Opinion
G031119.
10-9-2003
MARYAM DAYEH, Plaintiff and Appellant, v. OSO FAMILY MEDICAL GROUP et al., Defendants and Respondents.
Donna Bader for Plaintiff and Appellant. Schmid & Voiles and Suzanne De Rosa for Defendants and Respondents.
Two years ago we considered Maryam Dayehs appeal from a judgment entered in favor of Oso Family Medical Group (medical group) and T.A. Ross, M.D., in her medical malpractice action. (Dayeh v. Oso Family Medical Group (August 3, 2001) [nonpub. opn.].) We concluded the court improperly determined her entire lawsuit was time-barred by Code of Civil Procedure section 3405 and sent the matter back to the trial court for further proceedings. (Ibid.) Dayeh has now filed another appeal, claiming the trial court misunderstood our prior written opinion. Specifically, she challenges the trial courts decision to construe our opinion as restricting her to one fraud cause of action and alleges the trial court erroneously entered a nonsuit in favor of the defendants at the close of opening statement. Dayeh is partially right. The court apparently misconstrued our prior opinion and, accordingly, the matter must be remanded to allow Dayeh an opportunity to litigate her negligence claim. The question as to the merits of fraud claim, however, was for the trial court to decide. The trial courts nonsuit on the fraud claim was properly granted and this aspect of the judgment is affirmed.
I
From its comments on the record, we conclude the trial court experienced some difficulty in comprehending our prior opinion. For the trial courts benefit, we will begin by restating the essence of that opinion.
For example, the court opined, "Well, I tell you what, it is just a puzzle, isnt it, who writes these opinions. . . . Too bad they didnt publish this. That would have been interesting. But everyone would wonder what in the world — Lets see what the fraud is. We might have — Lets see if you chose — well, well."
The medical group and Ross claimed in an in limine motion that Dayehs lawsuit was barred by the negligence statute of limitations. The court determined the action was barred and dismissed the lawsuit. Dayeh appealed and argued that her lawsuit alleged three distinct acts of negligence: (1) negligent prescription; (2) negligent
treatment of her shoulder injury; and (3) "fraud in submitting medical reports in a workers compensation claim." She conceded that the trial court was correct in ruling the actions based on the first two acts were time-barred, but argued that the third act constituted a "separate injury, which caused injury [to] a separate primary right, [and therefore] the statute of limitations" had not run before the filing of her complaint. The medical group and Ross contended on appeal Dayeh had only one primary right and was attempting to split her cause of action.
In short, the sole issue on appeal was whether the trial court properly concluded that all three acts arose out of a single primary right and therefore all three were time-barred. We found Dayeh had two primary rights: the right to receive immediate proper medical treatment for her shoulder, and the right to later pursue further treatment under the Workers Compensation Act. The record showed Dayeh did not learn the latter right was breached until August of 1999. We concluded her complaint as to the latter right was timely filed within the one-year statute of limitations. Accordingly, we determined the trial courts ruling was erroneous in dismissing the entire lawsuit. Since the filing met the more restrictive negligence statute of limitations period it was not necessary for us to address the fraud three-year statute of limitations. We limited our opinion to the issue presented and we returned the matter to the trial court.
For reasons not clear to us, the trial court assumed a ruling not in the opinion and decided that we had restricted Dayeh to a fraud cause of action. In our opinion, we cited the negligence one-year statute of limitation in connection with Dayehs right to pursue further treatment under the Workers Compensation Act and stated in a footnote that we need not discuss Dayehs alternative argument as to the applicability of the three-year statute for fraud. Implicit, we thought, was our reasoning: If a complaint was filed within one year it clearly was filed within three years.
The trial court ruled, "[The court of appeal is] only talking about fraud."
II
Dayeh challenges the trial courts decision to construe our opinion as restricting her to one fraud cause of action. She is correct. We did not intend to restrict Dayeh to either a fraud or a negligence cause of action. Characterization of her claim was not an issue presented and accordingly not addressed. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 336, p. 377 [appellate court should not issue advisory opinions].)
III
We next address Dayehs challenge as to the courts grant of nonsuit in favor of the defendants. Due to restrictions placed by the court, Dayeh proceeded to trial with only her fraud cause of action to litigate. After Dayeh concluded her opening statement, the court entered a nonsuit in favor of the medical group and Ross. Dayeh claims this was error. Although a nonsuit at this stage of the proceeding is highly disfavored, the court made the right call.
"Section 581c of the Code of Civil Procedure authorizes a motion for nonsuit after plaintiffs opening statement. In ruling on the motion, the court must accept as true all facts set forth in the statement and indulge in every legitimate inference that may be drawn from such facts. [Citation.] Granting a motion for nonsuit at this stage is a disfavored practice and will be upheld only where it is clear plaintiffs counsel has stated all facts he expects to prove and such facts do not constitute a cause of action. [Citation.] [Dayeh] does not contend she could prove additional facts, so we must determine whether her opening statement set forth sufficient facts to constitute a cause of action against defendants." (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 305.)
In his opening statement, Dayehs counsel told the jury, "Let me tell you what this case is about in a nutshell. This is a case involving a withholding of records and a concealment of a material fact. Thats the whole case." He requested BAJI
No. 12.35 [Fraud and Deceit — Concealment] with the modification of 12.50 [Fraud and Deceit — Persons in/not in privity with defendant].
To prove fraudulent concealment there must be evidence: (1) the defendant concealed a material fact; (2) the defendant was under a duty to disclose the fact; (3) the defendant intentionally concealed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed fact; and (5) as a result of the concealment the plaintiff sustained damage. (BAJI No. 12.35 (7th ed. 1986); Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)
There seems to be no dispute that Dayeh set forth sufficient facts to satisfy the first two elements. Dayehs counsel argued that Ross had a duty, pursuant to Labor Code section 6409, to submit a "Doctors First Report of Injury" within five days of his initial examination to the workers compensation insurance carrier. Ross waited over seven months to submit the form and, according to counsel, tampered with the contents of the medical records. Moreover, on the same day Ross submitted the "first report," he also submitted a "final report" incorrectly stating Dayeh was cured and could return to work. Dayehs counsel presented evidence showing how the above acts directly effected Dayehs ability to receive workers compensation benefits and treatment. He told the jury they would hear from several experts who would opine on what damages Dayeh suffered due to the delay in treatment and benefits.
Lack of evidentiary support for the third element (intent to defraud) was the basis of the nonsuit motion. The medical group and Ross argued that, at best, there was evidence of "record keeping errors" and that the records were not timely produced but there was no suggestion that "anybody in this group intentionally concealed or suppressed a fact with the intent to defraud this patient or workers comp[ensation] or anybody else." They argued Dayeh was required to show Ross had a motive or reason to
defraud her and asserted Ross had nothing to gain (financially) from filing a late or inaccurate report. The court agreed there was no evidence to support this necessary element and granted nonsuit on this basis.
Dayeh correctly asserts the intent to defraud need not be established by direct evidence but may be inferred from circumstantial evidence. "`The law is established in California that, since direct proof of fraudulent intent is often an impossibility, because the real intent of the parties and the facts of a fraudulent transaction are peculiarly in the knowledge of those sought to be charged with fraud, proof indicative of fraud may come by inference from circumstances surrounding the transaction, the relationship, and interest of the parties. [Citations.]" (Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 338.)
Dayeh argues it can be inferred from the circumstantial evidence that Ross intended to commit fraud. We agree that evidence Ross tampered and withheld medical records is proof indicative of intentional misconduct rather than mere record keeping error. However, there is simply no reason to also infer from this evidence that the intentional misconduct was directed at Dayeh. There is nothing in the record to suggest Ross intended to prevent Dayeh from obtaining workers compensation benefits and treatment. Rosss relationship to Dayeh was as her treating physician. There was no evidence indicating Ross had anything to gain, financially or otherwise, by precluding benefits or treatment. There is no evidence suggesting he had a personal vendetta against her or felt any animosity towards her. As suggested by Dayehs counsel during argument, Rosss motivation may have been to cover-up any perceived medical negligence in his treatment of her. It may be that this course of action falls below the normal standard of care for physicians, but by no means does it amount to fraud. Nonsuit was properly granted.
IV
Dayeh maintains that although she "focused" on actual fraud during her opening statement, it could have been established during trial that Ross engaged in constructive fraud. She concludes the trial court should not have required a showing of fraudulent intent because it is not an element of constructive fraud. This argument was not raised below and therefore not considered or ruled upon by the trial court. "It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal. [Citations.]" (Ochoa v. Pacific Gas & Electric Co. (1998)
61 Cal.App.4th 1480, 1488, fn. 3.)
Undaunted, Dayeh argues the trial court prevented her from developing this alternative theory of recovery. We find this contention unsupported by the record. The trial court only barred Dayeh from asserting a negligence cause of action. It was understood Dayeh could litigate her fraud cause of action. Not surprisingly, Dayehs opening statement mirrored her complaint. Her counsel argued the "whole case" was about fraudulent concealment. Not once did her counsel mention constructive fraud. Dayehs counsel did not ask to amend the complaint and never requested a jury instruction addressing constructive fraud. And, while the nonsuit was being argued, Dayeh never asked for an opportunity to reopen opening statements to set forth facts that would support this tort. Dayeh cannot now criticize the court for failing to allow her to litigate a tort she never brought to the courts attention.
Dayeh asserts the court should have waited a longer period of time before granting nonsuit because her counsel "could have" or "may have" requested additional instructions "when the evidence developed at trial demonstrated a clear cause of action for constructive fraud." Nonsense. Dayehs counsel had the perfect opportunity during the opening statement to broadly refer to any evidence that had any relevance to the case. He did not discuss constructive fraud. Moreover, he failed to give the trial court any reason to wait before deciding the nonsuit motion. Dayehs assertion it was error not to wait lacks any factual or legal support.
Disposition
(1) The judgment is reversed with directions. The case is remanded to allow Dayeh to proceed with one negligence cause of action — relating to Dayehs allegation the respondents negligently delayed her acquisition of workers compensation benefits and treatment.
(2) Because no evidence has been presented on this negligence cause of action, we will comment only on Dayehs right to pursue it and not on whether we believe it has merit.
(3) Nonsuit was properly entered as to Dayehs fraud cause of action and on remand, Dayeh may not relitigate her fraud action or seek recovery on a theory of constructive fraud.
(4) The parties shall bear their own costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J. and MOORE, J.