Rains v. Superior Court

• Decision Date: 13 January 1984
• Citation: 198 Cal.Rptr. 249,150 Cal.App.3d 933
• Court: California Court of Appeals Court of Appeals
• Parties: Jean RAINS, et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, The CENTER FOUNDATION, etc., et al., Real Parties in Interest. Civ. 69767.

Page 249

198 Cal.Rptr. 249

150 Cal.App.3d 933

Jean RAINS, et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, The CENTER FOUNDATION, etc., et al., Real Parties in Interest.

Civ. 69767.

Court of Appeal, Second District, Division 4, California.

Jan. 13, 1984.

Stephen L. Cooper and Paul Morantz, Los Angeles, for petitioners.

Fonda & Garrard, Stanley D. Saltzman and Dori E. Miles, Vletas & Greer, Barash & Hill, and Edwin B. Warren, Los Angeles, for real parties in interest The Center for Feeling Therapy Psychological Corporation, et al.

John G. Kerr and Louis M. Marlin, Los Angeles, for real parties in interest Jerry Binder and Werner Karle.

Roper & Folino and Michael J. Irwin, Los Angeles, for real party in interest Michael Gross.

No appearance for respondent.

WOODS, Presiding Justice.

This petition seeks review of an order sustaining a demurrer to a cause of action for battery without leave to amend. The alleged batteries occurred as an aspect of an in-patient psychiatric treatment program in which plaintiffs participated and consented to defendants using physical violence upon them as a therapeutic measure.

The two issues presented by this appeal are:

I

Whether a cause of action for battery was well pleaded in plaintiffs' second amended complaint and, if not, whether it is possible to plead such a cause under applicable law.

II

Whether respondent's imposition of monetary sanctions under Code of Civil Procedure section 128.5, subdivision (a), was an abuse of discretion.

Whether a viable cause for battery has been or might be pleaded turns upon whether plaintiffs' consent to use of physical violence by defendants as a therapeutic treatment may be vitiated by allegations that defendant psychiatrists actually did not administer such violence for any therapeutic purposes but for the improper ulterior purpose of subjugating plaintiffs and controlling their behavior to defendants' personal advantage.

The facts are that petitioners (hereinafter plaintiffs) sued real parties (hereinafter defendants), psychiatrists and the corporations established by them as alter egos, by a second amended complaint alleging counts for fraud, breach of contract, false imprisonment, battery, intentional infliction of distress, medical malpractice, and negligence. Plaintiffs allege, in substance, that defendants induced plaintiffs to enter into a residential group psychiatric treatment program upon certain false representations as to the therapeutic value and limited term of the program. In fact, defendants used the program as a pretext to employ psychological coercion, humiliation, and physical violence to subjugate plaintiffs, to coerce plaintiffs to remain in the residential program, to serve defendants for no compensation, to give defendants donations, to recruit new patients, and to believe their well being depended upon remaining in the program and loyally serving defendants to the exclusion of the outside world.

The fifth count of the second amended complaint alleges that defendants committed numerous batteries upon plaintiffs in the administration of the psychiatric program. The allegations admit that plaintiffs consented to the use of physical violence upon their person by defendants, and by other patients under direction of defendants, as an aspect of the psychiatric treatment (sometimes referred to as "sluggo therapy") because "[d]efendants, ..., coercively persuaded plaintiffs that such physical abuse was necessary to plaintiffs' becoming 'cured'."

The count alleges that "any consent to such touchings occurred as a result of the fraudulent representations described in Paragraphs 8 and 14 of the First Cause of Action." However, the battery count expressly incorporates by reference only paragraphs 1 through 13 of the first cause of action.

The specific misrepresentations described in paragraph 8 of the first cause of action (fraud) are that, at or about the time the respective plaintiffs enrolled in defendants' program, defendants represented to them orally and in writing that a patient would be cured and transformed into a successful person within a period of six months to one year.

Paragraph 14 of the first cause of action alleges that as a result of the fraudulent representations and concealment of material facts alleged in paragraphs 12 and 13 of that cause, plaintiffs entered into defendants' program and were "forceably persuaded into becoming loyal and dedicated followers of defendants, and did believe that personal survival depended on remaining in defendants organizations and treatment, and did believe they should not return to the outside world."

The battery count further alleges that "[a]ssaults and batteries were also used to control the behavior of plaintiffs under the guise of being 'proper therapy'." Plaintiffs seek punitive damages for the alleged batteries.

Defendants demurred to the complaint on the ground that plaintiffs' admission of their consent to the use of violence upon them, bars a cause of action for battery because consent to offensive touching is vitiated only where the touching is different in nature from that to which consent was given. Defendants argued that under the rule stated in Cobbs v. Grant (1972) 8 Cal.3d 229, 239-241, 104 Cal.Rptr. 505, 502 P.2d 1, a physician may not be liable for battery upon a patient unless he performs a treatment which is "substantially different" from that to which the patient gave consent. Defendants concluded that because the alleged violent touchings of which plaintiffs now complain are physically identical to the contact consented to, plaintiffs' consent is not vitiated and there can be no cause for battery. Defendants also challenged as unsupported by authority or logic the plaintiffs' theory that their consent is vitiated because it resulted from the "coercive persuasion" employed during the course of the program. ¹

Respondent sustained the demurrer without leave to amend. The basis of this ruling was not enunciated.

Plaintiffs filed a motion for a "new trial," and another motion for reconsideration and for leave to file a proposed third amended complaint which contained a battery count alleging additional facts. Respondent denied the motion for new trial and the motion for reconsideration, but allowed the filing of the third amended complaint upon striking the battery count therefrom. Respondent imposed monetary sanctions against plaintiffs and their counsel, jointly, in the amount of $1,000 pursuant to Code of Civil Procedure section 128.5, subdivision (a), for bringing a motion for reconsideration without alleging new and different state of facts as required by Code of Civil Procedure section 1008, and for bringing a wholly inappropriate motion for new trial.

The stricken cause of action for battery in the third amended complaint contained the new fact allegations that "[i]n particular, no information was given to any plaintiff that the real purpose of the assaults and batteries was to punish plaintiffs, put fear into the plaintiffs, make plaintiffs obedient, and subservient to the defendants." It also alleged that "[s]aid batteries and assaults were not for therapeutic purposes, but were made to control the plaintiffs contrary to any representations made to plaintiffs when they first entered defendants' program."

I

We have concluded that plaintiffs can state a cognizable cause of action for battery. A battery is a violation of an individual's interest in freedom from intentional unlawful, harmful or offensive unconsented contacts with his or her person. (See Prosser on Torts (4th ed. 1971) § 9, pp. 34-37.) The element of lack of consent to the particular contact is an essential element of battery. (See Prosser on Torts, supra, at § 18, p. 101.)

For purposes of the present proceeding, the critical question is whether plaintiffs allege or could allege facts sufficient to show that there was an absence of informed consent by plaintiffs to the particular offensive nature of the contact alleged. That is, if the consent manifested by plaintiffs' participation in defendants' program after advisement that violent therapeutic contact would occur may not be vitiated under applicable law by the alleged misrepresentation as to therapeutic purpose, then plaintiffs not only have not stated a prima facie cause in battery but may not, as a matter of law, plead such a cause.

The Restatement Second of Torts section 55, comment b, entitled "Fraud or Mistake as to Relation of Actor to Other," states the rule that fraud as to the identity of the person making contact or the true relation between the parties may vitiate consent because the offensive nature of the contact is altered according to the identity or capacity of the actor in relation to the person subjected to contact; e.g., contact by a physician for diagnostic or therapeutic purposes is unobjectionable to the patient, but identical contact by a person falsely professing to be a physician would be objectionable. Section 55 goes on to state a variation of the rule applicable to this case, as follows:

"So too, the fact that a particular contact is necessary may deprive it of its offensive quality. There are many contacts to which no reasonable person would hesitate to submit when they are necessary for some proper purpose, such as the cure of a disease, which, but for such a necessity, would be highly offensive to any person of ordinary modesty. Thus, if a physician indulges in familiarities which are unnecessary to the treatment of his patient, assent to them in the mistaken belief that they are a necessary part of the treatment is not effective as consent." (At pp. 89-90.)

Illustration number 4 to comment b is equally apposite: "A, a physician, induces B unnecessarily to expose her person by telling her that it is necessary for a through [thorough] diagnosis and assists her in taking off her clothing. A is subject to liability to B." (At p. 90.)

The...