Eden Township Healthcare District v. Eden Medical Center

Filed 10/9/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

EDEN TOWNSHIP HEALTHCARE

DISTRICT, A136695

Cross-complainant and Respondent,

(Alameda County

v. Super. Ct. No. RG09-481573)

EDEN MEDICAL CENTER,

Cross-defendant and Appellant.

Cross-defendant Eden Medical Center (EMC) appeals the trial court‘s order

denying its motion for attorney fees under Civil Code section 1717 (section 1717). The

motion was denied after cross-complainant Eden Township Healthcare District (District)

unsuccessfully sought declaratory relief to have certain agreements declared illegal and

void under Government Code section 1090.1 EMC claims the court erred in finding that

the action on which EMC prevailed was not ―on a contract‖ within the meaning of

section 1717. We agree and reverse, and remand to the lower court to award EMC its

attorney fees.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This is the second time we have considered an appeal in this case. (See Eden

Township Healthcare Dist. v. Sutter Health (2011) 202 Cal.App.4th 208 (Eden I).)

1

Government Code section 1090 provides in relevant part: ―Members of the

Legislature, state, county, district, judicial district, and city officers or employees shall

not be financially interested in any contract made by them in their official capacity, or by

any body or board of which they are members.‖ Where a prohibited interest is found, the

affected contract is void from its inception. (Thomson v. Call (1985) 38 Cal.3d 633, 646

& fn. 15.)

I. The Parties and the History of Their Written Agreements

We quote at length from our discussion of the facts in our prior opinion:2

―The District is a public agency established in 1948 pursuant to California‘s Local

Health Care District Law (Health & Saf. Code, § 32000 et seq.). The mission of the

District is to ‗fulfill the function of protecting the public health and welfare by furnishing

hospital services [and] provid[ing] for the public health and welfare . . . .‘ (Talley v.

Northern San Diego Hosp. Dist. (1953) 41 Cal.2d 33, 40, overruled on other grounds in

Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 213.) The District‘s operations

are overseen by a board comprised of five publicly elected members. . . . Prior to 1998,

the District owned and operated multiple hospitals in Alameda County, including [Eden

Hospital (Eden)] in Castro Valley.

―[Sutter Health (Sutter)] is a California nonprofit public benefit corporation.

Sutter does not own any hospitals. The 24 hospitals with which Sutter is affiliated are

owned by other nonprofit public benefit corporations. Sutter is a ‗member‘ of each of

these nonprofit public benefit corporations, including EMC.

―EMC is a California nonprofit corporation that was formed to operate Eden for

the District. EMC also operates [San Leandro Hospital (SLH)], which is a general acute

care hospital with an emergency services department. EMC currently leases SLH from

the District. EMC is owned not by shareholders, but by its two members. The District is

the ‗Community Member‘ of EMC, and Sutter is its ‗General Member.‘ During the time

period relevant to this lawsuit, EMC had 11 voting directors, five of whom were the

members of the District‘s board.

―[¶] . . . [¶]

―In 1997, Sutter purchased Eden from the District for $30 million, plus an

assumption of approximately $40 million of District debt. Sutter also invested

approximately $65 million in improvements to the hospital campus, including the

purchase of adjoining property to expand. Pursuant to a 1997 memorandum of

2

We take judicial notice of our opinion in Eden I, and of the record in that case.

2

understanding between the District and Sutter (the 1997 MOU), Eden‘s assets were

transferred to EMC, then known as ‗NewCo.‘ . . .

―By the early 2000‘s, Eden, which was built in the 1950‘s, faced the prospect of

closure because the facility did not meet current seismic code requirements. To address

this problem, the District entered into an agreement in 2004 (the 2004 Agreement) by

which EMC agreed to spend at least $262 million to construct a new hospital to replace

Eden. Around this time, the District purchased SLH from a third party and leased it to

EMC, on the condition that EMC maintain general acute care services at SLH for three

years. Sutter guaranteed EMC‘s obligations under the 2004 Agreement. The 2004

Agreement further provided that if the replacement hospital was not operational by

December 2011, EMC would purchase SLH at a price equal to $35 million, minus

straight line depreciation.

―In 2006, Sutter notified EMC‘s board, including the five District board members,

that it would not build the contemplated replacement hospital. In November 2006, the

District notified respondents that they were in breach of their contractual obligation to the

District to construct the replacement hospital. The District claimed Sutter‘s notification

amounted to an anticipatory breach and threatened to sue Sutter for $262 million if it did

not provide ‗adequate written assurance‘ that it would construct the replacement hospital.

―[¶] . . . [¶]

―The negotiations ultimately resulted in a series of related agreements, including a

new memorandum of understanding and an amended and restated lease and hospital

operations agreement (the 2008 Lease), which were signed by the parties in March 2008

(collectively, the 2008 Agreements). Under the 2008 Agreements, Sutter committed to

spending $300 million to construct the replacement hospital, secured by a $260 million

escrow deposit. Additionally, the provision in the 2004 Agreement that had called for the

District to sell SLH to Sutter was converted into an option for Sutter to purchase. The

2008 Agreements also required the District board members to resign as directors of EMC

six months after a notice of commencement of construction of the new hospital had been

delivered. . . .

3

―Construction of the replacement hospital began on July 15, 2009.

―On July 27, 2009, Sutter exercised its option to purchase SLH. Sutter announced

that after it acquired title it planned to lease SLH to another party in order to convert the

facility from an acute care emergency services hospital to an acute rehabilitation hospital.

According to the District‘s brief [filed in Eden I], ‗a newly constituted District board

determined that it was not in the best interests of the citizens served by the District to

allow [SLH] to be transferred to Sutter and closed as a provider of emergency care

services.‘ The District refused to convey SLH to Sutter, asserting Sutter had breached an

obligation to convert the fourth floor of SLH to acute rehabilitation. Sutter then

commenced arbitration proceedings against the District.

―On October 27, 2009, Sutter filed a complaint against the District for specific

performance of a written agreement to convey real property and for damages. The

complaint alleges the District refused to proceed with the sale of SLH, in repudiation and

breach of the 2008 Lease and of the purchase and sale agreement that was formed upon

Sutter‘s exercise of the option. Sutter indicated it had filed the action to preserve its

rights while the dispute was being arbitrated. The complaint seeks specific performance

of the purchase and sale agreement, delay damages for breach of contract, constructive

trust, and declaratory relief concerning the parties‘ rights and duties with respect to the

transfer of title to SLH.

―On December 3, 2009, the parties filed a stipulation to stay the lawsuit pending

arbitration. The trial court ordered the action stayed.

―On March 8, 2010, the arbitrator issued his decision finding Sutter was entitled to

an award of specific performance of its right to a conveyance of SLH. The arbitrator

specifically did not rule on the legality of the 2008 Agreements, including the issue of

whether any of the agreements had been created in violation of [Government Code]

section 1090. The decision preserved the District‘s right to seek to vacate the award by

challenging the validity of the 2008 Agreements.

4

―On March 10, 2010, the District filed its answer to Sutter‘s complaint. As its first

affirmative defense, the District alleged that the contracts underlying the complaint are

illegal and invalid under [Government Code] section 1090.

―Also on March 10, 2010, the District filed a cross-complaint for declaratory and

injunctive relief against [Sutter and EMC]. In the declaratory relief action, the District

contended that the 2008 Agreements are void under [Government Code] sections 1090

and 1092[3] because certain District board members and executives who participated in

the negotiation, drafting, approval, and execution of the 2008 Agreements had a

prohibited financial interest therein.

―On April 22, 2010, [Sutter and EMC] filed their answer to the District‘s cross-

complaint.

―On September 15, 2010, the District filed a motion for summary adjudication of

its cause of action for declaratory relief, asserting the 2008 Agreements are void under

[Government Code] sections 1090 and 1092.

―On September 16, 2010, [Sutter and EMC] filed a motion for summary judgment.

[They] contended the District could not establish the elements of its causes of action. . . .

―[¶] . . . [¶]

―On November 12, 2010, the trial court filed its order granting respondents‘

motion for summary judgment on the District‘s cross-complaint and denying the

District‘s motion for summary adjudication.‖ (Eden I, supra, 202 Cal.App.4th at

pp. 213–218, fns. omitted.]

On December 21, 2011, we affirmed the trial court‘s judgment in Eden I, and the

Supreme Court denied review.

3

―[Government Code section] 1092 sets forth some of the consequences of a civil

violation of [Government Code] section 1090‘s rule against conflicts of interest:

‗(a) Every contract made in violation of any of the provisions of Section 1090 may be

avoided at the instance of any party except the officer interested therein. No such

contract may be avoided because of the interest of an officer therein unless the contract is

made in the official capacity of the officer, or by a board or body of which he or she is a

member.‘ . . .‖

5

On May 22, 2012, EMC filed an amended motion for attorney fees and costs.

On August 29, 2012, the trial court filed its order denying EMC‘s request for

attorney fees. The court found the action was not ―on a contract‖ for purposes of

section 1717. This appeal followed.

DISCUSSION

I. Standard of Review

―On appeal this court reviews a determination of the legal basis for an award of

attorney fees de novo as a question of law.‖ (G. Voskanian Construction, Inc. v.

Alhambra Unified School Dist. (2012) 204 Cal.App.4th 981, 995.)

II. Section 1717 and Attorney Fee Awards

California follows the ― ‗American rule,‘ ‖ under which each party to a lawsuit

must pay its own attorney fees unless a contract or statute or other law authorizes a fee

award. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10); Musaelian v. Adams (2009)

45 Cal.4th 512, 516.)

Section 1717 governs attorney fees awards authorized by contract and incurred in

litigating claims sounding in contract. (Frog Creek Partners, LLC v. Vance Brown, Inc.

(2012) 206 Cal.App.4th 515, 523; Silverado Modjeska Recreation & Park Dist. v. County

of Orange (2011) 197 Cal.App.4th 282, 310.) Under that statute, when a contract

provides for an award of fees ―incurred to enforce that contract,‖ ―the party prevailing on

the contract . . . shall be entitled to reasonable attorney‘s fees . . . .‖ (§ 1717, subd. (a).)4

―The primary purpose of section 1717 is to ensure mutuality of remedy for attorney fee

claims under contractual attorney fee provisions.‖ (Santisas v. Goodin (1998) 17 Cal.4th

599, 610.) Thus, ―when a party litigant prevails in an action on a contract by establishing

that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717

4

Section 1717, subdivision (a) provides, in part: ―In any action on a contract,

where the contract specifically provides that attorney‘s fees and costs, which are incurred

to enforce that contract, shall be awarded either to one of the parties or to the prevailing

party, then the party who is determined to be the party prevailing on the contract, whether

he or she is the party specified in the contract or not, shall be entitled to reasonable

attorney‘s fees in addition to other costs.‖

6

permits that party‘s recovery of attorney fees whenever the opposing parties would have

been entitled to attorney fees under the contract had they prevailed.‖ (Id. at p. 611, italics

added.)

In the present case, we consider whether a party who defends against an action for

declaratory and injunctive relief in which the complaining party unsuccessfully asserts

that the underlying contract is illegal and invalid may recover its attorney fees from the

complaining party.

III. Contentions of the Parties

It is uncontested that EMC is the prevailing party in the underlying action. EMC

(and Sutter) established that the 2008 Agreements were not made in violation of

Government Code section 1090. The basis for an attorney fees award asserted in this

case was contractual: EMC requested attorney fees under a clause in the 2008

memorandum of understanding (2008 MOU), which provides: ―The prevailing party in

any action or proceeding commenced in court for breach of this Agreement shall be

entitled to its attorneys‘ fees, costs, and expenses of experts incurred in prosecuting or

defending such action or proceeding.‖ We also note the 2008 MOU specifically

incorporates the 2008 Lease.

A. An Action to Avoid Enforcement is an “Action on a Contract”

EMC first argues that an action to avoid enforcement of a contract is an action ―on

a contract‖ within the meaning of section 1717. We agree.

―California courts construe the term ‗on a contract‘ liberally.‖ (Turner v. Schultz

(2009) 175 Cal.App.4th 974, 979 (Turner).) The phrase ―action on a contract‖ includes

not only a traditional action for damages for breach of a contract containing an attorney

fees clause (e.g., Jones v. Drain (1983) 149 Cal.App.3d 484, 487–488), but also any other

action that ―involves‖ a contract under which one of the parties would be entitled to

recover attorney fees if it prevails in the action (e.g., Mitchell Land & Improvement Co. v.

Ristorante Ferrantelli, Inc. (2007) 158 Cal.App.4th 479, 486). ―In determining whether

an action is ‗on the contract‘ under section 1717, the proper focus is not on the nature of

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the remedy, but on the basis of the cause of action.‖ (Kachlon v. Markowitz (2008)

168 Cal.App.4th 316, 347.)

―Employing this approach, courts have held the phrase ‗action on a contract‘ as

used in section 1717 includes an action seeking declaratory and injunctive relief to

enforce a consent decree [citation] or to avoid enforcement of an arbitration clause

[citation]; an action seeking declaratory and injunctive relief and quiet title based on

violations of the terms of a promissory note and deed of trust [citation]; an unlawful

detainer action based on a lessee‘s alleged breach of covenants in a lease [citation]; a

conversion action based on breach of a safe deposit box contract [citation]; and an action

for reformation of a contract [citation]. [¶] In contrast, courts have held the phrase ‗action

on a contract‘ as used in section 1717 does not include an action asserting only tort

claims [citation]; a tort action for fraud arising out of a contract [citation]; an action

including a claim labeled breach of contract but not seeking to enforce anyone‘s rights

under the only contract containing an attorney fees clause [citation]; an unjust enrichment

cause of action [citation]; an action on a contract that does not contain an attorney fees

provision [citation]; an unlawful detainer action based on tortious holding over after

expiration of a lease [citation]; an action against an attorney for professional negligence

[citation]; or an action to enforce a judgment obtained for breach of a promissory note

[citation].‖ (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th

230, 241 (Douglas E. Barnhart).)

In its review of pertinent legal authority, the appellate court in Douglas E.

Barnhart, distilled the following principle: ―An action (or cause of action) is ‗on a

contract‘ for purposes of section 1717 if (1) the action (or cause of action) ‗involves‘ an

agreement, in the sense that the action (or cause of action) arises out of, is based upon, or

relates to an agreement by seeking to define or interpret its terms or to determine or

enforce a party‘s rights or duties under the agreement, and (2) the agreement contains an

attorney fees clause.‖ (Douglas E. Barnhart, supra, 211 Cal.App.4th at pp. 241–242.) In

the instant case, both of these prongs are satisfied.

8

By its cross-complaint, the District sought to invalidate the 2008 Agreements.

Candidly, it is difficult to think of an action that is more likely to be characterized as an

―action on a contract‖ than one in which the party bringing the action explicitly seeks to

have the subject contract declared void and invalid in its entirety. And, as noted above,

the 2008 MOU contains a provision for attorney fees and costs.

We addressed an analogous situation in Shadoan v. World Savings & Loan, Assn.

(1990) 219 Cal.App.3d 97 (Shadoan). In Shadoan, the loan agreement provided: ― ‗If

legal action is instituted to enforce any of the terms or provisions of this note, the lender

shall be entitled to recover all costs and expenses incurred in bringing such action,

including reasonable attorney‘s fees, the amount of which shall be determined by the

Court.‘ ‖ (Id. at p. 107.) The plaintiffs sued for a refund of a prepayment penalty, both

for themselves and on behalf of others, alleging the defendant had committed an unfair

business practice in charging the penalty. (Id. at pp. 100–101.) We noted that the

plaintiffs‘ action did not fall within the express provision of the attorney fees clause,

because the action was not instituted to enforce a provision of the contract. Nevertheless,

we held that the action was ―on a contract‖ (with respect to the plaintiffs‘ own claim for

recovery) because the challenge to the prepayment penalty could have been raised as a

defense to an action to enforce the terms of the contract, though the defendant clearly

could not have brought such an action because the plaintiffs had already paid the

prepayment penalty in accordance with their loan agreement. (Id. at pp. 107–108.)

Similarly, had the circumstances been such that EMC was seeking to enforce a provision

of the 2008 Lease against the District, the District could have alleged as a defense the

invalidity of the agreement under Government Code section 1090. In fact, the District

did just that in its answer to Sutter‘s complaint.

In Turner, the plaintiff had entered a buy-sell agreement with two other

shareholders. (Turner, supra, 175 Cal.App.4th 974, 977.) The agreement contained an

arbitration clause stating that in the event a controversy arose out of the buy-sell

agreement, the claims would be settled by arbitration. A dispute arose out of the

agreement and the two shareholders and the company demanded arbitration. The

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plaintiff filed two actions seeking to avoid arbitration. (Id. at pp. 977–978.) The two

shareholders and the company defeated both actions. (Id. at p. 978.) They then

successfully moved for attorney fees. (Ibid.) The appellate court affirmed, holding that

fees may be properly awarded under section 1717 to the extent that the action is in fact an

action to enforce—or avoid enforcement of—the specific contract. (Turner, at p. 980.)

In the present case, EMC could not have brought a lawsuit for breach of the 2008

Agreements, because the District had performed its obligations. The District filed the

instant action to have the 2008 Agreements declared invalid, thereby allowing it to

unwind its performance made to satisfy those agreements. Under Shadoan, EMC is

entitled to attorney fees, because the same issue could have been raised by the District as

a defense to a breach of contract claim. Here, the issue was raised affirmatively in an

effort to legitimize the District‘s position that it would incur no liability if it took actions

contrary to the 2008 Agreements. Additionally, we note the District sought attorney fees

as against both Sutter and EMC in its cross-complaint. This is strong indicia that the

District intended its action to be ―on the contract.‖5

B. Whether the 2008 MOU Authorizes EMC’s Attorney Fees

The District asserts the relevant provision in the 2008 MOU does not allow EMC

to recover its fees. As noted above, that provision provides: ―The prevailing party in any

action or proceeding commenced in court for breach of this Agreement shall be entitled to

its attorneys‘ fees, costs, and expenses of experts incurred in prosecuting or defending

such action or proceeding.‖ (Italics added.) The District claims that neither it nor EMC

commenced an action for breach of the 2008 Agreements. Instead, the District references

5

EMC further notes that the District‘s cross-complaint sought to reinstate the

1997 MOU between the District, EMC, and Sutter. The 1997 MOU contains the

following attorney fee provision: ―In the event of any suit under this Agreement, there

shall be allowed to the prevailing Party, to be included in any judgment recovered,

reasonable attorneys‘ fees to be fixed by the court.‖ EMC reasons that the District‘s

declaratory relief action was a suit under the 1997 MOU as the action sought to resurrect

that agreement and enforce its terms. In light of our conclusions, we need not address

this issue.

10

Sutter‘s complaint, which was brought against the District for breach of the 2008 Lease.

The District claims EMC is not entitled to attorney fees because it is not a party to that

action. But EMC is not seeking attorney fees as the prevailing party with respect to

Sutter‘s lawsuit. Rather, EMC is seeking its attorney fees because the District chose to

file a cross-complaint against EMC in an action ―on a contract‖ under section 1717. In

filing the cross-complaint, the District initiated this action against EMC seeking to have

the 2008 Agreements declared void so that it would no longer be obligated to EMC under

those agreements. Thus, this case is controlled by cases such as Turner and Shadoan,

holding that a contracting party who successfully defends against a claim that the

underlying contract is void is entitled to attorney fees as the prevailing party under

section 1717, regardless of whether the defendant previously had asserted its own

affirmative claim to enforce the contract.

The District also contends that the language of the fee provision in the 2008 MOU

does not allow attorney fees to be awarded to EMC because it did not commence the

cross-complaint for breach of the 2008 Agreements. But the District commenced this

action to establish the opposite, namely, that its performance could be unwound,

essentially in breach of the 2008 Agreements, because these agreements were void ab

initio. Thus, EMC‘s defense was commenced to uphold the validity of the agreements

and, in essence, forestall the District‘s anticipatory breach.

In its brief on appeal, the District also attempts to distinguish the instant matter by

discussing cases that apply the ―mutuality of remedy‖ and the ―necessary step‖ doctrines.

The ―mutuality of remedy‖ doctrine is typically used in cases in which a party establishes

that it is either not a party to a contract,6 or that the contract it is a party to is void or

6

―For example a nonsignatory who prevails in an action on the contract is entitled

to attorney fees provided it would have been liable for fees had the other party prevailed.

[Citation.] Conversely, on occasion attorney fees may be assessed against a nonsignatory

who loses an action on the contract. [Citation.] ‗[T]he courts have generally ruled that, if

a prevailing signator would be entitled to fees against a nonprevailing nonsignator, then

nonsignators in litigation on such contracts are both entitled to attorney fees if they

11

unenforceable. Under that doctrine, if the party would have been exposed to fees had the

court found against it, then that party is entitled to fees for prevailing. EMC contends the

facts of this case do not directly implicate this doctrine because the 2008 Agreements

have been deemed valid. It is worth noting, however, that if the District had established

the invalidity of the 2008 Agreements, then the District could have invoked the mutuality

of remedy doctrine to establish its entitlement to attorney fees. This conclusion is

enforced by the District‘s inclusion of a prayer for attorney fees in its cross-complaint.7

We conclude awarding attorney fees to the party who successfully thwarts the other

party‘s efforts to have a contract declared void at its inception is consistent with the

mutuality of remedy doctrine.8

According to the District, the ―necessary step‖ doctrine applies when a party

prevails on a claim or defense that is not ―on a contract,‖ but which is a necessary step to

enforcing its rights under a contract. In those situations, courts award fees for prevailing

on the intermediate (noncontract) claim or defense because the fees were necessarily

prevail and obligated to pay attorney fees if another party prevails.‘ [Citation.]‖

(Hyduke’s Valley Motors v. Lobel Financial Corp. (2010) 189 Cal.App.4th 430, 435.)

7

On appeal, the District claims it would not have been able to collect its attorney

fees from EMC had it prevailed on its cross-complaint because EMC was not a party to

the breach of contract action filed by Sutter. Courts have held the mere pleading of a

right to fees does not create an estoppel when the pleader would not have actually been

entitled to recover fees in the event it had prevailed on the merits. (Sessions Payroll

Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 681–682

[nonsignatory suing as a third party beneficiary had no right to recover attorney fees

under the contract and was not stopped from contesting attorney fee award]; see Scott Co.

v. Blount, Inc. (1999) 20 Cal.4th 1103, 1113–1114 [― ‗To achieve its goal, [section 1717]

generally must apply in favor of the party prevailing on a contract claim whenever that

party would have been liable under the contract for attorney fees had the other party

prevailed.‘ ‖].) Here, the District was a party to the contract and it appears it would have

had a right to claim its attorney fees under the mutuality of remedy doctrine had it

prevailed on its cross-complaint.

8

We agree with the following observation: ―A prevailing defendant should not be

required to undergo a minitrial to establish the merit of the losing plaintiff’s hypothetical

fee claim under the contract on which the plaintiff sued.‖ (Linear Technology Corp. v.

Tokyo Electron Ltd. (2011) 200 Cal.App.4th 1527, 1538.)

12

expended to prevail on the contract. Our own research does not support the existence of

this principle as an established ―doctrine.‖ Regardless, here there was no intermediate

noncontractual step. Instead, EMC was compelled by the District‘s actions to defensively

enforce the 2008 Agreements, thereby obtaining relief from breach of those agreements.

Thus the so-called ―necessary step‖ doctrine has no application.

We therefore conclude that having elected to proceed with its contractual

invalidation theory, the District put the 2008 MOU‘s attorney fees clause in play:

―Where an attorney fee clause provides for an award of fees incurred in enforcing the

contract, the prevailing party is entitled to fees for any action ‗on the contract,‘ whether

incurred offensively or defensively. [Citations.]‖ (Turner, supra, 175 Cal.App.4th 974,

980.) Having failed in its attempt to prove that the 2008 Agreements are void, the

District is now liable for EMC‘s attorney fees under section 1717.

DISPOSITION

The order is reversed and the matter is remanded to the trial court to award EMC

its attorney fees.

__________________________________

Dondero, J.

We concur:

__________________________________

Margulies, Acting P. J.

__________________________________

Banke, J.

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Eden Township Healthcare District v. Eden Medical Center, Inc., A136695

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Marshall Ivan Whitley

Counsel:

DLA Piper LLP, Stephen L. Goff, Marcia L. Augsburger, and Ashley H. Joyce for Cross-

defendant and Appellant Eden Medical Center.

Pillsbury Winthrop Shaw Pittman LLP, Christopher R. Rodriguez, Darcy L. Muilenburg,

and Kevin M. Fong for Cross-complainant and Respondent Eden Township Healthcare

District.

14