Brown v. Regents of University of California

• Citation: 198 Cal.Rptr. 916,151 Cal.App.3d 982
• Parties: James Cornelius BROWN et al., Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. Civ. 22575.
• Decision Date: 10 February 1984
• Court: California Court of Appeals

Page 916

198 Cal.Rptr. 916

151 Cal.App.3d 982

James Cornelius BROWN et al., Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Civ. 22575.

Court of Appeal, Third District, California.

Feb. 10, 1984.

Hearing Denied April 18, 1984.

Peter Kmeto and Gordon F. Bowley, Bowley & Kmeto, Sacramento, for plaintiffs and appellants.

John J. Hannegan, John S. Gilmore and Raymond M. Cadei, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, for defendants and respondents.

COUZENS, Associate Justice. ^*

Plaintiffs appeal from a judgment entered after a demurrer to the class action allegations of their first amended complaint was sustained without leave to amend. ¹ They contend the trial court erred in determining there is no reasonable possibility plaintiffs can establish a community of interest among the potential class members and that individual issues predominate over common questions of law and fact. We will affirm the judgment.

THE COMPLAINT ²

The allegations of the complaint focus on both negligent and intentional factual concealment and misrepresentation regarding the level of coronary care at the University of California, Davis, Medical Center (Medical Center), and the Medical Center's failure to provide adequate coronary care. The allegations are not confined to a specific date or time period.

Plaintiffs are categorized by the complaint into ten groups. Plaintiffs in groups "A" and "B" died as a result of complications and injuries sustained during coronary care at the Medical Center. Plaintiffs in groups "C" and "D" suffered complications and injuries from coronary care at the Medical Center. The remaining groups of plaintiffs are spouses and heirs of the four principal groups.

The complaint contains eleven causes of action. Preliminary allegations state that the class plaintiffs "are individuals who, induced by certain representations, agreed to receive coronary care and medical treatment from Defendants, and as a result, suffered injuries therefrom." The first cause of action is for intentional concealment, based on the fact defendants "suppressed and concealed material information concerning the risks associated with the receipt of coronary care rendered by the [Medical Center]." Specifically, plaintiffs allege defendants failed to disclose that the incidence of mortality and serious medical complications is eight times greater at the Medical Center than other Sacramento facilities and higher than the national average. The complaint further states that but for the suppression of this information, plaintiffs would not have been injured.

The second cause of action is for intentional misrepresentation. Plaintiffs contend defendants made oral and written representations regarding the quality of coronary care received at the Medical Center: that the most modern equipment was used, that patients benefit from the most advanced surgical techniques and equipment available, that patients are provided specially trained physicians and staff, that the hospital stay is made as comfortable and short as possible, and that appropriate referrals are made as needed. Plaintiffs allege that each representation was false, that plaintiffs relied on such representations and, as a consequence, they suffered damages.

The third cause of action is for battery. This cause of action is predicated on the theory that plaintiffs' consent to surgery was not "informed" by reason of the failure to disclose the "morbidity and mortality statistics resulting from elective heart surgery." If full disclosure had been made, say plaintiffs, either the surgery would not have been performed or would have been performed at another facility.

The fourth cause of action is for negligence in failing to comply with numerous government and industry standards relating to the quality of coronary care. These violations range from the failure to maintain peer review groups to failure to monitor patient care.

The balance of the causes of action represent refinements and extensions of the first four causes of action. The fifth cause of action is for negligent misrepresentation of the facts set forth in the first two causes of action. The sixth cause of action is for breach of contract. In this regard plaintiffs allege the conduct contained in the prior five causes of action constitutes a breach of defendants' agreement to provide proper coronary care. The seventh cause of action is for breach of the implied covenant of good faith and fair dealing. Plaintiffs contend the conduct alleged in the first six causes of action contravenes the good faith duty imposed by the fiduciary relationship between the parties.

The eighth cause of action is for wrongful death. The ninth cause of action claims the conduct set forth in the first five causes of action violates the Civil Rights Act of 1871. (42 U.S.C., § 1983 et seq.) The tenth cause of action for loss of consortium is brought by the present and surviving spouses of plaintiffs in groups A through D. The eleventh cause of action is a survival action brought by Doe plaintiffs on behalf of the surviving heirs of plaintiffs in groups A and B. The action is based on the previous allegations of misconduct.

DISCUSSION

The authority for filing class actions is found in Code of Civil Procedure section 382, the relevant part of which provides: "[W]hen the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." Under this section, there are two prerequisites to a proper class action: (1) there must be an ascertainable class, and (2) there must be a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented. These prerequisites have received extensive discussion in the opinions of the California Supreme Court in Daar v. Yellow Cab Co., supra, 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732, and Vasquez v. Superior Court (1971) 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964. The two requirements are substantially intertwined. "The existence of an ascertainable class depends in turn upon a demonstrated community of interest among the purported class members in common questions of law and fact." (Bartlett v. Hawaiian Village, Inc. (1978) 87 Cal.App.3d 435, 438, 151 Cal.Rptr. 392; Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 706, 63 Cal.Rptr. 724, 433 P.2d 732.)

Those circumstances which give rise to a sufficient community of interest vary widely in deference to the policy favoring the survival of class actions as an expeditious procedure for the resolution of certain types of litigation. (Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 783, 98 Cal.Rptr. 779.) Accordingly, interpretation of section 382 generally has broadened the perimeters of the class action such that "we are no longer fettered with rigid and unbending concepts" in determining whether such an action has been properly pleaded. (Bozaich v. State of California (1973) 32 Cal.App.3d 688, 694, 108 Cal.Rptr. 392.) In order to establish a class action, for example, it is not necessary to have a common recovery (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 707, 63 Cal.Rptr. 724, 433 P.2d 732), nor does the fact that separate transactions are involved preclude such an action (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 809, 94 Cal.Rptr. 796, 484 P.2d 964). Whenever there is a "reasonable possibility" plaintiffs can plead a prima facie community of interest among class members, "the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation." (Rose v. Medtronics, Inc. (1980) 107 Cal.App.3d 150, 154, 166 Cal.Rptr. 16; Vasquez v. Superior Court, supra, 4 Cal.3d at p. 813, 94 Cal.Rptr. 796, 484 P.2d 964; La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 876-877, 97 Cal.Rptr. 849, 489 P.2d 1113.)

The right to bring a class action, however, is not unlimited. Class actions will not be permitted, for example, where there are diverse factual issues to be resolved, even though there may be many common questions of law. "The ultimate question in every case of this type is whether, given an ascertainable class, the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants." (Collins v. Rocha (1972) 7 Cal.3d 232, 238, 102 Cal.Rptr. 1, 497 P.2d 225; Bozaich v. State of California, supra, 32 Cal.App.3d at p. 695, 108 Cal.Rptr. 392.) If the ability of each member of the class to recover clearly depends on a separate set of facts applicable only to him, then all of the policy considerations which justify class actions equally compel the dismissal of such inappropriate actions at the pleading stage. In our review of the complaint at issue, we have determined that individual issues substantially predominate over common questions.

As discussed above, the primary theories of...