Filed 2/23/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PAM PIPITONE, H041468
(Monterey County
Plaintiff and Appellant, Super. Ct. No. M114411)
v.
DON WILLIAMS et al.,
Defendants and Respondents.
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.1 Defendants and respondents Deane
Crow, M.D. and Don Williams, M.D. separately saw and treated Ryann several months
before her death for injuries she sustained when Jesse ran over her foot with his truck. At
the time, Ryann did not reveal the true origin of her injury to Dr. Crow or Dr. Williams.
Pipitone brought this wrongful death action against Dr. Crow and Dr. Williams for
failure to report alleged, suspected abuse to the authorities as required by Penal Code
section 11160. The trial court granted respondents’ separate motions for summary
judgment, each on the independent grounds of duty and causation. The court also granted
Dr. Williams’ motion on a third ground, the affirmative defense of equitable estoppel.
1
Although it is generally accepted that Jesse Crow killed Ryann Bunnell, we note
that his suicide came before he could be tried and found guilty beyond a reasonable
doubt.
Pipitone appeals from the court’s entry of summary judgment against her. She argues
that she raised triable issues of fact as to duty and causation.
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.
FACTUAL AND PROCEDURAL BACKGROUND2
A. Defendants’ Medical Treatment of Ryann and the Circumstances of Her Murder
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,3 dismembered her and dumped her
body parts into the San Francisco Bay.
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.
2
For purposes of this background we only include facts properly in the record.
We note that Pipitone failed to limit the factual summary in her opening brief “to matters
in the record” and further failed to support factual references “by a citation to the volume
and page number of the record where the matter appears.” (Cal. Rules of Court, rule
8.204(a)(2)(C), 8.204 (a)(1)(C), italics added.)
3
The “others” who helped Jesse dispose of Ryann’s body after the murder are
named in a separate cause of action in the underlying complaint but are not parties to this
appeal.
2
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.
Dr. Crow briefly examined Ryann and noted abrasions on her foot, ankle, and
shoulder. He did not ask Ryann anything else about how she had been injured but
suspected that she might have a broken bone. Dr. Crow left for his house and returned to
bring Ryann over-the-counter pain medication. Between the two visits, Dr. Crow spent
approximately 10 minutes with Ryann. He did not advise Ryann about seeking further
medical care.
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’ 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.
3
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 Doctors 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 hand-written 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 hospital staff during the health history
intake.4 Pipitone was present while Ryann responded to the health history questions, but
Ryann did not report the abuse.
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
4
Piptone is a licensed vocational nurse who had been employed at the hospital.
She knew that the health history process would provide Ryann a chance to disclose
abuse.
4
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 Department. 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.
B. Pipitone’s Wrongful Death Action
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
Jessie5 Crow in the past, the nature of the injuries, and/or because of information received
as to the cause of the injuries,” and that he failed to make a report to law enforcement in
violation of Penal Code section 11160. She also alleges that he “undertook a confidential
relationship” with his son to protect Jesse from the consequences of his domestic
violence and to conceal the nature of the domestic violence incident. In the third cause of
action, Pipitone alleges that Dr. Crow’s conduct in failing to make a report to law
enforcement was willful and intentional.
In the fourth and fifth causes of action of the complaint, Pipitone brings identical
allegations against Dr. Williams but argues that the “confidential relationship” was
5
The spelling of names varies across the complaint and other documents in the
record. Jesse Crow is alternately spelled “Jessie” Crow; Ryann Bunnell is alternately
spelled “Ryan” Bunnell or referred to as “Ryan Crow.”
5
between Dr. Williams and Dr. Crow and/or Jesse Crow. She also alleges that Dr.
Williams’ knowledge of the cause of the injury was “because of Defendant Dean Crow’s
knowledge of violent behavior on part of Jessie Crow in the past, the nature of the
injuries, and/or because of information received as to the cause of the injuries.”
Both respondents answered the complaint and generally denied the allegations.
B. Summary Judgment Proceedings
1. Dr. Williams’ Motion for Summary Judgment
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,6 Pipitone’s
responses to requests for admission, and deposition testimony of witnesses. These
included: Pipitone; members of Dr. Williams’ office staff; nursing staff at Salinas Valley
Memorial Hospital; and Officer Haney, who interviewed Ryann in December 2009.
Dr. Williams argued that Pipitone could not establish breach of any mandatory duty
because there was no evidence that Dr. Williams knew or reasonably suspected that
Ryann was a victim of domestic abuse. Even if evidence existed to establish duty,
Dr. Williams argued there could be no causation because Pipitone herself reported the
same abuse to the police and the subsequent investigation did not change the ultimate,
terrible outcome.
6
While the motion was pending, Dr. Williams filed an errata and amended
declaration ostensibly correcting the record as to whether he knew that Dr. Crow also had
tended to Ryann’s injury.
6
2. Dr. Crow’s Motion for Summary Judgment
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 could offer no evidence that a mandatory reporting
failure was the proximate cause of Ryann’s death because many intervening events,
dependent on discretionary acts, took place in the time that transpired between
Dr. Crow’s treatment of Ryann and her murder. In support of his motion, Dr. Crow
proffered his own deposition testimony, Pipitone’s deposition testimony, that of a Salinas
Valley Memorial Hospital nurse, and that of Officer Haney.
3. Pipitone’s Opposition to Respondents’ Motions
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
Doctors Crow and Williams was predicated upon Penal Code section 11161.7 In her
opposition, Pipitone argued that there were triable issues of fact as to whether each doctor
should reasonably have suspected that Ryann’s injuries resulted from domestic violence,
and that by failing to offer expert testimony in support of the motions for summary
judgment, Doctors Crow and Williams could not meet their initial burdens on the issue of
duty. Pipitone also argued that a failure to exercise due care was presumptively
established under Evidence Code section 669.8
7
Pipitone’s complaint does not allege a violation of Penal Code section 11161,
only Penal Code section 11160.
8
Evidence Code section 669, subdivision (a) establishes a rebuttable presumption
that a person failed to exercise due care if that person: (1) violated a statute, ordinance, or
7
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
visits to healthcare systems or death,” and that health care providers serve as
“‘gatekeepers’” to identity and report abuse where family members and the abused
themselves may not. Such reports by trained professionals “tend to receive more attention
from those in a position to act upon the report.”
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
regulation of a public entity; (2) the violation proximately caused death or injury to
person or property; (3) the death or injury resulted from an occurrence of the nature
which the statute, ordinance, or regulation was designed to prevent; and (4) the person
suffering the death or the injury to his person or property was one of the class of persons
for whose protection the statute, ordinance, or regulation was adopted.
8
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’ deposition testimony, his declaration submitted in support of the
motion for summary judgment, and the recorded statement that he provided during the
murder investigation, as recounted in the McGuirk Declaration.
9
4. Objections to Pipitone’s Evidence
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.
a. Barnard Declaration
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 and Dr. Crow’s
objections to the entire Barnard Declaration.
b. Pipitone 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
10
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.
c. Bunnell 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.
d. McGuirk 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
11
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.”
Also in paragraph 6, McGuirk stated:
“On February 4, 2010, Dr. Crow was again interviewed by law enforcement, this
time in a recorded interview. I was the primary interviewer. In that recorded interview
he was asked about his son Jessie Crow. About his son, he told law enforcement that it
was typical for Jessie to get agitated and that he had ‘episodes’ of agitation. He told them
that ‘if something doesn’t go right, he becomes quite vicious and fights.’ He also
confirmed that Jessie “gets angry on a whim.”
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.
5. Trial Court’s Ruling on the Motions
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.
12
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.
DISCUSSION
A. Standard of Review
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 the applicable standard of proof.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)
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 (Ennabe), quoting State of California v.
Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-11018; 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
13
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 (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 Mortg.,
Inc. v. Sulimen (2000) 78 Cal.App.4th 1434, 1439, quoting Brantley v. Pisaro (1996) 42
Cal.App.4th 1591, 1601-1602.) 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 p.716-717; Ennabe, supra, 58 Cal.4th
697, 705.)
B. Issues Framed by the Pleadings
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.
In relevant part, Penal Code section 11160 mandates a report to law enforcement
“immediately or as soon as practically possible” when any health practitioner, acting in
his or her professional capacity or within the scope of employment, provides medical
services for a patient “whom he or she knows or reasonably suspects” is “suffering from
any wound or other physical injury … where the injury is the result of assaultive or
14
abusive conduct.” Penal Code section 11161 imposes the identical duty and applies more
broadly to “every physician or surgeon who has under his or her charge or care any
person” suffering from injuries inflicted in the manner described in section 11160.
(Landeros v. Flood (1976) 17 Cal.3d 399, 407 (Landeros).) The facts pleaded in
Pipitone’s complaint were sufficient to put Dr. Crow on notice of the allegations against
him regardless of whether his alleged duty arose out of Penal Code section 11160 or
Penal Code 11161.9 Further to the point, as we will explain in detail below, under neither
statutory section has Pipitone met her burden to demonstrate a triable issue of material
fact.
C. Evidentiary Issues
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?
9
At the summary judgment hearing, Pipitone’s counsel requested to amend the
plaintiff’s complaint “to the extent that the trial court doesn’t find that we factually
alleged [Penal Code section 11161], even though we didn’t cite the particular code
section.” The trial court accepted the argument and noted Penal Code section 11161,
alongside Penal Code section 11160, in its oral findings.
15
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 (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 in Reid had deemed it proper to review the evidentiary objections on the merits:
“ ‘Because summary judgment is decided entirely on the papers, and presents only a
question of law, it affords very few occasions, if any, for truly discretionary rulings on
questions of evidence. Nor is the trial court often, if ever, in a better position than a
reviewing court to weigh the discretionary factors.’ ” (Id. at p. 535 [quoting the opinion
of 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, 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.10
10
To the extent that appellate courts have continued to review for abuse of
discretion a trial court’s rulings on evidentiary objections based on the papers in
summary judgment proceedings (see, e.g., Jones v. Wachovia Bank (2014) 230
Cal.App.4th 935, 951 [reviewing evidentiary objections on summary judgment for abuse
of discretion and citing other courts of appeal that did the same]), we diverge and adhere
to the reasoning set forth in Reid.
16
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.11
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,12
we refer to our earlier decision in Mamou v. Trendwest Resorts, Inc. (2008) 165
Cal.App.4th 686 (Mamou). There we explained that it is not the role of the appellate
court to “grant conclusive effect to the trial court’s treatment of the evidence before it,
however patently erroneous that treatment may be.” (Id. at p. 711.) Quite the opposite:
“if a party’s position depends on inadmissible evidence admitted over a proper
objection,” or conversely if a party was prejudiced by the exclusion of admissible
evidence, “a reviewing court would be empowered, and indeed obliged, to acknowledge
the error” and review the evidence. (Ibid.) Though it is often stated that “ ‘[w]e must
“consider [] all the evidence set forth in the moving and opposition papers except that to
which objections have been made and sustained” ’ ” (ibid., quoting Reeves v. Safeway
(2004) 121 Cal.App.4th 95, 106-107 & Guz v. Bechtel National Inc. (2000) 24 Cal.4th
317, 334), we conclude that a more accurate statement of our review of a summary
11
A more recent California Supreme Court decision regarding a pretrial
evidentiary challenge to expert testimony is also instructive. In Sargon Enterprises, Inc.
v. University of Southern Cal. (2012) 55 Cal.4th 747, 773, the court held that in the
context of pretrial proceedings, the trial court’s ruling excluding expert testimony is
reviewed for abuse of discretion “[e]xcept to the extent the trial court bases its ruling on a
conclusion of law.”
12
There is no question that Pipitone’s opening brief on appeal should have
denoted which evidence in her moving papers had been excluded based on objections
sustained by the trial court. Even so, each respondent has had the opportunity to address
his objections raised and sustained below, and we consider the issue of the evidentiary
rulings to be properly before this court as part and parcel of the appeals from the
summary judgments.
17
judgment is that we consider all the evidence set forth in the moving and opposition
papers except that to which objections have been made and properly sustained.13
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.
D. Summary Judgment was Proper as to Both Dr. Crow and Dr. Williams
1. Dr. Crow’s Statutory Duty to Report Suspected Abuse
Several factors must be in place in order to trigger a physician’s mandatory
reporting duty under Penal Code section 11160. Dr. Crow’s motion for summary
judgment focused on two of these factors: (1) the physician must be “acting in his or her
professional capacity or within the scope of employment” when providing medical
services for a patient, and (2) he must “know[] or reasonably suspect[]” the patient’s
injury is the result of assault or abuse. (Pen. Code, § 11160, subd. (a).) Even for a
physician acting outside of his professional capacity or scope of employment, the second
factor is a prerequisite to trigger the mandatory reporting duty. (Pen. Code, § 11161.)
Penal Code section 11162.5, subdivision (d) defines whether a physician “[r]easonably
suspects” abuse to mean “that it is objectively reasonable for a person to entertain a
suspicion, 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.”
In support of his motion on the element of duty, Dr. Crow presented deposition
testimony from his and Ms. Pipitone’s depositions, neither of which reference evidence
13
Indeed, as we explained in Mamou, the common refrain from Guz v. Bechtel
National Inc. (2000) 24 Cal.4th 317, 334 (on appeal from a summary judgment “[w]e
must ‘consider [] all the evidence set forth in the moving and opposition papers except
that to which objections have been made and sustained’ ”) has “proven to be among the
more mischievous dicta in recent history.” (Mamou, 165 Cal.App.4th 686, 711.)
18
or mention facts that suggest that at the time of the October 23, 2009, middle-of-the-night
house call to his son’s house, he could have suspected, let alone knew, that Ryann’s foot
injury was caused by Jesse’s intentional assault or abuse. Dr. Crow relied on the same
deposition testimony to argue that he acted solely in his capacity as a parent, and
therefore did not have a duty to report. Because we accept that Pipitone alleged duty
under Penal Code section 11161, however, and Dr. Crow has not disputed that he was at
the relevant time a physician caring for a person, we will not consider that evidence here.
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 (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, 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
19
indication of how close in time these incidents were to October 23, 2009 or if they ever
involved intimate partner violence.14
Pipitone offered another version of Dr. Crow’s story in the McGuirk Declaration,
purportedly based on Dr. Crow’s interview with police on January 30, 2010, in which
Dr. Crow and his wife together followed Jesse back to the house and found Jesse and
Ryann in a screaming argument where no one appeared hurt. As previously noted, the
trial court sustained Dr. Crow’s objections to this statement. We agree that the statement
lacked personal knowledge because McGuirk merely retold what Dr. Crow “told law
enforcement.”
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 [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
14
Pipitone contends that Dr. Crow admitted in deposition to knowing of another
arrest in Oregon in which Jesse purportedly harassed and urinated on a woman. Pipitone
provides no citation to the record, and our detailed review of the record revealed no
mention of this incident. We will disregard this and other factual statements by Pipitone
that lack appropriate citation to the record. (See Cal. Rules of Court, rule 8.204
(a)(1)(C).)
20
that Dr. Crow knew or reasonably suspected that Ryann’s foot injury on the morning of
October 23d 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.”15 We would not have excluded the whole of what Ms. Bunnell
stated she actually observed—namely that Dr. Crow was at the house around 8:00 a.m.
the morning of October 23rd and that he glared at Jesse while examining Ryann’s foot.
Even this evidence, and the inferences reasonably drawn from it, viewed in the light most
favorable to Pipitone, at best establishes that witnesses had conflicting accounts of when
Dr. Crow visited the house, and that Dr. Crow directed a negative expression toward his
son.16
Pipitone also offered the expert testimony of Dr. Linda Barnard. Pipitone cites
Jambazian v. Borden (1994) 25 Cal.App.4th 836 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
15
While Ms. Bunnell’s declaration describes Dr. Crow glaring and shaking his
head at Jesse, there is no citation to the record—nor does the record reflect—Pipitone’s
additional contention that Dr. Crow also said to Jesse “words to the effect of ‘what the
fuck did you do?’ ” We accordingly disregard the latter, unsupported part of the
statement in Pipitone’s papers.
16
Such negative expression would not be a surprise considering Dr. Crow knew
that his son was intoxicated and driving the truck that ran over Ryann’s foot.
21
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. (See Ewing v.
Northridge Hosp. Medical Center (2004) 120 Cal.App.4th 1289, 1302.) 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.” 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 opinion on this issue,17 she does not indicate on what, if any,
17
Evidence Code 720, subdivision (a) sets forth the standard by which we
measure if a person is qualified to testify as an expert. We agree with Dr. Crow and Dr.
Williams’ criticism of Dr. Barnard’s qualifications to the extent that the testimony is
offered to prove the medical standard of care of a physician under the reporting statute, or
seeks to render a legal opinion on the purpose of the mandatory reporting statute. We are
not so quick to deem her qualifications insufficient to render an opinion, however, on the
impacts of health care provider mandatory reporting of domestic abuse, or on the state of
22
substantiated facts she based her opinion that Dr. Crow “had or should have had
reasonable suspicion.”
An expert’s opinion “unaccompanied by a reasoned explanation connecting the
factual predicates to the ultimate conclusion” lacks evidentiary value and may be deemed
conclusory. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114
Cal.App.4th 1108, 1117 (Jennings).) Viewing the evidence and all reasonably drawn
inferences in the light most favorable to Pipitone (see Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 843), Dr. Crow’s fractured awareness of past problems on the part
of his son, taken in conjunction with his knowledge that his son was driving the truck
when it ran over Ryann’s foot, that both Jesse and Ryann had been drinking at the time,
and that her injuries were consistent with the stated mechanism of injury, do not create a
reasonable suspicion of abuse any more than they might create a reasonable suspicion of
reckless behavior on the part of the recently married couple. Without some reasoned
explanation, the “indisputed” evidence that Dr. Barnard described does not add up to the
opinion rendered. As such, it is purely conclusory. (See Jennings, supra, 114
Cal.App.4th at p. 1117.) We conclude that the trial court properly excluded Dr. Barnard’s
opinion as to liability.
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 23d in which Ryann
mind of the doctors presented with Ryann’s injuries. Dr. Barnard’s training and
experience as a marriage family therapist and counselor educator in the field of domestic
violence may have imbued her with the “special knowledge, skill, experience, training, or
education” in those specific areas. (See Mann v. Cracchiolo (1985) 38 Cal.3d 1, 38 [the
determinative issue is “whether the witness has sufficient skill or experience in the field
so that his testimony would be likely to assist the jury in the search for the truth”].)
However, because we find that Dr. Barnard’s opinions are inadmissible on other grounds,
we need not examine her qualifications as a whole.
23
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.18
Because we find on the evidence presented that there is no triable issue of fact to
indicate that at the time Dr. Crow treated Ryann, he should have known or reasonably
suspected that her foot injury flowed from violence, Pipitone’s allegation that Dr. Crow
breached his statutory duty must fail. That being true, Pipitone cannot establish a
presumed failure to exercise due care under Evidence Code section 669, which among
other elements requires violation of a statute.
2. Dr. Williams’ Statutory Duty to Report Suspected Abuse
Nor do we find any triable issues of material fact with regard to Dr. Williams’
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’ deposition testimony evidencing his
prior friendship with the Crow family and the fact that he knew Jesse Crow’s mother was
18
We read Penal Code sections 11160 and 11161 to require that the knowledge or
suspicion of abuse be contemporaneous to the doctor’s provision of medical services for
a patient while acting in the scope of employment as a health professional (under Pen.
Code, § 11160), or while the injured person is under his or her charge or care (under Pen.
Code, § 11161).
24
an x-ray technician. She also offered the declaration of Ryan McGuirk summarizing
Dr. Williams’ statements in a recorded interview during the murder investigation.19
According to McGuirk, Dr. Williams stated that he had known Jesse and Ryann before he
saw her as a patient on October 23, 2009, and that “[h]e declined to say much of what he
knew about Jessie, as it was difficult for him given his personal relationship with the
Crows.” Pipitone also offered the expert declaration of Dr. Barnard. As with Dr. Crow,
Dr. Barnard opined that Dr. Williams “had or should have had at least a reasonable
suspicion” of abuse, providing as her rationale the descriptions of the incident provided
by Ryann and Jesse to Dr. Williams “were inconsistent and lacking in detail” and that
“Dr. Williams knew that Jessie [sic] mother provided x-ray services, and thought it was
odd they did not go to his mother for those services. The [sic] is evidence that he was
contacted by either Dr Crow or Mrs Crow prior to treatment.”
Dr. Barnard’s opinion as to Dr. Williams’ 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.
3. Proximate Causation
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
19
The record does not reflect that Dr. Williams raised any objections to the
McGuirk Declaration.
25
material fact as to the duty element for either respondent, we find that she could not do so
as to causation.20
There are two aspects to proximate causation: cause in fact, sometimes referred to
as but-for causation; and public policy considerations that are held to limit an actor’s
liability for the consequences of his conduct. (State Dept. of State Hospitals v. Superior
Court (2015) 61 Cal.4th 339, 352-353, rehg. den. (July 22, 2015) (State Hospitals).) The
first aspect is determinative here. “ ‘ “An act is a cause in fact if it is a necessary
antecedent of an event.” ’ ” (Ibid., quoting Ferguson v. Lieff, Cabraser, Heimann &
Bernstein (2003) 30 Cal.4th 1037, 1045.) That is, a defendant whose conduct was a
substantial factor in causing the plaintiff’s harm “cannot avoid responsibility just because
some other person, condition, or event was also a substantial factor in causing the
plaintiff’s harm; but conduct is not a substantial factor in causing harm if the same harm
would have occurred without that conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th
180, 187, rehg. den. (Nov. 26, 2013), review den. (Feb. 19, 2014).)
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 physician’s failure to report
known or suspected abuse. Dr. Crow and Dr. Williams separately argue that Pipitone has
not and cannot adduce evidence upon which the trier of fact can reasonably find or infer
causation. Though proximate cause is generally considered a question of fact for
determination by a jury, “ ‘where the facts are such that the only reasonable conclusion is
an absence of causation, the question is one of law, not of fact.’ ” (State Hospitals,
supra, 61 Cal.4th 339, 353, quoting Weissich v. County of Marin (1990) 224 Cal.App.3d
1069, 1084.) We find this to be one such occasion.
20
Pipitone’s theory of proximate causation is identical as to both respondents, as
are the pertinent facts. Keeping in mind that Dr. Crow and Dr. Williams each raised
separate arguments in their papers, we find it most efficient to address the issue of
causation together.
26
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. (Id., at p. 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 (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 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
27
speculative and conjectural claims.” (State Hospitals, 61 Cal.4th 339, 355.) Our analysis
turns on the nature of the intervening acts that took place between the alleged breach of
mandatory duty by Drs. Crow and Williams, and Ryann’s murder.
In their motions, both respondents asserted evidence of an extended chain of
causation that involved discretionary decisions by the police, as well as Ryann’s non-
cooperation in the limited police investigation that did occur. This chain included the
following facts. Ryann did not reveal her abuse to the health care providers whose care
she sought for her foot injury. Despite the “agreement” to frame the truck incident as an
accident, about two months later Pipitone reported the incident and other abuse to the
police. Ryann’s sister, Rochelle Bunnell, made similar reports. In response, a Salinas
police officer interviewed Pipitone and Ryann in person. Ryann told the officer that she
feared Jesse and admitted that he had run over her foot with a truck, had guns and was
involved with “lots of illegal things.” Ryann also told the officer that she did not want a
report and felt it was best if she kept her mouth shut because she was afraid Jesse would
come after her and her family. Ryann accepted a pamphlet from the officer that
contained information and resources for victims of domestic violence. The officer ran a
warrant check on Jesse and saw that he was on probation with the condition he “obey all
laws.” The officer forwarded his report to two jurisdictions, the Monterey County
Sheriff’s Department and Monterey Police Department, but neither he nor the other
departments took any further action. Over a month later, and about four months after the
alleged breaches of mandatory duty, Jesse murdered Ryann.
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
28
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 Ryann Bunnell. Under
the circumstances, the nature of the conduct committed in murdering Ryann Bunnell was
not random nor unforeseeable; it was not the type of crime that would simply be
displaced to another time or location under changed circumstances. Instead, with proper
reporting, this crime would, more likely than not, not have occurred at all.”
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
29
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
first step in a necessary chain of discretionary decisions by the police or sheriff’s
department, which would have had to culminate in the arrest and detention of Jesse. (See
State Hospitals, 61 Cal.4th 339, 357 [plaintiff’s showing of cause in fact was
“conjectural, depending on a long series of determinations that would have been required
after [defendant’s] breach in order for the injury to have been prevented”].)
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.
30
3. Equitable Estoppel Asserted by Dr. Williams
Because we conclude that the trial court properly granted Dr. Williams’ motion for
summary judgment on the grounds of duty and causation, we do not reach his third
contended ground of estoppel.
DISPOSITION
The judgments in favor of Dr. Crow and Dr. Williams are affirmed. The parties
shall bear their own costs on appeal.
31
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
MÁRQUEZ, J.
Pipitone v. Williams et al.
H041468
32
Trial Court: Monterey County Superior Court
Superior Court No.: M114411
Trial Judge: The Honorable Thomas W. Willis
Attorneys for Plaintiff and Roberts Elliott
Appellant Pam Pipitone:
James K. Roberts
Sharmi Shah
Attorneys for Defendants and Greenfield Draa & Harrington
Respondents Don Williams et al.:
Tyler G. Draa
Sandra R. McIntosh
Maureen Harrington
Donahue Davies
James R. Donahue
Stephen J. Mackey
Pipitone v. Williams et al.
H041468
33