Marron v. Superior Court

• Decision Date: 21 May 2003
• Docket Number: No. D041167.,D041167.
• Citation: 108 Cal.App.4th 1049,134 Cal.Rptr.2d 358
• Parties: Pedro MARRON et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Tarek I. Hassanein et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

134 Cal.Rptr.2d 358

108 Cal.App.4th 1049

Pedro MARRON et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent Tarek I. Hassanein et al., Real Parties in Interest.

No. D041167.

Court of Appeal, Fourth District, Division 1.

May 21, 2003.

Rehearing Denied June 13, 2003.

Ross, Dixon & Bell, Jon R. Williams, James J. Dalessio; Schoville & Arnell, Dennis A. Schoville and Louis G. Arnell, San Diego, for Petitioners.

No appearance for Respondent.

Lotz, Doggett & Rawers and J. Jason Hill for Real Parties in Interest.

McDONALD, J.

Plaintiffs Pedro Marron and Maria Marron, individually and as successors in interest of Lidia Marron (together the Marrons), filed this petition for writ of mandate challenging the trial court's order granting the motion of defendant Regents of the University of California (RUC) for summary adjudication of the Marrons' dependent adult abuse cause of action against it. The Marrons contend the trial court erred by concluding Government Code section 818, which exempts public entities from liability for punitive or exemplary damages, precludes their cause of action against RUC for enhanced remedies under Welfare and Institutions Code section 15657.¹

FACTUAL AND PROCEDURAL BACKGROUND²

On August 23, 2000, Lidia Marron, then 44 years old, entered UCSD Medical Center (the Hospital) for a liver biopsy. The Hospital is owned and operated by RUC, which is a division of the State of California. Complications arose during the procedure when the biopsy needle perforated Lidia's middle colic vein, causing damage to her abdominal viscera and requiring emergency surgery. Following surgery, Lidia was admitted to the Hospital's intensive care unit. During her subsequent two-month stay at the Hospital, she suffered complications, including fungus infections in her blood and lungs, peritonitis, intra-abdominal and pelvic abscesses, sepsis syndrome, hypotension, fevers, abdominal pain and hemorrhaging.

On October 28 she was discharged from the Hospital. On October 31 she returned to the Hospital because of a spiking fever. On November 8 she was discharged from the Hospital, but returned within 12 hours because of fevers, chills and severe pain. A CT scan showed an intra-abdominal abscess. She became progressively septic and was diagnosed with enterocutaneous fistula.

On December 13 Lidia died.

The Marrons, as Lidia's parents and successors in interest, filed a complaint against defendants RUC and Tarek I. Hassanein, M.D., alleging causes of action for wrongful death and section 15657 dependent adult abuse. The dependent adult abuse cause of action alleges the defendants "failed to exercise the requisite degree of care but rather acted with recklessness in the failure to appropriately and adequately care for, monitor, and treat Lidia Marron's declining health condition from" August 23 through December 13, 2000. It further alleges the defendants "failed to recognize and treat obvious signs of uncontrolled hemorrhage, failed to protect [Lidia] from health and safety hazards, failed to assist in personal hygiene, failed to provide an adequate environment for the level of care that was needed, ignoring obvious signs of stress and disease, causing [her] to suffer protracted pain, discomfort, mental suffering, indignity and humiliation up to the time of her death." The complaint seeks damages for Lidia's pain and suffering and an award of reasonable attorney fees and costs pursuant to section 15657.

RUC filed a motion for summary adjudication of the dependent adult abuse cause of action, asserting, inter alia, that Government Code section 818 provided it with immunity against section 15657 damages and attorney fees and costs.³ The Marrons opposed the motion, arguing that because section 15657 does not provide for punitive damages, Government Code section 818 does not bar an award of section 15657 enhanced remedies against RUC.

The trial court granted RUC's motion for summary adjudication, stating:

"[T]he [dependent adult abuse] cause of action impermissibly seeks punitive damages against a public entity in violation of Government Code section 818.... [T]he pain and suffering [Lidia] suffered was personal to her and ceased to be an element of compensation upon her death. As a result, ... the Legislature's decision [in section 15657] to abrogate [Code of Civil Procedure] section 377.34 as a result of a caregiver's reckless neglect is punitive in nature, as it is intended to award damages in excess of just compensation. The same logic applies vis-à-vis the recovery of attorney's fees, as this is an award in excess of just compensation for [Lidia's] injuries."⁴

During oral argument on the motion, the trial court further stated: "To me [section 15657's enhanced remedies constitute] a penalty. [They are] an amount of money in addition to compensation and [they penalize] someone for reckless conduct...."

The Marrons filed this petition for writ of mandate, challenging the trial court's order granting the motion for summary adjudication. RUC filed a response, arguing the trial court correctly concluded it was immune under Government Code section 818 from liability for section 15657 enhanced remedies. We issued an order to show cause, stayed trial of this matter and heard oral argument.

DISCUSSION

I Consideration of the Petition

The Marrons contend we should consider their petition for writ of mandate because they have an inadequate remedy at law and will suffer irreparable injury if their petition is not granted. They argue the trial court's order has the effect of barring a substantial portion of their case on the merits and a second trial would be a waste of judicial and litigant resources. Furthermore, they assert the instant issue is one of law that is of first impression and of public interest.

An order granting a motion for summary adjudication may be reviewed by way of a petition for writ of mandate. (Code Civ. Proc, § 437c, subd. (m)(1); Federal Deposit Ins. Corp. v. Superior Court (1997) 54 Cal.App.4th 337, 345, 62 Cal.Rptr.2d 713.) The issuance of our order to show cause constituted an effective determination that the Marrons' remedy at law was not adequate. (Community Care & Rehabilitation Center v. Superior Court (2000) 79 Cal.App.4th 787, 790, fn. 3, 94 Cal.Rptr.2d 343; Robbins v. Superior Court (1985) 38 Cal.3d 199, 205, 211 Cal. Rptr. 398, 695 P.2d 695.) We further conclude the Marrons would suffer irreparable injury if a second trial were required because of an erroneous summary adjudication by the trial court. (Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1183, 272 Cal.Rptr. 304.) Furthermore, the petition presents a significant issue of first impression. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182, 123 Cal.Rptr.2d 637; Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal App.4th 695, 702, 114 Cal.Rptr.2d 541.) Therefore, we exercise our discretion to consider the petition.

II Summary Adjudication Standard of Review

"[A motion for] [s]ummary adjudication is properly granted when the evidence in support of the moving party establishes that there is no issue of [[material] fact to be tried as to a particular cause of action, affirmative defense, claim for damages or issue of duty. (Code Civ. Proc., § 437c, subd. (f); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal. Rptr. 122, 762 P.2d 46[, superseded by statute on other grounds as noted in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19, 107 Cal.Rptr.2d 841, 24 P.3d 493].) The aim of the procedure is to discover whether the parties possess evidence requiring the weighing procedures of a trial. (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851 [94 Cal.Rptr. 785, 484 P.2d 953]....)" (Federal Deposit Ins. Corp. v. Superior Court, supra, 54 Cal. App.4th at pp. 344-345, 62 Cal.Rptr.2d 713.) For a defendant to prevail on a summary adjudication motion, the defendant generally must establish an affirmative defense or show one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (o).) In moving for summary adjudication, a defendant meets its "burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action...." (Code Civ. Proc., § 437c, subd. (p)(2).) If the trial court concludes there is no triable issue of material fact and "the sole remaining issue is one of law, it is the duty of the trial court to determine the issue of law. [Citation.]" (Federal Deposit Ins. Corp., supra, at p. 345, 62 Cal.Rptr.2d 713.) In reviewing an order granting a motion for summary adjudication, "we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.)

III Elder Abuse and Dependent Adult Civil Protection Act

The Elder Abuse and Dependent Adult Civil Protection Act (§ 15600 et seq., hereinafter the Act) provides for both criminal and private civil enforcement of elder and dependent adult abuse laws. (Delaney v. Baker (1999) 20 Cal.4th 23, 33, 82 Cal.Rptr.2d 610, 971 P.2d 986.) "[O]ne of the major objectives of [the Act] was the protection of residents of nursing homes and other health care facilities." (Id. at p. 37, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Section 15610.07 defines "abuse of an elder or dependent adult" as:

"(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering or]

"(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering."

The Act's...