Williams v. Coombs

• Decision Date: 01 April 1986
• Citation: 179 Cal.App.3d 626,224 Cal.Rptr. 865
• Court: California Court of Appeals Court of Appeals
• Parties: Daniel A. WILLIAMS, Plaintiff and Appellant, v. James R. COOMBS, Defendant and Respondent. Civ. 24193.

Page 865

224 Cal.Rptr. 865

179 Cal.App.3d 626

Daniel A. WILLIAMS, Plaintiff and Appellant, v. James R. COOMBS, Defendant and Respondent.

Civ. 24193.

Court of Appeal, Third District, California.

April 1, 1986.

Review Denied July 9, 1986.

O'Connor, Cohn, Dillon & Barr, and Lisa T. Ungerer, San Francisco, for plaintiff and appellant

[179 Cal.App.3d 630] Steven A. Lewis, Sacramento, for defendant and respondent.

SPARKS, Associate Justice.

The trial court granted a motion for summary judgment in favor of attorney James R. Coombs, the defendant in this action for malicious prosecution and intentional infliction of emotional distress. Dr. Daniel A. Williams, the plaintiff below, appeals from the order and judgment, claiming there are triable issues of material fact in his first

cause of action for malicious prosecution and denying that a statutory privilege defeats his second cause of action for intentional infliction of emotional distress. Granting him half his loaf, we reverse the judgment and reinstate his first cause of action while affirming the trial court on the second.

FACTS

Only a brief recitation of the underlying facts are necessary to understand this appeal. On March 26, 1980, Wilma Bube was placed in Siskiyou General Hospital by officers of the Yreka Police Department for a 72-hour evaluation under Welfare and Institutions Code section 5150 because she had made suicidal gestures with a revolver. ¹ While the emergency room physician examined her, Dr. Daniel Williams (her personal doctor) came upon the scene and recommended that she be put in a private room rather than the locked room the hospital kept for patients in a delusional state or otherwise in danger of hurting themselves. Mrs. Bube was then placed in a regular hospital room. That same night she hanged herself by the belt of her robe from the sprinkler system.

On April 27, 1981, the decedent's daughter, Karleen Rhey, engaged the defendant to represent her. On June 15, 1981, the defendant filed a wrongful death action on her behalf against Dr. Williams and the hospital. A jury found for Dr. Williams and the hospital. A motion by Mr. Coombs for a new trial was granted with respect to the hospital but denied as to Dr. Williams. Dr. Williams then commenced the present action against attorney James R. Coombs and his client, Karleen Rhey. ² Defendant Coombs thereafter moved for summary judgment. The trial court granted the motion as to the malicious prosecution count on the grounds that "as a matter of law defendant Coombs acted with probable cause in instituting and prosecuting the underlying medical malpractice action against plaintiff Williams through final judgment, and there is no triable issue as to any material fact relating to probable cause." The court granted the motion as to the second cause of action for intentional infliction of emotional distress on the ground that it "fails because of the absolute privilege set forth in Civil Code § 47, subdivision 2." This appeal followed.

DISCUSSION

I

Dr. Williams' first cause of action is for malicious prosecution. "To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination to his, plaintiff's, favor; (2) was brought without probable cause; and (3) was initiated with malice." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608, citations omitted.) In such an action, the plaintiff must also establish that the action caused "damage by way of attorney's fees incurred in defense, mental distress, and/or injury to reputation or social standing." (Harbor Insurance Co. v. Central National Ins. Co. (1985) 165 Cal.App.3d 1029, 1036, 211 Cal.Rptr. 902.)

Defendant filed a motion for summary judgment claiming that he acted with probable cause and that there was no triable issue of material fact relating to that issue. In support of his motion, defendant filed a statement of facts he contended were undisputed. (See Code Civ.Proc., § 437c Defendant also supported his motion by his own declaration. There he asserted: "On or about April 27, 1981, KARLEEN RHEY spoke with me about filing a Wrongful Death Action, as a result of her mother's death. After discussing the case with Mrs. RHEY, I requested a week to review the matter. In early May, 1981, and after reviewing the matter in more detail, I advised Mrs. RHEY that I felt there was a tenable claim of malpractice against the hospital and the physician because of their failure to place her mother in the locked ward for psychiatric patients. [p] Before filing the complaint in the Wrongful Death Action, I learned from Mrs. RHEY that her mother had been placed in a private room, rather than the locked ward for psychiatric patients, and that Dr. WILLIAMS had made the decision to do that. [p] Before filing the complaint in the Wrongful Death Action, I formulated an opinion that Dr. WILLIAMS' conduct in placing Mrs. BUBE into a private room, rather than the locked ward, violated the provisions of 22 Cal.Admin.Code § 70577(c), and therefore constituted negligence per se; at that time, I was unable to locate any authority interpreting § 70577(c).[ ³ [p] Before filing the complaint in the Wrongful Death Action, I formulated an opinion that the matters regarding Mrs. BUBE's admission could be considered within the common knowledge of a lay jury, so that expert testimony would not be necessary.... [p] I instituted and pursued the Wrongful Death Action against SISKIYOU GENERAL HOSPITAL and DANIEL WILLIAMS in the good faith and honest belief that my client's claim was tenable." (Capitalization in original.) ⁴

subd. (b).) In response to that statement, Dr. Williams agreed that he saw Mrs. Bube in the Siskiyou General Hospital emergency room and had a brief conversation with her. Mrs. Bube told him she was drunk and wanted to be left alone. Dr. Williams further agreed that he requested that the emergency room physician write "routine admission orders" for Mrs. Bube and that he suggested that Mrs. Bube be put in a private room rather than the locked ward.

In opposition to the motion, Dr. Williams claimed that both the facts surrounding defendant's investigation and the probable cause to sue him were disputed. ⁵ In support of his position Dr. Williams filed the declaration of three attorneys. First, Lisa Ungerer, counsel for Dr. Williams in the malpractice action, declared that she took defendant's deposition in March 1984. In that deposition defendant testified that he contacted Dr. William Keenan prior to filing the malpractice suit and Dr. Keenan expressed the opinion that the hospital was negligent in its care and treatment of Mrs. Bube. No mention of any negligence on the part of Dr. Williams was made by Dr. Keenan. This conversation may have occurred on the golf course and without furnishing In another declaration, Lawrence Kern, a specialist in personal injury cases, stated that, in his opinion, "based on the nature of the investigation and the review of the law conducted, the Rhey suit was not tenable against Dr. Williams from the outset, either on the issue of medical negligence or negligence per se." His opinion was based, in part, on the fact that prior to filing the suit defendant had never been advised by a medical doctor that Dr. Williams committed malpractice; that defendant never consulted a physician to determine whether Mrs. Bube should have been placed in a locked ward; that it is apparent from reading the Administrative Code section that it was intended to apply only to the licensing requirements for hospitals; and that, without any case authority, defendant assumed the Administrative Code provision was sufficient to bind a physician and render him liable in medical malpractice action. The third declarant, attorney Douglas H. Newlan, opined that it was his "legal opinion that, based upon my review of the file and upon my knowledge of the case, Dr. Williams was sued by Mr. Coombs without probable cause and without a proper investigation into the case by Mr. Coombs."

Dr. Keenan with any documentary records. Indeed, defendant conceded that he consulted with Dr. Keenan only as a pathologist and not as an medical expert on the question of Dr. Williams' possible malpractice. Defendant admitted that he did not consult with a psychiatrist or any other physician prior to filing the malpractice suit. He also admitted that prior to filing the law suit he had not talked with any personnel at the hospital about the death of Mrs. Bube or with any member of the police department. He stated he perceived the legal issue as turning on the propriety of admitting a person under Welfare and Institutions Code section 5150 and then not treating that person as a psychiatric patient. His research consisted of Shepardizing that section and locating the cited administrative code section. He concededly found no cases construing the administrative provision in question.

Finally Dr. Williams attached portions of the deposition of Dr. William Keenan taken on May 24, 1982. There Dr. Keenan said he had some criticism of Dr. Williams but that his conduct did not constitute malpractice.

We begin our analysis of these declarations by reciting the familiar rules governing summary judgments: "The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution. Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. [p] 'The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.' 'The affidavits of the moving party are strictly construed and those of his opponent [are] liberally construed, and...