Ellenberger v. Espinosa, E011662

• Court: California Court of Appeals
• Citation: 30 Cal.App.4th 943,36 Cal.Rptr.2d 360
• Decision Date: 18 November 1994
• Docket Number: No. E011662,E011662
• Parties: James Dennis ELLENBERGER, Plaintiff and Appellant, v. Jennie ESPINOSA, Defendant and Respondent.

Page 360

36 Cal.Rptr.2d 360 30 Cal.App.4th 943 James Dennis ELLENBERGER, Plaintiff and Appellant,
v.
Jennie ESPINOSA, Defendant and Respondent. No. E011662. Court of Appeal, Fourth District, Division 2, California. Nov. 18, 1994.

Page 361

[30 Cal.App.4th 946] Andrew I. Roth, Riverside, for plaintiff and appellant.

Daniel L. Lungren, Atty. Gen., Robert H. Francis, Supervising Deputy Atty. Gen., and Joel A. Davis, Deputy Atty. Gen., for defendant and respondent.

OPINION

HOLLENHORST, Associate Justice.

Plaintiff, James Dennis Ellenberger, D.D.S., appeals from a judgment entered against him and in favor of defendant Jennie Espinosa, (hereinafter "defendant") based on the trial court's action of sustaining her demurrer to plaintiff's second amended complaint without leave to amend.

30 Cal.App.4th 947

PROCEDURAL BACKGROUND

On April 10, 1992, plaintiff filed his second amended complaint against defendant and several other parties, including the State of California. Five causes of action were alleged against defendant: (1) conspiracy to violate Civil Rights (42 U.S.C. § 1983); (2) slander per se; (3) intentional interference with contractual relationships; (4) intentional interference with prospective economic advantage; and (5) conspiracy. On May 14, 1992, defendant demurred to each of these causes of action. On June 26, 1992, plaintiff filed his opposition to the demurrer. The court reviewed defendant's challenges, sustained the demurrer without leave to amend, and entered judgment in her favor. Plaintiff appeals from such judgment.

STANDARD OF REVIEW

Where a trial court sustains a demurrer without leave to amend, we review such action under the abuse of discretion standard. (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1.) If there is a reasonable possibility that the pleading can be cured by an amendment, the trial court's ruling will be reversed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

On review, we examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908, 274 Cal.Rptr. 186.) We treat the demurrer as admitting all material facts which were properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.) However, we will not assume the truth of contentions, deductions, or conclusions of fact or law (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479) and we may disregard any allegations that are contrary to the law or to a fact of which judicial notice may be taken. (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955, 199 Cal.Rptr. 789.)

DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO GRANT PLAINTIFF LEAVE TO AMEND HIS COMPLAINT?

In his opening brief, plaintiff focuses his arguments on the civil rights and defamation causes of action. Thus, plaintiff's opening brief only addresses the two causes of action: (1) conspiracy to violate Civil Rights (42 U.S.C. § 1983), and (2) slander per se. The other three causes of action, intentional interference with contractual relationships, intentional interference with prospective economic

Page 362

advantage, and conspiracy are not addressed.

[30 Cal.App.4th 948] We are not required to make an independent unassisted study of the record in search of error or grounds to challenge a trial court's action. We are entitled to the assistance of counsel. When a brief fails to contain a legal argument with citation of authorities on the points made, we may "treat any claimed error in the decision of the court sustaining the demurrer as waived or abandoned." (Wilson v. Board of Retirement (1957) 156 Cal.App.2d 195, 212-213, 319 P.2d 426; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 479, pp. 469-471.) Thus, our review is limited to only those causes of action briefed on appeal.

A. Facts. ¹

Since June, 1970, plaintiff has been engaged in the practice of dentistry, treating pediatric, adult, Denti-Cal, insured, private, handicapped, and indigent patients. Beginning in September or October 1990, plaintiff was accused of physically and psychologically abusing, threatening, or harming one or more of his patients, who were children, during the course of administering dental care. Investigation by local police and prosecutors concluded that the accusations were false and groundless.

However, in Spring 1991, the Board of Dental Examiners conducted an administrative hearing regarding the accusations wherein evidence was presented and plaintiff was given an opportunity to be heard in his defense. After taking the matter under submission, the administrative law judge submitted the proposed decision which was adopted by the board on July 12, 1991. Both parties petitioned the board for reconsideration. Their petitions were granted and on March 13, 1992, the board entered its decision (case no. 1990-19, OAH L-52153) which found that good cause existed (1) to impose discipline on plaintiff for acts of gross negligence and repeated negligent acts pursuant to Business and Professions Code section 1670; (2) [30 Cal.App.4th 949] to impose discipline on plaintiff for acts of gross immorality substantially related to the practice of dentistry pursuant to Business and Professions Code section 1680, subdivision (e); (3) to impose discipline on plaintiff for violation of Business and Professions Code section 1682, subdivision (e) for failure to obtain written informed consent of a patient or the patient's parent or guardian prior to administering conscious sedation; and (4) to impose discipline on plaintiff for violation of Business and Professions Code section 1680, subdivision (n). Among other things, plaintiff's dental certificate was suspended for a period of 12 months and he was directed to complete 40 hours of continuing education.

With these facts in mind, we examine the trial court's rulings regarding the demurrer.

B. Conspiracy to Violate Civil Rights (42 U.S.C. § 1983).

The trial court correctly concluded that plaintiff failed to allege facts sufficient to support a cause of action for conspiracy to violate civil rights. This claim was based on the allegation that defendant, together with others, agreed to and actively aided and abetted, and encouraged the other defendants to do the acts claimed in the first cause of action for civil rights violation. The first cause of action alleged, among other things,

Page 363

that defendants presented defamatory statements in connection with the Board of Dental Examiners' hearing. Moreover, it concluded that by virtue of plaintiff's vested right to practice dentistry, he was "entitled to substantive and procedural due process and equal protection of the law as...