Hooks v. Southern Cal. Permanente Medical Group

• Court: California Court of Appeals
• Writing for the Court: KLEIN
• Citation: 165 Cal.Rptr. 741,107 Cal.App.3d 435
• Parties: William HOOKS, III, a minor, etc., Plaintiff and Appellant, v. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, Defendant and Respondent. Civ. 57088.
• Decision Date: 25 June 1980

Page 741

165 Cal.Rptr. 741 107 Cal.App.3d 435 William HOOKS, III, a minor, etc., Plaintiff and Appellant,
v.
SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, Defendant and Respondent. Civ. 57088. Court of Appeal, Second District, Division 3, California. June 25, 1980.
Hearing Denied Aug. 20, 1980.

[107 Cal.App.3d 438]

Page 742

Ronald M. Cohen, Tarzana, for plaintiff and appellant.

Thelen, Marrin, Johnson & Bridges, Curtis A. Cole and Michael L. Halpern, Los Angeles, for defendant and respondent.

KLEIN, Presiding Justice.

Plaintiff and appellant William Hooks III (Hooks) appeals from a summary judgment granted to defendant and respondent Southern California Permanente Medical Group (Hospital).

FACTUAL BACKGROUND

The factual background set forth herein for purposes of the comprehensibility of this opinion is gleaned from pleadings and papers in this case consisting of the complaint, the deposition of Norma Armistead, Hooks' answers to interrogatories, the motion for summary judgment and its supporting and opposing papers. ¹

Norma Armistead (Armistead) began working as an obstetric nurse in 1965. She

Page 743

worked at Martin Luther King Hospital prior to her employment by Kaiser Foundation Hospital. ²

Some time before Armistead began working at the Hospital in approximately 1974, she met Hooks' mother, Kathryn Viramontes (Viramontes), at the Raco Bar in Hollywood. They formed a social friendship.

[107 Cal.App.3d 439] In the fall of 1974, while Armistead was employed by and on duty at the Hospital, she delivered Mary Childs of a baby girl. During the delivery, she was unassisted by any physician, contrary to normal practice. Armistead substituted a dead fetus for the Childs baby and reported a stillbirth. Until Armistead came on duty and began assisting in the Childs delivery, records indicated a routine delivery with a normal fetal heartbeat. When a physician arrived to certify the death of the supposed Childs fetus, he noticed that the umbilical cord had been cut. This was normally left for the attending physician to do. No report was made and no investigation was undertaken at this time. Armistead thereafter began raising the Childs baby in her home.

Some eight months later, about May 1975, Viramontes was pregnant and near delivery. She telephoned Armistead at home and asked her help in inducing labor. There were several conversations during which Viramontes continued to ask Armistead for help. Viramontes knew that Armistead worked at the Hospital. She asked for Armistead's help because of Armistead's experience in labor and delivery. Moreover, Viramontes knew that Armistead would have access to the drugs, scalpel, and anesthesia necessary to induce labor. Armistead agreed to help Viramontes only because she could procure the necessary items.

Armistead never represented to Viramontes that any services she might perform to induce labor were related to her employment or were authorized by the Hospital. Viramontes had never been a patient of the Hospital.

On May 16, 1975, Armistead went to Viramontes' home to induce labor. They began arguing over Viramontes' relationship with Armistead's boyfriend. In the course of the argument, Armistead killed Viramontes by slashing her throat, after which Armistead delivered Hooks by caesarean section.

Some four months later Hooks filed a wrongful death action against Armistead and the Hospital.

STATEMENT OF THE CASE

The original complaint for wrongful death was filed on September 23, 1975. Subsequently, first and second amended complaints were filed. The Hospital demurred to the second amended complaint and the trial court sustained that general demurrer without leave to amend on [107 Cal.App.3d 440] April 29, 1976. An order dismissing the action was entered, and an appeal followed.

The Court of Appeal, Second Appellate District, affirmed the dismissal of the second and fourth causes of action, but reversed the dismissal of the third cause of action. ³ The case was remanded for further proceedings.

In January 1978, Hooks answered interrogatories propounded by the Hospital wherein he stated that he had "no knowledge that . . . Viramontes was a patient at the Kaiser Foundation Hospital." The Hospital and Hooks then took Armistead's deposition in October 1978.

On March 1, 1979, the Hospital filed a motion for summary judgment, supported by a declaration from the Director of Hospital Records to the effect that there was no record that Viramontes was ever a patient at the Hospital. Relying on this declaration,

Page 744

the answers to interrogatories and Armistead's deposition testimony, the Hospital grounded its motion primarily on the contention that the Hospital owed no duty to Viramontes.

Hooks responded in opposition to the motion primarily on the ground that a duty was owed to Viramontes irrespective of her status as a patient. A hearing on the motion was held, and an order granting the motion was entered on March 20, 1979. This appeal followed.

CONTENTIONS

Hooks contends that the trial court erred in granting a summary judgment to the Hospital because the Hospital owed a duty of care to Hooks and Viramontes as a matter of law. Hooks bases his contention on the following: (1) the duty of care Hospital owed to Viramontes was independent of any hospital-patient relationship; (2) rather, the special relationship between the Hospital and Armistead, Armistead being the employee whose aberrant and dangerous conduct needed to be controlled, imposed a duty of care on the Hospital owed to a class of persons which included Viramontes; (3) because the class of persons foreseeably endangered by Armistead's conduct encompassed her [107 Cal.App.3d 441] friends who would rely on Armistead's professional skill, experience, and standing.

Hooks further avers that given a legal duty owed to Viramontes, the question of proximate cause is an issue of material fact.

Assuming that the Hospital was correctly sued, ⁴ we disagree with Hooks' first contention and as a consequence do not reach his second contention and affirm the summary judgment for the reasons set forth below.

DISCUSSION

We note at the outset that Hooks' notice of appeal purports to appeal from the order granting summary judgment. That order is not appealable. (Crookham v. Smith (1977) 68 Cal.App.3d 773, 775, fn. 1, 137 Cal.Rptr. 428; Artucovich v. Arizmendiz (1967) 256 Cal.App.2d 130, 132, 63 Cal.Rptr. 810; see Johnson v. Hydraulic Research & Mfg. Co. (1977) 70 Cal.App.3d 675, 685, 139 Cal.Rptr. 136.) However, because there is a judgment which was entered on April 10, 1979, to which the order may be applied, we honor the appeal as one taken from the judgment. (Crookham v. Smith, supra, 68 Cal.App.3d at p. 775, fn. 1, 137 Cal.Rptr. 428; Artucovich v. Arizmendiz, supra, 256 Cal.App.2d at p. 132, 63 Cal.Rptr. 810.)

Code of Civil Procedure section 437c provides that a motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The purpose of a motion for summary judgment is "to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues. (Citations.)" (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 114, 544 P.2d 1310, 1314.) The court resolves the question of triable issues by examining "support(ing) or oppos(ing) . . . affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice . . . may be taken." (Code Civ.Proc., § 437c.) The court must consider presumptions and draw inferences from the facts adduced where the inference is the only reasonable one that may be drawn. (See Hirsch v. Blish (1977) [107 Cal.App.3d 442] 76 Cal.App.3d 163, 166, 142 Cal.Rptr. 646; Hale v. George A. Hormel & Co. (1975) 48 Cal.App.3d 73, 81, 121 Cal.Rptr. 144.) However, the court has no power in a summary proceeding to weigh one inference against another or against other evidence. (Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 145, 142 Cal.Rptr. 46.)

In ruling on a motion for summary judgment, "(t)he determination whether

Page 745

facts have been adduced . . . which present triable issues of fact is to be made in the light of the pleadings." (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380, 121 Cal.Rptr. 768, 770; see Coyne v. Krempels (1950) 36 Cal.2d 257, 262, 223 P.2d 244.) However, the court may only examine the pleadings in order to define the issues of which summary judgment disposes. (Koret of Cal., Inc. v. City etc. of San Francisco (1969) 2 Cal.App.3d 87, 90, 81 Cal.Rptr. 698; Family Service Agency v. Ames (1958) 166 Cal.App.2d 344, 348, 333 P.2d 142.) The court may not consider the factual allegations of the complaint except where the facts stated are uncontroverted by the papers submitted on the motion. (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626, 157 Cal.Rptr. 248; McCreery v. Eli Lilly & Co. (1978) 87 Cal.App.3d 77, 82, 150 Cal.Rptr. 730.) Accordingly, reference may not be made to a party's pleadings to remedy a factual deficiency in his supporting or opposing papers. (Koret of Cal., Inc. v. City etc. of San Francisco, supra, 2 Cal.App.3d at p. 90, 81 Cal.Rptr. 698; Michelman v. Frye (1965) 238 Cal.App.2d 698, 702, 48 Cal.Rptr. 142.)

The sufficiency of the papers submitted is reviewable on appeal and is determinative of the validity of the judgment. (Koret of Cal., Inc. v. City etc. of San Francisco, supra, 2 Cal.App.3d at p. 89, 81 Cal.Rptr. 698; see Dreyfuss v. Burton (1966) 246 Cal.App.2d 629, 632, 54 Cal.Rptr. 843.) Because the summary procedure is drastic, the papers filed on behalf of the moving party are strictly construed and those of...