In Nicodemus v. Saint Francis Memorial Hospital, ___ Cal.App.5th ___ (Sept. 14, 2016; pub. ord. Oct. 6, 2016), the plaintiff asserted a UCL "unlawful" prong claim based on the defendants' violations of Evidence Code section 1158, which limits the amount a medical provider can charge for producing copies of medical records when requested by an attorney. The Court of Appeal (First Appellate District, Division Four) reversed the trial court's order denying class certification of this claim.
The opinion reconfirmed the rule that a class is ascertainable even if it includes some members that might have been uninjured by the defendant's unlawful conduct. Slip op. at 10-17. Notably, in so holding, the opinion distinguished Hale v. Sharp Healthcare, 232 Cal.App.4th 50 (2014), in which a class was decertified "after nearly three years of litigation" because "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." Nicodemus, slip op. at 15 (citing Hale, 232 Cal.App.4th at 54, 63-64). In contrast, if "[t]he potential class members may be readily identified by reference to" the defendant's records, "speculation" that some may not have been harmed "goes to the merits of each class member's recovery" and would be "an inappropriate focus for the ascertainability inquiry." Id. at 16.
The opinion also held that "[t]he predominance of common questions requirement is patently satisfied here" Id. at 18. After setting forth the relevant law, the Court explained: "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." Id. at 20 (footnote omitted). Put another way, just as the Supreme Court held in Brinker, the “community of interest” element of class certification is “patently satisfied” if the evidence shows that the defendant has a uniform policy or practice and that policy or practice is alleged to violate California law. See id. at 18-20.
Finally, the opinion considered the argument that the class was overbroad because one of the defendants, Saint Francis, would be liable only to a portion of it. The class was defined to include all patients whose medical records requests were fulfilled by HealthPort, and Saint Francis was only one of many medical providers who contracted with HealthPort for this purpose. The Court of Appeal disagreed with the trial court's conclusion that this presented an impediment to class certification. Slip op. at 20-22. The Court held that certification is proper even if some class members may have a claim against one, but not all, named defendants, noting that these were the facts of one of the Supreme Court's leading class certification precedents, Vasquez v. Superior Court, 4 Cal.3d 800 (1971). Nicodemus, slip op. at 21 (citing Vasquez, 4 Cal.3d at 805, 810-11, 815). The Court also rejected the argument that the plaintiff was obligated to join all the other medical providers who used HealthPort, as well as the argument that Saint Francis risked being held responsible for the wrongdoing of those other providers. Id. at 22.
(I filed a publication request on behalf of CAOC in this case.)
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