Filed 5/23/13 Hegedus v. Behavioral Health Services CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


JOHN PAUL HEGEDUS,                                                       B233098

         Plaintiff and Appellant,                                        (Los Angeles County
                                                                         Super. Ct. No. NC053201)
         v.

BEHAVIORAL HEALTH SERVICES,
INC., et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Patrick T. Madden, Judge. Affirmed.
         John Paul Hegedus, in pro. per., for Plaintiff and Appellant.
         Bonne, Bridges, Mueller, O’Keefe & Nichols, Margaret M. Holm and Kyle C.
Worrell for Defendants and Respondents.
                                        _________________________
       After plaintiff John Paul Hegedus pleaded guilty to second degree burglary for
fraudulently obtaining prescription drugs, the court sentenced him to 365 days in Orange
County jail and stayed 275 days of the sentence on condition that Hegedus complete a
90-day residential drug treatment program. Hegedus completed 35 days as a resident of
Thomas Redgate Memorial Recovery Center (Redgate) before he was administratively
discharged for violating Redgate’s rules. Hegedus, representing himself, sued Behavioral
Health Services, Inc. (BHS), which owns and operates Redgate, and BHS employees,
alleging numerous causes of action arising from his discharge and the failure to timely
resolve his appeal from the discharge. After a 10-day jury trial, the jury was instructed
on intentional infliction of emotional distress, Hegedus’s only remaining claim. The jury
returned a defense verdict. Hegedus filed this appeal, contending the jury also should
have been instructed on professional negligence, the common knowledge exception, and
negligence per se. We affirm because there was no instructional error.
                  FACTUAL AND PROCEDURAL BACKGROUND
    1. Admission and Administrative Discharge from Redgate for Rules Violation
       Hegedus acknowledged to counselors at Redgate that he was at the treatment
center to “get out of jail free.” He was admitted on July 25, 2008.1 This was Hegedus’s
second admission to Redgate – he was admitted in June to the detox unit, but left against
medical advice when he learned that his stay in the detox unit did not count toward his
90-day commitment.
       According to Hegedus, Redgate had some 153 rules to live by while in residential
treatment. Hegedus broke one of the rules on August 20, while on a pass permitting him
to leave the treatment center. Hegedus turned himself in, and Kijoma Marsh, his primary
drug and alcohol counselor, placed Hegedus on a “behavior contract.” The behavior
contract mandated that Hegedus comply with Redgate’s rules.
       On August 28, Hegedus broke several rules when he left a Cocaine Anonymous
meeting to answer a phone call. Defendant Emmons Sebenius, a Redgate drug and

1
       Unless stated, all further events occurred in 2008.

                                             2
alcohol counselor, discovered Hegedus using the pay phone, which violated the treatment
center’s phone rules. The following day, Hegedus was administratively discharged from
Redgate.
       Hegedus invoked the BHS grievance procedure to appeal from his discharge.
Dated August 31, Hegedus prepared a letter addressed to defendant Laurie Dent-Snyder
(Snyder), the administrator at Redgate, seeking reinstatement (appeal letter). Hegedus
got no response from Snyder by his probation officer’s September 5th deadline. Hegedus
was arrested and taken into custody for a probation violation.
       While in jail awaiting his probation revocation hearing, Hegedus continued to
make efforts to be reinstated at Redgate. Dated September 29, Hegedus addressed a letter
to Alyce Belford, the designated representative in the BHS grievance procedure, and he
attached his August 31 appeal letter. Theresa Cannon, the chief compliance officer for
BHS, received the Belford letter and investigated the allegations. After conducting an
investigation, Cannon concluded that the discharge was handled according to policy and
Hegedus could not return to Redgate. Cannon, however, arranged for Hegedus’s
admission to another BHS residential treatment program.
       On October 6, Hegedus had his probation revocation hearing. Hegedus’s criminal
defense counsel and the district attorney were aware that Hegedus could have been
admitted to another BHS treatment program, but Hegedus pleaded guilty to a probation
violation. Hegedus served 210 days in the Orange County jail.
    2. Proceedings
       Hegedus filed this action, alleging that he would not have served his jail sentence
but for his wrongful administrative discharge from Redgate. His complaint asserted
causes of action for negligence, negligent infliction of emotional distress, intentional
infliction of emotional distress, violation of the Unruh Civil Rights Act, and conspiracy
against multiple defendants, including BHS, Marsh, Sebenius, and Snyder.2 The crux of


2
      Hegedus also filed an administrative complaint with the California Department of
Alcohol and Drug Programs.

                                              3
the negligence cause of action was the defendants breached their respective duties to him
when they “falsely, recklessly, maliciously, arbitrarily, capriciously, and without
probable cause [wrote] up a pretextual violation of the Redgate phone policy against
Plaintiff so as to operate as a covert conspiratorial mechanism to have him
administratively discharged from the Redgate Residential Rehabilitation Unit.” Snyder
and Marsh also allegedly breached their duty toward him by failing to comply with the
BHS grievance procedure.
    3. Trial3
       Hegedus represented himself at trial, drawing on his legal education and his
28 years of experience in civil litigation working as a research paralegal. His theory at
the beginning of trial was that BHS, through its employees Marsh, Sebenius, and Snyder
violated BHS policies and their professional duties as set forth in the counselor’s code of
conduct (Cal. Code Regs., tit. 9, § 13060, subd. (b)(1)),4 by administratively discharging
him from Redgate and failing to timely address his appeal as required under the BHS
grievance procedure.
       By closing arguments, Hegedus had dropped the theory that he was discharged
based upon a pretextual violation of the phone policy and narrowly focused on the failure

3
        In accordance with the customary rule of appellate review, we state the facts most
favorably to the party appealing instructional error and must assume the jury may have
believed appellant’s evidence. (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1152,
fn. 2.)
4
        The regulation states: “(a) Each certifying organization shall require registrants
and certified AOD counselors to comply with a code of conduct developed by the
certifying organization in compliance with the requirements of this regulation. [¶] (b) At
a minimum, the code of conduct shall require registrants and certified AOD counselors
to: [¶] (1) Comply with a code of conduct developed by the certifying organization; [¶]
(2) Protect the participant’s, patient’s, or resident’s rights to confidentiality in accordance
with Part 2, Title 42, Code of Federal Regulations; [¶] (3) Cooperate with complaint
investigations and supply information requested during complaint investigations unless
such disclosure of information would violate the confidentiality requirements of
Subpart 2, Title 42, Code of Federal Regulations.” (Cal. Code Regs., tit. 9, § 13060,
subds. (a)(b).)

                                               4
to adhere to the BHS grievance procedure. Hegedus states: “Appellant’s theory of his
case was based upon his August 31, 2008 appeal of his discharge and Respondents [sic]
negligence for failing to follow the Redgate grievance and appeal procedure with its three
(3) day meeting rule.”
       a. Hegedus’s Expert is not Qualified to Testify, and Hegedus Focuses on
           Negligence Per Se and Intentional Infliction of Emotional Distress
       Although Hegedus maintained expert testimony was not necessary to prove his
negligence claim, he later conceded the point during trial.5 Hegedus intended to call as a
witness his designated expert Kathryn Frost. The trial court held a foundational hearing
and concluded Frost was not qualified to testify. Following this ruling, the court stated:
“Plaintiff has two causes of action styled negligence. One entitled negligence; the other
is negligent infliction of emotional distress. I think they’re a single cause of action for
negligence, and I think that under the circumstances of this case plaintiff, without the
testimony of Ms. Frost or without any expert witness, is not precluded from proceeding
as to a claim based upon negligence per se.”
       Hegedus’s theory of liability shifted to negligence per se, stating on the record that
this was a regulatory case, and not a professional negligence case against BHS. As for
the individual defendants, Hegedus stated: “I would concede . . . we needed a counselor
standard of care and we’re not going to go that route. Let’s just focus on negligence per
se and the intentional tort.”
5
        BHS operates Redgate, which is licensed pursuant to Health and Safety Code
section 1250.3, subdivisions (a) and (b)(2), as a chemical dependency recovery hospital.
A chemical dependency recovery hospital is a health care provider. (Civ. Code,
§ 3333.1, subd. (c)(1).) Professional negligence is defined by statute as: “a negligent act
or omission to act by a health care provider in the rendering of professional services,
which act or omission is the proximate cause of a personal injury . . . provided that such
services are within the scope of services for which the provider is licensed and which are
not within any restriction imposed by the licensing agency or licensed hospital.”
(Id., subd. (c)(2).) By statute, a chemical dependency recovery hospital must provide the
following services: “patient counseling, group therapy, physical conditioning, family
therapy, outpatient services, and dietetic services.” (Health & Saf. Code, § 1250.3,
subd. (a).)

                                               5
       b. Regulatory Violations (Negligence Per Se)
       Janelle Ito-Orille (Ito), complaints unit supervisor with the California Department
of Alcohol and Drug Programs, investigated Hegedus’s administrative complaint
following his discharge from Redgate. During the course of her investigation, Ito
discovered that Snyder had improperly used the title “MFT,” the acronym for a marriage
and family therapist, when in fact she was an intern and should have used the title
“MFTi.” Snyder was cited for violating the counselor code of conduct in California Code
of Regulations, title 9, section 13060, subdivision (b)(1). Marsh also was cited, as he
brought to Ito’s attention that he improperly used a speed note in Hegedus’s chart. A
speed note is a generic notation that a counselor uses for everyone in group treatment,
and Marsh admittedly had a duty to prepare accurate and specific notes in Hegedus’s
chart related to his individual treatment.
       c. BHS Grievance Procedure – Three-Day Meeting Rule (Negligence Per Se)
       Hegedus attempted to elicit testimony to establish that violating the BHS
grievance procedure also was a breach of the counselor’s code of conduct (Cal. Code
Regs., tit. 9, § 13060). Cannon testified that when a program director received a
grievance or a complaint letter from a resident, under the BHS grievance procedure the
program director had three days to contact the resident to schedule a meeting (three-day
meeting rule). The BHS grievance procedure mandates that the program director give the
client a written decision within three days of the scheduled meeting. If the client is not
satisfied with the decision, the BHS grievance procedure permits an appeal to a
designated administrator, and, if the resident still is not satisfied, he or she can appeal to
BHS executive management.
       Cannon testified, assuming Snyder received Hegedus’s appeal letter, the BHS
grievance procedure states Snyder had to schedule a meeting within three days. Snyder
was aware of the BHS grievance procedure, including the three-day meeting rule. Snyder
did not meet with Hegedus.
       There was conflicting testimony as to whether Snyder actually received the appeal
letter. Hegedus testified that he hand-delivered his appeal letter on August 31 to Marsh.

                                               6
Hegedus also gave a copy of the appeal letter to former resident John David Lloyd to
deliver to Snyder. Lloyd testified that he either put the appeal letter in the box attached to
Snyder’s door, or he slipped it under the door.
       Hegedus called Sebenius after his discharge, and Sebenius testified Hegedus
mentioned that he wanted to meet with Snyder. Sebenius did not recall any discussion
regarding Hegedus’s appeal letter.
       Marsh and Snyder testified that they never received Hegedus’s appeal letter.
Snyder did not see the appeal letter until Cannon sent her a copy via e-mail. Cannon,
however, admitted in discovery responses that Hegedus delivered the appeal letter to
Marsh on August 31, and Marsh delivered it to Snyder. Cannon testified these responses
were inaccurate, and she made a mistake because her investigation revealed that neither
Marsh nor Snyder received the appeal letter.
    4. Jury Instructions6
       While the parties were finalizing jury instructions, Hegedus withdrew his
negligence per se claim. In response to the withdrawal of Hegedus’s negligence per se
claim, the court stated: “Okay. And that would mean any jury instructions related to a
claim of negligence would obviously be withdrawn and any argument with respect to a
claim for negligence, whether per se or otherwise, would not be permitted. Is that
understood, Mr. Hegedus?” Hegedus responded: “Yes, your honor.”
       During the final discussion on jury instructions, Hegedus reversed course and
requested professional negligence instructions. Hegedus believed his professional
negligence claim had been revived based on Snyder’s testimony regarding compliance
with the three-day meeting rule. The court responded: “I ruled that you don’t have a
standard of care person, that professional negligence requires an expert witness. I said


6
        On appeal, Hegedus appears to suggest that when the court relieved him of his
obligation to prepare jury instructions, he also had no obligation to request jury
instructions. The record is to the contrary. The court asked defense counsel to prepare
all the jury instructions requested by both parties using the software program for the
CACI instructions, but it did not relieve Hegedus of his obligation to request instructions.

                                               7
the only possible way you can get into a possible negligence claim would be on a per se
basis.”
          Hegedus asked the court to “resubmit the negligence per se based on my
understanding of the court’s decision to not allow instructions on ordinary counselor
standard of care in light of the Snyder testimony yesterday.” The trial court denied the
request, stating Hegedus “stipulated [that] negligence is gone.”
          After the jury was instructed and had begun deliberations, Hegedus asked the
court why the jury had not been instructed on professional negligence. The court
explained that Hegedus did not have expert testimony to proceed on a claim for
professional negligence.7
          Hegedus did not request any jury instructions related to the common knowledge
exception. The court asked Hegedus to prepare a negligence per se instruction, but he did
not submit a completed instruction to the court before he withdrew that claim.
    5. Special Verdict, Motion for New Trial, Appeal
          The jury by special verdict decided against Hegedus on his intentional infliction of
emotional distress claims and in favor of BHS, Sebenius, and Snyder.8 After his motion
for new trial was denied, Hegedus filed this timely appeal.9
                                         DISCUSSION
    1. Hegedus’s Stipulations During Trial
          Raising instructional error on claims for professional negligence and negligence
per se, Hegedus ignores the tactical decisions he made during trial not to pursue any




7
     During this colloquy, the court reminded Hegedus that he had waived his claim.
Hegedus responded: “on negligence per se, I agree on that.”
8
          Marsh previously had been dismissed from this action.
9
       For the first time in his reply brief, Hegedus presents arguments addressing his
new trial motion. Issues raised for the first time in a reply brief are forfeited. (American
Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

                                                8
negligence claim. The trial court and defense counsel were justified in relying on
Hegedus’s understanding that the jury would not be instructed on negligence.
          “[A] party may choose to act as his own attorney.” (Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1246-1247.) “ ‘[S]uch a party is to be treated like any other party
and is entitled to the same, but no greater consideration than other litigants and attorneys.
[Citation.]’ [Citation.]” (Id. at p. 1247.) As is the case with attorneys, self-represented
litigants must meet the same standards as the attorneys who appear before the court.
(Ibid.)
          An attorney may bind his or her client with respect to certain procedural matters
during the course of an action. “ ‘In retaining counsel for the prosecution or defense of a
suit, the right to do many acts in respect to the cause is embraced as ancillary, or
incidental to the general authority conferred, and among these is included the authority to
enter into stipulations and agreements in all matters of procedure during the progress of
the trial.’ ” (Linsk v. Linsk (1969) 70 Cal.2d 272, 277; Stewart v. Preston Pipeline Inc.
(2005) 134 Cal.App.4th 1565, 1581-1582.)
          Although an attorney may not stipulate to give up the substantive rights of the
client, he or she may select issues and abandon others during the course of a trial.
(Duffy v. Griffith Co. (1962) 206 Cal.App.2d 780, 787, 789.) “The trial attorney is in full
charge of his client’s cause or defense. When representing the defendant he must
determine in the first instance what defenses shall be averred and what potential ones
shall be omitted. At the trial he must have and exercise discretion to make such tactical
decisions as the exigencies of the combat may dictate. His is the legal knowledge and
skill that must be consulted in that connection, not the views of a layman; often the
decision must be made with celerity and precision. Specifically his is the prerogative of
withdrawing one of two defenses when he concludes that it cannot be sustained and that
its fruitless pursuit may prejudice the other sound defense.” (Id. at p. 787.) As the Duffy
court states, the trial court and opposing counsel are justified in relying upon the apparent
and presumptive authority of the attorney to make tactical decisions to pursue a cause or
defense. (Id. at p. 788.)

                                               9
       Acting as his own attorney at trial, with even more authority over his case than the
attorney in Duffy, Hegedus made tactical decisions related to his negligence claim. He
conceded on the record that it was fruitless to pursue professional negligence against the
defendants because he did not have a qualified expert, and he told the court and defense
counsel that he intended to “focus on negligence per se and the intentional tort.”
Hegedus then narrowed the issues by focusing on establishing regulatory violations to
prove negligence per se, under the theory that a violation of the BHS grievance procedure
constituted a violation of the counselor code of conduct as set for in California Code of
Regulations, title 9, section 13060. Before the jury was instructed, Hegedus agreed to
withdraw his negligence per se claim. Hegedus represented to the court that he
understood the effect of his withdrawal, that is, the jury would not be instructed on any
negligence claim. He cannot now claim instructional error on the very claims he
withdrew and decided not to pursue at trial.
       It appears that Hegedus’s instructional error arguments are premised on his
unsuccessful attempt to rescind (1) his oral agreement not to pursue a professional
negligence claim, and (2) his decision to withdraw his negligence per se claim. “[T]he
court, in the exercise of its sound discretion, may set aside a stipulation entered into
through inadvertence, excusable neglect, fraud, mistake of fact or law, where the facts
stipulated have changed or there has been a change in the underlying conditions that
could not have been anticipated, or where special circumstances exist rendering it unjust
to enforce the stipulation.” (L.A. City Sch. Dist. v. Landier Inv. Co. (1960)
177 Cal.App.2d 744, 750.)
       The trial court did not abuse its discretion in denying Hegedus’s request to be
relieved of his agreement to focus on negligence per se, rather than professional
negligence. Snyder’s testimony, which he argued was sufficient to establish the standard
of care, repeated Cannon’s earlier testimony related to the BHS grievance procedure and
was not an unanticipated sea change that justified reversing the course of the trial.
Taking Snyder’s testimony in the context of the trial, Hegedus was attempting to
establish that the failure to adhere to the BHS grievance procedure violated the

                                               10
counselor’s code of conduct, a necessary element in his negligence per se claim.
Relieving Hegedus of his agreement to focus on negligence per se would have prejudiced
the defendants, not Hegedus. Based upon Hegedus’s representations, the defense did not
call their designated expert witness.
        As for the negligence per se claim, the record indicates that after the jury was
instructed, Hegedus acknowledged that he had withdrawn that theory of liability. There
also is nothing in the record to suggest that there were any grounds that would justify
setting aside his agreement to withdraw this claim, other than an unfavorable ruling in his
attempt to revive his professional negligence claim. Under these circumstances, Hegedus
has not shown reversible error.
     2. Instructional Error
        Giving Hegedus the benefit of the doubt, as the record reflects the court did
throughout the trial, we address his claim of instructional error. Hegedus contends that
the trial court erred in refusing instructions on professional negligence, the common
knowledge exception, and negligence per se. These contentions lack merit. There was
insufficient evidence to instruct the jury on professional negligence; he did not request an
instruction on the common knowledge exception at trial; and Hegedus did not present a
complete instruction to the court to instruct on negligence per se before he agreed to
withdraw this cause of action.
        a. Professional Negligence and Common Knowledge Instructions
        Hegedus contends on appeal that “the court’s decision not to instruct the jury on
professional negligence under the common knowledge exception prejudiced the outcome
of plaintiff’s case and resulted in a miscarriage of justice.” There was no instructional
error. As noted, by the time the jury was instructed, Hegedus’s theory of liability was
limited to recovering emotional distress damages.10



10
      Hegedus argues that the jury’s confusion regarding the definition of “outrageous
conduct,” for purposes of establishing intentional infliction of emotional distress,
demonstrated they were “looking for some other instruction to impose liability.” We
                                              11
              1. Insufficient Evidence to Support Professional Negligence Instruction
       Hegedus’s argument that the jury should have been instructed on professional
negligence is a concession that his claim against BHS and its employees required expert
testimony. He argues the trial court prejudicially erred in refusing to instruct on
professional negligence because Cannon’s and Snyder’s testimony was sufficient expert
testimony to establish duty, breach, and causation. Based upon our independent review
of the record, we are not persuaded.
       “A party is entitled upon request to correct, nonargumentative instructions on
every theory of the case advanced by him which is supported by substantial evidence.”
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Here, there was insufficient
evidence to instruct.
       Whenever negligence in the execution of one’s professional duties is involved,
expert testimony is generally required to establish the applicable standard of care and
breach of that standard. (See Miller v. Los Angeles County Flood Control Dist. (1973)
8 Cal.3d 689, 701-703; Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89,
95.) Hegedus conceded at trial that he could not present expert testimony on a chemical
dependency recovery hospital’s standard of care and breach of the standard of care as to
BHS, its administrators, and its drug and alcohol counselors. Without expert testimony,
there was insufficient evidence to instruct on professional negligence.
       Hegedus contends, however, that Cannon’s and Snyder’s testimony regarding
adherence to the BHS grievance procedure, including the three-day meeting rule, was
sufficient expert testimony. Hegedus maintains that Snyder, the administrator at Redgate,
testified that all employees must adhere to BHS policies and procedures.11 The three-day



cannot speculate on the jury’s confusion, but it is unlikely that it stemmed from the
failure to instruct on other theories of liability.
11
       This cited testimony is far from clear. “Q Now, there are regulations at the level
of the Redgate facility dealing with people. Do you have to figure out ways to implement
those regulations? [¶] A Well, there’s a standard of care – I mean, across B.H.S. So
implementation would not have been appropriate unless there were changes to the
                                             12
meeting rule in the BHS grievance procedure was not adhered to in his case. This
evidence sufficiently apprised the jury of the BHS grievance procedure and that Redgate
did not adhere to these procedures, without further necessity of expert testimony.
Hegedus, however, has not cited to any expert testimony that the failure to follow the
three-day meeting rule in the BHS grievance procedure was a substantial factor in
causing him to go to jail.
       “[P]roffering an expert opinion that there is some theoretical possibility the
negligent act could have been a cause-in-fact of a particular injury is insufficient to
establish causation.” (Jennings v. Palomar Pomerado Health Services, Inc. (2003)
114 Cal.App.4th 1108, 1118.) Expert testimony positing a “ ‘mere possibility of such
causation is not enough; and when the matter remains one of pure speculation or
conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the
court to direct a verdict for the defendant.’ ” (Saelzler v. Advanced Group 400 (2001)
25 Cal.4th 763, 775-776.)
       It is purely speculative that the failure to adhere to the three-day meeting rule in
the BHS grievance procedure was a substantial factor in causing Hegedus to go to jail.
Pursuant to the grievance procedure, Snyder had three business days after the scheduled
meeting to reach a decision on the appeal. Doing the simple arithmetic, assuming Snyder
received the appeal letter delivered by Lloyd, or Marsh personally delivered his copy to
Snyder on September 1, Hegedus calculates that Snyder would have had three business
days, or until the close of business on September 4 to schedule the meeting. After the
scheduled meeting, Snyder had to render a decision on the grievance within three
business days, or by September 9.12 Hegedus was taken into custody on September 5 for
a probation violation, before a decision would have been required under the BHS
grievance procedure.


standard of care. And – But making sure that the policies and procedures are adhered to,
yes.”
12
       We take judicial notice of the 2008 calendar. (Evid. Code, § 452, subd. (f).)

                                             13
       It also is purely speculative that Hegedus would have been reinstated at Redgate if
the meeting had been scheduled. Hegedus concludes that “[Cannon] also pinned
proximate cause on Snyder by stating that once she received plaintiff’s appeal letter, she
offered reinstatement in four (4) days.” Cannon, however, upheld the discharge from
Redgate. She testified that Hegedus could not return to Redgate and located another BHS
facility for his treatment. Hegedus instead pleaded guilty to a probation violation. This
evidence establishes, at most, a mere possibility, which is not enough to present the issue
to the jury. Accordingly, there was insufficient evidence to instruct on professional
negligence.
              2. Common Knowledge Exception Instruction Was Never Requested
       To claim error, Hegedus must show where in the record the instruction was
requested. (Douglass v. Webb (1962) 209 Cal.App.2d 290, 303.) As the Supreme Court
has recognized, “ ‘ “ ‘[i]n a civil case, each of the parties must propose complete and
comprehensive instructions in accordance with his theory of the litigation; if the parties
do not do so, the court has no duty to instruct on its own motion.’ [Citations.]”
[Citation.]’ ” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.)
The failure to instruct on the common knowledge exception was not error.
       In professional negligence cases, the Supreme Court has articulated a “common
knowledge exception” to the expert testimony requirement. “ ‘ “The standard of care
against which the acts of a physician are to be measured is a matter peculiarly within the
knowledge of experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony [citations], unless the conduct required by the particular
circumstances is within the common knowledge of the layman.” [Citations.]’
[Citations.] The ‘common knowledge’ exception is principally limited to situations in
which the plaintiff can invoke the doctrine of res ipsa loquitor, i.e., when a layperson ‘is
able to say as a matter of common knowledge and observation that the consequences of
professional treatment were not such as ordinarily would have followed if due care had
been exercised.’ [Citations.] The classic example, of course, is the X-ray revealing a


                                             14
scalpel left in the patient’s body following surgery. [Citations.]” (Flowers v. Torrance
Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. omitted (Flowers).)
       Hegedus did not request the common knowledge exception instruction, and he
does not articulate or proffer the instruction that he would have proposed. Instead,
Hegedus argues the trial court should have instructed the jury on the duty of the hospital
(CACI No. 514) and the standard of care (CACI No. 600). Both instructions require
expert testimony. The common knowledge exception was an afterthought, raised by
Hegedus for the first time in his motion for new trial. Even if it had been requested, the
instruction would not have been appropriate because Hegedus no longer had any
negligence claim by the time the jury was instructed.
       To the extent Hegedus views the common knowledge exception as the equivalent
of ordinary negligence, he “confuses the manner of proof by which negligence must be
established and the character of the negligence itself.” (Flowers, supra, 8 Cal.4th at
p. 1000.) Hegedus conceded that the duty of care owed by BHS and its employees
required the degree of skill and knowledge possessed and exercised by members of that
profession, rather than an ordinary standard of care.13 As the Supreme Court noted in
Flowers, “[a]s to any given defendant, only one standard of care obtains under a
particular set of facts, even if the plaintiff attempts to articulate multiple or alternate


13
       Hegedus cites several cases addressing the distinction between professional
negligence and ordinary negligence in a hospital setting. (Flowers, supra, 8 Cal.4th 992;
Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690; Gopaul v.
Herrick Memorial Hosp. (1974) 38 Cal.App.3d 1002.) Only the Massey court applied the
common knowledge exception. (Massey v. Mercy Medical Center Redding, supra, at
pp. 695-697.) Massey is similar to the line of res ipsa loquitor cases where a foreign
object is discovered in a patient after surgery. Massey involved a nurse’s duty to his
patient. The patient was on a fall-prevention protocol. The patient needed assistance to
walk short distances with his walker, and he fell when the nurse left him unattended on
his walker for 15 minutes. (Id. at pp. 696-697.) As the Massey court noted, “common
knowledge and experience can be used to determine whether the patient fell because she
or he was insufficiently attended to by medical personnel.” (Id. at p. 697.) This legal
theory is inapplicable here because, in this case, the injury (i.e., serving a jail sentence)
could have happened in the absence of negligence.

                                               15
theories of liability.” (Flowers, supra, 8 Cal.4th at p. 998.) Thus, there was no error in
failing to instruct on an inapplicable legal theory never presented at trial.
       b. Proposed Negligence Per Se Instruction Was Incomplete and Withdrawn
       Even if Hegedus no longer stands by his agreement to withdraw his negligence
per se claim, there was no error. Hegedus had to present a complete instruction to the
court. (Metcalf v. County of San Joaquin, supra, 42 Cal.4th at pp. 1130-1131.) While
Hegedus presented a draft instruction to opposing counsel, it was never finalized, or
presented and rejected by the court. Thus, Hegedus has forfeited this claim of error.
       Hegedus also appears to contend there was sufficient evidence presented to
instruct on negligence per se based on Ito’s testimony that Marsh and Snyder violated the
counselor code of conduct (Cal. Code Regs., tit. 9, § 13060). “ ‘[T]he doctrine of
negligence per se . . . creates an evidentiary presumption that affects the standard of care
in a cause of action for negligence.’ [Citation.]” (Johnson v. Honeywell Internat. Inc.
(2009) 179 Cal.App.4th 549, 555.) Evidence Code section 669 creates a presumption of
negligence where a defendant “(1) . . . violated a statute, ordinance, or regulation of a
public entity; [¶] (2) The violation proximately caused death or injury to person or
property; [¶] (3) The death or injury resulted from an occurrence of the nature which the
statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person
suffering the death or the injury to his person or property was one of the class of persons
for whose protection the statute, ordinance, or regulation was adopted.” The first two
elements are questions of fact, while the latter two are questions of law. (Galvez v.
Frields (2001) 88 Cal.App.4th 1410, 1420.)
       Hegedus was not entitled to this instruction as a matter of law. He presented no
evidence that his injury, that is, serving his jail sentence, was related to Marsh’s charting
error or Snyder mistakenly holding herself out as a marriage and family therapist.
Moreover, Hegedus did not present evidence that the failure to adhere to the internal BHS
grievance procedure violated a statute, ordinance, or regulation of a public entity. Thus,
Hegedus has not shown instructional error.


                                              16
                                 DISPOSITION
     The judgment is affirmed. No costs are awarded.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             ALDRICH, J.




We concur:




             CROSKEY, Acting P. J.




             KITCHING, J.




                                        17
