Kizer v. Hirata11/4/1993
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
No. B070280
1993.CA.41305 ; 25 Cal. Rptr. 2d 19; 20 Cal. App. 4th 841
Decided: November 4, 1993.
KENNETH W. KIZER, AS DIRECTOR, ETC., PLAINTIFF AND APPELLANT,
v.
FUZI HIRATA ET AL., DEFENDANTS AND RESPONDENTS.
Superior Court of Los Angeles County, No. C736912, John H. Leahy, Judge.
Daniel E. Lungren, Attorney General, Charlton G. Holland III, Assistant Attorney General, John H. Sanders and Carolyn D. Fuson, Deputy Attorneys General, for Plaintiff and Appellant.
Michael H. Miller for Defendants and Respondents.
Opinion by Gates, J., with Boren, P. J., and Nott, J., Concurring.
Gates
Plaintiff Department of Health Services, through its director, appeals from a judgment entered in favor of defendants Nathaniel J. Friedman and Nathaniel J. Friedman, Inc. (referred to collectively as respondent) after the trial court granted a motion in limine for nonsuit. It contends: "Reviewing the entire statutory scheme of Welfare and Institutions Code ยง 14124.70 et seq. establishes that appellant, the Director of the Department of Health Services, is not required to prove Dr. Ishihama's (the tortfeasor's) liability under California medical malpractice law to enforce its lien for Medi-Cal benefits provided respondent against the settlement money respondent recovered."
The determinative facts are uncontroverted. On November 28, 1983, respondent filed a medical malpractice action on behalf of Fuzi Hirata, who is now deceased. The suit, which was directed against Dr. Masao Ishihama, settled on August 29, 1986, for $100,000 and a check in that amount was made payable to Hirata and respondent. In the written settlement agreement Hirata executed, she acknowledged that she had "received medical care, services and supplies in connection with and arising out of the incident which furnishes the basis for this action as heretofore stated, the costs of which have been borne by certain public agencies including Medi-Cal" and further that she had "been advised that these agencies or each of them, have asserted a right to reimbursement for the costs which they have sustained in this connection and have asserted a right to a lien on the proceeds of any settlement herein; . . .."
Ten days later, respondent sent appellant a check in the sum of $8,000 with an accompanying letter indicating it was intended to be "in full and complete satisfaction of any and all claims Medi-Cal may have, assert, or in the future claim, against client, Fuzi Hirata[,] for alleged injury-related services paid by the Medi- Cal Program." The letter also contained a concession by respondent that items set forth in appellant's claim totaling $37,571 were arguably attributable to the negligence with which Hirata had charged Dr. Ishihama.
Appellant rejected respondent's proposed settlement of its lien and on September 8, 1989, filed a complaint against Hirata and respondent for money damages for breach of statutory duty, conversion and unjust enrichment. It sought to recoup the $37,571.76 in Medi-Cal benefits it had purportedly paid to Hirata for the medical care and treatment necessitated by Dr. Ishihama's malpractice.
At some point thereafter appellant evidently admitted it did not intend to establish that Ishihama was, in fact, guilty of malpractice and stipulated that in the event such proof we
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