Ochoa v. Superior Court of Santa Clara County

• Decision Date: 03 June 1983
• Citation: 191 Cal.Rptr. 907,143 Cal.App.3d 611
• Court: California Court of Appeals Court of Appeals
• Parties: Raul and Gloria OCHOA, individually and as sole surviving heirs of Rudy Cruz Ochoa, deceased; Gloria Ochoa as Special Administratrix of the Estate of Rudy Cruz Ochoa, deceased, Petitioners, v. The SUPERIOR COURT OF the COUNTY OF SANTA CLARA, Respondent. The COUNTY OF SANTA CLARA, Stanley Lourdeaux, M.D., Paul Works, R.N., LaVonne Zuckswerth, R.N., Karen Dozier, R.N., and Does One through One Hundred, inclusive, Real Parties in Interest. A017570.

Page 907

191 Cal.Rptr. 907

143 Cal.App.3d 611

Raul and Gloria OCHOA, individually and as sole surviving heirs of Rudy Cruz Ochoa, deceased; Gloria Ochoa as Special Administratrix of the Estate of Rudy Cruz Ochoa, deceased, Petitioners, v. The SUPERIOR COURT OF the COUNTY OF SANTA CLARA, Respondent The COUNTY OF SANTA CLARA, Stanley Lourdeaux, M.D., Paul Works, R.N., LaVonne Zuckswerth, R.N., Karen Dozier, R.N., and Does One through One Hundred, inclusive, Real Parties in Interest.

A017570.

Court of Appeal, First District, Division 2, California.

June 3, 1983.

For Opinion on Hearing, see 216 Cal.Rptr. 661, 703 P.2d 1.

Jessie Serna, San Jose, for petitioners.

Hassard, Bonnington, Rogers & Huber, William B. Sturgeon, Brock D. Phillips, San Francisco, for Stanley Lourdeaux, M.S.

Morgan, Morgan, Towery, Morgan & Spector, James E. Towery, San Jose, for County of Santa Clara.

Rankin, Oneal, Center, Luckhardt, Marlais, Lund & Hinshaw, Edward A. Hinshaw, David H. Ryan, San Jose, for Paul Works, R.N., Karen Dozier, R.N., LaVonne Zuckswerth, R.N SMITH, Associate Justice.

This is a proceeding for a writ of mandate. Petitioners, Raul and Gloria Ochoa, are parents of deceased minor Rudy Ochoa, who died while in the custody of Santa Clara County Juvenile Hall. They are plaintiffs below in an action brought against the County of Santa Clara and four of its employees (real parties in interest herein) over the death of their son, allegedly from an illness caused by real parties' failure to provide him with a suitable living environment and adequate medical care during his confinement at the juvenile hall. In their application for a writ of mandate, petitioners seek to have set aside an order of the trial court sustaining without leave to amend real parties' demurrers to the fifth, sixth, eighth and ninth causes of action of their original complaint. The ground for sustaining the demurrers was failure to state facts sufficient to constitute a cause of action.

BACKGROUND FACTS

The original complaint was filed on May 7, 1981, following prerequisite presentation of a claim to the County of Santa Clara (County) and County's rejection of same. (See Gov.Code, §§ 910, 911.2, 945.4, 950.2 and 950.6, subd. (a).) Named as defendants were County and the following individuals, allegedly agents and employees of County: physician Stanley Lourdeaux, M.D. (Lourdeaux), and registered nurses Paul Works (Works), LaVonne Zuckswerth (Zuckswerth) and Karen Dozier (Dozier). The complaint set forth nine causes of action.

All defendants interposed demurrers to the fifth through ninth causes of action on the ground that the complaint failed to state facts sufficient to constitute a cause of action. (Code Civ.Proc., § 430.10, subd. (e).) After a joint hearing on the demurrers, the court, on March 26, 1982, ordered the demurrers sustained without leave to amend.

On May 21, 1982, petitioners filed the instant petition in this court, seeking mandate to compel respondent court to set aside its March 26th order insofar as it sustained, without leave to amend, the demurrers of real parties Lourdeaux, Works, Zuckswerth and Dozier to the fifth, sixth, eighth and ninth causes of action of the complaint. Petitioners do not challenge the sustaining of the demurrers with respect to the seventh cause of action, nor do they challenge the sustaining of County's demurrer to any of the fifth through ninth causes of action, which demurrer was sustained, at least in part, on the immunity afforded by Government Code section 844.6.

Real parties filed a return to the writ petition on May 26, and this court denied the petition without opinion on December 15, 1982.

On December 27, 1982, petitioners filed a petition for hearing in the Supreme Court. That court granted the petition on February 3, 1983, transferring the cause to itself and retransferring it to this court with instructions to issue an alternative writ. By that action, the Supreme Court necessarily determined, for the purpose of further proceedings in this court, that petitioners have no adequate remedy at law and that extraordinary relief is therefore appropriate. (O'Connor v. Superior Court (1979) 90 Cal.App.3d 107, 110, 153 Cal.Rptr. 306; Department of General Services v. Superior Court (1978) 85 Cal.App.3d 273, 279, 147 Cal.Rptr. 422; Code Civ.Proc., § 1086; see People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 492, 96 Cal.Rptr. 553, 487 P.2d 1193.) We ordered issuance of an alternative writ of mandate on March 1, and the writ issued as prayed on March 3, 1983.

All four causes of action here at issue incorporate by reference the following core set of relevant facts from other causes of action: Santa Clara County Juvenile Hall and its infirmary are owned, operated and supervised by County; physician Lourdeaux and nurses Works, Zuckswerth and Dozier were employees and agents of County. On or about March 23, 1981, while in the custody and care of the juvenile hall, decedent became ill with "cold-like symptoms" caused by his confinement in uninhabitably cold living quarters. On or about March 23 and 24, 1981, decedent was admitted to the infirmary for care and treatment of an illness eventually diagnosed as bilateral pneumonia, but real parties negligently Also common to the four causes of action are allegations from the complaint that real parties knew or should have known the seriousness of the illness; that they acted with extreme recklessness and carelessness in the care and diagnosis of a seriously ill patient; that they "knew that deceased's mother ... was present with her son" at the juvenile hall infirmary; that she "pleaded with [them] to treat her son or allow her to take [him] to [their] family physician"; and that they acted in "utter, wanton, and conscious disregard of the rights and safety of decedent ... and of [petitioners]."

failed to timely and properly diagnose and treat the illness, which negligent conduct proximately resulted in decedent's death on March 26, 1981, from the illness. Symptoms of the illness included "extremely high fever, chills, convulsions [and] hallucinations...."

Also alleged in each cause of action are matters incorporated by reference from the claim presented to County. ¹ While not a model of concision or objectivity, ² the claim offers the following, mostly chronological amplification of events important to discussion of the issues.

"On Tuesday, March 24, 1981, at approximately 1:00 P.M. decedent was visited by his father and mother, Raul and Gloria Ochoa, Claimants herein, and observed by said parents to have been extremely ill, pale, holding his left side under his left lung attempting to relieve extreme localized pain. He complained to his parents of being extremely ill and of having been told that he had a 'bug'. Gloria Ochoa expressed concern to the personnel of Juvenile Hall that their child was not receiving appropriate and necessary medical care for his apparent illness despite attempts by Juvenile Hall authorities to reassure them to the contrary. The sight and circumstances of their extremely ill child did cause Gloria and Raul Ochoa extreme mental and emotional distress at that time and continuing thereafter.

"At approximately 9:30 A.M. on March 25, 1981, the decedent was admitted to the Juvenile Hall Infirmary with an eventual diagnosis of bilateral pneumonia and a temperature soaring to 105 degrees. In the early afternoon of Wednesday, March 25, 1981, Gloria Ochoa again visited her child and at that time found him lying on a bed in the Infirmary extremely pale, his lips white and dehydrated, his skin clammy and sweaty, his eyes rolling and body twitching in what appeared to her to be the beginnings of a convulsion. Her son was hallucinating during most of the visit, however, during lucid moments the decedent complained of being very, very sick and in pain. Claimant Gloria Ochoa was very distressed and concerned and requested of the authorities to be allowed to take her sick child to her own physician. She expressed willingness to cooperate in any manner they desired so long as the child could be seen by the family physician. Gloria Ochoa was then seen by the alleged attending physician, Stanley Lourdeaux, M.D., and assured that her son had only a flu and that he should be left there. Her son, the deceased, repeatedly requested of his mother, Gloria Ochoa, that he be taken to a private doctor. Gloria Ochoa repeatedly requested that arrangements be made to release her son to her to be seen by the family physician or in some manner or form take him to the family physician, but was advised that she would have to wait until the following morning to discuss the problem with the Probation Officer. Dr. Lourdeaux advised "Decedent RUDY CRUZ OCHOA was seen by the attending physician, Dr. Lourdeaux only once on Tuesday, March 24, 1981 and on only one occasion at approximately 10:30 A.M. on Wednesday, March 25, 1981 after which neither Dr. Lourdeaux nor any other physician saw, examined or attended to decedent until his death at approximately 1:05 A.M. on Thursday, March 26, 1981.

Gloria Ochoa that her son would be given a penicillin shot. Claimant then returned to her son and found him complaining of excruciating severe pain under his left rib cage which was tender to touch when she attempted to comfort him. Again, Gloria Ochoa went to the attending nurses on duty requesting that her son be released to her private doctor 'even if handcuffed'. Three attending nurses were there ... who denied her request. Gloria Ochoa then gave the nurses her telephone number requesting that she be called immediately if her son got any worse and that she be kept informed of his condition, and thereupon returned to attend to her son again.... At approximately 2:00 P.M. Gloria Ochoa was advised by personnel in authority at the Infirmary to leave. She ignored their request desiring to continue to attend to her very sick child by applying cold...