Judge: Ashfaq G. Chowdhury, Case: 24NNCV00733, Date: 2024-07-19 Tentative Ruling
Case Number: 24NNCV00733 Hearing Date: July 19, 2024 Dept: E
Case No: 24NNCV00733
Hearing Date: 07/19/2024 – 8:30am
Trial Date: UNSET
Case Name: A. AKHMEDOV, a minor, by and through
his Guardian Ad Litem Amina Akhmedova; A. AKHMEDOVA, a minor, by and through
her Guardian Ad Litem Amina Akhmedova; and AMINA AKHMEDOVA, an individual; v. RICHARD
GERARDO, an individual; RICHARD C. GERARDO DC, INC., a California corporation;
and DOES 1-50, inclusive.
TENTATIVE RULING ON
MOTION TO STRIKE
Moving Party: Defendants, Richard Gerardo, D.C. and Richard C. Gerardo, D.C., Inc.
Responding Party: Plaintiff,
A. Akhmedov
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address: No/Yes- Defendants did not serve Plaintiff’s counsel at the
email address listed for Plaintiff’s counsel on eCourt; however, Plaintiff
appears to have received the moving papers because an Opposition was filed by
Plaintiff’s counsel.
Moving Papers: Notice/Motion;
Daniel K. Dik Declaration
Opposition Papers: Opposition
Reply Papers: Reply
RELIEF REQUESTED
“[D]efendants
RICHARD GERARDO, D.C. and RICHARD C. GERARDO, D.C., INC. will move, pursuant to
Code of Civil Procedure sections 435, 435.5 and 436, to strike the following
portions of plaintiffs' operative complaint:
1. At paragraph 14, page 4, lines 15 to 21 as follows:
"The foregoing conduct of Defendants, and each of
them, and Does 1 to 50, were intended by the Defendants to cause injury to
Plaintiffs or was otherwise despicable conduct carried on by the Defendants
with willful and conscious disregard of the rights of Plaintiffs or subjected
Plaintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs'
rights, and was undertaken with Defendants' prior knowledge, consent, and was
thereafter ratified and therefore constitute malice, oppression, or fraud under
Civil Code §3294, thereby entitling Plaintiffs to punitive damages in an amount
according to proof at the time of trial."
2. At paragraph 40, page 8, lines 24 to 26 as follows:
"The alleged actions of Defendant GERARDO actions
were oppressive, burdensome, willful, malicious, callous, wanton, intentional,
and grossly reckless; thus warranting an assessment of punitive damages against
all Defendants."
3. In the Prayer, item 3, page 12, lines 8 to 10 as
follows:
"For punitive damages in an amount according to
proof at the time of trial for the Second and Third Causes of Action by
Plaintiff A. AKHMEDOV against Defendants, and each of them;"
The motion is based on this Notice of Motion, the
accompanying Memorandum of Points and Authorities, the operative complaint, and
upon any other matter that may be brought to the attention of the Court at or
before the hearing. As set forth in the Declaration of Daniel K. Dik
accompanying this motion reasonable efforts were made pursuant to Code of Civil
Procedure §435.5 to meet and confer to resolve these issues before this motion
was filed.”
(Mot. p. 1-2.)
[The Court notes that although Defendants indicate in
their notice that they seek to strike ¶ 14 of the Complaint, Defendants likely
meant to indicate they were seeking to strike ¶ 15 because the quoted language
that Defendants seek to strike that Defendants indicate is at ¶ 14 is in fact
at ¶ 15 of the Complaint. Further, the memorandum references to ¶ 15, 40, and
item 3 in the Prayer. Thus, this Court will construe this motion to strike as
seeking to strike ¶ 15, ¶ 40 and item 3 in the Prayer of the Complaint filed on
4/3/2024.]
PROCEDURAL
Meet
and Confer
Before filing a motion to strike pursuant to
this chapter, the moving party shall meet and confer in person or by telephone
with the party who filed the pleading that is subject to the motion to strike
for the purpose of determining if an agreement can be reached that resolves the
objections to be raised in the motion to strike. If an amended pleading is
filed, the responding party shall meet and confer again with the party who
filed the amended pleading before filing a motion to strike the amended
pleading. (CCP § 435.5(a).)
“A determination by the
court that the meet and confer process was insufficient shall not be grounds to
grant or deny the motion to strike.” (CCP § 435.5(a)(4).)
Here, Defendants’
counsel met and conferred. (See Dik Decl. ¶ 2.)
Legal Standard Motion to Strike
The court may, upon a motion, or at any time in
its discretion, and upon terms it deems proper, strike any irrelevant, false,
or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the
grounds that a complaint fails to state facts sufficient to constitute a cause
of action, but instead is properly based on grounds of superfluous or abusive
allegations, or improprieties in form or procedure. (Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509,
528-29.)
The grounds for moving
to strike must appear on the face of the pleading or by way of judicial
notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of
Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read
allegations of a pleading subject to a motion to strike as a whole, all parts
in their context, and assume their truth”].)
Further, CCP
§431.10(a)-(c) states as follows:
(a) A material allegation in a pleading is one essential
to the claim or defense and which could not be stricken from the pleading
without leaving it insufficient as to that claim or defense.
(b) An immaterial allegation in a pleading is any of the
following:
(1) An allegation that is not essential to the statement
of a claim or defense.
(2) An allegation that is neither pertinent to nor
supported by an otherwise sufficient claim or defense.
(3) A demand for judgment requesting relief not
supported by the allegations of the complaint or cross-complaint.
(c) An “immaterial allegation” means “irrelevant matter”
as that term is used in Section 436.
(CCP §431.10(a)-(c).)
ANALYSIS
Plaintiffs
filed a Complaint on 4/3/2024 alleging four causes of action: (1) Professional
Negligence (Medical Malpractice), (2) Assault/Battery, (3) Intentional
Infliction of Emotional Distress, and (4) Negligent Infliction of Emotional
Distress.
Plaintiffs allege that Defendant Richard Gerardo is a
licensed chiropractor established in the state of California and owned,
operated, managed, or otherwise controlled the business establishment, Richard
C. Gerardo DC, Inc. (Compl. ¶ 2.) Plaintiffs state the that the term “Subject
Premises” shall refer to the chiropractor’s office. (Compl. ¶ 4.)
In relevant part, Plaintiffs allege:
9. On or about April 6, 2023, Plaintiffs
arrived at SUBJECT PREMISES for A. AKHMEDOV’s chiropractic treatment. A routine
visit for medical treatment took a distressing turn when Plaintiff A. AKHMEDOV,
a special needs child with an inability to vocalize his needs, was subjected to
a shocking act of violence.
10. Plaintiff A. AKHMEDOV, in his
vulnerable state as a special needs child, was undergoing chiropractic medical
treatment under the care of Defendant GERARDO. The objective of the treatment
was to stretch specific areas of Plaintiff A. AKHMEDOV’s mouth, prompting
Defendant GERARDO to insert his fingers into Plaintiff A. AKHMEDOV’s mouth.
During treatment, Plaintiff A. AKHMEDOV, understandably, perhaps out of
discomfort or without understanding the consequences of his actions, allegedly
bit Defendant GERARDO’s finger. What should have been a manageable incident
escalated rapidly as Defendant GERARDO’s response to the alleged bite was far
from what one would expect from a medical professional.
11. Rather than exercising restraint and
employing appropriate de-escalation techniques, Defendant GERARDO responded to
the biting of his finger with excessive force. Defendant GERARDO resorted to
physical violence, forcefully slapping Plaintiff A. AKHMEDOV’s on and around
his face and head. The impact of this unwarranted assault reverberated
throughout the room, sending shockwaves of horror through his mother, Plaintiff
AMINA, and his sister, Plaintiff A. AKHMEDOVA, who were present and witnessed
this distressing scene.
12. The repercussions of Defendant
GERARDO’s actions are profound and far-reaching. Beyond the physical harm
inflicted upon Plaintiff A. AKHMEDOV, the emotional and psychological trauma
endured by the Plaintiffs cannot be overstated. Plaintiff AMINA, as a mother,
was forced to witness her child’s suffering, unable to intervene or protect him
from harm. Plaintiff A. AKHMEDOVA, as a sister, witnessed a distressing
violation of her brother’s rights and dignity, leaving an indelible mark on her
psyche.
(Compl. ¶¶ 9-12.)
CCP § 425.13
Defendants
argue that ¶ 15, 40, and Item 3 in the Prayer should be stricken because they
seek punitive damages. Defendants argue punitive damages cannot be alleged
against a health-care provider without Plaintiffs first filing a motion under
CCP § 425.13.
Under CCP § 425.13(a):
In any action for damages arising out of
the professional negligence of a health care provider, no claim for punitive
damages shall be included in a complaint or other pleading unless the court
enters an order allowing an amended pleading that includes a claim for punitive
damages to be filed. The court may allow the filing of an amended pleading
claiming punitive damages on a motion by the party seeking the amended pleading
and on the basis of the supporting and opposing affidavits presented that the
plaintiff has established that there is a substantial probability that the
plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.
The court shall not grant a motion allowing the filing of an amended pleading
that includes a claim for punitive damages if the motion for such an order is
not filed within two years after the complaint or initial pleading is filed or
not less than nine months before the date the matter is first set for trial,
whichever is earlier.
(CCP § 425.13(a).)
Here, Defendants are
correct to note that this Court has not entered an order allowing an amended
pleading that includes a claim for punitive damages to be filed.
Further, Defendants are
correct to note that Plaintiffs have not filed a motion on the basis of
supporting and opposing affidavits presented that the plaintiffs have
established there is a substantial probability that the plaintiffs will prevail
on the claim pursuant to Section 3294 of the Civil Code.
Further, as Defendants
explained, this cause of action arises out of the professional negligence of a
health-care provider.
Although, ¶ 15 is located
in the General Allegations of the Complaint, and although ¶ 40 is located in
the third cause of action for intentional infliction of emotional distress, and
although Item 3 in the Prayer request punitive damages based on the second
(assault/battery) and third (intentional infliction of emotional distress)
causes of action, this is still an action for damages arising out of the
professional negligence of a health-care provider.
“Section 425.13(a)
applies to intentional torts as well as negligence causes of action.” (Country
Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120
Cal.App.4th 426, 432 citing Central Pathology Service Medical Clinic, Inc.
v. Superior Court (1992) 3 Cal.4th 181, 192 (Central Pathology.)
As stated in Central
Pathology:
[I]dentifying a cause of action as an
“intentional tort” as opposed to “negligence” does not itself remove the claim
from the requirements of section 425.13(a). The allegations that identify
the nature and cause of a plaintiff's injury must be examined to determine
whether each is directly related to the manner in which professional services
were provided. Thus, a cause of action against a health care provider for
battery predicated on treatment exceeding or different from that to which a
plaintiff consented is governed by section 425.13 because the injury
arose out of the manner in which professional services are provided. By
contrast, a cause of action against a health care provider for sexual battery
would not, in most instances, fall within the statute because the defendant's
conduct would not be directly related to the manner in which professional
services were rendered. (Cf. Waters v. Bourhis, supra, 40
Cal.3d at p. 424, 220 Cal.Rptr. 666, 709 P.2d 469.) And, contrary to
plaintiffs' argument, section 425.13(a) applies regardless of whether
the complaint purports to state a single cause of action for an intentional
tort or also states a cause of action for professional negligence. The clear
intent of the Legislature is that any claim for punitive damages in an action
against a health care provider be subject to the statute if the injury that is
the basis for the claim was caused by conduct that was directly related to the
rendition of professional services.
(Central Pathology
Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.)
Here, when examining the
allegations that identify the nature and cause of Plaintiff’s injury, each
cause of action requesting punitive damages is directly related to the manner
in which professional services were provided because these actions arise from
how Defendant(s) responded when administering medical treatment when
Defendant(s) were/was bit by Plaintiff during treatment.
Further, the Court notes
that the Opposition does not oppose the motion on grounds that the action for
damages does not arise out of the professional negligence of a health-care
provider.
Health Care Provider
Defendants
argue they are health-care providers under § 425.13.
Under CCP § 425.13(b):
For the purposes of this section, “health
care provider” means any person licensed or certified pursuant to Division 2
(commencing with Section 500) of the Business and Professions Code, or licensed
pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act,
or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division
2 of the Health and Safety Code; and any clinic, health dispensary, or health
facility, licensed pursuant to Division 2 (commencing with Section 1200) of the
Health and Safety Code. “Health care provider” includes the legal
representatives of a health care provider.
(CCP § 425.13(b).)
Here, the Complaint
alleges that Defendant Richard Gerardo is a licensed chiropractor. (See Compl.
¶ 2.)
Further, Defendants argue
that “Defendants are healthcare providers within the scope of CCP § 425.13 in
that doctors of chiropractic are licensed pursuant to the Chiropractic
Initiative Act, sections 1000 et seq., Articles 1 and 2, Chapter 2,
Division 2 of the California Business & Professions Code.” (Mot. p. 6.)
The Court notes that the
Opposition does not argue that Defendants are not health-care providers.
Opposition
The
Opposition was one paragraph. Plaintiff argued:
California law authorizes a recovery for
punitive damages when it has been shown that a defendant has been guilty of
oppression, fraud, or malice, the plaintiff, in addition to the actual damages,
may recover damages for the sake of example and by way of punishing the
defendant (Civ. Code, §3294, subd.(a).) The Plaintiff contends that sufficient
facts have been pleaded to justify the assessment of punitive damages against
the Defendant. Although the Plaintiff did not file a motion for leave to amend
the complaint as mandated by Section 425.13 of the California Code of Civil
Procedure, which is necessary to seek punitive damages against the Defendant,
the Plaintiff requests that the Court deny the Defendant’s motion to strike.
The Plaintiff seeks an opportunity to file a motion for leave to amend the
complaint to include a claim for punitive damages in the Complaint against the
Defendant.
(Oppo. p. 3.)
The Court does not find
Plaintiff’s argument availing. Plaintiff did not file a motion to amend the
pleading, and Plaintiff has not established with supporting affidavits a
substantial probability that Plaintiff will prevail on the claim pursuant to
Section 3294 of the Civil Code.
TENTATIVE RULING
Defendants’
motion to strike ¶¶ 15, 40, and Item 3 in the Prayer of the Complaint filed on
4/3/2024 is GRANTED.