Berkley v. Dowds

Decision Date22 June 2007
Docket NumberNo. B190963.,B190963.
Citation152 Cal.App.4th 518,61 Cal.Rptr.3d 304
CourtCalifornia Court of Appeals Court of Appeals
PartiesBrenda BERKLEY, Individually and as Personal Representative, etc., et. al., Cross-complainants and Appellants, v. Gordon DOWDS, Cross-defendant and Respondent.

Balisok & Associates, Russell S. Balisok and Steven C. Wilheim, Glendale, for Cross-complainants and Appellants.

LaFollette, Johnson, DeHaas, Fesler & Ames, Christopher P. Wend and David J. Ozeran, Los Angeles, for Cross-defendant and Respondent.

MANELLA, J.

INTRODUCTION

Appellant Brenda Berkley, on behalf of herself, as personal representative of the estate of her deceased husband, John Vel Herron, and as guardian ad litem of her daughter Katie Rose Herron, appeals from the judgment of dismissal of her cross-action against respondent Gordon Dowds, the physician who attended appellant's deceased husband before the latter died after suffering brain damage in an automobile accident. Respondent was dismissed from the cross-action after his demurrers were sustained without leave to amend. Appellant challenges the orders sustaining the demurrers to the first and third causes of action of the first amended cross-complaint (FACC) — negligence/willful misconduct and elder abuse — and the demurrers to the second and third causes of action of the second amended cross-complaint (SACC) — intentional infliction of emotional distress upon the deceased and appellant, respectively.

After an independent review of the allegations of the cross-complaints, we find no error in sustaining the demurrers. The first and third causes of action of the FACC failed to allege facts describing the injury suffered or the acts or omissions negligently performed, or showing how the acts or omissions were the proximate cause of the injury. Further, no facts were alleged showing that respondent knew that the acts or omissions would probably cause the injury, as required to show willful misconduct. The demurrer to the second cause of action of the SACC was properly sustained, because it failed to allege a compensable injury, without which there can be no cause of action for punitive damages alone. The third cause of action of the SACC failed to allege facts constituting outrageous conduct on the part of respondent. As appellant has not shown how the pleadings can be amended to state a cause of action, the trial court did not abuse its discretion in denying leave to amend.

BACKGROUND

Plaintiff 22125 Roscoe Corporation, which is not a party to this appeal, sued appellant as the personal representative of the estate of John Vel Herron, for amounts allegedly owed for medical services provided to Herron prior to his death in 2003. Appellant filed a cross-complaint on behalf of herself, the estate and her daughter, against 22125 Roscoe Corporation and respondent, Gordon Dowds, M.D., also naming Northridge Medical Group, Inc. (Medical Group) and Catholic Healthcare West, Inc., which are not parties to this appeal.1 All cross-defendants, except respondent Dowds, filed demurrers to the original cross-complaint. Respondent's counsel entered an appearance at the hearing on the demurrers, but the record does not reflect that respondent joined them or filed a separate demurrer. Respondent's first pleading was his demurrer to the FACC.

An essentially identical core set of facts was alleged in both the FACC and SACC. As the facts were incorporated by reference into each successive cause of action in each cross-complaint, we summarize them without regard to which facts appear in which count, and we summarize only the material factual allegations.2 The cross-complaints alleged that on or about July 11, 2003, Herron, appellant's husband, was injured in an automobile accident that left him with catastrophic brain damage, and that on an unspecified date thereafter, he died.3 It was alleged that during Herron's final hospitalization, he was a dependent adult with physical or mental limitations restricting his ability to carry out normal activities or to protect his rights; and that respondent Dowds was a physician employed by or otherwise associated with Medical Group, whose contract with a health maintenance organization (HMO) obligated respondent and Medical Group to provide medical care to Herron prior to Herron's death.

The cross-complaints alleged that respondent and Medical Group were obligated by Medical Group's contract with the HMO and Blue Shield to provide Herron with referrals to healthcare providers, and to obtain necessary testing and rehabilitative services in order to prevent deterioration and promote improvement following his injuries. It was further alleged that the HMO received the same monthly fee regardless of the extent of care provided. In order to increase its profit, the cross-complaints alleged, Medical Group breached its duty to provide Herron with all medically necessary testing, intensive care and rehabilitative services, by prematurely removing him from intensive care and transferring him to a nursing facility, where rehabilitation services were limited and soon afterward, eliminated.

The cross-complaints alleged that the following occurred a few days after Herron's injury, while he was in a vegetative state in the nursing facility, but allegedly aware of nearby conversation: HMO, Medical Group and respondent repeatedly urged appellant in Herron's presence to authorize his caregivers to "pull the plug," arguing that he would never recover, be able to function, return home or live a normal life; and that after the first such argument, appellant admonished his care providers against discussing Herron's medical needs, condition or prognosis in his presence, but cross-defendants continued to do so with the intent to injure Herron or with a conscious disregard for the risk of injuring him.

The cross-complaints further alleged that in the days following Herron's accident, in order to reduce their costs, HMO, Medical Group and respondent agreed upon a plan designed to obtain appellant's consent to withdraw medical treatment and support from Herron. Pursuant to the plan, cross-defendants sought appellant's consent, sometimes without emotion, sometimes angrily or aggressively and sometimes in a threatening manner. It was alleged that the arguments ended when Herron died, at which time the nursing facility staff falsely told appellant by telephone that his condition was satisfactory. When she arrived at the facility, the staff told her that he was near death, but refused to call 911. After appellant called 911 herself, the responding emergency medical technicians told her they had been summoned previously by staff and had pronounced her husband dead two hours before her arrival. It was alleged that staff then summoned the police, accusing appellant of interfering with the operation of the facility. However, upon finding her lying across Herron's body in tears, the police declined to take action. As a result of cross-defendants' conduct, appellant allegedly suffered severe emotional distress.

Appellant's FACC set forth six causes of action, naming respondent in all but the second cause of action for fraud. As against respondent, the FACC purported to allege negligence in count 1, elder abuse in count 3, intentional infliction of emotional distress upon Herron in count 4, intentional infliction of emotional distress upon appellant in count 5 and wrongful death in count 6. Respondent interposed general demurrers to each count in which he was named, and the trial court sustained the demurrers, permitting appellant to amend only the two causes of action for intentional infliction of emotional distress.4

The SACC set forth four causes of action, naming respondent only in the second and third, for intentional infliction of emotional distress upon Herron and upon appellant, respectively.5 Respondent interposed general and special demurrers and concurrently filed a motion to strike portions of the SACC, including allegations of malice, fraud and oppression, and the prayers for punitive damages. The trial court sustained the demurrers without leave to amend, citing the reasons stated in open court and in the moving papers. The court found respondent's motion to strike was moot, and placed it off calendar. The court dismissed respondent from the cross-action January 30, 2006, and notice of entry of the order was served upon appellant March 3, 2006. She timely filed a notice of appeal May 2, 2006.

DISCUSSION
1. Standard and Scope of Review

On appeal from a judgment of dismissal entered after a general demurrer is sustained, our review is de novo. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515, 101 Cal.Rptr.2d 470, 12 P.3d 720.) We examine the allegations of the complaint to determine whether it states a cause of action, and if not, we determine whether there is a reasonable possibility that it could be amended to do so. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 542, 343 P.2d 36.) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) "`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law....' [W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

"If substantial facts which constitute a cause of action are averred in the complaint or can be inferred by reasonable intendment from the matters which are pleaded, although the allegations of these facts are intermingled with conclusions of law, the complaint is not subject to demurrer for insufficiency." (Krug v. Meeham (1952) 109 Cal.App.2d 274, 277, 240 P.2d 732.) Further, "we are not limited to [appellant's] theory of recovery...

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