Filed 9/14/16 Certified for publication as modified 10/6/16 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
KRISTEN NICODEMUS et al.,
Plaintiffs and Appellants,
A141500
v.
SAINT FRANCIS MEMORIAL (S.F. City & County
HOSPITAL et al., Super. Ct. No. CGC-13-531076)
Defendants and Respondents.
Plaintiff Kristen Nicodemus filed this action against HealthPort Technologies,
LLC (HealthPort) and Saint Francis Memorial (Saint Francis) (collectively, defendants),
alleging they overcharged her for copies of her patient medical records. She sought to
bring the action on her own behalf and on behalf of others who, acting through an
attorney, requested patient medical records from a medical provider in California prior to
litigation and were charged more than the amounts specified in Evidence Code 1
section 1158. Plaintiff’s motion to certify the class was denied. We conclude this was
error and reverse.
1
All statutory references are to the Evidence Code.
1
I. BACKGROUND
A. Statutory Framework
Section 1158 is designed to require medical providers to produce the medical
records demanded by patients prior to litigation in a timely fashion and at a reasonable
cost. At the time of plaintiff’s appeal, section 1158 provided in pertinent part:
“Whenever, prior to the filing of any action or the appearance of a defendant in an action,
an attorney at law . . . presents a written authorization therefor signed by an adult patient
[or by a patient’s guardian, conservator, parent, or personal representative], . . . a licensed
hospital . . . shall make all of the patient’s records . . . available for inspection and
copying by the attorney at law . . . promptly upon presentation of the written
authorization.” (Former § 1158.)2 The statute authorizes the requesting attorney to
employ a professional photocopier to obtain the records on the attorney’s behalf, and the
provider must produce the records within five days. (Ibid.) All “reasonable costs”
incurred by a medical provider in locating, copying, or making the records available may
be charged to the requesting party, subject to limits set forth in the statute, which include
$0.10 per page for reproducing documents measuring up to 8.5 by 14 inches, $0.20 per
page for producing documents from microfilm, and clerical costs not to exceed $16 per
hour per person for locating and making records available. (Ibid.)
2
Although former section 1158 was amended effective January 1, 2016
(Stats. 2015, ch. 528, § 1, p. 4475), the amendments did not alter the substance of the
provisions relevant to this appeal. As amended, section 1158, subdivision (b) now
provides, “Before the filing of any action, . . . if an attorney at law . . . presents a written
authorization therefor signed by an adult patient [or by a patient’s guardian, conservator,
parent, or personal representative] . . . to a medical provider, the medical provider shall
promptly make all of the patient’s records . . . available for inspection and copying by the
attorney at law . . .” And, subdivision (a) now defines “ ‘medical provider’” as including
“a licensed hospital.” (§ 1158, subd. (a).) The amendments included no changes to the
language of the paragraph defining “ ‘reasonable cost.’ ” (Compare Stats. 2015, ch. 528,
§ 1; with Stats. 1997, ch. 442, § 15, p. 2871.)
2
“ ‘The legislative purpose behind the enactment [of section 1158] is not stated, but
its apparent goal is to permit a patient to evaluate the treatment he or she received before
determining whether to bring an action against the medical provider. Section 1158 also
enables the patient to seek freely advice concerning the adequacy of medical care and to
create a medical history file for the patient’s information or subsequent use. It operates to
prevent a medical provider from maintaining secret notes which can be obtained by the
patient only through litigation and potentially protracted discovery proceedings.’ ”
(Thornburg v. Superior Court (2006) 138 Cal.App.4th 43, 50, quoting National Football
League Management Council v. Superior Court (1983) 138 Cal.App.3d 895, 903
(National Football League).)
B. Plaintiff’s Request for Medical Records
According to the complaint, in June 30, 2011, plaintiff was admitted to Saint
Francis for treatment of injuries sustained when she was burned by exploding fuel gel
from a firepot. Later she engaged an attorney to represent her in a potential lawsuit.
Plaintiff’s attorney sent a fax to Saint Francis asking that it provide her copies of
plaintiff’s medical records, and attaching a signed authorization to release the
information.
In that period, HealthPort provided Saint Francis with patient medical record
release-of-information services pursuant to a contract (the contract).3 Under the contract,
HealthPort agreed, among other things, to review requests for patient medical records that
Saint Francis received, gather responsive records, and provide copies to requestors.
When attorneys requested client medical records “in a matter in which the medical
records are an issue (including a request issued pursuant to CA Evidence Code 1158),”
3
The parties agree that (1) the contract is reflected in multiple agreements between
HealthPort, on the one hand, and Saint Francis or Dignity Health, on the other;
(2) Dignity Health is the parent company of Saint Francis; and (3) Dignity Health
previously was known as Catholic Healthcare West.
3
HealthPort agreed it would provide those same services as “representative of [the
attorney] request[er] . . . after receiving written authorization from the attorney.”
HealthPort assigned personnel on-site at Saint Francis to perform the services.
Operating under the contract, HealthPort responded to plaintiff’s attorney’s
request for plaintiff’s medical records, sending a “California Agent Fee Information”
sheet (information sheet) and an invoice. In a section explaining the invoice charges, the
information sheet quoted section 1158, acknowledging its requirement that medical
providers must allow attorneys to inspect and copy patient records on presentation of a
patient’s written authorization. The information sheet, however, went on to state:
“HealthPort has agreed to copy records for you, upon your hiring of HealthPort as your
representative/agent for purposes of making such copies. The rates that HealthPort is
charging do not fall under [section] 1158.” 4
HealthPort’s invoice to plaintiff’s counsel sought payment of $86.52, and provided
directions for payment. The amount included a $30 “basic fee,” a $15 “retrieval fee,”
$25.25 for copying 101 pages at $0.25 per page, $10.30 for shipping, and $5.97 for sales
tax. The invoice included a statement directing requestors to the information sheet for
more details, and advising, “Payment implies that you agreed to employ HealthPort as
your professional photocopy representative for purposes of this request and that you
accepted the charge denoted below on this invoice.”
Plaintiff’s attorney paid HealthPort’s invoice in full, noting on the check’s memo
line, “under protest ∙ in violation of CA EVID CODE 1158,” and plaintiff later
reimbursed her attorney for that cost. HealthPort delivered the requested copies.
4
HealthPort would also schedule a time for attorneys to inspect records and, under
the contract, had to allow attorneys the option of sending in a different photocopy service
if they prefer.
4
C. Plaintiff’s Action and Motion for Class Certification
In May 2013, plaintiff filed her complaint against defendants alleging causes of
action for violation of section 1158 and violation of the Unfair Competition Law (UCL)
(Bus. & Prof. Code, § 17200 et seq.). (Thornburg v. El Centro Regional Medical Center
(2006) 143 Cal.App.4th 198, 204–205 [section 1158 is enforceable by private right of
action].)
On November 22, 2013, plaintiff moved for an order certifying the following
class: “All adult patients, guardians or conservators of adult patients (or of the adult
patient’s estate), parents or guardians of minor patients, or personal representatives or
heirs of deceased patients, who: (1) requested medical records from a hospital or other
medical provider (as enumerated in [section 1158]) located in California; (2) through an
attorney at law or his/her representative; (3) prior to litigation[;] and (4) were charged by
HealthPort more than: (a) ten cents ($0.10) per page for reproduction of medical records
[8.5] x 14 inches or less, (b) twenty cents ($0.20) per page for reproduction of medical
records from microfilm, (c) $16.00 per hour (computed on the basis of four dollars per
quarter hour or fraction thereof) for clerical costs, (d) actual postal charges, and/or
(e) actual costs charged by a third person, from May 1, 2009 to present.”
In support of her motion for class certification, plaintiff submitted evidence
obtained through discovery describing HealthPort’s procedure for handling attorney
requests seeking client medical records. According to that material, if the attorney
requesting the records does not indicate plans to use a different photocopy service, the
receiving medical facility automatically forwards the request to its on-site HealthPort
representative. That person obtains and combines all responsive paper and electronic
medical records, transmitting them together in an encrypted format to the corporate office
in Georgia.
5
In Georgia, HealthPort personnel index all requests, assigning them to categories,
depending on the context. Requests involving subpoenas or workers’ compensation
claims, respectively, for example, are grouped in separate categories.
HealthPort tracks all requests using a database. The database includes requester
(or “customer”) names and contact information, patient names, medical provider names,
and fee and invoicing information. It also assigns index numbers for billing purposes
based on request categories. For example, all attorney requests—or “attorney personal
injury” requests, as HealthPort refers to them—that attach release authorization forms
and seek patient records of California medical providers are indexed with the billing code
“07.”
After requests are entered into its database, HealthPort sends invoices to
requesters, releasing records to them once it receives payment, or earlier if the requester
has an existing agreement with HealthPort. HealthPort has followed the same process at
all of its California locations since May 1, 2009. Between May 1, 2009 and July 31,
2013, it processed 152,546 attorney requests for California medical providers, using the
same invoice form, and charging the same per-page copying fee ($0.25).
D. Defendants’ Evidence Opposing Class Certification
In opposition to the motion for class certification, HealthPort submitted the
declaration of Matthew J. Rohs, its Executive Vice-President and General Manager for
Release-Of-Information (Rohs declaration). In his declaration, Rohs advised that, while
some of the attorney requests tracked in HealthPort’s database specifically referred to
section 1158, “[m]any, if not most,” did not. For those that did not, he maintained,
HealthPort lacks information necessary to determine whether the section applies. For
example, section 1158 applies to requests made before “the filing of any action or the
appearance of the defendant in an action,” but attorney requests usually do not indicate
the timing of the records requests in relation to litigation or whether records are sought in
connection with litigation at all. The attorney request data set, therefore, Rohs
6
maintained, would include any instances in which patients or their personal
representatives had their attorneys request their records for a purpose independent of
litigation.
Further, HealthPort contended, relying on the Rohs declaration, although the
attorney request data set included patient names, this information alone would not suffice
to identify all class members. Some requests sought the records of patients who were
minors, deceased, or subject to a conservatorship or guardianship. In such instances, the
release authorization form would have been signed by the patient’s personal
representative, and HealthPort did not enter those names in its database. To obtain those
names, therefore, its staff would have to separately search electronically stored copies of
the release authorization forms, recording each name as it went, a process that would take
“at least 2 to 3 minutes for each transaction.”
Saint Francis joined HealthPort in opposing class certification, and also argued
separately that the proposed class was overbroad as against Saint Francis. The proposed
class, it observed, would include all those who, through an attorney, requested copies of
medical records from “a hospital or other medical provider . . . located in California” and
were charged by HealthPort more than the amounts specified in section 1158. While
HealthPort processed 152,546 attorney requests in California in the relevant period
(May 1, 2009 to July 31, 2013), only a small number of those transactions (2,429)
involved Saint Francis.5
5
The parties appear to agree that HealthPort processed attorney requests for “more
than 500” medical facilities or providers in California in the relevant period. The only
evidentiary citation offered to support this agreed-upon fact is to a cryptic statement
included in plaintiff’s counsel’s declaration. Plaintiff’s counsel averred that a
spreadsheet provided by defense counsel, which contained transactions for Saint Francis,
identified “500 unique entries under the column heading ‘Requester Name.’ ” The
statement seems to describe the number of individuals who requested records from Saint
Francis, rather than the number of entities contracting with HealthPort for services. As
7
E. The Trial Court’s Ruling
The trial court denied the motion for class certification. It ruled plaintiff had not
demonstrated the proposed class was ascertainable, or that common issues predominated,
because she had not presented a mechanism for determining whether attorneys requests
were submitted “ ‘prior to litigation’ . . . without individualized inquiry, for example, by
asking” each attorney. The court concluded HealthPort’s data set was both over- and
under-inclusive. The data set was over-inclusive, the court reasoned, because it would
encompass requests that were not submitted “prior to litigation” and may not have had
anything to do with contemplated litigation. It was under-inclusive because it did not
capture the names of class members who authorized records requests as a patient’s
guardian, conservator, or personal representative.6 “This is an ascertainability problem,”
the court concluded, “as well as a problem of individual issues overwhelming any
common issues.”
The trial court also observed that the class definition did not rely on or require
contact with Saint Francis, leaving unclear the theory under which class members as a
whole might recover against that defendant.
This timely appeal ensued.
the specific assertion is not critical to our decision in this matter, we need not resolve the
ambiguity.
6
The trial court’s order stated, somewhat ambiguously, on this point that the data
set did not “capture class members” who requested records as a patient’s guardian,
conservator, or personal representative. The Rohs declaration, which the order cited,
confirmed, however, that requests submitted by such individuals would be captured,
although only patient names would be recorded.
8
II. DISCUSSION
A. Standard of Review
“Because trial courts are ideally situated to evaluate the efficiencies and
practicalities of permitting group action, they are afforded great discretion in granting or
denying certification. ([In re Tobacco II Cases (2009)] 46 Cal.4th [298,] 311].) In the
absence of other error, a trial court ruling supported by substantial evidence generally
will not be disturbed unless (1) improper criteria were used or (2) erroneous legal
assumptions were made. (Ibid.) When a trial court’s decision rests on an error of law,
that decision is an abuse of discretion. (Ibid.)” (Pfizer Inc. v. Superior Court (2010)
182 Cal.App.4th 622, 629.) Accordingly, in our review of an order denying class
certification, “we consider only the reasons given by the trial court for the denial, and
ignore any other grounds that might support denial.” (Quacchia v. DaimlerChrysler
Corp. (2004) 122 Cal.App.4th 1442, 1447.) “ ‘Any valid pertinent reason stated will be
sufficient to uphold the order.’ [Citation.]” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th
429, 436 (Linder).)
B. Standards for Class Certification
“The criteria for class certification are well established. ‘Code of Civil Procedure
section 382 authorizes class actions “when the question is one of a common or general
interest, of many persons, or when the parties are numerous, and it is impracticable to
bring them all before the court . . . .” The party seeking certification has the burden to
establish the existence of both an ascertainable class and a well-defined community of
interest among class members.’ ” (Medrazo v. Honda of North Hollywood (2008)
166 Cal.App.4th 89, 96 (Medrazo), quoting Sav-On Drug Stores, Inc. v. Superior Court
(2004) 34 Cal.4th 319, 326 (Sav-On).) “ ‘The certification question is “essentially a
procedural one that does not ask whether an action is legally or factually meritorious.”
[Citation.] A trial court ruling on a certification motion determines “whether . . . the
issues which may be jointly tried, when compared with those requiring separate
9
adjudication, are so numerous or substantial that the maintenance of a class action would
be advantageous to the judicial process and to the litigants.” [Citations.]’ ” (Medrazo,
supra, 166 Cal.App.4th at p. 96, quoting Sav-On, supra, 34 Cal.4th at p. 326.)
“ ‘[T]his state has a public policy which encourages the use of the class action
device.’ ” (Sav-On, supra, 34 Cal.4th at p. 340.) “ ‘ “Generally, a class suit is
appropriate ‘when numerous parties suffer injury of insufficient size to warrant individual
action and when denial of class relief would result in unjust advantage to the wrongdoer.’
[Citations.]” [Citation.] “[R]elevant considerations include the probability that each
class member will come forward ultimately to prove his or her separate claim to a portion
of the total recovery and whether the class approach would actually serve to deter and
redress alleged wrongdoing.” [Citation.] “[B]ecause group action also has the potential
to create injustice, trial courts are required to ‘ “carefully weigh respective benefits and
burdens to allow maintenance of the class action only where substantial benefits accrue to
both litigants and the courts.” ’ [Citation.]” ’ ” (Lee v. Dynamex, Inc. (2008)
166 Cal.App.4th 1325, 1333 (Lee), quoting Newell v. State Farm Gen. Ins. Co. (2004)
118 Cal.App.4th 1094, 1101.)
C. Ascertainability
1. Legal Principles
“ ‘Ascertainability is achieved “by defining the class in terms of objective
characteristics and common transactional facts making the ultimate identification of class
members possible when that identification becomes necessary.” ’ (Bomersheim v. Los
Angeles Gay & Lesbian Center (2010) 184 Cal.App.4th 1471, 1483, quoting Hicks v.
Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 915 (Hicks).)” (Aguirre v.
Amscan Holdings, Inc. (2015) 234 Cal.App.4th 1290, 1300 (Aguirre).) “ ‘While often it
is said that “[c]lass members are ‘ascertainable’ where they may be readily identified
without unreasonable expense or time by reference to official records” [citations], that
statement must be considered in light of the purpose of the ascertainability requirement.’
10
(Medrazo, supra, 166 Cal.App.4th at p. 101.) ‘Ascertainability is required in order to
give notice to putative class members as to whom the judgment in the action will be res
judicata.’ (Hicks, supra, 89 Cal.App.4th at p. 914; see [Aguiar v. Cintas Corp. No. 2
(2006)] 144 Cal.App.4th [121,] 135 [(Aguiar)]; Medrazo, supra, 166 Cal.App.4th at
p. 101.)” (Aguirre, supra, 234 Cal.App.4th at p. 1300.)
“The goal in defining an ascertainable class ‘is to use terminology that will convey
“sufficient meaning to enable persons hearing it to determine whether they are members
of the class plaintiffs wish to represent.” [Citation.] “. . . Otherwise, it is not possible to
give adequate notice to class members or to determine after the litigation has concluded
who is barred from relitigating.” ’ (Global Minerals [& Metals Corp. v. Superior Court
(2003)] 113 Cal.App.4th [836,] 858].)” (Aguirre, supra, 234 Cal.App.4th at pp. 1300–
1301.) The representative plaintiff is not obligated, however, to “identify, much less
locate, individual class members to establish the existence of an ascertainable class.
[Citations.] Nor must the representative plaintiff establish a means for providing
personal notice of the action to individual class members. [Citation.]” (Ibid.)
“In determining whether a class is ascertainable, the trial court examines the class
definition, the size of the class and the means of identifying class members.” (Bufil v.
Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207 (Bufil).)
2. Application of principles
HealthPort conceded the “07” attorney request data set included all attorney
requests attaching release authorizations that California medical providers received and
forwarded for HealthPort to handle. The court found the data set was over-inclusive as a
means of identifying class members because “[s]ome of the requests [the data set
captured] may have been made prior to litigation that was filed, some after litigation was
filed, and some may have been made in contemplation of litigation . . . which actually
never was filed.” The data set also “will capture requests which . . . may not have
11
anything to do with contemplated litigation,” the court concluded. The only evidence
offered on this point was provided in the Rohs declaration.
Rohs stated: “Many, if not most attorney requests . . . do not contain any of the
information necessary to determine whether or not Section 1158 applies. . . . Requests by
attorneys almost never say anything about the timing of the request in relation to actual or
contemplated litigation, and usually do not indicate whether the request even relates to
litigation. HealthPort personnel are not tasked to determine whether the requests by
attorneys fall within the statutory requirements of Section 1158, and they do not have the
information needed to do so. HealthPort has no way to look into the ‘07’ data set and
determine which, if any, of the transactions there involved requests that met the
requirements of Section 1158. The ‘07’ data set also includes requests in which patients,
or the personal representatives of [patients], want copies of the patient records for their
own purposes, but communicate their request through their attorneys rather than doing so
themselves.”
This declaration does not provide evidence that the “07” data set includes many, or
even any, attorney requests made either after litigation was commenced or unrelated to
litigation. HealthPort conceded it had no evidence on this point at oral argument: “[T]he
07 data set is used for requests that come in from attorneys . . . . [T]he criteria for
[section] 1158 are . . . not disclosed in the requests that come in from attorneys, typically.
Specifically, the temporal connection, whether [the request is] before litigation . . .
whether it has any connection to contemplated litigation, all of that’s a factor. [¶] That
information is simply not provided in the request itself.”
The court’s finding that the “07” data set was over-inclusive, therefore, appears to
be pure speculation. Indeed, the fact that HealthPort characterizes the data set internally
as “attorney personal injury” requests suggests it expects attorneys submitting such
requests do so for the purpose of pursuing litigation. Consistent with this apparent
expectation, HealthPort notifies all attorneys whose requests it handles that section 1158
12
cost limitations will not apply if it makes and delivers the requested copies. Based on
HealthPort’s speculative assertions, the trial court concluded that the data set may include
requests not covered by section 1158. This mere possibility does not demonstrate that the
data set is over-inclusive.
But even assuming the attorney request data set does include some unknown
number of requests that were submitted after litigation was commenced (or after
defendants’ first appearance) or for reasons unrelated to litigation, this fact would not
defeat ascertainability. HealthPort argued, and the trial court concluded, that a class is
not ascertainable if the class members who are entitled to recover from the defendants
cannot be identified without an individualized inquiry. That is not, however, the standard
for determining whether a class is ascertainable. As noted, a class is properly defined in
terms of “objective characteristics and common transactional facts making the ultimate
identification of class members possible when that identification becomes necessary.”
(Hicks, supra, 89 Cal.App.4th at p. 915.) Plaintiff here has identified the class in terms of
objective characteristics, tracking the provisions of section 1158; if it is determined later
in the litigation that the “07” data set includes requests not made pursuant to
section 1158, “those [persons] can be eliminated from the class at that time.” (Aguiar,
supra, 144 Cal.App.4th at p. 136; see also, Sav–On, supra, 34 Cal.4th at p. 333 [“ ‘a class
action is not inappropriate simply because each member of the class may at some point
be required to make an individual showing as to his or her eligibility for recovery . . .’ ”];
Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 743 [class of all employees
in certain job categories ascertainable even though some employees may not have worked
overtime and thus may not be entitled to any recovery].) Nor should a court “decline to
certify a class simply because it is afraid that insurmountable problems may later appear
at the remedy stage.” (Reyes v. San Diego County Bd. of Supervisors (1987) 196
Cal.App.3d 1263, 1275.)
13
HealthPort acknowledges case law establishing that “certification is not defeated
by a subset of non-claimants in a class ascertainable from the defendant’s records.” But
it maintains that the class in this case is not ascertainable at all because HealthPort’s
records do not establish the timing or purpose of attorney requests. We disagree. The
attorney request data set sufficiently matches the class definition, with the exceptions
noted by HealthPort. At this stage of the litigation, for the reasons discussed above, it is
reasonable to infer that most of the requests included in the data set were submitted “prior
to litigation.”7 (See Aguiar, supra, 144 Cal.App.4th at p. 136; Rosack v. Volvo of
America Corp. (1982) 131 Cal.App.3d 741, 753–754.) HealthPort has presented no
reliable evidence to the contrary.
The cases that HealthPort cites on this point are distinguishable. Hale v. Sharp
Healthcare (2014) 232 Cal.App.4th 50, for example, affirmed an order decertifying a
class after nearly three years of litigation on the issue. There, the defendant was required
to develop a protocol to identify from its records the class of persons who “self-pa[id]”—
and were allegedly overcharged—for their emergency room treatment. Based upon the
results of that protocol, notice was sent to more than 120,000 patients as potential class
members. (Id. at p. 53.) After receiving responses, and taking discovery from some of
the putative class members, the defendant presented evidence that the protocol was not
successful in identifying the “self-pay” class members, nor in determining whether they
were overcharged. Defendant explained that there was no reliable way of ascertaining
the class without individual inquiry because a record marked “self-pay” was not updated
7
HealthPort acknowledges that requests are “prior to litigation” even if no related
litigation is later commenced. At least one appellate court also has suggested that an
attorney request intended to “create a medical history file for the patient’s information or
subsequent use” would be within the scope of section 1158, contrary to HealthPort’s
arguments in speculating about other purposes possibly motivating attorney requests.
(See National Football League, supra, 138 Cal.App.3d at p. 903.)
14
if the patient’s bill was actually paid by a third party. (Id. at p. 55.) Additionally, the
defendant presented evidence that common issues did not predominate because the
determination of whether rates charged to “self-pay” patients were higher than those
charged to insured patients would require the analysis of over 7,000 line items for the
procedures, services and goods provided to each patient, and then a comparison to the
myriad of reimbursement rates which, in turn, varied broadly because they were
“ ‘patient-specific, contract-specific, and plan-specific.’ ” (Id. at p. 65.) Accomplishing
the task would require the construction of additional databases and tens of thousands of
hours to review the patient notes sections of each patients file, and then make the
calculations. (Id. at pp. 65–66.) Therefore, the core question in Hale—whether
defendant charged “self-pay” patients more than it charged to insured patients—could not
be determined without an individualized assessment of each patient’s records.
Consequently, the court affirmed the trial court’s decertification of the class. (Id. at pp.
66–67.)8
Apart from the distinctive procedural posture of Hale—a motion for class
decertification after notice and discovery—it is distinguishable on its facts. There, it was
indisputably demonstrated that there was simply no way to avoid a complicated
individualized inquiry to determine not just eligibility for damages but to prove liability.
(Id. at pp. 54, 63–64.) Conversely, we find the Bufil case instructive. There, employees
of a check cashing chain brought meal and rest break claims. (Bufil, supra,
8
Miller v. Bank of America, N.A. (2013) 213 Cal.App.4th 1, which HealthPort
cited at oral argument, is also inapposite. There, this court affirmed an order denying
class certification because the definition of the proposed class exceeded the scope
authorized under the relevant statute, and plaintiff could not show—and did not even
attempt to show—that there was any means to identify a class of persons whose
transactions were within the statutory proscription. (Id. at pp. 7–9.)
15
162 Cal.App.4th at pp. 1196–1197.) The proposed class was defined as employees for
whom the defendant’s records depicted a meal period not taken because the employee
was the only person in the store or was the only person present except for a trainee. (Id.
at pp. 1201, 1203.) Although employees who missed a meal period could be identified
from the defendant’s records, employees who missed a rest period could not be identified
from the records. (Id. at pp. 1207–1208.)
Reversing the trial court’s denial of class certification on this basis, the Court of
Appeal concluded the class was ascertainable from the defendant’s records. (Bufil,
supra, 162 Cal.App.4th at p. 1207.) In doing so, the court rejected the defendant’s
“speculation” that an employee who missed a meal break nonetheless might have
received a rest break, observing “speculation that goes to the merits of ultimate recovery
[was] an inappropriate focus for the ascertainability inquiry.” (Id. at p. 1208; accord,
e.g., Lee, supra, 166 Cal.App.4th at p. 1336 [defendants records were adequate to
identify those who qualified for class membership; “appropriate exclusions can be
implemented at a later stage”]; Harper v. 24 Hour Fitness, Inc. (2008) 167 Cal.App.4th
966, 976 (Harper) [“the need to individually examine each member’s contract to
ultimately determine whether he or she qualifies for inclusion in the class does not . . .
demonstrate a lack of ascertainability or manageability”].)
We reach the same conclusion here. The potential class members may readily be
identified by reference to HealthPort’s attorney request data set. HealthPort’s speculation
that some included requesters may have sought records after filing a lawsuit or without
any thought of doing so—speculation that goes to the merits of each class member’s
recovery—was an inappropriate focus for the ascertainability inquiry.
The trial court also erred in finding that HealthPort’s attorney request data set did
not provide an adequate mechanism for identifying class members because it was under-
inclusive. The court stated that the data set did not capture class members who
authorized requests as a patient’s guardian, conservator, or personal representative,
16
apparently relying on the fact that it did not capture their names.9 It is undisputed,
however, that the data set does include all such requests, and contains other relevant
information such as patient names, and the names and contact information for the
attorney requesters. The primary purpose of ascertainability is to provide notice to all
potential class members. (Hicks, supra, 89 Cal.App.4th at p. 914.) HealthPort’s “07”
data set contains sufficient information for identifying this subset of class members and,
therefore, does not defeat ascertainability.
“It is firmly established a plaintiff is not required at this stage of the proceedings
to establish the . . . identity of class members.” (Reyes, supra, 196 Cal.App.3d at
p. 1274.) “ ‘A class is ascertainable if it identifies a group of unnamed plaintiffs by
describing a set of common characteristics sufficient to allow a member of that group to
identify himself or herself as having a right to recover based on the description.’
[Citations.]” (Aguirre, supra, 234 Cal.App.4th at pp. 1299–1300.) Even if “class
members are unidentifiable” at the class certification stage, this would “not preclude a
complete determination of the issues affecting the class.” (Daar v. Yellow Cab Co.
(1967) 67 Cal.2d 695, 706.)
The trial court itself rejected HealthPort’s argument that it would be difficult to
provide notice to those class members for whom it lacked names, concluding “there may
be other means to contact them, such as various forms of publication.” In doing so, it
cited plaintiff’s reply brief supporting the motion for class certification, which suggested
alternatives including combining direct mail to patients’ attorneys (whose contact
information HealthPort has) with publication of notice (an alternative defense counsel
had supported in representing HealthPort’s predecessor in another action). HealthPort
does not suggest this method would be ineffective.
9
See fn. 6, above, at p. 8.
17
We, accordingly, conclude that the court erred as a matter of law in finding the
proposed class was not ascertainable.
D. Community of Interests
1. Legal Principles
To obtain class certification, the party advocating class treatment also must
demonstrate a “well-defined community of interest among the class members.” (Linder,
supra, 23 Cal.4th at p. 435.) This requirement “ ‘ “embodies three factors:
(1) predominant common questions of law or fact; (2) class representatives with claims or
defenses typical of the class; and (3) class representatives who can adequately represent
the class.” ’ [Citations.]” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004, 1021 (Brinker).)
“The ‘ultimate question’ the element of predominance presents is whether ‘the
issues which may be jointly tried, when compared with those requiring separate
adjudication, are so numerous or substantial that the maintenance of a class action would
be advantageous to the judicial process and to the litigants.’ [Citations.] The answer
hinges on ‘whether the theory of recovery advanced by the proponents of certification is,
as an analytical matter, likely to prove amenable to class treatment.’ [Citation.]”
(Brinker, supra, 53 Cal.4th at p. 1021.) A theory of liability that a defendant has “a
uniform policy . . . [that] allegedly violates the law . . . is by its nature a common
question eminently suited for class treatment.” (Id. at p. 1033.)
2. Application of Principles
The trial court denied class certification on the additional ground that common
questions did not predominate; it concluded “difficulties in identifying which [attorney]
requests were made ‘prior to litigation’ present[ed] individual issues” that “would
overwhelm the common issues.” Again, we must disagree. The predominance of
common questions requirement is patently satisfied here. Plaintiff presented evidence at
the class certification hearing, and HealthPort conceded that, as a “release-of-
18
information” service provider to Saint Francis and others, it has a uniform practice of
informing requesting attorneys it will copy records but will charge them $0.25 per page
for copying (and other fees). The common class question is whether this practice violates
section 1158—which places limits on the copying and other fees that may be charged—
insofar as the practice applied to attorney requests “prior to litigation.” In other words,
the common goal of the entire class is to adjudicate whether HealthPort is improperly
charging attorneys requesting copies of patient medical records before litigation more
than the amounts specified in section 1158.
It is well established that “ ‘[p]redominance is a comparative concept, and “the
necessity for class members to individually establish eligibility and damages does not
mean individual fact questions predominate.” ’ ” (Medrazo, supra, 166 Cal.App.4th at
pp. 99–100, quoting Sav-On, supra, 34 Cal.4th at p. 334; accord Collins v. Rocha (1972)
7 Cal.3d 232, 238 [“that each class member might be required ultimately to justify an
individual claim does not necessarily preclude the maintenance of a class action”]; and
see Reyes, supra, 196 Cal.App.3d at p. 1278 [“it is firmly established that ‘a class action
is not inappropriate simply because each member of the class may at some point be
required to make an individual showing as to his or her eligibility for recovery’ ”].)
“The relevant comparison lies between the costs and benefits of adjudicating
plaintiffs’ claims in a class action and the costs and benefits of proceeding by numerous
separate actions—not between the complexity of a class suit that must accommodate
some individualized inquiries and the absence of any remedial proceeding whatsoever.”
(Sav-On, supra, 34 Cal.4th at p. 339, fn. 10.) As the California Supreme Court has
recognized, class actions eliminate “ ‘ “the possibility of repetitious litigation and
provide[] small claimants with a method of obtaining redress for claims which would
otherwise be too small to warrant individual litigation.” ’ ” (Id. at p. 340, quoting
Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 469.) “[T]he possibility that a
defendant may be able to defeat the showing of an element of a cause of action ‘ “as to a
19
few individual class members[,] does not transform the common question into a
multitude of individual ones.” ’ [Citation.]” (Weinstat v. Dentsply Internat., Inc. (2010)
180 Cal.App.4th 1213, 1235.)
The common question here is the application of section 1158 to HealthPort’s
uniform practices in response to attorney requests for medical records. The fact that each
class member ultimately may be required to establish his or her records request was
submitted before or in contemplation of litigation does not overwhelm the common
question regarding those uniform copying practices. The trial court erred in ruling
otherwise.10
E. Saint Francis
As a final reason for its decision to deny class certification, the trial court
questioned the propriety of including Saint Francis in the action, observing that the
proposed class also would extend to those who requested records of other California
medical providers. Deeming the class definition “ambiguous with respect to the role of
[Saint] Francis,” the court expressed uncertainty about the theory upon which “the class
as a whole if certified would be entitled to recover against [Saint] Francis.” In the class
10
We do not reach HealthPort’s related but distinct argument that the trial court’s
ruling should be affirmed because plaintiff did not present a plan for managing individual
showings as to eligibility for recovery (i.e., a procedure for proving class members
requested records “prior to litigation”). (See, e.g., Duran v. U.S. Bank Nat. Assn. (2014)
59 Cal.4th 1, 28–29 (Duran).) As HealthPort itself acknowledges, the trial court did not
cite this consideration in its ruling, and “we are constrained by the reasons set forth by
the court for denying certification.” (Bufil, supra, 162 Cal.App.4th at p. 1206.) Nor do
we anticipate manageability would be a significant issue in this case. Determining
whether individual class members requested records before litigation would not appear to
require an involved procedure or a complex analysis. (See Sav-On, supra, 34 Cal.4th at
p. 339 [“For decades, ‘[t]his court has urged trial courts to be procedurally innovative’
[citation] in managing class actions”]; compare Duran, supra, 59 Cal.4th at p. 28 [“class
treatment is not appropriate ‘if every member of the alleged class would be required to
litigate numerous and substantial questions determining his individual right to recover
following the “class judgment” on common issues’ ”], italics added.)
20
certification hearing, the court remarked, “I don’t know why we have Saint Francis in the
case at all. Maybe Saint Francis isn’t necessary.” “[H]ow are we going to manage
[damages],” it continued. “Saint Francis is not surely going to be jointly and severally
liable with respect to the whole class?”
The trial court thus appeared to conclude that plaintiff’s joinder of Saint Francis
created an ascertainability problem distinct from the one discussed above, i.e., that class
members would have to present a separate claim against Saint Francis. We do not agree
that the inclusion of Saint Francis as a defendant presented an ascertainability problem.
A court may deny certification on ascertainability grounds, finding a class
definition overbroad, if there is substantial evidence that a significant part of the putative
class is ineligible to recover against any defendant under any theory alleged in the
complaint. (Thompson v. Automobile Club of Southern California (2013)
217 Cal.App.4th 719, 729–730.) Such a finding, however, is not supported by the mere
fact that each class member cannot pursue his or her claims against all defendants.
Vasquez v. Superior Court (1971) 4 Cal.3d 800, 805, is a case in point. The California
Supreme Court concluded the complaint in that action alleged an ascertainable class,
even though each class member had claims both against a single seller and also against
one of three finance companies to whom the seller had assigned the class member’s
contract. (Id. at pp. 805, 810–811, 815; see, e.g., B.W.I. Custom Kitchen v. Owens-
Illinois, Inc. (1987) 191 Cal.App.3d 1341, 1345–1346 (B.W.I. Custom Kitchen)
[reversing denial of class certification in action by California businesses that indirectly
purchased glass containers from any one of numerous corporate defendants].) Similarly,
in this case, the class definition includes all those whose attorney requests HealthPort
processed under contract with a California medical provider. Each class member
arguably will have a claim against HealthPort and also the individual medical provider
that held its records. The class definition is not limited to Saint Francis patients.
21
The court did not question the viability of plaintiff’s claims against Saint Francis.
Although plaintiff did not also join other California medical providers who contracted
with HealthPort, there has been no suggestion she was obligated to do so. “ ‘ “It has long
been the rule that it is not necessary for all joint tortfeasors to be named as defendants in
a single lawsuit.” ’ [Citations.]” (Van Zant v. Apple Inc. (2014) 229 Cal.App.4th 965,
979.)11
The court also appears to have been concerned about the possibility that Saint
Francis might be held responsible, at the damages stage, for HealthPort’s alleged
overcharging for providing copies of records held by other California medical providers.
We agree with plaintiff, however, that this is not a reason to deny class certification. “It
has been repeatedly held . . . that the presence of individual damage issues cannot bar
certification.” (B.W.I. Custom Kitchen, supra, 191 Cal.App.3d 1341, 1354 [to deny class
certification “ ‘on the issue of damages . . . may well be effectively to sound the death-
knell of the class action device’ ”].)
“ ‘[I]n most circumstances a court can devise remedial procedures which channel
the individual [damage] determinations that need to be made through existing forums.’
[Citation.] A bifurcated trial, subclasses, and other methods may be employed to
simplify the proceedings.” (B.W.I. Custom Kitchens, supra, 191 Cal.App.3d at p. 1354.)
At the class certification stage, however, it is not necessary to determine the appropriate
method for resolving such questions, as they may wait “until the class-wide issues have
been determined.” (Ibid.; accord In re Cipro Cases I and II (2004) 121 Cal.App.4th 402,
417 [antitrust class action against original and generic manufacturers of antibiotic drug].)
11
As one may not recover twice for the same injury (see, e.g., Renda v. Nevarez
(2014) 223 Cal.App.4th 1231, 1237 & fn. 4), plaintiff’s theory appears to be that
HealthPort and each medical provider are jointly liable for each instance of alleged
overcharging.
22
III. DISPOSITION
The order denying class certification is reversed and the matter is remanded with
directions to grant the motion for class certification. Plaintiff shall recover costs incurred
on appeal.
_________________________
Rivera, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
23
Filed 10/6/2016
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
KRISTEN NICODEMUS et al., A141500
Plaintiffs and Appellants, (S.F. City & County
v. Super. Ct. No. CGC-13-531076)
SAINT FRANCIS MEMORIAL ORDER GRANTING REQUEST FOR
HOSPITAL et al., PUBLICATION, MODIFYING
Defendants and Respondents. OPINION, AND DENYING
PETITION FOR REHEARING
THE COURT:12
Good cause appearing, Plaintiff and Appellant Kristen Nicodemus’ request to
publish this Court’s September 14, 2016 opinion is granted as modified by the following:
On page 2, first paragraph under section I(A)—
Replace the first sentence with the following (outside quotes not to be
included): “Section 1158 is designed to require medical providers to produce
the medical records demanded by patients through their attorneys prior to
litigation in a timely fashion and at a reasonable cost.”
On page 12, second full paragraph, sentence beginning with “HealthPort
conceded”—
Replace the words “it had no evidence on this point at oral argument:” with “at
oral argument that the data set did not track the timing of requests:”
12
Ruvolo, P.J., Reardon, J., and Rivera, J., participated in this decision.
1
On page 13, first full paragraph, second sentence beginning with “As noted,”—
Remove text reading “a class is properly defined in terms of ‘objective
characteristics and common transactional facts making the ultimate
identification of class members possible when that identification becomes
necessary.’ (Hicks, supra, 89 Cal.App.4th at p. 915.)” and,
Replace the stricken portion with the following quotation and citation:
“[a]scertainability is required in order to give notice to putative class members
as to whom the judgment in the action will be res judicata. [Citations.] . . . As
long as the potential class members may be identified without unreasonable
expense or time and given notice of the litigation, and the proposed class
definition offers an objective means of identifying those persons who will be
bound by the results of the litigation, the ascertainability requirement is met.”
(Medrazo, supra, 166 Cal.App.4th at p. 101.)
On page 16, first full paragraph, citation following the second sentence reading
“(Id. at p. 1208; accord, e.g.,”—
Remove the following language: “Lee, supra, 166 Cal.App.4th at p. 1336
[defendants records were adequate to identify those who qualified for class
membership; “appropriate exclusions can be implemented at a later stage”];”
and
Replace stricken portion with the following (outside quotes not to be included):
“Medrazo, supra, 166 Cal.App.4th at p. 101 [defendant’s sales records offered
an objective means of identifying potential class members, and plaintiff’s
inability at the class certification stage to identify precisely which buyers
qualified as class members was “irrelevant”];”
On page 17, first full paragraph, after the citation reading “(Aguirre, supra, 234
Cal.App.4th at pp. 1299–1300.)”—
Insert a footnote with the following language (outside quotes not to be
included): “We reject defendants’ argument that potential class members
would not be able to self-identify because they would not themselves have
personal knowledge whether their attorneys requested their medical records
before litigation. We think it likely many clients would recall the juncture at
which they signed the medical release form; additionally, we expect they could
ascertain the timing of the request by consulting their attorneys or any
litigation records they retained. It is also possible that notice might be mailed
directly to attorneys who presumably would be able to determine this point for
their clients.”
2
Defendants and Respondents Saint Francis Memorial Hospital et al.’s petition for
rehearing, filed on September 29, 2016, is denied for lack of good cause.
There is no change in judgment.
Dated: _________________ _____________________________, P.J.
3
Nicodemus et al. v. Saint Francis Memorial Hospital et al. (A141500)
Trial Court: City & County of San Francisco
Trial Judge: Hon. Curtis E.A. Karnow
Counsel for Plaintiffs & Andrus Anderson LLP, Lori E. Andrus; Hersh &
Appellants: Hersh, P.C., Mark E. Burton
Counsel for Defendants & Woollacott PLC, Jay Woollacott;
Respondents:
4