Norried v. Venice Family Clinic

1

WENDY NORRIED, Plaintiff and Appellant, v. VENICE FAMILY CLINIC et al., Defendants and Respondents

B316566

California Court of Appeals, Second District, Fifth Division

May 3, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. 20STCV17235 Mark H. Epstein, Judge.

David Vernon Welker for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, Cassidy C Davenport, Dana L. Stenvick; Kjar, McKenna & Stockalper Patrick E. Stockalper and Molshree Gupta for Defendants and Respondents.

BAKER ACTING P. J.

David Welker (Welker), an attorney, litigated several cases on behalf of himself and others in connection with the death of his brother, Darrell Norried (Darrell), in 2017. This is one of those cases-one in which Welker and his sister Wendy Norried (Wendy) asserted various causes of action against defendants Venice Family Clinic and the Regents of the University of California (collectively, the Clinic) based on the Clinic's conduct in responding to their requests for information regarding Darrell's medical care. They also sought a declaration that various provisions of the Medical Injury Compensation Reform Act of 1975 (MICRA) are unconstitutional. We are asked to decide whether the trial court erred in sustaining the Clinic's demurrer without leave to amend.

I. BACKGROUND

Darrell became a patient of the Clinic in July 2017 and was treated by physician's assistant Ernest Ortiz (Ortiz) on two occasions in July and August 2017. Plaintiffs allege Ortiz failed to inform Darrell of side effects associated with certain medication he prescribed and failed to monitor Darrell's response to the drug. Darrell died of hypertensive heart disease in September 2017.

This lawsuit and two others followed, with Welker representing the plaintiffs (including himself) in each.^[1] We begin with a brief summary of the two related cases, which the court referred to in the challenged ruling in this action.

A. Related Litigation

In Stratman v. Ortiz, Los Angeles Superior Court No. 18STCV09440, the court granted summary judgment in favor of the Clinic, Ortiz, and various other individuals on medical malpractice claims brought by Wendy as personal representative of Darrell's estate. The court previously sustained a demurrer to a cause of action for negligent infliction of emotional distress premised on (1) Welker and Darrell's nephew, Brayden Witt (Witt), watching Darrell die; and (2) Welker and Wendy being rudely rebuffed by Clinic staff when they requested medical records and information following Darrell's death. With respect to the latter theory-which, as we shall discuss, is directly relevant to this case-the court determined the Clinic owed no duty of care to Welker or Wendy. The court denied leave to amend this cause of action because this was the third time it had been subject to a pleading challenge and there were no proffered allegations that would cure the defect.

In Norried v. Ortiz, Sacramento Superior Court No. 342020-00291405, Welker represents himself, Wendy, and Witt in a purported class action against Ortiz and the Clinic seeking a declaratory judgment that certain provisions of MICRA are unconstitutional. Specifically, the action challenges Civil Code section 3333.2's cap on noneconomic damages in an action against a health care provider based on professional negligence and Business and Professions Code section 6146's cap on attorney contingency fees in such actions. The appellate record includes no information on the current status of this litigation.

B. This Lawsuit

1. Plaintiffs' complaint

In the operative first amended complaint, Welker and Wendy assert causes of action against the Clinic for negligent infliction of emotional distress, intentional infliction of emotional distress, and violation of the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.). They also seek a declaratory judgment that the same MICRA provisions challenged in the Sacramento County action are unconstitutional.^[2]

The cause of action for negligent infliction of emotional distress is substantially similar to one of the theories alleged in the Stratman case. Plaintiffs allege that when Welker called the Clinic after Darrell died and asked to speak with Ortiz or someone else regarding his care, he received "rude" and "impatient" responses, as well as "false promises" to pass messages along to Ortiz and to call back. Welker submitted a written request for medical records, and Wendy was met with "rude" treatment when she followed up regarding the status of the request. The Clinic allegedly failed to respond to the records request within the statutory deadline.

Plaintiffs' cause of action for intentional infliction of emotional distress is also based on the Clinic's allegedly rude, impatient, and false statements concerning their requests for information relating to Darrell's care.

As to the request for declaratory relief, plaintiffs allege they cannot afford to pay an attorney's hourly fees to pursue a medical malpractice action against the Clinic and several attorneys declined to represent them on a contingency basis because MICRA makes it uneconomical to do so. Welker's complaint alleges he is therefore representing himself and others, though he "is borderline incompetent to handle th[is] case" and he "has little idea what he is doing." Plaintiffs asserted MICRA's limits on noneconomic losses and contingency fees violate various provisions of the California Constitution.

2. The Clinic's demurrer, and plaintiffs' opposition and motion to strike

The Clinic demurred to the operative complaint, arguing, among other things, that plaintiffs failed to state facts sufficient to constitute a cause of action. The Clinic argued the cause of action for negligent infliction of emotional distress failed because it did not owe plaintiffs a duty of care. The cause of action for intentional infliction of emotional distress failed because the alleged conduct was not so extreme and outrageous as to exceed all bounds of decency. The UCL cause of action failed because plaintiffs did not allege any unfair, unlawful, or fraudulent business practice. The claim for declaratory relief failed, among other reasons, because there is no actual controversy between the parties relating to MICRA.

In their opposition to the demurrer, plaintiffs argued the Clinic owed them a duty not to negligently inflict emotional distress by virtue of its statutory obligation to timely respond to medical records requests, its "repeated[ ] lie[s]" about calling them back, plaintiffs' "inherit[ance]" of the Clinic's relationship with Darrell, and various public policy considerations. As to intentional infliction of emotional distress, plaintiffs argued the Clinic's alleged rudeness and lies were indeed outrageous. As to the UCL cause of action, plaintiffs argued the Clinic's alleged lies amounted to a fraudulent and unfair business practice and its failure to comply with the statutory deadline applicable to plaintiffs' request for Darrell's medical records was unlawful. Plaintiffs additionally argued, as to their declaratory relief claim, that an actual controversy concerning the validity of MICRA existed because MICRA prevented them from retaining an attorney and the Clinic declined to "stipulate that MICRA is unconstitutional ...."

In addition to opposing the demurrer on the merits, plaintiffs moved to strike it as untimely.^[3] The Clinic's responsive pleading was due on April 1, 2021. On that date, the Clinic filed a declaration by attorney Melissa Wetkowski (Wetkowski) averring that it made a good faith attempt to meet and confer regarding a contemplated demurrer, it had not yet been able to meet and confer with plaintiffs, and it was entitled to a 30-day extension under Code of Civil Procedure section 435.5, subdivision (a). When the Clinic filed its demurrer 30 court days later, on May 3, 2021, it submitted a declaration by attorney Molshree Gupta (Gupta) attaching an email it sent at 4:34 p.m. on Friday, March 26, 2021, inviting Welker to meet and confer regarding the demurrer. Welker replied on Sunday, March 28, that "it would be useful to meet and confer on these issues." Gupta stated the meet-and-confer held on April 26, 2021, was acrimonious and did not address the merits of the operative complaint or the demurrer. Plaintiffs argued the Clinic was not entitled to an extension and its demurrer was therefore untimely because Wetkowski's statements regarding a good faith attempt to meet and confer were false and, in any case, her declaration did not explain why the parties could not meet and confer.

3. Ruling on the demurrer and motion to strike

The trial court denied plaintiffs' motion to strike the demurrer and sustained the demurrer without leave to amend.

Regarding plaintiffs' motion to strike, the trial court found the demurrer was timely filed because the Clinic made a good faith effort to meet and confer before obtaining the 30-day extension. Further, even if the demurrer had not been timely filed, the trial court determined it would exercise its discretion to hear it.

On the merits of the demurrer, the trial court found the operative complaint did not state facts sufficient to constitute a cause of action. The claim for negligent infliction of emotional distress was deficient because plaintiffs did not allege facts to establish the Clinic owed them a duty to avoid negligently causing them emotional distress. The court explained the Clinic did not voluntarily assume such a duty to plaintiffs, it did not stand in a special relationship toward plaintiffs, and no such duty is imposed by law. As for the cause of action for intentional infliction of emotional distress,...