Leach v. Drummond Medical Group, Inc.

• Decision Date: 24 June 1983
• Citation: 192 Cal.Rptr. 650,144 Cal.App.3d 362
• Court: California Court of Appeals Court of Appeals
• Parties: , 1983-2 Trade Cases P 65,604 Paula J. LEACH et al., Plaintiffs and Appellants, v. DRUMMOND MEDICAL GROUP, INC., et al., Defendants and Respondents. Civ. 6262 (F000156).

Page 650

192 Cal.Rptr. 650

144 Cal.App.3d 362, 1983-2 Trade Cases P 65,604

Paula J. LEACH et al., Plaintiffs and Appellants, v. DRUMMOND MEDICAL GROUP, INC., et al., Defendants and Respondents.

Civ. 6262 (F000156).

Court of Appeal, Fifth District, California.

June 24, 1983.

[144 Cal.App.3d 365] Fred Okrand and Gary Williams, ACLU Foundation of Southern Cal., Los Angeles, for plaintiffs and appellants.

Borton, Petrini & Conron, Nicholas K. Lowe and Rocky K. Copley, Bakersfield, for defendants and respondents.

OPINION

HAMLIN, Associate Justice.

THE CASE

On July 10, 1980, plaintiffs filed a complaint for declaratory and injunctive relief and for damages. The complaint alleged four causes of action. The first cause of action alleged violation of the Unruh Civil Rights Act (Civ.Code, § 51 et seq.); the second alleged unlawful discrimination by an enterprise affected with a public interest under common law principles; the third alleged unlawful discrimination by a monopoly under common law principles; and the fourth alleged interference with the plaintiffs' right to petition their government. On July 23, 1980, a first amended complaint was filed which did nothing more than add exhibit A, a copy of a letter to plaintiffs from one of the defendants. That letter had been referred to in the body of the original complaint but had not been attached.

Defendants demurred to plaintiffs' first amended complaint, alleging that the complaint failed to state a cause of action, that it was uncertain and ambiguous and that it was a sham. Defendants' demurrer was sustained without leave to amend on the ground that the complaint failed to state a cause of action. A judgment of dismissal was entered, and plaintiffs appealed from that judgment.

THE FACTS

The facts are taken from plaintiffs' complaint because "[r]espondent's demurrer is to be treated as admitting the truthfulness of all property pleaded factual allegations of the complaint, but not contentions, deductions or conclusions of fact or law. [Citations.]" (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 827-828, 134 Cal.Rptr. 839.) Both plaintiffs are residents of Ridgecrest, California. Paula J. Leach has extremely low blood pressure, hypoglycemia and diabetes. These ailments cause periodic blackouts. She also suffers from chronic diarrhea and chronic bronchitis. Plaintiff Robert W. Leach has a high triglyceride count in his bloodstream for which he must take medication on a regular basis. He requires periodic checkups to insure that this medication is working.

Defendant Drummond Medical Group, Inc. (medical group) is a California corporation doing business in Ridgecrest, California. Plaintiffs allege that the medical group possesses virtual monopoly control over the provision of medical care in the town of Ridgecrest. In support of this contention, plaintiffs allege that the nearest comparable medical facility which will accept patients from Ridgecrest is approximately 100 miles away. Defendant Drummond Medical Center, Inc. (medical center) is also a California corporation. Plaintiffs allege on information and belief that the medical center is the alter ego of the medical group. Defendant Robert E. Campbell is the medical management consultant of the medical group.

On December 4, 1978, plaintiffs read an article in the Ridgecrest newspaper which stated that various state agencies were investigating the care available at the emergency room of the Ridgecrest Community Hospital. That article mentioned Mr. George Willi, a health facilities representative with the California Department of Health Services, Licensing and Certification Division (the department). In the belief that Mr. Willi had the authority to investigate and correct deficiencies in hospitals and licensed physicians, plaintiffs wrote a letter dated December 15, 1978, to Mr. Willi describing their experiences in the emergency room at Ridgecrest Community Hospital. Plaintiffs' letter also recited the history of treatment of a small child who was then in the plaintiffs' care by a specifically named doctor who was a member of the medical group. However, the letter contained no allegations regarding the medical group or the medical center.

In due course, plaintiffs received a letter from the department. That letter notified plaintiffs that the department would investigate their report concerning the Ridgecrest Community Hospital emergency services. It also informed plaintiffs that the Board of Medical Quality Assurance of the Department of Consumer Affairs (BMQA) was the proper agency to investigate reports concerning individual physicians and that their earlier communication was also being referred to that agency. Within a month thereafter, plaintiffs received a letter from the BMQA stating that it was opening an investigation of the doctor named in plaintiffs' letter to the department.

About six months after plaintiffs received notice of the two separate investigations, Mrs. Leach received a certified letter from the medical group, signed by defendant Campbell, stating that because of plaintiffs' allegations to the BMQA the medical group would no longer provide medical services to Mrs. Leach or any member of her immediate family. The text of the letter which defendant Campbell sent to plaintiffs is set forth below at footnote 1. ¹

DISCUSSION

Nature of the Review

Initially we note that the plaintiffs' appeal is from a judgment dismissing their first amended complaint based on the trial court's order sustaining defendants' demurrer without leave to amend. The first amended complaint is the functional equivalent of plaintiffs' first complaint. The trial court's reasons for sustaining the demurrer without leave to amend were (1) the personal nature of the physician-patient relationship which precludes compulsory continuance of the relationship, (2) the nonemergency nature of the treatment denied to the plaintiffs, and (3) the determination that the defendants' actions did not constitute discrimination as contemplated by the Unruh Civil Rights Act and did not constitute a violation of the plaintiffs' constitutional rights. Defendants have alleged in their brief in support of the trial court's action certain factual matters which are not properly before this court. (Cravens v. Coghlan (1957) 154 Cal.App.2d 215, 315 P.2d 910; see also A.F. Arnold & Co. v. Pacific Professional Ins., Inc. (1972) 27 Cal.App.3d 710, 712-713, fn. 1, 104 Cal.Rptr. 96.) In the Cravens case the court cogently stated the applicable rule:

"In the present case the trial court had no power, on demurrer, to pass upon a factual issue that could be presented only by answer. It is an elementary rule that the sole function of a demurrer is to test the sufficiency of the challenged pleading. It cannot, properly, be addressed to or based upon evidence or other extrinsic matters. A defendant is not permitted to allege facts in his demurrer which, if true, would make the complaint vulnerable." (Cravens v. Coghlan, supra, 154 Cal.App.2d at p. 217, 315 P.2d 910.)

The standards of appellate review of a trial court's order sustaining a demurrer without leave to amend are well established. (See McGee v. McNally (1981) 119 Cal.App.3d 891, 896, 174 Cal.Rptr. 253; Larwin-Southern California, Inc. v. JGB Investment Co. (1979) 101 Cal.App.3d 626, 162 Cal.Rptr. 52; 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 845, p. 2450.)

In Larwin-Southern California, Inc. v. JGB Investment Co., supra, 101 Cal.App.3d 626, 162 Cal.Rptr. 52, a contract action, the trial court sustained the defendants' demurrer on the basis that " 'material portions of the alleged contract are indefinite and uncertain ... and that the alleged contract is illusory.' " (Id., at p. 634, 162 Cal.Rptr. 52.) In reversing, the appellate court stated:

"The trial court sustained defendants' demurrer without offering plaintiff an opportunity to amend its complaint. The legal standards used in assessing, on appellate review, the propriety of a trial court's order sustaining a demurrer without granting leave to amend have been articulated as follows: 'An order sustaining a demurrer without leave to amend "ordinarily constitutes an abuse of discretion, if there is a reasonable possibility that the defect can be cured by amendment." [Citation.] Liberality in permitting amendment is the rule, not only where a complaint is defective as to form but also where it is deficient in substance, if a fair prior opportunity to correct the substantive defect has not been given. [Citation.]' [Citation.] Of course, ' "the plaintiff has not had a fair opportunity ... [to cure a substantive defect] ... where the demurrer [is] sustained to [its] first complaint." [Citation.]' [Citations.]" (Id., at p. 635, 162 Cal.Rptr. 52, brackets in original.)

Compelling a Physician and Patient Relationship

In addition to their contentions directed at the four specific causes of action which plaintiffs attempt to allege in their complaint, defendants argue generally that plaintiffs can never amend their complaint so as to be entitled to injunctive relief. Defendants base this argument on the fact that the physician-patient relationship is predicated upon trust and confidence, the loss of which renders continuation of the relationship impossible. Alternatively, they contend the physician-patient relationship is characterized as one requiring personal services. Under the specific facts of this case we reject the argument however the physician-patient relationship is characterized.

We think it is significant in this case that plaintiffs' complaint does not seek to compel any individual physician either to undertake or continue a personal physician-patient relationship with either of them. Defendant Campbell's letter, attached as exhibit A and incorporated into the complaint, indicates an ongoing relationship is being severed by the unilateral action of the defendants. Accordingly, defendants...