Wright v. Regents of the U. of Cal. CA2/3

Filed 5/18/23 Wright v. Regents of the U. of Cal. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
WALI WRIGHT, B317965
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCV07386)
THE REGENTS OF THE
UNIVERSITY OF
CALIFORNIA et al.,
Defendants and
Respondents.
APPEAL from judgments of the Superior Court of Los
Angeles County, Melvin D. Sandvig, Judge. Affirmed.
Stephen Kent Rose for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson;
Kjar McKenna & Stockalper and Patrick E. Stockalper for
Defendant and Respondent The Regents of the University of
California.
Pollak, Vida & Barer, Daniel P. Barer and Hamed Amiri
Ghaemmaghami for Defendant and Respondent County of Los
Angeles.
_________________________
Plaintiff Wali Wright (plaintiff) suffered injuries to his leg
when a nurse and nurse assistant (nurses) repositioned him in
his hospital bed while he was a patient at Olive View UCLA
Medical Center (the hospital). Plaintiff sued Los Angeles County
(the county) and the University of California (Regents) for
negligence based on a theory of vicarious liability. Both parties
demurred. The county asserted that plaintiff had failed to
comply with the claims presentation requirements in the
Government Claims Act. Regents asserted that plaintiff had
failed to adequately plead it had an agency or ostensible agency
relationship with the nurses. The trial court sustained both
demurrers without leave to amend.
On appeal, plaintiff contends that he adequately pled that
the county should be equitably estopped from relying on the lack
of compliance with the claims process as a defense to his action.
He further contends that he adequately alleged agency and
ostensible agency between Regents and the nurses. We disagree,
and accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Plaintiff was an inpatient at Olive View UCLA Medical
Center for approximately six months in 2018. During his stay,
nurses overtwisted plaintiff’s leg while repositioning him in his
bed, spraining his knee and tearing his medial meniscus.
2
II. Procedural Background
A. Original and first amended complaints
On May 16, 2019, plaintiff filed his original complaint.1 He
subsequently filed a first amended complaint. Neither the
original nor the first amended complaints are included in the
appellant’s appendix.
B. Second amended complaint
1. The complaint
In September 2019, plaintiff filed a second amended
complaint (SAC) for negligence against the county and Regents.2
Plaintiff alleged that Regents and the county, “acting through
their employees,” negligently caused plaintiff’s injury. He further
alleged that “[Regents] knowingly permitted, aided, . . . and
encouraged [the county] . . . to operate [the hospital] in the name
of the University of California and as the actual, apparent, and
ostensible agent of . . . [Regents]” and that Regents “thereby
assumed liability” for the nurses’ negligence. Plaintiff further
alleged that “[the county] concealed its relationship with UCLA
Medical Center in violation of statute . . . and is equitably
estopped from relying on claims statutes.”
1 This action was filed in Alameda County Superior Court,
and was transferred to Los Angeles County Superior Court in
early 2021 upon motion by Regents.
2 Plaintiff also named the nurses as defendants, but as of the
date of the trial court’s ruling on the demurrers to the TAC,
plaintiff had not filed proofs of service as to those parties.
3
2. Demurrers
Regents and the county separately demurred to the SAC.3
The trial court sustained both demurrers with leave to amend.
In sustaining Regents’ demurrer, the trial court stated that “it is
not clear if [p]laintiff is alleging that the [nurses] are the direct
employees of [Regents] or ostensible agents of [Regents],” and the
SAC does not “allege sufficient facts to support a finding that the
other defendants were/are the ostensible agents of [Regents].”
The trial court sustained the county’s demurrer for failure to
allege compliance or excuse from compliance with the
Government Claims Act (Gov. Code, § 810 et seq.).4 In doing so,
it rejected plaintiff’s argument that he alleged a sufficient basis
to equitably estop the county from relying on the claims statute
because he alleged “no facts to support the conclusion that [the
county] ‘concealed its relationship with UCLA Medical Center.’ ”
The trial court also granted the county’s request for judicial
notice of “[t]he fact that Olive View Medical Center is operated by
the County of Los Angeles, and not a separate entity.”
C. Third Amended Complaint
1. The complaint
In August 2021, plaintiff filed his operative third amended
complaint (TAC), naming the same defendants and alleging the
same claim, but this time describing the nurses as “joint
employees” and “actual and ostensible employees” of defendants.
The TAC also added allegations purporting to form a basis to
3 The briefing on the demurrers to the SAC is not in the
appellant’s appendix.
4 All further statutory references are to the Government
Code unless otherwise stated.
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equitably estop the county from asserting its defense under the
Government Claims Act. These allegations include: The county
“concealed its ownership and operation of LA County Olive View
UCLA Medical Center from [p]laintiff and from the general
public in violation of statute by calling the facility ‘Olive View
Medical center,” i.e., by “removing the words ‘LA County’ from
the facility’s name and identifying the facility in most of its many
and various publicly facing statements (including signage,
labeling, documentation, and web pages).” During his six month
stay, plaintiff alleged he “never saw any sign, literature,
document or heard anything indicating that the facility was
owned or operated by [the county].” Plaintiff alleged that he and
his counsel “relied to their detriment” on the county’s
representations that the facility was named “ ‘Olive View UCLA
Medical Center’ ” in refraining from filing a claim with the county
“until . . . more [than] a year had elapsed after [plaintiff’s] injury,
and his time to file a government claim or an application for leave
to present a late claim . . . had expired.”
2. Demurrers
Defendants separately demurred to the TAC. Following
briefing and hearings on each demurrer, the trial court sustained
both without leave to amend.
With respect to Regents, the trial court stated that
plaintiff’s allegations regarding agency were “contradictory and
conclusory” because the nurses “cannot be both [the] direct
employee and ostensible agent” of Regents, and thus Regents’
“purported liability is still uncertain.” The trial court further
stated that the TAC, like the SAC, “fails to allege sufficient facts
to support a finding that [the nurses] were/are the ostensible
agents of [Regents]” because it “does not allege sufficient facts to
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establish that: (1) [Regents] made representations regarding the
agency; (2) [p]laintiff justifiably relied on such representations;
and (3) [p]laintiff was injured as a result of such reliance. [(See
J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388,
404.)]” The trial court also granted Regents’ request for judicial
notice of the hospital’s license information shown on the
California Health Facilities Information Database (available to
the public on the internet), a legal description of the property
ownership for the hospital’s location from the Los Angeles County
Tax Assessor’s office, a provision from the County of Los Angeles
Charter showing that the Director of Hospitals is in charge of
supervising the county’s hospitals, and of the fact that the
hospital is “a County of Los Angeles Hospital.”
With respect to the county, the trial court ruled that the
TAC still “failed to plead sufficient facts to establish the second
and fourth elements of estoppel,” namely, that “the [c]ounty
intended that its conduct would be acted upon, or so acted that
[p]laintiff had a right to believe it was so intended and [p]laintiff
reasonably relied on the conduct to his injury.”
Following entry of judgments dismissing Regents and the
county, plaintiff timely appealed.
DISCUSSION
We independently review a trial court’s order sustaining a
demurrer to determine whether the operative complaint states
facts sufficient to constitute a cause of action. (Centinela
Freeman Emergency Medical Associates v. Health Net of
California, Inc. (2016) 1 Cal.5th 994, 1010; Lee v. Hanley (2015)
61 Cal.4th 1225, 1230.) In doing so, we accept as true all
material facts properly pled in the operative complaint, but not
contentions, deductions, or conclusions of fact or law. (Winn v.
6
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152; Evans v.
City of Berkeley (2006) 38 Cal.4th 1, 6.) We also accept as true all
materials properly subject to judicial notice, and disregard
allegations in the complaint inconsistent with the judicially
noticed facts. (Smyth v. Berman (2019) 31 Cal.App.5th 183, 191.)
“[I]t is an abuse of the trial court’s discretion to sustain a
demurrer without leave to amend if there is a reasonable
possibility the plaintiff can amend the complaint to allege any
cause of action.” (Jensen v. Home Depot, Inc. (2018) 24
Cal.App.5th 92, 97.)
I. The County’s Demurrer
California’s Government Claims Act (§ 810 et seq.) (the
Claims Act) waives state sovereign immunity and permits
plaintiffs to sue “public entities and their employees” for “all
noncontractual bases of compensable damage or injury that
might be actionable between private persons.” (Caldwell v.
Montoya (1995) 10 Cal.4th 972, 980; Leon v. County of Riverside
(2021) 64 Cal.App.5th 837, 846; Gov. Code, § 815, subd. (a).)
Before filing a suit, a plaintiff alleging an “injury to person or to
personal property,” must present a written claim to the public
entity “not later than six months after the accrual of the cause of
action” (§ 911.2, subd. (a)), or, if a plaintiff fails to do so, he may
apply to the public entity “for leave to present that claim” “within
a reasonable time not to exceed one year after the accrual of the
cause of action” (§ 911.4, subds. (a) & (b)). A plaintiff’s failure to
comply with the Claims Act’s requirements bars any lawsuit
against the public entity or public employee, and thus provides a
ground for sustaining a demurrer. (City of Stockton v. Superior
Court (2007) 42 Cal.4th 730, 738; State of California v. Superior
Court (2004) 32 Cal.4th 1234, 1239.)
7
Plaintiff acknowledges that he failed to timely file a claim
with the county or seek leave to do so within the Claims Act’s
time limits. He argues, however, that the trial court erred in
sustaining the county’s demurrer because he alleged sufficient
facts to establish that the county was estopped from asserting the
Claims Act as a defense. We disagree.
“[E]quitable estoppel bars a public entity from asserting
noncompliance with the Government Claims Act where the
conduct of its agents or employees prevented or deterred the
claimant from complying with the requirements of the statute.”
(Estill v. County of Shasta (2018) 25 Cal.App.5th 702, 711
(Estill).) A plaintiff asserting equitable estoppel must specifically
plead the facts establishing estoppel (Sofranek v. County of
Merced (2007) 146 Cal.App.4th 1238, 1250-1251 (Sofranek); Mills
v. Forestex Co. (2003) 108 Cal.App.4th 625, 641 (Mills)), which
include that the defendant (1) was apprised of the facts; (2)
intended its conduct to be acted upon, or acted so that the
plaintiff had a right to believe it was so intended; (3) the plaintiff
was ignorant of the true state of facts; and (4) the plaintiff relied
upon the conduct to his injury. (J.M. v. Huntington Beach Union
High School Dist. (2017) 2 Cal.5th 648, 656; Driscoll v. City of Los
Angeles (1967) 67 Cal.2d 297, 305; Castaneda v. Department of
Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1064
(Castaneda).)
In the operative complaint, plaintiff alleged that the county
omitted “LA County” from the hospital’s name (Olive View UCLA
Medical Center) in various “publicly facing statements,” which
“creat[ed] the false impression that the facility is owned and
operated solely by [Regents].” He further alleged that the county
did so “purposefully” to “conceal[ ] its ownership and
8
participation in the operation of [the hospital]” and that he relied
on the county’s representations to his detriment. He contends
these allegations were sufficient to plead an affirmative act upon
which he reasonably relied.
In support of his position, plaintiff relies principally on
Elmore v. Oak Valley Hospital Dist. (1988) 204 Cal.App.3d 716(Elmore). There the plaintiff sued a public agency hospital
without first filing the requisite government claim. (Id. at
p. 720.) The hospital demurred on that ground, and the plaintiff
asserted equitable estoppel on the basis that the hospital
operated under a different name than the name it had provided
to the Secretary of State for use in the Roster of Public Agencies.
(Id. at pp. 719-720, 723-724 [hospital identified itself as “Oak
Valley Hospital District” instead of “Oak Valley District
Hospital”].) As a result, even though plaintiff’s counsel contacted
the Secretary of State to determine whether the hospital was a
public agency, the response was that “no such entity was [listed]”
in the “Roster of Public Agencies,” leading the plaintiff to forgo
filing a government claim. (Id. at pp. 720, 723.) On appeal, the
court held that the facts pled by plaintiff were sufficient to
constitute an estoppel.
This case is unlike Elmore. Here plaintiff does not allege
that the hospital affirmatively acted in a way that prevented him
from learning that the county operated the facility. Nor does he
allege that he or his attorney exercised any due diligence by
checking whether the hospital was a public agency. (Bernson v.
Browning-Ferris Industries (1994) 7 Cal.4th 926, 936 (Bernson)
[“[t]he rule of equitable estoppel includes, of course, the
requirement that the plaintiff exercise reasonable diligence”];
Castaneda, supra, 212 Cal.App.5th at pp. 1066-1067 [estoppel
9
particularly disfavored where party asserting it is represented by
an attorney].)5 Plaintiff merely alleges that the hospital omitted
reference to the county in its name. That is well short of the sort
of calculated conduct that could give rise to estoppel. (Castaneda,
at pp. 1065-1066 [“ ‘ “ ‘[m]ere silence will not create estoppel
unless the silent party was under some obligation to speak, and a
party invoking such estoppel must show that it was the duty of
the other to speak . . . ’ ” ’ ”].)
In an apparent effort to establish that the hospital’s name
was a purposeful attempt to conceal its relationship with the
county, plaintiff points out that Welfare and Institutions Code
sections 14166.1, subdivision (d)(8), and 14184.10,
subdivision (f)(1)(g)(ii), designate the hospital both as public and
as part of the LA County Health Systems Hospitals. But the fact
that the hospital’s affiliation with the county is plainly referenced
in a public law does not demonstrate concealment. Rather it
underscores plaintiff’s lack of diligence in determining whether
the hospital was a public entity, a fact which is further supported
by the trial court’s judicial notice of “the fact that [the hospital] is
operated by the [c]ounty . . . is a matter of public record not
reasonably subject to dispute.”6
5 Although Bernson articulated this rule in the context of
assessing equitable estoppel from asserting a statute-of-
limitations defense, “the policy considerations with respect to
estoppel to assert the statute of limitations are the same as those
relating to estoppel to assert the [government] claim statute.”
(Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353, 357.)
6 Plaintiff does not appeal the trial court’s ruling granting
the county’s request for judicial notice on this basis.
10
Finally, plaintiff argues that estoppel is an issue that
cannot be resolved on demurrer. Although estoppel is an issue of
fact, its resolution is proper on demurrer where, as here, the
“undisputed facts establish[ ] that equitable estoppel does not
apply.” (Sofranek, supra, 146 Cal.App.4th at p. 1251; Mills,
supra, 108 Cal.App.4th at p. 641; accord Estill, supra, 25
Cal.App.5th at p. 711.)
Accordingly, we conclude that the trial court did not err in
sustaining the county’s demurrer. Moreover, because plaintiff
makes no showing that he could amend his complaint to
adequately allege estoppel, it was not an abuse of discretion for
the court to deny further leave to amend.
II. Regents’ Demurrer
“An agent is one who represents another, called the
principal, in dealings with third persons. Such representation is
called agency.” (Civ. Code, § 2295.) “ ‘An agency is either actual
or ostensible.’ ” (Franklin v. Santa Barbara Cottage Hospital
(2022) 82 Cal.App.5th 395, 403, citing Civ. Code, § 2298.) “An
agency is actual when the agent is really employed by the
principal.” (Civ. Code, § 2299.) For an actual agency to exist,
“ ‘ “[t]he principal must in some manner indicate that the agent is
to act for him, and the agent must act or agree to act on his
behalf and subject to his control.” ’ ” (Franklin, at p. 403.)
An agency is ostensible when a principal intentionally or
negligently causes a third person to believe another individual is
acting as its agent, even though the individual is not so employed
by the principal. (Taylor v. Financial Casualty & Surety, Inc.
(2021) 67 Cal.App.5th 966, 999.) “ ‘ “Liability of the principal for
the acts of an ostensible agent rests on the doctrine of ‘estoppel,’
the essential elements of which are representations made by the
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principal, justifiable reliance by a third party, and a change of
position from such reliance resulting in injury.” ’ ” (Valentine v.
Plum Healthcare Group LLC (2019) 37 Cal.App.5th 1076, 1087
(Valentine).)
Plaintiff argues that he sufficiently pleaded ostensible
agency because the TAC contains allegations that he reasonably
believed that Regents operated the hospital and further believed
that the nurses were Regents’ employees. To demonstrate the
sufficiency of his pleadings, plaintiff cites Mejia v. Community
Hospital of San Bernardino (2002) 99 Cal.App.4th 1448 (Mejia) a
case in which a patient sought to hold a hospital liable for the
negligence of a non-employee doctor who provided treatment to a
patient at the hospital. Mejia held that in those circumstances,
the doctrine of ostensible agency is now commonly expressed as
having “two elements: (1) conduct by the hospital that would
cause a reasonable person to believe that the physician was an
agent of the hospital, and (2) reliance on that apparent agency
relationship by the plaintiff.” (Id. at p. 1453.)
Unlike Mejia and similar cases, here plaintiff seeks to hold
Regents, not the hospital where he was treated, liable for the
nurses’ negligence. To prevail against Regents on a theory of
ostensible liability, plaintiff would have to show that Regents
affirmatively created a false impression of agency, upon which
plaintiff reasonably relied. (Valentine, supra, 37 Cal.App.5th at
p. 1087.)
The allegations in the TAC are insufficient. Plaintiff
alleges that Regents was affiliated with and offered residency
programs at the hospital. Mere affiliation, however, is not
enough to create a false impression of agency. (Pereda v. Atos Jiu
Jitsu LLC (2022) 85 Cal.App.5th 759, 772 [“[T]he mere use of a
12
‘trade name’ is insufficient to ‘create’ even an ‘ostensible’ ‘agency
relationship[ ]’ ”].) Nor does it follow that Regents’ operation of
residency programs at the hospital would create a false
impression that Regents had an agency relationship with every
employee that worked there. But even if it did, plaintiff does not
allege he was aware of those programs when he was injured, let
alone that he relied to his detriment upon them.7 Plaintiffs’
allegations that “some of the doctors” working at the hospital
“told him” that they “were affiliated with UCLA as medical
students, interns, or residents” are equally inadequate. Conduct
by actors other than Regents provides no support for plaintiff's
theory. (J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th
388, 404 [“ostensible agency cannot be established by the
representations or conduct of the purported agent; the
statements or acts of the principal must be such as to cause the
belief the agency exists”].)
Plaintiff also notes, without any discussion, that the TAC
alleged that the nurses were “joint employees” of the county and
Regents. Regents argues, and we agree, that plaintiffs’
conclusory allegations lack even the cursory detail required to
allege an agency relationship between Regents and the nurses.
(Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919,
924 [“For purposes of reviewing a demurrer, we accept the truth
of material facts properly pleaded in the operative complaint, but
not contentions, deductions, or conclusions of fact or law”].)
7 Nor could he. Plaintiff’s counsel conceded at argument that
plaintiff was not aware of and did not rely on Regents’
involvement or affiliation with the hospital in determining where
he would receive treatment.
13
Because plaintiff has not proffered any amended language
to show how he might allege that the nurses were the agents or
ostensible agents of Regents, the trial court did not abuse its
discretion in denying leave to amend.8
DISPOSITION
The judgments are affirmed. The respondents may recover
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
HEIDEL, J.*
We concur:
EDMON, P. J.
EGERTON, J.
8 Indeed, plaintiff’s counsel asserted at argument that he did
not want to further amend the complaint.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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