Johnson v. Superior Court

• Decision Date: 30 August 2002
• Docket Number: No. B155896.,B155896.
• Citation: 124 Cal.Rptr.2d 650,101 Cal.App.4th 869
• Parties: Diane L. JOHNSON et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; California Cryobank, Inc., et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

124 Cal.Rptr.2d 650

101 Cal.App.4th 869

Diane L. JOHNSON et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent California Cryobank, Inc., et al., Real Parties in Interest.

No. B155896.

Court of Appeal, Second District, Division 2.

August 30, 2002.

Certified for Partial Publication.^*

Rehearing Denied Sept. 25, 2002.

Review Denied Dec. 11, 2002.

Farnell & Norman, R. Richard Farnell, Newport Beach, and Margaret Kathryn Maas for Petitioners.

No appearance for Respondent.

Lewis, D'Amato, Brisbois & Bisgaard, Timothy R. Graves and Judith M. Tishkoff, Los Angeles, for Real Party in Interest California Cryobank, Inc.

Bonne, Bridges, Mueller, O'Keefe & Nichols, Mark B. Connely, San Luis Obispo, and Vangi M. Johnson for Real Party in Interest Charles A. Sims.

LaFollette, Johnson, DeHaas, Fesler, Silberberg & Ames, Louis H. DeHaas, Gillian N. Pluma and David J. Ozeran, Los Angeles, for Real Party in Interest Cappy Rothman.

NOTT, J.

I. INTRODUCTION

Petitioners Diane L. Johnson (Diane) and Ronald G. Johnson (Ronald) (the Johnsons), along with their minor daughter Brittany L. Johnson (Brittany), filed an action against real party in interest, California Cryobank, Inc. (Cryobank), and its employees, officers and directors, real parties in interest Charles A. Sims, M.D. and Cappy M. Rothman, M.D., alleging real parties failed to disclose that the sperm they sold to the Johnsons came from a donor with a history of kidney disease called autosomal dominant polycystic kidney disease (ADPKD). That sperm was used to conceive Brittany who has been diagnosed to have this serious kidney disease. In 1999, the trial court ruled in connection with a summary adjudication motion brought by Cryobank that Brittany is not entitled to recover general damages and damages for lost earnings. In that same year, the court granted motions brought by Sims and Rothman for summary adjudication as to the fraud causes of action set forth in petitioners' second amended complaint.¹ In 2001, petitioners filed motions to reconsider or vacate the 1999 rulings and to amend their complaint to add a claim for punitive damages. In November 2001, the trial court denied the motion to set aside the 1999 rulings. The following month, the court denied the motion for leave to amend petitioners' second amended complaint to add a claim for punitive damages without prejudice to the filing of a motion pursuant to Code of Civil Procedure section 425.13, subdivision (a).²

The issues presented in connection with this writ proceeding are whether (1) sperm banks such as Cryobank are "health care providers" as that term is used in section 425.13, subdivision (b), (2) doctors such as Sims and Rothman and sperm banks such as Cryobank act as health care providers when they perform genetic screening of potential sperm donors, (3) an individual complaining that negligent screening of a donor's sperm caused her genetic disability is entitled to recover damages for lost earnings and general damages, and (4) the trial court erred in denying petitioners' motion to set aside the 1999 orders summarily adjudicating the fraud causes of action asserted against Sims and Rothman.³

We conclude that Cryobank is a health care provider as that term is used in section 425.13, subdivision (b); Sims, Rothman and Cryobank were acting as health care providers at the time they performed the professional services alleged-within the second amended complaint; and Brittany is not entitled to recover general damages or damages for lost earnings.

II. FACTUAL AND PROCEDURAL BACKGROUND

Second Amended Complaint. Petitioners sued Cryobank, Sims and Rothman for professional negligence, fraud and breach of contract. In their second amended complaint petitioners allege that in 1986 Cryobank, a corporation in the business of providing sperm from donors to health care providers and their clients, approved an individual designated as Donor No. 276 as a sperm donor.⁴ In 1988, the Johnsons' infertility physician directed them to Cryobank's sperm bank facility, and Diane selected Donor No. 276. After a successful implant procedure with sperm from Donor No. 276, Brittany was born in April 1989. In May 1995, Brittany was positively diagnosed with ADPKD. As neither Ronald nor Diane has ADPKD or a family history of the disease, it was Donor No. 276 who genetically transmitted ADPKD to Brittany.

At the time Donor No. 276 approached Cryobank in December 1986, Sims and Rothman, on behalf of Cryobank, interviewed him and learned facts that signaled the presence of ADPKD in Donor No. 276's family. Even though Cryobank, Sims and Rothman knew of Donor No. 276's family history of kidney disease, none of this information was provided to the Johnsons at or prior to the time they purchased the sperm specimens.

Cryobank, Sims and Rothman failed to examine or test Donor No. 276 to ascertain whether he was suffering from kidney disease or was a potential carrier of the ADPKD gene, failed to properly investigate Donor No. 276's family history of kidney disease, and falsely represented to the Johnsons that the sperm they were purchasing had been tested and screened for infectious and "reasonably detectable genetically transferred" diseases and medical abnormalities, and therefore could safely be used to effectuate the Johnsons' pregnancy.

1999 Trial Court Rulings. The fraud causes of action set forth in petitioners' second amended complaint were based on the theory that Sims and Rothman either negligently or intentionally misrepresented, suppressed and/or concealed facts from the Johnsons regarding Donor No. 276's medical history. In 1998, Sims and Rothman moved for summary adjudication as to these claims. In July 1999, the trial court granted the motions, finding that there was no evidence to support petitioners' fraud claims. At about the same time, the court held, in connection with a motion for summary adjudication brought by Cryobank, that Brittany is not entitled to recover general damages or damages for lost earnings.

Donor Profile. In 1986, Donor No. 276 completed a document entitled "About The Donor" (hereafter "Donor Profile"). In January 1996, prior to filing suit, Diane contacted Cryobank and requested a copy of the Donor Profile. Although a copy of the document was provided, the Johnsons did not know, and real parties did not disclose to them, that page 9 had been rewritten, and that certain notations contained on the original page 9 had been deleted.

During the course of the action, petitioners propounded discovery to Cryobank in an effort to obtain a copy of Donor No. 276's files and records maintained by Cryobank. Cryobank objected to providing any information regarding Donor No. 276, claiming the donor's right to privacy and his physician-patient privilege. (Johnson, supra, 80 Cal.App.4th at p. 1057, 95 Cal.Rptr.2d 864.)

In 1998, petitioners served Donor No. 276 with a subpoena to attend his deposition and produce his medical records and certain documents showing his involvement with Cryobank. (Johnson, supra, 80 Cal.App.4th at pp. 1059-1060, 95 Cal. Rptr.2d 864.) When he failed to appear, petitioners moved to compel his attendance and production of the requested records. (Id. at p. 1060, 95 Cal.Rptr.2d 864.) When the trial court denied the motion, petitioners filed a petition for writ of mandate, which we granted. (Id. at pp. 1060, 1073, 95 Cal.Rptr.2d 864.)

In May 2000, this court ruled that petitioners could take Donor No. 276's deposition, and "delve into his and his family's health and medical history, and his communications with Cryobank." (Johnson, supra, 80 Cal.App.4th at p. 1073, 95 Cal. Rptr.2d 864.)

On April 25, 2001, the trial court issued an order directing the donor's deposition. At the first session of the deposition, held on May 29, 2001 Cryobank produced a redacted copy of its file on Donor No. 276. Petitioners' counsel briefly reviewed the contents of the file, and in so doing, learned for the first time that the copy of the Donor Profile Diane received from Cryobank on January 30, 1996, differed from the copy found in Donor No. 276's file. Specifically, on the original page 9, Donor No. 276's affirmative answers to the questions concerning the presence of kidney disease in his mother and his aunt/uncle were circled, a question mark was written next to each "X," and the notation "at risk for kidney disease" was written directly above the "X" denoting his mother's kidney disease. The document contained three different colors of ink. On October 2, 2001, after a number of requests to Cryobank's counsel, petitioners were provided with a color-copy of the original Donor Profile. The color-copy of page 9 revealed that the donor's responses were written in blue ink, the question marks next to the donor's X's for his family's kidney disease were written in black ink, the notation "at risk for kidney disease" was written in black ink, and the circles around the X's were written in red ink.

Petitioners' Motions. In October 2001, petitioners filed two motions. The first sought an order allowing petitioners to amend the second amended complaint to add a claim for punitive damages. The second, based on sections 473 and 1008 and the trial court's inherent equitable power, sought reconsideration of the 1999 ruling that Brittany is not entitled to recover damages for loss of earnings and general damages, and of the 1999 orders summarily adjudicating the fraud causes of action in favor of Sims and Rothman.

Trial Court Rulings. The trial court denied petitioners' motion to amend the second amended complaint to add a punitive damages claim without prejudice to the filing of a section 425.13, subdivision (a) motion. The trial court also denied petitioners' motion to vacate or reconsider the 1999 summary adjudication orders in favor of Sims and Rothman, and the 1999 ruling prohibiting Brittany's recovery of general damages and damages for loss of earnings. The court found...