Opinion
C053955
7-30-2008
JACQUES HIRSCHLER, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS et al., Defendants and Respondents.
Not to be Published
Plaintiff Jacques Hirschler appeals from a summary judgment in favor of defendants and awarding defendants attorney fees and costs, as well as from post judgment orders denying his motion to vacate previously entered voluntary dismissals and denying his motion to amend the complaint.
Plaintiff is employed by defendant California Department of Corrections (CDC) as a chief medical officer at Deuel Vocational Institution (DVI). Defendants Michael Pickett and Susann Steinberg were employed as deputy directors of CDC. Defendant Martha Linney was employed as a regional administrator of CDC. Defendants Charles Dangerfield and Scott Moeszinger were employed by CDC as special agents in Internal Affairs.
The gist of plaintiffs complaint was that in retaliation for a memo he sent to Linney protesting a plan to expand the dialysis services provided at DVI, Linney and the other defendants gave him a negative performance evaluation, and instituted two internal affairs investigations that eventually led to his termination. The complaint alleged causes of action for wrongful termination, intentional infliction of emotional distress, violation of Business and Professions Code sections 2056 and 510, and breach of contract.
Defendants brought a successful motion for summary judgment on the causes of action for infliction of emotional distress and violation of the Business and Professions Code. Plaintiff voluntarily dismissed the remaining causes of action. Defendants then requested and were awarded their reasonable defense costs and attorney fees pursuant to Code of Civil Procedure section 1038.
On the day judgment was entered, plaintiff filed a substitution of attorney and motions to vacate the dismissals, for leave to file an amended complaint, and for reconsideration of the order awarding attorney fees and costs.
We shall conclude the trial court did not abuse its discretion in denying plaintiffs motion to vacate the dismissals on the ground he never authorized the dismissals. There was evidence in the record from which the trial court could have inferred plaintiff ratified the dismissals, when he was informed of his attorneys intent to dismiss and failed to object.
We shall also conclude the trial court did not abuse its discretion in denying plaintiffs motion to amend the complaint. The motion was filed after summary judgment had been granted, and on the day the judgment was entered. Plaintiff makes no valid showing of excuse for the delay in seeking to amend the complaint.
We shall conclude the trial court correctly granted summary judgment on plaintiffs causes of action for breach of Business and Professions Code sections 510 and 2056, because defendants were protected by governmental immunity from such action.
Finally, we shall affirm the trial courts award of reasonable defense costs because we conclude no reasonable attorney could have believed the maintenance of the action for damages for violating Business and Professions Code sections 510 and 2056 was tenable.
FACTUAL AND PROCEDURAL BACKGROUND
Because plaintiff makes no claim on appeal that the trial court improperly found a disputed issue of material fact to be undisputed, we quote the trial courts "Summary of Procedure and Facts" from its order granting summary judgment.
The citation for plaintiffs statement of facts in his appellants opening brief is solely to the trial courts order granting summary judgment. The defendants statement of facts contains citations almost exclusively to defendants own statement of undisputed facts from its summary judgment motion below.
California Rules of Court, rule 8.204 requires that each brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." As to the statement of facts, the citation to the record must direct this court to the location of the evidence in the record. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1378.) "`[A] separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion. In an appellate brief, an assertion of fact should be followed by a citation to the page(s) of the record containing the supporting evidence. . . ." (Ibid.) Likewise, "the trial courts explanation of its decision-whether by order, statement of decision, judgment, oral pronouncement, or other form-is not evidence. Factual assertions on appeal cannot rest solely on citations to the decision of the trial court. It is the evidence supporting or opposing the trial courts decision that is important." (Id. at p. 1379.) In this case plaintiffs arguments are not based upon any claim that issues of material fact remain disputed.
"Procedure
"This case began as a wrongful termination case. Plaintiff was terminated in April, 2002. This lawsuit was filed on March 28, 2003. Plaintiff was officially reinstated to his position as Chief Medical Officer (CMO) at Deuel Vocational Institution (DVI) on October 19, 2004. Defendant, California Department of Corrections (CDC), has been ordered by the State Personnel Board to pay Plaintiff back pay, interest and benefits. . . .
"Facts
". . . DVIs dialysis facility was designed to handle two to three patients. As demand for dialysis grew, the unit had to handle more patients such that it operated beyond capacity and often treated six patients. CDC wanted to increase the number of inmates who receive dialysis at DVI.
"In October of 2000, Plaintiff and DVI Warden, Claude Finn, wrote to Defendant, Martha Linney, the CDCs Regional Administrator, opposing the planned expansion of the dialysis unit at DVI. Defendant, Susann Steinberg, M.D., CDCs Deputy Director for Health Care Services, was the individual responsible for the proposed expansion.
"To summarize, the memo contends that there has been a `concerted effort on the part of Health Care Services in Sacramento to mandate the expansion of dialysis at Deuel Vocational Institution. The memo concludes that the expansion of dialysis services at DVI will pose `serious risks of a medical, custodial, and security nature which need to be considered before implementing such a program.
"Among the problems noted were the following:
DVI inability to meet the dietary needs of dialysis patients
DVI does not have a part-time or full-time dietician or even a kitchen that could accommodate the special diet needs.
Dialysis facilities old and small
Currently, the facility is set up for six patients with three dialysis stations. At times, the facility has treated nine patients. Dialysis runs take 3-4 hours. Dialysis nurse shifts have had to stretch from 8 hours to 12 hours at times. This is not done regularly, but `episodically. This is onerous to the nursing staff and becomes critical when `off days are now unavailable for `make-up dialysis. The memo stressed, `The inability to perform dialysis on one specific patient for 24 hours becomes unacceptable when the make-up period is no longer available because of dialysis being run six days per week.
Dialysis on weekend, holidays or late hours
Dialysis to be performed on the weekends, holidays or during `late hours will have to [be] performed without a physician and with a skeleton MTA and RN crew putting chronically ill inmates at risk. The laboratory and pharmacy are not open during weekends, holidays or late hours while inmates will be undergoing dialysis.
DVI medical facilities are neither properly accredited or staffed for expansion
As a reception center for prisoners, the medical facilities fill up with HIV, mental health and disabled inmates. The expansion will make DVI `the . . . reception center for the Northern Region, the dialysis center, the transportation hub, and a de facto mental health crisis bed facility; all this for a facility that is only OHU accredited and staffed.
The memo refers to a serious nursing shortage explaining that currently there is only one RN for weekends, holidays, and late hours.
Emergency dialysis
DVI has no contract for dialysis services with any outside facility. Doctors Hospital in Modesto will accept CDC patients only if they are hospitalized which is an enormous cost to medical and custody. Custody resists these hospitalizations but they would become more frequent if the dialysis unit was expanded.
Over-stretching physicians and surgeons
Dialysis patients take a lot more work and resources. The current physicians/staff are just able to meet the needs of the reception center.
"The memo concludes with a request that the concerns be considered and that there be a meeting with the warden and Plaintiff before implementing an expansion of the dialysis clinic at DVI.
"According to Plaintiff, within weeks of this memo, `Defendants initiated a campaign of retaliation against him with the objective of terminating his employment with the CDC. The `campaign of retaliation took the form of three incidents: 1) an investigation into Plaintiffs part in the death of inmate Horace Blakes; 2) a 2001 performance evaluation; and 3) an investigation into Plaintiffs role in the treatment of inmate Emory Wetton and Plaintiffs representations as to Mr. Wettons treatment and care.
"Investigation regarding Horace Blakes
Plaintiff contends that Defendants CDC and Martha Linney, retaliated against him by `initiating an investigation alleging that Hirschler displayed inexcusable neglect of duty when he failed to carry out his duties regarding an inmate-patient who was housed at DVI.. . .
"Inmate Horace Blakes died in his cell on November 17, 2000.
"On December 18, 2000 Claude Finn, the warden at DVI requested an investigation. The request, however, was rejected because at the same time, Health Care Services Division had initiated a request for an investigation. The complainant was defendant, Martha Linney, the Regional Administrator for Health Care Services Division. . . .
"Plaintiff testified that on the day in question, he received a phone call from Captain Sarn Moreno in the afternoon. He acknowledged that it is unusual to get a call from custody regarding the status of a patient. Moreno told Plaintiff that Blakes needed a medical evaluation. Moreno told him Blakes had pain and swelling in extremities, but no chest pain or shortness of breath. Plaintiff told Moreno that he should escort Blakes to the clinic, but Moreno told Plaintiff that he did not think Blakes could make it to the clinic by himself or with an escort; he needed someone to come to him. At that, Plaintiff told Moreno that he would get back to him.
"According to Plaintiff, he contacted RN Walker in the clinic and notified him that custody wanted Blakes evaluated. Walker told Plaintiff that Blakes had been thoroughly evaluated by Dr. Rosete in the morning and Dr. Rosete was not able to reach any specific findings. Plaintiff then left a voice mail for Moreno that Blakes had already been evaluated in the morning and there were no significant findings. That was the end of Plaintiffs involvement. He did not give Walker any instructions with regard to Blakes. . . .
". . . . . . . . . . . . . . . . .
"After getting statements from several witnesses and interviewing Dr. Obanor as a medical consultant, Special Agent Moeszinger sustained the allegations against Plaintiff and concluded that Plaintiff failed to take appropriate action after being notified by Moreno of concerns about Blakes deteriorating medical condition. According to the Internal Affairs report, the evidence indicated that `Hirschler agreed to look into the matter. Hirschler called Walker and inquired if he knew anything about Blakes. After learning Blakes had been seen earlier by Rosete, Hirschler was satisfied Morenos concern had been addressed and took no further action. It is the opinion of the medical consultant, Obanor, that as HCM (Health Care Manager) and CMO (Chief Medical Officer) Hirschler had a responsibility to insure adequate medical services are rendered to inmate-patients. It was an unusual occurrence for a Captain to contact him and inquire about an inmates need for medical attention. Hirschler should have been alarmed by the call and taken action to address Morenos concerns.
"May 2001 Performance Evaluation
"Plaintiff contends that CDC and Martha Linney retaliated against him by preparing the May 2001 performance evaluation and further retaliated by delivering the evaluation without any security for confidentiality. . . .
"In May 2001, defendant, Susann Steinberg, M.D., the Deputy Director for the Health Care Services Division, ordered defendant, Martha Linney, to give Plaintiff a performance evaluation. While Plaintiff does not include this fact in his argument, he submits documents with his opposition which establish that Dr. Steinberg issued a memorandum to all Health Care Services Division Managers and Supervisors acknowledging that her department has been `less than timely about making sure staff receive adequate feedback related to their performance. She instructed every supervisor and manager to review the personnel records of their staff to ensure a current performance evaluation is on file. If not, her staff was further instructed to immediately prepare a performance evaluation. Documents submitted by Plaintiff further show that in April and May of 2001, performance evaluations were prepared for seven other CMOs employed by CDC.
"Be that as in may, on May 23, 2001, Ms. Linney did a performance evaluation of Plaintiff. While Plaintiffs overall performance is categorized as acceptable, Ms. Linney notes that Plaintiff has a `non-compliant attitude and behavior towards Health Care Services Division program improvement initiatives—an apparent reference to Plaintiffs opposition to the dialysis expansion. Ms. Linney further notes that Plaintiff has not employed `sound administrative management practices and lists as examples `difficulties transferring developmentally disabled patients to DVI from San Quentin . . . and your failure to oversee and scrutinize the care and treatment of a sensitive patient from Pelican Bay. Ms. Linney adds that Plaintiff has not reviewed patient care documentation and treatment issues noting in particular that Plaintiff has failed to provide information for morbidity and mortality discussions. Ms. Linney mentions the expectation that Plaintiff work with and return calls of the Divisions Public Health representatives when there is an infectious disease alert at DVI. She notes that Plaintiff did not cooperate with `the Coleman monitors.
"In closing, Ms. Linney acknowledged Plaintiffs excellent working relationship with the warden at DVI and voiced confidence that the areas of concern will improve.
"In addition to the substantive criticisms received, Plaintiff was upset by the fact that the evaluation was faxed to him in two parts over the course of two days to a general use facsimile located in the hallway at DVI.
"Plaintiff prepared a rebuttal to the evaluation and filed a grievance against Ms. Linney based on the ground that the evaluation had procedural and substantive errors. . . .
"On October 18, 2001, Plaintiff received a Directors level response to his grievance. As a result of the grievance, Ms. Linneys performance appraisal was removed from Plaintiffs file because Ms. Linney violated certain provisions of the Department of Corrections administrative rules. . . .
"Investigation regarding Emory Wetton
"Dr. Hirschler alleges that Defendants, CDC and Dr. Steinberg, retaliated against him by initiating the Wetton investigation. . . .
"On or about June 7, 2001, defendant, Susann Steinberg, M.D., signed a Request for Investigation wherein she requested that Internal Affairs investigate Plaintiff. More particularly, she alleged that Plaintiff failed to provide adequate medical services to Inmate Wetton and further provided false information when questioned about the medical services provided to Wetton.
"By way of background, Emory Wetton was an inmate housed at Pelican Bay who was a member of the plaintiff class in the case of Madrid v. Gomez (N.D. Cal. 1995) 889 F.Supp. 1146—a class action suit filed against CDC challenging, among other things, the adequacy of medical care at Pelican Bay prison. As a result of that litigation, a Special Master was appointed to monitor the treatment of the plaintiff class.
"According to Plaintiff, Dr. Steinberg made a request to re-open the investigation into Wettons treatment after a prior request for an investigation by the Special Master was denied because there was no evidence of intentional neglect. According to both Dr. Steinberg and Plaintiff, Dr. Steinbergs decision to re-open the investigation was based upon information she received and discussions she had during a regularly scheduled meeting with the Special Master as part of the Madrid case. Dr. Steinberg explained that there `were statements made by Dr. Goldenson and Steve Fama (of Prison Law Office) indicating that the situation involving inmate Wetton and his care was not as clear as we had previously thought. . . . Dr. Hirschler may not have been truthful in his communication to pelican Bay and to plaintiffs attorney." . . . More specifically, Dr. Steinberg questioned whether radiation had been started and whether there was a CT scan evidencing a metastatic disease. Defendant, Charles Dangerfield—Special Agent for Internal Affairs, was assigned to investigate.
"Briefly, as background, Wetton was transferred from Pelican Bay to DVI in June 2000 as a temporary medical and return inmate. The purpose of the transfer was for Wetton to receive radiation therapy for prostate cancer. . . .
". . . . . . . . . . . . . . . .
"Plaintiff admitted that he is not an expert on prostate cancer and always defers to experts. Wetton was seen by Dr. Levy, a urologist at Doctors Hospital in Manteca, on June 30, 2000. Dr. Levy prescribed Lupron for Wetton and further noted that `Wetton was still interested in having the radiation therapy. . . . We will plan to have him seen by a radiation therapist and check a scan of the involved area to see if the extent of the disease can be measured. On July 18, 2000 a Radiation Oncology Consultation Report was written in which Valley Cancer Medical Group in Modesto writes that Wetton is a good candidate for radiation treatment.
"On August 23, 2000, Wetton was returned to Pelican Bay having received no radiation treatments.
"In addressing the issue in another context, Plaintiff wrote and explained, `The patient was indeed transferred from Pelican Bay State Prison on a medical and return. He was transferred for radiation treatment and endocrine manipulation. . . and medical castration for prostatic carcinoma. Unfortunately when Mr. Wetton arrived at our institution, review of the chart indicated that a CT scan showed extension of the prostatic cancer outside the confines of the prostatic capsule into the lymph nodes. There was also no clinical evidence of spinal cord compression syndrome. It is our medical opinion and also that of the urologist at Doctors Hospital of Manteca that radiation treatment is unnecessary and perhaps medically contraindicated.
"On October 23, 2000 and November 15, 2000, a whole body bone scan and a CT scan of the abdomen and pelvis, respectively, were conducted and each report indicated no evidence that the cancer had spread and metastasized. The CT scan upon which Plaintiff relied in cancelling the radiation treatment had not been located or found. This, of course, raised the question of whether it ever existed.
". . . . . . . . . . . . . . . . . . . .
"The Internal Affairs report concluded that the allegation that Plaintiff was dishonest by providing false information to Steven Fama, Wettons attorney, was sustained. The report explained that Plaintiff had written that a CT scan showed that prostate cancer had spread, but there is no evidence to support Hirschlers assertions that such a scan existed and subsequent and recent scans do not support such an assertion. Moreover, Hirschler wrote that Dr. Levy also had the medical opinion the radiation was unnecessary. In fact, Dr. Levy wrote that either radiation therapy or surgery would be necessary.
"The investigation report, however, concluded that the allegation that Dr. Hirschler was dishonest by informing Dr. Allen that Wetton had started radiation treatment was not sustained. There was no evidence that such a statement came from Plaintiff."
This ends our recitation of the facts as set forth in the trial courts order granting summary judgment.
Plaintiffs complaint set forth causes of action for wrongful termination in violation of public policy, intentional infliction of emotional distress, violation of Business and Professions Code section 2056, violation of Business and Professions Code section 510, and breach of contract.
Defendants filed a motion for summary judgment, which they served on plaintiffs attorney on November 17, 2005. The memorandum of points and authorities supporting the motion indicated that plaintiff had agreed not to pursue the first cause of action for wrongful termination, or the fifth cause of action for breach of contract, and to dismiss the cause of action for intentional infliction of emotional distress as to the individual defendants. Plaintiffs opposition to the motion did not dispute this representation. Accordingly, defendants motion for summary judgment was addressed to the alleged violations of the Business and Professions Code, and to CDCs alleged liability for intentional infliction of emotional distress.
The trial court filed its order granting defendants summary judgment motion on March 2, 2006. As to plaintiffs claims that defendants had violated Business and Professions Code sections 510 and 2056, which prohibit penalizing a health care practitioner, physician, or surgeon for advocating for appropriate health care, the trial court found defendants initiation of two internal affairs investigations and a performance evaluation against plaintiff did not constitute a penalty. Furthermore, the court found the defendants were immune from such actions pursuant to Government Code sections 821.6, 815.2, and 820.2. Government Code section 821.6 provides immunity to public employees for instituting or prosecuting judicial or administrative proceedings in the scope of employment. Government Code section 820.2 provides a public employee is not liable for acts or omissions that are the result of the exercise of discretion vested in the employee. Government Code section 815.2, subdivision (b) extends these immunities to the public entity employer.
As to plaintiffs cause of action for intentional infliction of emotional distress, the trial court found that defendants actions in criticizing plaintiffs work practices did not constitute outrageous conduct.
On March 27, 2006, 25 days after the court filed its order granting summary judgment, plaintiffs attorney filed a request for dismissal of the breach of contract and wrongful termination causes of action, and dismissal of the intentional infliction of emotional distress cause of action as to the individual defendants.
Thereafter defendants filed a motion requesting attorney fees and costs pursuant to Code of Civil Procedure section 1038. Defendants argued plaintiffs lawsuit had been filed and maintained without good faith or reasonable cause. On August 16, 2006, the trial court granted the motion, awarding attorney fees of $148,739.69 and costs of $10,926.95 to defendants.
Code of Civil Procedure section 1038 provides in pertinent part: "In any civil proceeding under the California Tort Claims Act . . . the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment, . . . determine whether or not the plaintiff . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint . . . . If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party."
On August 22, 2006, judgment was entered in favor of defendants, awarding them attorney fees and costs. That same day, plaintiff filed a substitution of attorney, and motions to vacate the dismissals, for leave to file a first amended complaint, and for reconsideration of the order awarding attorney fees and costs.
The ground for the motion to vacate the dismissals was that plaintiff had not authorized his prior counsel to dismiss the claims.
The ground for the motion to amend was that the (previously dismissed) wrongful termination cause of action was actually based on Labor Code section 1102.5, and the amendment would clearly state the statutory basis for the cause of action. Labor Code section 1102.5 prevents an employer from retaliating against an employee for disclosing information to a government agency regarding a violation of state or federal statute. Labor Code section 1106 specifically makes section 1102.5 applicable to state or other public entity employees. Thus, the purpose in attempting to amend the complaint to allege a violation of Labor Code section 1102.5 was to avoid the immunity defense that had resulted in the defeat of plaintiffs other causes of action.
The ground for plaintiffs motion to reconsider the order awarding fees and costs was that the action could not have been brought in bad faith and without reasonable cause because his action was supported by Labor Code section 1102.5.
On October 11, 2006, the trial court entered its minute order denying plaintiffs motion to vacate dismissals, for leave to file an amended complaint, and to reconsider the order awarding fees and costs.
Plaintiff appeals from the summary judgment and from the post judgment orders. We shall affirm.
DISCUSSION
I
Motion to Vacate Dismissals
An attorney is authorized to bind his or her client in procedural matters, but may not impair a clients substantial rights absent the clients authorization. (Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1235-1236.) A dismissal with prejudice impairs the clients substantial rights, and therefore requires the clients authorization. (Id. at p. 1236.) A motion to vacate an unauthorized dismissal is brought pursuant to Code of Civil Procedure section 473. (See, e.g., Id. at p. 1235; Bowden v. Green (1982) 128 Cal.App.3d 65, 71; Whittier Union High School Dist. v. Superior Court (1977) 66 Cal.App.3d 504, 506; Bice v. Stevens (1958) 160 Cal.App.2d 222, 224; Robinson v. Hiles (1953) 119 Cal.App.2d 666, 669.)
A motion to vacate a dismissal is directed to the sound discretion of the trial court, which discretion will not be disturbed on appeal unless it clearly appears the trial court abused its discretion. (In re Estate of McCarthy (1937) 23 Cal.App.2d 398, 399-400.) The presumption on appeal is that the trial court acted correctly, and it is the burden of the appellant to show an abuse of discretion. (Id. at p. 400.)
However, where the facts are undisputed that the dismissal was unauthorized, it is an abuse of discretion to deny the motion. (Romadka v. Hoge, supra, 232 Cal.App.3d at pp. 1236-1237.) Plaintiff points to his own declaration to support his claim that it is undisputed in this case that his former attorney had no authority to dismiss the causes of action that were dismissed. That declaration states in pertinent part, "I never discussed with Mr. Parks or any other counsel the subject matter of dismissing any causes of action from this lawsuit, and I certainly never expressly or otherwise authorized him or any other counsel to dismiss, nor did I agree to dismiss any of the claims from this lawsuit. . . . [¶] I did not know Mr. Parks had dismissed any of my claims in this lawsuit until I received a copy of the pleadings in this case, which included a file-stamped copy of a request for dismissal signed by Mr. Parks, from Legal One, a court services company, on or about April 14, 2006."
Although plaintiffs own declaration was the only direct evidence of his non-authorization of the dismissals, there was circumstantial evidence from which the trial court could reasonably infer a ratification by plaintiff of his attorneys acts. First, on January 25, 2005, approximately two months before the dismissals were entered, plaintiffs former attorney sent a letter to defendants counsel stating: "We will dismiss the First Cause of Action for Wrongful Termination in Violation of Public Policy and the Fifth Cause of Action for Breach of Contract, and we will dismiss the individual defendants from the Second Cause of Action for Intentional Infliction of Emotional Distress." This letter was "ccd" to "client." Second, plaintiffs own declaration states that he was aware on April 17, 2006, that the request for dismissal had been filed, yet no action was taken to set aside the dismissals until August 22, 2006, four months later.
In Norcal Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, the Court of Appeal reversed the denial of a petition to compel arbitration when the respondent claimed she had not authorized her attorney to agree to arbitration, but her attorneys letter demanding arbitration had been copied to her, she did not claim she was unaware of the letter, and she did nothing to disavow the letter. (Id. at p. 79.) The court stated that a principal is liable if she knows the agent holds himself out as clothed with authority and remains silent. (Ibid.) Because the respondent "took no immediate action to express dissatisfaction" with the arbitration demand, her failure to promptly disaffirm her attorneys letter constituted a ratification. (Ibid.) Failure to object to the acts of an agent after knowledge of such acts may be a ratification, and may be considered a circumstance pointing to prior authorization. (Heck v. Heck (1944) 63 Cal.App.2d 470, 474.)
Likewise, here plaintiff was copied on the letter expressing an intent to enter dismissals as to some causes of action, yet he did nothing to disavow the intent stated in the letter for a period of seven months. Additionally, although his declaration states that he never discussed the dismissals with his attorney or authorized the dismissal, the declaration does not assert that he was completely unaware of his attorneys intent to enter the dismissals.
The evidence of plaintiffs consent to the dismissals was thus not undisputed. Where the evidence is in conflict, this court may not interfere with the discretion of the trial court, whose exclusive province it was to determine the credibility and weight to give the evidence presented. (In re Estate of McCarthy, supra, 23 Cal.App.2d at p. 401.)
II
Motion to Amend the Complaint
Citing the policy of liberally permitting amendment of the pleadings, plaintiff argues it was error for the trial court to deny his motion to amend the complaint to state a cause of action for wrongful termination in violation of Labor Code section 1102.5. We disagree.
Plaintiffs motion to amend the complaint was filed on the same day judgment was entered in favor of defendants. Prior to that time plaintiff had entered dismissals as to some causes of action, and the trial court had granted defendants motion for summary judgment as to the remainder of the action. Also prior to that time, the trial court had granted defendants motion for costs and attorney fees. Thus, plaintiffs motion to amend the complaint was either filed after the resolution of the cause, but before judgment, or after judgment.
In either case, however, the motion was filed after the dismissals had been entered. Therefore, at the time plaintiff sought to amend his complaint, the causes of action for wrongful termination and breach of contract had been dismissed, leaving only the causes of action for infliction of emotional distress as to CDC and violation of Business and Professions Code sections 2056 and 510 as to all defendants. Had plaintiffs request to amend been granted, it would have added causes of action for wrongful termination and breach of contract where none existed. Thus, plaintiffs argument to the trial court that the complaint already stated a cause of action for wrongful termination, and that the amendment would merely state specifically that the cause of action was based upon Labor Code section 1102.5, was incorrect.
Plaintiffs proposed first amended complaint stated only causes of action for wrongful termination and breach of contract. The causes of action for infliction of emotional distress and violation of Business and Professions Code sections 2056 and 510 do not appear in the proposed amended complaint.
The trial courts decision to deny the motion for leave to file a belated amended complaint is reviewed for abuse of discretion, and the burden is on plaintiff to establish such abuse. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.)
Whether the motion to amend was filed just before or after the judgment, it was incumbent upon plaintiff to make a strong showing that the failure to earlier amend the complaint was excused. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 1138-1139, pp. 594-595, and cases cited therein.) In this case, plaintiff made no showing of excuse, other than to argue he had been diligent in discovering the unauthorized dismissals. While this may have been relevant to plaintiffs motion to vacate the dismissals, it did not explain why plaintiff did not allege a cause of action earlier for wrongful termination based on Labor Code section 1102.5. Moreover, as discussed, supra, there was evidence upon which the trial court could have inferred plaintiff ratified the dismissals.
Where the amendment of a pleading would result in a continuance of trial, the party seeking the amendment must make a showing of excuse for the delay, and where no excuse is given the trial court does not abuse its discretion in denying the amendment. (Davies v. Symmes (1942) 49 Cal.App.2d 433, 444.) The rule is applicable here even though no trial had been scheduled. Amendment of the pleading would have necessitated a trial in an action where summary judgment had been granted and judgment was about to be entered. Defendants had already gone to the trouble of filing a summary judgment motion based upon plaintiffs representation that he would dismiss the remaining causes of action. Had the trial court allowed the amendment, the motion for summary judgment would have been rendered useless, as the amended complaint did not assert the claims addressed in the summary judgment motion.
Notwithstanding the rule of liberality in allowing the amendment of pleadings, unwarranted delay "`"may-of itself-be a valid reason for denial." [Citation.]" (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) Thus, in Huff v. Wilkins, supra, it was not an abuse of discretion for the trial court to deny an amendment offered three days before the hearing on the summary judgment motion where no new facts were alleged and no excuse for the delay in seeking leave to amend was given. (Ibid.) Also in Barnes v. Berendes (1903) 139 Cal. 32, 35, the Supreme Court held it was not an abuse of discretion to deny the defendants motion to amend the answer where the motion to amend was not made until after the close of trial and the effect of the amendment would have been to present a new issue.
Likewise we find no abuse of discretion here. The motion to amend was made after resolution of the case, if not after judgment had been filed. Allowance of the amendment would have necessitated a trial, and no excuse was given for the failure to amend the complaint earlier.
We disagree with plaintiffs argument that Gardenhire v. Housing Authority of the City of Los Angeles (2000) 85 Cal.App.4th 236, supports allowing the amendment of his complaint. In that case, the trial court exercised its discretion to allow the plaintiff to amend her complaint to allege a Labor Code section 1102.5 at the close of trial. There, however, the plaintiffs complaint at the close of the trial contained causes of action for discrimination, retaliation, harassment, slander, and intentional infliction of emotional distress, and no verdict or judgment had been rendered on the complaint. (Id. at p. 240.) Here, by contrast, the complaint contained only causes of action for breach of Business and Professions Code section 510 and 2056, and intentional infliction of emotional distress. Further, the trial court had already ordered that summary judgment be entered against plaintiff on those causes of action.
This was not a situation, as in Gardenhire, where the trial court allowed amendment of the complaint to conform to the proof at trial. Further, there was no issue raised in Gardenhire as to whether the trial court had abused its discretion in allowing the amendment. An opinion is not authority for issues that were not considered. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680.)
III
Summary Judgment Properly Granted
Defendants motion for summary judgment was directed to the causes of action remaining after plaintiffs dismissals. Thus, the motion for summary judgment addressed the causes of action for intentional infliction of emotional distress and violation of Business and Professions Code sections 510 and 2056. Plaintiffs arguments on appeal are addressed only to the causes of action for violation of the Business and Professions Code.
Plaintiffs complaint was based upon three actions by defendants—two internal affairs investigations and one performance evaluation. The trial court found that defendants were immune from the institution of the internal affairs investigations pursuant to Government Code section 821.6. That section grants immunity to a public employee for "instituting or prosecuting any judicial or administrative proceeding within the scope of . . . employment . . . ." Government Code section 815.2, subdivision (b) extends this immunity to the CDC. The trial court found that the initiation of an internal affairs investigation "[c]learly . . . falls within the provisions of section 821.6." Plaintiff does not dispute this finding.
This court has held that Government Code section 821.6 immunity is abrogated by Government Code section 19683, a whistleblower statute that applied specifically to state employees. (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 (Shoemaker).) Shoemaker described section 19683 as providing for penalties where "a public employee uses official authority to harm another public employee by means other than formal disciplinary proceedings, or where a nonpublic employee uses official authority to harm a public employee in any way." (Id. at p. 1424.) Shoemaker described the purpose underlying Government Code section 19683 as providing "redress to a limited class, state employees, for harm suffered by the use of official power to deter reporting of unlawful government activity." (Ibid.)
We reasoned that Government Code sections 821.6 and 19683 overlapped when a public employee was accused of using official authority to threaten another public employee by means of a judicial or administrative proceeding, and that because the scope and purposes of section 19683 were more narrow than those of section 821.6, the former section would prevail. (Shoemaker, supra, 2 Cal.App.4th at pp. 1423-1424.) The whistleblower statute in that case, Government Code section 19683, was more narrow because it "was directed chiefly, if not exclusively, against state employees and employers who otherwise would be protected by the immunity statute, to confer immunity on the public employee or employer who violated the whistleblower statute (by firing the whistleblower in an administrative proceeding) would render the protection afforded by the whistleblower statute largely illusory." (Brown v. Department of Corrections (2005) 132 Cal.App.4th 520, 528.)
By contrast, in Caldwell v. Montoya (1995) 10 Cal.4th 972, 986, footnote 7, the Supreme court held that the Fair Employment and Housing Act (FEHA) did not abrogate the immunities of Government Code section 820.2 because FEHA advances no "specifically governmental interest that would support a finding of intent to abrogate any immunity of public employees." Instead, FEHA "promotes much more general policies throughout the public and private sectors . . . ." (Ibid.) "[I]mmunity cannot be abrogated by a statute which simply imposes a general legal duty or liability on persons, including public employees. Such a statute may indeed render the employee liable for his violations unless a specific immunity applies, but it does not remove the immunity. This further effect can only be achieved by a clear indication of legislative intent that statutory immunity is withheld or withdrawn in the particular case." (Id. at p. 986.)
Likewise, the statues at issue here, Business and Professions Code sections 510 and 2056 do not specifically hold state officers and employees liable, and instead promote more general policies. Section 510 provides protection to any "health care practitioner" who advocates appropriate health care for a patient from retaliation by an "individual, partnership, corporation, or other organization" by termination of employment or other penalty. Section 2056 provides essentially the same protection for physicians and surgeons. We have stated that the purpose of section 2056, and by analogy section 510, is "to protect physicians exercise of their professional judgment in advocating for medically appropriate health care, without limitation over the basis of the dispute." (Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 47-48.) The scope and purpose of these statutes is not more narrow than those of Government Code sections 821.6 and 815.2, and nothing in Business and Professions Code sections 510 and 2056 suggests the Legislature intended these statutes to abrogate the immunities protecting public employees. (See, Shoemaker, supra, 2 Cal.App.4th at pp. 1424-1425.)
As to plaintiffs performance evaluation, the trial court found, and we agree, that the performance evaluation was not a penalty pursuant to Business and Professions Code sections 510 and 2056. Both sections are addressed to preventing the termination of employment or other contractual relationship, or to otherwise penalizing a physician or health care provider. Plaintiffs termination did not result from the performance evaluation, because it is undisputed the performance appraisal never entered plaintiffs personnel file. As we stated in Khajavi v. Feather River Anesthesia Medical Group, supra, 84 Cal.App.4th at page 54, a penalty is defined "as a `disadvantage, loss, or hardship due to some action (as transgression or error). [Citation.] A complaint or testimony is not a `disadvantage, loss, or hardship; only the action that may result therefrom can be."
We likewise hold that a performance review that never entered plaintiffs file and consequently never resulted in any adverse action cannot be a penalty for purposes of Business and Professions Code sections 510 and 2056.
Because we hold the summary judgment was properly granted because defendants were protected by governmental immunity, we need not consider defendants other arguments in support of the trial courts order granting summary judgment, i.e., that Business and Professions Code section 510 and 2056 do not apply to government agencies, that those sections do not create a direct action for recovery of damages, and that the claims are barred by Civil Code section 47, subdivision (b).
IV
Attorney Fees
The trial court awarded defendants costs in the amount of $ 10,926.95 and attorney fees in the amount of $148,739.69 pursuant to Code of Civil Procedure section 1038. That section provides in pertinent part that a defendant in an action under the Tort Claims Act may recover "defense costs [including attorney fees] reasonably and necessarily incurred" where a summary judgment is granted in the defendants favor and the court finds the action "was not brought in good faith and with reasonable cause . . . ." (Code Civ. Proc., § 1038, subds. (a) & (b).) It applies both to the initiation of an action and the maintenance of an action without good faith and reasonable cause. (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 931.) Moreover, a defendant need only show "either that the plaintiff did not act in good faith or that the plaintiff lacked reasonable cause for the action." (Id. at p. 932.)
The question of reasonable cause asks whether any reasonable attorney would have thought the claim tenable. (Hall v. Regents of University of California (1996) 43 Cal.App.4th 1580, 1586.) It is to be determined objectively, as a matter of law, and is subject to de novo review. (Ibid.) The question of good faith is a factual inquiry into the plaintiffs subjective intent or purpose in pursuing the action and whether the plaintiff believed that the action was valid. (Ibid.) Because it is a factual question, it is reviewed for substantial evidence. (Ibid.)
In this case it was undisputed that plaintiffs performance evaluation never entered his personnel file, thus no penalty could have resulted from it. Accordingly, plaintiff had no reasonable claim that he could recover pursuant to Business and Professions Code sections 510 and 2056 for the performance evaluation.
As to the initiation of the two internal affairs investigations, the trial court found, and we agree, that such investigations are covered by the immunity provisions of Government Code section 821.6. Plaintiff made no attempt in this appeal to argue that his claims for violation of the Business and Professions Code on which the trial court granted summary judgment were not subject to the immunity protections of Government Code section 821.6 because they were narrower in scope than section 821.6. Instead, he argues that Labor Code section 1102.5 was actually the legal basis for his claim, and argues that section provides a clear expression that the Legislature intended the immunities of state officers and employees be abrogated when a state employee is retaliated against for whistle blowing. However, Labor Code section 1102.5 was never mentioned in the pleadings as the basis of a cause of action litigated below. It certainly was not at issue in the motion for summary judgment.
We have held that in a malicious prosecution action, where a plaintiff must prove, inter alia, that the action was brought without probable cause, the test is "not whether defendant had reasonable grounds to seek some kind of relief in the original action; it is instead whether he had reasonable grounds for asserting the theory for relief contained in the complaint and tried to the factfinder." (Williams v. Coombs (1986) 179 Cal.App.3d 626, 644, disapproved on other grounds in Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 885.) Likewise, we hold the test for determining whether a reasonable attorney would have thought the claim tenable for purposes of Code of Civil Procedure section 1038 depends upon the tenability of the action actually brought. (See, Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 571.)
An award of defense costs under Code of Civil Procedure section 1038 has been allowed in cases where clear statutory immunity negates the liability of the public entity. In Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 854-855, the county defendant was immune from liability for malpractice and negligence when a mental patient escaped and died because of Government Code section 856.2, providing immunity for the injury or death of an escaping mental patient. In Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934, an award of defense costs was upheld where the plaintiff claimed she had suffered a wrongful arrest, but she had stipulated in an earlier criminal action that the officer had probable cause to arrest her, and Penal Code section 836.5, subdivision (b) provided immunity where the arrest was made with probable cause.
In Knight v. City of Capitola, supra, 4 Cal.App.4th at pages 924, 927, the court upheld an award of costs because the city was immune from liability for negligently creating or failing to warn of a dangerous condition of public property pursuant to Government Code section 831.2, which provides immunity for any injury caused by a natural condition of public property.
This case also presents an example of clear statutory immunity. Caldwell v. Montoya, supra, 10 Cal.4th 972 is dispositive in determining whether a specific statutory immunity prevails over a general rule of actionable duty. Caldwell, supra, at page 986, made clear that an immunity statute is not abrogated by a statue that imposes a general legal duty on persons, including public employees. If a statute provides governmental immunity in a given case, such immunity will apply absent a law demonstrating "`a clear indication . . . that the personal immunities of public employees are abrogated." (Id. at fn. 7.)
Plaintiff argued below in opposition to the motion for defense costs that Caldwell could not have meant that a whistleblower statute must specifically apply to public employees to abrogate a statutory immunity. Plaintiff cited an earlier Supreme Court case, Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, for the proposition that a statute (presumably referring to Business and Professions Code sections 520 and 2056 here) "does not have to explicitly include public entities in order to apply to them." This is an incorrect and unreasonable reading of Lopez, supra.
Plaintiff quotes the following statement in Lopez: "[I]n California, all government tort liability must be based on statute [citation]. However, the statute providing for liability need not be part of the Tort Claims Act itself. [Citations.] Nor must the statute provide on its face that it is applicable to public entities. `Rather, a liability is deemed "provided by statute" if a statute defines the tort in general terms. [Citations.]" (Lopez, supra, 40 Cal.3d at p. 785, fn. 2.) However, this statement was not referring to whether there was an exception to statutory immunity, but whether there was any duty in the first instance. The Supreme Court prefaced the above quotation with the statement: "Since `the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff [Citation], we first consider whether [the defendant] has a duty to protect its passengers from assaults by fellow passengers." (Id. at p. 785.) In Caldwell, supra, the court reiterated that when addressing the application of the Tort Claims Act, "we have consistently regarded actionable duty and statutory immunity as separate issues, holding that in general, an immunity provision need not even be considered until it is determined that a cause of action would otherwise lie against the public employee or entity. This analytical treatment arises from our recognition that `the question of [actionable] "`duty . . . is only a threshold issue, beyond which remain the immunity barriers . . . ." [Citations.]" (Caldwell, supra, 10 Cal.4th at p. 985.)
Thus, while a statute need not specifically refer to public entities and employees in order to confer a legal duty on them, a statutory immunity will not be abrogated absent a statute that specifically indicates, either expressly or by implication, that its intent is to abrogate such immunities. There was no such specific statute alleged in this case, and it was unreasonable for plaintiff to rely on Business and Professions Code sections 520 and 2056 for recovery.
Plaintiff provided no argument, either below or on appeal, demonstrating that he reasonably believed he had a tenable claim for intentional infliction of emotional distress because of the negative performance evaluation, despite the trial courts ruling that simple personnel management activity does not constitute outrageous conduct. We take this as a concession that this claim was not reasonably tenable.
Because an award of costs and attorney fees is proper where the court determines either that the action was not brought in good faith or that it was not brought with reasonable cause, our conclusion that there was no reasonable cause to maintain the action ends the matter, and we need not further address whether there was substantial evidence from which the trial court could have determined that plaintiff brought the action in bad faith. However, we note that defendants point to evidence in the record indicating a lack of good faith on the part of plaintiff.
The gravamen of plaintiffs complaint was that defendants retaliated against him because of the memo he sent to Martha Linney and Larry Witek. However, none of the other defendants in the case was alleged to have been sent the memo, nor were there allegations or evidence to suggest they had ever seen or been informed of the memo. Notwithstanding this evidence, or lack thereof, our determination that the trial court correctly awarded defense costs is based upon our conclusion that the filing and maintenance of the action was not reasonably tenable.
Larry Witek was not a defendant in this case.
DISPOSITION
The judgment is affirmed. The defendants shall be awarded costs on appeal.
We concur:
Raye, J.
Robie, J.