trial and disposition on the merits, any doubts in

applying section 473 must be resolved in favor of the party seeking relief from default.”

(Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

In determining whether the default was entered against the defendant as a result

of her reasonable mistake, inadvertence, surprise or excusable neglect, the court must

look at whether the mistake or neglect was the type of error that a reasonably prudent

person under similar circumstances might have made. (Bettencourt v. Los Rios

Community College Dist. (1986) 42 Cal.3d 270, 276.) However, the court will not grant

relief if the defendant’s default was taken as a result of mere carelessness or other

inexcusable neglect. (Luz v. Lopes (1960) 55 Cal.2d 54, 62.)

Also, where a client seeks discretionary relief under CCP 473(b) based on his

attorney’s error, “counsel's neglect must be excusable. Because attorneys as members

of a learned profession are held to a standard of conduct befitting those with specialized

11

training and skill, and because as a general matter clients are bound by the judgments

and decisions of their chosen counsel, the excusability standard under section 473 is often

difficult to meet where a client seeks relief for the errors or omissions of his or her attorney.

That is because ‘[i]n determining whether [an] attorney's mistake or inadvertence was

excusable, “the court inquires whether ‘a reasonably prudent person under the same or

similar circumstances’ might have made the same error.” [Citation.] ... [T]he discretionary

relief provision of section 473 only permits relief from attorney error “fairly imputable to

the client, i.e., mistakes anyone could have made.” “Conduct falling below the

professional standard of care, such as failure to timely object or to properly advance an

argument, is not therefore excusable....”’” (Minick v. City of Petaluma (2016) 3

Cal.App.5th 15, 26, internal citations omitted, italics in original.)

Here, defendant contends that plaintiffs’ counsel misled her and her attorney into

believing that it was not necessary to file an Answer or other responsive pleading and

that the matter might be resolved by settlement. However, defendant’s evidence fails

to establish that plaintiffs’ counsel made any statements that might have misled her or

her attorney into delaying in filing a responsive pleading. At most, the evidence indicates

that the parties had discussed a possible settlement or informal resolution of the case,

but there is no indication that plaintiffs’ counsel did or said anything to cause defendant

to delay in filing her responsive pleading. Plaintiffs’ counsel did not promise that he would

not take defendant’s default, nor did he grant any specific extension of time for

defendant to file a responsive pleading.

Also, while defendant contends that plaintiffs’ counsel did not notify or warn her

or her attorney in advance before filing the request to enter default, plaintiffs’ counsel

was under no obligation to give a warning before taking defendant’s default. Defendant

admits that she was served in November of 2019 with the Complaint, so she was on notice

that her default might be taken at any time after the 30-day period from service of the

Complaint had run. While it might have been professionally courteous for plaintiffs’

counsel to give some advance warning to defense counsel before taking defendant’s

default, there is nothing in the law that requires such a warning. (Belim v. Bellia (1984) 150

Cal.App.3d 1036, 1038.) The failure to give a warning does not require the court to grant

relief. (Ibid.) Thus, there is no support for defendant’s contention that plaintiffs’ counsel

somehow misled her into failing to file a responsive pleading before the default was

entered.

Likewise, to the extent that defendant argues that the default was the result of

excusable mistake or neglect because defendant and her counsel believed that

plaintiffs were willing to settle the matter and that a responsive pleading was not

necessary, it does not appear that defendant’s belief in this regard was reasonable or

excusable. As an attorney, defense counsel knew or should have known that his client

was in danger of having her default taken once 30 days from the date of service of the

Complaint had passed, and that it was risky to delay filing a responsive pleading. Again,

there is no evidence that plaintiffs’ counsel ever made any affirmative promise not to

take defendant’s default once the 30-day period had run. While settlement negotiations

were apparently ongoing, even defense counsel admits that they were not making any

progress after the first round of discussions in December of 2019, so it was not reasonable

for him to delay filing a responsive pleading on behalf of his client without some kind of

promise from plaintiffs’ counsel that he would not take her default. As a result, the

12

ongoing settlement negotiations between the parties do not constitute a reasonable

excuse for defendant’s failure to file her responsive pleading in a timely manner.

Defendant also argues that the court closure and shelter in place orders due to

the COVID-19 pandemic provide an excuse for the failure to file a timely responsive

pleading. However, defendant’s default was taken in early March of 2020, before the

court closure or shelter in place orders had gone into effect. Thus, the pandemic did not

somehow prevent defendant from filing a responsive pleading, and the complications

caused by the pandemic do not constitute a reasonable excuse for defendant’s failure

to respond before her default was taken.

Also, to the extent that defendant claims that she has no standing to open a

probate case regarding the reconveyance of the note and deed of trust, or that

plaintiffs’ underlying case otherwise lacks merit, this contention is irrelevant to the

question of whether the default should be set aside due to defendant’s mistake or

excusable neglect. Therefore, the court intends to disregard defendant’s arguments

regarding the merits of the case.

However, while not clearly articulated in the initial moving papers, it does appear

that defense counsel has admitted in his declaration that the default was entered due

to his own mistake or neglect. He concedes in his declaration that he believed that the

ongoing settlement discussions would ultimately resolve the case without having to file a

responsive pleading, and that the disruption to his legal practice due to the COVID

pandemic, court closures, and stay at home orders created an “administrative and

procedural nightmare, especially for small firms and sole practitioners, like me. In the

morass, I failed to stay attentive to this matter and failed to respond in a timely manner

to resolution discussions and/or filing a responsive pleading.” (Cuttone Decl. at ¶ 19.)

Under Code of Civil Procedure section 473, subdivision (b), if within six months of

entry of the default an attorney files an affidavit admitting that the default was entered

against his client due to his mistake, surprise, inadvertence or neglect, regardless of

whether the error was excusable or not, the court must grant relief from the default unless

it concludes that the default was not in fact entered due to the attorney’s mistake or

neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal. App. 4th 432, 437.)

Relief under the attorney affidavit of fault portion of CCP 473(b) is mandatory as long as

the requirements of the section have been met. (Ibid.)

Here, defense counsel brought the motion for relief within six months of entry of

the default, and he admits that the default was entered due to his mistake or neglect.

Although the error here appears to be inexcusable, defendant does not have to show

excusable neglect in order to obtain relief under the attorney affidavit of fault provision

of section 473(b). Indeed, relief is mandatory, as long as the motion is timely and the

court concludes that the attorney’s mistake or neglect caused the default. There is no

evidence to contradict defense counsel’s claim that the default was entered due to his

own mistake or neglect, as opposed to the mistake or neglect of his client. In fact,

defense counsel was already negotiating with plaintiffs’ counsel at the time the default

was entered, so it was apparently his decision not to file a responsive pleading for his

client.

13

Therefore, the court intends to grant relief from the default under the mandatory

attorney affidavit of fault provision of section 473(b) and allow defendant to file her

Answer. Normally, the court would also order defense counsel to pay the opposing

party’s reasonable legal fees and costs for entering the default and opposing the motion

to set aside. (Code Civ. Proc. § 473, subd. (b).) However, at this time plaintiffs’ counsel

has not submitted any evidence regarding his legal fees and costs, so there is no

evidentiary basis for the court to order sanctions against defense counsel at this time.





Tentative Ruling

Issued By: DTT on 11/12/2020 .


14

(33)

Tentative Ruling

Re: Richardson v. JCT Trucking, et al.



Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant. Proposed order signed. Hearing off calendar.





Tentative Ruling

Issued By: DTT on 11/17/2020 .


15



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18

(19)

Tentative Ruling

Re: Delao v. Lyons Magnus, Inc.



Motion: Order to Show Cause as to why administrator should not be

ordered to refund excess payments mode to itself and redistribute

such to class members

Amendment of judgment under Code of Civil Procedure

section 384, subdivision (b)

Tentative Ruling:

To continue to January 21, 2021, at 3:30 p.m., in this Department.

Explanation:

Class counsel states that the excess payment “will” be refunded. No declaration

from the class administrator is provided, although one was ordered on September 16,

2020. There is no proof the refund required has occurred. A further declaration as to the

status of payments from the class administrator appointed by the Court, including the

amount of uncashed checks and ultimate payment of that amount, must be filed no

later than January 7, 2021.

A proposed judgment which lists the total amount paid to class members must be

lodged, and shall also attach a copy of the settlement to be entered as part of that

judgment.

The clerk shall serve a copy of this ruling on Simpluris, Inc., Attention: Cassandra

Cita, 3194 Airport Loop Drive, Suite C, Costa Mesa, California 93626.





Tentative Ruling

Issued By: KAG on 11/16/2020 .


19

(19)

Tentative Ruling

Re: Peterson v. ADT, LLC



Motion: By defendants for admission of counsel pro hac vice

Tentative Ruling:

To deny, without prejudice.

Explanation:

The application states it was served by electronic service, which is permitted by

Judicial Council Emergency Rule 12. However, Code of Civil Procedure section 1013b,

subdivision (b)(3) states that a proof of such service must include: “The name and

electronic service address of the person served.” No electronic service address is

provided for the State Bar of California.

California Rules of Court, rule 9.40(d)(5) requires that the applicant list all cases

and courts in this State in which he or she has submitted an application for admission pro

hac vice. Counsel here does not provide such information; he states only that he was

not admitted. An application can be denied. All prior applications in the applicable

time period must be listed.





Tentative Ruling



20

(03)

Tentative Ruling

Re: Vallejos v. Saint Agnes Medical Center



Motion: By Defendant Saint Agnes Medical Center for Summary

Judgment or, in the Alternative, Summary Adjudication

Tentative Ruling:

To grant defendant Saint Agnes Medical Center’s motion for summary judgment

as to the entire complaint against it. (Code Civ. Proc., § 437c.)

Explanation:

First, defendant Saint Agnes moves for summary adjudication as to the fourth

cause of action for sexual harassment, which is based on a theory that Saint Agnes is

vicariously liable for the alleged sexual battery committed by its employee, Victor

Mendoza, during the course and scope of his employment. Under the holding of the

California Supreme Court in Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12

Cal.4th 291, a hospital cannot be held liable for the intentional torts of its employee unless

there is a causal nexus between the work and the resulting tort, or where it is foreseeable

that the tort might occur as an “outgrowth” of the employer’s activities. (Id. at pp. 298-

299.)

In Lisa M., the plaintiff was sexually assaulted by an ultrasound technician while he

was in the process of conducting an ultrasound scan on her, which involved using a

wand on her stomach and pelvic area. The Supreme Court then asked, “Was Tripoli's

sexual battery of Lisa M. within the scope of his employment? The injurious events were

causally related to Tripoli's employment as an ultrasound technician in the sense they

would not have occurred had he not been so employed. Tripoli's employment as an

ultrasound technician provided the opportunity for him to meet plaintiff and to be alone

with her in circumstances making the assault possible. The employment was thus one

necessary cause of the ensuing tort. But, as previously discussed, in addition to such ‘but

for’ causation, respondeat superior liability requires the risk of the tort to have been

engendered by, ‘typical of or broadly incidental to,’ or, viewed from a somewhat

different perspective, ‘a generally foreseeable consequence of,’ Hospital's enterprise.”

(Id. at pp. 299–300.)

“Nonsexual assaults that were not committed to further the employer's interests

have been considered outgrowths of employment if they originated in a work-related

dispute. ‘Conversely, vicarious liability [has been] deemed inappropriate where the

misconduct does not arise from the conduct of the employer's enterprise but instead

arises out of a personal dispute.’” (Id. at pp. 300–301, internal citations omitted.)

21

“As with these nonsexual assaults, a sexual tort will not be considered engendered

by the employment unless its motivating emotions were fairly attributable to work-related

events or conditions. Here the opposite was true: a technician simply took advantage

of solitude with a naive patient to commit an assault for reasons unrelated to his work.

Tripoli's job was to perform a diagnostic examination and record the results. The task

provided no occasion for a work-related dispute or any other work-related emotional

involvement with the patient. The technician's decision to engage in conscious

exploitation of the patient did not arise out of the performance of the examination,

although the circumstances of the examination made it possible. ‘If . . . the assault was

not motivated or triggered off by anything in the employment activity but was the result

of only propinquity and lust, there should be no liability.’” (Id. at p. 301, internal citation

omitted, italics in original.)

“The flaw in plaintiff's case for Hospital's respondeat superior liability is not so much

that Tripoli's actions were personally motivated, but that those personal motivations were

not generated by or an outgrowth of workplace responsibilities, conditions or events.”

(Id. at pp. 301–302.) Also, the Supreme Court rejected the plaintiff’s argument that the

physically intimate nature of the work the technician was employed to perform made

the sexual assault foreseeable. “In our view, that a job involves physical contact is, by

itself, an insufficient basis on which to impose vicarious liability for a sexual assault. To

hold medical care providers strictly liable for deliberate sexual assaults by every

employee whose duties include examining or touching patients' otherwise private areas

would be virtually to remove scope of employment as a limitation on providers' vicarious

liability. In cases like the present one, a deliberate sexual assault is fairly attributed not to

any peculiar aspect of the health care enterprise, but only to ‘propinquity and lust.’” (Id.

at p. 302, internal citations omitted.)

“Here, there is no evidence of emotional involvement, either mutual or unilateral,

arising from the medical relationship. Although the procedure ordered involved physical

contact, it was not of a type that would be expected to, or actually did, give rise to

intense emotions on either side. We deal here not with a physician or therapist who

becomes sexually involved with a patient as a result of mishandling the feelings

predictably created by the therapeutic relationship, but with an ultrasound technician

who simply took advantage of solitude, access and superior knowledge to commit a

sexual assault.” (Id. at pp. 302–303, internal citations omitted.)

Similar to the facts in Lisa M., plaintiff here was allegedly sexually assaulted by

Mendoza, who was assigned to give plaintiff a “bed bath” as part of his duties as an

orderly for Saint Agnes. (Defendant’s UMF Nos. 5, 7, 8, 9, 12.) While Mendoza’s job placed

him in a position where he would necessarily have intimate physical contact with

plaintiff’s genital area, this is not enough, by itself, to justify imposing liability for his

intentional tort on the hospital. (Lisa M., supra, 12 Cal.4th at p. 302.) An intentional sexual

assault is generally attributable not to any aspect of the health care enterprise, but only

to the individual employee’s “propinquity and lust.” (Ibid.) There is no evidence that

there was any emotional involvement between plaintiff and Mendoza, nor was there

anything about Mendoza’s job that would have made it foreseeable that he would

assault plaintiff. Mendoza was simply assigned to perform a bed bath on plaintiff in order

to help avoid an infection or other medical complications. Under such circumstances,

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the alleged sexual assault was not, as a matter of law, an “outgrowth” of the hospital’s

usual business practices, nor was it a foreseeable result of its business. (Id. at pp. 301-302.)

In her opposition, plaintiff has attempted to file a sealed copy of her own

deposition transcript in an effort to raise triable issues of material fact with regard to the

hospital’s motion. However, plaintiff did not obtain a court order to permit the deposition

to be sealed, nor did she even move for such an order before filing the documents with

the court. Thus, plaintiff has not complied with California Rules of Court 2.550 and 2551,

which require a court order based on specific factual findings before documents may

be filed under seal. As a result, the court strikes the documents that were filed

provisionally under seal and refuses to consider them in making its ruling.

Plaintiff has also improperly objected to defendant’s undisputed material facts, as

opposed to objecting to specific parts of defendant’s evidence. In addition, the

objections are improperly formatted, and there is no proposed order submitted with the

objections, so the objections do not comply with California Rule of Court 3.1354,

subdivisions (b) and (c). In any event, the objections are without merit, as they rely on

hearsay as the sole ground for the objection to Bissic-Lewis’ declaration and statements

in her investigative report, yet the statements are not hearsay because they are

submitted to show the effect on Bissic-Lewis rather than to prove the truth of the matter

asserted. (Holland v. Union Pacific R. Co. (2007) 154 Cal.App.4th 940, 947.) As a result,

the court overrules plaintiff’s objections.

Next, plaintiff contends that the facts of the present case are more closely

analogous to the facts in Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, in which the

plaintiff was raped by a police officer after he pulled her over for driving under the

influence. The California Supreme Court held that there was a triable issue of fact as to

whether the officer was acting in the course and scope of his employment when he

raped the plaintiff, and thus summary judgment was not proper under the circumstances.

(Id. at p. 214.)

However, in Mary M., the Supreme Court noted that a police officer has a great

deal of authority and coercive power due to the nature of his job. “An officer who

detains an individual is acting as the official representative of the state, with all of its

coercive power. As visible symbols of that power, an officer is given a distinctively

marked car, a uniform, a badge, and a gun. As one court commented, ‘police officers

[exercise] the most awesome and dangerous power that a democratic state possesses

with respect to its residents - the power to use lawful force to arrest and detain them.’

Inherent in this formidable power is the potential for abuse. The cost resulting from misuse

of that power should be borne by the community, because of the substantial benefits

that the community derives from the lawful exercise of police power.” (Id. at pp. 216–

217, internal citation omitted.)

In the instant case, on the other hand, Mendoza was employed as an orderly by

Saint Agnes, and there is no evidence that he had any unusual power or authority over

plaintiff that allowed him to sexually assault her. He was simply tasked with a relatively

simple job, namely to give her a bed bath to ensure that she did not develop an infection.

There is nothing to indicate that he had the kind of power that would have made it

foreseeable that he might attempt to sexually assault a patient, and that would justify

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imposing the cost of his intentional tort on the hospital. Therefore, Mary M. is

distinguishable from the facts of the present case, and the court finds that the hospital is

not vicariously liable for Mendoza’s conduct. As a result, the court grants summary

adjudication of the fourth cause of action.

Second, Saint Agnes moves for summary adjudication of the first, second and third

causes of action for negligence, all of which rely on the theory that Saint Agnes was

negligent in hiring, retaining, training, or supervising Mendoza. Saint Agnes is also entitled

to summary adjudication of these causes of action.

“An employer may be liable to a third person for the employer's negligence in

hiring or retaining an employee who is incompetent or unfit. The rule of direct employer

liability under the Restatement Second of Agency section 213 is: ‘A person conducting

an activity through servants or other agents is subject to liability for harm resulting from his

conduct if he is negligent or reckless . . . [¶] . . . [¶] (b) in the employment of improper

persons or instrumentalities in work involving risk of harm to others . . . .’ As explained in

comment d: ‘The principal may be negligent because he has reason to know that the

. . . agent, because of his qualities, is likely to harm others in view of the work or

instrumentalities entrusted to him. If the dangerous quality of the agent causes harm, the

principal may be liable under the rule that one initiating conduct having an undue

tendency to cause harm is liable therefor. . . . [¶] . . . An agent . . . may be incompetent

because of his reckless or vicious disposition, and if a principal, without exercising due

care in selection, employs a vicious person to do an act which necessarily brings him in

contact with others while in the performance of a duty, he is subject to liability for harm

caused by the vicious propensity. . . . [¶] One who employs another to act for him is not

liable . . . merely because the one employed is incompetent, vicious, or careless. If liability

results it is because, under the circumstances, the employer has not taken the care which

a prudent man would take in selecting the person for the business in hand. . . . [¶] Liability

results . . . not because of the relation of the parties, but because the employer

antecedently had reason to believe that an undue risk of harm would exist because of

the employment. . . .’” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th

1556, 1564–1565, internal citations omitted, italics in original.)

Here, Saint Agnes has presented evidence that it conducted a thorough

investigation into Mendoza’s history before hiring him, and that there were no complaints

against him during the ten years that he was employed with Saint Agnes before the

subject incident. Saint Agnes’ investigation of Mendoza’s history included a criminal

background check and a sex offender registry check, which he passed, as well as

confirming that he had worked for his prior employer, Fresno Community Hospital, for 27

years. (Defendant’s UMF No. 2.) Mendoza was also given Saint Agnes’ policy against

harassment, staff member handbook, and acknowledgement of standards of conduct

when he was hired. (UMF No. 3.) He was then given training and required to undergo

competency and orientation in his field. (UMF No. 4.) There were no patient complaints

against Mendoza about inappropriate touching in the first ten years that he worked for

Saint Agnes, up to the time of the subject incident. (UMF No. 11.) Thus, Saint Agnes has

met its burden of producing evidence showing that it had conducted a reasonable

investigation of Mendoza’s work and criminal history, and that it had no reason to believe

that he was likely to commit a sexual assault against one of its patients.

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In opposition, plaintiff contends that Saint Agnes should have conducted a more

thorough investigation of Mendoza’s work history, and that if it had done so, it would

have discovered that Mendoza had been accused of similar inappropriate touching by

a patient in the past. Also, plaintiff claims that Mendoza was terminated by Saint Agnes

for similar conduct about a year after the subject incident.

Yet plaintiff’s opposition relies on inadmissible evidence and fails to raise a triable

issue of material fact as to whether Saint Agnes knew or should have known that

Mendoza was likely to commit a sexual assault on its patients. Plaintiff relies on the

declaration of its expert, James Schmidtke, who states that Saint Agnes should have

spoken with Mendoza’s former employer, Fresno Community Hospital, before hiring him,

and that it was negligent not to do so. (Schmidtke decl., ¶ 10.) However, Schmidtke’s

declaration lacks foundation and appears to be based entirely on speculation that, had

Saint Agnes spoken to Fresno Community Hospital about Mendoza’s work history, it would

have learned that he had other incidents of misconduct with patients in his past. There

is no evidence that any such incidents actually occurred while Mendoza was employed

by Fresno Community Hospital. Thus, the court sustains defendant’s objections to

Schmidtke’s declaration and disregard his conclusions.1

Plaintiff also relies on a statement allegedly made by Mendoza to Nurse

Macarenas at the time of the subject incident that he had previously been accused of

misconduct by another patient, and thus he was worried about being left alone while he

bathed plaintiff. (Exhibit B to Wagner decl.) Again, however, this statement is

inadmissible, as it is not supported by any foundation and it is hearsay. The statement is

contained in what purports to be an investigation report by Bissic-Lewis, but plaintiff’s

counsel never lays any foundation for the admission of the report. The statement itself is

also double hearsay to the extent that it is offered to prove the truth of that which it

asserts, namely that there was another patient complaint against Mendoza prior to the

subject incident. Therefore, the court sustains the objections to the statements in Bissic-

Lewis’ report regarding prior complaints against Mendoza. In any event, it is unclear

when the complaint was made or whether the complaint was made while Mendoza was

employed at Fresno Community Hospital. Thus, even if the court were to consider it, the

statement fails to establish that Saint Agnes was negligent for failing to discover the

complaint and take action as a result.

Plaintiff also contends that Saint Agnes has failed to show that Nurse Macarenas

was present during the entire time that plaintiff and Mendoza were together, and thus

Saint Agnes negligently failed to supervise Mendoza. Plaintiff points to her own testimony

stating that Macarenas was not present during the bath, which she contends means that

Saint Agnes did not adequately supervise Mendoza. Again, however, plaintiff has failed

to submit her own deposition testimony to the court to support her opposition. Her

deposition has been lodged provisionally under seal, but plaintiff has not sought or

obtained a court order to seal the deposition, so the court cannot consider the

deposition transcript.

In any event, plaintiff has failed to identify any authorities or evidence that would

require the hospital to have a nurse or other person present when a female patient is

1 Specifically, the court sustains defendant’s objection nos. 2-6, and overrules objection no. 1.

25

being bathed by a male orderly. Plaintiff refers in her opposition to “a requirement that

a nurse be present during the entire time a male orderly is with a female patient,” but she

cites to no facts or evidence that would support that such a policy existed at Saint Agnes

during the subject incident. Therefore, the fact that Nurse Macarenas may not have

been present during the entire time Mendoza was in the room with plaintiff does not raise

a triable issue of material fact as to whether Saint Agnes was negligent in supervising

Mendoza. On the contrary, the admissible evidence presented by Saint Agnes indicates

that the hospital conducted a reasonable investigation of Mendoza’s criminal and work

history, that it trained him, and that it had no reason to suspect that he would commit a

sexual assault on one of its patients.

In addition, while plaintiff cites to the alleged fact that Mendoza was terminated

about a year after the subject incident for another similar incident of inappropriate

touching of a patient, the evidence relied upon by Mendoza is again inadmissible and

does not establish that Mendoza committed another sexual assault. Plaintiff’s counsel

has simply attached a termination release form to his declaration without laying a

foundation for it. (Exhibit C to Wagner decl.) The termination form itself also appears to

be hearsay to the extent that it is offered to prove the truth of what it asserts, namely the

reasons for Mendoza’s termination. Furthermore, even if the court were to consider the

contents of the form, it simply states that Mendoza was terminated for violating hospital

policy regarding the placement of a patient’s bedpan. It is unclear that this type of

conduct is similar to the inappropriate touching or sexual assault alleged by plaintiff.

Also, even assuming that the termination was for inappropriate touching of a

patient, the incident occurred in March of 2018, about 11 months after plaintiff was

allegedly sexually assaulted, so the new incident would not have placed Saint Agnes on

notice that Mendoza was likely to sexually assault plaintiff in April of 2017. Thus, the

alleged fact that Mendoza was terminated for inappropriate conduct regarding a

patient in March of 2018 does not raise a triable issue of fact regarding whether Saint

Agnes negligently hired, retained, or supervised him at the time plaintiff was allegedly

assaulted.

Plaintiff finally argues that Saint Agnes ratified Mendoza’s conduct by failing to

terminate him or discipline him after the subject incident. “‘[A]n employer may be liable

for an employee's act where the employer either authorized the tortious act or

subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge

an employee who has committed misconduct may be evidence of ratification.

[Citation.] The theory of ratification is generally applied where an employer fails to

investigate or respond to charges that an employee committed an intentional tort, such

as assault or battery. [Citations.] Whether an employer has ratified an employee's

conduct is generally a factual question. [Citation.]’” (C.R. v. Tenet Healthcare Corp.

(2009) 169 Cal.App.4th 1094, 1110.)

Here, defendant’s evidence shows that it conducted an investigation of plaintiff’s

complaint against Mendoza after the incident, and that defendant concluded that the

complaint was unfounded. (Defendant’s UMF Nos. 10-18.) The investigation was based

on interviews with plaintiff, Mendoza, and Nurse Macarenas, who stated that she was

present during the entire time Mendoza was with plaintiff. (Ibid.) While plaintiff contends

that Macarenas was not present during the entire period Mendoza bathed her, and that

26

she left the room during the bath at which point Mendoza assaulted her, plaintiff has not

submitted any evidence that defendant conducted an incomplete or unreasonable

investigation of the incident. Even if Macarenas did leave the room for some or all of the

bathing process, there is no evidence that Saint Agnes failed to conduct a complete

and reasonable investigation of plaintiff’s complaint. On the contrary, it appears that

Saint Agnes interviewed all of the witnesses and simply concluded that plaintiff’s

complaint was unfounded based on all of the available evidence.

Thus, plaintiff has failed to raise a triable issue of material fact with regard to the

question of whether Saint Agnes ratified Mendoza’s alleged sexual assault.

Consequently, the court grants summary adjudication of the first, second, and third

causes of action in favor of Saint Agnes.

Finally, the court grants summary adjudication of the sixth cause of action for

violation of the Elder and Dependent Adult Abuse Act. While plaintiff alleges that

defendant is liable for failing to prevent the sexual assault on her while she was a patient

at the hospital, again there is no evidence that Saint Agnes had any advance notice

that its employee might have a propensity to sexually assault its patients, or that it

otherwise acted with malice, fraud, oppression or reckless disregard for the rights and

safety of its patients.

“The standards set forth in subdivision (b) of Section 3294 of the Civil Code

regarding the imposition of punitive damages on an employer based upon the acts of

an employee shall be satisfied before any damages or attorney's fees permitted under

this section may be imposed against an employer.” (Welf. & Inst. Code, § 15657, subd.

(c).) “An employer shall not be liable for damages pursuant to subdivision (a), based

upon acts of an employee of the employer, unless the employer had advance

knowledge of the unfitness of the employee and employed him or her with a conscious

disregard of the rights or safety of others or authorized or ratified the wrongful conduct

for which the damages are awarded or was personally guilty of oppression, fraud, or

malice. With respect to a corporate employer, the advance knowledge and conscious

disregard, authorization, ratification or act of oppression, fraud, or malice must be on the

part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294,

subd. (b).)

In this case, as discussed above, there is no evidence that Saint Agnes had any

advance notice that Mendoza was going to commit a sexual assault against plaintiff or

any other patient. In fact, Saint Agnes had done a criminal background check and

sexual offender registry check on Mendoza, which he passed. It also had trained him

regarding its policies, and it had no complaints about him for the ten years that he

worked at Saint Agnes. Thus, there is no evidence to support plaintiff’s claim that Saint

Agnes was vicariously liable for Mendoza’s conduct.

Nor is there any evidence that Saint Agnes ratified or approved the attack after

the fact. Again, the evidence indicates that Saint Agnes conducted an investigation

and interviewed all witnesses, and reached the conclusion that there was no basis for

plaintiff’s complaint. While plaintiff disagrees with the hospital’s conclusion, there are no

triable issues of material fact with regard to whether the investigation was reasonable,

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complete, or performed in good faith. As a result, the court grants summary adjudication

of the sixth cause of action for dependent adult abuse.





Tentative Ruling



Documents

Tentative Rulings for November 18, 2020 Departments 403 ......2020/11/18 · (See Memo, filed: 11/22/19, pp 10-11.) Finally, defendant submits evidence showing that its Chargemaster