Lavine v. Hospital of the Good Samaritan

• Decision Date: 20 June 1985
• Docket Number: No. B006019,B006019
• Citation: 169 Cal.App.3d 1019,215 Cal.Rptr. 708
• Parties: Joan Celia LAVINE, etc., Plaintiff and Appellant, v. The HOSPITAL OF THE GOOD SAMARITAN, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 708

215 Cal.Rptr. 708

169 Cal.App.3d 1019

Joan Celia LAVINE, etc., Plaintiff and Appellant, v. The HOSPITAL OF THE GOOD SAMARITAN, Defendant and Respondent.

No. B006019.

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

June 20, 1985.

As Modified on Denial of Rehearing

July 11, 1985.

Review Denied Sept. 18, 1985.

Certified for Partial Publication ^*.

[169 Cal.App.3d 1021] Joan Celia Lavine, Los Angeles, in pro. per., for plaintiff and appellant.

Gibson, Dunn & Crutcher and Martin C. Washton, Los Angeles, for defendant and respondent.

LUCAS, Associate Justice.

Plaintiff appeals from orders (1) denying her application for injunctive relief compelling production of hospital records, (2) denying her motions to disqualify the trial judge and defendant's counsel, (3) awarding sanctions under Code of Civil Procedure section 128.5 on account of the frivolous application for production of records, and (4) denying a motion for reconsideration and request for statement of decision concerning the aforementioned orders. We affirm all but the order for sanctions, which we reverse for failure adequately to specify the conduct or circumstances for which it was rendered (Code Civ.Proc., § 128.5, subd. (b)). ¹

FACTS

Plaintiff Joan Celia Lavine, an attorney, is the surviving daughter, sole heir, and executor of the estate of Morris Lavine (Lavine). Lavine died at age 86 on November 25, 1982, while under treatment for numerous illnesses at defendant The Hospital of the Good Samaritan (hospital). Plaintiff, in all of the capacities mentioned above, has instituted an action against the hospital and certain of its staff charging tortious conduct resulting in Lavine's wrongful death and other damages.

On October 14, 1982, one month before Lavine's death and before commencing the above-mentioned malpractice case, plaintiff filed on Lavine's behalf a separate action against the hospital, from which this appeal arises. Plaintiff sought declaratory, injunctive, and statutory relief under Evidence Code section 1158 (hereinafter, "section 1158"), ² requiring the hospital to make Lavine's hospital records available for her inspection and copying. In her complaint, plaintiff alleged that the hospital and its agents had refused to provide her, as Lavine's authorized attorney, access to the records as required by section 1158, and that she had seen hospital personnel altering those records. She prayed for injunctions At the hearing on plaintiff's application for temporary restraining order and order to show cause re preliminary injunction, counsel for the hospital explained that it had previously denied plaintiff access to Lavine's hospital records because it was in doubt as to the validity of his written authorization she had submitted, and because plaintiff had been attempting to interfere with Lavine's treatment to the point that his attending physician had directed the records not be afforded her (albeit they would be provided to any consulting physician). However, counsel also then stipulated, to ensure compliance with section 1158 and avoid incurring attorneys' fees thereunder, that the hospital would forthwith prepare copies of the records for plaintiff and allow her reasonable access to the originals. The trial court then denied plaintiff's applications for provisional injunctive relief on the ground that an adequate remedy at law was available, if necessary, by motion to compel production of the records pursuant to section 1158. ³ Plaintiff's effort to initial injunctive relief against alteration of the hospital records was thus denied.

not only requiring that she be furnished copies and accorded "continuous access" to the records but also prohibiting the hospital from further altering them.

Three weeks later, plaintiff filed in a law and discovery department a "motion for judgment on the pleadings," which incorporated her prior moving papers and sought the issuance of "preliminary and permanent" injunctive relief as prayed in the complaint, on grounds that the hospital had not yet complied with its stipulation to produce the records and copies thereof. The hospital's opposition to this motion recited that after initial misunderstandings between the parties, plaintiff--following the filing of the motion--had paid for and received copies of her father's hospital records, to and including November 3, 1982. The hospital further documented plaintiff's numerous prior episodes of interference and conflict with hospital staff ministering to Lavine, and prayed that sanctions be awarded under Code of Civil Procedure section 128.5 for what it deemed a frivolous motion. In reply papers filed November 19, 1982, plaintiff complained that she had been furnished neither copies of her father's X-rays nor his records of treatment subsequent to November 3, 1982 (the latter having been admitted by the hospital). This motion was taken off calendar at plaintiff's request due to the rapidly deteriorating condition of Lavine, which caused plaintiff to be unavailable on the noticed hearing date.

Following Lavine's death, plaintiff, as his executrix, moved to be substituted in his place as plaintiff in this action; the motion was granted. On March 21, 1983, plaintiff filed a renewed "motion for production of medical records pursuant to Evidence Code section 1158," in which she alleged that the records she had received from the hospital were materially incomplete. Simultaneously, plaintiff noticed a motion to disqualify the hospital's counsel, Gibson, Dunn & Crutcher (Gibson, Dunn), from participating in the lawsuit, on three grounds: that Gibson, Dunn's representation of an insurer involved in the Medicare program placed the firm in a conflict of interest inasmuch as Lavine's hospitalization had been partially paid for by Medicare; that the hospital had occupied a fiduciary relationship with Lavine, which relationship extended to hospital's counsel and thereby prevented them from appearing against Lavine's interests; and that Gibson, Dunn had represented a class of California judges in a class action involving their salary and pension rights (Olson v. Cory, Los Angeles County Superior Court case no. CA 000437), with the result that the firm's appearance before any judge in that class was barred by conflict-of-interest principles. On the latter ground, plaintiff also moved to disqualify all judges in the Olson v. Cory class from hearing this action. Prior to the hearing of these motions plaintiff filed (and apparently served) a subpena duces tecum requiring the hospital's Director of Administrative Services to produce at the law and motion hearing such of the hospital records as were sought by her section 1158 motion. Moreover, in her reply papers in support of that motion plaintiff requested the court to order the original hospital records surrendered to it, so that plaintiff could inspect them without interference by the hospital.

In its response to the motion to produce, the hospital averred that all existing records which plaintiff now sought had been supplied to her, except copies of Lavine's X-rays. As to these, hospital explained, copying would be far more expensive than the ten cents per page maximum allowed by section 1158 for conventional medical records; hospital therefore offered to provide plaintiff such copies at cost or to allow them to be copied by plaintiff's own copying service. In addition to opposing plaintiff's several motions on their merits, hospital urged that they were frivolous and presented in bad faith, and again requested that the court award it attorneys' fees by way of sanctions, under Code of Civil Procedure section 128.5.

At a hearing at which plaintiff appeared through substitute counsel, the trial court denied the motion to produce on grounds it was moot since all relevant hospital records had been supplied, ⁴ and also denied the motions to disqualify counsel and judges. The court further found that the motion to produce was frivolous, had not been taken in good faith, and had caused unnecessary delay, and accordingly awarded the hospital sanctions of $364.00.

Plaintiff proceeded to file a motion for reconsideration of these rulings, wherein she contended that the motion judge had been and still was obligated to refer the matter of his disqualification for interest, as an Olson v. Cory class member, to another judge for determination; she also contended that the rulings made in advance of such a determination were void and hence should be vacated. In a supplemental memorandum in support of this motion, plaintiff urged that the order allowing sanctions against her was deficient and should be vacated because the court had failed to recite in detail therein the reasons for that order, as required by Code of Civil Procedure section 128.5, subdivision (b). In the alternative, plaintiff requested that the court supplement its order to comply with the statutory requirement of specificity. Plaintiff also purported to renew her request The court denied plaintiff's motion for reconsideration--as well as the hospital's request for further sanctions in connection therewith--except that the motion judge did refer the question of his disqualification to the master calendar department for appointment of another judge to decide it. The Chairperson of the Judicial Council thereafter designated such a judge, and he denied the application for disqualification. ⁵ Plaintiff then filed a "renewed request for statement of decision," reiterating a written request, which she had filed after denial of her motion for reconsideration, that a formal statement of decision be prepared regarding the denial of her several motions. The renewed request was denied as untimely.

that the original hospital records be deposited in custody of the court.

Plaintiff then instituted this appeal, from the latter order, the order refusing to disqualify the trial judge, the orders denying her motions for production of hospital...