CREAM v. MITCHELL

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

Hannah Marcia CREAM, a Minor, etc., Plaintiffs and Appellants, v. Sheila MITCHELL et al., Defendants and Respondents.

No. B028457.

Decided: December 11, 1989

Haight, Brown & Bonesteel, Roy G. Weatherup and Rita Gunasekaran, Santa Monica, for plaintiffs and appellants. Rushfeldt, Shelley & Drake, Alan L. Rushfeldt, Susan M. Dahl, Sherman Oaks, Horvitz & Levy, Barry R. Levy and Douglas G. Benedon, Encino, for defendants and respondents.

This is a purported appeal from an order granting judgment on the pleadings in favor of defendants on May 19, 1987, by the trial court.   There is no appeal from an order granting a motion for judgment on the pleadings.   (Budrow v. Wheatcraft (1953) 115 Cal.App.2d 517, 522, 252 P.2d 637;  Stevens v. Key Resistor Corp. (1960) 186 Cal.App.2d 325, 8 Cal.Rptr. 908;  cf. 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 82, p. 105.)   However, appeal lies from a judgment of dismissal following grant of a judgment on the pleadings.   Such a judgment was submitted to the trial court on May 22, 1987, in advance of the filing of notice of appeal on June 16, 1987.   The judgment was not signed and filed by the trial court until July 13, 1987.   The appeal will be deemed to have been taken from the judgment.

The judgment is reversed in part and remanded, but otherwise affirmed.

The reporter's transcript merely covers cursory oral argument of counsel at three law and motion hearings, but the clerk's transcript is 634 pages in length, and proclaims this matter to be “a pleadings case.”

Plaintiffs proceeded originally with a nine-count complaint variously seeking damages for alleged medical malpractice, intentional infliction of emotional distress, negligent infliction of emotional distress, malicious prosecution, false imprisonment, abuse of process, defamation (slander per se), damages for civil rights in violation of 42 United States Code section 1983 and California Constitution, article I and for “expenses incurred on behalf of a minor.”

The defendants fall into two groups and will be designated as “the Medical defendants” (Mitchell, Worthman, the Family Practice Center, and the Presbyterian Intercommunity Hospital).   Only the Medical defendants are respondents in this appeal.   The remaining defendants, Blackmer, Kopperno, Balich, Bess and the County of Los Angeles will be designated as “the County defendants.”

The Medical defendants alone were successful moving parties in the trial court for judgment on the pleadings.   No joinder in that motion was made by the County defendants, and the case still pends against them in the superior court.

The Medical defendants twice demurred successfully to appellants' complaint.   Each demurrer was overruled on all counts except as to the third cause in each complaint for negligent infliction of emotional distress.

A second amended complaint was filed once again identical to the previous complaints except for the negligent infliction of emotional distress count.   This complaint was answered by the Medical defendants and by the County defendants.

The motion for judgment on the pleadings was thereafter made by the Medical defendants and opposition to the motion was filed by plaintiffs and appellants.

On February 20, 1987, the trial court granted the motion for judgment on the pleadings with leave to amend only to allow plaintiffs the opportunity to plead that two defendants, Drs. Sheila Mitchell and Paul Worthman, were not “mandated reporters” of incidents of child abuse, as such term is defined by the case of Storch v. Silverman (1986) 186 Cal.App.3d 671, 680–681, 231 Cal.Rptr. 27.

Another amended complaint was filed by plaintiffs and the Medical defendants again moved to dismiss the complaint under the provisions of Code of Civil Procedure section 581, subdivision (f)(2), on the grounds the (mislabelled) second amended complaint was filed after expiration of the time granted within which to amend and another motion for judgment on the pleadings was made, as well.  (This was in fact the fourth complaint filed and should have been designated as the third amended complaint instead of repetitiously designating it as the second amended complaint.)   No formal opposition to the second motion for judgment on the pleadings appears in the clerk's transcript, and on May 19, 1987, the trial court granted the motion without leave to amend specifying in the minute order the court based its decision on the Storch case, ante, and the provisions of section 11172 of the Penal Code.   All further code section references in this opinion will be to the Penal Code, unless otherwise specified.

 The nature of a motion for judgment on the pleadings is well known and requires scant discourse.   Suffice it to say the motion amounts to a general demurrer for failure to state a cause of action and is customarily made after the moving party has answered.   The same rules regulating general demurrer proceedings apply equally to a motion for judgment on the pleadings.   If a complaint on its face fails to state a cause of action either a timely general demurrer or the motion will lie.  (Generally see 5 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 953, pp. 385–386.)

 All facts pleaded in a complaint, whether actually provable or not, must be accepted as true for purposes of ruling on either a general demurrer or motion for judgment on the pleadings.  (Hughes v. Western MacArthur Co. (1987) 192 Cal.App.3d 951, 954–955, 237 Cal.Rptr. 738.)   Attention must therefore be directed to the second amended complaint upon which the motion was granted to extrapolate the operative facts, since the motion for judgment on the pleadings was granted as to that complaint.

Hannah Marcia Cream (Hannah) is the minor daughter of Ronald and Marcia Cream (parents) and they are the plaintiffs and appellants.   At age nine Hannah contracted chicken pox and was taken by her parents to the Medical defendants for treatment.   A vaginal discharge in Hannah was noted which prompted a telephone call by the Medical defendants to the County defendants suggesting Hannah was the victim of sexual abuse.   The Medical defendants suspected Hannah had contracted gonorrhea.   It is argued by parents as a basis of their medical malpractice claim that had a smear culture been taken, the results of which could have been reasonably anticipated within 72 hours, such a test would have merely disclosed the discharge was a not uncommon symptom of the chicken pox which Hannah had, and nothing more.

In response to the report,1 the County defendants the same day Hannah was initially seen by the Medical defendants, took her from her parents.   It is alleged Hannah was subjected en route to the MacLaren Hall juvenile facility to a high speed emergency pursuit of a suspect vehicle by the sheriff's deputies after she had been taken from her parents.   She languished some seven weeks at MacLaren Hall before being released to her parents, shortly before the juvenile dependency proceedings which had been scheduled in the interim were dismissed.   Independent investigation by the County defendants revealed no instance of sexual or other abuse of Hannah.   It was also alleged that while at MacLaren Hall no treatment was provided Hannah for her case of chicken pox.

Clearly, Hannah and her parents were traumatized by these events and suffered substantial individual and family distress from all the events described.   No great amount of detective work is needed to conclude the Medical defendants were a cause in fact and a legally proximate cause of this trauma and distress.

The Legislature originally enacted the Child Abuse Reporting Act (“Act”) in sections 11165–11174 in 1980.  (Stats., 1980, c. 1071, § 4.)

In 1987 additional enactments modified and expanded the original 1980 legislation which had created the Act.  (Stats., 1987, c. 1444, § 1.)   All further statutory references in this opinion will be to the Act as contained in the Penal Code.

The first sentence in section 11172, subdivision (a), in both the 1980 and 1987 versions contains the blanket immunity language applicable here.   The only change from the original 1980 language in the first sentence of section 11172 made by the 1987 amendment is the substitution of “health practitioner” for the original term “medical practitioner.”   In the 1980 version medical practitioners were defined in section 11165, subdivision (i)—in the 1987 enactment, new section 11165.8 was added to expand the persons deemed to be health practitioners by including paramedics, coroners and medical examiners, and Christian Science practitioners, as well as others.

It is therefore wholly irrelevant to consider which version of the statute may control in this case since the medical defendants, Mitchell and Worthman, are each a “physician and surgeon” and in both versions that term heads the list of those to be designated either a “medical practitioner” or “health practitioner.”

In both the 1980 and 1987 versions, section 11166, subdivision (a), is the section which requires doctors to report instances of observed or suspected child abuse.

Appellants argue about the consistent language in both the 1980 and 1987 versions of section 11166—“knows or reasonably suspects.”   In context, and paraphrased, section 11166 uses the mandatory word “shall” to require any doctor who knows or reasonably suspects a case of child abuse to report the case to a child protective agency forthwith.

Appellants' position is that the doctors in Hannah's case acted unreasonably in their knee-jerk report of what they suspected (unspecified as to whether the report was oral or written, see fn. 1), when a vaginal smear culture test result could have been obtained in three days' time and that such a test would have confirmed that the case of chicken pox from which Hannah had suffered was the only source of the doctors' unwarranted suspicions.   Appellants contend the failure on the doctors' parts reasonably to suspect what they reported places them beyond the pale of the blanket immunity granted by section 11172, subdivision (a).

Shortly before argument was scheduled and the appellate hearing set in this case, the case of Loeblich v. City of Davis (1989) 213 Cal.App.3d 1272, 262 Cal.Rptr. 397 was published.   In Loeblich the appeal was from a demurrer sustained without leave to a four-count complaint that alleged false imprisonment, libel, slander, and intentional infliction of emotional distress.   The facts in Loeblich were that a school bus driver overheard Anastassia Loeblich make “a sexual remark” which prompted the bus driver to make mention of what was overheard to the defendants.   As a result, Anastassia's teacher, Wardlow, and the school nurse, Clark, called in a Davis police officer, Yarnell, and, in turn, a Yolo County social worker, Zebell.   At her school, Anastassia was subjected to unwarranted vaginal exams by incompetent examiners and further subjected to repeated questioning.   She was also examined at the University of California Davis Medical Center where she was (competently) found not to have any clinical signs of molestation.   However, Anastassia was “held incommunicado” 11 hours during this investigative phase.

Yarnell, the Davis police officer, meanwhile phoned Anastassia's mother and advised her that Anastassia had been molested by Loeblich's husband, McClelland;  and that McClelland had confessed to the molestations.   It was alleged Yarnell “knew or should have known” of the falsity of this information.   About a week after the above described hullabaloo the investigation was dropped.   Suit followed.

The Loeblich case points out a possible factual distinction of some importance here.   The acts complained of in Loeblich occurred from the incompetent physical examinations and detention by the defendants during an investigation before and preparatory to the submission of a report under the Act.   Therefore the harm, if any, was not a direct result of reporting mandated under the Act.   The Loeblich court makes a direct holding that “by its plain and unambiguous terms, the immunity conferred by the Act is limited to injury caused by the act of reporting suspected child abuse.”  (Loeblich, supra, 213 Cal.App.3d at p. 1281, 262 Cal.Rptr. 397.)

The Loeblich court affirmed the sustaining without leave to amend of the libel and slander counts on grounds of “privilege and immunity” provided in Civil Code section 47, subdivision 2 (as an “official proceeding authorized by law”) but the trial court's judgment was reversed as to the false imprisonment and intentional infliction of emotional distress count and the case was remanded as to those two causes of action.

Here, the nine-count complaint also alleges a claim for false imprisonment and both the intentional and negligent infliction of emotional distress.  (It is to be remembered in the first two complaints in this case the demurrers were overruled to all counts except as to the count for negligent infliction of emotional distress.)   It was not until the motion for judgment on the pleadings in this case was decided on May 19, 1987, that the case of Storch v. Silverman, supra, 186 Cal.App.3d at page 678, 231 Cal.Rptr. 27 came into play to oust the complaint in its entirety.

 Notwithstanding, in light of the Storch and Loeblich cases, upon review here (and in agreement with the rationale of Loeblich ) only damages incurred from events other than the reporting process may be redressed in this case.   This is the converse way of stating the Loeblich holding that the immunity from the Act extends only to the act of reporting and all proximate results which flow from the reporting process.

It remains, therefore, to sort out the causes of action pleaded in this case and to determine, if possible, which cause or causes of action stem proximately and only from the Medical defendants' reporting under the Act and to immunize such cause or causes of action as well as to determine if any of the alleged causes of action proximately occurred from events unrelated to the reporting.

 It is summarily agreed for the same reasons and rationale expressed in Loeblich that in this case the fourth cause of action for malicious prosecution, the sixth cause of action for abuse of process, the seventh cause of action for defamation and the eighth cause of action for “civil rights of violations” under 42 United States Code 1983 are not only far-fetched but are clearly alleged to be the consequences of the Medical defendants' report (under the Act), and thus they are subject to the immunity bar of the Act.

The ninth cause of action tried, but failed, to dignify damages alone as a cause of action.   This is merely the result of inept pleading and fuzzy thinking.   Damages, if any, will flow from viable causes of action and a special count “for expenses incurred” is both redundant and superfluous.

 What is left for consideration is the claim of malpractice, false imprisonment, and the claims of intentionally and negligently inflicted emotional distress.   The term “distress” will be used interchangeably for both causes of action and will only be differentiated hereafter when, and if, necessary.

The malpractice claim requires close examination and analysis in the light of Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   The malpractice charging allegations in the complaint are found in paragraphs 23, 24 and 25 and they are woefully inadequate.   Stripped of an overabundance of legalese, paragraph 23 alleges the Medical defendants made a misdiagnosis which caused them “without having any reasonable suspicion” to report to the County defendants that Hannah had been sexually abused.   Paragraph 24 only alleges “as a proximate result” of the reporting by the Medical defendants Hannah was taken by the County defendants on October 5, 1984, and held until November 29, 1984.   Paragraph 25 alleges that the County defendants (and not the Medical defendants) held Hannah without further treatment for her chicken pox.   The remaining paragraphs of the malpractice action allege the routine damages claimed to have been suffered by all of the plaintiffs.

Although counsel argued facts at the appellate hearing not restricted to the pleadings, which was hardly appropriate, the actual facts alleged in the complaint failed to show the claims for damages flowed from the Medical defendants' act of reporting under the Act, and they are thus prima facie subject to the immunity bar of the Act.

What was never alleged in the complaint, if it in fact occurred at all, was whether the Medical defendants ever received back from any competent laboratory negative test results from the vaginal smear test which may have been taken from Hannah and which ultimately may have showed only that she suffered from chicken pox and not gonorrhea, as the Medical defendants may have originally suspected.   If such reliable information had been received by the Medical defendants and had the Medical defendants refused or omitted negligently to have followed up by reporting to Hannah's parents that the test results were negative for venereal disease, a case for malpractice might well exist.   If such a factual matrix had been pleaded (or could have been pleaded) it would be so nearly identical in effect to the factual situation in the Molien case, supra, that the whole thrust and holding of the Molien case would clearly apply.   Such allegations, though intimated in the briefs and in the argument made, nowhere appear as express affirmative allegations of ultimate fact anywhere in the complaint.

Perhaps deprived of the luxury of counsel's “appellate afterthoughts,” the trial court properly granted judgment on the pleadings because with or without benefit of the insights of the Loeblich case all the first cause of action ever alleged was a compendium of damages flowing directly from the immunized acts of reporting undertaken by the Medical defendants.

It is not until paragraph 48.1(C) in a “distress” count is reached that a glimmer of obesiance is paid to the facts which might otherwise have made a viable count out of the preceding and initial malpractice cause of action which was pleaded.   In subparagraph (C), and not until then, is the cryptic allegation made that:  “These (Medical) Defendants failed to inform defendant governmental entity [e.g., the County defendants] and all Plaintiffs that the laboratory results did not corroborate [the Medical defendants'] diagnosis of venereal disease.”

If true, the failure to discharge their medical duties by advising all plaintiffs of any negative test results would have been a negligent omission on the part of the Medical defendants and would be an almost mandatory basis for replication of the result in Molien v. Kaiser Foundation Hospitals, supra.

What is not pleaded and therefore not knowable from the complaint or the record is whether the Medical defendants, or any of them, were ever fairly and timely apprised of the County defendants' actions.   If the Medical defendants were made aware from any reliable source that the County defendants “had swooped down” on Hannah and taken her to juvenile hall where she languished for 55 days, it is certainly one thing—it is quite another thing if neither Hannah's parents or the County defendants ever advised the Medical defendants of what in fact had happened to Hannah.

It is therefore an exercise in futility to attempt application of the Loeblich ruling to the distress counts as they are pleaded in this case.   The immunity of the Medical defendants could well be pervasive and persuasive if the suspicions they voiced in notifying the County defendants, even though medically incorrect, were precipitously acted upon by the County defendants with no informational feedback whatsoever to the Medical defendants.   It could not then be fairly alleged or proved that in the absence of reliable knowledge of what fate befell Hannah that any damages to plaintiffs resulted from the mandatory report the Medical defendants felt impelled to make.   If there was reliable factual feedback to the Medical defendants, however, damages to the plaintiffs comparable to the type suffered in Molien, supra, would have proximately resulted to plaintiffs if the Medical defendants failed or refused to come forward and clear up the quandary.   An also fatal omission in the pleadings is whether in fact a written report was ever rendered by the Medical defendants within 36 hours after the telephone notice given to the County defendants in the manner the Medical defendants were required to do by section 11166.5, subdivision (a) of the Act.   If the report was omitted—i.e., if the Medical defendants never rendered the written report at all, then it is possible damage from the reporting process could have occurred by the omission of the Medical defendants to have made the required report.   If the written report was made, and even if it perpetuated the mistaken diagnosis by having been rendered prematurely before definitive negative test results had been received by the Medical defendants, the fact the County defendants may have “jumped the gun” would still raise the immunity bar because the County defendants could not have acted in reliance on a written report if no written report had as yet been submitted by the Medical defendants.   Likewise, if the County defendants did act in reliance on such a “phantom” written report, even if the report was medically incorrect, if it fairly voiced the Medical defendants' rationale, it was a mandated report and the immunity bar would have applied, in all probability.

In summary, and in consonance with Loeblich v. City of Davis, supra, the complaint upon which the motion for judgment on the pleadings was made was grossly insufficient in the form upon which the ruling was made.   As it stood, the complaint as to the Medical defendants failed to allege ultimate material facts beyond the reporting requirements of the Act which demonstrated directly or by fair inference that plaintiffs sustained damages from the Medical defendants for any acts or omissions of the Medical defendants that occurred outside of the reporting process mandated by the Act.

It is abundantly clear that the Medical defendants did not personally take Hannah into custody and detain her;  the County defendants did that.   The argument comes full circle back to the missing allegations that the Medical defendants may have known what the County did and after receiving “negative test results” the Medical defendants may have done nothing to redress the situation.   In such a circumstance and only then, could it be fairly said some compensable harm from the “reporting process” may have come to plaintiffs for any omissions on the part of the physicians to rectify that situation.

At this point the argument made by the appellants-plaintiffs in their briefs requires comment.   Appellants made the selfsame argument in their briefs which was rejected in the case of Storch v. Silverman, supra, 186 Cal.App.3d at page 678, 231 Cal.Rptr. 27, where the Storch court noted the appellants' contention in that case that “section 11172, subdivision (a) immunity” is limited and not absolute.   The argument made by appellants in the Storch case was:  “Since a medical practitioner (i.e., health practitioner) is required to report only those instances of child abuse which he or she ‘knows or reasonably suspects' may have occurred ․ immunity exists only for reports that meet those criteria.   Thus ․ there is no immunity for negligence․”  The same rejoinder made in the Storch case applies as forcefully to this case.   The Storch court observed:  “Plaintiffs' interpretation, however, renders the immunity statute virtually meaningless.   There is no need for immunity when there can be no liability, as in the case of reports that are true or based upon objectively reasonable suspicion ․ [t]he issue of the reasonableness ․ would potentially exist in every reported case.”   (Storch, supra, 186 Cal.App.3d at p. 678, 231 Cal.Rptr. 27, also.)

There is nothing inconsistent in either the Storch case or the Loeblich case when they are compared and contrasted.   The Storch case noted criminal sanctions exist for the failure of anyone required to report child abuse if they are mandated by the Child Abuse Reporting Act to do so and that as a result, “absolute immunity from liability for all reports [emphasis added] is consistent with that (Act's) scheme [which the Legislature has enacted.]”  (Storch, supra, 186 Cal.App.3d at pp. 678–679, 231 Cal.Rptr. 27.)   Loeblich notes liability can exist only for acts which go beyond or are extraneous to the mandated reporting procedures.

In tandem, Storch upholds the absolute immunity provided in the reporting process by “health practitioners” even if the report is incorrect and the reasonability of the report is suspect.  Loeblich clearly acknowledges that immunity but provides that liability may exist only for the commission or omission of acts “above and beyond” the mandated requirements of reporting suspected instances of child abuse as the Act requires.

 Only one further observation need be made concerning the potential liability of the Presbyterian Intercommunity Hospital.   In the Storch case, 186 Cal.App.3d at pages 681–682, 231 Cal.Rptr. 27, it is stated:  “Inasmuch as the liability of the hospital, under the doctrine of respondeat superior, was necessarily predicated upon the negligent report of child abuse by one of the other defendants, the immunity statute defeats any action against the hospital as well.  (McKenna v. Cedars of Lebanon Hospital (1979) 93 Cal.App.3d 282, 288 [155 Cal.Rptr. 631.] )”  Here, if the doctors prove immune, so is the hospital.

The omission by appellants' counsel to have filed points and authorities in opposition to the respondent Medical defendants' motion for judgment on the pleadings placed the trial court in the untenable position of having to rule on a motion which had been literally not responded to.   Procedurally, the trial court was perfectly correct in rendering the judgment that was made since, indeed, there was little alternative available.

The interests of justice, however, compel reversal of the trial court's judgment as to the medical malpractice, false imprisonment, and intentional and negligent infliction of emotional distress causes of action, only.   As to all remaining causes of action the judgment is affirmed.   Upon remand, plaintiffs should be afforded the additional opportunity, consistent with the views expressed in this opinion, to allege, if possible, such facts which may have occurred “outside the reporting process” which are attributable exclusively to the Medical defendants.   If it cannot be fairly alleged the Medical defendants obtained actual and reliable information that Hannah in fact did not suffer from venereal disease, as they had suspected, then it would seem everything the Medical defendants did was within the cloak of immunity provided by the Act.   If it can be truthfully alleged the Medical defendants had actual and not constructive knowledge of what had befallen Hannah after her original examination, and that the Medical defendants had obtained negative test results and did nothing about it, in such a circumstance the Medical defendants might well be liable.

Any false imprisonment cause of action would of course require pleading a derivative theory of liability against the Medical defendants.   The intent element of the tort of false imprisonment may well prove insurmountable as to the Medical defendants.

Affirmed in part;  reversed in part, and remanded.   Parties to bear their own costs on appeal.

FOOTNOTES

FOOTNOTE.  

1.   Section 11166.5, subdivision (a), mandates a telephone call to the appropriate child care custodian be made by an examining health practitioner immediately or as soon as practical after initial examination.   The oral report must be followed by a written report to the same child care custodian within 36 hours following the initial examination.   Plaintiffs fail in their complaint to distinguish between any telephone and written report.

SUTTON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

ASHBY, Acting P.J., and BOREN, J., concur.