NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

RUBIN, P. J.

INTRODUCTION

Following her involuntary month-long commitment at a psychiatric hospital in Egypt, plaintiff Maha Mohamed sued defendants Dr. Mounir Soliman and his employer, the Regents of the University of California, for various intentional torts including false imprisonment and intentional infliction of emotional distress. Plaintiff alleged that her then-husband (Tarek), her brother, and Dr. Soliman worked in concert to orchestrate her wrongful commitment to the mental institution at a time when plaintiff had threatened to divorce Tarek and return to the United States. Plaintiff asserted that Dr. Soliman, who was Tarek's friend, used his position as a prominent psychiatrist at the University of California, San Diego to cause or at least prolong her wrongful imprisonment and cause her incapacitation with anti-psychotic medications. Dr. Soliman did this, according to her allegations, by communicating false information to her treating physicians at the Egyptian hospital.

The trial court granted summary adjudication on seven causes of action, concluding plaintiff could not prove causation for her claims. Shortly thereafter, the court entered judgment on those seven claims but acknowledged that plaintiff had one remaining, viable cause of action for unfair business practices, which was not addressed in the summary adjudication motion. Plaintiff subsequently dismissed the unfair business practices claim in order to file a motion for new trial. The motion was not properly served on the parties and could not be timely heard by the court. Plaintiff then brought a motion (1) to vacate the judgment as void because it failed to dispose of all of her claims against defendants, and (2) for relief from the dismissal of the remaining cause of action pursuant to Code of Civil Procedure 473, subdivision (b). The court denied both motions, concluding the remaining claim would fail for the same reasons the court granted summary adjudication.

On appeal, plaintiff argues summary adjudication was improper because a triable issue of material fact exists regarding causation. She also asserts the court erred in denying her motions to vacate and for relief from dismissal. We reverse the trial court's summary adjudication of the seven causes of action because there was sufficient evidence of causation to create a triable issue of fact. We also remand for the trial court to reconsider plaintiff's request for relief from the dismissal of her unfair business practices claim in light of our ruling on summary adjudication.

FACTS AND PROCEDURAL BACKGROUND

This is the second appeal in this case. Previously, this court affirmed the denial of Dr. Soliman's special motion to strike plaintiff's first amended complaint. (Mohamed v. Soliman (Cal.Ct.App., Aug. 7, 2015, No. B256434) 2015 WL 4718896.) Some of the facts in this section are taken from that opinion.

1. Plaintiff's Psychiatric Commitment in Egypt

In 1990, plaintiff married Tarek in Egypt; shortly thereafter, they emigrated to the United States. They have two children, born in 1995 and 1998.

Defendant Dr. Soliman is a board-certified psychiatrist and has been employed at the University of California, San Diego (the University) since 1998.1 Dr. Soliman is also from Egypt, having emigrated to the United States in 1998. In 1990, Dr. Soliman and plaintiff became personally acquainted. Over the years, plaintiff, Dr. Soliman, and their families regularly socialized. At the time he emigrated, defendant had difficulty getting his professional credentials in the United States, and Tarek assisted him in the process.

Plaintiff and Tarek had a history of marital problems, including an episode in 1999 when Tarek temporarily moved out of the marital home. In 2004, plaintiff, Tarek, and their children relocated to Egypt. In late August 2004, plaintiff threatened to leave Tarek and move again to the United States. Plaintiff alleges Tarek cast her threats as a sign of mental illness, and enlisted the help of Dr. Soliman and plaintiff's older brother to concoct a scheme for plaintiff to be committed to a psychiatric hospital. In late August 2004, Dr. Soliman received a phone call from Tarek and plaintiff's brother, during which the brother asserted that plaintiff was experiencing "episodes" and needed to be hospitalized. The brother asked for Dr. Soliman's support; Dr. Soliman attested he did not know what the brother meant by "support."

On August 30, 2004, plaintiff was forcibly committed against her will to Psychological Medicine Hospital (PM Hospital) in Cairo, Egypt. Psychiatrist Dr. Adel Sadek was plaintiff's initial treating physician at the hospital.

In September 2004, Dr. Sadek contacted Dr. Soliman by telephone, and requested information regarding plaintiff's condition. Although Dr. Soliman was not her psychiatrist, on the phone call he provided information concerning his diagnosis and suggested treatment of plaintiff.

Sometime later that month, Dr. Soliman received a telephone call from PM Hospital stating Dr. Sadek had died and his records were incomplete. Dr. Soliman wrote a letter to plaintiff's new attending physician, Dr. Mona El-Sheikh, setting forth the substance of Dr. Soliman's earlier communications with Dr. Sadek. That letter, which we call "the Soliman letter," was faxed to PM Hospital on September 20, 2004.

The Soliman letter stated:

"Please keep me informed about her progress and do not hesitate to contact me if I can be of any assistance. I can be reached at [telephone and fax numbers]."

Plaintiff alleged that as a result of defendant's letter, she remained at PM Hospital until September 28, 2004, when Tarek arranged for her release. Following release, their relationship had a "temporary warming" period as plaintiff believed her husband had "rescued" her from the hospital.2

2. Plaintiff's Marital Dissolution Proceedings and Discovery of the Soliman Letter

In December 2009, plaintiff, Tarek, and their children relocated back to the United States. Plaintiff discovered the Soliman letter in mid-March 2011, when Tarek tried to use it against her in connection with pending divorce and child custody proceedings. In May 2011, plaintiff filed a petition for custody and support. At the custody trial, Tarek offered Soliman's September 20, 2004 letter as evidence of plaintiff's mental illness in an attempt to gain leverage in their custody dispute.

At the hearing, the family law court stated, "`When I read [the September 20, 2004] letter, I had the opinion that Dr. Soliman was a treating physician, [and] that Dr. Soliman had personal knowledge of [plaintiff's] alleged mental illness,' but the court concluded that because Dr. Soliman was not plaintiff's treating physician, `the letter from Dr. Soliman isn't worth the paper it's written on as far as being any kind of an evaluation, diagnosis, prognosis, or anything else with regard to [plaintiff's] alleged mental illness. [¶] There is not one bit of other evidence that [plaintiff] was ever examined for mental illness. . . .' Further, the court found Tarek had `manipulated the children into believing [plaintiff] was mentally ill' and concluded that there was no credible evidence that plaintiff was under the care of a psychiatrist or psychologist before her involuntary commitment in 2004."3

3. Plaintiff's Present Lawsuit

Plaintiff then sued Dr. Soliman and his employer, the University, for causing and/or prolonging her wrongful commitment. Her complaint stated claims against defendants for various intentional torts, all based on Dr. Soliman's communications about plaintiff with PM Hospital. She sought compensatory and punitive damages.

4. Dr. Soliman's Anti-SLAPP Motion

Dr. Soliman moved to strike plaintiff's complaint pursuant to the anti-SLAPP statutes, principally alleging that his letter to the Egyptian doctor constituted a "peer-to-peer" communication, and thus was a matter of public interest under Code of Civil Procedure section 425.16, subdivision (e)(4).4 The trial court concluded the letter concerned a purely private matter of plaintiff's treatment for an alleged mental illness. Defendant, thus, could not establish a protected communication, and the court denied the motion. This Division affirmed and held that the mere labeling as "peer-to-peer" a communication between two physicians concerning a single patient on a private matter does not elevate that communication to protected speech. The opinion held the letter did not concern a "public issue" and was not protected speech. (See § 425.16, subds. (b)(1) & (e)(4).)

5. Second Amended Complaint and Defendants' Demurrer

Following our remand, on April 17, 2014, plaintiff filed a second amended complaint, alleging causes of action for (1) breach of fiduciary duties, (2) false imprisonment, (3) defamation, (4) invasion of privacy, (5) false light invasion of privacy, (6) intentional infliction of emotional distress, (7) assault, (8) battery, (9) negligent infliction of emotional distress, and (10) unfair business practices. Defendants demurred to the second amended complaint. The trial court sustained the demurrer as to only the first cause of action for breach of fiduciary duties and the ninth cause of action for negligent infliction of emotional distress. Those two causes of action are not before us. Eight causes of action remained intact.

6. Defendants' Successful Motion for Summary Adjudication

Dr. Soliman then moved for summary adjudication on all of plaintiff's remaining causes of action except the claim for unfair business practices. The University joined in the motion. The thrust of defendants' arguments was that plaintiff could not prove causation or a nexus between Dr. Soliman's behavior and the alleged torts because there was no evidence that PM Hospital had actually received or read the Soliman letter.5 Defendants argued, "to establish cause in fact, plaintiff would have to prove that the letter was received by Dr. Sheikh, that she read it, published it, acted upon it, and/or caused others to act upon it. Plaintiff has no such proof." Defendants continued: "It is essential to plaintiff's case that she be able to prove the letter caused others to act in some way to falsely imprison her, defame, assault, batter and/or cause her to suffer severe emotional distress. There is no evidence or proof that the letter did anything which ultimately caused her any injury or damage."

Plaintiff opposed summary judgment, arguing the existence of a triable issue of material fact on causation. She asserted that the evidence showed: Tarek and plaintiff's brother called Dr. Soliman before plaintiff's involuntary commitment to discuss her incarceration; Dr. Soliman then discussed plaintiff's case with Dr. Sadek (plaintiff's first treating physician in Egypt); Dr. Soliman wrote a letter to her new treating physician providing a disputed account of her psychiatric history and recommending her medication be increased; and her confinement continued another eight days after the Soliman letter was faxed to PM Hospital.

On September 19, 2017, the court granted summary adjudication on the seven causes of action, reasoning that plaintiff failed to introduce any evidence that Dr. Soliman legally caused plaintiff's involuntary commitment. The court concluded, plaintiff "failed to introduce any evidence that PM Hospital read the letter or based its continued institutionalization of her on the letter in any way." Throughout its statement of decision, the court repeated that plaintiff's allegations that Dr. Soliman caused her initial or continued false imprisonment, inflicted emotional distress on her, invaded her privacy, defamed her, or caused her to be battered and assaulted were based on the speculation that the Soliman letter was read and acted on by the hospital. As the claims against the University were brought under a theory of respondeat superior, the court granted summary adjudication on the same seven causes of action alleged against the University.

7. The Court's Entry of Judgment and Plaintiff's Dismissal of the Remaining Cause of Action

On October 13, 2017, the trial court entered judgment in favor of defendants on causes of action two through eight. The court specifically noted that the tenth cause of action for unfair business practices was still operative.

In an effort to bring a motion for a new trial, plaintiff's counsel convinced plaintiff to dismiss the final cause of action without prejudice. On October 31, 2017, plaintiff dismissed without prejudice her tenth cause of action. Plaintiff filed a notice of intent to move for a new trial along with her dismissal papers. To plaintiff's dismay, the process server served the University with two copies of the dismissal rather than one copy of the dismissal and one copy of the notice of intent. That clerical error ultimately deprived the trial court of jurisdiction to hear the new trial motion. (§ 659; Pelletier v. Eisenberg (1986) 177 Cal.App.3d 558, 563.)

8. Plaintiff's Motion to Vacate and Request for Relief from the Dismissal of the Tenth Cause of Action

Plaintiff then filed a motion to vacate the judgment as void because it was entered with one cause of action remaining to be adjudicated. She also requested relief from dismissal of the tenth cause of action pursuant to section 473, subdivision (b). As we state below, the motion to vacate for voidness is of no consequence in light of our reversal of summary judgment. As to the section 473, subdivision (b) motion, plaintiff asserted that the process server's error "resulted in the dismissal being entered under circumstances and in a fashion to which plaintiff never consented." Plaintiff asserted that the error mandated relief under both the mandatory and discretionary provisions of section 473, subdivision (b).

The court denied the motion to vacate concluding that at least as of the time of the hearing, all causes of action had been adjudicated. It also rejected plaintiff's request for relief from the dismissal. The trial court reasoned that although the process server's mistake would typically warrant relief, "granting her relief from the dismissal would be futile" because its adjudication of the other causes of action "effectively precluded any relief under her [unfair business practices] claim."

This appeal followed.

DISCUSSION

1. Summary Adjudication Standard of Review

"We review the grant of summary adjudication de novo." (King v. Wu (2013) 218 Cal.App.4th 1211, 1213.) "In performing this de novo review, we view the evidence in the light most favorable to the opposing party and strictly construe the evidence of the moving party, and resolve any evidentiary doubts in favor of the opposing party." (Dowell v. Biosense Webster, Inc. (2009) 179 Cal.App.4th 564, 574.) "`Summary adjudication of a cause of action is appropriate only if there is no triable issue of material fact as to that cause of action and the moving party is entitled to judgment on the cause of action as a matter of law. [Citation.]'" (Burch v. Superior Court (2014) 223 Cal.App.4th 1411, 1416, overruled on another point in McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 258; Code Civ. Proc., § 437c, subd. (f)(1).) "There is a triable issue of material fact if, and only if, the evidence [and reasonable inferences draw from 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 the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)

"A defendant bears the burden of persuasion that `one or more elements of' the `cause of action' in question `cannot be established,' or that `there is a complete defense' thereto. [Citation.]" (Aguilar, supra, 25 Cal.4th at p. 850.) In general, the moving party "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]" (Id. at pp. 850-851, fns. omitted.)

2. The Court Erred in Granting Summary Adjudication: A Triable Issue of Material Fact Exists on Causation

As to each of the seven causes of action on which the court granted summary adjudication (false imprisonment, defamation, invasion of privacy, false light invasion of privacy, intentional infliction of emotional distress, assault, & battery), the court concluded plaintiff could not prove causation. We recite some familiar principles of causation. "`"Causation" is an essential element of a tort action. Defendants are not liable unless their conduct . . . was a "legal cause" of plaintiff's injury. [Citations.]' [Citation.] `Generally, the burden falls on the plaintiff to establish causation.'" (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 696.) "It is axiomatic that a defendant cannot be held liable in tort for an injury he or she did not cause." (Brookhouser v. State of California (1992) 10 Cal.App.4th 1665, 1677.) "There are two widely recognized tests for determining whether a defendant's conduct has in fact caused the plaintiff's injury: Whether the injury would not have occurred but for the defendant's conduct, and whether the defendant's conduct was a substantial factor in bringing about the injury." (Ibid.) "Causation is generally a question for the jury unless reasonable persons could not dispute the absence of causation, in which case it may be treated as a question of law." (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 289.)

Here, the trial court concluded that Dr. Soliman could not have been the legal cause of plaintiff's initial commitment because his letter was sent after she was institutionalized. Although the court acknowledged that Dr. Soliman spoke to plaintiff's brother and Tarek about the commitment before it happened and then on the telephone to Dr. Sadek around the time plaintiff was committed, the court concluded there was no evidence that the communications contributed to her wrongful commitment given Soliman's declarations that "he had nothing to do with [plaintiff's] admission" and that the call with Dr. Sadek was for "`peer to peer' consultation." The court also found that plaintiff failed to produce any evidence that the Soliman letter prolonged her institutionalization because there was no evidence the letter was received, read, or relied on by PM Hospital.

Plaintiff argues on appeal that the trial court ignored evidence that created a reasonable inference of causation and thus erred in granting summary adjudication. We agree and conclude that the evidence created a triable issue of material fact on that element.

The trial court's repeated references in its statement of decision to the lack of proof that the Soliman letter was received in Egypt set much of the tone for how the parties addressed causation in their appellate briefs.6 For example, appellant's opening brief argued that the trial court erred when it concluded that receipt of the letter at the Cairo hospital was "speculative." In his respondent's brief, Dr. Soliman countered that it would have been unreasonable for the court to have inferred that the letter was received, read, or relied upon, and thus there was insufficient evidence of causation. And in reply, plaintiff declared without citation to the record or other authority: "In the ordinary course of events letters transmitted among physicians concerning patients are read. Indeed it would be malpractice for them not to be."7

The focus on whether the Soliman letter was received in Egypt detracts from the more telling aspect of the letter, at least for summary judgment purposes: The letter itself, which Dr. Soliman admits writing on September 20, 2004 and sending to PM Hospital, reveals that Dr. Soliman spoke to Dr. Sadek about plaintiff's condition and treatment sometime prior to September 20, 2004. The declaration he submitted in support of his earlier anti-SLAPP motion acknowledged that in late August 2004, Tarek and plaintiff's brother asked Dr. Soliman for "support" in having plaintiff involuntarily institutionalized. Dr. Soliman also stated both in his letter and declaration that he then communicated with Dr. Adel Sadek, "the leading Psychiatrist" at PM Hospital, in early September 2004 about plaintiff's condition. Dr. Soliman memorialized the contents of this conversation in the Soliman letter, written later in September 2004, to update plaintiff's new treating physician about plaintiff's mental health history and care.

Although Dr. Soliman claimed that the information about plaintiff's mental health history was provided by Dr. Sadek, a jury could reasonably infer otherwise based on the manner in which the letter was written, the allegedly fictional contents of the letter, and the fact that Dr. Soliman's friend (Tarek) asked Dr. Soliman for his "support" in connection with institutionalizing plaintiff. According to the letter, the two psychiatrists discussed plaintiff's family history as it might relate to mental illness, earlier symptoms experienced by plaintiff in her 20's, and her "psychiatric treatment off and on since the mid-1990s." The letter also reflects the doctors discussed that plaintiff had been prescribed four medications for her mental illness, and lists a variety of symptoms, including paranoia, unwarranted suspicion, hypersensitivity, jealously, rigidity, excessive self-importance, and a tendency to blame and ascribe evil motives to others. Dr. Soliman then sets out what he describes as "[m]y treatment plan," which he had discussed with Dr. Sadek and which includes adjusting "the Risperidone dose up to 6 mg/day and to add Fluphen[a]zine 12.5 mg/every 2 weeks (injection)."

From these conversations between Drs. Soliman and Sadek, there is a triable issue of fact on the question of whether Dr. Soliman's communications with Dr. Sadek caused and/or prolonged her involuntary commitment. In the letter, Dr. Soliman's characterization of the treatment plan as something he created would permit reasonable inferences that Dr. Soliman was actively involved in plaintiff's care and that the Egyptian mental health professionals were influenced by his communications. Whether or not the letter itself was received, read, or considered, plaintiff established a triable issue of fact on causation.

Defendants made two other points on appeal. First, plaintiff cannot prove causation because she provided no evidence that her commitment was wrongful. However, defendants did not assert this ground in their motions for summary judgment, nor did the court address it. In fact, Soliman's moving papers (in which the Regents join) "assum[e] for the purposes of this Motion that everything stated in Dr. Soliman's 2004 letter is false. . . ." Because, the moving papers did not assert plaintiff's commitment was lawful, we do not consider these arguments raised for the first time on appeal. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 [argument not raised below in relation to summary judgment motion will not be considered on appeal].)

Defendants also contend that "Plaintiff essentially argues there was a conspiracy" but did not allege or show there was an agreement to enter into a conspiracy to harm plaintiff. Civil conspiracy is not a separately actionable cause of action. (Richard B. LeVine, Inc. v. Higashi ( 2005) 131 Cal.App.4th 566, 574.) It is used primarily to attach liability of one actor to the conduct of another. (Ibid.) Even so, the second amended complaint does allege that Tarek devised a scheme to have plaintiff institutionalized to prevent divorce, and enlisted the help of Dr. Soliman to accomplish his goal. Defendants' argument ignores the circumstantial evidence we have already described from which a jury could reasonably infer that Dr. Soliman was complicit in Tarek's plan and provided misinformation to PM Hospital to cause or extend the involuntary commitment.

We conclude the trial court erred in granting summary adjudication on these seven causes of action and reverse.

3. Plaintiff May Pursue Relief from Dismissal on Remand

Plaintiff argues that the trial court should have vacated the "void" judgment and also erred in denying her concurrent section 473, subdivision (b) request for relief from the dismissal of plaintiff's unfair business practice claim.8 (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 258 ["Section 473, subdivision (b), authorizes the trial court to relieve a party from a default judgment or dismissal entered as a result of the party's or her attorney's mistake, inadvertence, surprise or neglect."].) In denying the request, the trial court reasoned that although the mistake plaintiff asserted (process server error) would typically warrant relief, "granting her relief from the dismissal would be futile" in light of its prior ruling on the motion for summary adjudication. The court found that its adjudication of the other causes of action "effectively precluded any relief under her [unfair business practices] claim." As the court's denial was premised entirely on the erroneous summary adjudication, we reverse and remand for trial court to reconsider the request for relief from dismissal, if plaintiff chooses to continue to pursue the point.

DISPOSITION

The judgment is reversed as to the summarily adjudicated causes of action 2 through 8 for false imprisonment, defamation, invasion of privacy, false light invasion of privacy, intentional infliction of emotional distress, assault, and battery. We remand for the trial court to reconsider plaintiff's motion for relief from the dismissal of the 10th cause of action for unfair business practices, if plaintiff chooses to pursue such relief. Plaintiff and appellant Maha Mohamed is awarded costs on appeal.

BAKER, J. and MOOR, J., concurs.