Judge: Mark H. Epstein, Case: 21STCV44916, Date: 2023-05-03 Tentative Ruling
Case Number: 21STCV44916 Hearing Date: May 3, 2023 Dept: R
The demurrer is SUSTAINED as to the failure to specify the
contract and OVERRULED in all other respects.
Plaintiffs Jane Doe to
Jane Doe 8 (collectively “plaintiffs”) filed this sexual abuse action against
defendants the Regents of the University of California and Dr. Edward
Wiesmeier. Wiesmeier filed a
cross-complaint against the Regents.
According to the allegations of his cross-complaint, he was employed as
a faculty member and doctor by UCLA between 1074 to 2006. (Cross-Compl., ¶7.) He was also hired to oversee the women’s
clinic. (Ibid.) Wiesmeier allegedly had “several written and
partly written and partly oral employment agreements with” the Regents, in
which he agreed to be employed by the Regents in return for a promise that he
“was and would be covered, protected, indemnified, defended, and insured by
Cross-Defendants against claims brought against him arising out of his
employment at UCLA SHS.” (Id. at
¶¶8-9.) Wiesmeier asserts that UCLA
Student Health Services physicians’ did not obtain their own individual medical
malpractice insurance as a result. (Id.
at ¶8.)
Wiesmeier contends that
since around December 2021 to the present, he has been sued in multiple cases arising
out of his purported sexual abuse of patients during medical examinations. (Cross-Compl., ¶10.) “These medical examinations were performed
while Cross-Complainant was an agent and employee of UCLA SHS and within the
course and scope of his employment at the UCLA SHS. Cross-Complainant vehemently denies that any
such inappropriate conduct occurred.” (Ibid.) Wiesmeier claims that none of the patients
reported the inappropriate conduct from the years he was employed. (Id. at ¶12.) Wiesmeier demands that the Regents defend and
indemnify for these claims but it has disclaimed any such obligations. (Id. at ¶¶11, 13-14.)
Currently before the court
is the Regents’ demurrer to the cross-complaint. There is no opposition. However, the lack of an opposition cannot be
viewed as a concession that the motion be granted. Rather, the court has a duty to look
independently at the papers to determine if the motion has merit.
The Regents demur to the
entire complaint on the basis none of the causes of action states a cause of
action and the form of the contract cannot be ascertained. (See Code Civ. Proc., § 430.10, subds. (e),
(g).) The court notes that by demurring
to the entire cross-complaint rather than to specific causes of action, the
court could determine that this is an all-or-nothing demurrer. However, because there is no opposition on
that basis (or any basis), and because the court sees no efficiency or utility
in so doing, the court will overlook that issue.
Contractual Claims
The Regents demur to the
first cause of action for breach of contract and second cause of action for
contractual indemnification on the basis the form of the contract is
unclear. The court agrees. Wiesmeier alleges written, oral, and partly
written and partly oral contracts from over a span of 30 years. Wiesmeier must allege the form of the
contract at issue. The court further
agrees that he fails to allege the legal effect of the contracts at issue. To the extent there are written contracts
that are the basis of the duty to defend and indemnify, Wiesmeier must plead
their legal effect or attach the contracts in question. “A written contract may be pleaded either by
its terms—set out verbatim in the complaint or a copy of the contract attached
to the complaint and incorporated therein by reference—or by its legal
effect. [Citation.] In order to plead a contract by its legal
effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a
careful analysis of the instrument, comprehensiveness in statement, and
avoidance of legal conclusions.’
[Citation.]” (McKell v.
Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) And in the context of an oral contract,
Wiesmeier must plead the oral statements that were made as part of the contract
with at least enough specificity so that the court can understand the
contractual claim. And, finally, where
there is a patchwork of contracts over time, Wiesmeier must allege how the
contracts work together and which contracts are at issue. The demurrers are SUSTAINED WITH LEAVE TO
AMEND.
Statutory Indemnification
Wiesmeier alleges he is
entitled to statutory indemnification under Labor Code section 2802 and
Government Code sections 825, 825.2, 995, 996.4, and 996.6. As the
Regents persuasively argue, Labor Code section 2802 is not available
against a public entity. “Thus, Labor Code section 2802 has no application to
public employees seeking reimbursement of defense costs from their employers;
their reimbursement rights are governed exclusively by the Government Claims
Act. (Los Angeles Police Protective
League, at p. 182.)” (Thornton v.
California Unemployment Ins. Appeals Bd. (2012) 204 Cal.App.4th 1403,
1422–1423, parallel citations omitted.)
However, Wiesmeier’s claims for indemnification under Government Code
sections 825, 825.2, 995, 996.4, and 996.6 are properly alleged. The Regents argue that there is no obligation
to indemnify under these sections because the underlying lawsuits concern his
sexual assault of patients. The Regents
are correct that sexual assault is outside the scope of employment. (Lisa M. v. Henry Mayo Newhall Memorial
Hospital (1995) 12 Cal.4th 291, 296.)
But the Regents are assuming that Wiesmeier actually committed the
assaults. He explicitly alleges he was
only conducting routine medical examinations and he did not assault
anyone. “These medical examinations were
performed while Cross-Complainant was an agent and employee of UCLA SHS and
within the course and scope of his employment at the UCLA SHS. Cross-Complainant vehemently denies that any
such inappropriate conduct occurred.”
(Cross-Compl., ¶10.) While sexual
assault is outside the scope of employment, the examinations themselves were
not. Until it is determined whether
Wiesmeier committed proper examinations or multiple sexual assaults, the court
cannot say that indemnification is improper.
The Regents also claim that they are entitled to additional
information. But the court is not sure
what additional detail the Regents want.
Further, “the complaint need only allege facts sufficient to state a
cause of action; each evidentiary fact that might eventually form part of the
plaintiff's proof need not be alleged.”
(C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) The Government Code
portions of the claim survive.
The Regents further assert
there is a conflict of interest between Wiesmeier and the Regents. “If an actual and specific conflict of
interest becomes apparent subsequent to the 20-day period following the
employee's written request for defense, nothing herein shall prevent the public
entity from refusing to provide further defense to the employee. The public entity shall inform the employee
of the reason for the refusal to provide further defense.” (Gov. Code, § 995.2, subd. (c).) The court is concerned, however, that it is
premature to decide this issue. At this
pleading stage, the court must accept as true Wiesmeier’s allegations that he
did not commit the sexual abuse at issue.
If he did not, then the actions he took were simply medical examinations
in the course and scope of his employment.
This is different from Stewart v. City of Pismo Beach (1995) 35
Cal.App.4th 1600, 1604, where the police officer for the City of Pismo Beach
admitted that his conduct created a conflict of interest due to his cooperation
with the City’s opponents. In analyzing
the question, the court believes that the issue is close.
The underlying case in Stewart
involved a claim of improper prosecution, in which a defendant contended that
law enforcement applied different standards to him and engaged in an improper
investigation and prosecution. Much to
the city’s surprise in that case, officer Stewart agreed (without telling
counsel the city had appointed) to give an interview to the plaintiff. In that interview, the said that he agreed
that the investigation was improper and that he was told to lie. The city then withdrew its defense of officer
Stewart. The Court of Appeal found that
proper. By essentially agreeing that plaintiff’s
allegations were true (and also obtaining an agreement to be dropped from
plaintiff’s suit), officer Stewart created a clear conflict with the city. To defend Stewart, the city would have to
take a position that would subject it to liability. The situation in the case at bench is not so
clear. The Regents are not agreeing that
Wiesmeier assaulted the plaintiffs. If
they were, then the Regents and Wiesmeier would have a clear conflict: the
Regents would not be vicariously liable under Lisa M. for the misconduct
but Wiesmeier would be taking a contrary position. However, because the Regents do not agree or
concede that any improper conduct occurred, the conflict is not yet ripe. If the conduct never happened, then
Wiesemeier and the Regents are in sync because both deny plaintiffs’
allegations. In short, while a conflict
might well develop if the Regents conclude that plaintiffs’ factual assertions
have merit, it has not developed yet.
The Regents suggest that
there is a conflict under Stewart because Wiesmeier is stating that he
only did that which he was trained to do.
If that were indeed the case, and if plaintiffs’ allegations are true,
then there would be a conflict. That
would suggest that the Regents trained Wiesmeier to sexually assault his
patients and the case would not be governed by Lisa M. But no one is really asserting that. What Wiesmeier is alleging, read in the light
most favorable to the opposing party (which the court must do on demurrer) is
that he assaulted no one but rather conducted proper examinations of his
patients, as he was trained to do. If
that is indeed the case, then the Regents and Wiesmeier are again in sync.
The court is not unaware
of the problem here and confesses to some significant discomfort. The Regents do not want to use public money
to defend a former employee accused of the heinous actions of which Wiesmeier
is accused, and the court would rather see tax money go elsewhere as well,
frankly. And, as set forth above, if
there comes a time that the Regents no longer contest the underlying assault
charges, the conflict would crystallize.
It just does not seem to have happened yet. The court also notes that a fuller factual record
might well establish a conflict even if the Regents do not concede the assaults. It could be that the training Wiesmeier
claims to have followed was not the same as the training the Regents claim that
they gave. If that is the case, a
summary adjudication motion might very well lie on this question. The court certainly does not foreclose that
possibility.
The Regents next argue
that Weismeier must file a writ of mandate or seek reimbursement to pursue this
action. The court construes the
cross-complaint as a request for reimbursement.
“Cross-Complainant faces an imminent injury since, notwithstanding The
Regents’ obligation to provide indemnification and defense for
Cross-Complainant, Cross-Complainant has no alternative but to presently defend
the Claims on his own, depleting his financial resources and impairing his ability
to defend himself, despite his statutory rights to a defense from The
Regents.” (Cross-Compl., ¶31.) “If after request a public entity fails or
refuses to provide an employee or former employee with a defense against a
civil action or proceeding brought against him and the employee retains his own
counsel to defend the action or proceeding, he is entitled to recover from the
public entity such reasonable attorney's fees, costs and expenses as are
necessarily incurred by him in defending the action or proceeding if the action
or proceeding arose out of an act or omission in the scope of his employment as
an employee of the public entity, but he is not entitled to such reimbursement
if the public entity establishes (a) that he acted or failed to act because of
actual fraud, corruption or actual malice, or (b) that the action or proceeding
is one described in Section 995.4. [¶]
Nothing in this section shall be construed to deprive an employee or former
employee of the right to petition for a writ of mandate to compel the public
entity or the governing body or an employee thereof to perform the duties
imposed by this part.” (Gov. Code, §
996.4.) The court will not elevate form
over substance in that way.
The demurrer is
OVERRULED.
Equitable Indemnity
Regents argues it is not
primarily liable for this alleged sexual abuse.
The court is not convinced that is the standard for an equitable
indemnity claim—the issue is whether the tortfeasors are jointly and severally liable. “It is well-settled in California that
equitable indemnity is only available among tortfeasors who are jointly and
severally liable for the plaintiff's injury.
(Leko v. Cornerstone Bldg. Inspection Service (2001) 86
Cal.App.4th 1109, 1115; Munoz v. Davis (1983) 141 Cal.App.3d 420, 425.) With limited exception, there must be some
basis for tort liability against the proposed indemnitor. (Munoz v. Davis, supra, 141 Cal.App.3d
at p. 425.) ‘Generally, it is based on a
duty owed to the underlying plaintiff [citations], although vicarious liability
[citation] and strict liability [citation] also may sustain application of
equitable indemnity. In addition, implied contractual indemnity between the
indemnitor and the indemnitee can provide a basis for equitable indemnity. [Citation.]’
(BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc.
(2004) 119 Cal.App.4th 848, 852.)” (Stop
Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143
Cal.App.4th 1036, 1040–1041, parallel citations omitted, emphasis by Stop
Loss court.) Were the complaint
against the Regents limited to vicarious liability for the sexual assaults, the
court would agree that there is no equitable indemnity under Lisa M. However, the complaint also alleges negligent
supervision and other torts against the Regents. It is those other torts that are the problem
here. The demurrer is OVERRULED. That said, however, the tort of negligent
supervision (and related torts) is far less culpable than the tort of
intentional sexual assault. If it boils
down to that dichotomy, the equitable indemnity claim might very well
fall. The court does not preclude this
argument at summary judgment.
Declaratory Relief
The Regents assert this
claim is duplicative of the other claims.
The demurrer is OVERRULED.
Wiesmeier seeks prospective relief about Regents current and future
defense and indemnification obligations, if any. “ ‘Strictly speaking, a demurrer is a
procedurally inappropriate method for disposing of a complaint for declaratory
relief. As Witkin observes: “[A]
demurrer would leave the parties where they were, with no binding determination
of their rights, to await an actual breach and ensuing litigation. This would
defeat a fundamental purpose of declaratory relief, to remove uncertainties as
to legal rights and duties before breach and without the risks and delays that
it involves. In brief, the object of declaratory ‘relief’ is not necessarily a
beneficial judgment; rather, it is a determination, favorable or unfavorable,
that enables the plaintiff to act with safety. This theory has prevailed, and
the rule is now established that the defendant cannot, on demurrer, attack the
merits of the plaintiff's claim. The
complaint is sufficient if it shows an actual controversy; it need not show
that plaintiff is in the right.” (5
Witkin, Cal. Procedure, (4th ed. 1997) Pleading § 831, pp. 288–289.)’ ” (Lockheed Martin Corp. v. Continental Ins.
Co. (2005) 134 Cal.App.4th 187, 221, disapproved of on another ground by
State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1036, fn. 11.)
Cross-complainant has 30
days’ leave to amend.