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Bahan v. Kurland
Citations: 98 Cal. App. 3d 808; 159 Cal. Rptr. 661; 1979 Cal. App. LEXIS 2325Docket: Civ. 21035
Court: California Court of Appeal; November 14, 1979; California; State Appellate Court
Leon Bahan appeals a summary judgment favoring Dr. Morton Kurland, his treating psychiatrist at the Desert Hospital Mental Health Clinic, in a case alleging intentional and negligent infliction of emotional distress, as well as medical malpractice. Bahan's complaint claims that Kurland solicited him to commit burglary and murder in exchange for money and controlled substances, asserting that Kurland acted on his own initiative. Although Bahan filed a claim under the Tort Claims Act against the State of California, he failed to submit a timely claim to the Desert Hospital District, which actually operated the clinic. Kurland moved for summary judgment, citing Government Code section 950.2, which bars recovery against a public employee if the claim against the public entity is barred. In response, Bahan argued that a factual dispute exists regarding whether Kurland's solicitation was within the scope of his employment, noting Kurland's conviction for the solicitation and stating that these acts were not part of his medical treatment or recorded in his medical records. The appeal focuses solely on whether there is a triable issue of fact concerning Kurland's scope of employment during the alleged solicitation of crimes. A public employee is considered to be acting within the scope of employment when performing duties related to their job or when actions are incidental to their responsibilities and benefit their employer. However, solicitation of serious crimes such as burglary and murder by a psychiatrist at a public mental health clinic does not typically fall within the scope of their employment, as these actions serve personal interests rather than professional duties. The appeal involves a verified complaint where the plaintiff alleges that the defendant was acting within the scope of employment, a claim admitted by the defendant in his response. While such an allegation can suffice to withstand a demurrer, it is fundamentally a mixed factual-legal conclusion. If the factual assertions in opposition to a summary judgment motion contradict the conclusion drawn in the pleadings, it should not prevent a trial on the matter. Given the potential for amending pleadings and the existence of a factual dispute regarding the defendant's conduct, the summary judgment is reversed, allowing the issue to be tried. The court recommends that the plaintiff seek leave to amend the complaint after the remittitur.