1 2 3 4 5 6 7 8 9 10 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 11 Teresa C. Chow, Bar No. 237694 tchow@bakerlaw.com BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: 310.820.8800 Facsimile: 310.820.8859 Matthew D. Pearson, Bar No. 294302 mpearson@bakerlaw.com BAKER & HOSTETLER LLP 1801 California Street, Suite 4400 Denver, CO 80202-2662 Telephone: 303.861.0600 Facsimile: 303.861.7805 Attorneys for Defendants SHARP HEALTHCARE and GROSSMONT HOSPITAL CORPORATION, dba SHARP GROSSMONT HOSPITAL (erroneously sued as SHARP GROSSMONT HOSPITAL) 12 SUPERIOR COURT OF CALIFORNIA 13 COUNTY OF SAN DIEGO – CENTRAL DIVISION 14 15 16 CARLA JONES, on behalf of herself and all others similarly situated, 17 18 19 Case 37-2017-00001377-CU-NP-CTL [Judge Ronald L. Styn] DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Plaintiff, v. 20 SHARP HEALTHCARE, a California Corporation, SHARP GROSSMONT HOSPITAL, and DOES 1 – 100, inclusive, 21 Defendants. [Filed concurrently with Lewis, LaBore, Cone, Hamel, O’Brien, M.D., and Chow Declarations] 22 Date: Time: Dept.: March 9, 2018 8:30 a.m. 74 23 Action Filed: January 12, 2017 24 25 Defendants Sharp Healthcare and Grossmont Hospital Corporation dba Sharp Grossmont 26 Hospital, erroneously sued as Sharp Grossmont Hospital, (collectively referred to as “Sharp”) 27 hereby submit their Opposition to Plaintiff Carla Jones’ (“Plaintiff”) Motion for Class 28 Certification (“Motion”). DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL TABLE OF CONTENTS 1 2 I. INTRODUCTION ...............................................................................................................1 II. STATEMENT OF FACTS ..................................................................................................2 3 4 A. Sharp Grossmont Hospital and Sharp Healthcare ............................................ 2 B. Sharp’s Investigation into Missing Propofol. ................................................. 2 C. Plaintiff’s Procedure and Recording. ............................................................ 3 D. Sharp’s Deletion of Pre-February 2013 Videos .............................................. 3 5 6 7 8 III. PROCEDURAL HISTORY.................................................................................................4 IV. CLASS CERTIFICATION STANDARD ...........................................................................4 V. ARGUMENT .......................................................................................................................5 9 10 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 11 12 A. The Class Is Overbroad, And Plaintiff Has Failed to Provide A Feasible Method to Exclude Claimless Class Members From The Definition. ................. 5 13 1. Plaintiff’s Causes of Action Require Proof Of Recording...........................5 14 2. Not Every Class Member Was Recorded. ...................................................7 15 3. Plaintiff Fails To Offer An Administratively Feasible Way To Identify Class Members Who Have Claims.................................................8 16 B. 17 The Class Lacks a Well Defined Community of Interested............................. 11 1. Individual Issues Predominate. ..................................................................11 18 Individual Issue No. 1: Severity of Invasion .............................................12 19 Individual Issue No. 2: Enforceability of Admission Agreement..............14 20 Individual Issue No. 3: Damages ...............................................................16 21 2. 22 23 VI. The Benefits, If Any, of Class Treatment Are Outweighed By The Inevitability of Mini-Trials. .......................................................................19 CONCLUSION ..................................................................................................................20 24 25 26 27 28 i DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 TABLE OF AUTHORITIES 2 Page(s) 3 4 Cases 5 Atl. Nat. Ins. Co. v. Armstrong (1966) 65 Cal. 2d 100 ..............................................................................................................16 6 7 8 9 10 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Baugh v. CBS, Inc. (N.D. Cal. 1993) 828 F.Supp. 745 ...........................................................................................15 Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347 ....................................................................................................17 Beynon v. Garden Grove Med. Grp. (1980) 100 Cal.App.3d 698 .....................................................................................................16 Brown v. Regents of University of California (1984) 151 Cal.App.3d 982 ...............................................................................................11, 17 City of San Jose v. Superior Court (1974) 12 Cal.3d 447 ...................................................................................................11, 12, 13 Collins v. Rocha (1972) 7 Cal.3d 232 ...................................................................................................................5 In re Copper Antitrust Litigation (W.D. Wis. 2000) 196 F.R.D. 348 .............................................................................................5 D.C. by and through Garter v. County of San Diego (S.D. Cal., Nov. 7, 2017, No. 15CV1868-MMA (NLS)) 2017 WL 5177028 .............17, 18, 19 Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 ...............................................................................................................11 Fuhrman v. California Satellite Sys. (Ct. App. 1986) 179 Cal.App.3d 408 .......................................................................................17 Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524 ....................................................................................................8 Global Minerals & Metals Corp. v. Sup. Crt. (2003) 113 Cal.App.4th 836 ......................................................................................................5 Graham v. Scissor-Tail, Inc. (1981) 28 Cal. 3d 807 ..............................................................................................................16 Hale v. Sharp Healthcare (2014) 232 Cal.App.4th 50 ............................................................................................8, 10, 11 ii DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 2 3 4 5 6 7 8 9 10 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 11 12 13 14 15 16 Hill v. Nat’l Collegiate Athletic Assn., (1994) 7 Cal.4th 1, 26, 37, 38 .......................................................................................6, 12, 14 Kendall v. Scripps Health (2017) 16 Cal.App.5th 553, 574 ................................................................................................5 Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238 ....................................................................................................13 Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325 ..............................................................................................5, 19 Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429 ................................................................................................................4 Lockheed Martin Corp. v. Sup. Crt. (2003) 29 Cal.4th 1096 ..............................................................................................................5 Marler v. E.M. Johansing, LLC (2011) 199 Cal.App.4th 1450 ....................................................................................................5 Newell v. State Farm Gen. Ins. Co. (2004) 118 Cal.App.4th 1094 ..................................................................................................19 Noel v. Thrifty Payless, Inc. (2017) 17 Cal.App.5th 1315, 1326 ............................................................................................8 Richmond v. Dart Indus., Inc. (1981) 29 Cal.3d 462 .................................................................................................................4 17 18 19 20 21 Rose v. Medtronics, Inc. (1980) 107 Cal.App.3d 150 .....................................................................................................17 Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319 ..............................................................................................................11 Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905 ......................................................................................................5 22 23 24 25 26 27 28 Silberg v. Anderson (1990) 50 Cal.3d 205 ...............................................................................................................17 Trujillo v. City of Ontario (C.D. Cal. Apr. 14, 2005) No. EDCV 04-1015-VAP(SGLx), 2005 U.S. Dist. LEXIS 50353 .....................................................................................................................13, 14 Wal-Mart Stores, Inc. v. Dukes, (2011)131 S. Ct. 2541 ..............................................................................................................15 Walsh v. IKON Office Sols., Inc. (2007) 148 Cal.App.4th 1440 ..................................................................................................15 iii DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 Statutes 2 Code of Civil Procedure Section 382...............................................................................................4 3 4 5 6 7 8 9 10 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 2 I. INTRODUCTION In bringing her Motion, Plaintiff attempts to jam a square peg into a round whole. While 3 class actions are statutorily permitted in California, they must meet certain criteria, most, if not 4 all, of which focus on whether economy and efficiency favor class treatment. Neither does here. 5 To be certified, the class must be ascertainable. An ascertainable class puts each putative 6 class member on notice of her inclusion in the class and allows the court to determine on whose 7 behalf the named plaintiff is actually suing. Plaintiff’s Class does neither. Plaintiff includes every 8 individual who underwent a medical procedure in an operating room at Sharp’s Women’s Center 9 between July 17, 2012 and June 30, 2013. But not every individual who falls within this “Class” 10 was recorded, and Plaintiff has offered no administratively feasible way to differentiate between 11 those who were and those who were not. Therefore, the Class is not ascertainable. 12 13 14 Similarly, a plaintiff seeking to certify a class must demonstrate that common issues of fact and law predominate. Plaintiff has failed to make such a showing. First, Plaintiff has failed to demonstrate that the issue of whether Sharp’s recording was 15 “highly offensive” can be adjudicated on a class-wide basis. Each of the over 7,000 video clips is 16 inherently different, some showing the entire procedure (although hidden behind a surgical tent) 17 and others showing just the person entering and/or exiting the room. To determine whether the 18 recording is “highly offensive” requires individualized analysis of each individual recording. 19 Second, Plaintiff has failed to demonstrate that the issue of whether Sharp’s Admission 20 Agreement can be enforced against individual Class members can be resolved on a class-wide 21 basis. The Court would need to determine what the individual expected to be included in the 22 Admission Agreement and whether those expectations were reasonable. 23 Third, Plaintiff has failed to show that individual damages can be determined in a 24 manageable way. Plaintiff and each Class member seeks emotional distress damages, which are 25 some of the most individualized types of damages and are often held to defeat class certification. 26 Based on the above, class treatment here would be completely unmanageable and would 27 devolve into possibly thousands of mini-trials. Therefore, while class treatment is not disfavored 28 in California, it certainly should be here. Plaintiff’s Motion should be denied. 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 STATEMENT OF FACTS 2 A. 3 Sharp Grossmont Hospital is an acute-care hospital located in La Mesa, California. 4 (Declaration of Carlisle (“Ky”) Lewis, III (“Lewis Decl.”), ¶ 2.) Sharp Grossmont Hospital is the 5 dba of Grossmont Hospital Corporation. (Ibid.) Sharp Healthcare is the sole member of 6 Grossmont Hospital Corporation. (Ibid.) Sharp Grossmont Hospital, Grossmont Hospital 7 Corporation, and Sharp Healthcare are hereinafter collectively referred to as “Sharp.” 8 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S II. Sharp Grossmont Hospital and Sharp Healthcare Sharp provides obstetrical services, medical and surgical interventions, education, and 9 counseling in its Women’s Health Center. (Declaration of MaryAnn Cone (“Cone Decl.”), ¶ 2.) 10 Sharp provides a range of services in its Women’s Health Center, including, but not limited to: 11 (1) cesarean sections; (2) hysterectomies; (3) routine biopsies; and (4) minimally invasive 12 laparoscopic and laser surgeries. (Id. at ¶ 3.) Generally, before any patient undergoes a medical 13 procedure at Sharp’s Women’s Health Center, she receives, reviews, and signs Sharp’s 14 “Admission Agreement for Inpatient and Outpatient Services” (“Admission Agreement”). (Id. at 15 ¶ 4, Ex. “C”.) The first line of the first paragraph of the Admission Agreement states: “You 16 consent to all hospital services rendered under the general and special instructions of your 17 physician(s), and to the taking of photographs and videos of you for medical treatment, 18 scientific, education, quality improvement, safety, identification or research purposes, at the 19 discretion of the hospital and your caregivers and as permitted by law.” (Id. at ¶ 5, Ex. “C”.) 20 These and other medical procedures are performed in one of three operating rooms. (Id. 21 at ¶ 6.) Within each of the three operating rooms, there is a mobile drug cart that stores powerful 22 pharmaceuticals, like Propofol. (Id. at ¶ 7.) The drug cart also acts as the base for computer 23 monitors used by doctors for various purposes (i.e., medical record creation and retrieval). (Ibid.) Sharp’s Investigation into Missing Propofol. 24 B. 25 In 2012, Sharp noticed that certain amounts of Propofol and other drugs were missing 26 and unaccounted for. (Declaration of Howard LaBore (“LaBore Decl.”), ¶ 2.) Despite months of 27 investigation, Sharp remained unable to definitively determine the cause of the missing Propofol. 28 (Id. at ¶ 3.) Therefore, Sharp activated cameras in the computer monitors located atop the drug 2 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 carts in the operating rooms to obtain video evidence of the unlawful removal of drugs. (Id. at ¶ 2 4.) The cameras were motion activated, so they began recording when someone entered the 3 operating room in which the camera was located, whether that person was a doctor, nurse, 4 patient, or other Sharp personnel. (Id. at ¶ 5.) Throughout any given day, numerous doctors and 5 nurses enter and exit the operating rooms. (Cone Decl., ¶ 6.) B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 6 Because the drug carts were mobile (i.e., on wheels), doctors and nurses could and did 7 rotate or move the drug carts depending on their needs, which changed the angle of the camera. 8 (Cone Decl., ¶ 7; Declaration of Teresa C. Chow (“Chow Decl.”), ¶ 2, Ex. “A” (LaBore 9 Deposition Transcript), 83:15-84:2; Declaration of Linda Hamel (“Hamel Decl.”), ¶¶ 3-5.) The 10 monitors in which the cameras were installed could also be repositioned, allowing any person in 11 the operating room to change the camera’s angle. (Ibid., Ex. “A”, 110:6-9, 111:5-14, 187:3-5, 12 188:24-189:6; Hamel Decl., ¶¶ 6-7.) Plaintiff’s Procedure and Recording. 13 C. 14 On May 15, 2013, Plaintiff underwent a caesarian section operation in Operating Room 1 15 of the Women’s Health Center. (Chow Decl., ¶ 3, Ex. “B” (Plaintiff Deposition Transcript), 16 74:4-14.) The camera in Operating Room 1 was activated during Jones’ May 15, 2013 operation. 17 (Id. at ¶ 5.) The recording of Jones, which is approximately forty-five minutes long, shows 18 Plaintiff entering the room, being prepped for surgery, undergoing surgery (albeit covered by a 19 surgical tent), receiving post-surgery treatment, and exiting the room. (Ibid.) The recording does 20 not contain any audio. (Id. at ¶ 6.) Sharp’s Deletion of Pre-February 2013 Videos 21 D. 22 In February 2013, Sharp deleted all videos taken prior to February 2013 that were 23 irrelevant to its investigation into missing Propofol. (Chow Decl., ¶ 2, Ex. “A”, 94:4-22; LaBore 24 Decl., ¶ 6.) Sharp deleted these videos because storing them all on Sharp’s system would likely 25 cause Sharp’s system to crash or at least increase the chances of a crash. (Chow Decl., ¶ 2, Ex. 26 “A”, 94:4-22.) When Sharp deleted these recordings, neither Plaintiff nor any other putative class 27 member had filed suit or indicated his or her intention to do so. (Lewis Decl., ¶ 3.) 28 Further, prior to February 2013, Sharp only reviewed those recordings taken at or near 3 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 the time Propfol was reported missing. (LaBore Decl., ¶ 7.) Therefore, for most, if not all, of the 2 recordings deleted, no one from Sharp reviewed the recording. (Ibid.) 3 III. On January 12, 2017, Jones filed suit against Sharp, asserting eight causes of action.1 (See 4 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S PROCEDURAL HISTORY 5 Jones’ Complaint (“Compl.”).) On September 28, 2017, Sharp filed a Motion for Summary 6 Judgment or, in the alternative, Summary Adjudication, arguing, among other things, that 7 Plaintiff had consented to the recording (“MSJ/MSA”). (See MSJ/MSA.) In its order, the Court 8 dismissed all of Plaintiff’s causes of action except her two invasion of privacy claims (common 9 law and constitutional) and her breach of fiduciary duty claim. (See Order.) With regard to those 10 claims, the Court found that: “Plaintiff’s evidence [was] sufficient to create triable issues of 11 material fact as to whether Sharp’s use of hidden cameras to videotape Plaintiff, while she was in 12 the operating room during her surgery, for purposes of Sharp’s investigation into the missing 13 Propofol, was beyond the reasonable expectations of Plaintiff when she signed the admission 14 agreement.” (Id. at p. 4 (emphasis added).) 15 IV. CLASS CERTIFICATION STANDARD Code of Civil Procedure Section 382 authorizes class suits when “the question is one of a 16 17 common or general interest, of many persons, or when the parties are numerous, and it is 18 impracticable to bring them all before the court.” To obtain certification, “a party must establish 19 the existence of both an ascertainable class and a well-defined community of interest among the 20 class members.” Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435, as modified (Aug. 9, 21 2000). The community of interest requirement embodies three factors: “(1) predominant 22 common questions of law or fact; (2) class representatives with claims or defenses typical of the 23 class; and (3) class representatives who can adequately represent the class.” Richmond v. Dart 24 Indus., Inc. (1981) 29 Cal.3d 462, 470. “‘The ultimate question in every case of this type is 25 whether ... the issues which may be jointly tried, when compared with those requiring separate 26 27 28 1 Plaintiff asserted causes of action for: (1) Breach of Fiduciary Duty; (2) Unlawful Recording of Confidential Information; (3) Negligent Creation of Medical Information; (4) Negligent Maintenance of Medical Information; (5) Unlawful Disclosure of Medical Information; (6) Invasion of Privacy - Intrusion into Private Affairs; (7) Invasion of Privacy under the California Constitution; and (8) Distribution of Private Sexually Explicit Materials. (See Compl.) 4 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 adjudication, are so numerous or substantial that the maintenance of a class action would be 2 advantageous to the judicial process and to the litigants.’ [Citation.]” Lockheed Martin Corp. v. 3 Sup. Crt. (2003) 29 Cal.4th 1096, 1104–1105 (quoting Collins v. Rocha (1972) 7 Cal.3d 232, 4 238). “A class action also must be the superior means of resolving the litigation, for both the 5 parties and the court.” Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1333. 6 V. 7 8 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 9 ARGUMENT A. The Class Is Overbroad, And Plaintiff Has Failed to Provide A Feasible Method to Exclude Claimless Class Members From The Definition. “Ascertainability…goes to the heart of the question of class certification,” and “requires a 10 class definition that is ‘precise, objective and presently ascertainable.’” Global Minerals & 11 Metals Corp. v. Sup. Crt. (2003) 113 Cal.App.4th 836, 858 (quoting In re Copper Antitrust 12 Litigation (W.D. Wis. 2000) 196 F.R.D. 348, 359). Ascertainability is achieved “by defining the 13 class in terms of objective characteristics and common transactional facts making the ultimate 14 identification of class members possible....” Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 15 918 (internal quotations omitted). 16 A class is not ascertainable, however, if it is overbroad. See Kendall v. Scripps Health 17 (2017) 16 Cal.App.5th 553, 574 (“Class certification is properly denied for lack of 18 ascertainability when the proposed definition is overbroad….”). A class is overbroad if it 19 includes individuals who do not have a claim against the defendant, and “the plaintiff offers no 20 means by which only those class members who have claims can be identified from those who 21 should not be included in the class.” See id.; see also Marler v. E.M. Johansing, LLC (2011) 199 22 Cal.App.4th 1450, 1460 (“We may consider whether the class ‘definition is overbroad,’ and if 23 the plaintiffs have shown that ‘class members who have claims can be identified from those who 24 should not be included in the class. [Citations.]’”). 25 26 27 28 Here, Plaintiff’s Class definition includes individuals who have no claim against Sharp, and Plaintiff has offered no method by which to exclude those individuals from the class. 1. Plaintiff’s Causes of Action Require Proof Of Recording. As an initial matter, each of Plaintiff’s remaining three causes of action (breach of 5 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 1 fiduciary duty, common law invasion of privacy, and invasion of privacy under the California 2 Constitution) have a common element—recording. For proof of this fact, the Court need look no 3 further than Plaintiff’s prior filings in this case. 4 In her Complaint, Plaintiff alleges that Sharp breached its fiduciary duty to Plaintiff and 5 the Class by using Plaintiff’s and the Class’ “confidential information for [Sharp’s] own benefit 6 in conducting an internal investigation or communicated [Plaintiff’s and the Class’] confidential 7 information to third parties….” (Compl., ¶ 38.) Plaintiff clarified in her Opposition to Sharp’s 8 Motion for Summary Judgment that the recordings are the “confidential information” she claims 9 Sharp improperly used. (Opp. to MSJ/MSA, 17:2-4 (“Sharp made an unlawful use of Plaintiff’s 10 confidential medical information without her authorization, when they [sic] permitted Howard 11 LaBore to view the video of her undergoing cesarean section.”).) Thus, individuals who were not 12 actually recorded have no breach of fiduciary duty claim. 13 The same is true for Plaintiff’s two invasion of privacy claims. Plaintiff asserts that Sharp 14 invaded her and the Class’ privacy when it (1) installed recording devices in the operating rooms, 15 (2) recorded Plaintiff and the Class’ in the operating rooms, and (3) disclosed the recordings to 16 third parties. (See Compl., ¶¶ 94-96, 108-110.) However, neither installation nor disclosure is 17 actionable absent actual recording. 18 First, recording is a necessary prerequisite to disclosure because absent a recording there 19 would be nothing to disclose. Second, installation is not actionable because installation alone is 20 not a sufficiently serious invasion, let alone any invasion at all, of the privacy right that Plaintiff 21 alleges Sharp invaded—i.e., the right to not have her confidential communications and medical 22 procedures in the operating rooms of the Women’s Center recorded, viewed, or heard by persons 23 not present in the operating room. (See Compl., ¶¶ 95, 107.) See also Hill v. Nat'l Collegiate 24 Athletic Assn., 7 Cal.4th 1, 37, 38 (1994) (stating that to be actionable under California’s 25 common law or Constitution, the invasion must be “highly offensive to a reasonable person” or 26 “sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an 27 egregious breach of the social norms underlying the privacy right,” respectively). Without any 28 actual recording, no one other than the persons in the operating room heard Plaintiff’s 6 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 communications or witnessed her procedure.2 Therefore, as with Plaintiff’s breach of fiduciary 2 duty claim, individuals who were not recorded have no claim for invasion of privacy. 3 2. 4 Despite the fact that to have an actionable claim against Sharp an individual must have 5 been recorded, Plaintiff’s class definition includes: “All persons who underwent a medical 6 procedure in an operating room at the Women’s Center at Sharp Grossmont Hospital between 7 July 17, 2012, and June 30, 2013.” (Compl., ¶ 31; see also Mot. at 8:20-21.) Plaintiff apparently 8 assumes that if a person underwent a medical procedure in one of Sharp’s Women’s Center 9 operating rooms between July 17, 2012 and June 30, 2013 (i.e., when the cameras were 10 activated), that person was necessarily recorded. Plaintiff is wrong. As Howard LaBore testified, “[t]he camera was in the monitor of the screen that was 11 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S Not Every Class Member Was Recorded. 12 attached to an anesthesia cart…..Wherever the screen was pointed, that’s the direction you 13 got….Because it was on this mobile anesthesia cart where the computer was attached, I didn’t 14 control where it was rotated…The videos showed, [in] some cases, just the doorways.” (Chow 15 Decl., ¶ 2, Ex. “A”, 83:15-84:2; see also Hamel Decl., ¶¶ 2-7.) Additionally, Mr. LaBore 16 testified that, on “numerous” occasions, “people purposely put tape over the cameras and then 17 turned the monitor so it was facing the walls so you can’t see what was going on.” (Chow Decl., 18 ¶ 2, Ex. “A”, 110:6-9, 111:5-14; see also Id. at Ex. “A”, 187:3-5 (“In some of the video clips you 19 can tell who put the tape on, and you can tell who turned the cameras off.”); Ibid. at Ex. “A”, 20 188:24-189:3 (“[T]he anesthesia people…were the people who were either…turning the 21 monitors toward the wall or putting tape over it.”).) 22 Mr. LaBore also testified that the cameras were not always operational between July 17, 23 2012 and June 30, 2013. (Chow Decl., ¶ 2, Ex. “A”, 93:2-6 (A “part of the [Information 24 Security] branch [of Sharp]…[w]ent in and did this refresh” and “[w]hen they did that, they 25 inadvertently left us unable to record videos in that operating room”).) The changes in camera 26 angle and the time in which the cameras were not operational necessarily proves that not all 27 28 2 It should be noted that the recordings did not capture audio. (Chow Decl., ¶ 8.) Therefore, even if a camera was installed and activated, Plaintiff’s communications would not have been recorded. 7 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 2 3 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 4 Class members were recorded and, therefore, not all Class members have a claim. 3. Plaintiff Fails To Offer An Administratively Feasible Way To Identify Class Members Who Have Claims. Because not every person who underwent a medical procedure in one of Women’s 5 Center’s operating rooms between July 17, 2012 and June 30, 2013 was recorded, Plaintiff’s 6 Class, as currently defined, includes individuals who have no claim against Sharp at all. 7 Therefore, Plaintiff must provide a “means by which only those class members who have claims 8 can be identified from those who should not be included in the class.” Ghazaryan v. Diva 9 Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1533 n. 8; see also Noel v. Thrifty Payless, Inc. 10 (2017) 17 Cal.App.5th 1315, 1326 (stating “plaintiff failed to articulate and support with 11 evidence any means of identifying potential class members, as required by case law.”). This 12 “means” must not impose on the defendant “unreasonable expense or time.” Hale v. Sharp 13 Healthcare (2014) 232 Cal.App.4th 50, 58. 14 Plaintiff here provides no administratively feasible method of determining which of the 15 Class members were actually recorded. Plaintiff claims that Sharp could “review each 16 recording,” which, Plaintiff argues, would take approximately three, forty-hour weeks based on 17 Mr. LaBore’s testimony. (Mot. at 14:27-15:3.) Plaintiff, however, ignores two crucial facts. 18 First, prior to Plaintiff filing suit and in its ordinary course, Sharp deleted videos that 19 were both (1) immaterial to Sharp’s investigation of the missing Propofol and (2) taken before 20 February 1, 2013. (See Chow Decl., ¶ 2, Ex. “A”, 94:4-22; see also LaBore Decl., ¶ 6.) 21 Therefore, even if it were neither unreasonably expensive nor time consuming to review each 22 and every video, doing so would not result in Sharp being able to identify each Class member 23 who was recorded. It would, at best, only identify persons who were recorded from February 2, 24 2013 to June 30, 2013, accounting for only roughly forty percent of the Class period. 25 Second, Plaintiff assumes that the time it took Mr. LaBore to review the post-February 1, 26 2013 videos the first time would be the same as the time it would take Sharp now to both review 27 the videos and identify the patient (if any) depicted in the video. Plaintiff’s assumption is wrong. 28 Mr. LaBore testified that when he looked at the videos the first time, his instructions were not to 8 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 “look [at the videos] from one to the end of the whole thing;” therefore, he “skimmed through 2 [them] looking for specific things.” (Chow Decl., ¶ 2, Ex. “A”, 113:11-23; see also LaBore 3 Decl., ¶ 8.) “Skimming” is clearly no longer an option. 4 5 identify whether they contained patients, not who the patients they contained were. (Chow Decl., 6 ¶ 2, Ex. “A”, 113:24-114:6; LaBore Decl., ¶ 8.) Mr. LaBore would now have to (1) determine 7 whether the video depicts a patient and (2) if it does, identify the patient who underwent a 8 surgery at that time in that specific operating room. (LaBore Decl., ¶ 10.) Plaintiff fails to 9 account for this crucial extra step. 10 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S Further, when Mr. LaBore looked at the videos the first time, he was merely trying to Sharp partially completed this process when it located the recording of Plaintiff. First, 11 Sharp had to locate Plaintiff’s medical records. (LaBore Decl., ¶ 11.) Second, it had to review the 12 medical records to determine the date and time of Plaintiff’s procedure, as well as the operating 13 room in which the procedure occurred. (Ibid.) Third, Sharp had to locate among the over 7,000 14 video clips obtained the video clip that corresponds with the date, time, and location of 15 Plaintiff’s surgery. (Ibid.) Finally, Sharp had to compare a picture of Plaintiff (which she had 16 provided) to the woman depicted in the recording to confirm that the recording was, in fact, of 17 Plaintiff. (Ibid.) 18 Sharp would have to follow this same process for each of the 1,806 women who fall 19 within Plaintiff’s Class definition. (Id. at ¶ 14.) In the event that the recording started when a 20 doctor or other hospital personnel entered the operating room, Sharp would have to continue 21 watching the video until either the recording stopped or a patient entered the room. (Id. at ¶ 15.) 22 Based just on a sampling of videos, the time between when the recording starts and when a 23 patient enters the room can vary from immediately to never at all. (Ibid.) Further, the videos vary 24 greatly in length, ranging from a few minutes to over two hours, and, at times, the recording does 25 not stop between operations, making identifying patients that much more difficult and time 26 consuming. (Ibid.) 27 Assuming, conservatively, that the above-described process takes twenty minutes to 28 9 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 complete for each Class member, Sharp would be required to expend over 600 hours3 just to 2 confirm (1) whether a recording exists that corresponds to the Class member’s medical records 3 and (2) if so, whether that recording depicts a patient. (Id. at ¶ 13.) Assuming that the recordings 4 of sixty percent of the 1,806 putative Class members were deleted in February 2013, the process 5 would take 241 hours.4 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 6 These hundreds of hours of work, however, would not confirm that the patient in the 7 video (assuming there is one) is the putative Class member whose medical record Sharp is cross- 8 referencing. (Id. at ¶ 16.) Unlike with Plaintiff, Sharp does not have pictures of all its patients. 9 (Ibid.) Therefore, Sharp has no way of definitively determining which patient is actually depicted 10 in the recording. (Ibid.) Sharp would have to depose or call to testify at trial each putative Class 11 member to have her identify herself in the recording. 12 Assuming, conservatively, that each putative Class member could in thirty minutes or 13 less be sworn in (whether at deposition or trial), watch a portion of the recording, and either 14 confirm or deny the she is the patient in the recording, this process alone would take an 15 additional 900 hours to complete.5 If videos no longer exist for sixty percent of the putative Class 16 members, it would take Sharp 361 hours to complete.6 Therefore, all told, the process of 17 determining who is actually a member of the Class would take, at the very least, between 1,500 18 and 600 hours. 19 This case, therefore, is similar to Hale v. Sharp Healthcare (2014) 232 Cal. App. 4th 50, 20 61, where the court refused to certify the class because the class was not “reasonably 21 ascertainable.” In Hale, the plaintiff sued on behalf of himself and “those who received 22 ‘emergent-care’ after August 11, 2003 and who ‘were not covered by insurance or government 23 healthcare programs at the time of treatment’.” Id. at 159. Sharp presented evidence that there 24 was “no reasonable way for Sharp to ascertain who has claims and who does not” because (1) 25 Sharp does not always determine whether the patient is insured until after admission; (2) patients 26 27 28 3 Calculated as: 1,806 Class members X 20 minutes each. Calculated as: 1,806 Class members X 40% X 20 minutes each. 5 Calculated as: 1,806 Class members X 30 minutes each. 6 Calculated as: 1,806 Class members X 40% X 30 minutes each. 4 10 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 often learn long after reporting that they are uninsured that they qualify for financial assistance; 2 and (3) when a patient is later determined to qualify for financial assistance, Sharp does not 3 regularly update its billing codes, making a billing-code search insufficient. Id. at 159-160. 4 Based on these facts, the court concluded that to determine which class members actually had 5 claims against Sharp, Sharp would have to complete an individualized analysis of each patient's 6 payment record, which required incurring an “administrative cost…so substantial to render the 7 likely appreciable benefits to the class de minimis in comparison.” Id. at 59, 61. 8 9 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 10 The same is true here. Plaintiff’s class definition is overbroad, and her proposed means of identifying those Class members who actually have claims would impose on Sharp such a substantial burden that it would render class treatment ineffective. The Motion should be denied. 11 B. 12 In addition to establishing that the class is ascertainable, a plaintiff must establish that the The Class Lacks a Well Defined Community of Interest. 13 class possesses a “well defined community of interest in the questions of law and fact involved 14 affecting the parties to be represented.” Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 704. 15 Proving a “well defined community of interest” requires proof of three distinct elements: (1) that 16 “predominant common questions of law or fact” exist; (2) that the class representatives have 17 “claims or defenses typical of the class;” and (3) that the class representatives “can adequately 18 represent the class.” Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326. If 19 class-wide adjudication requires resolution of “diverse factual issues,” certification is 20 unwarranted, “even though there may be…common questions of law.” Brown v. Regents of 21 University of California (1984) 151 Cal.App.3d 982, 988–989; City of San Jose v. Superior 22 Court (“San Jose”) (1974) 12 Cal.3d 447, 459. Plaintiff here has failed to establish either that 23 common questions of law and fact predominate or that class treatment would be beneficial. 24 25 1. Individual Issues Predominate. A “class action cannot be maintained where each member's right to recover depends on 26 facts peculiar to his case” because “the community of interest requirement is not satisfied if 27 every member of the alleged class would be required to litigate numerous and substantial 28 questions determining his individual right to recover following the ‘class judgment’ determining 11 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 2 Common issues do not predominate here because every member of the Class would be 3 required to litigate (1) whether the recording of her constituted a serious invasion of her privacy, 4 (2) whether the consent language in the Admission Agreement fell within her reasonable 5 expectations, and (3) whether she suffered any damages at all and, if so, to what degree. 6 Individual Issue No. 1: Severity of Invasion 7 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S issues common to the purported class. [Citation.]” San Jose, supra, 12 Cal.3d at p. 459. As noted above and as admitted by Plaintiff in her Motion, Plaintiff’s common law and 8 constitutional invasion of privacy claims both require that the invasion be sufficiently serious, 9 although they use different terms to describe the necessary severity. (Mot. at 10:16-24.) See also 10 Hill, supra, 7 Cal. 4th at 37, 38. Plaintiff, however, argues that the seriousness of the invasion 11 can be demonstrated through common proof because liability does not turn on the “subjective 12 belief of Plaintiff, or any other class member,” but instead on “whether a reasonable person 13 would find the intrusion ‘highly offensive.’” (Mot. at 10:25-28.) In making this argument, 14 Plaintiff fails to consider that each recording is inherently different. 15 Some recordings, like Plaintiff’s, show the patient entering the room, being prepped for 16 surgery, undergoing surgery (albeit covered by a surgical tent), receiving post-surgery treatment, 17 and exiting the room. (Chow Decl., ¶ 5; LaBore Decl., ¶ 8.) Others just show the patient entering 18 or exiting the room. (LaBore Decl., ¶ 8.) In some videos, the patient’s face is clearly visible. 19 (Ibid.) In others, whether because of the angle of the camera, lighting in the room, type of 20 surgical clothing worn, or simply resolution of the video, the patient’s face is unrecognizable. 21 (Ibid.) Each of these myriad factors must be considered by the jury when determining whether 22 the invasion is sufficiently serious. 23 For example, would it be “highly offensive to a reasonable person” to record a fully- 24 clothed patient entering an operating room, but nothing more? Likewise, is recording a fully- 25 clothed patient exiting an operating room “sufficiently serious…to constitute an egregious 26 breach of…social norms?” And if the patient is wholly unrecognizable, is there an invasion of 27 privacy at all, let alone one that is “highly offensive” or in violation of “social norms”? 28 In San Jose, the California Supreme Court reversed the grant of class certification and 12 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 ordered the case dismissed for reasons similar to those presented here. 12 Cal. 3d at 465. There, 2 the plaintiffs brought suit on behalf of themselves and “all real property owners situated in the 3 flight pattern of the San Jose Municipal Airport,” alleging nuisance and inverse condemnation 4 and “[s]eeking recovery for diminution in the market value of their property caused by aircraft 5 noise, vapor, dust, and vibration.” Id. In reaching its decision, the Supreme Court noted that “the present action for nuisance B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 6 7 and inverse condemnation is predicated on facts peculiar to each prospective plaintiff,” including 8 “[d]evelopment, use, topography, zoning, physical condition, and relative location” of the 9 property. Id. at 461. The Supreme Court explained: “it is conceivable the noise created by airport 10 traffic may cause no actionable interference with land immediately adjoining the end of the 11 runway—because that land is used for a noisy industrial use, while the same air traffic may be 12 causing substantial interference giving rise to liability to a single family residence miles away.” 13 Id. at 461, n. 8. In other words, while the occurrence giving rise to the claims was the same (i.e., 14 departing and landing airplanes), the resulting impact on each individual plaintiff depended on 15 that plaintiff’s experience, which defeated class certification. The same is true here. As in San Jose, each putative Class members’ invasion of privacy 16 17 claim arises out of a common event (i.e., the recording). However, also as in San Jose, the 18 common event does not necessarily give rise to liability. The court in San Jose would have had 19 to individually analyze the “[d]evelopment, use, topography, zoning, physical condition, and 20 relative location” of each putative class member’s property to determine whether he or she even 21 had a claim just as the Court here will have to individually analyze each putative class member’s 22 recording to determine whether what was recorded was “highly offensive” or in violation of 23 “social norms.” 24 Plaintiff attempts to avoid this result by relying on Trujillo v. City of Ontario (C.D. Cal. 25 Apr. 14, 2005) No. EDCV 04-1015-VAP(SGLx), 2005 U.S. Dist. LEXIS 50353, for the 26 proposition that invasion of privacy claims based on video recording can be certified. (Motion, 27 11:3-6.) Not only is Trujillo not binding on this Court7, but it is also distinguishable. 28 7 Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 251, n. 6. 13 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL In Trujillo, the court never once discussed the necessary elements of the plaintiffs’ 1 2 invasion of privacy claims. The court did not discuss whether, depending on what each 3 individual plaintiff was recorded doing, the recording would be “highly offensive” or violative of 4 “social norms” to a reasonable person. In fact, the only thing the court discussed in relation to 5 predominance is differences in damages. See Trujillo, supra, 2005 U.S. Dist. LEXIS 50353. The court’s omission of these important considerations may be explained by the fact that B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 6 7 “Defendants…did not discuss [predominance]” in their opposition to the plaintiffs’ class 8 certification motion. Trujillo, 2005 U.S. Dist. LEXIS 50353, *11, fn. 3. Or perhaps it can be 9 explained by the fact that, by all accounts, there was only one video. Id. at *5 (“The First 10 Amended Complaint avers that 125 people have been identified on a surveillance video obtained 11 by Plaintiffs….” (emphasis added).) Or maybe the court’s omission was based on the fact that 12 every class member, at some point or another, may have been recorded in some “stage of 13 undress.” Id. at *8 (“The…degree of undress bear[s] on damages.”).8 Regardless of the court’s reasons, Trujillo is nothing like the case here. Sharp has raised 14 15 and thoroughly argued the lack of predominance. There are over 7,000 unique video clips, not 16 just one. And the individual recordings do not show every putative Class member in some degree 17 of undress; some of the videos merely show the putative class member entering the operating 18 room fully clothed. (LaBore Decl., ¶ 8.) Ultimately, determining whether the recording of each 19 putative Class member was sufficiently egregious to give rise to a common law or constitutional 20 claim for invasion of privacy is an individualized question and defeats class certification. 21 Individual Issue No. 2: Enforceability of Admission Agreement 22 As Plaintiff admits in her Motion, to be successful on either of her invasion of privacy 23 claims, she must establish that she and the Class members had an objectively reasonable 24 expectation of privacy in Sharp’s Women’s Center’s operating rooms. (Mot., 10:13-26.) 25 However, no such reasonable expectation can exist if Plaintiff or any of the Class members 26 consented to the recording. See Hill, supra, 7 Cal.4th at 26 (“[T]he plaintiff in an invasion of 27 28 Given the brevity of the court’s opinion, it cannot be determined why the individual elements of invasion of privacy were not discussed. 8 14 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 1 privacy case must have conducted himself or herself in a manner consistent with an actual 2 expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary 3 consent to the invasive actions of defendant.”). Even if the issue of consent is not an affirmative 4 element of Plaintiff’s claims, it is an affirmative defense that must be fully litigated. See Baugh 5 v. CBS, Inc. (N.D. Cal. 1993) 828 F.Supp. 745, 757 (“[A]s with any intentional tort, consent is an 6 absolute defense [to an intrusion on seclusion claim], even if improperly induced.”); see also 7 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011) (holding that a defendant is 8 entitled to litigate any individual affirmative defenses it may have to class members’ claims). 9 And “a defendant may defeat class certification by showing that an affirmative defense would 10 raise issues specific to each potential class member and that the issues presented by that defense 11 predominate over common issues.” Walsh v. IKON Office Sols., Inc. (2007) 148 Cal.App.4th 12 1440, 1450, as modified (Mar. 28, 2007). 13 Most, if not all, of the putative Class signed Sharp’s Admission Agreement prior to 14 undergoing any medical procedure in the Women’s Center’s operating rooms. (Cone Decl., ¶ 4.) 15 The first line of the first paragraph of the Admission Agreement stated: “You consent…to the 16 taking of photographs and videos of you for medical treatment, scientific, education, quality 17 improvement, safety, identification or research purposes, at the discretion of the hospital and 18 your caregivers and as permitted by law.” (Id. at ¶ 5, Ex. “C”.) 19 Plaintiff argues that the issue of consent actually supports certification because each of 20 the Admission Agreements signed by the Class members is identical, and, therefore, its 21 interpretation is a “common question.” (Mot. at 12:9-17.) Interpreting the Admission Agreement, 22 however, is just one step in the Court’s analysis. To the extent the Court finds that the consent 23 language covered the recordings at issue here, the Court must then determine whether it can be 24 enforced against the Class members, which requires individualized analysis. 25 In its order on Sharp’s MSJ/MSA, the Court acknowledged that the enforceability of 26 Sharp’s Admission Agreement, whether under the unconscionability or the reasonable 27 expectations test, depends, at least in part, on “Plaintiff’s ‘reasonable expectations.’” (Order, p. 3 28 (emphasis added).) In other words, the Court has already held that the enforceability of the 15 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 Admission Agreement, and the consent language contained therein, depends on the “reasonable 2 expectations” of each Class member who signed it. See accord Atl. Nat. Ins. Co. v. Armstrong 3 (1966) 65 Cal. 2d 100, 112 (holding that to consider the “reasonable expectations of the parties 4 in entering into the agreement,” the court “must evaluate [the plaintiff’s] knowledge and 5 understanding as a layman and his normal expectation of the extent of coverage of the policy”); 6 Beynon v. Garden Grove Med. Grp. (1980) 100 Cal.App.3d 698, 706 (holding that the 7 contractual provision, if enforced, would “defeat the reasonable expectations of [the] one 8 enrolling in the plan” (emphasis added)). B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 9 In Graham v. Scissor-Tail, Inc. (1981) 28 Cal. 3d 807, the California Supreme Court 10 demonstrated the inherently individualized nature of determining the “weaker party’s” 11 reasonable expectations. There, the court could not “conclude that the contractual provision 12 requiring arbitration of disputes…was in any way contrary to the reasonable expectations of [the] 13 plaintiff” because (1) “he had been a party to literally thousands of…contracts containing a 14 similar provision;” (2) during the 3 years preceding the instant contracts, he had, on at least 15 15 different occasions, signed a contract containing provisions similar to those in question; and (3) 16 he had been involved in similar proceedings before. Id. at 821. 17 Admittedly, the facts of Graham are distinguishable from the present case. The analysis, 18 however, is not. If Plaintiff’s putative Class is certified, the Court will have to first determine 19 what each individual class member expected to be included in the Admission Agreement and, 20 second, whether her expectations were “reasonable” in light of her prior experiences. Such 21 individualized questions defeat class certification. 22 Individual Issue No. 3: Damages 23 One of, if not the most significant, hurdles Plaintiff must surmount in seeking to certify 24 the Class is demonstrating that the varying degree of damages allegedly suffered by Plaintiff and 25 the Class—ranging from severe emotional distress (as in the case of Plaintiff) to no distress at all 26 (as in the case of individuals who were not recorded or have no knowledge of the recording)— 27 does not defeat the Class’ “community of interest.” In her Motion, however, Plaintiff summarily 28 dismisses the issue, relying on inapplicable case law. (Mot. at 11:18-12:8.) 16 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 2 members in the amounts of damages or restitution resulting from defendant’s unlawful conduct 3 do not bar class certification.” (Mot. at 11:26-27.) And, generally, Plaintiff might be right. But 4 Plaintiff fails to take into consideration that (1) determining whether a class member is entitled to 5 any damages is different than determining what amount of damages he or she is entitled to and 6 (2) the putative class members seek emotional distress damages. 7 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S Plaintiff claims that “[i]t is a long-established principle that differences among class “[C]lass certification is generally inappropriate when each member of the proposed class 8 must individually establish emotional distress damages.” Bennett v. Regents of University of 9 California (2005) 133 Cal.App.4th 347, 358; see also Rose v. Medtronics, Inc. (1980) 107 10 Cal.App.3d 150, 155 (“In general, mass tort actions for personal injuries are not appropriate for 11 class-action treatment.”) That is because “the complexity of the damage question alone, fully 12 litigated by each class member, would far outweigh any small benefit derived from those issues 13 which could be tried on a common basis.” Brown v. Regents of University of California (1984) 14 151 Cal.App.3d 982, 990. Indeed, “consolidation of actions is the preferred procedure for 15 disposition of such causes” due to “the great importance of tort claims for personal injuries to the 16 claimants themselves and the consequent desire of claimants to be represented by counsel of 17 their own choosing rather than by strangers, and…the wide disparity in damages that ordinarily 18 arises from such claims.” Fuhrman v. California Satellite Sys. (Ct. App. 1986) 179 Cal.App.3d 19 408, 424, disapproved on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205. 20 Recently, the District Court for the Southern District of California denied class 21 certification based on facts similar to those here. In D.C. by and through Garter v. County of San 22 Diego (S.D. Cal., Nov. 7, 2017, No. 15CV1868-MMA (NLS)) 2017 WL 5177028, the plaintiff 23 brought suit against the County, alleging that the County had violated his rights and those of 24 similarly situated minors when it subjected them to physical examinations without their or their 25 guardians’ consent. Id. at **1-2. In opposition to the plaintiff’s class certification motion, the 26 County argued that “the question of damages requires individualized determinations 27 inappropriate for class treatment.” Id. at *14. The court agreed. Id. at *16. 28 While the court noted that “individual damage calculations generally do not defeat a 17 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 finding that common issues predominate,” the court found that “proving injury to human dignity 2 and emotional distress with respect to these claims will vary from person to person.” Id. at *15. 3 According to the court, “an infant class member, a five year old class member, and a twelve year 4 old class member are unlikely to be entitled to the same compensation for their physical, mental, 5 and emotional damages.” Id. at *16. Damages were likely to be dependent on “the specific 6 experiences of individual class members,” an “individualized inquiry which would overwhelm 7 the common damages questions.” Id. at *16. 8 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 9 The same is true here. Dr. James O’Brien, a psychiatrist and California Qualified Medical Examiner with decades of experience examining and diagnosing trauma patients, opines that the 10 degree of distress suffered by an individual depends as much, if not more, on the individual’s 11 personal make-up and characteristics as it does on the event giving rise to the distress. (See 12 Declaration of Dr. James O’Brien (“O’Brien Decl.”).) As a frequent examiner of distressed 13 soldiers, Dr. O’Brien has personally experienced multiple individuals who witnessed similar, if 14 not the same, acts, but whose distress varied greatly. (Id. at ¶¶ 8, 10.) According to Dr. O’Brien, 15 responses to stress-inducing external events can vary from the most severe, Post-Traumatic 16 Stress Disorder, to one of the least severe, an adjustment disorder, to no clinically-defined 17 response at all. (Id. at ¶¶ 3-4.) Even within these response types, distress can “vary greatly in 18 terms of clinical severity regardless of the nature of the initial stressor….” (Id. at ¶¶ 3-4.) 19 Given the extreme variations in individual responses, psychiatrists, like Dr. O’Brien, 20 cannot evaluate distress generally, but instead must conduct “individual assessments” or “case 21 formulations” for each patient they treat. (Id. at ¶¶ 5-6, 11.) Psychiatrists must analyze not only 22 the “type, nature, and severity of the event giving rise to the distress,” but also the “patient’s 23 background and psychological fortitude.” (Id. at ¶ 6.) They also must consider the patient’s 24 specific susceptibilities on the basis of genetics, including variations in, among other things, 25 epigenetics, hormones, and the presence of the “worrier” or “warrior” gene. (Ibid.) Each of these 26 factors impacts whether the individual will suffer distress and to what degree, and none can be 27 evaluated without “clinical training to recognize when the combination of predisposing, 28 precipitating, perpetuating and protective factors has resulted in a pathological condition….” 18 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 (Ibid.; see also id. at ¶ 11 (cautioning against assessments by “nonclinical, nonmedical, or 2 otherwise insufficiently trained individuals”).) B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 3 Plaintiff here seeks emotional distress damages for each of the nearly two thousand 4 putative Class members. None of the Class members, however, can be painted with the same 5 brush. Some, like Plaintiff, may claim that the “anxiety…associated with th[e] situation prevents 6 [them] from going to the doctor in a normal way and trusting a medical professional in a normal 7 way.” (Chow Decl., ¶ 3, Ex. B, 177: 18-21.) Others may experience no anxiety at all. (O’Brien 8 Decl., ¶ 9 (discussing psychological resiliency).) Some, like Plaintiff, may even allege that, 9 because of the recordings, they experience “[p]hysical manifestations of mental and emotional 10 distress, including back pain, trouble sleeping and digestive issues” that require “[o]ngoing 11 physical therapy, massage therapy, and stress reduction.” (Chow Decl., ¶ 6, Ex. D (Plaintiff’s 12 Amended Resp. to FROGs), No. 6.7.) Others may experience no pain, sleeping or digestive 13 issues. (O’Brien Decl., ¶ 9 (stressful event commonly results in “relatively stable pattern of 14 healthy functioning”).) 15 Based on the individualized nature of the Class’ damages, this Court, if it certifies the 16 Class, would be embroiled in hundreds, if not thousands, of mini trials, involving testimony from 17 each Class member, Sharp’s expert, and, likely, Plaintiff’s expert. (Id. at ¶¶ 13-15.) 18 19 20 2. The Benefits, If Any, of Class Treatment Are Outweighed By The Inevitability of Mini-Trials. Because class actions have the potential to create injustice, trial courts are required to 21 “carefully weigh respective benefits and burdens and to allow maintenance of the class action 22 only where substantial benefits accrue both to litigants and the courts.” Newell v. State Farm 23 Gen. Ins. Co. (2004) 118 Cal.App.4th 1094, 1101. Whether such benefits exist are to be 24 evaluated by, among other things, examining the potential difficulties in managing a class action. 25 Lee, supra, 166 Cal.App.4th at 1333 (2008). 26 For the same reasons common questions do not predominate, treating this case as a class 27 action would be unmanageable. First, Plaintiff has failed to set forth an administratively feasible 28 method to actually identify the class members. Therefore, if the Class is certified, the Court will 19 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 1 have to expend time and resources just identifying on whose behalf Plaintiff is actually suing. 2 Second, whether an individual Class member has a claim against Sharp turns on whether her 3 recording actually shows something that is “highly offensive.” Thus, once the Court determines 4 who is a class member, it will have to analyze each recording to determine whether those 5 individuals even have a claim. Third, assuming the Court can identify the Class members and 6 weed out those individuals for whom the recording is not “highly offensive,” the Court will have 7 to determine, on an individual basis, whether those individuals consented to the recording, 8 which, as noted above, requires an analysis of each individual’s expectations and whether they 9 were reasonable. And finally, assuming the Court performs all the tasks described above and 10 determines that Sharp is liable, the Court will have to hear testimony from each individual class 11 member regarding (1) when she learned of the recording, (2) how the recording impacted her, (3) 12 the treatment, if any, she received for emotional distress caused by the recordings; and (4) 13 whether the impact of the recordings is temporary or permanent. The Court will also likely have 14 to hear testimony from both Plaintiff’s and Sharp’s experts on (1) the reasonableness of the 15 alleged emotional distress and the treatment for same; (2) the severity of the alleged emotional 16 distress; and (3) the likely duration of the alleged damages. (O’Brien Decl., ¶ 15.) Without even 17 taking into consideration any testimony offered by Plaintiff and assuming Dr. O’Brien could 18 fully explain each Class member’s emotional state in thirty minutes, his testimony, alone, would 19 take more than 900 hours9, or roughly 150 court days10. 20 Given the scope and pervasiveness of these individualized issues, trial in this matter, if it 21 can be completed at all, will likely last months, if not years. If, however, individuals are 22 permitted to bring suit on their own behalves as opposed to on a class-wide basis, such issues 23 could be presented and adjudicated in less than a week. Class treatment is not warranted here. 24 VI. Based on the above, Sharp respectfully request that the Court deny Plaintiff’s Motion for 25 26 CONCLUSION Class Certification. 27 28 9 Calculated as: 30 minutes x 1,806 putative Class members Calculated as: 903 hours of testimony ÷ 6 hours per court day. 10 20 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 DATED: February 16, 2018 Respectfully submitted, 2 BAKER & HOSTETLER LLP 3 By: 4 Teresa C. Chow Matthew D. Pearson 5 Attorneys for Defendants SHARP HEALTHCARE and GROSSMONT HOSPITAL CORPORATION 6 7 8 9 10 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION CASE 37-2017-00001377-CU-NP-CTL 1 PROOF OF SERVICE 2 I am employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 11601 Wilshire Boulevard, Suite 1400, Los Angeles, CA 90025-0509. On February 16, 2018, I served a copy of the within document(s) in a sealed envelope address as follows: 3 4 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION 5 6 7  8 9 10 B AKER & H OSTE TLER LLP A TTORNEYS AT L AW L OS A NGELE S 11 12  VIA U.S. MAIL. by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, CA addressed as set forth below. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit VIA ONE LEGAL E-SERVICE. I sent such documents to the individual(s) identified at the e-mail referenced below. 13 Duane A. Admire, Esq. ADMIRE & ASSOCIATES 14 12880 Carmel Country Road, Suite D110 15 San Diego, California 92130 Tel: 619.316.6658 16 Fax: 858.350.1046 Email: duaneadmire@outlook.com 17 Attorneys for Plaintiff CARLA JONES 18 James R. Patterson, Esq. 19 Allison H. Goddard, Esq. PATTERSON LAW GROUP APC 20 402 West Broadway, 29th Floor San Diego, CA 92101 21 Tel: 619.756.6990 Fax: 619.756.6991 22 Email: jim@pattersonlawgroup.com ali@pattersonlawgroup.com 23 Attorneys for Plaintiff CARLA JONES 24 25 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 16, 2018, at Los Angeles, California. 26 27 Priscilla Markus 28 1 PROOF OF SERVICE CASE 37-2017-00001377-CU-NP-CTL