Marchesano v. Dekkers

Filed 5/18/06  Marchesano v. Dekkers 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

                        Robert Marchesano, Richard Marchesano, Jr., and James Marchesno appeal from the judgment of dismissal entered in favor of Robert J. Dekkers, M.D. (Dekkers) on their action for wrongful death, negligence, and elder abuse.  The trial court sustained without leave to amend a demurrer to the second amended complaint on causes of action sounding in elder abuse, struck the punitive damages and noneconomic damages, denied a motion to add punitive damages, and granted judgment on the pleadings.  We affirm.

Facts and Procedural History

                        On August 6, 2001, appellants' 80-year-old father, Richard Marchesano (decedent), was transferred from a hospital to a Santa Paula skilled nursing facility owned and operated by Hardy/Shultz Management Group, L.L.C. (Hardy).  Dekkers was decedent's physician from August 6, 2001 to January 9, 2002. 

                        On October 26, 2001, decedent injured himself getting out of a wheelchair and was prescribed medication for leg pain.  A hip x-ray was taken, with negative findings.^[1]  Nevertheless, decedent complained to nursing facility staff that he was experiencing severe leg pain and requested that " additional"

x-rays be taken.  Dekkers did not examine decedent until his next regular rounds. 

                        On January 9, 2002, decedent was taken by family members to an orthopedist who diagnosed a fractured hip that was two to three months old.  Decedent was admitted to St. John's Medical Center, had hip surgery and transferred to a skilled nursing facility owned and operated by Kindred Nursing Centers West, L.L.C., where he died April 24, 2002. 

                        Appellants sued for negligence and wrongful death.  Dekkers filed a demurrer and appellants were granted leave to amend the complaint.  Appellants filed a second amended complaint for negligence, willful misconduct, intentional infliction of emotional distress, elder abuse, and wrongful death.  The first cause of action for negligence alleged that Dekkers breached a duty of ordinary care in providing for decedent's care and treatment.  

                        The second cause of action for willful misconduct stated that Dekkers did not promptly examine decedent after he injured himself.  It alleged that Dekkers failed to evaluate and re-evaluate decedent  and " acted with 'neglect' as defined in the Elder Abuse Act (Welf. & Inst. Code, §  15657) and with 'recklessness, malice, fraud, and oppression' as defined in the Elder Abuse Act."  

                        The remaining causes of action for intentional infliction of emotional distress, elder abuse, and wrongful death were based on the same willful misconduct allegations. 

                        Dekkers demurred and filed a motion to strike.  The trial court sustained the demurrer without leave to amend on the causes of action for willful misconduct, elder abuse, and intentional infliction of emotional distress.  The court struck the punitive damage allegations and prayer for non-economic damages, and denied a motion to add punitive damages pursuant to Code of Civil Procedure section 425.13.                          Appellants filed a third amended complaint for negligence and wrongful death that included causes of action for willful misconduct, intentional infliction of emotional distress, and elder abuse previously dismissed on demurrer.  Relying on Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, appellants renewed their motion to add punitive damages.  The trial court denied the motion on the ground that Covenant Care, Inc. v. Superior Court, supra, and Code of Civil Procedure section 425.13 did not permit appellants to add a claim for punitive damages.  Appellants filed a writ petition which we denied on August 4, 2004.  (B176794.) 

                        Thereafter, appellants dismissed the cause of action for wrongful death.  It was stipulated that the sole remaining cause of action was a survivor's claim for negligence and that appellants were not claiming economic damages.  The trial granted judgment on the pleadings on the ground that without economic damages, no cause of action for negligence was stated.  (See Code Civ. Proc., §  377.34 [survival statute bars pain and suffering damages].) 

Willful Misconduct

            We review the orders sustaining the demurrer and granting judgment on the pleadings do novo, exercising our independent judgment to determine whether a cause of action has been stated under any legal theory.  (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 788.)  We accept as true properly pleaded allegations of facts, but not contentions, deductions, or conclusions of fact or law.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  " The burden is on [appellants] to demonstrate the manner in which the complaint might be amended, and the appellate

court must affirm the judgment if it is correct on any theory.  [Citations.]"   (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445,459-460.)

                        The gravamen of the action is that Dekkers engaged in willful misconduct, entitling appellants to enhanced damages.  The trial court ruled that, because of the adoption of comparative negligence principles in California (see Li v. Yellow Cab Co. (1975) 13 Cal.3d 804), there is " no separate stand-alone cause of action for willful misconduct."   Appellants argue that recent cases continue to acknowledge the existence of this tort.  (See, Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729 [" willful or wanton misconduct is separate and distinct from negligence" ]; Delaney v. Baker (1999) 20 Cal.4th 23, 28; Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 434.) 

                        Assuming, arguendo, that the tort of willful misconduct is still viable, we conclude, as did the trial court, that sufficient facts have not been alleged to state a cause of action.  A conclusory allegation or general statement that Dekkers acted willfully or maliciously is not enough.  (See e.g., Johns-Mansville Sales Corp. v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 923, 931 [" No amount of descriptive adjectives or epithets may turn a negligence action into an action for intentional or willful misconduct'" ]; 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §  570, pp. 665-666 [general allegations of willful misconduct insufficient].) 

            The rule that pleadings should be liberally construed (Code Civ. Proc., §  452) does not assist a plaintiff who is afforded the opportunity to amend and fails to correct the pleading defect.  (Gruenberg v.A etna Ins. Co. (1973) 9 Cal.3d 566, 572-573, fn. 4; 4 Witkin, Cal. Procedure (4th ed. 1997) §  409, pp. 506-507.)  We reject the argument that appellants can successfully allege willful misconduct based on loose and equivocal averments that Dekkers " failed and refused" to arrange for decedent's treatment.  (See e.g., Risco v. Reuss (1941) 45 Cal.App.2d 243, 245 [general allegations of trespass a subterfuge].)  " Where a plaintiff relies upon willful misconduct there are sound reasons why he should be required to state the facts more fully than in ordinary negligence cases so that it may be determined whether they do constitute willful misconduct rather than negligence or gross negligence."   (Snider v. Whitson (1960) 184 Cal.App.2d 211, 214.)

            Willful misconduct requires some intentional act embodying a degree of malice that provides a basis for punitive damages.  (Hillard v. A. H. Robbins Co. (1983) 148 Cal.App.3d 374, 392.)  " Unlike negligence, which implies a failure to use ordinary care, and even gross negligence, which connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results, willful misconduct is not marked by a mere absence of care.  Rather, it ' " 'involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.' " '  [Citations.]  So, for example, a person who commits an assault and battery may be guilty of willful misconduct [citations] but a person who fails to perform a statutory duty, without more, is not guilty.  [Citations.]'  While the word 'willful' implies an intent, the intention must relate to the misconduct and not merely to the fact that some act was intentionally done.  [Citations.]  Thus, even though some cases of negligence may involve intentional actions, the mere intent to do an act which constitutes negligence is not enough to establish willful misconduct.  [Citations.]"   (Calvillo-Silva v. Home Grocery, supra, 19 Cal.4th at pp. 729-730.)

            The second amended complaint alleges that Dekkers failed to " assess and re-assess"   decedent and failed to care and treat an undiagnosed hip fracture.  It states that decedent and decedent's family " repeatedly complained to nursing staff that Decedent was experiencing severe pain []in his left leg, and requested that additional x-rays be taken, and that Decedent be re-evaluated to determine the cause of his continued pain."  

            The trial court ruled:  " There are no allegations as to what Dr. Dekkers' prior relationship to the decedent was.  There are no allegations whether he was a regular patient.  There are no allegations if or when Dekkers was ever advised of the decedent's complaints, and there are no other facts at all with respect to Dekkers, merely these conclusions.  [¶]    As I read paragraph 24 of the Second Amended Complaint, I infer . . . that Dekkers was not even apprised by Hardy staff of the decedent's condition, and the plaintiffs didn't factually allege that they sought Dekkers' help, so this falls far short of establishing any willful misconduct . . . ."  

            We concur.  No facts are alleged that Dekkers was advised of decedent's complaints, recklessly disregarded decedent's medical condition, refused to treat decedent, or abandoned decedent as a patient.  The allegation that Dekkers failed to examine decedent until his next regular rounds and failed to arrange a consultation until January 9, 2002, is an allegation of simple negligence. 

            Willful misconduct requires actual or constructive knowledge of the peril to be apprehended, and a conscious failure to act to avoid the peril.  (Calvillo-Silva v. Home Grocery, supra, 19 Cal.4th at p. 730.)  The failure to diagnose and treat a hip fracture is not willful misconduct.  " ' " Wilful misconduct" means something different from and more than negligence, however gross.' "   (Mercer-Fraser Co. v. Industrial Acc. Com.(1953) 40 Cal.2d 102, 117.) 

            Appellants claim that Dekkers' failure to observe federal and state nursing home regulations is tantamount to willful misconduct.  We reject the argument.  A defendant who fails to perform a statutory duty, without more, is not guilty of willful misconduct.  (Calvillo-Silva v. Home Grocery, supra, 19 Cal.4th at p. 729.)  Evidence Code section 669 provides that violation of a regulation creates a presumption of negligence, but no court has held that it is per se willful misconduct.  (See, California Service Station v. American Home Assurance Company (1998) 62 Cal.App.4th 1166, 1178-1179 [Evidence Code section 669 presumption does not apply to intentional torts]; Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 429-430 [Evid. Code, §  669 concerns the standard of care, not the duty of care].) 

Elder Abuse

            Appellants argue that the failure to examine decedent until Dekkers made his next regular rounds constitutes " neglect" under the Elder Abuse Act.  (Welf. & Inst. Code, §  15610.57).^[2]  Elder abuse claims, however, are based on custodial neglect rather than professional negligence.  (Country Villa Healthcare Center, Inc. v. Superior Court, supra, 120 Cal.App.4th at p. 432.)  The Elder Abuse Act does not provide a remedy for injuries or damages caused by the professional negligence of a health care provider.^[3]  (§  15657.2; Community Care & Rehabilitation Center v. Superior Court (2000) 79 Cal.App.4th 787, 793 [disapproved on other grounds in Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 791, fn. 12].)  Elder abuse requires reckless neglect or intentional abuse by the elder's custodian or care giver.  (Smith v. Ben Benenett, Inc. (2005) 133 Cal.App.4th 1507, 1522.) 

            In Delaney v. Baker (1999) 20 Cal.4th 23, our Supreme Court held that " the explicit exclusion of 'professional negligence' in section 15657.2, make[s] clear the Elder Abuse Act's goal was to provide heightened remedies for . . . 'acts of egregious abuse' against elder and dependent adults [citation], while allowing acts of negligence in the rendition of medical services . . . to be governed by laws specifically applicable to such negligence.  That only these egregious acts were intended to be sanctioned under section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened 'clear and convincing evidence' standard."   (Id., at p.  35.)

            Appellants may not recast the medical malpractice action as a claim for elder abuse.^[4]  (See, Community Care & Rehabilitation Center v. Superior Court, supra, 79 Cal.App.4th  at p.  797; Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 786.)  " Delaney makes clear that a cause of action for custodial elder abuse against a health care provider is a separate and distinct cause of action from one for professional negligence . . . .  [E]gregious acts of elder abuse are not governed by laws applicable to negligence.  Specifically, section 15657.2 was enacted 'to make sufficiently clear that 'professional negligence" was beyond the scope of section 15657.'  [Citation.]"   (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 124.) 

                        The second amended complaint states that Dekkers provided for decedent's " care and custody"   and " acted with 'neglect' as defined in the Elder Abuse Act,"   but these allegations are general conclusions.  No facts are alleged that Dekkers was a custodial care giver, committed acts of egregious abuse, or recklessly neglected decedent within the meaning of the Elder Abuse Act.  (See e.g., Smith v. Ben Bennett, Inc., supra, 133 Cal.App.4th at p. 1522.)

            The allegation that Dekkers was criminally negligent and violated Penal Code section 368 adds nothing.  Penal Code section 368 reaches two categories of offenders: " (1) any person who willfully causes or permits an elder to suffer, or who directly inflicts, unjustifiable pain or mental suffering on any elder, and (2) the elder's caretaker or custodian who willfully causes or permits injury to his or her charge, or who willfully causes or permits the elder to be placed in a dangerous situation."   (People v. Heitzman (1994) 9 Cal.4th 189, 197.) 

            Dekkers was not a caretaker or a custodian and did not " willfully" permit decedent to suffer unjustifiable pain.  To impute liability, Dekkers " must stand in a special relationship to the individual inflicting the abuse on the elder such that the defendant is under an existing duty to supervise and control that individual's conduct."   (People v. Heitzman, supra, 9 Cal.4th at p. 212.) 

            The second amended complaint states that nursing facility staff called decedent a " cry baby" and that decedent's family complained to the head nurse.  No facts are alleged that complaints were made to Dekkers, that Dekkers was aware of the complaints, that decedent was abused in Dekkers' presence, or that Dekkers had an existing duty to supervise and control the nursing facility staff. 

            In order to state a cause of action under the Elder Abuse Act, " a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. [Citations.]"   (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 789.)  Those allegations are missing here.

Intentional Infliction of Emotional Distress

                        Appellants' claim for intentional infliction of emotional distress is equally without merit.  The tort requires extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, plaintiff's severe emotional distress.  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)  " Thus, '[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware." (Id., at p.  1002.) 

                        Here no facts are alleged that Dekkers engaged in outrageous conduct, knew that nursing facility staff was abusing decedent, or delayed examining or referring decedent to a specialist in order to cause decedent to suffer sever emotional distress.

Punitive Damages

                        The trial court struck the punitive damages because no specific facts were alleged that Dekkers acted with recklessness, malice, oppression or fraud. (See e.g., Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  Appellants, in their opening brief, have failed to brief the issue of whether the trial court erred in denying the motions to add punitive damages.  (Code Civ. Proc., §  425.13.)  We treat the point as waived.  (9 Witkin, Cal. Procedure (4th. ed. 1997) Appeal, §  594, p. 627; People v. Stanley (1995) 10 Cal.4th 764, 793.)

Judgment on the Pleadings

                        The trial court granted judgment on the pleadings on the third amended complaint after appellants dismissed the wrongful death claim and waived economic damages on the sole remaining cause of action for negligence.  Under the California survival statute, appellants could not recover damages for decedent's pain and suffering.  (Code Civ. Proc., §  377.34; 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, §  68, p. 126.)  The trial court correctly found that without damages, no cause of action was stated for negligence.  " It is a fundamental principle that a negligent act does not give rise to liability without damages." (6 Witkin, Summary of Cal Law (9th ed 1988) Torts, §  1315, p. 775; Duarte v. Zachariah (1994) 22 Cal.App.4th 1652, 1661-1662 [nominal damages cannot be recovered in negligence actions].) 

                        Appellants assert that the negligence cause of action is actually a claim under the Elder Abuse Act which permits damages for decedent's pain and suffering.  (§  15657, subd. (b); ARA Living Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1563.)  We reject the argument because the elder abuse cause of action was dismissed on demurrer.  Appellants may not do an " end run" around the order based on the theory that the negligence action is as an action for elder abuse.  (Code Civ. Proc., §  436, subd. (b); Ricard v. Grobstein, Goldman, Stevenson, Siegel, Le Vine & Mangel (1992) 6 Cal.App.4th 157, 162 [pleadings may not be used to circumvent prior ruling on demurrer].) 

                        Appellants are also estopped by their stipulation that the sole remaining cause of action is for negligence.  The third amended complaint contains boilerplate allegations of elder abuse, but alleges nothing new.  Judgment on the pleadings was properly granted.

                        Appellants' remaining arguments have been considered and merit no further discussion.

                        The judgment is affirmed.  Dekkers is awarded costs on appeal.

                        NOT TO BE PUBLISHED.

                                                                        YEGAN, Acting P.J.

We concur:

                        COFFEE, J.

                        PERREN, J.

Vincent O'Neill, Jr., Judge

Superior Court County of Ventura

______________________________

                        Russell S. Balisok, Steven C. Wilheim and Patricia L. Canner; Balisok & Associates, Inc., for Appellants. 

                        James N. Procter, Andy H. Viets and Gabriele Mezger-Lashly; Procter, McCarthy & Slaughter, for Respondent.

                        Thelen Reid & Priest; Curtis A. Cole and Kevin E. McReynolds, Amici Curiae, for Respondent. 

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^[1] This hip x-ray is not alleged in the complaint but was admitted during the course of the law and motion proceedings.  We exercise restraint and do not comment further on this pleading omission. 

^[2] All statutory references are to the Welfare and Institutions Code unless otherwise stated.  Section 15610.57, subdivision (a)(1) defines neglect as:  " 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 in a like position would exercise."   (Italics added.)

^[3] Section 15657.2 states:  " Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action."

^[4] Stated another way, the Elder Abuse Act " works like a toggle switch.  If a claim is a 'cause of action . . . based on . . . professional negligence,' then 'those laws which specifically apply to . . . professional negligence causes of action' apply, and the Elder Abuse Act does not.  If, on the other hand, a claim is not a 'cause of action . . . based      on . . . professional negligence,' then the Elder Abuse Act can apply. . ."   (Smith v. Ben Bennett, Inc., supra, 133 Cal.App.4th at pp. 1522-1523.)