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Sandi Schaffer v. Horizon West Healthcare

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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