Samantha B. v. Aurora Vista Del Mar

Filed 4/26/22 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SAMANTHA B. et al., 2d Civ. No. B302321
(Super. Ct. No. 56-2015-
Plaintiffs and Appellants, 00464635-CU-PO-VTA)
(Ventura County)
v.
ORDER MODIFYING
AURORA VISTA DEL MAR, OPINION AND DENYING
LLC et al., REHEARING
[NO CHANGE IN
Defendants and Appellants. JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on April 5, 2022, be
modified as follows:
1. On page 18, the word “First,” which begins the first full
paragraph, is deleted, so the sentence begins, “The regulation is
expressly subject to ….”
2. On page 18, the second full paragraph, which begins, “Second,
Valencia’s conviction was not sealed ….” is deleted.
3. On page 22, the words in the last sentence of the first full
paragraph “70 percent” are changed to “65 percent,” so the
sentence reads: “The jury correctly attributed 65 percent of the
fault to Aurora and Signature.”
Defendants and Appellants’ petition for rehearing is denied.
There is no change in the judgment.
2.
Filed 4/5/22; on rehearing (unmodified opn.)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SAMANTHA B. et al., 2d Civ. No. B302321
(Super. Ct. No. 56-2015-
Plaintiffs and Appellants, 00464635-CU-PO-VTA)
(Ventura County)
v.
OPINION FOLLOWING
AURORA VISTA DEL MAR, REHEARING
LLC et al.,
Defendants and Appellants.
Civil Code section 3333.2, known as the Medical Injury
Compensation Reform Act of 1975 (MICRA), limits noneconomic
damages to $250,000 based on professional negligence. Here we
decide this limitation does not apply to plaintiffs’ causes of action
under the Elder Abuse and Dependent Adult Civil Protection Act
(Elder Abuse Act). (Welf. & Inst., § 15600 et seq.)1
All statutory references are to the Welfare and
1
Institutions Code unless otherwise stated.
Samantha B. and Danielle W. (Plaintiffs) are former
patients at an acute psychiatric hospital.2 While residing at the
hospital, they suffered sexual abuse by a hospital employee.
They brought this action against the hospital and its
management company, alleging professional negligence and
breach of the Elder Abuse Act. The jury found for Plaintiffs and
awarded substantial noneconomic damages against both
defendants, as well as punitive damages against the management
company. Defendants appeal. Plaintiffs appeal the trial court’s
grant of a motion for nonsuit on their causes of action alleging
vicarious liability under respondeat superior and ratification.
These causes of action are properly brought before a court or jury.
The matter is reversed and remanded for a new trial on the
issue of respondeat superior and ratification. In all other
respects, the judgment is affirmed.
FACTS
Aurora Vista Del Mar, LLC (Aurora) is a licensed acute
psychiatric hospital. Aurora is wholly owned by Signature
Healthcare Services, LLC (Signature). Both entities are wholly
owned by Doctor Soon Kim, who owns 11 similar hospitals
nationwide.
Signature has a management agreement with Aurora.
Among other tasks, Signature agreed to provide “[d]aily
operational direction and management” and “[c]linical
responsibility for all service programs.”
2 Plaintiff C.F. is no longer a party to this action. This
court dismissed her appeal pursuant to the stipulation of the
parties on October 18, 2021.
2.
Aurora Hires Valencia
In July 2011, Aurora hired Juan Valencia as a mental
health worker. The duties of a mental health worker include
seeing that patients do not harm themselves or others, keeping
patients in a safe environment, and helping patients with daily
living activities. Mental health workers are not licensed.
When Valencia was hired, he was given a form in which he
was asked whether he had been arrested for a crime requiring
registration as a sex offender. He answered no.
In fact, Valencia had been arrested in 1989 for sexual
penetration with a foreign object (Pen. Code, § 289, subd. (b)) and
unlawful sexual intercourse with a minor (id., § 261.5, subd. (c)).
Sexual penetration with a foreign object requires registration,
but intercourse with a minor does not. (Id., § 290, subd. (c).) He
pled guilty to sexual intercourse with a minor and the other
charge was dismissed. The court reduced Valencia’s conviction to
a misdemeanor and dismissed it in 2008.
Aurora retained an investigative consumer reporting
agency to conduct a background check on Valencia. Such
agencies are prohibited from reporting an arrest or conviction
that antedates the report by more than seven years. (Civ. Code,
§ 1786.18, subd. (a)(7).) The agency did not report Valencia’s 11-
year-old arrest or conviction.
Had Aurora hired certified nursing assistants (CNA’s),
instead of unlicensed mental health workers, it would have had
notice of any such prior conviction. CNA’s are fingerprinted and
licensed.
Training
To be a mental health worker, no license, experience,
education, or training is required. As one former Aurora
3.
employee put it, “one day they work at McDonalds, the next day
they are mental health workers.” Aurora gave Valencia two days
of orientation.
The orientation included three to five minutes on
countertransference, that is, the tendency of a caregiver to form
an emotional bond with a patient. Thereafter, all Valencia
needed to do was sign a form on patient and staff interactions
and relationships once a year. Staff were not tested to see if they
understood patient boundaries.
Plaintiffs’ expert testified, “If you read the depositions of
multiple staff at the facility, nursing staff, nursing assistants or
they call them ‘psyche techs’ at that facility, it was very clear that
they had no idea what transference or countertransference even
meant.”
Policy on Access to Patients
It is Aurora’s policy to allow male mental health workers to
be alone with female patients in their rooms for up to 20 minutes
as long as the door to the room is open.
Jamie Tallman, an Aurora psychiatric nurse, testified that
the charge nurse for the unit spends most of the time at the
nursing station. The nurse cannot see into the patients’ rooms
from the nursing station. One must go into the room to see what
is happening there. Walking up and down the hallway is not
enough. The charge nurse relies on the mental health workers
for information on the patients.
Valencia Sexually Violates Plaintiffs
Plaintiffs were patients at Aurora in 2013 during the time
Valencia worked there. Each was suffering from psychosis and
did not have the mental capacity to consent to sex. Valencia
4.
engaged in sexual relations with all three individually while they
were at Aurora.
Valencia became known among hospital workers as “Rapey
Juan.” A worker reported the nickname to the supervising nurse.
The nurse’s response was to roll her eyes and say something like
“What are you going to do?”
Bravo Incident
In 2004, an Aurora male employee named Bravo sexually
molested a 17-year-old female patient. Theresa Berkin, who was
at that time Aurora’s director of clinical services, recommended to
Aurora’s CEO that the hospital increase education to improve
therapeutic boundaries. The CEO said that corporate, meaning
Signature, would not pay for it. Berkin testified there were other
incidents while she was at Aurora in which a staff member
interreacted sexually with a patient.
Patient Vulnerability
Patients in an acute psychiatric hospital are vulnerable.
Their mental disorders may impair their judgment. Some suffer
from cognitive impairments similar to dementia. Some patients
receive medications that render them temporarily unconscious.
Plaintiffs’ expert testified that sexual assaults of mental patients
are a known foreseeable risk.
Understaffing
Mark Martinez was a mental health worker at Aurora from
2011 to 2014. He testified that each patient was rated for
“acuity” between one and four, with four being the most acute.
The entire unit was rated for acuity based on an aggregation of
scores of the individual patients. A formula would be applied to
the unit’s acuity rating to determine the appropriate staffing
level. Martinez testified the unit was consistently understaffed.
5.
He said he was on his own with 16 to 24 patients. He complained
to the nursing supervisor, the staffing coordinator, and to anyone
who would listen, to no avail.
Psychiatric nurse Tallman worked at Aurora from 2010 to
2014. She testified the hospital was frequently understaffed.
She complained to the director and assistant director of nursing.
Judy Pittacora, a licensed psychiatric technician, worked at
Aurora from 2003 to 2014. She testified the units were more
often than not understaffed. She said her supervisors would
cross out the acuity number she assigned to a patient and lower
it to lower the number of staff needed. Understaffing had an
impact on her ability to supervise mental health workers. The
workers were often on their own with patients. She complained
about understaffing to her supervisors but was told that is how
the hospital CEO wanted it. She quit because of understaffing.
She was afraid she was going to lose her license.
Failure to Report
Danielle W. was discharged from Aurora on November 29,
2013. The next day a student nurse saw Valencia and the
plaintiff together at a party. They appeared to be romantically
involved. Aurora suspended Valencia and, after a two-day
investigation, terminated him on December 12, 2013.
Aurora’s CEO testified that Valencia was terminated only
for being with a former patient at a party. The CEO did not
suspect there had been any wrongdoing while the patient was
hospitalized, even though the patient had been discharged only
the day before the party. She did not interview Valencia, the
hospital staff, or the former patient to see if any wrongdoing
occurred while the former patient was hospitalized. She did not
know whether anyone did.
6.
The CEO admitted that about a month after Valencia’s
termination she learned Valencia’s conduct with the former
patient at the party was sexual in nature. She also admitted that
Aurora had a duty to report such an incident to the California
Department of Public Health but did not do so for one year.
Aurora only reported Valencia’s misconduct after it became
public knowledge.
Procedure
Samantha B. was discharged from Aurora on March 6,
2013. She filed the instant action against Aurora and Valencia in
February 2015, within two years of her discharge. In June 2015,
she added Signature to her complaint. She alleged sexual
assault; intentional infliction of emotional distress; and violation
of Civil Code section 51.9, sexual harassment in a professional
relationship. She also alleged negligence in hiring, supervising,
and retaining Valencia and dependent adult abuse under the
Elder Abuse Act against Aurora. (§ 15600 et seq.) Danielle W.
was discharged from Aurora on November 29, 2013. She filed a
similar action within two years, in August 2015.
Verdict and Judgment
The jury found that Aurora and Signature were negligent
in hiring, supervising, and retaining Valencia. The jury also
found that Signature and Valencia committed acts constituting
dependent adult abuse and that they acted with recklessness.
The jury found that Signature acted with malice or oppression,
but that Aurora did not.
The jury awarded Samantha B. $3.75 million; and
Danielle W. $3 million, all in noneconomic damages. The jury
allocated 30 percent fault to Signature, 35 percent fault to
7.
Aurora, and 35 percent fault to Valencia. The jury awarded each
plaintiff $50,000 in punitive damages.
DISCUSSION
Aurora and Signature’s Appeal
I
MICRA’s Limitation of Actions
Aurora and Signature contend Plaintiffs’ causes of action
are time-barred and their damages limited under MICRA.
MICRA is a legislative scheme that is intended to reduce
the cost of medical malpractice insurance by, among other
matters, limiting the time for plaintiffs to bring their causes of
action for professional negligence and limiting the amount of
recovery for noneconomic damages. (Western Steamship Lines,
Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 111.)
Code of Civil Procedure section 340.5, a part of MICRA,
provides in part: “In an action for injury or death against a
health care provider based upon such person’s alleged
professional negligence, the time for the commencement of action
shall be three years after the date of injury or one year after the
plaintiff discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first.”
A “health care provider” is any person licensed to provide
health care services including a health facility. (Code Civ. Proc.,
§ 340.5, subd. (1).) “Professional negligence” means “a negligent
act or omission to act by a health care provider in the rendering
of professional services, which act or omission is the proximate
cause of a personal injury or wrongful death, provided that such
services are within the scope of services for which the provider is
licensed and which are not within any restriction imposed by the
licensing agency or licensed hospital.” (Id., subd. (2).)
8.
A plaintiff’s noneconomic damages are limited under
MICRA to $250,000. (Civ. Code, § 3333.2, subd. (b).)
Plaintiffs appear not to contest that if MICRA applies, their
action is barred by the time limitations in Code of Civil Procedure
section 340.5. They contend, however, that MICRA does not
apply. Instead, they claim the Elder Abuse Act applies. Unlike
MICRA, the Elder Abuse Act has a two-year statute of limitations
(Code Civ. Proc., § 335.1) subject to tolling for “insanity” under
Code of Civil Procedure section 352. (Benun v. Superior Court
(2004) 123 Cal.App.4th 113, 125-126.)
Elder Abuse Act
Unlike MICRA, which is designed to discourage medical
malpractice suits, the Elder Abuse Act enables “interested
persons to engage attorneys to take up the cause of abused
elderly persons and dependent adults.” (§ 15600, subd. (j).)
Section 15657, subdivision (a) provides, in part: “Where it
is proven by clear and convincing evidence that a defendant is
liable for . . . neglect as defined in Section 15610.57, or
abandonment as defined in Section 15610.05, and that the
defendant has been guilty of recklessness, oppression, fraud, or
malice in the commission of this abuse, the following shall apply,
in addition to all other remedies otherwise provided by law: [¶]
(a) The court shall award to the plaintiff reasonable attorney’s
fees and costs. . . .”
The Legislature has made it clear that professional
negligence and the Elder Abuse Act are separate and distinct.
Section 15657.2 provides: “Notwithstanding this article, any
cause of action for injury or damage against a health care
provider, as defined in Section 340.5 of the Code of Civil
Procedure, based on the health care provider’s alleged
9.
professional negligence, shall be governed by those laws which
specifically apply to those professional negligence causes of
action.”
In Delaney v. Baker (1999) 20 Cal.4th 32, our Supreme
Court discussed the relationship between section 15657,
establishing a cause of action for elder abuse, and section
15657.2, exempting causes of action for professional negligence
from causes of action under section 15657. There plaintiff’s 88-
year-old mother died in a nursing home due to neglect. Plaintiff
sued the nursing home and its administrators alleging negligence
and elder abuse. The jury found for plaintiff on both causes of
action. In the elder abuse cause of action, the jury found the
defendants were reckless. The jury awarded damages and the
court awarded attorney fees under the Elder Abuse Act.
(§ 15657, subd. (a).)
In upholding the award under the Elder Abuse Act, the
court rejected the defendant’s argument that “ ‘based on . . .
professional negligence,’ used in section 15657.2, applies to any
actions directly related to the professional services provided by a
health care provider.” (Delaney v. Baker, supra, 20 Cal.4th at
p. 35.) Instead, the court distinguished between professional
negligence and reckless neglect. The court stated:
“In order to obtain the remedies available in section 15657,
a plaintiff must demonstrate by clear and convincing evidence
that defendant is guilty of something more than negligence; he or
she must show reckless, oppressive, fraudulent, or malicious
conduct. The latter three categories involve ‘intentional,’ ‘willful,’
or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature.
[Citations.]
10.
“ ‘Recklessness’ refers to a subjective state of culpability
greater than simple negligence, which has been described as a
‘deliberate disregard’ of the ‘high degree of probability’ that an
injury will occur (BAJI No. 12.77 [defining ‘recklessness’ in the
context of intentional infliction of emotional distress action]); see
also Rest.2d Torts, § 500.) Recklessness, unlike negligence,
involves more than ‘inadvertence, incompetence, unskillfulness,
or a failure to take precautions’ but rather rises to the level of a
‘conscious choice of a course of action . . . with knowledge of the
serious danger to others involved in it.’ ” (Delaney v. Baker,
supra, 20 Cal.4th at pp. 31-32, quoting Rest.2d Torts, § 500, com.
(g), p. 590.)
The court concluded that because the jury found reckless
neglect, and not merely professional negligence, plaintiff was not
bound by the laws applicable to professional negligence but could
avail herself of the enhanced remedies of section 15657 of the
Elder Abuse Act. (Delaney v. Baker, supra, 20 Cal.4th at p. 35;
see also Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th
771 [Code of Civil Procedure section 425.13, applicable to
punitive damages in actions based on “professional negligence,”
not applicable to Elder Abuse Act].)
Here, as in Delaney, the jury found both professional
negligence and reckless neglect. Under Delaney, Plaintiffs are
not bound by the laws specifically applicable to professional
negligence. That includes MICRA and the one-year limitation of
actions contained therein. Although Plaintiffs’ cause of action
based on professional negligence may be barred by the statute of
limitations, their cause of action for elder abuse is not.
11.
II
Substantial Evidence of Elder Abuse
Aurora and Signature contend that as a matter of law
Plaintiffs have failed to establish a right of recovery for elder
abuse.
Aurora and Signature’s contention amounts to nothing
more than that the judgment is not supported by substantial
evidence. They hope to prevail by presenting a view of the
evidence in a light most favorable to themselves. But that is not
how we view the evidence.
Because Plaintiffs must prove elder abuse by clear and
convincing evidence, the standard is “whether the record, viewed
as a whole, contains substantial evidence from which a
reasonable trier of fact could have made the finding of high
probability demanded by this standard of proof.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) We must
affirm if any reasonable trier of fact could have made the
required findings. (Ibid.) The standard necessarily requires that
we give appropriate deference to a view of the evidence most
favorable to the judgment and not view the evidence in a light
most favorable to the losing party, as Aurora and Signature seem
to suggest.
(a) Neglect
Aurora and Signature contend that as a matter of law there
is no evidence of neglect. Section 15610.57, subdivision (b)(3)
defines “neglect” as including “[f]ailure to protect from health and
safety hazards.”
It is beyond dispute that Valencia was a hazard to the
health and safety of female patients under Aurora and
12.
Signature’s care, and that they failed to protect those patients
from that hazard.
Aurora and Signature cite Carter v. Prime Healthcare
Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407, for the
proposition that neglect occurs only where the defendant “denied
or withheld goods or services necessary to meet the elder or
dependent adult’s basic needs.” But to the extent Carter can be
read as holding that neglect does not include the failure to
protect from health and safety hazards, we decline to follow it as
directly conflicting with section 15610.57, subdivision (b)(3).
The only question here is whether clear and convincing
evidence shows Aurora and Signature were reckless in their
failure to protect.
(b) Reckless
“Recklessness” means the deliberate disregard of the high
degree of probability that an injury will occur. (Delaney v. Baker,
supra, 20 Cal.4th at p. 31.) It rises to the level of a conscious
choice of a course of action with knowledge of the serious danger
to others. (Id., at pp. 31-32.)
Aurora and Signature were well aware that their female
patients were particularly vulnerable to sexual predation by male
mental health workers. If they did not know before the Bravo
incident, they certainly knew thereafter. Aurora and Signature
are sophisticated parties. They are part of an organization that
operates 11 psychiatric hospitals nationwide. It is reasonable to
conclude that they know how to operate in a manner that
protects their patients from sexual predation. Yet Aurora and
Signature adopted policies that exposed their patients to a high
degree of risk of sexual predation.
13.
One such policy was to hire unlicensed mental health
workers. Aurora and Signature knew or should have known that
their ability to do background checks on such workers is limited.
Instead, they could have hired CNA’s who are trained, licensed,
and fingerprinted, and subject to unlimited background checks.
Valencia’s training was minimal, consisting of a three- to
five-minute talk and two days of following another worker
around. Aurora employees did not know what
countertransference is. Valencia was never tested to see if he
knew what it was. After the Bravo incident, Aurora’s director of
clinical services recommended that the hospital increase
education to improve therapeutic boundaries. Aurora’s CEO told
her that Signature would not pay for it.
Hospital policy allowed a male worker up to 20 minutes
alone with a female patient in her room. The charge nurse
cannot see inside the rooms from her station. One must enter
into the room to see what is happening inside. Even walking
down the hallway is not sufficient. The hospital is consistently
understaffed. Supervisors change patients’ acuity ratings to
justify understaffing. A reasonable conclusion is that
understaffing prevents workers from noticing what other workers
are doing. The situation is perfect for a sexual predator. That
male workers were allowed 20 minutes alone with a vulnerable
female psychiatric patient in a room secluded from view would by
itself support a finding of recklessness.
This is not a case of a momentary failure in an otherwise
sufficient system. Valencia was allowed to prey upon three
different women. It is reasonable to conclude that had Valencia
not been improvident enough to be seen at a private party with a
14.
woman who had been discharged the day before, he would have
continued to work at Aurora and claim other victims.
The flaws in Aurora and Signature’s policies were so
obvious that the jury could conclude that they intentionally
turned a blind eye to the high probability of harm. Even when
Aurora was informed that Valencia was known as “Rapey Juan,”
the reaction was a shrug. There is more than ample evidence to
support a finding of recklessness under the clear and convincing
standard.
III
Instructions
Aurora and Signature challenge several jury instructions.
(a) Duty to Investigate
Regarding Valencia’s prior arrest and conviction, the trial
court instructed the jury:
“Penal Code section 290 is the Sex Offender Registration
Act, which includes a list of sex crimes for which registration as a
sex offender is required.
“Those crimes include Penal Code section 289(a) sexual
penetration with another person who is under 18 years of age.
“An investigative consumer reporting agency may not make
or furnish any investigative consumer report containing records
of arrest or conviction of a crime that are more than seven years
old. . . .
“An employer that does not use the services of an
investigative consumer reporting agency is not limited by how far
back they may go in collecting an applicant’s criminal history.
“Every person in this state, including limited liability
companies, has a fundamental and necessary right to access
15.
public records. Public records include county courthouse criminal
history records.
“The Department of Justice maintains criminal history
information. State summary criminal history information means
the master record of information compiled by the Attorney
General pertaining to criminal history of a person, such as dates
of arrest.”
Aurora and Signature contend that they had no right, and
therefore no duty, to search for criminal records more than seven
years old.
Aurora and Signature rely on the Investigative Consumer
Reporting Agencies Act. (Civ. Code, § 1786 et seq.) The act
prohibits an investigative consumer reporting agency from
furnishing a report containing a record of arrest or conviction
that antedates the report by more than seven years. (Id.,
§ 1786.18, subd. (a)(7).) But the act applies only to investigative
consumer reporting agencies. Nothing prevents Aurora or
Signature from going beyond seven years to search for arrests
and convictions.
In fact, Labor Code section 432.7 recognizes the special
need of health care facilities to conduct employment background
investigations to protect the safety of their patients. Subdivision
(a) of the section prohibits an employer from asking an employee
to disclose any arrest that did not result in a conviction or any
conviction that has been dismissed or sealed. But subdivision
(f)(1)(A) of Labor Code section 432.7 provides, in part: “[T]his
section does not prohibit an employer at a health facility, as
defined in Section 1250 of the Health and Safety Code, from
asking an applicant for employment . . . the following: [¶] (A)
With regard to an applicant for a position with regular access to
16.
patients, to disclose an arrest under any section specified in
Section 290 of the Penal Code.” Labor Code section 432.7,
subdivision (f)(1)(A) places no time limit on the search.
Nor were Aurora and Signature confined to using
investigative consumer reporting agencies. Every person has the
right to inspect any public record. (Gov. Code, § 6253, subd. (a).)
Records of arrests and convictions are part of the public record.
(Id., § 6252, subd. (e); see Central Valley Ch. 7th Step
Foundation, Inc. v. Younger (1989) 214 Cal.App.3d 145, 158
[records of arrests kept by the California Department of Justice
for offenses specified in Penal Code section 290 are discoverable
by health facility pursuant to Labor Code section 432.7]; see also
Weaver v. Superior Court (2014) 224 Cal.App.4th 746, 749-750
[various documents filed and received by the court represent the
official work of the court in which the public has a justifiable
interest].)
Aurora and Signature argue that Labor Code section 432.7,
subdivision (f)(1)(A) only permits a health facility to inquire; it
does not impose a duty to inquire. That is true enough. But a
health facility has a duty to keep its patients safe. The trial
court’s instructions tell the jury it can decide whether Aurora and
Signature breached the duty to provide safety by, among other
matters, failing to conduct a full investigation as the law permits.
The court did not instruct the jury that Aurora and Signature
had the duty to inspect the public record; only that they had the
right to.
Aurora and Signature argue that the instructions run
counter to former California Code of Regulations, title 2, section
17.
7287.4, subdivision (d)(1)(B).3 That subdivision begins, “Except
as otherwise provided by law (e.g., . . . Labor Code Section
432.7),” it is unlawful for an employer to inquire of an applicant
regarding any conviction for which the record has been “judicially
ordered sealed, expunged or statutorily eradicated.” (Ibid.)
First, the regulation is expressly subject to Labor Code
section 432.7. Even if the regulation had contained no such
expression, an administrative regulation could not override the
Labor Code.
Second, Valencia’s conviction was not sealed, expunged, or
statutorily eradicated. It was reduced to a misdemeanor
pursuant to Penal Code section 17(b) and dismissed pursuant to
Penal Code section 1203.4.
The trial court’s instructions were accurate.
(b) Staffing Ratios
Aurora and Signature contend the trial court erred in
instructing with a staffing regulation.
The trial court instructed: “The licensed nurse-to-patient
ratio in a psychiatric unit shall be 1 to 6 or fewer at all times.
For purposes of psychiatric units only, licensed nurse[s] also
include psychiatric technicians in addition to licensed vocational
nurses and registered nurses.”
The instruction is taken verbatim from California Code of
Regulations, title 22, section 70217, subdivision (a)(13). Aurora’s
own expert testified that title 22 regulations apply to Aurora.
3Former California Code of Regulations, title 2, section
7287.4 was in effect when Valencia was hired. It was
renumbered without substantive change on October 3, 2013, as
California Code of Regulations, title 2, section 11017.
18.
Aurora argues the instruction is not supported by expert
testimony. Aurora points to the testimony of its experts that the
regulation applies only to a psychiatric unit and not to a free-
standing psychiatric hospital as Aurora.
But section 70217 of the California Code of Regulations
applies by its terms to all hospitals. It makes no distinction
between psychiatric units in free-standing psychiatric hospitals
and psychiatric units in other types of hospitals. By the plain
terms of the regulation, it applies to Aurora. No expert testimony
is required to support it.
(c) Refused Remedial Instruction
Aurora and Signature contend the trial court erred in
refusing the following proposed instructions: “When considering
the question of negligence, you must not consider whether or not
Aurora Vista Del Mar or Signature Health made any reports of
the events involving Juan Valencia to the Joint Commission
(JCAHO), California Department of Public Health (CDPH) or any
other law enforcement or licensing agency.”
But the obvious purpose of regulations requiring such
reports is to protect patient safety. Aurora’s failure to make a
timely report is simply evidence of a lack of concern for patient
safety. It is relevant to show neglect, that is, the failure to
protect patients from health and safety hazards. The trial court
did not err in refusing the proposed instruction.
IV
Excessive Damages
Aurora and Signature contend the damages are excessive.
Aurora and Signature argue that all the compensatory
damages awarded to Plaintiffs are noneconomic damages.
Aurora and Signature rely on section 15657, subdivision (b) for
19.
the proposition that Plaintiffs’ noneconomic damages are limited
to $250,000 each.
Section 15657, subdivision (b) provides: “The limitations
imposed by Section 377.34 of the Code of Civil Procedure on the
damages recoverable shall not apply. However, the damages
recovered shall not exceed the damages permitted to be recovered
pursuant to subdivision (b) of Section 3333.2 of the Civil Code.”
Civil Code section 3333.2, subdivision (b), part of MICRA,
limits noneconomic damages to $250,000. But under the Elder
Abuse Act, that limitation does not apply to living Plaintiffs.
Code of Civil Procedure section 377.344 prohibits damages
for noneconomic loss in actions on behalf of decedents. The first
sentence of section 15657, subdivision (b) provides that the
limitation of section 377.34 does not apply to actions under the
Elder Abuse Act. The second sentence of the subdivision begins
with “However.” (§ 15657, subd. (b).) It modifies the first
sentence. Thus, the second sentence of the subdivision, limiting
the amount of noneconomic damages, only applies to the first
sentence relating to causes of action brought on behalf of
decedents. Because in this action Plaintiffs are alive, the
limitation of noneconomic damages in section 15657, subdivision
(b) does not apply.
4 Code of Civil Procedure section 377.34 provides: “In an
action or proceeding by a decedent’s personal representative or
successor in interest on the decedent’s cause of action, the
damages recoverable are limited to the loss or damage that the
decedent sustained or incurred before death, including any
penalties or punitive or exemplary damages that the decedent
would have been entitled to recover had the decedent lived, and
do not include damages for pain, suffering, or disfigurement.”
20.
The Elder Abuse Act provides enhanced remedies for
victims. A prevailing plaintiff is entitled to an award of attorney
fees. (§ 15657, subd. (a).) A deceased victim’s successor is
entitled to an award of some noneconomic damages. (Id., subd.
(b).) There is no basis for interpreting the Elder Abuse Act as
restricting an award of damages for those fortunate enough to
have survived the abuse.
V
Fault Allocation
Aurora and Signature contend that they are entitled to a
new trial because there is no substantial evidence to support the
fault allocation.
We review an apportionment of fault for substantial
evidence. (Scott v. County of Los Angeles (1994) 27 Cal.App.4th
125, 147.) Aurora and Signature argue that there is no basis in
the evidence for allocating only 35 percent fault to Valencia, the
person who played the most direct and active role in the injury.
Aurora and Signature cite Scott for the proposition that an
apportionment of fault is not supportable when it overlooks or
minimizes the fault of the party who plays the most direct and
culpable role in the injury. (Citing id., at p. 148.)
But that is not what Scott says. In Scott, the county’s
department of children’s services placed a child in the home of
her grandmother. The grandmother intentionally scalded the
child, causing severe injuries. A jury awarded substantial
damages to the child, finding the grandmother 1 percent at fault
and the county 99 percent at fault.
Although Scott concluded that placing only 1 percent of the
fault on the grandmother was unsupported, the court had no
problem with placing the great majority of the fault on the county
21.
that failed to protect the child. Scott said the circumstances
resemble those in Rosh v. Cave Imaging Systems, Inc. (1994) 26
Cal.App.4th 1225, 1238, where the court declined to disturb a
jury’s apportionment of 25 percent fault to an assailant who
deliberately shot plaintiff and 75 percent fault to the employer’s
private security company who failed to protect him. (Scott v.
County of Los Angeles, supra, 27 Cal.App.4th at p. 148, fn. 16.)
Rosh expressly rejected the defendant’s contention that no
reasonable person could conclude a negligent tortfeasor was more
responsible for an injury than an intentional tortfeasor. (Rosh, at
p. 1233.)
Here Aurora and Signature are sophisticated parties who
should know how to operate a psychiatric hospital to assure the
safety of their patients. Instead, they operated the hospital
recklessly and maliciously to make what happened almost
inevitable. First, it was Bravo; then it was Valencia. If the
perpetrator had not been Valencia, it would have been someone
else. The jury correctly attributed 70 percent of the fault to
Aurora and Signature.
VI
Punitive Damages
Signature contends the punitive damages award must be
struck because there is no clear and convincing evidence of malice
or oppression.
Exemplary damages may be awarded where the plaintiff
proves by clear and convincing evidence that the defendant has
been guilty of oppression, fraud, or malice. (Civ. Code, § 3294,
subd. (a).) “Malice” means conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct
which is carried on by the defendant with a willful and conscious
22.
disregard of the rights or safety of others. (Id., subd. (c)(1).)
“Oppression” means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person’s
rights. (Id., subd. (c)(2).)
Signature relies on Civil Code section 3294, subdivision (b).
That subdivision provides: “An employer shall not be liable for
[exemplary] damages . . . based upon acts of an employee of the
employer, unless the employer had advance knowledge of the
unfitness of the employee and employed him or her with a
conscious disregard of the rights or safety of others or authorized
or ratified the wrongful conduct for which the damages are
awarded or was personally guilty of oppression, fraud, or malice.
With respect to a corporate employer, the advance knowledge and
conscious disregard, authorization, ratification or act of
oppression, fraud, or malice must be on the part of an officer,
director, or managing agent of the corporation.” (Italics added.)
Here there is clear and convincing evidence that Signature
was personally guilty of oppression and malice. Under
Signature’s management agreement with Aurora, Signature
agreed to provide “[d]aily operational direction and management”
and “[c]linical responsibility for all service programs.” The jury
could reasonably conclude that it was Signature that set the
policies that made sexual predation of patients almost inevitable,
and that in setting those policies, it acted willfully and with a
conscious disregard for the safety of others.
Indeed, a single incident illustrates both Signature’s
control and its willful and conscious disregard for the safety of
others. After the Bravo incident, Aurora’s then director of clinical
services recommended increased education of employees on
23.
clinical boundaries. Aurora’s CEO told her that Signature would
not pay for it.
Moreover, Doctor Kim owns both Signature and Aurora.
The jury could reasonably conclude that the owner was well
aware of the policies that resulted in harm to Plaintiffs.
VII
Motion for Nonsuit
The trial court granted Aurora’s motion for nonsuit on
Plaintiffs’ causes of action alleging vicarious liability under the
doctrine of respondeat superior and ratification.5
A trial court properly grants a motion for nonsuit only if
the evidence presented by the plaintiff would not support a
verdict in the plaintiff’s favor. (Carson v. Facilities Development
Co. (1984) 36 Cal.3d 830, 838.) The trial court may not weigh the
evidence, but must accept as true the evidence most favorable to
the plaintiff and disregard conflicting evidence. (Ibid.)
(a) Respondeat Superior
Under the rule of respondeat superior, an employer is
vicariously liable for the torts of its employees committed within
the scope of employment. (John R. v. Oakland Unified School
5 Plaintiffs argue the issue of respondeat superior is
important because Civil Code section 1431.2 limits liability for
noneconomic damages to several and not joint liability. They
point out Valencia was found 35 percent at fault. They claim
respondeat superior avoids the limits of Civil Code section
1431.2. Plaintiffs raised Civil Code section 1431.2 for the first
time in a petition for rehearing. For the purposes of this appeal
only, Plaintiffs waived the issue. (See CAMSI IV v. Hunter
Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.) The waiver
is without prejudice to raising the issue in an action to enforce
the judgment.
24.
Dist. (1989) 48 Cal.3d 438, 447.) An employer may be vicariously
liable for willful, malicious, even criminal acts, of an employee
that are deemed to be committed within the scope of employment,
even though the employer has not authorized such acts. (Ibid.)
An act is within the scope of employment if the employment
predictably creates the risk that employees will commit
intentional torts of the type for which liability is sought. (Lisa M.
v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291,
299.)
Courts have generally held that an employer is not liable
under the doctrine of respondeat superior for sexual assaults
committed by an employee. (3 Witkin Summary of Cal. Law
(11th ed. 2017) Agency and Employment, § 201, p. 263; but see
Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 217 [city
liable for assault by a police officer in view of the considerable
power and authority a police officer possesses].) But a sexual tort
will be considered to be within the scope of employment if “its
motivating emotions were fairly attributable to work-related
events or conditions.” (Lisa M. v. Henry Mayo Newhall Memorial
Hospital, supra 12 Cal.4th at p. 301.)
Thus, in Lisa M. v. Henry Mayo Newhall Memorial
Hospital, supra, 12 Cal.4th 291, the court held that a hospital is
not liable for a sexual assault committed by a technician under
the pretense of conducting an ultrasound examination. The
motivating emotions were not fairly attributable to work-related
conditions. (Id. at p. 301.)
But this case is not like Lisa M. In that case the
employee’s interaction with the victim was brief and the
employee’s duties were technical. The circumstances of
25.
employment were highly unlikely to engender a personal
relationship that might result in sexual exploitation.
In contrast, here there is sufficient evidence for a jury to
conclude Valencia was acting within the scope of his employment.
The duties of a mental health worker include helping patients
with daily living activities. The workers are personally involved
with the patients over an extended period of time. The patients
are vulnerable; they may suffer from impaired judgment or other
cognitive impairments. Sexual exploitation of the patients by
employees is a foreseeable hazard arising from the circumstances
of the job. That hazard was exponentially increased by Aurora’s
policies, including allowing male workers 20 minutes alone with
patients and providing inadequate training on worker-patient
boundaries.
In concluding that the ultrasound technician in Lisa M.
was not acting within the scope of his employment, the court
stated, “We deal here not with a physician or therapist who
becomes sexually involved with a patient as a result of
mishandling the feelings predictably created by the therapeutic
relationship.” (Lisa M. v. Henry Mayo Newhall Memorial
Hospital, supra, 12 Cal.4th at p. 303.) Quite the contrary. That
is what is happening here. Ample evidence supports a finding
that Valencia was acting within the scope of his employment.
The trial court erred in granting a judgment of nonsuit on the
question.
The remedy requires that we reverse and remand for a new
trial on the cause of action for which the trial court granted
nonsuit. (See McNall v. Summers (1994) 25 Cal.App.4th 1300,
1315.) Plaintiffs request, however, that we simply amend the
judgment to include a finding of respondeat superior. Plaintiffs
26.
cite no authority for such a remedy nor are we aware of such
authority. Aurora and Signature are entitled to a jury
determination on the question whether Valencia was acting
within the scope of his employment. We remand for a new trial.
(b) Ratification
As an alternative to respondeat superior, an employee may
be liable for an employee’s act where the employer subsequently
ratifies the originally unauthorized tort. (C.R. v. Tenent
Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.) The failure
to investigate or respond to charges that an employee has
committed an intentional tort or the failure to discharge the
employee may be evidence of ratification. (Ibid.) Generally,
ratification is a question of fact. (Ibid.)
Here an Aurora employee informed a supervisor that
Valencia’s reputation among other employees was so bad he had
earned the nickname “Rapey Juan.” Aurora failed to undertake
any investigation. Instead, Aurora continued to allow Valencia
up to 20 minutes alone with vulnerable female patients in rooms
that could not be observed from outside of the room. It is true
that Aurora terminated Valencia soon after it learned that he
was at a party with a recently discharged patient. But a jury
could reasonably determine that Aurora should have acted to
investigate sooner, when it first learned of Valencia’s reputation
as “Rapey Juan.” An employer is not relieved of liability for
ratification simply because it eventually terminates the
employee.
There is substantial evidence from which a jury could have
determined that Aurora ratified Valencia’s acts.
27.
VIII
Punitive Damages and Civil Code Section 1431.2
For the first time in a petition for rehearing, Plaintiffs
contend the award of punitive damages allows them to escape the
limitation on joint and several liability in Civil Code section
1431.2, subdivision (a).6 Matters raised for the first time in a
petition for rehearing are deemed waived. (See CAMSI IV v.
Hunter Technology Corp., supra, 230 Cal.App.3d at p. 1542.) The
waiver, however, is without prejudice to raising the issue in an
action to enforce the judgment.
DISPOSITION
The matter is reversed and remanded for a new trial on the
issue of respondeat superior and ratification. In all other
respects, the judgment is affirmed. Costs on appeal are awarded
to Plaintiffs.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
6 Civil Code section 1431.2, subdivision (a) provides, in
part: “In any action for personal injury, . . . based upon principles
of comparative fault, the liability of each defendant for non-
economic damages shall be several only and shall not be joint.”
28.
Kevin G. DeNoce, Judge
Superior Court County of Ventura
______________________________
Law Office of David Feldman and David Feldman for
Plaintiffs and Appellants.
Horvitz & Levy, Andrea M. Gauthier, Bradley S. Pauley;
Kendall Brill & Kelly, Nicholas F. Daum; Beach Law Group,
Thomas E. Beach, Mindee J. Stekkinger and Molly M. Loy for
Defendants and Appellants.
Cole Pedroza, Curtis A. Cole and Cassidy C. Davenport for
California Medical Association, California Dental Association,
and California Hospital Association as Amici Curiae on behalf of
Defendants and Appellants.
29.