Camacho v. Meridian Neurocare
Filed 5/23/06 Camacho v. Meridian Neurocare CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SALVADOR CAMACHO et al., Plaintiffs and Respondents, v. MERIDIAN NEUROCARE, Defendant and Appellant. | 2d Civ. No. B178473 (Super. Ct. No. 214086) (Ventura County) |
Salvador and Ofelia Camacho (the Camachos), individually and as the parents of decedent Arturo Camacho, brought an action against appellant Meridian Neurocare, doing business as Care Meridian-Oxnard, seeking damages for wrongful death and abuse under the Elder Abuse and Dependant Adult Civil Protection Act, Welfare and Institutions Code section 15657 (Elder Abuse Act).[1] Meridian Neurocare appeals from a jury verdict in the Camachos' favor on both claims. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Arturo was in a motorcycle accident at the age of 19. The accident left him a quadriplegic with moderate brain damage. After receiving treatment for two years in several hospitals, his parents cared for him at home for the next 20 years.
In November 2000, Arturo was admitted to Vencor Hospital for treatment of pneumonia and pressure sores on his hips, buttocks and elsewhere. He remained at Vencor until February 2001, when he was transferred to appellant's Escondido facility, still suffering from pneumonia and pressure sores. In March 2001, Arturo was transferred to appellant's Oxnard facility, Care Meridian-Oxnard,[2] and remained in that facility until September 2001.
In the morning of September 1, 2001, Arturo developed a fever of 104 degrees. The staff administered Motrin followed by Tylenol a few hours later. His temperature gradually decreased and, by the next morning, his temperature was down to 99.4 degrees.
During the evening of September 2, 2001, Arturo's condition deteriorated--his breathing became rapid and shallow and he had no readable blood pressure. He was transferred to St. John's Hospital where he died two days later. The cause of death was sepsis due to pneumonia.
The Camachos filed a lawsuit against Meridian Neurocare, alleging a cause of action for wrongful death and a cause of action for reckless neglect under the Elder Abuse Act.[3] A jury found in their favor on both claims.
The defense moved for a new trial and judgment notwithstanding the verdict. The court denied both motions.
The court granted the Camachos attorney's fees in the amount of $549,017.
Evidence of Arturo's Care and Treatment
Throughout his stay at Care Meridian-Oxnard, Arturo was under the care of Dr. Donald Montgomery, the medical director of the facility. Dr. Montgomery visited Arturo twice a month. During those visits, Dr. Montgomery did an assessment of Arturo, including opening his dressings so he could visually inspect his pressure sores. Initially, Arturo's pressure sore dressings were changed daily, but the frequency increased by 50 percent in June and ultimately went up to four times a day in July and August. Dr. Montgomery also issued orders by telephone when contacted by hospital staff concerning changes in Arturo's condition.
Dr. Montgomery directed Arturo's feeding. He was seen regularly by a dietitian, who monitored his weight and caloric intake and made recommendations for adjusting the amount he was fed. Dr. Montgomery followed up on the dietitian's visits by issuing orders for changes in feeding. The dietitian saw Arturo on August 30, recommended increased feeding, and Dr. Montgomery ordered the recommended increase the same day.
Arturo's sister testified that he arrived at Care Meridian-Escondido with four pressure sores, including a stage III sore on his hip. Most of the sores had healed by the time he was transferred to Care Meridian-Oxnard in March 2001. She testified that when Arturo arrived at St. John's Hospital on September 2, 2001, he had five pressure sores, some of which were stage IV, the most serious level.[4]
Dr. Stephen Hosea, a pulmonary specialist, testified on behalf of the Camachos. He criticized Care Meridian-Oxnard's treatment of Arturo's pressure sores, noting that the number and severity of Arturo's pressure sores increased while he was at the Oxnard facility. Dr. Hosea testified that failure to keep Arturo properly nourished constituted improper treatment of the pressure sores, because malnutrition deprived him of the calories he needed to heal the sores.
Dr. Hosea also testified that Arturo's ability to recover from the pneumonia infection that caused his death was compromised because he was malnourished. He testified that malnutrition caused Arturo to become anemic; the anemia reduced Arturo's ability to recover from infection and caused an elevated pulse rate, which in turn caused further malnutrition. He testified that a fever or active infection " requires more caloric intake in order to help the body fight off the infection as well as heal the infection," " any kind of infection will increase metabolic demands," and adequate nutrition is " critically important in terms of being able to heal decubitus ulcers."
Dr. Hosea reviewed Arturo's medical records. He testified: " [T]here was a dramatic change from June to July and August." He noted Arturo had consistently increased pulse rate and his temperature began to increase consistently as well. In addition, his weight dropped from 149 pounds down to 137 pounds, and his laboratory test results changed. He testified that since Arturo was not exercising, " there was something else that was going on that was increasing the metabolic demands."
Dr. Hosea concluded that because Arturo " was so malnourished" when he contracted pneumonia, " he really did not have the ability to fight it," and " [h]is malnutrition and severe anemia both compromised his ability to fight off any kind of infection."
Dr. Hosea opined that to a reasonable medical probability, the care Arturo received at Care Meridian-Oxnard was a substantial factor in his death. He stated: " [Q]uadriplegics go to special care places where the whole reason for having them is to pay attention to decubitus ulcers, provide adequate nutrition and care, debridement of those ulcers. The fact that the ulcers clearly progressed during his stay, to me, was proof that his care was below the standard of care."
Chad Medlin, the administrator and director of nursing at Care Meridian-Oxnard, testified he saw the patients at Care Meridian-Oxnard every day and he was aware of their conditions.
Medlin testified that the company's policy for treating pressure sores required that a " pressure sore record" be used. The record normally used by all Meridian Neurocare facilities noted the day a pressure sore is first seen, its stage, depth, size, color, odor, drainage, necrosis, treatment, response to treatment, and whether the doctor had been notified. The Escondido facility used the prescribed form at the time Arturo was treated there.
Medlin testified that during the time Arturo was at the Oxnard facility, he and his staff were experimenting with a method of record-keeping that deviated from official company policy. They were not using the usual pressure sore record to chart the condition of a patient's pressure sores. Instead, the staff was experimenting with an alternative method of charting the condition of pressure sores because they considered the alternative to be " a possible better approach." Medlin admitted that the alternative " didn't work well." Medlin expressed disapproval of some of the nurses' charting, which he characterized as " sloppy."
Medlin testified that when Arturo arrived at Care Meridian-Oxnard, he was smiling, laughing, having fun, and a joy to be around. By July or August, Arturo had deteriorated. He appeared depressed, he was sweating profusely, trembling and grinding his teeth. He needed daily pain medication. He had an excessively fast heart rate and his weight had dropped from 149 to 137 pounds.
Nurse Lolita Wiggins testified that she notified Dr. Montgomery on September 1, 2001, that Arturo had a fever of 104 degrees and he prescribed Motrin. Wiggins testified that Arturo's chart did not reflect either that call or other calls she claimed to have made to Dr. Montgomery in August and on September 1.
Dr. Montgomery testified he did not receive a call on September 1 about Arturo's high fever. He testified that Arturo was a " particularly frail individual" and a temperature of 104 degrees " would have been a significant finding" that would have left " little recourse than to immediately transfer that patient to the hospital." By " frail," Dr. Montgomery meant that " [Arturo] had several large bedsores on his back that would lead him to be predisposed to infections."
Nursing expert Roxanne Wilson testified that the standard of care does not require a specific form for recording pressure sores. The standard of care does require that specific information be recorded weekly to permit assessment of " whether wounds have changed." Such a record permits the caregiver to determine " whether or not the treatment is effective, whether the doctor needs to be called and then ask [sic] for change in orders . . . or whether or not a consultant needs to be called in," whether " lab work needs to be done, whether or not there is enough protein that they're getting, if they're losing weight to determine if other things need to be added, protein powders, things like that to help heal the wound." She opined that the records used by the Oxnard facility instead of the standard form were " absolutely not" sufficient to comply with the standard of care.
Wilson also testified that although Arturo was transferred to St. John's on September 2, the nurses' notes at Care Meridian-Oxnard were completed as though Arturo were still there, suggesting that the chart was filled out in advance. The chart noted that Arturo's feeding tube had been flushed, he had been given medicine, his pressure sores had been treated, and he had exercised--all when he was no longer at Care Meridian-Oxnard. Wilson testified that many of the nurses' notes looked identical, as if they were " canned." This was a breach of the standard of care because the notes did not accurately reflect what was done.
Wilson opined that Care Meridian-Oxnard also breached the standard of care by failing to report to Arturo's physician " specific indications on the chart on some days in August" about elevated temperatures, drainage from the pressure sores, and foul odor coming from Arturo's tracheotomy. Wilson opined that failure to notify the doctor of these symptoms suggested that the nurses did not recognize signs and symptoms of infection and that this " absolutely" breached the standard of care.
Appellant presented no evidence disputing the opinions of the Camachos' experts.
DISCUSSION
Wrongful Death
We examine the record to determine whether the verdict for the Camachos was supported by substantial evidence. In our examination, we apply the well established rule of appellate review by considering the evidence in the light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the jury verdict if possible. (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 907.) " It is an elementary . . . principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury." (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)
Appellant attacks the jury's wrongful death verdict on the grounds that the Camachos did not meet their burden of providing substantial evidence that the standard of care was breached or that appellant's negligence was a substantial factor in Arturo's death.
Generally, a plaintiff in a medical negligence action must demonstrate: (1) the professional's duty to meet the standard of care set by other professionals in the community; (2) the breach of that duty; (3) proximate cause; and (4) damages. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317.)
Determination of whether the standard of care was breached is a question for the trier of fact. (Morgan v. J.W. Robinson Co. (1910) 157 Cal. 348, 355; Boon v. Rivera (2000) 80 Cal.App.4th 1322, 1334.) When reasonable minds may differ as to the reasonableness of the defendant's conduct, neither the trial court nor the appellate court may substitute its own judgment and override the determination of the jury as the trier of fact. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1061.)
Dr. Hosea testified that Arturo did not receive proper nutrition and was so malnourished that he was not able to fight off infection. Dr. Hosea also testified that the fact that Arturo's pressure sores clearly progressed during his stay at the Oxnard facility was proof that his care was below the standard of care.
Nurse Wilson testified that the charting at the facility did not contain much of the information needed to provide appropriate care for Arturo. She pointed out that his chart did not indicate if Dr. Montgomery was contacted about changes in Arturo's condition or whether he received proper treatment for his pressure sores.
Chad Medlin acknowledged that the experiment with charting pressure sores using a nonprescribed form was a failure. He also admitted that the nurses' charting was sloppy.
Dr. Montgomery's testimony that he was not notified of the sudden onset of Arturo's high fever further supports the conclusion that Arturo's care was substandard.
None of the qualifications of those testifying were challenged by appellant, nor did appellant present any evidence to refute the testimony of the Camachos' witnesses. There is substantial evidence that the treatment Arturo received at Care Meridian-Oxnard fell below the standard of care.
Appellant also asserts that evidence of causation is lacking. The plaintiff in a wrongful death action must prove that the defendant's conduct was a substantial factor in causing the decedent's death. (See, e.g., Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1507.) " [T]he plaintiff must prove the death was 'caused by' the defendant's wrongful act or neglect, i.e., the wrongful act or neglect was a cause in fact of the death. [Citations.] To be a cause in fact, the wrongful act must be 'a substantial factor in bringing about' the death." (Id. at pp. 1497-1498.) Causation in actions arising from medical negligence must be proven with a reasonable medical probability based on competent expert testimony, i.e., something more than a " 50-50 possibility." (Id. at p. 1504.)
To establish that appellant's negligence was a " substantial factor" in causing Arturo's death, the Camachos had to prove the negligence was of itself sufficient to bring about that harm. (Bromme v. Pavitt, supra, 5 Cal.App.4th at p. 1498.) " Ordinarily, 'the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.' [Citations.] However, '[i]f two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about.'" (Ibid.)
Under this standard, to show Arturo's death was " caused by" appellant's medical negligence, the Camachos had to establish a reasonable medical probability that the negligence was sufficient of itself to bring about the death, i.e., the death was " more likely than not" the result of the negligence. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403.)
Appellant discounts Dr. Hosea's testimony and opinion that Arturo was not properly fed at Care Meridian-Oxnard and that malnutrition was a substantial factor in his death from pneumonia. Specifically, appellant claims, " Dr. Hosea never testified that but for the alleged malnutrition, [Arturo] would have survived that bout of pneumonia" (italics omitted), and that " Dr. Hosea never said or implied, to a reasonable medical probability or otherwise, that [Arturo] would not have died if he had been properly nourished."
The evidence is to the contrary. Dr. Hosea testified that Arturo did not have the ability to fight off the pneumonia infection because he " was so malnourished," that malnutrition caused Arturo to become anemic and that " [h]is malnutrition and severe anemia both compromised his ability to fight off any kind of infection." Dr. Hosea expressly stated that " the care that [Arturo] received at Care Meridian-Oxnard was a substantial factor in his death."
Appellant presented no contrary evidence, expert or otherwise, to refute the fact that Arturo was malnourished during his stay at the Oxnard facility, or that his death was caused by anything other than his inability to fight off infection due to malnutrition. Substantial evidence supports the jury's verdict on the wrongful death claim.
Elder Abuse
The purpose of the Elder Abuse Act is " to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect." (Delaney v. Baker, supra, 20 Cal.4th at p. 33.) To encourage private enforcement of the law, the act affords heightened remedies, including damages for a decedent's pain and suffering and attorney's fees and costs. (§ 15657; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779-780.) Section 15657 provides the plaintiff with attorney's fees and costs " [w]here it is proven by clear and convincing evidence that a defendant is liable for . . . neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse . . . ."
Section 15610.57 defines " neglect," in pertinent part, as follows: " (a) 'Neglect' means either of the following: [¶] (1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person . . . would exercise. [¶] (2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise. [¶] (b) Neglect includes, but is not limited to, all of the following: [¶] (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. [¶] (2) Failure to provide medical care for physical and mental health needs. . . . [¶] (3) Failure to protect from health and safety hazards. [¶] (4) Failure to prevent malnutrition or dehydration."
" As used in the [Elder Abuse] Act, neglect refers not to the substandard performance of medical services but, rather, to the 'failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.' [Citation.] Thus, the statutory definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care." (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 783.) The high standard imposed by section 15657 protects health care providers from liability under the statute " for acts of simple or even gross negligence." (Covenant Care, Inc., at p. 785.)
" Recklessness," within the meaning of the Elder Abuse Act, involves more than " 'inadvertence, incompetence, unskillfulness, or a failure to take precautions' but rather rises to the level of a 'conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.'" (Delaney v. Baker, supra, 20 Cal.4th at pp. 31-32.) Delaney explains, " In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve 'intentional,' 'willful,' or 'conscious' wrongdoing of a 'despicable' or 'injurious' nature." (Id. at p. 31.)
" Recklessness" is a " subjective state of culpability greater than simple negligence," involving a " 'deliberate disregard' of the 'high degree of probability' that an injury will occur." (Delaney v. Baker, supra, 20 Cal.4th at p. 31.) Delaney emphasized that " [r]ecklessness, unlike negligence, involves more than 'inadvertence, incompetence, unskillfulness, or a failure to take precautions' but rather rises to the level of a 'conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.'" (Id. at pp. 31-32.) Recklessness refers to deliberate disregard of a high degree of probability that an injury will occur. (Id. at p. 31.)
The jury was required to find that appellant was guilty of both negligence and recklessness by clear and convincing evidence. " 'The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.'" (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) " Thus, on appeal from a judgment required to be based upon clear and convincing evidence, 'the clear and convincing test disappears ... [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.'" (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.)
Dr. Hosea and nursing expert Wilson, as well as Care Meridian's own employees--Dr. Montgomery, Chad Medlin and Nurse Wiggins--gave detailed testimony regarding Arturo's rapid deterioration at the Oxnard facility, including weight loss, sustained high fever, worsening bedsores, improper charting and failure to keep Arturo's treating physician apprised of his condition. In Delaney v. Baker, supra, 20 Cal.4th 23, our Supreme Court held that evidence similar to that presented here constituted reckless neglect. The court said: " [T]here is substantial evidence that . . . defendants failed, over an extended period of time, to attend [the patient's] advanced bedsores, and otherwise neglected her in such a way as to contribute to her pain and suffering and eventual death." (Id. at p. 41.)
As in Delaney, the evidence here shows numerous violations of medical monitoring and record-keeping regulations. As in Delaney, the evidence shows serious lapses in providing Arturo's treating physician with information concerning Arturo's deteriorating condition. As in Delaney, Arturo was malnourished. " [T]he inability of nursing staff to prescribe or execute a plan of furnishing sufficient nutrition to someone too infirm to attend to that need herself . . . is . . . unquestionably 'neglect,' as that term is defined in . . . section 15610.57." (Delaney v. Baker, supra, 20 Cal.4th at pp 34-35.)
Ratification
An employer is subject to the enhanced remedies provided in the Elder Abuse Act if the abuse was authorized or ratified by an officer, director or managing agent. (§ 15657, subd. (c); Civ. Code, § 3294, subd. (b).) A managing agent is a corporate employee who exercises substantial independent authority and judgment in decision-making so that the decisions ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567, 577.) The scope of an employee's discretion and authority is a question of fact to be determined on a case-by-case basis. (Id. at p. 567.)
Whether an employee is a managing agent does not hinge solely on his level or position in the corporate hierarchy. (Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 822.) Instead, " the critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy." (Id. at pp. 822-823.)
Chad Medlin is both the administrator and director of nursing care at Care Meridian-Oxnard, the highest position at the facility. He reported directly to the chief operating officer. As administrator, he was responsible for day-to-day operation of the facility and participated in decisions involving operation of the building, setting the budget, and " things of that nature" in cooperation with the central office. As director of nursing, his primary duty was to oversee nursing care. He also screened patients before they were admitted to the facility. He had the power to hire and fire, discipline and evaluate employees.
Appellant relies on Cruz v. HomeBase (2000) 83 Cal.App.4th 160. The extent of Medlin's authority at Care Meridian, however, was much broader than the employee in Cruz. Cruz was the loss prevention supervisor for a single store. He supervised only a few employees, and his discretionary power was limited to detaining and prosecuting low level offenders. (Id. at p. 164.) In contrast, Medlin's discretionary power was not at all limited at Care Meridian-Oxnard. He had authority for every aspect of management. Medlin was a managing agent because appellant delegated the responsibility for managing Care Meridian-Oxnard to him, allowing Medlin independent authority, discretion and judgment in his decision-making for the facility.
Appellant also argues there was no ratification because Medlin's authority was confined to the Oxnard facility, and he did not make policy for other Care Meridian facilities. Appellant argues that Medlin's decision to " experiment" with different forms for documenting pressure sores instead of using the form used by the other facilities shows that he deviated from company policy, rather than making policy. This argument ignores the extent of authority appellant delegated to Medlin.
When a corporation gives its employees leeway to " personally manage[] the most crucial aspects" of its business--here, the relationship with patients--that corporation " should not be allowed to insulate itself from liability by giving an employee a nonmanagerial title and relegating to him crucial policy decisions." (Egan v. Mutual of Omaha Ins. Co., supra, 24 Cal.3d at pp. 823-824 [manager of insurance claims department, who had supervisory and decisional authority regarding the disposition of all claims processed through the Los Angeles office, was managing agent for punitive damages purposes].)
Appellant also asserts there was no ratification because Medlin testified he could only make corporate policy " in conference" with others. But in White v. Ultramar, Inc., supra, 21 Cal.4th at page 577, the Supreme Court said that the fact the manager of eight stores " spoke with other employees and consulted the human resources department before firing plaintiff does not detract from her admitted ability to act independently of those sources" because the company " delegated most, if not all, of the responsibility for running these stores to her." Similarly, appellant delegated virtually all of the responsibility for running Care Meridian-Oxnard to Medlin.
Medlin was a registered nurse and aware of the health needs of his patients. He was the facility supervisor, charged with overseeing nursing care and assuring compliance with regulatory requirements. He participated in caring for the facility's nine patients, so he was personally aware of Arturo's condition. Nonetheless, the evidence shows that Medlin either tolerated breaches of the standard of care by his staff, or he was not aware of breaches because he failed to carry out his duty to supervise. Either way, the evidence supports a finding that he was reckless and he ratified reckless conduct.
Jury Instructions
Appellant asserts the trial court erred in not giving a special jury instruction it requested regarding the definition of " clear and convincing" evidence. The trial court instructed the jury with CACI No. 201, as follows:
" In this case, there are some specific facts that must be proved by the higher standard of clear and convincing evidence. This means the party must persuade you that it is highly probable that the fact is true.
" I will tell you specifically which of the facts must be proved by clear and convincing evidence. All the other facts will be proved if they are more likely to be true than not true." (Former CACI No. 201 (2004 ed.).)
Appellant's proposed special instruction would have inserted the following language between the two paragraphs of CACI No. 201:
" Clear and convincing evidence means evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact for which it is offered as proof. The evidence must be so clear as to leave no substantial doubt, sufficiently strong that after careful consideration it would command the unhesitating assent of every reasonable mind."
Appellant argues that without its proposed language, CACI No. 201 fails to provide an adequate description of the clear and convincing evidence standard. Appellant relies on In re Angelia P. (1981) 28 Cal.3d 908. In that case the Supreme Court said: " 'Clear and convincing' evidence requires a finding of high probability. This standard is not new. We described such a test, 80 years ago, as requiring that the evidence be '" so clear as to leave no substantial doubt" ; " sufficiently strong to command the unhesitating assent of every reasonable mind." '" (Id. at p. 919.)
Appellant admits that recent cases discussing the clear and convincing evidence standard have upheld CACI No. 201. (See Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847-850 (Mattco Forge); Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1165 (Weeks).)
In Mattco Forge, our colleagues in Division Three rejected an argument identical to that asserted by appellant--that the trial court erred in refusing to modify the clear and convincing evidence instruction with language substantially similar to that proposed by appellant. The appellate court held that neither Angelia P. nor any other authority required the use of any particular phraseology in defining clear and convincing evidence. In addition, the court questioned the Angelia P. language, finding it essentially no different from the criminal definition of reasonable doubt. The court also faulted the proposed instruction for improperly implying that juror unanimity is required for an award of punitive damages. The court concluded the proposed instruction would have misled the jury and properly was refused. (Mattco Forge, supra, 52 Cal.App.4th at pp. 847-850.)
In its reply brief, appellant argues Mattco Forge and Weeks were wrongly decided because more recent cases have applied the Supreme Court's definition of clear and convincing, " demonstrating that the definition indeed retains its vitality." These cases--People v. Semaan (2005) 133 Cal.App.4th 1445, 1453; Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594; Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1579; and In re Carl R. (2005) 128 Cal.App.4th 1051, 1060-1061--do not support appellant's argument. After briefing was completed, our Supreme Court granted review in People v. Semaan on February 8, 2006, No. S139685. The remaining three cases are not persuasive as they do not address the issue of whether CACI No. 201 is a proper jury instruction. Ampex Corp. is an anti-SLAPP case in which the court merely gave the definition of clear and convincing evidence in the language of the Angelia P. court without further discussion. Katie V. and Carl R. involve termination of parental rights where the child protective agency is required to prove by clear and convincing evidence that adequate reunification services were offered. Again, the courts simply gave the definition of clear and convincing evidence from Angelia P. These cases contain no discussion of the efficacy of CACI No. 201. We are not persuaded that Mattco Forge was wrongly decided.
The judgment is affirmed. Costs on appeal are awarded to the Camachos.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Horvitz & Levy, David M. Axelrad, Frank J. Menetrez, Wendy S. Albers; Hewitt & Prout, Stephen L. Hewitt, David S. Mayes for Defendant and Appellant.
Law Offices of Gregory L. Johnson, Gregory L. Johnson, Marc Anderson; Lascher & Lascher, Wendy C. Lascher for Plaintiffs and Respondents.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Apartment Manager Attorneys.
[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] Care Meridian-Oxnard is a residential facility for treatment of patients suffering from traumatic brain injury and other catastrophic neurologic disease, including patients in comas or on ventilators. Meridian Neurocare operates 10 such facilities.
[3] The complaint also contains an unlawful business practices claim under Business and Professions Code section 17200. That claim is not a subject of this appeal.
[4] A stage IV bedsore means that tissue has been eaten away down to the bone. (Delaney v. Baker (1999) 20 Cal.4th 23, 27.)
