Filed 1/25/18 Fee v. Kaiser Foundation Health Plan, Inc. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


RICHARD FEE,
Plaintiff and Appellant,
v.
KAISER FOUNDATION HEALTH PLAN, INC.,
Defendant and Respondent.

A150268

(San Francisco County
Super. Ct. No. CGC-16-551581)


This is an appeal from a trial court order granting a demurrer without leave to amend in favor of respondent Kaiser Foundation Health Plan (Kaiser Health Plan or Kaiser). The appellant was and is a self-represented litigant. Kaiser Health Plan is the lone defendant sued by appellant Richard Fee in the case. We have reviewed the record in the matter and agree with the decision of the trial court. We therefore affirm the judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 20, 2016, appellant filed a complaint for damages in the Superior Court of San Francisco County. He alleged two causes of action: the intentional infliction of emotional distress, and battery. He asked for compensatory and punitive damages.
In what would be best described as a lengthy, rambling complaint, appellant alleges several errors in the medical treatment he received from Kaiser medical professionals. He states he is a septuagenarian who has been a member of Kaiser for more than 60 years. He claims in 1995, when he was 52 years old, he was diagnosed with schizophrenia. Appellant alleges his mental condition developed after he had two back surgeries in January 1995 at Kaiser. As a result of the surgeries, the stress triggered the onset of schizophrenia. Appellant contends Kaiser doctors triggered this mental condition because of their medical work during the surgeries. Kaiser professionals also falsified his medical records to present the details of the two surgeries in a false light.
The initial surgery was to remove a lipoma on appellant’s back. He sustained arterial bleeding and a hematoma. Sometime after the first surgery, he had a conversation with a Kaiser doctor, which led him to believe his Kaiser surgeon, Dr. John Silvey, may have negligently caused the internal bleeding and hematoma. Additionally, the medical records for the second surgery indicate no complications took place during that procedure. According to the complaint, however, Dr. Angeles of Kaiser improperly cut appellant’s artery during the second procedure. The combined medical records from the two surgeries omit all the abuses that triggered the onset of appellant’s paranoid schizophrenia. In other words, the back surgeries “caused” appellant’s ongoing history of schizophrenia.
Appellant alleges he was a paranoid schizophrenic from 1995, after the surgeries, until 1999. He did not initially understand what caused his mental illness. He has gradually learned the errors by Kaiser doctors triggered the mental illness; with this understanding, the paranoia has lessened considerably, with only the schizophrenia remaining at this time.
Appellant alleges his primary care doctor at Kaiser, Dr. Lewis, was central in his development of schizophrenia during October 1995. He alleges Lewis “believed” appellant was not “Richard Fee.” Lewis alerted Kaiser’s National Fraud Control Program to investigate appellant for false impersonation. When appellant wrote Lewis about his concerns regarding the fraud investigation, Lewis turned over the correspondence to respondent.
Appellant alleges that Kaiser Health Plan continued to investigate him because it did not believe he was the patient who had the back surgeries in 1995 as indicated by the medical records. This triggered a fraud investigation by Kaiser Health Plan. Additionally, Kaiser Health Plan was suspicious of appellant based on reports from the “Hall of Justice” alleging he was involved in an assault and possible burglary where he was injured. This false allegation enhanced respondent’s fraud inquiry. Importantly, these allegations regarding alleged conduct by Kaiser Health Plan lack any level of specificity that would suggest conduct for which respondent would be liable. Additionally, there seems to be no alleged factual connection between any conduct by Kaiser Health Plan and appellant’s treatment by Kaiser medical personnel.
In 1997, Dr. Dena Positeri, a Kaiser psychologist, attempted to work with appellant on his mental illness. However, when she learned improper fraud techniques by Kaiser Health Plan were the cause of his mental illness (again without specificity), Positeri and her Kaiser staff covered up the records.
By 1999, appellant learned the details of this cover-up and false record-keeping by the Kaiser system. He obtained his medical records and discovered the false information contained in the documents. He reported his findings to Kaiser “Member Services.” He also decided to transfer from Kaiser services located in San Francisco to the facility in South San Francisco so he could avoid the improper conduct in the San Francisco location. Yet the generic but deliberate harm continued.
Another of the allegations in the complaint deals with Dr. Newman, a Kaiser professional, who had appellant placed in a psychiatric ward in 2011. Newman detailed several unspecified false statements regarding appellant, including claims that he made threats against Kaiser doctors, to create a “valid reason” for his being “locked up.”
This pattern of false reporting of appellant’s medical condition allegedly persisted into 2013. The complaint alleges various doctors falsified records on the mental condition of appellant to justify his schizophrenia diagnosis. While numerous medical professionals are identified in the complaint, the pleading lacks specific details regarding the deception he attributes to respondent. Appellant mentions Kaiser Health Plan but fails to connect it to the inaccurate medical entries by Kaiser providers.
On January 11, 2013, appellant alleges he last saw a Kaiser psychiatrist, Dr. Frederick Becker. The visits stopped on this date because Becker wrote “vicious falsehoods” in his records and would not correct the misstatements. Appellant has not seen a Kaiser therapist since that date.
On April 20, 2016, appellant filed his complaint. On June 15, 2016, respondent Kaiser Health Plan filed a demurrer and motion to strike. Respondent’s motions were denied without prejudice on July 22, 2016, due to failure to comply with Code of Civil Procedure section 430.41. On the same day, respondent refiled the two motions, along with a declaration in compliance with section 430.41.
On August 23, 2016, the San Francisco Superior Court granted the demurrer without leave to amend. The court found “[p]laintiff’s complaint asserts liability for acts committed by health care providers . . . [but] the demurring (and only named) defendant—Kaiser Foundation Health Plan, Inc.—is statutorily immune ‘from liability for acts committed by health care providers.’ ” Additionally, the motion to strike was granted as a result of the ruling on the respondent’s demurrer.
The judgment was entered on September 21, 2016, and served on September 27, 2016. Fee’s notice of appeal was filed on November 1, 2016.
DISCUSSION
When a demurrer is sustained without leave to amend, we must decide whether there is a reasonable possibility the defect can be cured by amendment. If it can, the court’s ruling will be viewed as an abuse of discretion; if not, there is no abuse of discretion and we will affirm the judgment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 947.) Before appellant can demonstrate an abuse of discretion by the trial court in sustaining a demurrer without leave to amend, he must demonstrate how the complaint can properly be amended to allege any cause of action sufficiently. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 285–286.) It is also correct an appellant can allege on appeal valid grounds to overrule the trial court’s order sustaining a demurrer without leave to amend. (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 668.) However, at no time in this case, even in his briefing before us, has appellant demonstrated such detail.
Respondent in this case, Kaiser Health Plan, Inc., is a licensed health care service plan arising under the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf. Code, § 1340 et seq.). Because it is a health care service plan, respondent does not directly provide medical care to its subscribers like appellant. It contracts with other Kaiser entities, Kaiser Foundation hospitals, and The Permanente Medical Group, Inc., to provide medical care to subscribers that enroll in its plans. (See Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696, 708.)
Health care service plans like respondent are immune from liability for acts committed by medical care providers under California Health and Safety Code section 1371.25 (section 1371.25). This section states: “A plan, any entity contracting with a plan, and providers are each responsible for their own acts or omissions, and are not liable for the acts or omissions of, or the costs of defending, others. Any provision to the contrary in a contract with providers is void and unenforceable.” (Italics added.) This language has been interpreted to preclude a determination that a health care service plan is vicariously liable for acts and omissions by health providers. (Martin v. PacifiCare of California (2011) 198 Cal.App.4th 1390, 1393 (Martin); Watanabe v. California Physicians’ Service (2008) 169 Cal.App.4th 56, 63–64 (Watanabe).)
It is clear appellant is asserting liability only against Kaiser Foundation Health Plan, Inc., in this complaint. “Richard [Fee] never asserts ‘liability’ for those sick acts by Kaiser health care providers because Richard understands Kaiser Foundation Health Plan, Inc. is statutorily immune from liability for acts committed by health care providers and is statutorily responsible only for its own acts” (citing section 1371.25) (italics added). He alleges respondent investigated him for insurance fraud, but fails to detail the specifics of respondent’s intentional infliction of emotional distress or battery. He simply alleges “Kaiser has a National Fraud Control Program that is out of control. Their investigators suspected me of three insurance frauds. The sick abuses against me from 1993 to 1999 were investigative techniques to try to unnerve me to get me to make incriminating statements against myself. They failed, as I committed no insurance frauds. But some of the abuses were so sick, they triggered schizophrenia in 1995 when I was 52 years old.”
Again, appellant fails to allege any specific acts directly done by respondent Kaiser Health Care that resulted in valid claims for intentional infliction of emotional distress or battery. Additionally, section 1371.25 precludes any theory of vicarious liability, such as aiding and abetting or conspiracy, against Kaiser Health Care, assuming the medical professionals handling appellant’s care “caused” his schizophrenia. (Watanabe, supra, 169 Cal.App.4th at pp. 63–64; Martin, supra, 198 Cal.App.4th at pp. 1400–1401.)
Appellant’s complaint by any standard fails to allege any “touching” sufficient to sustain a tort claim for battery by Kaiser Health Care. And to properly plead a cause of action for the intentional infliction of emotional distress, Fee must articulate facts that show extreme and outrageous conduct. The tort also requires the intent to cause severe emotional distress or the reckless disregard of the probability of causing such distress by respondent’s conduct, among other elements. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) The conclusionary statement in the complaint quoted above is devoid of fact, nor is the statement a reflection of the necessary intent for the specific tort. As has been stated by our Supreme Court, “[a] cause of action for intentional infliction of emotional distress must allege facts showing outrageous conduct which is intentional or reckless and which is outside the bounds of decency.” (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 5.)
In the complaint here, appellant alleges details of conduct by the medical providers at various Kaiser facilities. No facts are presented regarding the details of impropriety by respondent or how the conduct was outrageous and beyond the bounds of decency. No theory is stated that the respondent acted intentionally or with reckless disregard. The complaint here is, in a word, inadequate. The trial court acted correctly in granting a demurrer without leave to amend.
In light of our finding we need not address the additional arguments offered by respondent to the effect that appellant’s complaint is defective based on features of the statute of limitations. (See §§ 340.5, 335.1.) These arguments were not addressed by the trial court below. The trial court was comfortable sustaining the demurrer without leave to amend based on the requirements of section 1371.25, and the failure of appellant to properly plead as required by that statute. So are we.
DISPOSTION
For the reasons stated, the judgment is affirmed.


_________________________
Dondero, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Banke, J.




























A150268 Fee v. Kaiser Foundation Health Plan