Falcon v. Long Beach Genetics, Inc.

• Decision Date: 21 March 2014
• Docket Number: D062807
• Citation: 169 Cal.Rptr.3d 497,224 Cal.App.4th 1263
• Court: California Court of Appeals Court of Appeals
• Parties: Leslie FALCON et al., Plaintiffs and Appellants, v. LONG BEACH GENETICS, INC. et al., Defendants and Respondents.

224 Cal.App.4th 1263

169 Cal.Rptr.3d 497

Leslie FALCON et al., Plaintiffs and Appellants,

v.LONG BEACH GENETICS, INC. et al., Defendants and Respondents.

D062807

Court of Appeal, Fourth District, Division 1, California.

Filed March 21, 2014

See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 567 et seq.

APPEAL from a judgment of the Superior Court of San Diego County, William S. Dato, Judge. Affirmed. (Super. Ct. No. 37–2009–00102312–CU–PO–CTL)

Admire & Associates and Duane A. Admire, Del Mar, for Plaintiffs and Appellants Leslie Falcon and Minor.

JoEllen Plaskett, San Diego, for Plaintiff and Appellant Michael Patterson.

Higgs, Fletcher & Mack, William M. Low, San Diego; Ungaretti & Harris, Timothy E. Horton for Defendants and Respondents.

O'ROURKE, J.

Plaintiffs and appellants Leslie Falcon, her minor daughter (at times collectively the Falcons) and Michael Patterson appeal from a summary judgment in favor of defendants and respondents Long Beach Genetics, Inc. (LBG), Esoterix, Inc. (Esoterix), and Laboratory Corporation of America (LabCorp) on plaintiffs' second amended complaint for negligence arising out of an erroneous deoxyribonucleic acid (DNA) test result used to determine minor's paternity. Plaintiffs advance several arguments as to why the trial court erred in granting summary judgment, but we need only decide whether the Civil Code section 47, subdivision (b) litigation privilege (the section 47(b) privilege or the litigation privilege) bars the action and whether the trial court abused its discretion by denying plaintiffs leave to amend. Because defendants' alleged conduct on which plaintiffs rely falls within the section 47(b) privilege, we conclude the trial court did not err in granting summary judgment, nor did it err by denying leave to amend the complaint. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

We set out the undisputed material facts as ascertained from the parties' moving and opposing papers (see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327, 100 Cal.Rptr.2d 352, 8 P.3d 1089) and state other facts and draw inferences from them in the light most favorable to plaintiffs. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar ).) Having said this, we are compelled to note the difficulty we have had identifying the evidence supporting plaintiffs' claimed disputes as to defendants' enumerated material facts pertaining to the section 47(b) privilege. Plaintiffs' opposing separate statements largely contain argumentative assertions in response to each listed fact, unsupported by the cited evidence. ¹ And, much of plaintiffs' evidence is directed to their assertion that LBG was not a licensed healthcare provider in the relevant time period, which is not relevant to the section 47(b) privilege issue. In that respect, plaintiffs' opposing separate statements are of little evidentiary value. (Cf. Tucker Land Co. v. State of California (2001) 94 Cal.App.4th 1191, 1201, 114 Cal.Rptr.2d 891 [supplemental proffer of undisputed material facts of no evidentiary value where the facts were not supported by specific references to pages and lines in the depositions and cited exhibits].)

To further complicate review, plaintiffs make numerous factual assertions in their briefs without record citation. Accordingly, our review of the facts is also hindered by their failure to provide citations to the record that comply with California Rules of Court, rule 8.204(a)(1)(C). We are entitled to disregard such unsupported factual assertions even on de novo review of a summary judgment. (See Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5, 98 Cal.Rptr.3d 281 [“The claimed existence of facts that are not supported by citations to pages in the appellate record, or not appropriately supported by citations, cannot be considered by this court.”]; Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1025, 4 Cal.Rptr.3d 385.)

LBG is a laboratory that conducted DNA paternity testing until 2005, when it was acquired by LabCorp. In the fall of 2003, Leslie Falcon and Patterson scheduled a free paternity test with the County of San Diego (County) to confirm that minor was Patterson's child. On September 26, 2003,² County commenced a paternity proceeding in the San Diego County Superior Court entitled County of San Diego v. Michael Patterson (Super.Ct.S.D.County, 2004, No. DF177011). In connection with that proceeding, Patterson agreed to provide a genetic specimen for testing on October 30, 2003, which would be delivered to LBG for testing. LBG's testing location was at the superior court in downtown San Diego, and its family relationship testing was performed as part of its contractual relationship with County. It collected DNA samples from Patterson and the Falcons in order to assist County in determining minor's paternity.

In November 2003, LBG issued test results excluding Patterson as minor's biological father and mailed it to both parents. The test results were accompanied by a declaration of LBG custodian of records Christine D'Autremonte, certifying the records. On January 30, 2004, County sent Patterson a letter informing him that the blood test results revealed he was not minor's father. The test results, however, were erroneous, as they were based on the DNA markers of someone other than Patterson. Leslie Falcon did not discover the error until February 2008, in connection with her application to reopen minor's paternity case.

In November 2009, the Falcons sued defendants for negligence. The judicial council form complaint alleged that defendants “negligently concluded and thereafter via declaration testimony informed the San Diego Superior Court and Plaintiffs—that through their DNA tests, which were 99.99 [percent] accurate—[minor] was not the daughter of her actual father Michael Patterson,” causing damage in November 2003. The Falcons further alleged they “did not suspect, nor were they able to discover this error until the Defendant conducted further DNA tests in February 2008” and that the negligence “caused and continues to cause both economic and non-economic damages to the Plaintiffs.” Patterson was added as a plaintiff in July 2010.

Defendants moved for summary judgment and alternatively summary adjudication of issues. They argued (1) plaintiffs' claims were barred by the litigation privilege; (2) defendants owed no duty to plaintiffs; and (3) the complaint was barred by the one-year statute of limitations under the Medical Injury Compensation Reform Act (MICRA) ³ and thus failed to state facts sufficient to constitute a cause of action. As to Patterson, defendants argued that even if the MICRA one-year limitations period did not apply, his claim was barred by the two-year general negligence statute of limitations.

Plaintiffs opposed the motion, filing separate but largely identical papers. In part, plaintiffs argued the section 47(b) privilege did not apply to LBG's negligent performance of the first paternity test and defendants owed a legal duty to plaintiffs as intended third party beneficiaries of the contract between County and LBG.⁴ Neither Patterson nor Leslie Falcon submitted a declaration in support of the motion. Instead, in their separate statements they cited evidence submitted by defendants, and later supplemented their showing with defendants' responses to requests for admissions. Plaintiffs lodged foreign authorities including Berman v. Laboratory Corporation of America (Okla.2011) 268 P.3d 68 ( Berman ), in which the Oklahoma Supreme Court held a plaintiff's negligence claim was not barred by an Oklahoma absolute privilege for communications made during or preliminary to a judicial proceeding, and LabCorp owed that plaintiff, a parent seeking to prove her child's paternity, a duty to conduct accurate DNA testing ordered by Oklahoma's Department of Human Services for child support purposes. ( Id. at pp. 71–72.)

At about the same time, Patterson applied ex parte to file a third amendment to the complaint to add a claim for punitive damages. He sought to allege that LabCorp had retested Falcon and Patterson's DNA in 2008 at the request of DCSS, but did not inform Falcon or Patterson until 2010, and further that LabCorp did not integrate LBG's data after its merger with LBG, which caused LabCorp's cross-referencing system to fail in 2007 to recognize the 2003 testing error. Patterson sought to allege that these failures constituted gross negligence warranting punitive damages. The trial court set a hearing on the motion for March 2, 2012.

Plaintiffs thereafter neglected to timely file their motion for leave to amend, and Patterson again sought ex parte an order shortening time to file the motion. In the amended pleading, Patterson additionally sought to challenge LBG's assertion it was a licensed health care provider for purposes of applying the MICRA statute of limitations, claiming LBG withheld evidence that proved otherwise. The trial court denied Patterson's request to shorten time and scheduled the motion for June 15, 2012, after the summary judgment hearing.

At oral argument on defendants' summary judgment motion, counsel argued extensively about the existence of litigation, the parties' knowledge of County's paternity proceeding, and their motivation for going to County for blood testing. The court asked counsel to focus on the connection between the DNA test and County's proceeding, and Patterson's counsel represented that the paternity test was a free service offered by County performed without any reference to Medi–Cal or any paternity action. When pressed, however, to identify the record evidence of that assertion, counsel could not, and eventually offered to supplement her showing with materials from DCSS. The Falcons' counsel asked the court to allow them to amend the complaint “to...