JOHNATHAN SLONE, M.D., Plaintiff and Appellant, v. EL CENTRO REGIONAL MEDICAL CENTER, Defendant and Respondent.
D082341
(Super. Ct. No. ECU000797)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
October 28, 2024
L. Brooks Anderholt, Judge. Affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Law Offices of David A. Kaufman and David A. Kaufman for Plaintiff and Appellant.
Buchalter, Carol A. Salmacia and David M. Balfour for Defendant and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Slone began working as a general surgeon at Center, a hospital located in El Centro, on a locum tenens basis.2 Although Slone was not a board-certified surgeon, Center allowed him to work there as a surgeon.3 In January 2015, Center granted Slone full staff privileges to work as a general surgeon “in accordance with the medical staff bylaws, rules and regulations.”
In April 2016, Slone became an employee of the Imperial Valley Multi-Specialty Medical Group (IVMSMG), which Dr. Theodore Affue, Center‘s former chief of surgery, had formed, receiving a salary of $260,000 per year for 40 hours of work per week. In May, Slone entered into a contract on behalf of IVMSMG with Community Care IPA (IPA) to provide healthcare administrative services as its medical director. His IPA compensation was paid directly to IVMSMG. Slone had a residence in San Diego and provided administrative services to IPA from there on Fridays and Mondays. He also had a residence in El Centro and from there he provided surgical and clinical services to IVMSMG and administrative services to IPA on Tuesdays, Wednesdays, and Thursdays.
In September 2016, Slone applied to renew his privileges to work at Center and it renewed his privileges in December.4
In April 2017, Slone entered into another contract to provide healthcare administrative services to IPA as its medical director, but did so on behalf of
On July 17, Center mailed a letter to Slone, notifying him of the department of surgery‘s rule 3.2, which requires members to become board-certified within five years or, alternatively, to have had privileges at an accredited hospital for at least 10 years. The letter granted Slone until July 2020 to become board-certified.
On July 19, Slone told IPA to send its checks directly to him (presumably to USGI), rather than to IVMSMG. On the morning of July 20, Slone cancelled his surgeries that had been rescheduled to that afternoon because he would instead be tying up a full-time position as IPA‘s medical director then. That afternoon, Slone sent Affue his letter of resignation from IVMSMG, citing “many reasons, primarily financial and recent proceedings taking place at [Center] that will inevitably cause me to lose my privileges [i.e., its requirement for his future board certification].” In late July or early August, Slone began working for IPA as its full-time medical director. Thereafter, he did not perform any surgeries.
On about September 7, Center sent Slone a letter suspending his privileges for his failure to sign off on certain patients’ medical records and apparently stating that he had 90 days to sign the records or his suspension would become a voluntary resignation of his privileges. On December 18, Center sent Slone a letter stating that his suspension would continue and his failure to complete medical records within 90 days after his suspension would be deemed to be a voluntary resignation of his staff privileges. Slone did not sign off on the medical records in question. In March 2018, Center sent Slone a letter stating that his suspension had become a voluntary resignation of his privileges.
In February 2021, Slone filed his operative fourth amended complaint against Center, alleging four causes of action. His first cause of action alleged that Center violated
I
Section 1278.5 Generally
In 1999, the Legislature enacted
II
Doctrine of Implied Findings
Slone contends that the doctrine of implied findings does not apply to support the judgment because he filed objections to the PSOD on the grounds that it did not address certain principal or material controverted issues and/or was ambiguous in its findings on those issues.
A
As discussed above, after the trial court announced its tentative decision, Slone requested a statement of decision on certain issues that he asserted were principal controverted issues. In particular, he requested a finding on whether Center took any adverse action against him because of his lodging of complaints, reports, or grievances to Center regarding the quality of patient
Slone filed objections to the PSOD, asserting that it failed to make findings on or resolve principal controverted issues, failed to explain the factual and legal basis for its findings, and/or was ambiguous in its findings. In particular, Slone asserted that the PSOD omitted findings on his specific allegations of retaliation by Center, but, in so doing, he primarily cited evidence and/or inferences favorable to him that would support findings contrary to the PSOD‘s proposed findings on those allegations. Likewise, Slone‘s objections to the other proposed findings in the PSOD cited evidence that would support contrary findings and did not specify any omissions in the PSOD‘s findings on principal controverted issues.
In its FSOD, the trial court stated that it had considered all of Slone‘s objections to the PSOD. The FSOD then set forth the court‘s findings on the ultimate facts and material issues in the case. First, the court found that Slone had presented a grievance, complaint, or report to Center within the meaning of
In the FSOD‘s sixth finding, the court found that, assuming Center had unlawfully retaliated against Slone, he had not suffered any economic damages. In so finding, the court stated:
“Testimony of [Slone] about [the April 3, 2017 contract with IPA] and the next few months, including leaving [his] surgery practice with [Center] was less than credible. [Slone] abandoned
several patients on the day they were scheduled for surgery (July 20, 2017) without explanation. He did not return at all to the hospital. . . . [Slone] intended to leave surgical practice and give up his privileges with [Center] to pursue a career as a medical administrator. The timing of the 2017 contract, which was prior to most of the alleged adverse actions, leads this Court to the conclusion that [Slone] already intended to make the career change; and the abandonment of patients literally waiting to be admitted for surgery and no evidence of any future patients substantiates this finding and conclusion.”
The court further found: “[Slone] confirmed an agreement the day before [his July 20, 2017 resignation from IVMSMG] on July 19, 2017, to go to work for an IPA. This agreement precluded doing any surgeries. [Slone‘s] intent was to change employment to the IPA instead of continuing to develop his practice as a surgeon.” The court also found that the opinions of Slone‘s expert on his economic damages were “speculative.”
Finally, in the FSOD‘s seventh finding, the court found that, assuming Center had unlawfully retaliated against Slone, he had not suffered any noneconomic damages. In particular, the court found: “There was no compelling evidence [Slone] suffered any emotional distress as a result of his claim [Center] retaliated against him. [¶] [Slone] testified he loves his work at the IPA and it is financially beneficial.” Following issuance of its FSOD, the trial court entered judgment in favor of Center and against Slone.
B
Under
“When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue.”
“The clear implication of [
A trial court‘s statement of decision “is sufficient if it fairly discloses the court‘s determination as to the ultimate facts and material issues in the case.” (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380.) “[A] trial court is not required to make an express finding of fact on every factual matter controverted at trial, where the statement of decision sufficiently disposes of all the basic issues in the case.” (Bauer v. Bauer (1996) 46 Cal.App.4th 1106, 1118; see also, Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1314, fn. 12 [” ‘[T]he trial court is not required to respond point by point to issues posed in a request for a statement of decision.’ “].) In this context, “the term ‘ultimate fact’ generally refers to a core fact, such as an essential element of a claim.” (Central Vally General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) Accordingly, “[a] trial court is not required to make findings with regard to detailed evidentiary facts or to make minute findings as to individual items of evidence.” (Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co. (1988) 200 Cal.App.3d 1518, 1525.)
C
In his appellant‘s opening brief, Slone argues that the doctrine of implied findings does not apply to support the judgment because he sufficiently objected to the PSOD‘s proposed findings as omitting determinations on principal controverted issues and/or making ambiguous determinations on issues. However, Slone‘s argument is conclusory and fails to cite any specific
“In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record. Rather than scour the record unguided, we may decide that the appellant has waived a point urged on appeal when it is not supported by accurate citations to the record. [Citations.] Similarly, we may disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt. [Citation.]” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287 (City of Santa Maria); see also, Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Furthermore, an appellant waives or forfeits contentions that are not supported by citations to relevant portions of the record. (Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 391.) Because Slone‘s argument is conclusory and he fails to cite to specific portions of the record showing that there were any specific omissions from, or ambiguities in, the FSOD‘s findings, we conclude Slone has waived or forfeited any contention that the FSOD was deficient and therefore precludes the application of the doctrine of implied findings. (Ibid.)
In any event, we further conclude that by not citing to specific portions of the record and/or citing specific objections that he asserted were omissions from, or ambiguities in, the PSOD and/or FSOD on specific principal controverted issues, Slone has not carried his burden on appeal to show the purported error. On appeal, a judgment is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To demonstrate error, the appellant must present a cogent argument supported by legal analysis and relevant citations to the record. (City of Santa Maria, supra, 211 Cal.App.4th at pp. 286-287.) Slone has not carried his burden to show the trial court‘s FSOD omitted any findings, or made ambiguous findings, on any specific principal controverted issue, which would preclude the application of the doctrine of implied findings on that specific issue. Rather, based on our review of the record, it appears that Slone‘s “objections” to the PSOD simply cited evidence that would have supported contrary findings and, in so doing, improperly disagreed with its proposed findings. (Duarte Nursery, Inc., supra, 239 Cal.App.4th at pp. 1012-1013.) Accordingly, we reject his contention that the doctrine of implied findings does not apply to support the judgment.
III
Substantial Evidence to Support Judgment
Slone contends that substantial evidence does not support the judgment and the court‘s underlying findings. However, in so arguing, he primarily, if not exclusively, cites evidence and inferences favorable to him.
A
When an appellant contends there is insufficient evidence to support a finding of fact, we apply the substantial evidence standard of review. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581Grainger v. Antoyan (1957) 48 Cal.2d 805, 807 (Grainger), italics omitted.) In so doing, we accept all evidence that supports the judgment, disregard contrary evidence, and draw all reasonable inferences to uphold the judgment. (Harley-Davidson, Inc. v. Franchise Tax Bd. (2015) 237 Cal.App.4th 193, 213 (Harley-Davidson, Inc.).) “It is not our role to reweigh the evidence, redetermine the credibility of the witnesses, or resolve conflicts in the testimony, and we will not disturb the judgment if there is evidence to support it.” (Ibid.)
In every appeal, the appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 739; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) “Further, the burden to provide a fair summary of the evidence ‘grows with the complexity of the record. [Citation.]’ ” (Boeken, at p. 1658, citing Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.) To meet its burden on appeal to show a finding of fact is not supported by substantial evidence, appellants cannot recite only evidence in their favor, but must ” ‘set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark Corp.).)
When an appellant‘s opening brief states only the favorable facts, ignoring evidence favorable to respondent, the appellate court may treat the
B
Analysis. Our review of the statement of facts in the appellant‘s opening brief filed by Slone shows that he consistently cited facts and evidence in his favor and omitted material evidence favorable to Center that supported the judgment. Importantly, Slone‘s statement of facts includes an extensive, “one-sided” discussion of evidence supporting his theory that Center took adverse actions in retaliation against him for reporting health care safety issues, which discussion, on its face, is an argument more appropriately addressed to a trier of fact than to an appellate court. In particular, he cited evidence that supported his theory that Gwon cancelled or restricted his operating room block time in retaliation for his complaints, asserting she arbitrarily restricted and obstructed his block time. His statement of facts rejected Gwon‘s trial testimony that she was not involved in the actual allocation or reallocation of operating room block time, asserting her testimony that she only made recommendations based on utilization was “misleading and inaccurate.” He also asserted that Gwon restricted his use of the surgical robot to only twice a month “with no plausible reason given.” His statement of facts also presented a skewed version of the evidence regarding the cancellation of the surgeries he had scheduled for “July 18” [sic] (presumably July 20), 2017. He states that his surgeries had been scheduled for that morning, but were changed to the afternoon in retaliation against him. He asserts he did not abandon his patients, but he simply could not perform their surgeries in the afternoon because of his IPA obligations. He then characterized as “unbelievable” the testimony of Christian Tomaszewski, Center‘s chief medical officer, that he had tried to “chase down” Slone after the rescheduling but Slone‘s office was “shuttered.”
While stating “facts” almost exclusively in his favor, Slone‘s statement of facts in his appellant‘s opening brief also omitted material evidence favorable
In summary, based on our review of the record on appeal, we conclude that Slone‘s statement of facts in his appellant‘s opening brief did not fairly state the material evidence in this case. As shown by the specific examples discussed above, his statement of facts consistently cited evidence in his favor and omitted material evidence favorable to Center that supported the judgment in its favor. Based on his failure to include a proper statement of facts in his appellant‘s opening brief, we conclude Slone has waived or forfeited all of his insufficiency of the evidence contentions, including his contentions that substantial evidence does not support the trial court‘s findings that: (1) Center had not retaliated against him in violation of
Assuming arguendo Slone has not waived or forfeited his substantial evidence contentions based on his improper statement of facts as concluded above, we nevertheless conclude he has failed to carry his burden on appeal to show the evidence, including all reasonable inferences therefrom, favorable to the trial court‘s findings and judgment is insubstantial. Slone simply cites evidence, and inferences therefrom, in support of his position and, based thereon, makes arguments more appropriately addressed to a trier of fact than to an appellate court. Slone cannot carry his burden on appeal by merely rearguing the “facts” as he would have them and/or reasserting his position at trial. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531; Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 687.) Such a “factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to [appellants] at the trial level, contrary to established precepts of appellate review. As such, it is doomed to fail.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.)
Furthermore, in his appellant‘s opening brief, Slone inappropriately argues, among other things, that the trial court‘s finding of no retaliation by Center “was [a]gainst the [s]ubstantial [e]vidence,” and that he “has shown by way of the substantial evidence introduced at trial that [Center] engaged in a sequence of retaliatory actions.” His argument reflects a fundamental misunderstanding of the substantial evidence standard of review on appeal. As discussed above, in applying the substantial evidence standard of review, we determine whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. (Grainger, supra, 48 Cal.2d at p. 807.) We accept all evidence that supports the judgment, disregard contrary evidence, and draw all reasonable inferences to uphold the judgment. (Harley-Davidson, Inc., supra, 237 Cal.App.4th at p. 213.)
Therefore, Slone does not carry his burden on appeal by merely arguing that there was substantial evidence that could have supported a finding in his favor, rather than arguing that there was insufficient evidence to support the finding in Center‘s favor.5
In particular, Slone does not show there is insufficient evidence to support the trial court‘s finding that Center did not retaliate against him because of his complaints to it regarding health care safety. Rather, as Center argues, there is substantial evidence to support the court‘s findings that it did not retaliate against Slone and that he voluntarily resigned from IVMSMG and left his surgical practice to become the full-time medical director of IPA. In its FSOD, the court first found that Slone had complained to Center about patient safety issues within the meaning of
Regarding Center‘s July 17, 2017 letter granting him until July 2020 to become board-certified, the court found that the letter could not be construed as an adverse action, because it could be considered merely a “single threat of an adverse action to be taken in the future and, as such, it is not actionable.” The court noted that Slone had three years to resolve the board certification issue and never lost his hospital privileges as a result of the letter. Furthermore, the letter attached a copy of an excerpt from the rules and regulations of Center‘s department of surgery, which expressly required that its members become board-certified. Based on that evidence, we conclude there is substantial evidence to support the court‘s finding that the July 17, 2017 letter did not constitute retaliatory action by Center for Slone‘s complaints regarding patient safety.
Regarding the September 7, 2017 suspension of Slone‘s privileges, the court discussed the evidence showing that Slone had not signed off or otherwise completed certain patient records despite Center‘s repeated requests that he do so. Erica Whannel, a Center managerial employee who contacted physicians for completion of patients’ medical records, testified that she had contacted Slone numerous times after July 20, 2017, regarding his need to sign off on patient records. She further testified that Slone could have accessed those medical records electronically and signed off on them, but he did not do so. The court also found that Center‘s suspension of Slone‘s privileges could not be retaliation for his complaints because he previously had voluntarily separated from Center on July 20, 2017, when he left to become IPA‘s full-time medical director. Based on that evidence, we conclude there is substantial evidence to support the court‘s finding that Center‘s suspension of Slone‘s privileges on September 7, 2017, did not constitute retaliatory action by it for Slone‘s complaints regarding patient safety.
Regarding Center‘s position that Slone had voluntarily resigned his staff privileges as of March 2018, the court discussed Center‘s bylaws, which stated that 90 days after a physician has been suspended for failure to complete medical records, the physician is deemed to have voluntarily resigned his or her staff privileges. Because Center‘s suspension of Slone‘s privileges was not retaliatory and the evidence shows he failed to complete medical records, we conclude there is substantial evidence to support the court‘s finding that pursuant to Center‘s bylaws Slone was deemed to have voluntarily resigned his privileges and therefore that automatic resignation was not in retaliation for his complaints about patient safety.
Based on our review of the record, we conclude that substantial evidence supports the court‘s finding that Center did not discriminate or retaliate against Slone because of his complaints about health care safety in violation of
Given our conclusion that substantial evidence supports the trial court‘s finding that Center did not discriminate or retaliate against Slone because of his complaints about health care safety, Slone has failed to carry his burden on appeal to show that substantial evidence does not support the court‘s finding on that essential element of his
DISPOSITION
The judgment is affirmed. Respondent to recover its costs on appeal.
HUFFMAN, J.
WE CONCUR:
MCCONNELL, P. J.
KELETY, J.