RUSHING, P. J. —
This action arises from the murder of Ryann Bunnell, the daughter of plaintiff and appellant Pam Pipitone. Ryann was killed by her husband, Jesse Crow, who later killed himself in jail while awaiting murder charges.
We conclude that the trial court correctly found no triable issue of fact as to both elements of duty and causation, for both respondents. Because breach of duty and causation are necessary elements of a wrongful death action predicated on alleged violations of Penal Code section 11160, we will affirm the judgments in favor of Dr. Williams and Dr. Crow.
Ryann Bunnell began dating Jessie Crow in July 2009 and they married the following month. It was only about six months later that Jesse brutally murdered Ryann, and with the assistance of several other individuals,
Dr. Crow is a retired physician and the father of Jesse Crow. Dr. Crow was aware that Jesse had a history of fights and arrests, at least one involving brandishing a gun on the highway; he had hired a lawyer for his son as a result of such incidents. Dr. Crow met Ryann for the first time after the couple married and saw her fewer than 10 times before her death. One of those occasions took place in the early hours of the morning of October 23, 2009, when Dr. Crow received a phone call from his son. The call woke Dr. Crow. Jesse asked his dad to come to his house because Ryann was injured. Dr. Crow arrived about five minutes later. Ryann was sitting on the couch and in apparent pain. Both Jesse and Ryann were noticeably intoxicated. Ryann complained of an ankle or foot injury and told Dr. Crow that she had been run over by a truck. Ryann or Jesse also conveyed that she had been injured when she tried to climb into Jesse's truck and fell down as he was backing up.
That same morning, Dr. Crow's wife went to Jesse's house and arranged for Ryann to see Dr. Williams. Dr. Williams is an orthopedic surgeon in private practice. About 10 years earlier, Dr. Williams had employed Dr. Crow's wife as a radiology technician. He remained friendly with the Crows and saw them occasionally through their professional network. He had known Jesse when Jesse was a teenager. Dr. Williams did not personally know Ryann.
On October 23, 2009, Ryann, accompanied by Jesse, received treatment at Dr. William's medical office. Ryann told Dr. Williams that a truck had run over her foot but that she and Jesse were drunk at the time and did not get the license plate or know the identity of the driver. Dr. Williams's examination confirmed a potential hairline fracture in Ryann's right foot, as well as bruises and abrasions to her foot, leg and hip, and a possible partial ligament tear in her left knee. Ryann's injuries were consistent with her report of the accident. Though Ryann was alone with Dr. Williams and his staff for part of the exam, during the X-ray, Ryann did not offer more details about the accident or suggest that she was a victim of abuse. Nor did Dr. Williams probe further. Dr. Williams suggested a cast boot and did not see Ryann again, though a week later he prescribed her Valium over the phone.
Several days after Ryann's treatment by Drs. Crow and Williams, Pipitone learned from her other daughter, Ryann's sister, that Jesse had run over Ryann's foot. Pipitone thought that Jesse should pay Ryann $5,000 toward her medical bills and lost earnings. Ryann conveyed the idea to Jesse, who purportedly agreed provided that they sign a contract stating the truck incident was an accident. A handwritten agreement was drafted, stating in relevant part that on October 23, 2009, Jesse "accidentally hit" Ryann with his vehicle, and instead of going to court for damages, both parties had agreed on payment of $5,000 by Jesse to Ryann "to cover the costs incurred as a result of the accident." Jesse, with contribution from Dr. Crow, paid Ryann. Pipitone signed the agreement as a witness.
The same day that Pipitone witnessed the agreement framing the truck incident as an accident, Pipitone took Ryann to the hospital emergency room for her foot. Pipitone hoped that Ryann would report the incident to the
After other abusive acts perpetrated by Jesse, and notwithstanding the "agreement," Pipitone called the police to report that Jesse had "broken Ryann's leg" and that Ryann was suffering abuse and was afraid. Ryann's sister made similar reports to the police. On December 23, 2009, an officer with the Salinas Police Department, Patrick Haney, dispatched to interview Ryann. In his deposition, Officer Haney testified that Ryann was not cooperative during the interview. Ryann admitted that her husband had deliberately run over her and that it took place in Monterey. She admitted that she felt threatened by her husband, that he had "guns and a lot of illegal things" and would come after her and her family if she said anything. She did not want to give the officer details and indicated she did not want to talk with law enforcement. Officer Haney gave Ryann a resource pamphlet for domestic violence victims. He forwarded his report to the Monterey Police Department and Monterey County Sheriff's Office. No further police intervention occurred.
On February 2, 2009, Ryann's family reported her missing. Her murder took place on or about January 30, 2009.
Pipitone brings this civil action as the sole surviving heir of the decedent. In the second cause of action of the complaint, Pipitone alleges that Dr. Crow treated Ryann for injuries from the truck incident, including a fracture of the right foot and numerous open and obvious bruises, abrasions, cuts and swelling to her right leg and foot. She alleges that Dr. Crow knew or should have known that Ryann's injuries were the result of assaultive or abusive conduct because of his "knowledge of violent behavior on part of Jessie
Both respondents answered the complaint and generally denied the allegations.
Dr. Williams moved for summary judgment on three grounds: (1) no breach of any duty by Dr. Williams; (2) assuming liability, no causation; and (3) Pipitone's wrongful conduct facilitating a paid arrangement to cover up the abuse that she asserted Dr. Williams should have discovered and reported estopped her from asserting claims against him.
In support of the motion, Dr. Williams submitted his declaration,
Dr. Crow moved for summary judgment, or in the alternative, summary adjudication of the two causes of action filed against him. He argued that there was no mandatory duty to report the alleged domestic violence because the night he saw Ryann for her injuries he was acting as a parent and not in his professional medical capacity, and because there was no evidence that he knew or reasonably suspected domestic violence. Dr. Crow also argued that
Pipitone filed a joint response to the memoranda of points and authorities of Dr. Williams and Dr. Crow, and a separate response to each separate statement of facts. In addition to Penal Code section 11160, Pipitone argued that the action against Drs. Crow and Williams was predicated upon Penal Code section 11161.
Pipitone argued that the causal link between non-intervention in a domestic violence situation and escalating violence had been definitively established. In support of both arguments, Pipitone submitted the expert declaration of Linda Barnard, Ph.D. (Barnard Declaration), a marriage family therapist and doctor of counselor education specializing in domestic violence and related trauma issues.
Dr. Barnard's curriculum vitae referenced extensive experience as a presenter and expert witness in the domestic violence field. In her declaration, Dr. Barnard stated that she "reviewed and considered" the deposition transcripts of both doctors and the statements attributed to them. Dr. Barnard opined generally that the mandatory reporting provisions establish a minimum standard of care for health care providers, that without intervention violence "usually escalates in both frequency and severity resulting in repeat
Dr. Barnard also opined that each doctor "had or should have had at least a reasonable suspicion that the incident of on or about October 22, 2009 was assaultive or abusive conduct." With regard to Dr. Crow, this included that he "knew the injury was suffered by an instrumentality controlled by [Ryann's] husband" and that he had made statements "evidencing a knowledge of violent propensities on the part of Jessie Crow." With regard to Dr. Williams, this included that he knew the descriptions of the truck incident "provided by the husband and wife were inconsistent and lacking in detail" and he "knew that Jessie [sic] mother provided x-ray services, and thought it was odd they did not go to his mother for those services." Dr. Barnard further opined that the failure of Dr. Crow and Dr. Williams to report the information to law enforcement "increased the risk of injury to Ryann Bunnell by way of assault and/or battery to an unusual degree," that "the murder of Ryann Bunnell is directly related to the failure to report the incident of on or about October 22, 2009," and that compliance with the mandatory reporting sections of the Penal Code "would more likely than not have prevented the murder of Ryann Bunnell."
Further in support of her opposition, Pipitone presented varying accounts, from deposition testimony and other statements taken in the case, of each respondent's treatment of Ryann and familiarity with the circumstances of her injuries. For example, she cited various versions of Dr. Crow's visit with Ryann and Jesse on October 23, 2009, which, taken together, appear to present consistency and credibility issues. First, Pipitone cited Dr. Crow's interviews with law enforcement during the murder investigation, as recounted in the declaration of Ryan McGuirk, supervising investigator with the Monterey County District Attorney's Office (McGuirk Declaration). Next Pipitone offered a summary contained in correspondence from Dr. Crow's former counsel to plaintiff's counsel, as well as a statement by Dr. Crow's former counsel in opposition to a motion to compel. Pipitone also submitted excerpts of Dr. Crow's deposition testimony in which his responses pertaining to the morning after the truck incident appear fractured and convoluted. Finally, Pipitone submitted the declaration of Ryann's sister, Rochelle Bunnell (Bunnell Declaration), in which Ms. Bunnell described her visit to see Ryann that same morning and her observations of Dr. Crow. Pipitone also presented varying accounts of Dr. Crow's actions in relation to the $5,000 payoff.
Similarly with respect to Dr. Williams, Pipitone pointed to inconsistencies between Dr. Williams's deposition testimony, his declaration submitted in
Dr. Williams and Dr. Crow each objected to large portions of Pipitone's evidentiary submissions, many of which the trial court sustained. Pipitone did not contest the objections at the trial court hearing or raise the trial court's evidentiary rulings in the present appeal. To the extent that the exclusion of certain evidence is pertinent to our discussion below, we summarize those objections and the trial court's rulings.
Both respondents objected to the expert declaration of Linda Barnard, Ph.D., in its entirety as well as to numerous paragraphs therein. The objections may be summarized as follows. As a marriage and family counselor with a Ph.D. in counselor education, Dr. Barnard was not qualified to render opinions on the standard of care applicable to medical doctors presented with a foot injury. The opinions lacked foundation and were not based on matters upon which an expert would ordinarily rely. The opinions were highly speculative and conclusory, failing to provide a basis in reasoned explanation or verifiable facts. The trial court separately sustained Dr. Williams's and Dr. Crow's objections to the entire Barnard Declaration.
Dr. Crow objected to several paragraphs of the declaration of appellant offered in support of her opposition to the motions for summary judgment on the grounds of hearsay without exception and improper lay opinion. For example, in reference to Pipitone's conversations with her daughter and Jesse Crow on the morning of October 23, 2009, immediately after the truck incident, she stated in paragraph 9: "I asked [Ryann] if the police came and Ryann said they were not called because she did not get a license plate number," and in paragraph 15: "I asked Jesse Crow why he did not take Ryann to the hospital and he said because his dad was an emergency room doctor. `My dad always fixes us up.'" In paragraph 26, in reference to the $5,000 payment scheme, Pipitone stated: "Jesse then said that `My dad will only give half the money unless there is a contract and he (Dr. Crow) wants it to say it was an accident.'" The trial court sustained these and all of the objections to the Pipitone declaration.
Dr. Crow objected to numerous paragraphs of the declaration of Rochelle Bunnell on the same grounds as to the Pipitone Declaration. Most pertinent here are Ms. Bunnell's observations from the morning of October 23, 2009, when she went to the house around 8:00 a.m. to check on her sister:
"Dr. Crow went to examine Ryann and lifted her bandage. Dr. Crow indicated her leg was not broken but her foot was. Dr. Crow asked Ryann if she was in pain and Ryann said `yes.' He then glared at Jessie, shaking his head side to side. Dr. Crow also told Jessie to call Dr. Williams, telling Jessie that Dr. Williams will get you in and take X-rays. Based upon the words and manner of the statements, I understood this as confirmation that Dr. Crow was aware of a prior communication with Dr. Williams. Dr. Williams was described as a friend of the Crows. [¶] ... [¶] It appeared to me that Jesse and Dr. Crow had discussed earlier what to do."
In paragraph 27, Ms. Bunnell described what she heard from Ryann about the $5,000 payment: "Ryann told me that our mom and dad were helping her move out and that our mom and dad wanted Jesse to pay $5,000 for medical bills and missed work. Ryann indicated Jesse would only agree if it was put in writing that her injuries were caused by an accident. Ryann told me that Dr. Crow had come by and paid $2,500 of the agreed upon amount of $5,000. Ryann also told me that Dr. Crow and Jesse wanted a contract written before they would give her the rest of the $5,000."
The trial court sustained these and all of the objections to the Bunnell declaration.
Dr. Crow also objected to portions of the declaration of Ryan McGuirk, supervising investigator with the Monterey County District Attorney's Office, in which McGuirk described two interviews taken during the murder investigation. In paragraph 6, McGuirk stated: "During the course of the investigation, in an interview taken on January 30, 2010, Dr. Crow told law enforcement that at the time of the prior truck injury incident, he was at home with his wife, Jessie Crow arrived at their home in an excited state and said they had to follow him back to his house. He told law enforcement in that interview that both he and his wife followed Jesse back to Jessie's house and upon entering they found Jessie and Ryann in a screaming argument. He said at one point that he had no idea why they were arguing and at another point both were accusing of stalking each other. He said no one appeared hurt. He said he did not want to be involved so he just left."
Dr. Crow objected to these statements on the grounds of hearsay without exception, improper lay opinion, lack of personal knowledge, and that the asserted "beliefs, opinions and conclusions" are not competent evidence. The trial court sustained these objections.
After a joint hearing, the trial court granted both motions for summary judgment. In its order on Dr. Crow's motion, the court did not specify the grounds for granting the motion. At the hearing, the court had indicated that it found Dr. Crow to be acting as a parent, and not in his capacity as a physician, and that even if there was a duty to act, the court found no triable issues of fact as to causation.
As to Dr. Williams, the court determined first that Pipitone had not put forth admissible evidence raising a triable issue of fact on the element of duty. That is, "Dr. Williams was not presented with any history, clinical information, or ascertainable injury that would oblige him to suspect, and correspondingly, report spousal abuse." Second, the court determined that the evidence was insufficient to create a triable question of fact as to causation: "There was no causal nexus between Dr. Williams' conduct and the absence of a report of spousal abuse: Spousal abuse was, in fact, reported and investigated by law enforcement personnel during the lifetime of Plaintiff's Decedent." Third, the court determined that Pipitone was barred from proceeding with her causes of action against Dr. Williams under the doctrine of estoppel.
A trial court properly grants a motion for summary judgment when there is no triable issue of material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c.) A triable issue of fact exists only if "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with
A defendant moving for summary judgment must show either that the plaintiff "`"`"has not established, and cannot reasonably expect to establish,"' the elements of his or her cause of action,"'" or that there is a complete defense to that cause of action. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705 [168 Cal.Rptr.3d 440, 319 P.3d 201] (Ennabe), quoting State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018; see Code Civ. Proc., § 437c, subd. (p)(2).) Support for the motion must take the form of evidence, including affidavits, declarations, admissions, and depositions. (Code Civ. Proc., § 437c, subd. (b).) Once the defendant makes this initial showing, the burden shifts to the plaintiff to set forth "specific facts" beyond the pleadings that show a triable issue of one or more material facts as to the cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2).)
We review a motion for summary judgment de novo. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717 [68 Cal.Rptr.3d 746, 171 P.3d 1082] (Wilson).) We consider only the facts that were properly before the trial court when it ruled on the motion and apply the same three-step analysis as the trial court: first we "`identify the issues framed by the pleadings'"; next we "`determine whether the moving party's showing has satisfied his burden of proof and justifies a judgment in movant's favor'"; and finally we "`determine whether the opposition demonstrates the existence of a triable issue of material fact.'" (Inter Mountain Mortgage, Inc. v. Sulimen (2000) 78 Cal.App.4th 1434, 1439 [93 Cal.Rptr.2d 790], quoting Tibor v. Superior Court (1997) 52 Cal.App.4th 1359, 1369 [61 Cal.Rptr.2d 326]; see Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601-1602 [50 Cal.Rptr.2d 431].) In doing so, we liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Wilson, supra, 42 Cal.4th at pp. 716-717; Ennabe, supra, 58 Cal.4th 697, 705.)
Pipitone asserts that she presented evidence sufficient to create a triable issue of fact that each doctor knew or reasonably suspected the true nature of Ryann's injuries on October 23, 2009, breached his duty to report pursuant to Penal Code section 11160 or Penal Code section 11161, and that this breach directly contributed to Ryann's death. As a preliminary matter, we find that Pipitone's failure to identify Penal Code section 11161 in her complaint did not preclude her from raising it as a source of duty in her opposition to the motions for summary judgment.
Respondents urge that we review the trial court's evidentiary rulings for abuse of discretion. Dr. Crow moreover argues that Pipitone waived any appeal of the evidentiary rulings by failing to challenge those rulings in her opening brief. Dr. Crow and Dr. Williams also criticize Pipitone's unqualified discussion in her appellate brief of evidence that the trial court had excluded, including the expert declaration of Dr. Barnard.
Pipitone replies that the proper standard is de novo review of the trial court's evidentiary rulings, and that her evidentiary showing is "sufficiently strong" without the expert declaration (and, presumably, other evidence to which the trial court sustained objections). We consider both evidentiary issues: (1) by what standard do we review the trial court's evidentiary rulings on summary judgment and (2) did Pipitone waive any challenge to the excluded evidence?
As to the standard of review, we look to the California Supreme Court for guidance. In Reid v. Google, Inc. (2010) 50 Cal.4th 512 [113 Cal.Rptr.3d 327, 235 P.3d 988] (Reid), the court addressed the proper treatment on appeal of a trial court's failure to rule on evidentiary objections when adjudicating a summary judgment. In the context of resolving that issue, the appellate court
The Supreme Court agreed with the appellate court that application of a de novo review standard was appropriate under the particular circumstances of the case but refrained from deciding "generally" which standard of review applies to a trial court's rulings on evidentiary objections based only on the papers in summary judgment proceedings. (Reid, supra, 50 Cal.4th at p. 535.) Even though the court did not foreclose application of the abuse of discretion standard, we interpret Reid's practical effect on review of a summary judgment, in which evidentiary issues, and all issues, are decided on papers alone, to be the application of de novo review.
Here, unlike in Reid, the trial court ruled on respondents' evidentiary objections. Because the rulings were determined on the papers and based on questions of law such as hearsay, we find that de novo review is proper in this context.
As to whether we refrain from considering evidence to which the trial court sustained objections, which rulings the appellant has not directly challenged on appeal,
We therefore do not accept the argument that because Pipitone failed to expressly challenge the trial court's evidentiary rulings excluding portions of the declarations and the entirety of Pipitone's expert report, we must defer to those rulings without considering whether the trial court's exclusion of potentially material evidence was proper.
In opposition, Pipitone asserted a combination of evidence, pointing to various versions of Dr. Crow's encounter with and provision of care for Ryann sometime in the early morning hours of October 23, 2009. Pipitone's showing raises consistency and credibility issues for Dr. Crow but ultimately does not identify conflicting evidence to create a triable issue of fact as to whether he entertained a suspicion of abuse. (See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 [85 Cal.Rptr.2d 459] (Horn) ["`To avoid summary judgment, [appellant] "must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses." [Citation.]'"]; Code Civ. Proc., § 437c, subd. (e) [trial court may not deny summary judgment on grounds of credibility of witnesses furnishing declarations in support of the summary judgment].) A triable issue of fact can only be created by a conflict of evidence, not speculation or conjecture. (Horn, supra, 72 Cal.App.4th at p. 807.)
For example, Dr. Crow testified in deposition that a call from Jesse in the middle of the night woke him from his sleep and that he proceeded alone to Jesse's house where he observed Ryann in her injured state and learned that she had been run over by a truck, specifically Jesse's truck, as she tried to climb in. Dr. Crow's deposition testimony also revealed that he was aware that Jesse had a history of fights and one or more violent or weapon-related altercations, and that he had hired a lawyer for his son, though he could not recall on how many occasions he had to hire a lawyer. The testimony gave no indication of how close in time these incidents were to October 23, 2009, or if they ever involved intimate partner violence.
Pipitone offered another version of Dr. Crow's story in the McGuirk Declaration, purportedly based on Dr. Crow's interview with police on
This was not the case, however, for the February 4, 2010 recorded interview in which McGuirk declared that he was the primary interviewer. According to McGuirk's declaration, in this interview Dr. Crow revealed that Jesse had "episodes" of agitation, that "if something doesn't go right, he becomes quite vicious and fights," and that Jesse "gets angry on a whim." If offered for their truth, these statements in the McGuirk Declaration were hearsay but should have been admitted under the exception for a party admission. (Evid. Code, § 1220; Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1150 [119 Cal.Rptr.2d 131] [finding error in trial court's exclusion of non-party's declaration recounting a damaging statement made by a party opponent].) If offered not for its truth but to undermine the credibility of Dr. Crow's deposition testimony, it should have been admitted as non-hearsay. It remains, however, insufficient to create a triable issue of material fact. Drawing all reasonable inferences in Pipitone's favor, Dr. Crow's statement about his son may cause speculation; but it does not create conflicting evidence that Dr. Crow knew or reasonably suspected that Ryann's foot injury on the morning of October 23rd was the result of assault or abuse. (See Code Civ. Proc., § 437c, subd. (e); Horn, supra, 72 Cal.App.4th at p. 807.)
The same is true of another version of the story in the declaration of Rochelle Bunnell, in which Ryann told her sister not to come to the house because Dr. Crow "was handling it." Ms. Bunnell declared that she did go to the house where she observed Dr. Crow checking on Ryann's ankle, at which time Dr. Crow "glared at Jessie, shaking his head side to side."
Pipitone also offered the expert testimony of Dr. Linda Barnard. Pipitone cites Jambazian v. Borden (1994) 25 Cal.App.4th 836 [30 Cal.Rptr.2d 768] for the proposition that where Dr. Crow failed to offer expert testimony that his conduct as a practitioner met the standard of care, the "uncontradicted declaration" of Dr. Barnard was sufficient to establish the standard of care and breach. This reliance on Jambazian is misplaced. In Jambazian, the Court of Appeal affirmed a summary judgment in favor of the treating physician because the plaintiff did not offer opinion evidence to contradict the defendant's expert declarations on the standard of care of the medical community. (Jambazian, supra, at p. 844.)
Here we do not have a medical malpractice negligence case in which "expert testimony is required to establish a health care practitioner's failure to exercise the requisite degree of learning, care or skill so as to satisfy the necessary standard of care," but one in which the alleged tort arises out of a statutory violation. (Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1302 [16 Cal.Rptr.3d 591].) In the closely related context of a physician's statutory duty to report child abuse, our Supreme Court has explained that "in the event a physician does diagnose a battered child syndrome, due care includes a duty to report that fact to the authorities ... although expert testimony on the issue of a duty to report is admissible, it is not mandatory." (Landeros, supra, 17 Cal.3d 399, 410, fn. 8.) Similarly in Ewing, supra, at page 1303, footnote 7, the Court of Appeal drew the same distinction, noting that to prove a violation of a physician's statutory duty to report suspected cases of child abuse, a plaintiff must show "the doctor actually observed injuries and formed an opinion they were intentionally inflicted on the child. Expertise, while permissible, is not necessary." (Ewing, supra, at p. 1303, fn. 7.) We accordingly reject the contention that expert testimony was required.
The predicate question here is whether, under the facts and circumstances put forth in opposition to summary judgment, it was "objectively reasonable" for Dr. Crow to entertain a suspicion of abuse. (Pen. Code, § 11162.5, subd. (d).) If not, then a duty to report never arose. Assuming for the sake of argument that Dr. Barnard's qualifications were sufficient to render an
Pipitone also argued that the $5,000 "payoff" scheme in which Dr. Crow gave Jesse $2,500 created a triable issue of fact that Dr. Crow knew that Ryann's foot injury resulted from abuse. The accusation of abuse by Pipitone and demand for payment to Ryann took place several days after the brief window on October 23rd in which Ryann was under Dr. Crow's care. We conclude that it could have had no bearing on whether Dr. Crow reasonably suspected abuse within the scope of the statutory scheme.
Nor do we find any triable issues of material fact with regard to Dr. Williams's alleged duty to report known or suspected domestic violence. As discussed above, "`[r]easonably suspects'" is an objective standard "based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect." (Pen. Code, § 11162.5, subd. (d).)
In support of his motion on this point, Dr. Williams presented his declaration describing Ryann Bunnell's visit to his office on October 23, 2009, for an examination and X-ray of her foot and related injuries, the deposition testimony of Pipitone, and Pipitone's response to written discovery in which she admitted that "the patient's [Ryann] injuries were entirely consistent with her report of having had her foot run over by a lifted truck." With this combined evidence, Dr. Williams made a prima facie showing that he did not know or reasonably suspect abuse within the meaning of the statute.
In opposition, Pipitone offered Dr. Williams's deposition testimony evidencing his prior friendship with the Crow family and the fact that he knew Jesse Crow's mother was an X-ray technician. She also offered the declaration of Ryan McGuirk summarizing Dr. Williams's statements in a recorded interview during the murder investigation.
Dr. Barnard's opinion as to Dr. Williams's state of mind lacks sufficient reasoned explanation to connect what appear to be immaterial facts to her conclusion. (See Jennings, supra, 114 Cal.App.4th 1108, 1117.) Viewed in a light most favorable to Pipitone, the inconsistencies brought out by the remainder of the evidence are not material and provide no basis on which to draw a reasonable inference that Dr. Williams reasonably suspected abuse. Evidence that leads only to speculation or conjecture does not create a triable issue of fact. (See Horn, supra, 72 Cal.App.4th at p. 807.)
Accordingly, we conclude that there exists no triable issue of fact as to the duty element of the causes of action against Dr. Williams.
Our conclusions above are dispositive of the causes of action alleged against Dr. Crow and Dr. Williams. Yet if Pipitone could arguably raise a triable issue of material fact as to the duty element for either respondent, we find that she could not do so as to causation.
Pipitone alleges that Ryann's death, and the resulting losses that form the basis of the wrongful death action, were the proximate result of each
In State Hospitals, the California Supreme Court considered on appeal from demurrer whether an alleged breach of mandatory duties under the Sexually Violent Predators Act (SVPA) by state actors, resulting in a prison inmate's release, could be considered the proximate cause of the inmate having raped and murdered the plaintiff's decedent just four days after he paroled. (State Hospitals, supra, 61 Cal.4th at p. 343.) The plaintiff alleged that had the defendants complied with the procedure mandated by the SVPA to determine if the inmate was likely to be a sexually violent predator (SVP), that evaluation process would have resulted in a referral by the state agency for civil commitment, and ultimately civil commitment, not release. (State Hospitals, supra, at pp. 346-347.) The court reviewed a line of cases in which proximate cause was not established as a matter of law by a defendant's failure to act because the "chain of causation included discretionary determinations for which no liability could be imposed." (Id., at p. 353.) One case cited in State Hospitals is Fleming v. State of California (1995) 34 Cal.App.4th 1378 [41 Cal.Rptr.2d 63] (Fleming), in which a parolee committed murder and the victim's family alleged that the parole officer had breached a mandatory duty to arrest the killer for a parole violation. The court of appeal affirmed the dismissal, noting in relevant part that the failure to arrest "was not in itself a cause of the injury, since arrest without a period of incarceration would not necessarily have prevented the crime. Incarceration, however, would have involved procedural steps involving the exercise of discretion and thus have broken the causal chain." (Fleming, supra, 34 Cal.App.4th at p. 1384.)
The court in State Hospitals similarly concluded that the chain of intervening discretionary acts doomed the plaintiff's proximate cause allegation regarding commitment of the SVP. (State Hospitals, supra, 61 Cal.4th at p. 356 ["Plaintiff's showing of `but for' causation is weak, because with each step in the review process the results become more speculative."].) Though decided at the pleading stage with regard to mandatory duties of government actors, the analysis in State Hospitals is instructive. In particular, the court cautioned that the purpose of cause in fact is "to safeguard against speculative and conjectural claims." (Ibid.) Our analysis turns on the nature of the
Respondents argued that there was no evidence to suggest that had either Dr. Williams or Dr. Crow reported abuse, the outcome would have been any different. In her opposition, Pipitone did not dispute the facts outlined above but contended that there was sufficient evidence under the substantial factor test to send the issue to a jury for determination, including as to the foreseeability of Jesse's deadly intervening act. Pipitone offered only the expert declaration of Dr. Barnard to create a triable issue of fact. We find, however, that Dr. Barnard's opinions on causation lack foundation, are unsupported by reasoned explanation, and are conclusory. These three opinions state:
"9. [A] failure to report the information by these health care providers to law enforcement increased the risk of injury to Ryann Bunnell by way of assault and/or battery to an unusual degree ....
"10. It is my further opinion that the murder of Ryann Bunnell is directly related to the failure to report the incident of on or about October 22, 2009.
"11. It is my further opinion that compliance with Penal Code Sections 11160 and 11161, would more likely than not have prevented the murder of
Dr. Barnard failed to indicate how she came to these profound conclusions. An expert's opinion may not be based on assumptions of fact without evidentiary support, or on speculative or conjectural factors. (Jennings, supra, 114 Cal.App.4th 1108, 1117.) The trial court properly excluded this inadmissible evidence.
In support of her argument that a purported lack of proximate causation could not be decided as a matter of law, Pipitone also pointed to Landeros, supra, 17 Cal.3d 399. Landeros involved a doctor's failure to diagnose battered child syndrome after treating injuries from egregious physical abuse on an 11-month-old infant by the infant's mother and common law father. The medical team released the infant back to her parents, after which she suffered further injuries resulting in permanent damage. (Id., at pp. 405-407.) The California Supreme Court in Landeros explained that because battered child syndrome included among its "distinguishing characteristics" the likelihood "that the assault on the victim is not an isolated, atypical event but part of an environmental mosaic of repeated beatings and abuse," the trial court "could not properly rule as a matter of law that the defendants' negligence was not the proximate cause of plaintiff's injuries. Plaintiff is entitled to prove by expert testimony that defendants should reasonably have foreseen that her caretakers were likely to resume their physical abuse ... if she were returned directly to their custody." (Id., at p. 412.)
Like in State Hospitals, Landeros involved a review of dismissal on a demurrer. The court in State Hospitals distinguished Landeros and other similar cases because they did not involve "a series of discretionary determinations" that necessarily formed the basis of proximate causation. (State Hospitals, 61 Cal.4th 339, 357, fn. 16.) We find that the undisputed facts of this case are more closely analogous to those alleged in State Hospitals. If the child abuse perceived in Landeros had been reported to the authorities, it would likely have had an immediate effect on whether the infant was returned to the custody of her potential abusers. Being that the victim was a young child, there was no conduct on her part that could have dissuaded an investigation by law enforcement. In contrast, Pipitone has put forth no evidence that had Dr. Crow and/or Dr. Williams reported suspected abuse, a resulting investigation would more likely than not have achieved a different or better outcome than the investigation that actually took place. And like in State Hospitals, the inquiry by law enforcement would have been only the
For these reasons, we conclude that there exists no triable issue of material fact as to the element of causation with respect to either Dr. Crow or Dr. Williams.
Because we conclude that the trial court properly granted Dr. Williams's motion for summary judgment on the grounds of duty and causation, we do not reach his third contended ground of estoppel.
The judgments in favor of Dr. Crow and Dr. Williams are affirmed. The parties shall bear their own costs on appeal.
PREMO, J., and Márquez, J., concurred.
