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Sandi Schaffer v. Horizon West Healthcare

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


July 23, 2012

SANDI SCHAFFER, PLAINTIFF AND APPELLANT,
v.
HORIZON WEST HEALTHCARE, INC. ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. No. SCV24214)

The opinion of the court was delivered by: Hoch , J.

Schaffer v. Horizon West Healthcare

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant Sandi Schaffer was working as a contract dental hygienist at respondent Roseville Care Center (Roseville) when she filed a whistleblower report against a dentist who allegedly ignored a large tumor in the mouth of one of the residents. Shortly thereafter, Roseville and respondent Colonial Healthcare (Colonial) terminated her services at their skilled nursing facilities. Both facilities are operated by respondent Horizon West Healthcare, Inc. (Horizon).

Schaffer sued respondents for (1) intentional interference with a prospective economic advantage, (2) negligent interference with a prospective economic advantage, (3) breach of contract, (4) aiding and abetting wrongful conduct, and (5) negligence per se under Health and Safety Code section 1432.*fn1 Schaffer also sought punitive damages for the first, fourth, and fifth causes of action. Respondents countered with a motion for summary judgment based on the defense of justification, which was granted by the trial court. The court also awarded costs to respondents.

On appeal, Schaffer contends (1) the trial court erred in granting summary judgment because respondents failed to negate Schaffer's causes of action or establish a complete defense, and triable issues of fact remain, (2) the motion for summary adjudication was procedurally defective, (3) the court erred in rejecting Schaffer's late-filed notice of errata, (4) her motion to continue the hearing on the motion for summary judgment should have been granted, and (5) the order granting costs should have been denied along with the motion for summary judgment.

We conclude that the trial court did not err in granting summary judgment. With regard to the intentional and negligent interference with a prospective economic advantage, respondents established that they did not terminate Schaffer's services in retaliation for whistleblowing. Schaffer's causes of action for breach of contract, aiding and abetting, negligence per se, and claim for punitive damages were not preserved for review because she failed to oppose summary judgment as to these causes of action and claim for punitive damages. We also reject Schaffer's procedural objections to the motion for summary adjudication because the trial court granted summary judgment. We also conclude that the trial court did not abuse its discretion in rejecting Schaffer's notice of errata because it constituted an unauthorized surrebuttal to respondents' reply. As to the denial of her motion for a continuance, Schaffer has forfeited this contention on appeal. Finally, having properly granted summary judgment, the trial court did not err in awarding costs to respondents. Accordingly, we affirm the judgment and order awarding costs.

FACTUAL AND PROCEDURAL HISTORY

Complaint

Schaffer filed her original complaint in January 2009. After extensive law and motion proceedings, she filed her third amended and supplemental complaint in January 2010. The third amended complaint stated causes of action for intentional and negligent interference with a prospective economic advantage, breach of contract, aiding and abetting wrongful conduct, negligence per se, and a claim for punitive damages.

Schaffer's operative complaint alleged that she provided dental hygienist services in skilled nursing facilities, doing business as Grass Valley Dental Hygiene. In March 2007, she contracted with Colonial to provide services to residents of Colonial. In September 2007, she entered a similar contract with Roseville.

In October 2008, Schaffer examined an elderly male resident who displayed "a very large growth on the right side of his tongue and cheek." She told the Roseville staff to call a doctor immediately, and the resident was subsequently diagnosed with an inoperable tumor of the mouth. The size of the tumor led Schaffer to believe that Dental Care On the Premises (Dental Care), which provided on-site dental services, failed to complete the cancer screening it claimed to have performed for the resident. Consistent with her duties as a mandated reporter, Schaffer reported to the California Department of Health Services (Department) her suspicions that Dental Care provided inadequate or fraudulent treatment to the resident who had the tumor. She also informed the social services staff at Roseville about her reporting of the suspected fraud to the Department.

On November 14, 2008, Roseville's director of social services called Schaffer to inform her about a complaint against her. Schaffer was instructed not to enter the facility pending an investigation. On December 15, 2008, Roseville's administrator notified her "to terminate its relationship with Grass Valley Dental Hygiene effective January 15, 2009."

Schaffer continued to provide dental hygiene services at four other facilities operated by Horizon, including at Colonial. After providing two years of services without receiving any complaints at Colonial, that facility terminated her services in August 2009.

Motion for Summary Judgment

In March 2010, respondents filed a motion for summary judgment and/or adjudication. The motion was accompanied by a separate statement of facts alleging that within months of Schaffer starting to provide dental hygienist services, some residents at Roseville complained about her care. Respondents further alleged that, in October 2008, the family of Eugeneie Kocher, a resident at Roseville who lost her teeth following service by Schaffer, contacted Roseville social services to complain and threaten to sue for malpractice. On November 14, 2008, the staff at Roseville told Schaffer that she was the subject of a complaint and that she should not enter the facility during the investigation. In May 2009, the staff at Colonial prepared a grievance based on a complaint about Schaffer's unauthorized use of a medication. That same month, residents and their families informed Colonial of Schaffer's complaints about a dentist who was also providing services at Colonial.

In June 2009, Colonial retained the services of a provider of dental care services that provided full mobile dental services including dental hygiene. In July 2009, Colonial gave Schaffer and the dentist who had previously provided dental services there 30-days' notice of termination of their services.

Respondents stated, "The termination of [Schaffer's] dental hygiene services by the administrators of Roseville and Colonial was not in retaliation for her report of suspected elder abuse." Respondents asserted that the decision to terminate Schaffer's services was made by the administrators of the Roseville and Colonial facilities and was not made by order or direction of any other person or entity. Finally, respondents noted that Schaffer continues to provide dental hygiene services at three other facilities administered by Horizon.

Based on these factual allegations, respondents argued that Schaffer could not state a cause of action for intentional or negligent interference with a prospective economic advantage because they did not terminate her services in retaliation to her report to the Department. Respondents asserted that their allowing Schaffer to use their facilities did not constitute an agreement that allowed for a breach of contract claim. Respondents also contended that the nonretaliatory nature of the termination disposed of the remaining claims. To this end, they asserted that Colonial and Roseville administrators decided to terminate her services based on concerns for residents' safety and well-being. The decision to terminate her services was not made by Horizon or any of Horizon's employees.

Opposition to Summary Judgment

Following respondents' motion for summary judgment, Schaffer filed discovery motions along with requests to continue the hearing on the motion. With permission of the trial court, Schaffer filed a late opposition to the motion for summary judgment in July 2010. Schaffer's 10-page opposition argued that the motion was procedurally defective for failure to give proper notice of the specific grounds for which summary adjudication was sought. Schaffer opposed summary judgment on substantive grounds, arguing that her "causes of action arise out of [respondents'] violation of . . . Sections 1278.5 and 1432 and Code of Federal Regulations, Title 42, Section 483.10." Contending that respondents had not discussed the governing statutes, Schaffer urged the court to deny the motion.

Schaffer also asserted that (1) she was never advised of any performance problems or complaints of wrongdoing before the termination of her services, (2) the termination of her services disallowed her from keeping previously scheduled appointments, and (3) respondents "were advised of the complaint giving rise to Plaintiff's termination" by early September 2008. Schaffer did acknowledge that a complaint by Kocher's family was made in September 2008 and that she was told in November 2008 not to come into the Roseville facility. In May 2009, Schaffer acknowledged she used an over-the-counter medicine for relief of dry mouth on a Colonial resident. Schaffer also acknowledged informing another Colonial resident's husband of deficient care by the facility's dentist.

Most importantly, Schaffer did not dispute that her services at Roseville and Colonial were terminated for reasons other than retaliation for her report of suspected elder abuse. She also did not dispute that the decision to terminate her services was made solely by the administrators of the Roseville and Colonial facilities. In addition to not disputing these facts, Schaffer stated that such evidence "should be considered irrelevant to a summary judgment determination."

Reply and Notice of Errata

On August 5, 2010, respondents filed their reply to Schaffer's opposition to the motion for summary judgment. On August 9, 2010, Schaffer filed a notice of errata to assert that she had intended to dispute respondent's contentions that the termination of her services was not retaliatory and that the decision was not made by anyone at Horizon.

Trial Court Ruling

The trial court refused to consider Schaffer's notice of errata and granted respondents' motion for summary judgment. As to the torts of intentional and negligent interference with prospective economic advantage, the court concluded that Schaffer "failed to present any evidence to support a triable issue of fact that [respondents] acted wrongfully in terminating [Schaffer's] right to access to [Roseville] and [Colonial] facilities and patients such as to support such claims." As to the remaining claims, the court noted that Schaffer "did not address the arguments made by [respondents] with respect to the breach of contract, aiding and abetting, and negligence per se causes of action and claim for punitive damages. Plaintiff is thus deemed to have conceded these issues."

The court entered judgment in favor of respondents and awarded them costs. Schaffer timely appealed from the judgment and subsequent order awarding costs.

DISCUSSION

I

Summary Judgment

A.

Intentional and Negligent Interference with a Prospective Economic Advantage

Schaffer contends the trial court erroneously granted summary judgment because she established that she could prove all the elements of the causes of action for intentional and negligent interference with a prospective economic advantage. We reject her argument because respondents showed that Schaffer could not prove an element common to both causes of action, i.e., wrongful conduct by a defendant. We also find no error in the trial court's disregard of Schaffer's untimely attempt to introduce additional evidence on this element by her "Notice of Errata."

As the California Supreme Court has held, "The five elements for intentional interference with prospective economic advantage are: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant." (Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6.) The tort of negligent interference with a prospective economic advantage differs in that the defendant's act disrupting the economic relationship does not need to be intentional. (Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1078.)

Both torts require that defendant's disruption of the economic relationship be wrongful. (See generally Della Penna v. Toyota Motor Sales, USA, Inc. (1995) 11 Cal.4th 376, 381-385 (Della Penna).) "The tort of intentional or negligent interference with prospective economic advantage imposes liability for improper methods of disrupting or diverting the business relationship of another which fall outside the boundaries of fair competition. (Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 406.) It is premised upon the principle, '"[e]veryone has the right to establish and conduct a lawful business and is entitled to the protection of organized society, through its courts, whenever that right is unlawfully invaded."' (Institute of Veterinary Pathology, Inc. v. California Health Laboratories, Inc. (1981) 116 Cal.App.3d 111, 125, quoting Buxbom v. Smith (1944) 23 Cal.2d 535, 546.)" (Settimo Associates v. Environ Systems, Inc. (1993) 14 Cal.App.4th 842, 845 (Settimo).)

In this case, respondents asserted that they did not terminate Schaffer's access to patients at Roseville and Colonial in retaliation for her whistleblower report to the Department. Schaffer's opposition to the summary judgment motion did not dispute respondents' assertion. In the absence of retaliation for whistleblowing, Schaffer's complaint offered no basis for showing a wrongful act by respondents that would support causes of action for intentional or negligent interference with a prospective economic advantage. (See Della Penna, supra, 11 Cal.4th at pp. 381-385; Settimo, supra, 14 Cal.App.4th at p. 845.)

Schaffer contends that the wrongfulness of respondents' actions was established as a matter of law based on presumptions supplied by sections 1278.5 and 1432 as well as by title 42, section 483.10(j)(2), of the Code of Federal Regulations. None of these sections aids Schaffer.

Section 1278.5*fn2 does not apply to this case because subdivision (k) exempts long-term health care facilities as defined by section 1418. Subdivision (a)(1) of section 1418 defines "[l]ong-term health care facility" to include skilled nursing facilities. Section 1250, subdivision (c), further clarifies that a skilled nursing facility is one "that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis." In this case, it is undisputed that both Roseville and Colonial are skilled nursing facilities. Thus, section 1278.5 does not apply to Roseville or Colonial.

Section 1278.5 also does not support a cause of action against Horizon because it is undisputed that Horizon did not order or direct the termination of Schaffer's services.

Section 1432*fn3 is inapposite even though it does apply to skilled nursing facilities such as Roseville and Colonial. Subdivisions (b) and (c) of section 1432 provide rebuttable presumptions pertaining to termination of employment or attempts to expel a patient after the filing of a complaint or grievance. However, Schaffer was neither an employee of any of the respondents nor was she a resident of either of the facilities.

Moreover, a rebuttable presumption is just that: rebuttable. (Evid. Code, § 603 ["A presumption affecting the burden of producing evidence is a presumption established to implement no public policy other than to facilitate the determination of the particular action in which the presumption is applied"].) Here, respondents introduced supporting evidence proving that they did not terminate Schaffer's services in retaliation for her whistleblower report. Thus, respondents overcame any applicable rebuttable presumption of retaliation. Schaffer's failure to dispute this key fact means that section 1432's provisions do not help her supply the missing element of wrongful conduct.

Title 42, section 483.10(j)(2), of the Code of Federal Regulations provides: "The facility must provide reasonable access to any resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time." This subdivision safeguards the right of skilled nursing facility residents to access health care services, including dental care. It does not establish the fact of wrongful conduct by respondents in this case. Nothing in section 483.10 helps Schaffer overcome the undisputed fact that the termination of her services at Colonial and Roseville was not wrongful.

The trial court did not err in concluding that Schaffer failed to establish the element of wrongful conduct necessary for her claims of intentional and negligent interference with a prospective economic advantage.

B.

Breach of Contract, Aiding and Abetting, Negligence per se Causes of Action and Claim for Punitive Damages

On appeal, Schaffer contends there are triable issues of material fact requiring trial on her causes of action for breach of contract, aiding and abetting, negligence per se, and her claim of punitive damages. However, Schaffer did not argue any of these contentions in her opposition to the motion for summary judgment. Accordingly, we conclude that she has not preserved these issues for review on appeal.

As our high court has explained, "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

If a party fails to explain how trial might be necessary on a cause of action, the trial court is not obligated to conjure an argument for that party. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 75.) In Collins, the plaintiffs "chose not to seize the opportunity afforded them to submit opposition papers in compliance with [Code of Civil Procedure] section 437c, and rule 342." (Collins, supra, 144 Cal.App.4th at p. 77.) As a result, plaintiffs "made it difficult or impossible to discern whether there were any material disputed facts." (Ibid.) The Collins court affirmed the granting of summary judgment because the plaintiffs failed to properly demonstrate triable issues of material fact. (Id. at p. 67.) Likewise, we "adhere to the familiar rule that 'possible theories not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal.' (Johanson Transportation Service v. Rich Pik'd Rite, Inc. (1985) 164 Cal.App.3d 583, 588, italics added.)" (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-31 (North Coast).)

Here, the trial court noted that Schaffer "did not address the arguments made by [respondents] with respect to the breach of contract, aiding and abetting, and negligence per se causes of action, and claim for punitive damages. Plaintiff is thus deemed to have conceded these issues." Our review of Schaffer's memorandum of points and authorities confirms the trial court's finding that she presented no argument regarding triable issues of fact on these claims.

Schaffer contends the trial court erred in finding that she did not oppose the arguments of respondents on the claims other than for intentional and negligent interference with a prospective economic advantage. To this end, she asserts that "[t]hey were all addressed in [her] Response in Opposition to [respondents'] Separate Statement [citation], through both the statement of the five 'issues,' and the disputations and evidence in support." We disagree.

Schaffer's separate statement of disputed and undisputed facts did not provide the necessary legal analysis to help the trial court assess whether a trial was required. Her lack of argument in the lower court now forecloses her contention that the trial court's analysis in support of summary judgment erred. (North Coast, supra, 17 Cal.App.4th at pp. 30-31.) Accordingly, we conclude Schaffer has failed to preserve challenges to the dismissal of her causes of action for breach of contract, aiding and abetting, negligence per se, and claim for punitive damages.

II

Motion for Summary Adjudication

Schaffer contends that "[respondents'] motion for summary adjudication is procedurally defective and should be denied on that basis." (Italics added.) However, the trial court granted summary judgment. Thus, we conclude that Schaffer's argument based on summary adjudication procedural requirements is irrelevant.

Schaffer urges us to conclude that respondents' motion was defective because it failed to comport with California Rules of Court, rule 3.1350(b),*fn4 which provides: "If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts." (Italics added.)

As the trial court noted, in "granting summary judgment, the court need not determine if the notice or separate statement were procedurally defective for a motion for summary adjudication." Rule 3.1350(b)'s requirement that a movant identify which causes of action it attacks on summary adjudication is inapposite in this case in which all of Schaffer's causes of action were dismissed by summary judgment. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) The Truong court rejected an identical contention that failure to comply with the summary adjudication notice requirement constituted a procedural defect for a motion for summary judgment. Truong explained that "[b]ecause [defendant's] motion sought summary judgment, rather than summary adjudication of a subissue, his statement met the requirements of rule 3.1350 without the necessity of separately listing subissues as to which summary adjudication was sought." (Ibid.) Here, as in Truong, the possibility that a moving party failed to comport with the requirements for identifying causes of action to be resolved by summary adjudication does not undermine the granting of summary judgment.

III

Notice of Errata

Schaffer attempts to escape from her failure to dispute the assertion that her termination was non-retaliatory by assigning error to the trial court's rejection of her notice of errata. We are not persuaded.

Under the Code of Civil Procedure, opposition to a motion for summary judgment "shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." (Code Civ. Proc., § 437c, subd. (b)(2).) Here, Schaffer filed her notice of errata three days before the scheduled date for the hearing on the motion for summary judgment.

The trial court refused to consider the late-filed document, "not[ing] that [Schaffer] filed a 'Notice of Errata' on Aug. 9, 2010, only 3 days prior to the hearing on this matter. That 'Notice of Errata' purported to change [Schaffer's] responses to [respondents'] undisputed material facts # 28 [sic: 29] and 29 [sic: 30] from 'undisputed' to 'disputed.' [Schaffer] cited to numerous new facts and evidence to support her dispute of those facts. However, those new facts and evidence were not mentioned in her opposition and thus [respondents] did not have an opportunity to respond to those facts and evidence. The court hereby disregards [Schaffer's] Notice of Errata. The court further notes that the word 'errata' in the title of the document implies a minor, unsubstantial change to a previously filed document; thus the title of the document is highly misleading given the actual changes purported to be made by the document."

Schaffer acknowledges that the "trial court chastised [her] counsel that the use of the 'word "errata" in the title of the document implies a minor, unsubstantial change to a previously filed document.'" Nonetheless, she argues that the court should have allowed her to file the notice of errata and simply allowed respondents an opportunity to respond.

"A party cannot defeat summary judgment with late-filed papers unless the court permits the late papers in the interests of justice." (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 (Bozzi).) "A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission. (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 623, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6; accord, Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715-716 [trial court has broad discretion to refuse to continue hearing where affidavit did not establish Code Civ. Proc., § 437c, subd. (h) conditions].)" (Bozzi, supra, at p. 765.)

Here, Schaffer's notice of errata did not merely correct a typographical error or make a minor, unsubstantial change to her opposition. Instead, the document sought to present additional facts and legal contentions after respondents filed their reply to her opposition to summary judgment. Schaffer's errata contains eight pages of factual and legal contentions to dispute respondents' contentions that the termination of her services was not retaliatory and that the decision was not made by anyone at Horizon. By contrast, her points and authorities in opposition to summary judgment constituted only 10 pages. Essentially, the notice of errata constituted a statutorily unauthorized surrebuttal to respondents' reply. (Compare Bozzi, supra, 186 Cal.App.4th at p. 765.)

The Code of Civil Procedure vests trial courts with discretion to reject such documents. (Bozzi, supra, 186 Cal.App.4th at p. 765.) Under Code of Civil Procedure section 437, subdivision (b)(2), Schaffer had the opportunity to oppose summary judgment before respondents filed their reply. The trial court did not abuse its discretion in disregarding Schaffer's untimely attempt to file a surrebuttal not authorized by the Code of Civil Procedure.

IV

Motion for Continuance

Schaffer contends that her motion to continue the hearing on the motion for summary judgment should have been granted because she had not yet completed discovery. We deem the argument to be forfeited.

In support of her argument, Schaffer cites no legal authority. However, "[t]o demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.)" (In re S.C. (2006) 138 Cal.App.4th 396, 408.) The failure to provide any legal authority in support of the argument forfeits the contention on appeal. (Id. at p. 408; see also Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)

V

Order Awarding Costs

Schaffer contends that reversal of the order granting summary judgment also compels reversal of the trial court's award of costs. Our conclusion that the trial court did not err in granting summary judgment defeats Schaffer's argument regarding costs.

DISPOSITION

The judgment and order awarding costs are affirmed. Respondents Horizon West Healthcare, Inc., Roseville Care Center, and Colonial Healthcare are entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

We concur: HULL , Acting P. J. MURRAY , J.


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