Verrees v. Davis CA5 ( 2021 )

Filed 12/20/21 Verrees v. Davis CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
MARGARET VERREES,
F079517
Plaintiff and Appellant,
(Fresno Super. Ct.
v. No. 18CECG01307)
JAMES DAVIS et al.,
OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T.
McGuire, Judge.
Margaret Verrees, in pro. per., for Plaintiff and Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, Michael F. Ball, and Gary A.
Hunt for Defendants and Respondents.
-ooOoo-
Plaintiff Margaret Verrees, M.D., filed this lawsuit against the fellow members of
her employing neurosurgery practice group, the practice group, the teaching hospital
affiliated with the practice group, and others, asserting causes of action for fraud, breach
of contract, negligent infliction of emotional distress, intentional infliction of emotional
distress and civil conspiracy. Defendants filed a demurrer to the first amended
complaint, which the superior court sustained without leave to amend.
Verrees appealed, contending she adequately alleged facts to state her causes of
action or, alternatively, she should have been granted leave to amend. Defendants’
demurrer was filed after Verrees unsuccessfully took her discrimination claims to
arbitration and then unsuccessfully sued various defendants in federal court. As
explained below, we conclude Verrees’s allegations are not sufficient to state a cause of
action, and she has failed to carry her burden of demonstrating a reasonable possibility
that the defects could be cured by amendment.
We therefore affirm the judgment of dismissal.
FACTS
Verrees is a neurosurgeon who in 2008 was persuaded to come to Fresno from
Cleveland to practice medicine. She was employed in Fresno by the Central California
Faculty Medical Group, Inc. (Practice Group). Practice Group is an organization of
faculty physicians and is affiliated with the University of California, San Francisco-
Fresno Medical Education Program (UCSF Fresno). Verrees also secured privileges to
practice medicine at Fresno Community Hospital and Medical Center (CRMC)1 under
CRMC’s affiliation agreement with UCSF Fresno. Verrees’s work within Practice Group
was overseen by, among others, Dr. Jim Davis, its chief of surgery.
Beginning in late 2010, tensions and disagreements arose between Verrees and
Davis regarding Verrees’s work performance. On April 22, 2011, Davis sent a
memorandum to Joyce Fields-Keene (Fields-Keene), chief executive officer of Practice
Group, recounting 27 incidents of concern involving Verrees that Davis characterized as
“extremely alarming.” These incidents included both performance and behavior-related
1Verrees referred to this entity as Community Medical Centers, Community
Regional Medical Center, and CRMC. For convenience, this opinion uses CRMC to
designate that entity.
2.
matters. At that time, two incidents had been referred by Davis to Practice Group’s
performance improvement committee. Also, Verrees was asserting other Practice Group
physicians were harassing and discriminating against her. On May 3, 2011, Davis
informed Fields-Keene that Verrees had left an operating room for an extended period of
time during a procedure and wrote a memoranda to Fields-Keene and the performance
improvement committee regarding an operation performed by Verrees that took an undue
amount of time and produced a nominal outcome for the patient. Davis recommended to
Fields-Keene and the Practice Group executive committee that they not renew Verrees’s
employment contract. The executive committee agreed and elected to not renew her
contract. Practice Group bought out Verrees’s contract, and her employment ended on
May 16, 2011. Verrees’s academic appointment at UCSF Fresno also was terminated
around this time.
On July 26, 2011, CRMC notified Verrees that six of her cases, all performed
during her employment with Practice Group, were being sent out for an independent
review by Dr. Shuer, a board-certified neurosurgeon, professor of neurosurgery at the
Stanford University School of Medicine, and former chief of staff for Stanford Hospital
and Clinics. Shuer concluded that all six cases constituted a “significant deviation from
the standard of care,” and that one case resulted in a patient’s death. Shuer also opined
that Verrees was temperamentally unable to practice neurosurgery in a clinical education
setting and, therefore, Practice Group was justified in electing not to renew her
employment contract.
In February 2012, Verrees was granted privileges at Saint Agnes Medical Center
(St. Agnes). A June 15, 2012 letter from St. Agnes reprimanded Verrees for a “large
number of incident reports over a short period of time.” In August 2012, St. Agnes
confirmed restrictions on Verrees’s privileges. In October 2012, Verrees resigned her
position at St. Agnes. In addition, CRMC revoked Verrees’s medical privileges at its
facilities in November 2012.
3.
Arbitration
In February 2012, Verrees filed an arbitration claim against Practice Group,
asserting claims of retaliation, discrimination, and sexual harassment. In June 2014, the
arbitrator issued a decision granting Practice Group’s motion for summary judgment.
The arbitrator found that Verrees’s belief that she was improperly treated during her
employment with Practice Group was ultimately only supported by Verrees’s “own
statements, feelings and suppositions” rather than by admissible evidence.
Verrees alleges that the arbitration proceeding was “marred by Defendants
threatening witnesses, suborning perjury, creati[ng] false evidence via inducing an expert
to provide corroboration of wrongdoing that never occurred, [and using] false evidence
during the legal procedure.”
Medical Board
In 2013, while the arbitration was pending, Davis submitted allegations about
Verrees to the Medical Board of California (Medical Board). The Medical Board
conducted an investigation, with both Verrees and defendants submitting information in
2014. Near the end of 2015, the Medical Board completed its investigation and
exonerated Verrees.
2016 Federal Lawsuit
In September 2016, representing herself, Verrees filed a complaint in the United
States District Court for the Eastern District of California, against Davis, Wells, Fields-
Keene, CRMC, UCSF Fresno, Practice Group, University Neurosurgery Associates
(UNA)2, Santé/Advantek Benefits Administrators (Santé)3, and Joan Voris, a UCSF
2Verrees alleged UNA was a subsidiary of Practice Group.
3In their federal pleadings, the Community Medical Center defendants asserted
that CRMC, Community Medical Center and Santé/Advantek Benefits Administrators are
not separate legal entities; instead, CRMC and CMC were described as business aliases
of Fresno Community Hospital and Medical Center. Santé was described as Santé Health
System, Inc., pursuing a line of business under the name Advantek Business
4.
Fresno assistant dean. Verrees asserted (1) violations of the Racketeer Influenced and
Corrupt Organizations Act, 18 United States Code section 1961 et seq.; (2) violations of
federal antitrust law, (3) interference with prospective economic advantage; and
(4) defamation. In December 2016, Verrees filed a 92-page first amended complaint.
In October 2017, after Verrees had unsuccessfully attempted to file a 2,185-page
second amended complaint and a 290-page second amended complaint, the federal
district court ordered the action to proceed on her first amended complaint. The
defendants filed motions to dismiss the first amended complaint. In April 2018, the
motions were granted with leave to amend, and Verrees was warned that any amended
complaint was to comply with Rule 8(a), in that it had to “clearly and concisely set forth
her claims, should not address matters not directly related to any of her claims, that ‘any
excessively long or digressive amended complaint will not meet the Rule 8 standard,’ and
that this would be [her] final opportunity to plead her case.”
Verrees filed a 166-page second amended federal complaint with 32 pages of
exhibits. In June 2018, the district court dismissed Verrees’s second amended federal
complaint with prejudice, stating the pleading was “neither clear nor concise, nor was it
in compliance with Rule 8.”
PROCEDURAL HISTORY
On April 16, 2018, while her federal lawsuit was pending, Verrees initiated this
lawsuit by filing a complaint in Fresno County Superior Court. Verrees alleged fraud,
breach of contract, negligent infliction of emotional distress, intentional infliction of
emotional distress, and civil conspiracy against Davis, Wells, Fields-Keene, CRMC,
Practice Group, UNA, and Santé.
In September 2018, Verrees filed a 145-page first amended complaint for fraud,
breach of contract, negligent infliction of emotional distress, intentional infliction of
Administrators. Santé had denied Verrees’s request to designate her as an “approved
provider.”
5.
emotional distress, and civil conspiracy. The primary difference between Verrees’s
initial and first amended complaint was the addition of “the California Regents” as a
named defendant. Verrees stated the California Regents subsumed UCSF Fresno and, for
convenience, this opinion uses UCSF Fresno to refer to that defendant.
In October 2018, Practice Group, UNA, and Fields-Keene filed a demurrer
asserting that all of Verrees’s causes of action were time-barred under the applicable
statute of limitations, barred by the doctrine of collateral estoppel, failed to state facts
sufficient to state a cause of action, and were fatally uncertain. These defendants argued
collateral estoppel effect should be given on the issue adjudicated in the arbitration
proceedings. CRMC, Wells and Santé also filed a demurrer asserting Verrees’s first
amended complaint failed to state facts sufficient to constitute a cause of action and was
uncertain.
In November 2018, the trial court heard argument on defendants’ demurrers and
took the matter under advisement. Two days later, the court issued a minute order
sustaining the demurrers without leave to amend.
On December 20, 2018, the trial court signed and filed a joint order dismissing
Verrees’s first amended complaint with prejudice as to Fields-Keene, Practice Group,
UNA, CRMC, Wells, and Santé. A notice of entry of order was filed and served the next
day.
In February 2019, Davis and UCSF Fresno filed a demurrer to Verrees’s first
amended complaint, asserting it was uncertain, failed to state facts sufficient to constitute
a cause of action, and failed to allege fraud with the requisite particularity. In April 2019,
the trial court held a hearing and adopted its tentative ruling to sustain the demurrer to the
first amended complaint without leave to amend. On May 1, 2019, an order dismissing
Verrees’s first amended complaint with prejudice as to Davis and UCSF Fresno was
filed. A notice of entry of this order was filed and served on May 21, 2019. The
following month, Verrees filed a notice of appeal. The timing and contents of the notice
6.
of appeal are significant for this appeal because they determine the issues and parties
properly before this court.
DISCUSSION
I. SCOPE OF THE APPEAL
A. Dismissal Orders
1. Appealability
Code of Civil Procedure section 581d provides in part: “All dismissals ordered by
the court shall be in the form of a written order signed by the court and filed in the action
and those orders when so filed shall constitute judgments and be effective for all
purposes.” Under this statute, the December 20, 2018 order dismissing Verrees’s first
amended complaint with prejudice as to six defendants constitutes a “judgment.”
Therefore, that order is appealable pursuant to Code of Civil Procedure section 904.1,
subdivision (a)(1), which states an appeal may be taken “[f]rom a judgment.” (See
McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 278 [an order dismissing
a complaint with prejudice constitutes an appealable judgment].) Similarly, the May 1,
2019, order dismissing Verrees’s first amended complaint with prejudice as to Davis and
UCSF Fresno constitutes an appealable judgment.
2. Timeliness
On June 25, 2019, Verrees filed a notice of appeal using Judicial Council form
APP-002. Verrees marked the box indicating the appeal was taken from a “Judgment of
dismissal after an order sustaining a demurrer” and stated the judgment was entered on
May 21, 2019 – the filing date of the notice of entry of order dismissing Verrees’s first
amended complaint as to Davis and UCSF Fresno.
First, Verrees’s appeal is timely with respect to the order dismissing the first
amended complaint with prejudice as to Davis and UCSF Fresno. The notice of appeal
was filed 35 days after the notice of entry of that order. Under California Rules of Court,
7.
rule 8.104(a)(1)(B), 4 a notice of appeal is timely if it is filed within 60 days of a party
serving a notice of entry of the judgment.
Second, Verrees’s appeal is not timely with respect to the December 2018 order
dismissing Verrees’s first amended complaint with prejudice as to Fields-Keene, Practice
Group, UNA, CRMC, Wells, and Santé. The notice of entry of that order was served on
December 21, 2018, which is 151 days before Verrees filed her notice of appeal. “[T]he
filing of a timely notice of appeal is a jurisdictional prerequisite.” (Silverbrand v. County
of Los Angeles (2009) 46 Cal.4th 106, 113.) Therefore, we have no jurisdiction – that is,
power or authority – to determine the merits of Verrees’s challenges to the December
2018 order.
Verrees refers to the principle that “ ‘[a] notice of appeal shall be liberally
construed in favor of its sufficiency’ [citation].” (Vibert v. Berger (1966) 64 Cal.2d 65,
67.) Verrees contends that, under the rule of liberal construction, a mistake in
designating the parties is not fatal. She cites Boynton v. McKales (1956) 139 Cal.App.2d
777 as a case where the notice of appeal identified only one defendant and was construed
to include both defendants. (Id. at pp. 787–788.) Even if Verrees’s notice of appeal is
construed to include the December 2018 order, that construction does not cure the
untimeliness of the appeal as to that order of dismissal. Therefore, our jurisdiction is
limited to the May 2019 order dismissing the case as to Davis and UCSF Fresno.
B. Order Denying Motion for Leave to Amend
Verrees’s opening brief lists the denial of a motion for leave to amend as one of
the issues on appeal. We do not separately address her claim of trial court error relating
to that specific motion because that claim is redundant to her argument that the trial court
erred in sustaining the demurrer without leave to amend. (See Code Civ. Proc., §§ 472
4 Subsequent references to a numbered “Rule” are to the California Rules of
Court.
8.
[amendment without leave], 473, subd. (a) [discretionary authority to grant leave to
amend].)
As background for this conclusion, we note that Verrees filed the motion for leave
to amend after Davis and UCSF Fresno filed their demurrer and before that demurrer was
heard. The motion attached a copy of a proposed second amended complaint alleging
five causes of action against all defendants. Davis and UCSF Fresno filed an opposition
to and request that the trial court strike Verrees’s motion for leave to file a second
amended complaint. On June 24, 2019, the day before Verrees filed her notice of appeal,
the court issued a tentative ruling denying the motion for leave to amend as moot because
the demurrers of all defendants already had been sustained without leave to amend.
Neither side requested argument. Accordingly, on June 27, 2019, the trial court issued a
minute order adopting its tentative ruling and denying Verrees’s motion for leave to file a
second amended complaint. Verrees did not file a separate notice of appeal from that
order or amend her June 25, 2019 notice of appeal.
The absence of a separate appeal does not, as a practical matter, affect the outcome
of this appeal. Our consideration of the proposed second amended complaint is
appropriate because the “issue of leave to amend is always open on appeal.” (City of
Stockton v. Superior Court (2007) 42 Cal.4th 730, 746; Code Civ. Proc., § 472c.) Thus,
we are not limited to considering the showing made in Verrees’s opposition to the
demurrer. If the proposed second amended complaint failed to state facts sufficient to
constitute a cause of action, then the motion for leave to amend was properly denied.
(California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274,
280, disapproved on another ground by Kransco v. American Empire Surplus Lines Ins.
Co. (2000) 23 Cal.4th 390, 407, fn. 11.)
Alternatively, if the second amended complaint did allege facts sufficient to state
one or more causes of action, we will conclude Verrees has shown the defects in her first
9.
amended complaint could be cured by amendment and, thus, has shown the trial court
abused its discretion in sustaining the demurrer without leave to amend.
II. BASIC PRINCIPLES GOVERNING DEMURRERS
A. Stating a Cause of Action
A complaint must contain “[a] statement of the facts constituting the cause of
action, in ordinary and concise language.” (Code Civ. Proc., § 425.10, subd. (a)(1).)
When a complaint “does not state facts sufficient to constitute a cause of action,” a
defendant may raise that objection by filing a demurrer. (Id., § 430.10, subd. (e).)
Whether a pleading alleges facts sufficient to constitute a cause of action is a question of
law. (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305.)
The facts that must be written down in a complaint to properly allege a cause of
action are referred to as the cause of action’s essential elements. The essential elements
are determined by the substantive law that defines the cause of action – that is, defines
the circumstance in which a plaintiff has a right to relief from a harm suffered. (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020)
¶ 6:121, pp. 6–36.)
B. Standard of Review
Under California’s constitutional doctrine of reversible error, a trial court’s order
is presumed correct, and the appellant must affirmatively demonstrate prejudicial error.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see Jameson v. Desta (2018)
5 Cal.5th 594, 609 [“the burden is on an appellant to demonstrate … that the trial court
committed an error”].) When determining whether a trial court erred in sustaining a
general demurrer without leave to amend, appellate courts address two separate
questions, each with its own standard of review. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.)
10.
First, an appellate court reviews the complaint de novo to determine whether the
complaint states facts sufficient to constitute a cause of action. (Blank v. Kirwan, supra,
39 Cal.3d at p. 318.) In conducting this de novo review, we treat the demurrer as
admitting all material facts properly pleaded, but do not assume the truth of contentions,
deductions or conclusions of law. (Ibid.) The pleader’s contentions or conclusions of
law are not controlling because appellate courts must independently decide questions of
law without deference to the legal conclusions of the pleader or the trial court. (Neilson
v. City of California City, supra, 133 Cal.App.4th at p. 1304.)
Second, the question of whether leave to amend should have been granted requires
the appellate court to determine whether there is a reasonable possibility that the defect
can be cured by amendment; if it can be the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm. (Blank v. Kirwan,
supra, at p. 595; see Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill
Extension Construction Authority (2018) 19 Cal.App.5th 1127, 1132 [plaintiff may meet
burden of proving an amendment would cure a legal defect for the first time on appeal].)
“ ‘To satisfy that burden on appeal, a plaintiff “must show in what manner he can amend
his complaint and how that amendment will change the legal effect of his pleading.”
[Citation.] … The plaintiff must clearly and specifically set forth … factual allegations
that sufficiently state all required elements of that cause of action. [Citations.]
Allegations must be factual and specific, not vague or conclusionary. [Citation.]’
[Citation.]” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1491,
quoting Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43–44.)
Another principle of appellate review states that “that a ruling or decision, itself
correct in law, will not be disturbed on appeal merely because given for a wrong reason.
If right upon any theory of the law applicable to the case, it must be sustained regardless
of the considerations which may have moved the trial court to its conclusion.” (Davey v.
Southern Pacific Co. (1897) 116 Cal. 325, 329.) Under this principle, we uphold a trial
11.
court’s ruling “on any sufficient ground, whether relied on by the court below or not.
[Citation.]” (Wheeler v. County of San Bernardino (1978) 76 Cal.App.3d 841, 846, fn.
3.)
III. MERITS OF THE APPEAL
A. Fraud
1. Elements
The essential elements of a cause of action for fraud and deceit are
(1) misrepresentation, (2) knowledge of the falsity or scienter, (3) intent to defraud – that
is, induce reliance, (4) justifiable reliance, and (5) resulting damages. (Lazar v. Superior
Court (1996) 12 Cal.4th 631, 638; see Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1092
[plaintiff in action for deceit must plead common law element of actual reliance]; cf. Civ.
Code, § 1572 [actual fraud] with Civ. Code, § 1710 [deceit defined].) These elements
“must be pled specifically; general and conclusory allegations do not suffice.
[Citations.]” (Lazar, supra, at p. 645.) The requirement for specific allegations
“ ‘necessitates pleading facts which “show how, when, where, to whom, and by what
means the representations were tendered.” ’ [Citation.]” (Ibid.) Stated another way, a
plaintiff must allege “with particularity who made the statements, when they were made,
what was actually stated, [and] why they were false. [Citations.]” (Scott v. JPMorgan
Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 763.) Under these pleading rules, a
plaintiff’s conclusory allegation of reliance is insufficient to state that essential element.
(Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1091.)
A cause of action for fraud and deceit based on concealment “is not actionable
absent all the elements of fraud.” (Persson v. Smart Inventions, Inc. (2005) 125
Cal.App.4th 1141, 1168.) Thus, “concealment does not amount to fraud unless and until
there is reliance upon it.” (Ibid.) Furthermore, the rule that fraud must be pleaded with
particularity “applies equally to a cause of action for fraud and deceit based on
12.
concealment. [Citation.]” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462,
1472.)
2. Facts Alleged
The fraud cause of action in the first amended complaint begins by stating that
Verrees realleges the allegations in the preceding 114 pages and then states: “Defendants
made multiple false representations against [Verrees] through blackmailing sources.
Dr. Davis knew the accusations were false as he had manufactured them; they were his
fiction.” It also alleges that (1) CRMC bolstered the accusations by sending them to an
expert (Shuer), accompanied by unknown supporting material, and the expert
corroborated the alleged wrongdoing related in the accusations; (2) Davis submitted
Verrees’s “name and the fraudulent allegations, obtained through blackmail and
extortion, to the Medical Board of California” in 2013; (3) defendants transmitted to St.
Agnes the fraudulent allegations that they had induced the expert to corroborate, which
poisoned her chance of working at St. Agnes and competing with her former employer;
and (4) defendants used fraudulent documentation and suborned perjury in the 2014
arbitration proceeding on Verrees’s sex discrimination claim. Although the Medical
Board completed its investigation and exonerated Verrees near the end of 2015, Verrees
alleges defendants’ fraudulent allegation devastated her professionally and financially
and ruined her future prospects in the field of neurosurgery. More specifically, she
alleges defendants’ actions ruined her opportunity to complete Neurosurgery Board
Certification.
The first amended complaint also describes an incident where a patient Verrees
treated had a shunt malfunction six weeks after surgery, and the patient and the patient’s
husband wanted Verrees to continue as the neurosurgeon on the case, but the husband’s
view changed when Davis beckoned him into an outer hallway at the hospital, CRMC,
13.
and told him falsehoods, It also alleges that in October 2012, Davis falsely told a
patient’s husband that Verrees did not have privileges at CRMC.
The first amended complaint also alleges defendants acted intentionally to conceal
unethical and corrupt practices, delayed discovery, and obstructed justice. It alleges
defendants threatened and intimidated witnesses, which caused witnesses to withhold
testimony and prevented the revelation of material facts.
In allegations preceding the fraud cause of action, the first amended complaint
alleges that Verrees “found cold rejection without debate, discussion or reason in
response to her suggestions” concerning patient care from Davis and trepidation from
members of the trauma team to question Davis about the protocols used and espoused by
Davis. Eleven pages of the first amended complaint describe Verrees’s great frustration
with the rejection of her suggestions and attributes such rejection to nefarious motives.
Our review of the first amended complaint did not locate allegations of the
specificity needed to state a fraud cause of action. For instance, the pleading did not state
how Verrees reasonably relied on a misrepresentation of Davis or UCSF Fresno to her
detriment. With respect to UCSF Fresno, the pleading does not specifically state the
contents of any misrepresentations made by UCSF Fresno, when the misrepresentation
was made, who made it, and when. Thus, the allegations with respect to fraud by Davis
and UCSF Fresno lack the specificity need to state the essential elements of a fraud cause
of action.
3. Verrees’s Contentions
Verrees’s opening brief contends her cause of action for fraud was based on
concealment, not deceit, and such a claim was adequately pleaded. Verrees asserts the
trial court “did not consider concealment whereby the Defendants does not make a
representation.” As to the element of reliance, Verrees argues she need only allege she
14.
was unaware of the concealed or suppressed fact and would not have acted as she did if
she had known of that fact.
Verrees contends she alleged the defendants “continue to conceal the true facts
about [her] employment” and cites paragraph 35 of her proposed second amended
complaint. That paragraph states that defendants “continue to make the fraudulent
representations based on the concealments.” The next paragraph states that Verrees
“reasonably relied on Defendants’ deception.” The concealments referred to are
described in paragraph 18 of the proposed second amended complaint, which states in
full: “Definitely beginning in 2016 and continuing through the present, Defendants have
failed and refused to accurately report that [Verrees] left her position in good standing
and have refused and failed to accurately acknowledge and report that she had committed
no wrongdoing during her time with Defendants.”
In Mirkin v. Wasserman, supra, 5 Cal.4th 1082, our Supreme Court recognized
that it is possible to prove reliance on an omission or concealment by proving “that, had
the omitted information been disclosed, one would have been aware of it and behaved
differently.” (Id. at p. 1093.) The court’s use of the word “one” in this statement refers
to the plaintiff. Thus, a plaintiff must plead and prove that he or she would have behaved
differently if the information had been disclosed.
Neither the first amended complaint nor the proposed second amended complaint
state what Verrees would have done differently if defendants had accurately reported
information about her employment. In addition, neither document states how her
different behavior would have avoided any damage or injury caused by the concealment
alleged. The conclusory allegation that Verrees “reasonably relied on Defendants’
deception” does not provide the particularity necessary to establish she would have
behaved differently in the absence of the concealment.
In sum, Verrees has not alleged and has not shown she can allege a cause of action
for fraud based on deceit or concealment with the particularity required by California
15.
law. Rather, she appears to be claiming that defendants are deceiving the public and
health care community about her merits as a neurosurgeon and that deception has harmed
her professionally and financially. The fundamental problem with this approach is that a
cause of action for fraud requires the deception to be directed at the plaintiff and causes
the plaintiff to detrimentally rely on that deception. A fraud cause of action does not
reach the deception of others. 5 Accordingly, the trial court properly sustained the
demurrer to the fraud cause of action without leave to amend.
B. Breach of Contract
The essential elements of a breach of contract cause of action are (1) the existence
of the contract between the parties, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach of a contract term, and (4) the resulting damages
to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821, citing
Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) To properly plead a cause of
action for breach of contract, “the complaint must indicate on its face whether the
contract is written, oral, or implied by conduct. [Citation.]” (Otworth v. Southern Pacific
Transportation Co. (1985) 166 Cal.App.3d 452, 458–459, fn. omitted.) “If the action is
based on an alleged breach of a written contract, the terms must be set out verbatim in the
body of the complaint or a copy of the written instrument must be attached and
incorporated by reference. [Citation.]” (Id. at p. 459.)
Verrees’s breach of contract cause of action is set forth on pages 117 through 127
of the first amended complaint. Nowhere on those pages does Verrees state whether an
alleged contract with Davis or UCFS Fresno is written, oral, implied by conduct, or a
combination of these methods for manifesting the mutual assent necessary to form a
contract. Furthermore, the first amended complaint did not set forth verbatim the terms
5Verrees’s causes of action for antitrust violations, interference with prospective
economic advantage, and defamation were asserted in her federal lawsuit. Thus, we need
not analyze whether her allegations state these types of claims.
16.
of the employment agreement or the terms of any other agreement and no written
agreement was attached to the first amended complaint. Therefore, we conclude the first
amended complaint failed to comply with the basic rules governing the pleading a breach
of contract cause of action. The first amended complaint’s reference to an “Employment
Agreement” does not overcome these defects. Thus, the trial court properly sustained the
demurrer to the breach of contract cause of action.
Consequently, the key issue is whether Verrees should have been allowed to
amend her breach of contract cause of action to cure its defect. The arbitration decision
describes a “Physician Employment Agreement” entered into by Practice Group and
Verrees and signed by Verrees on July 22, 2008. The decision states that under the
agreement, Practice Group employed Verrees as a neurosurgeon for a term beginning
September 1, 2008, and ending August 31, 2011. However, neither Davis nor UCSF
Fresno are a party to that agreement and, therefore, they cannot be held liable for a breach
of its terms. Therefore, Verrees has not shown her employment agreement can served as
the basis for a breach of contract cause of action against Davis or UCSF Fresno.
Next, we consider Verrees’s attempt to plead a breach of contract cause of action
in paragraphs 13 through 19 of her proposed second amended complaint. Paragraph 14
states: “On or about September 2008, [Verrees] entered into a written contract with
Defendants, the relevant terms of which provided for [Verrees] to practice as a
neurosurgeon at CRMC and [Practice Group], with an academic appointment from UCSF
[Fresno] .… In the written and implied terms of the Agreement, Defendants could
investigate complaints and conduct disciplinary reviews of [Verrees] under the guise of
maintaining professional standard. Defendants were obligated to accurately and
truthfully report [Verrees’s] status.” The contents of the proposed second amended
complaint do not satisfy the basic rules governing the pleading a breach of contract cause
of action because the terms of the alleged contract are not set forth verbatim or,
alternatively, a copy of the written contract was not attached to the proposed pleading.
17.
Consequently, Verrees had not carried her burden of demonstrating she could cure the
defects in her breach of contract cause of action by alleging Davis, UCSF Fresno, or both
were a party to a written contract and breached a term of that contract. Furthermore,
Verrees made no showing that she could allege that she and these defendants entered into
an oral contract or a contract implied by conduct. Therefore, the trial court did not abuse
its discretion in refusing to grant Verrees leave to amend her breach of contract cause of
action against Davis and UCSF Fresno.
C. Intentional Infliction of Emotional Distress
1. Elements
The essential elements of a cause of action for intentional infliction of emotional
distress are (1) extreme and outrageous conduct by the defendant with the intention of
causing, or with reckless disregard for the probability of causing, emotional distress;
(2) the plaintiff’s suffering extreme or severe emotional distress; and (3) actual and
proximate cause of the plaintiff’s extreme or severe emotional distress by the defendant’s
outrageous conduct. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001
(Potter).) The alleged conduct must be so extreme as to exceed all bounds usually
tolerated in a civilized community. (Cochran v. Cochran (1998) 65 Cal.App.4th 488,
494.) The requisite severe emotional distress must be such that no reasonable person in
civilized society should be expected to endure it. (Potter, supra, at p. 1004.) Liability
for emotional distress does not extend to “ ‘ “mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” [Citation.]’ [Citations.]” (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1051.)
2. Timeliness
A general demurrer, besides challenging whether the facts alleged are sufficient to
state all of the essential elements of a cause of action, may be used to assert a statute of
limitations defense. (SLPR, L.L.C. v. San Diego Unified Port District (2020) 49
18.
Cal.App.5th 284, 316.) The two-year statute of limitations in Code of Civil Procedure
section 335.1 for person injuries “caused by the wrongful act or neglect of another”
applies to claims for intentional or negligent infliction of emotional distress. As a general
rule, the untimeliness of the cause of action must clearly and affirmatively appear on the
face of the complaint and matters judicially noticed before a demurrer will be sustained
on that ground. (Committee for Green Foothills v. Santa Clara County Bd. of
Supervisors (2010) 48 Cal.4th 32, 42.)
Here, Verrees’s lawsuit was filed on April 16, 2018. As a result, the outrageous
conduct intended to cause Verrees emotional distress must have occurred on or after
April 16, 2016. This date is after the proceedings before the Medical Board were
concluded in late 2015. Therefore, the allegations that defendants presented false
accusations to the Medical Board in 2013 and confirmed false allegations throughout
2014 cannot serve as the outrageous conduct necessary for a timely intentional infliction
of emotional distress claim. Similarly, the allegations that defendants’ conduct
precipitated Verrees’s resignation from St. Agnes in October 2012 occurred too long ago
to serve as the requisite outrageous conduct.
3. Facts Alleged
The allegations constituting the intentional infliction of emotional distress claim
are stated on a single page of the first amended complaint. Verrees incorporated her
preceding allegations and alleged (1) “[t]he conduct of Defendants was extreme and
outrageous”; (2) “Defendants’ conduct, using known fictitious allegations to cause
cumulative damage to [her], and Defendants’ active obstruction of justice to prevent
exposure of the fraudulent material, and the illegal means used to obtain it, further
worsening the agony to [her], exceeds all bounds of that usually tolerated in a civilized
community”; (3) “Defendants knew using their fraudulent allegations as they did in
cumulative fashion, through 2015, against [her] in multiple ways over multiple years
19.
would result in the devastation of [her] neurosurgery career and potential in
neurosurgery”; and (4) “Defendants intended to inflict injury, acting as described
knowing that injury would result.”
On appeal, Verrees contends the first amended complaint “does allege outrageous
comments not only in 2016, but into 2017 and 2018.” Verrees refers to the allegations
that “Defendants continued to wield fraudulent allegations to harm [her] in numerous
ways over the years – 2011, 2012, 2013, 2014, 2015, 2016, causing cumulative damage”
and that an assistant dean at UCSF Fresno “became responsible for fabricated offenses
originated from crime and discrimination, targeted to dog [Verrees’s] footsteps for years
– through 2011, then 2012, 2013, 2014, 2015, 2016 – and including 2017 and 2018 – to
the present, demolishing her career and potential.”
To be actionable, the allegedly outrageous conduct must cause severe emotional
distress. The allegations in the first amended complaint’s cause of action for intentional
infliction of emotional distress do not address this element. Elsewhere, the first amended
complaint described an incident that occurred in 2009, involved two male neurosurgeons,
and generated “fear, anxiety and doubt.” Also, the negligent infliction of emotional
distress allegations state that the defendants’ conduct “set off a destructive chain of
events which plagued [her] for years and destroyed her career, peace of mind, and
potential” and the fraud and other misconduct “caused [her] suffering and severe
emotional distress.”
4. Severe Emotional Distress
First, we conclude an allegation that a plaintiff suffered severe emotional distress
is conclusory and is insufficient to adequately plead that element. Also, the additional
allegation that Verrees’s peace of mind as destroyed fails to provide the necessary facts. 6
6The allegation about fear, anxiety and doubt occurred in 2009, and it is unclear
whether those feelings were experienced by Verrees or “the Neurosurgery PAs.”
Because the statute of limitations has run on any outrageous acts done in 2009, that
20.
In Hughes v. Pair, supra, 46 Cal.4th 1035, the plaintiff sued a trustee for, among
other things, intentional infliction of emotional distress, alleging that he made sexually
explicit, offensive, and threatening comments, in effect, demanding sex if she wanted her
request for funds from the trust to be granted. (Id. at p. 1040.) The appellate court
upheld a summary judgment against the plaintiff, concluding her allegations that “she has
suffered discomfort, worry, anxiety, upset stomach, concern, and agitation” as a result of
the defendant’s conduct “do not comprise ‘ “ ‘emotional distress of such substantial
quality or enduring quality that no reasonable [person] in civilized society should be
expected to endure it.’ ” ’ [Citation.]” (Id. at p. 1051.) In comparison, in Hailey v.
California Physicians’ Service (2007) 158 Cal.App.4th 452, the plaintiff alleged the
wrongful rescission of his health coverage caused severe emotional distress, which
resulted in vomiting, stomach cramps, and diarrhea. (Id. at pp. 476–477.) The appellate
court concluded these allegations satisfied the element of severe emotional distress and
reversed the order sustaining the defendant’s demurrer. (Id. at pp. 477–478.)
Applying the standard of severity established by the foregoing cases, we conclude
the first amended complaint does not provide sufficient facts to show that the alleged
emotional distress was severe. Accordingly, we conclude the first amended complaint
did not sufficiently allege that element and, as a result, the demurrer was properly
sustained on that ground.
5. Leave to Amend
Next, we consider whether Verrees has demonstrated a reasonable probability of
curing the defect in an amendment. Our evaluation of this question focuses on the
content of her proposed second amended complaint. Paragraph 43 of that document
states Verrees “suffered severe emotional distress as a result of Defendants’ conduct and
conduct and Verrees’s reaction cannot be used to satisfy the elements of a viable cause of
action for the infliction of emotional distress.
21.
action, and Defendants’ continued conduct and actions.” No details are provided to
explain why the alleged emotional distress was severe. Accordingly, Verrees has not
carried her burden of demonstrating she could allege facts showing her emotional distress
was severe. (See Rossberg v. Bank of America, N.A., supra, 219 Cal.App.4th at p. 1491
[to show appellate court an amendment could cure the defective pleading, plaintiff must
clearly set forth factual allegations sufficient to state the cause of action’s missing
element].)
Because the element of severe emotional distress is missing, we need not consider
other elements. In particular, we do address whether Verrees could allege that conduct
by Davis or UCSF Fresno and occurring after April 16, 2016, was extreme and
outrageous.
D. Negligent Infliction of Emotional Distress
“[T]here is no independent tort of negligent infliction of emotional distress.
[Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an
essential element. [Citations.] That duty may be imposed by law, be assumed by the
defendant, or exist by virtue of a special relationship. [Citation.]” (Potter, supra, 6
Cal.4th at pp. 984–985.) The requisite duty “may be imposed by law, be assumed by the
defendant, or exist by virtue of a special relationship. [Citation.]” (Id. at p. 985.)
Another limitation on negligent infliction of emotional distress claims is that “with rare
exceptions, a breach of the duty must threaten physical injury, not simply damage to
property or financial interests. [Citations.]” (Ibid.)
On appeal, Verrees contends there was a preexisting relationship between her and
defendants that gave rise to a duty and refers to article IV in a written agreement. The
shortcoming of this argument is that Verrees has not shown that Davis or UCSF Fresno
were parties to that written agreement – an issue discussed in part III.B. of this opinion.
Thus, her arguments based on that alleged duty do not demonstrate she has, or could,
22.
allege the existing of a duty necessary to support the negligent infliction of emotional
distress claim.
Verrees also refers to the general rule that when a person with no duty to speak
“ ‘undertakes to do so, either voluntarily or in response to inquiries, he is bound not only
to state truly what he tells but also not to suppress or conceal any facts within his
knowledge which materially qualify those stated. If he speaks at all he must make a full
and fair disclosure.’ [Citations.]” (Rogers v. Warden (1942) 20 Cal.2d 286, 289.) This
rule and the duty to speak truthfully does not aid Verrees because she had not identified
any incomplete or misleading statements about her made by Davis or UCSF Fresno in the
two years preceding her complaint.
Consequently, we conclude the first amended complaint’s negligent infliction of
emotional distress claim is deficient because it does not adequately allege the existence of
a duty (1) imposed by law, (2) assumed by Davis or UCSF Fresno, or (3) existing by
virtue of a special relationship. (See Potter, supra, 6 Cal.4th at p. 985.) Similarly,
Verrees’s proposed second amended complaint and the contents of her appellate brief do
not demonstrate she can amend to allege the existence of such a duty. Therefore, the trial
court did not err in sustaining the demurrer to the negligent infliction of emotional
distress claim without leave to amend.
E. Civil Conspiracy
“Conspiracy” is not itself a cause of action; rather, it is “a legal doctrine that
imposes liability on persons who, although not actually committing a tort themselves,
share with the immediate tortfeasors a common plan or design in its perpetration.
[Citation.]” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503,
510–511.) A “civil conspiracy,” therefore, standing alone, “ ‘ “does not per se give rise
to a cause of action unless a civil wrong has been committed resulting in damage.” ’
[Citation.]” (Id. at p. 511.)
23.
As discussed above, Verrees did not properly allege a valid cause of action and,
therefore, has not identified an underlying “civil wrong” upon which a conspiracy claim
could be based. Therefore, we conclude Verrees’s first amended complaint also fails to
state Davis or UCSF Fresno engaged in a civil conspiracy. Similarly, because Verrees
has not shown she could cure the defects in her other causes of action by amendment, she
has not shown an ability to cure the defect in her civil conspiracy claim.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
POOCHIGIAN, ACTING P. J.
WE CONCUR:
DETJEN, J.
SMITH, J.
24.