Bundren v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: STONE
• Citation: Bundren v. Superior Court, 193 Cal.Rptr. 671, 145 Cal.App.3d 784 (Cal. App. 1983)
• Decision Date: 08 August 1983
• Parties: Elaine M. BUNDREN, Petitioner, v. SUPERIOR COURT OF the State of California for the COUNTY OF VENTURA, Respondent, LOS ROBLES REGIONAL MEDICAL CENTER, Real Party in Interest. Civ. 68237.

Page 671

193 Cal.Rptr. 671

145 Cal.App.3d 784

Elaine M. BUNDREN, Petitioner, v. SUPERIOR COURT OF the State of California for the COUNTY OF VENTURA, Respondent LOS ROBLES REGIONAL MEDICAL CENTER, Real Party in Interest.

Civ. 68237.

Court of Appeal, Second District, Division 6, California.

Aug. 8, 1983.

George S. Vorgitch, Woodland Hills, for petitioner.

No appearance by respondent.

Archbald & Spray, and Ann G. Diener, Santa Barbara, for real party in interest.

OPINION AND ORDER FOR PEREMPTORY WRIT OF MANDATE

STONE, Presiding Justice.

Elaine M. Bundren (hereafter referred to as "Petitioner") seeks a writ of mandate to compel the trial court to vacate its order granting partial summary judgment on her cause of action for intentional infliction of emotional distress against Los Robles Medical Center (hereafter referred to as "Los Robles"). ¹

A trial court is justified in granting summary judgment only if "the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the hospital to judgment, and those of the plaintiff, liberally construed, show that there was no issue of fact to be tried." (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) Where reasonable parties may differ, the question is for the jury to decide. (Bigbee v. Pacific Tel. & Tel. (1983) 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947.) Our review of the record reveals that a triable issue of fact does exist and, therefore, a peremptory writ of mandate will issue.

On February 4, 1981, petitioner filed a complaint against Los Robles seeking actual and punitive damages for negligent and intentional infliction of emotional distress. On February 3, 1983, Los Robles filed a motion for partial summary judgment seeking dismissal of petitioner's cause of action for intentional infliction of emotional distress. In the main, Los Robles asserted that its method of seeking to collect from petitioner was in a manner which was consistent with common business practices. (Girard v. Ball (1981) 125 Cal.App.3d 772, 178 Cal.Rptr. 406; Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 395, 89 Cal.Rptr. 78.)

In opposition to the motion for partial summary judgment, petitioner filed the following declaration:

"I was admitted to Defendant Los Robles Regional Medical Center on January 11, 1981, for elective surgery to be performed on the following day.[ ² Upon my admission I filled out all necessary forms presented to me including but not limited to required medical insurance information, financial responsibility, and general background information.

"...

"The surgery was performed on January 12, 1981.

"The following day, January 13, 1981, during the evening dinner hour, while still under the effects of surgery, I was called by Defendant's business office. My mother, Mary Bold, was visiting me at the time. Prior to the telephone call, which was received by my mother, no one from the hospital nursing staff inquired as to my physical status or if I was to receive a telephone call from the business office.[ ³

"The caller identified herself as someone from the business office and informed me that my insurance carrier had denied coverage and then proceeded to question me on how I was to pay the hospital bill. The caller continued a pattern of inquiry as to where I could obtain money, how I could apply this to be bill, and when they could expect payment. I had no response to her question as I did not know at the time how I could make the payments or where the source of funds would come from. I asked that the caller speak with my attorney. The caller did not seem to be interested in anything I said other than wanting some commitment regarding the payment of the hospital bill. Her questioning continued at least for 20 to 30 minutes. Her mannerism was abusive, rude and inconsiderate.

"As the caller continued her questioning, I became more upset and finally I was unable to continue the conversation. I believed that I would be discharged if I did not make a commitment toward payment of the medical bill.[ ⁴ I began to cry uncontrollably and my mother, who was observing my reaction to the telephone call, came to my aid, and the telephone call was terminated.

"I immediately felt sick to my stomach and could not stop crying. Although it was not the time of the month for my period, I shortly thereafter had a spontaneous menstrual flow and was required to go to the washroom to clean myself and allow the nurses to change the bedding.

"My evening meal was left uneaten, and I thereafter requested a sedative which was brought to me by the nurse."

At the hearing on February 24, 1983, the court granted Los Robles' motion, holding that no triable issues of material fact existed as to petitioner's cause of action for intentional infliction of emotional distress. Judgment in favor of Los Robles on the sixth cause of action was entered on March 2, 1983.

At the outset, we recognize that the attempted collection of a debt, by its very nature, often causes the debtor to suffer emotional distress. Frequently, the creditor intentionally seeks to create concern and worry in the mind of the debtor in order to induce payment. However, in a society greatly dependent upon the extension of credit, it is important that a creditor be allowed a certain degree of freedom in demanding payment. (Czap v. Credit Bureau (1970) 7 Cal.App.3d 1, 5, 86 Cal.Rptr. 417; LeDoux v. Credit Research Corp. (1975) 52 Cal.App.3d 451, 455, 125 Cal.Rptr. 166.) As stated in Dawson v. Associates Financial Serv. Co. of Kan., Inc. (1974) 215 Kan. 814, 529 P.2d 104, 110:

"When one accepts credit, the debtor impliedly consents for the creditor to take reasonable steps to pursue payment even though it may result in actual, though not actionable, invasion of privacy. [Citation omitted.] In the debtor-creditor situation the right of a debtor to privacy is subject to the right of a creditor to take reasonable steps to collect the debt. [Citation omitted.]

"In this area of the developing law, the business community must be given some latitude to pursue reasonable methods of collecting debts even though such methods often might result in some inconvenience or embarrassment to the debtor. [Citation omitted.]

"Debtors cannot object to some inconvenience in connection with their creditor's efforts to collect a debt. It has been held that debtors' tender sensibilities are protected only from oppressive, outrageous conduct. [Citations omitted.]"

While it is recognized that the creditor possesses a qualified privilege to protect its economic interest, the privilege may be lost should the creditor use outrageous and unreasonable means in seeking payment. (Bowden v. Spiegel, Inc. (1950) 96 Cal.App.2d 793, 795, 216 P.2d 571.) ⁵ The applicable test is whether or not the creditor goes beyond "all reasonable bounds of decency" in attempting to collect the debt. (Rest., 2d Torts (1965) § 46.) Under the view set forth in the Restatement, a collector who happens to demand payment in a rude and insolvent manner is not liable unless other factors are present. (Id., § 46, com. e, illus. 8, p. 75.) Such "other factors" may be supplied where the creditor has knowledge that the debtor is susceptible to emotional distress by reason of some physical or mental condition. ⁶

Case law provides illustrations of the Restatement rule. In Dawson v. Associates Financial Serv. Co. of Kan., supra, the court reversed the judgment in favor of a creditor where the evidence revealed that the creditor made telephone contacts to the debtor and her parents demanding payment and threatening repossession while it had knowledge that the debtor was suffering from multiple sclerosis. The court, in Christensen v. Swedish Hospital (1962) 59 Wash.2d 545, 368 P.2d 897, found that plaintiffs stated a cause of action for intentional infliction of emotional distress where it was alleged that the hospital had knowledge of plaintiffs' advanced age and poor physical health but nonetheless phoned and wrote to plaintiffs demanding payment and threatening criminal prosecution.

Likewise, liability has been found in instances in which the collector has been aware of a debtor's bad heart (Personal Finance Co. of Atlanta v. Loggins (1935) 50 Ga.App. 562, 179 S.E. 162); physical hypertension (Clark v. Associated Retail Credit Men of Washington, D.C. (D.C.Cir.1939) 105 F.2d 62); advanced pregnancy (Digsby v. Carroll Baking Co. (1948) 76Ga.App. 656, 47 S.E.2d 203; Kirby v. Jules Chain Stores (1936) 210 N.C. 808, 188 S.E. 625); heart condition (Interstate Life Ins. Co. v. Brewer (1937) 56 Ga.App. 599, 193 S.E. 458); blindness (Turman v. Central Billing Bureau (1977) 279 Or. 443, 568 P.2d 1382); epilepsy (Watson v. Franklin Finance (Mo.App.1976) 540 S.W.2d 186); or nervous disorder (Pacific Mutual Life Ins. Co. v. Tetirick (1938) 185 Okl. 37, 89 P.2d 774.) ⁷

The above-cited decisions are in accord with California cases. The courts in this state have adhered to the rule that the elements of a prima facie case for the tort of intentional infliction of emotional distress are that defendant's extreme or outrageous acts be made in reckless disregard of the fact that his or her conduct would cause plaintiff severe or extreme emotional distress. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975; Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 296, 131 Cal.Rptr. 547; Vargas v. Ruggiero (1961) 197 Cal.App.2d 709, 721, 17 Cal.Rptr. 568; Bowden v. Spiegel, Inc., supra, 96 Cal.App.2d at p. 795, 216 P.2d 571.)

Here, petitioner presented evidence raising questions of fact: that is, whether Los Robles' agent (1) acted in an unreasonable and outrageous manner; (2) acted in reckless disregard of petitioner's physical condition; (3) abused the special relationship that exists between hospital and patient.

The caller was not, as...