McCourt v. Regents

Filed 4/7/10 McCourt v. Regents CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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This appeal follows the successful demurrer of defendants the Regents of the University of California, Joseph Dunn, Lisa Trask and Carol Robinson (collectively, the Regents) and subsequent judgment dismissing claims against them by plaintiffs Christy Adams, Shelly Bergum, Kevin Bleasdale, Gina Cates, Maureen Murphy, Jennifer Nobel, Francis Noriega, Jina Scarr and Allison Shuken (hereafter the dismissed plaintiffs).

Inasmuch as plaintiffs counsel has failed to include in the record a copy of the dismissed plaintiffs third amended complaint‑‑even after this deficiency was brought to his attention by defendants‑‑we find the dismissed plaintiffs cannot show the trial court erred in sustaining the demurrer and entering judgment in defendants favor. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The lawsuits

The dismissed plaintiffs are parties to one of four actions (hereafter, four actions) brought in Sacramento County Superior Court by current and/or former employees of the University of California, Davis Medical Center (UCDMC):

1. William McCourt et al. v. Regents of the University of California et al. (2008, No. 06AS02779) (hereafter the McCourt action);

2. Diana Pearson et al. v. Regents of the University of California et al. (2008, No. 06AS02780) (hereafter the Pearson action);

3. Linda Munyer v. Regents of the University of California et al. (2008, No. 06AS02781); and

4. Christy Adams et al. v. Regents of the University of California et al. (2008, No. 06AS02782) (hereafter the Adamsaction).

No complaint filed by the dismissed plaintiffs in the Adamsaction, whose claims are dismissed by the demurrer at issue here, appears in the record on appeal.[1] Accordingly, we cannot describe with specificity the claims raised by these particular plaintiffs against the defendants.

However, it appears the four actions are related[2] and that the plaintiffs in all four actions were nurses, pediatric intensive care nurses, other support staff members, supervisors, managers or otherwise non-management employees who worked for the Life Flight program, which transported seriously ill patients to UCDMC by helicopter. The claims of plaintiffs in all four actions seem to arise in part from the decision by UCDMC to discontinue the Life Flight program in October 2004 and from the job losses that followed.

The demurrer to the third amended complaint

The record on appeal relating to the appeal by the dismissed plaintiffs is confusing and incomplete. It contains:

a. The third amended complaint filed in the Pearson action. This complaint alleges the Regents unlawfully retaliated against the plaintiffs after they complained about actions they believed were compromising patient health, in violation of Government Code section 12940, subdivision (g); unlawfully discriminated against the plaintiffs based on their age; and intentionally inflicted emotional distress on the plaintiffs by discriminating and retaliating against them. The individual defendants were alleged to have joined in the intentional infliction of emotional distress.

b. Defendants notice of demurrer and demurrer to the third amended complaint, which bears the caption of the McCourt action and in which defendants argue plaintiffs failed to properly plead that plaintiffs had engaged in conduct protected by Government Code section 12940, subdivision (g) and failed to sufficiently plead an intentional infliction of emotional distress claim against any defendant.

c. Plaintiffs Opposition(s) to Defendants Demurrer(s), which bears the captions and respective case numbers of all four actions, showing that they had been consolidated, although the consolidation order itself is not part of the record.[3]

d. Order Following Hearing on Defendants Demurrer to Plaintiffs Third Amended Complaint. This document bears the caption of the McCourt action (without referencing the consolidation) but pertains largely to the claims of the plaintiffs in the Adams action: It orders that Plaintiffs Christy Adams, Shelly Bergum, Kevin Bleasdale, Gina Cates (erroneously named as Gina Coats), Maureen Murphy, Jennifer Nobel, Francis Noriega, Jina Scarr, and Allison Shuken no longer have any viable claims pled against Defendant Regents of the University of California, [and] these Plaintiffs are dismissed from the case and judgment is granted in favor of Defendant Regents of the University of California as to these Plaintiffs.[4] (Some capitalization omitted.) The court also dismissed the intentional infliction of emotional distress claims by all the plaintiffs named above, against all defendants.[5]

There is no minute order of the hearing on defendants demurrer or demurrers and no reporters transcript of the hearing on any demurrer.

DISCUSSION

Our task in this appeal has been made onerous by the state of the record on appeal. Defendants responsive brief characterizes the state of the record as haphazard and needlessly confusing. We agree. The record on appeal is both confusing and incomplete: Specifically, the third amended complaint of the plaintiffs whose claims were dismissed following the demurrer is not in the record.

Providing an adequate record is the plaintiffs responsibility, as they are the appellants. The appellant assumes the burden of showing reversible error by an adequate record. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433.) It is the burden of appellant to provide an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate review and results in affirmance of the trial courts determination. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) It is axiomatic that an order of the lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1398; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

The dismissed plaintiffs failure to provide a copy of the complaint as to which the demurrer was sustained prevents our consideration of this appeal. We independently review the ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) This means we review the operative complaint and, in so doing, we assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We are bound to construe the pleading in a reasonable manner and read the allegations in context. (Ibid.) Thereafter, we affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial courts stated reasons. (Aubry v. Tri-City Hospital Dist.(1992) 2 Cal.4th 962, 967.) Defendants correctly note in their responsive brief that, in reviewing the demurrer de novo, it is important to know precisely what facts were actually alleged by [the dismissed] Plaintiffs in support of their statutory retaliation cause of action.

Defendants also assert that [t]he factual allegations in the first cause of action for retaliation in the [third amended complaints] of the four consolidated actions were substantially quite similar, which allowed the Regents to file a single, unified demurrer as to all of the consolidated actions (under the McCourt lead case number) while attaching the actual pleadings in the trial court. The allegations, however, are not identical, and the exact pleading by [the dismissed] Plaintiffs in case No. 06AS02782 (Adams) should have been specifically designated by [said] Plaintiffs for their record on appeal. It was not.

Alerted to their failure to provide the operative complaint, the dismissed plaintiffs did not move to augment the record to include it. Rather, they merely retort in their reply brief that as this court can discern from the record, there is absolutely no difference in any of the relevant facts, argument, law and/or rulings/judgments in these four (4) consolidated matters. Plaintiffs are mistaken. The state of the record does not allow us to draw any such conclusion. While we can imagine from the record that the arguments and allegations are generally similar, such imaginings cannot form the basis for a de novo review of a complaint that is not before us.

Because the dismissed plaintiffs have failed to provide an adequate record on appeal, they cannot demonstrate error.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

I concur:

BLEASE , Acting P. J.

I concur in the majority opinion.

I write separately to state that, in my view, even if the complaint of Diana Pearson and Christine Murillo (to which appellants were not parties) is treated as the operative pleading, appellants lose on the merits.

The relevant allegations of the Pearson complaint are as follows:

11. On or about April of 2003, defendant Regents implemented a process to downsize the Life Flight services previously provided to Northern California at UCDMC. Plaintiffs were among the Life Flight nurses and support staff who perceived a risk to patient safety and a risk to the safety of the public at large due to this action by defendant, and began to protest this act.

12. The Life Flight nurses and support staff first protested this move by defendant Regents within UCDMC. They voiced their concerns to many administrators of UCDMC, including but not limited to, Robert Chason, Carol Robinson, Joseph Silva, and Lisa Trask.

13. When no positive results were achieved from communication within UCDMC, the Life Flight nurses and support staff next protested this move by defendant Regents by going outside the organization and contacting U.S. Congressional members, California Legislators, the Risk Management Department for UCDMC, the California Childrens Services, the State of California State Auditors office, the Department of Health Services and the Joint Commission on the Accreditation of Hospitals.

14. On or about October 12, 2004, UCDMC terminated/closed the Life Flight program, demoted Plaintiffs and laid off the Life Flight nurses and support staff in retaliation for their reporting of their concerns about increased risk of patient harm due to defendants decision.

Appellants contend the Regents violated Government Code section 12940, subdivision (g), which provides that it is an unlawful employment practice:

(g) For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.

Penal Code section 11161.8, in turn provides:

Every person, firm, or corporation conducting any hospital in the state, or the managing agent thereof, or the person managing or in charge of such hospital, or in charge of any ward or part of such hospital, who receives a patient transferred from a health facility, as defined in Section 1250 of the Health and Safety Code or from a community care facility, as defined in Section 1502 of the Health and Safety Code, who exhibits a physical injury or condition which, in the opinion of the admitting physician, reasonably appears to be the result of neglect or abuse, shall report such fact by telephone and in writing, within 36 hours, to both the local police authority having jurisdiction and the county health department. [] Any registered nurse, licensed vocational nurse, or licensed clinical social worker employed at such hospital may also make a report under this section, if, in the opinion of such person, a patient exhibits a physical injury or condition which reasonably appears to be the result of neglect or abuse. [] Every physician and surgeon who has under his charge or care any such patient who exhibits a physical injury or condition which reasonably appears to be the result of neglect or abuse shall make such report. [] The report shall state the character and extent of the physical injury or condition. [] No employee shall be discharged, suspended, disciplined, or harassed for making a report pursuant to this section. [] No person shall incur any civil or criminal liability as a result of making any report authorized by this section.

Government Code section 12940, subdivision (g), and Penal Code section 11161.8 itself prohibit retaliation against an employee who has made a report pursuant to Penal Code section 11161.8.

A report pursuant to Penal Code section 11161.8 is made to both the local police authority having jurisdiction and the county health department.

According to the allegations of the Pearson complaint, appellants did not make a report to either the local police or the county health department. Therefore, they did not make a report pursuant to Penal Code section 11161.8. It follows that they are not protected from adverse employment action by either Government Code section 12940, subdivision (g), or by Penal Code section 11161.8 itself.

In other words, even if appellants had furnished an adequate record for review, they would lose on the merits.

SIMS , J.

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[1] Two complaints do appear in the record on appeal: the second amended complaint filed in the McCourt action and the third amended complaint filed in the Pearson action.

[2] The Biegler Law Firm appears to have represented all plaintiffs in the trial court and represents the dismissed plaintiffs in this appeal.

[3] The parties apparently stipulated‑‑prior to defendants demurrer to the second amended complaint‑‑that all four matters should be consolidated for all law and motion purposes into the McCourt action(No. 06AS02779).

[4] The court granted two plaintiffs leave to amend as to the first cause of action for retaliation: Edward Novicki (a plaintiff in the McCourt action) and Donna Pisarski (a plaintiff in the Adams action.)

[5] The order also states that the courts tentative ruling on the demurrer is incorporated by reference and that a copy is attached thereto; the record does not contain the incorporated attachment.