Martin v. Sutter Valley Hospitals CA3 ( 2021 )

Filed 10/5/21 Martin v. Sutter Valley Hospitals 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Amador)
----
KIMBERLY ANN MARTIN, C091462
Plaintiff and Appellant, (Super. Ct. No. 18CVC10524)
v.
SUTTER VALLEY HOSPITALS et al.,
Defendants and Respondents.
Plaintiff Kimberly Martin brought this action against defendant Sutter Valley
Hospitals, doing business as Sutter Amador Hospital, after she was denied access to her
17-year-old son following a car accident. The trial court granted summary judgment in
favor of defendant on plaintiff’s causes of action for intentional and negligent infliction
1
of emotional distress and child abduction. This appeal followed. We affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
In the early morning hours of June 28, 2017, plaintiff’s 17-year-old son, Dustin
Martin (Dustin),1 was involved in a car accident. The car Dustin was driving struck a
cow on a rural road in Amador County and he was taken to the Sutter Amador Hospital
emergency room (ER) by ambulance.
Dustin suffered only a superficial cut on his chin and was not seriously injured,
although his passenger was. He was not given any medications and was lucid and alert at
the ER. He told an ER technician, who was a friend of plaintiff’s and knew Dustin, that
he had contacted his father about the accident but not his mother (i.e., plaintiff),
explaining that he was living with his father and did not want to see or speak to plaintiff.
When Dustin’s father arrived at the ER, he consented to Dustin’s treatment.
After plaintiff arrived at the ER,2 she was informed that Dustin was not seriously
injured and that he did not want to see her.3 She called the police to assist her in
obtaining access to Dustin but the responding officer was unable to assist her. She
eventually left the ER without seeing Dustin.
1 Because Dustin and his mother share the same last name, we refer to him by his first
name to avoid any confusion.
2 According to plaintiff, she received a phone call from a “third party” who informed her
that Dustin had been in an accident. That person, however, had no knowledge of the
nature and severity of Dustin’s injuries, “although they were represented to be serious.”
3 It is undisputed that, after plaintiff arrived at the ER, she was informed that Dustin was
not seriously injured. She claimed that a police officer told her this information; other
evidence showed that a doctor had told her that Dustin was not seriously injured.
2
At the time of the accident, defendant had a written visitation policy which
allowed all patients, including minors, to receive or decline visitors. It is undisputed that
defendant denied plaintiff access to Dustin solely based on his request. It is also
undisputed that Dustin and plaintiff were estranged and not speaking to each other at the
time of the accident. Several weeks earlier, they had been in a verbal and physical
altercation. Thereafter, Dustin stayed with his father and refused all attempts by plaintiff
to communicate with him.
Procedural Background
In April 2018, plaintiff filed this action against defendant, alleging causes of
action for intentional and negligent infliction of emotional distress and child abduction.
The claims were predicated on defendant’s failure to provide plaintiff material
information about Dustin’s medical condition and refusal to allow her to visit with him.
In March 2019, defendant filed a motion for summary judgment. In support of its
motion, defendant submitted a declaration from Kathryn Biasotti, a registered nurse with
a Master of Business in Healthcare Administration and over 23 years of experience as a
corporate compliance officer and risk manager for hospitals. Among other things,
Biasotti opined that defendant’s written visitation policy was appropriate and consistent
with applicable privacy laws and regulations as well as the visitation policies of other
hospitals.
In October 2019, the trial court granted defendant’s motion for summary
judgment. In doing so, the court sustained several objections to plaintiff’s declaration
and overruled several objections to Biasotti’s declaration,4 including plaintiff’s
contention that portions of Biasotti’s declaration should be excluded because this case did
not present any issue on which expert testimony was proper. The court stated:
4 Plaintiff did not object to Biasotti’s declaration on the ground that she lacked the
qualifications to render an expert opinion.
3
“Biasotti’s expert opinion as to [defendant’s] policies and whether they are appropriate,
consistent with applicable privacy law and regulations is sufficiently beyond common
experience and would assist the trier of fact. Further, it is relevant to the first cause of
action for intentional infliction of emotional distress as to whether [defendant] engaged in
extreme or outrageous conduct.”
Plaintiff timely appealed.
DISCUSSION
I
Standard of Review
“Because this case comes before us after the trial court granted a motion for
summary judgment, we take the facts from the record that was before the trial court when
it ruled on that motion. [Citation.] ‘ “We review the trial court’s decision de novo,
considering all the evidence set forth in the moving and opposing papers except that to
which objections were made and sustained.” ’ [Citation.] We liberally construe the
evidence in support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1037.)
A defendant moving for summary judgment has the burden of showing that a
cause of action has no merit by demonstrating one or more elements of the cause of
action cannot be established or that a complete defense to that cause of action exists.
(Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant successfully meets this burden,
the plaintiff then has the burden of setting forth specific facts showing the existence of
one or more triable issues of material fact. (Ibid.) “There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the [plaintiff] . . . in accordance with the applicable standard
of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The trial court
shall grant the defendant’s summary judgment motion if there is no triable issue as to any
4
material fact and that party is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c).)
Although we independently assess the granting of a motion for summary
judgment, our review is governed by fundamental principles of appellate procedure,
including that the judgment or order of the lower court is presumed correct, and thus,
error must be affirmatively shown. Under this principle, the appellant bears the burden of
establishing error on appeal, even though the respondent had the burden of proving its
right to summary judgment before the trial court. (Paslay v. State Farm General Ins. Co.
(2016) 248 Cal.App.4th 639, 645.)
II
Intentional Infliction of Emotional Distress
Plaintiff contends the trial court erred in granting summary judgment because the
evidence supported a finding that defendant’s conduct was extreme and outrageous such
that it permitted recovery under an intentional infliction of emotional distress theory. We
disagree.
A cause of action for intentional infliction of emotional distress requires proof of:
(1) extreme and outrageous conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional distress; (2) the plaintiff
suffered severe emotional distress; and (3) the defendant’s extreme and outrageous
conduct was the actual and proximate cause of the severe emotional distress. (Hughes v.
Pair (2009) 46 Cal.4th 1035, 1050 (Hughes).)
A defendant’s conduct is considered to be outrageous if “it is so ‘ “ ‘extreme as to
exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation] And
the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the
realization that injury will result.’ ” ’ ” (Hughes, supra, 46 Cal.4th at pp. 1050-1051; see
also Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)
5
“Liability for intentional infliction of emotional distress ‘ “does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” ’ ”
(Hughes, supra, 46 Cal.4th at p. 1051.) “ ‘Liability has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community. Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his resentment against the actor, and
lead him to exclaim, “Outrageous!” ’ ” (Crouch v. Trinity Christian Center of Santa Ana,
Inc. (2019) 39 Cal.App.5th 995, 1007.) “It is for the court to determine in the first
instance whether the defendant’s conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240,
1265.)
We agree with the trial court that defendant’s conduct in this case was not extreme
and outrageous such that it even arguably supported a cause of action for intentional
infliction of emotional distress. The record discloses that, after plaintiff arrived at the
ER, she was informed that Dustin was not seriously injured. The record is clear that
plaintiff was denied access to Dustin based solely on his clearly expressed preference,
and that defendant’s conduct in doing so was in conformity with its written visitation
policy. That policy states, in relevant part: “All hospitalized patients have the right to
have visitors of their choice during their stay, unless visitation interferes with the well-
being, rights or safety of others, or is not medically indicated in the patient’s care.
Patients may receive visits from visitors of their choice. Patients also have the right to
withdraw or deny consent to visitation any time.” The uncontradicted expert evidence
showed that defendant’s visitation policy was appropriate and consistent with applicable
privacy laws and regulations as well as the visitation policies of other hospitals. Plaintiff
has not directed us to any law, regulation, or evidence (e.g., expert testimony or
declaration) supporting the conclusion that defendant was required to provide
6
information to plaintiff about Dustin’s medical condition or allow her to visit with Dustin
against his wishes. Thus, the trial court properly granted summary judgment.
Defendant’s conduct could not be reasonably regarded as so extreme and outrageous to
permit recovery. It certainly did not exceed all bounds of conduct usually tolerated in a
civilized community; indeed, there is no evidence that defendant’s conduct was
inappropriate in any way given the circumstances.
We reject plaintiff’s contention that the trial court improperly relied on expert
evidence in granting summary judgment in favor of defendant. “ ‘The same rules of
evidence that apply at trial also apply to the declarations submitted in support of and in
opposition to motions for summary judgment.’ ” (Fernandez v. Alexander (2019)
31 Cal.App.5th 770, 779.) Expert opinion evidence is admissible when it is “[r]elated to
a subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) The trier of fact need not
be wholly ignorant of the subject matter of the expert’s opinion in order to justify its
admission; expert opinion may be admitted whenever it would assist the trier of fact, and
will be excluded only when it would add nothing at all to the trier of fact’s common fund
of information, i.e., when “ ‘ “ ‘the subject of inquiry is one of such common knowledge
that men of ordinary education could reach a conclusion as intelligently as the
witness.’ ” ’ ” (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1169.) Expert
opinion evidence may concern an ultimate issue of fact, but is inadmissible if it concerns
a question of law. (Id. at pp. 1178-1179; see WRI Opportunity Loans II, LLC v. Cooper
(2007) 154 Cal.App.4th 525, 532, fn. 3 [expert opinion that amounts to a legal conclusion
is improper].) Evidence expressing an expert’s belief as to how the case should be
decided is also impermissible. (Burton v. Sanner (2012) 207 Cal.App.4th 12, 20-21; see
WRI Opportunity Loans, at p. 532, fn. 3 [“ ‘ “manner in which the law should apply to
particular facts is a legal question and is not subject to expert opinion” ’ ”].) We review a
trial court’s ruling on the admission of expert evidence for abuse of discretion. (Sargon
7
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) A
court abuses its discretion if its ruling is “ ‘so irrational or arbitrary that no reasonable
person could agree with it.’ ” (Ibid.)
Plaintiff has not shown an abuse of discretion. Contrary to plaintiff’s contention,
Biasotti’s declaration contained relevant evidence that was “sufficiently beyond common
experience” it would assist the trial court in ruling on defendant’s motion for summary
judgment, and Biasotti did not offer an impermissible legal opinion on the question of
whether defendant engaged in extreme and outrageous conduct. Instead, after describing
her education and extensive experience in healthcare administration, which included
knowledge about the privacy rights of patients under federal and state laws and
regulations, Biasotti opined that defendant’s visitation policy was appropriate and
consistent with applicable privacy laws and regulations as well as the visitation policies
of other hospitals.5 Biasotti also opined that, under the circumstances of this case, it was
appropriate for defendant to deny plaintiff access to Dustin. We see no evidentiary error.
The propriety of defendant’s visitation policy and defendant’s conduct in conformity
therewith was a key issue in this case. Biasotti’s declaration was relevant and admissible
evidence on this issue.
5 Biasotti obtained a Bachelor of Science in nursing and a Master of Business in
Healthcare Administration. From 1988 to 2017, she worked for Barton Healthcare
System in South Lake Tahoe. Between 1994 and 2017, her primary responsibilities and
oversight included risk, quality management, and system corporate compliance. At the
time she executed her declaration, she was the owner and operator of a consulting
business, which involved working with healthcare clients on setting policies for
compliance with applicable laws and regulations. She was also working as a risk
manager for a hospital. She explained that, based on her experience, she was
knowledgeable about state and federal laws and regulations governing hospitals on a
variety of topics, including the privacy rights of patients with respect to receiving and
declining visitors.
8
III
Negligent Infliction of Emotional Distress
Plaintiff contends the trial court erred in granting summary judgment because the
evidence supported a finding that defendant owed her a duty of care to permit recovery
under a negligent infliction of emotional distress theory. She argues defendant owed her
a duty not to interfere with the parent-child relationship. We disagree.
“Negligent infliction of emotional distress is not an independent tort; it is the tort
of negligence to which the traditional elements of duty, breach of duty, causation, and
damages apply.” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 126 (Ess);
see also Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 (Burgess); Marlene F. v.
Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.) Damages for
negligent infliction of emotional distress are recoverable even in the absence of physical
injury or impact to the plaintiff. (Burgess, at pp. 1074, 1079.)
Although plaintiff does not expressly allege a direct victim theory of liability, it is
clear from the allegations in the complaint that she is relying on such a theory. Where a
plaintiff relies on a direct victim theory of negligent infliction of emotional distress
liability, damages may only be recovered when they result from “a breach of duty owed
the plaintiff that is ‘assumed by the defendant or imposed on the defendant as a matter of
law, or that arises out of a relationship between the two.’ ” (See Burgess, supra, 2
Cal.4th at p. 1073; id. at pp. 1071-1073 [explaining difference between direct victim and
bystander theories of negligent infliction of emotional distress liability].)6 Absent a duty
6 “The distinction between the ‘bystander’ and ‘direct victim’ cases is found in the
source of the duty owed by the defendant to the plaintiff.” (Burgess, supra, 2 Cal.4th at
p. 1072.) While direct victim cases are typically premised on a preexisting relationship
between the parties [(e.g., physician-patient)], bystander cases are premised on the
defendant’s violation of a duty not to negligently cause emotional distress to plaintiffs
who observe conduct that causes harm to another. (Id. at pp. 1072-1074.)
9
of care, there can be no breach and no negligence. (Cf. Goldberg v. Frye (1990)
217 Cal.App.3d 1258, 1267.) Whether a defendant owes a duty of care is a question of
law for the court rather than the jury to resolve. (Burgess, supra, 2 Cal.4th at p. 1072;
Ess, supra, 97 Cal.App.4th at p. 126.) “ ‘Its existence depends upon the foreseeability of
the risk and a weighing of policy considerations for and against imposition of liability.’ ”
(Burgess, at p. 1072.)
We conclude the trial court properly granted summary judgment. Plaintiff has not
directed us to, and we are not aware of, any legal authority supporting the conclusion that
defendant owed her a duty of care. Plaintiff insists that defendant owed her a duty by
virtue of the fact she was the mother of a minor patient. We are not persuaded. Each of
the cases relied on by plaintiff is distinguishable, and therefore inapposite. (See, e.g.,
Burgess, supra, 2 Cal.4th at p. 1076 [mother permitted to recover emotional distress
damages under a direct victim theory after the negligent delivery of her child because
mother established a physician-patient relationship with defendant physician for medical
care, which was directed not only to her, but also to her fetus].) None of the cases cited
by plaintiff holds or even suggests that defendant owed plaintiff a duty under the facts of
this case. Indeed, our Supreme Court has held that the mere existence of a contractual
relationship between a parent and a health care provider for the care of a child does not
impose a duty on the health care provider to the parent. (Huggins v. Longs Drug Stores
California, Inc. (1993) 6 Cal.4th 124, 126-127, 131-133 [parent of child patient may not
recover damages as a direct victim of negligence of pharmacist or other health care
provider]; see also Ess, supra, 97 Cal.App.4th at p. 128 [“to support a direct victim cause
of action for emotional distress, the plaintiff must himself or herself be a patient of the
defendant caregiver”]; Aguirre-Alvarez v. Regents of University of California (1998) 67
Cal.App.4th 1058, 1067-1069 [similar]; Klein v. Children’s Hospital Medical Center
10
(1996) 46 Cal.App.4th 889, 895-899 [similar].)7 In short, because plaintiff did not have a
physician-patient relationship with defendant and has not otherwise shown the existence
of a duty owed to her by defendant, her negligent infliction of emotional distress claim
fails as a matter of law.8
We also reject plaintiff’s undeveloped negligence per se argument, which attempts
to establish a duty of care imposed by statute based on defendant’s alleged violation of
Civil Code section 49.9 This argument fails because, as we next explain, the trial court
properly determined that plaintiff’s cause of action predicated on a violation of that
7 Citing Newton v. Kaiser Foundation Hospitals (1986) 184 Cal.App.3d 386, plaintiff
argues that a duty of care may be imposed on a hospital by virtue of the contract between
it and the parents of a minor patient. In Newton, a panel of this court concluded that both
parents could recover emotional distress damages arising out of injuries sustained by their
child during childbirth. (Id. at pp. 387, 392-393.) However, Newton, predates our
Supreme Court’s decision in Huggins. And plaintiff makes no attempt to explain how
Newton supports a finding of a duty here in light of Huggins and the circumstances of this
case, which are clearly distinguishable from the facts in Newton.
8 In her reply brief, plaintiff asserts for the first time that the trial court erred in
sustaining an objection to the portion of her declaration in which she asserted that
defendant provided her no material information about the nature or severity of Dustin’s
injuries. According to plaintiff, the excluded evidence was “sufficient to allow [her]
negligence cause of action to proceed to trial.” We need not consider this argument
because plaintiff provides no justification for failing to raise it earlier. (Save the Sunset
Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172, 1181, fn. 3
[“absent justification for failing to present an argument earlier, we will not consider an
issue raised for the first time in a reply brief”].) But even if we were to overlook this
deficiency and determine that the trial court erred in excluding the evidence, we see no
basis for reversal. As we have explained, the evidence does not demonstrate that
defendant owed plaintiff a duty of care.
9 Under the negligence per se doctrine, negligence is presumed if (1) the defendant
violated a statute, (2) the violation proximately caused injury to the plaintiff, (3) the
injury resulted from an occurrence of the nature which the statute was designed to
prevent, and (4) the plaintiff was one of the class of persons for whose protection the
statute was adopted. (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC
(2013) 221 Cal.App.4th 102, 124.)
11
statute fails as a matter of law. Plaintiff cites no other statutory basis establishing a duty
of care.
IV
Child Abduction
Plaintiff contends the trial court erred in concluding that her child abduction cause
of action fails as a matter of law. We disagree.
Civil Code section 49 prohibits the “abduction or enticement of a child from a
parent, or from a guardian entitled to its custody.” (Civ. Code, § 49, subd. (a).) “It has
long been established that the unlawful taking or withholding of a minor child from the
custody of the parent or guardian entitled to such custody constitutes an actionable tort.
One who is not entitled to custody has no privilege to interfere with the legal custody of
the child.” (Surina v. Lucey (1985) 168 Cal.App.3d 539, 542; see also Rosefield v.
Rosefield (1963) 221 Cal.App.2d 431, 433-436.) The statute “serves to deter child-
stealing by feuding parents and similar antisocial conduct.” (Surina, at p. 543.) It was
“crafted by the Legislature to protect the parents’ right to custody and control of their
minor child. A violation of that right gives rise to an action by the parents for damages
from a person who by force abducts a child from its home or who, with knowledge that
the parents have not consented, induces the child to leave home, or who, with knowledge
that the child is away from home against the will of the parents, imprisons the child or
induces it not to return home.” (Id. at pp. 542-543.) “Put simply, a third party may not
interfere with the parents’ right to custody, even if motivated by kindness or affection
toward the child.” (Id. at p. 543.)
We conclude the trial court properly granted summary judgment. Plaintiff has not
cited any legal authority supporting the conclusion that defendant abducted Dustin within
the meaning of Civil Code section 49. Plaintiff concedes that Dustin was “not
wrongfully” brought to the ER. She argues that Dustin was abducted when defendant
wrongfully withheld him from her, i.e., refused to allow her to visit with him. However,
12
there is no evidence suggesting that defendant imprisoned Dustin or induced or otherwise
influenced him not to visit with plaintiff. The evidence showed that Dustin was
estranged from plaintiff and living with his father at the time of the accident, his father
consented to his medical treatment, and Dustin declined to communicate with plaintiff at
the ER. On this record, plaintiff’s claim for child abduction fails as a matter of law. (See
Robbins v. Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 675, 680-682 [shelter
for abused and troubled teenage girls did not interfere with plaintiffs’ parental rights
because their teenage daughter voluntarily went to shelter and was not induced to stay;
she was free to leave or contact her parents].)
Nor are we persuaded by plaintiff’s novel contention that reversal is required
because, regardless of whether she has asserted a viable cause of action under Civil Code
section 49, defendant’s unprivileged interference with the parent-child relationship is
independently actionable. Plaintiff has not offered any reasoned legal analysis
demonstrating that reversal is required on this basis.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Mauro, J.
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