Villa v. McFerren

• Decision Date: 01 June 1995
• Docket Number: No. B079917,B079917
• Citation: 35 Cal.App.4th 733,41 Cal.Rptr.2d 719
• Court: California Court of Appeals Court of Appeals
• Parties: Robert A. VILLA, Plaintiff and Appellant, v. Glen McFERREN, Defendant and Respondent.

Page 719

41 Cal.Rptr.2d 719

35 Cal.App.4th 733

Robert A. VILLA, Plaintiff and Appellant, v. Glen McFERREN, Defendant and Respondent.

No. B079917.

Court of Appeal, Second District, Division 5, California.

June 1, 1995.

Certified for Partial Publication. ^*

As Modified June 14, 1995.

Rehearing Denied June 20, 1995.

Review Denied Aug. 31, 1995.

Lynberg & Watkins, Judith Gold, Los Angeles, for plaintiff and appellant.

Weissmann, Wolff, Bergman, Coleman & Silverman, Michael Eidel, Beverly Hills, for defendant and respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

The complaint alleged a conspiracy between an insurer and a psychiatrist to deprive the plaintiff, Robert A. Villa, of disability benefits. In November 1993, the trial court entered a summary judgment in favor of defendant, Dr. Glen McFerren, a psychiatrist. Plaintiff appealed. We conclude defendant, in his moving papers did not meet his burden of showing all of plaintiff's causes of action had no merit in that one or more elements of his claims could not be established. In his moving papers, defendant presented insufficient evidence of his nonparticipation in the alleged conspiracy. Rather, defendant relied on plaintiff's deposition testimony. At his deposition, plaintiff admitted he personally was unaware of any communication between defendant and the insurer other than one letter. That one letter requested defendant to evaluate plaintiff for the insurer. There was no reason to believe plaintiff would have been present when the alleged conspirators purportedly planned to deny him his disability benefits. The evidence presented by defendant, including plaintiff's deposition testimony, was insufficient concerning the existence of a conspiracy so as to shift the burden to plaintiff to show a triable issue under Code of Civil Procedure section 437c as amended in 1992 and effective January 1, 1993. ¹ However, the opposition papers filed on behalf of plaintiff filled the evidentiary gap and sufficiently demonstrated defendant had no contact directly or indirectly with the insurer, thereby showing that the conspiracy claim, an essential element of all of the causes of action applicable to defendant, had no merit. Hence, we conclude in the published portion of this opinion that under the 1992 amendments to section 437c which were effective January 1, 1993, the trial court correctly granted the summary judgment motion. Accordingly, we affirm the summary judgment.

II. THE COMPLAINT AND EVIDENCE IN THE SEPARATE STATEMENTS

A. The allegations in the complaint

The facts as alleged in the complaint follow. Plaintiff was a trial attorney. In 1990, he suffered a "serious and debilitating" heart attack. As a result, he was permanently disabled from performing his occupation as a trial attorney. His insurer commenced disability benefits payments; but thereafter "sought by threats, intimidation, breaches of contract and other wrongful conduct" to terminate the benefits. The insurer, Minnesota Mutual Life Insurance (Minnesota Mutual), according to the complaint, hired a psychiatrist, a Dr. Malitiz, and directed him to prepare a biased report. The insurer scheduled an appointment for plaintiff with Dr. Malitiz. For unknown reasons, that appointment was canceled. In furtherance of the goal to deny benefits due under the disability policy, the insurer then conspired with defendant, a psychiatrist, to evaluate plaintiff and prepare a report. That report was to be favorable to the insurer; "one in which [defendant] would report that plaintiff was somehow dishonest with respect to his disability...." Defendant agreed to prepare the report with knowledge it would be used by the insurer to terminate plaintiff's benefits. Plaintiff brought a tape recorder to his appointment with defendant. Defendant also "knew or had reason to know" plaintiff would lose his disability benefits if the examination was not completed. Nevertheless, defendant ordered plaintiff not to turn the tape recorder on and to leave his office. Defendant then "falsely reported" to the insurer plaintiff had canceled the appointment. The insurer subsequently ceased payments of disability benefits to plaintiff for failure to submit to an independent psychiatric examination. The complaint asserted causes of action against defendant for being a member of a tortious conspiracy to deprive plaintiff of contractual benefits and intentionally inflict severe emotional distress.

The foregoing allegations do not provide a basis for a damage claim on the theory defendant conspired to deny plaintiff the benefits of the implied covenant of good faith and fair dealing under the terms of plaintiff's disability policy with Minnesota Mutual. Because defendant was not a party to the insurance policy, he may not be liable for a conspiracy to violate the implied covenant of good faith and fair dealing. (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 45-48, 260 Cal.Rptr. 183, 775 P.2d 508; Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 576, 108 Cal.Rptr. 480, 510 P.2d 1032.) However, Doctors' Co., under existing Court of Appeal authority, does not preclude a cause of action for conspiracy to intentionally inflict severe emotional distress by a medical care provider hired by an insurer. There is Court of Appeal authority for the proposition that an insurer's agent may be held liable for conspiracy to intentionally inflict severe emotional distress. (Younan v. Equifax, Inc. (1980) 111 Cal.App.3d 498, 511, 169 Cal.Rptr. 478, cited with approval in Doctors' Co. v. Superior Court, supra, 49 Cal.3d at p. 48, 260 Cal.Rptr. 183, 775 P.2d 508.) Hence, assuming Younan v. Equifax, Inc., supra, 111 Cal.App.3d at page 511, 169 Cal.Rptr. 478, remains a valid statement of California law, the sole theory that plaintiff may pursue is that defendant was a member of a conspiracy to intentionally inflict severe emotional distress. ²

B. Evidence concerning the alleged conspiracy referred to in the separate statements

1. Defendant's evidence

The evidence proffered by defendant was as follows. As will be noted, the evidence cited by defendant did not directly address the purported conspiracy. Plaintiff was insured by Minnesota Mutual under a disability policy. The policy, which went into effect on August 15, 1985, provided a disability payment for a sickness which resulted in the "inability to perform the substantial and material duties" of the insured's regular occupation. Under the terms of the policy in this case, plaintiff's occupation was defined as "trial attorney." Defendant was a psychiatrist. He received a letter dated January 8, 1992, from Minnesota Mutual, which provided background information concerning plaintiff's disability claim. The January 8, 1992, letter stated: prior to his disability, plaintiff, a lawyer, had spent "all of his time in court involved in litigation activities"; he had suffered "a coronary ischemic event" for which he received an "angioplasty"; after the development of the heart problems, plaintiff had returned to work on a limited basis; plaintiff "ha[d] changed his practice from criminal and divorce cases to civil cases"; a cardiologist had indicated plaintiff would never be able to return to his occupation as a full-time litigator; a psychologist was treating plaintiff for "dysthymia"; the psychologist concluded plaintiff could not "return to his pre-disability activities"; plaintiff had filed a disability claim with Minnesota Mutual; an appointment with defendant for plaintiff had been scheduled for February 6, 1992; and defendant was to "perform a psychiatric exam" of plaintiff. After delineating the scope of the psychiatric examination, the letter stated: "Also please provide insight as to why such a permanent change in [plaintiff's] work activities is necessary." The January 8, 1992, letter to defendant warned that if a lawyer accompanied plaintiff, the examination was to be "cancel[led]." The January 8, 1992, letter from Minnesota Mutual to defendant made reference to medical records. However, defendant failed to include those records with the summary judgment motion.

Plaintiff appeared for the examination. He brought a tape recorder. He thought he had a right to tape record the examination. Plaintiff thought that since the Code of Civil Procedure provided for the tape-recording of psychiatric examinations, the Minnesota Mutual policy was subject to the limited right to tape record a mental examination under the authority of section 2032, subdivision (g)(2). ³ At his deposition, plaintiff described defendant's response to the production of the tape recorder: "He phrased it this way: That he would not proceed with the examination or interview, as you call it, with the tape recorder."

Additional evidence relied upon by defendant included a deposition transcript of one of his employees, Donna Koukal. She told another person in reference to plaintiff: "The patient had insisted on wanting the session taped, tape-recorded, and in our office we've never done that. [Defendant] had stated no, and was more than willing to evaluate the patient. However, the patient chose to leave since it could not be recorded." When asked at her deposition where she obtained the information that plaintiff "chose to leave," Ms. Koukal testified: "That's my own viewpoint. The patient left because it couldn't be tape-recorded." Minnesota Mutual agreed to pay a $100 "no-show" fee because of the aborted examination.

Defendant offered no competent evidence which proved the allegation of a conspiracy could not be established. ⁴ The only competent evidence offered was plaintiff's deposition testimony. That testimony indicated plaintiff, personally, was unaware of any communication between defendant and Minnesota Mutual other than a letter in which the insurer requested defendant undertake an independent examination of its insured. The deposition testimony was as follows: "[Q] ... [A]m I also correct that as of February...