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Rodriguez v. Prommer2/6/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Susan Rodriguez and plaintiff Moses Mirano, a minor suing by and through his guardian ad litem, Susan Rodriguez ("Susan," "Moses," and together, "plaintiffs"), appeal from an order of dismissal entered after the trial court sustained, without leave to amend, the demurrer of defendants Karen Prommer and White Memorial Medical Center ("Prommer," "the hospital," and together, "defendants"). This suit alleges that Prommer, an employee of the hospital, asserted to plaintiffs' attorney that Susan never received any treatment at the hospital, and because of this assertion, Susan dismissed a suit against the hospital for medical malpractice that she had filed on behalf of herself. Upon learning that Prommer's representation was not true, Susan filed the instant suit on her own behalf for negligent misrepresentation, fraud, and negligent infliction of emotional distress, and on behalf of her son Moses, whom she alleges was negatively impacted by the hospital's medical malpractice that formed the basis of her prior suit.
The trial court, in sustaining defendants' demurrer without leave to amend, stated that Susan's causes of action for deceit fail as a matter of law because it was not reasonable for plaintiff's attorney to rely on Prommer's alleged representation that Susan was not treated at the hospital, and Susan's cause of action for negligence is barred by the statute of limitations and the doctrine of retraxit. As for Moses' cause of action for negligence, the court said it is not viable because he was not a patient of the hospital and therefore the hospital owed him no duty of care.
We find the trial court was correct in determining there can be no recovery on the deceit causes of action since reliance on Prommer's representation was not reasonable. Moreover, Susan's count for negligent infliction of emotional distress fails on at least one ground-it was not timely brought. As for Moses' cause of action, he should be permitted to amend his complaint, if he can, to allege a cause of action as a direct victim of the hospital's alleged negligence.
Plaintiffs also challenge the trial court's order awarding Code of Civil Procedure section 128.7 attorney's fees against their attorney for filing an unmeritorious complaint. Because we find that Moses' part of the complaint has merit but the trial court properly found the remainder of the complaint sanctionable, on remand of this case the trial court must re-examine the matter of sanctions.
BACKGROUND OF THE CASE
1. The Instant Suit
a. The Complaint and the Demurrer
The instant suit was filed on June 4, 2001, when, according to the complaint, plaintiff Moses was three and one-half years old. The complaint alleges that Susan had previously sued the hospital for medical malpractice, but had dismissed that suit because of a representation made by the hospital's employee, defendant Prommer. The representation by Prommer was that Susan had not received any treatment at the hospital. In fact, however, Susan did receive laboratory work at the hospital, and Prommer knew or should have known that Susan received such treatment. Prommer made the false representation so that the hospital could avoid being exposed to damages in the prior action. Susan's dismissal of the hospital from the prior suit caused Susan to be unable to pursu
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