Bahan v. Kurland

Opinion

KAUFMAN, Acting P. J.

Plaintiff Leon Bahan appeals from a summary judgment entered in favor of defendant Dr. Morton Kurland.

On May 5, 1978, plaintiff instituted this action for damages against Dr. Morton Kurland and the State of California alleging three purported causes of action (intentional infliction of emotional distress; negligent infliction of emotional distress; and medical malpractice). The gravamen of the verified complaint was that plaintiff, while receiving psychiatric treatment at the Desert Hospital Mental Health Clinic in Palm Springs, was solicited by defendant, who was the chief psychiatrist at the clinic and plaintiffs treating physician, to burglarize the office of Dr. James O’Connor and to murder Dr. O’Connor in exchange for a sum of money and a free supply of controlled substances. It was alleged in the complaint that in soliciting plaintiff to commit these crimes, defendant acted “upon his own initiative.” However, it was also alleged that the Desert Hospital Mental Health Clinic was an agency of the State of California and that “[a]t all relevant times herein mentioned, [Dr. Kurland] was, and is, an employee of the Desert [Hospital] Mental Health Clinic and the State of California, and, as such, dur

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ing all relevant times herein, acting within the purpose and scope of said agency and employment.”

Although plaintiff served an appropriate claim on the State of California pursuant to the Tort Claims Act, it turned out that the Desert Hospital Mental Health Clinic was in fact a part of a local district, the Desert Hospital District, and plaintiff did not present a timely claim to the district.

Accordingly, on October 18, 1978, defendant Dr. Kurland noticed a motion for summary judgment on the ground that, inasmuch as plaintiff had failed to present the requisite claim to the district, any recovery against defendant Kurland was precluded by Government Code section 950.2 which reads in pertinent part: “Except as provided in Section 950.4, a cause of action against a public employee. . .for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred under [the Tort Claims Act].”