Judge: Colin Leis, Case: 22STCV16402, Date: 2023-04-14 Tentative Ruling

Case Number: 22STCV16402    Hearing Date: April 14, 2023    Dept: 74

YONG CHA PAK, et al. vs ELIM HEALTHCARE, INC., et al. 22STCV16402

Defendant Kemal L. Kamal’s Demurrer to Plaintiffs’ Complaint

The court overrules the demurrer. Defendant Kamel Louis Kamel states a general demurrer to the entire complaint based on the statute of limitations for medical negligence. A general demurrer fails if the complaint states even one cause of action. Plaintiff makes multiple allegations (paragraphs 32, 36, 37, 54) and states at least two causes of action (2^nd and 3^rd) that do not rest on Defendant’s having negligently provided health care services. Accordingly, the court overrules Defendant’s general demurrer.

Defendant also purports to demur to Plaintiffs’ cause of action for an Unruh violation, but the complaint contains no such cause of action.

Defendant also demurs to Plaintiffs’ cause of action for intentional infliction of emotional distress, but the court overrules the demurrer because the allegations sufficiently state a cause of action.

The court orders Defendant to file and serve his answer within 10 days of this order.

Defendant is ordered to give notice.

SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES – CENTRAL DISTRICT 

DEPARTMENT 74 

MOVING PARTY:                Defendant Kemal L. Kemal

RESPONDING PARTY:       Plaintiffs Yong Cha Pak and Successor-in-Interest Sun Yong Pak.

Motion to Strike Portions of Plaintiff’s Complaint.

The court considered the moving papers, opposition, and reply.

BACKGROUND 

            This action arises from a dispute involving alleged elder abuse.

            On May 17, 2022, Plaintiffs Yong Cha Pak (Mother Plaintiff) and Sun Yong Pak (Daughter Plaintiff) filed their complaint against Defendants Kemal L. Kemal, ELIM Healthcare, Inc., and Jean Kim. The complaint alleges the following causes of action against Defendant Kemal L. Kemal (Defendant): Unlawful, Unfair, and Fraudulent Business Practices; Intentional Infliction of Emotional Distress; Negligence; and Negligent Infliction of Emotional Distress.

            On January 24, 2023, Defendant filed this Motion to Strike Portions of Plaintiffs’ Complaint (Motion.)

LEGAL STANDARD

            A court may strike any “¿irrelevant, false or improper matter¿inserted in any pleading¿” or any part of a 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¿.) “¿The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.¿” (¿Code Civ. Proc., § 437¿.)¿           

DISCUSSION 

            Plaintiff’s Compliance with Code of Civil Procedure section 425.13.

            Defendant moves to strike paragraph 87 of the complaint and paragraph 5 of the prayer. Since the paragraphs at issue demand punitive damages, the court will address Plaintiff’s compliance with the Code of Civil Procedure as a preliminary matter.

            Code of Civil Procedure section 425.13, subdivision (a) provides that, “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.” Additionally, “the court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading . . .” (Code Civ. Proc., § 425.13, subd. (a).)

            The Supreme Court has held that “. . . whenever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one arising out of the professional negligence of a health care provider.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192. (Central Pathology).)

            Accordingly, Defendant argues that Plaintiffs’ claims against him are based on the professional services that he, as a healthcare provider, provided the mother Plaintiff. Under Central Pathology, then, Plaintiffs’ claims, by definition, arise out of a professional healthcare provider’s professional negligence. Consequently, Plaintiff could not include claims for punitive damages against Defendant in their complaint without filing an amended pleading with the court’s permission. (Code Civ. Proc., § § 425.13, subd. (a).)

            However, the court notes that Plaintiffs do not allege that their claims against Defendant arise from professional negligence, but rather “his own purpose.” (Opp. at, p. 6.) Indeed, misconduct by a health care provider is “not necessarily professional negligence—even where . . . the misconduct occurs over the same period of time that medical services are provided.” (Atienza v. Taub (1987) 194 Cal.App.3d 388 393.) Instead, professional negligence is only that negligent conduct engaged in for the purpose of delivering health care to the patient. (So v. Shin (2013) 212 Cal.App.4th 652, 666-667.) In other words: “[N]egligent actions undertaken by a health care provider for the purpose of delivering medical care to a patient constitute professional negligence; tortious actions undertaken for a different purpose . . . are not.” (Id. at p. 667.)

            Here, Plaintiffs allege that Defendant ordered the transfer of patient Plaintiff to an acute unit under a 5150 hold. (Complaint, ¶ 42.) Plaintiffs further allege that the order served Defendant’s own personal motive rather than a medical purpose. (Complaint, ¶ 38.) That is, on August 5, 2020, Defendant and daughter Plaintiff had a dispute over Defendant’s alleged comment about mother Plaintiff’s being unclothed. (Complaint, ¶ 37.) Immediately after the dispute, daughter Plaintiff claims she overheard Defendant shouting that he would transfer mother Plaintiff under a 5150 hold. (Complaint, ¶ 38.) When daughter Plaintiff claimed such a transfer was illegal, Defendant proclaimed that he was in charge. (Complaint, ¶ 38.) If true, these allegations could lead the trier of fact to conclude that Defendant issued the order for the sake of retaliation, not for mother Plaintiff’s healthcare. Also, Defendant did not carry out the order until after the dispute in question and daughter Plaintiff called the police to conduct a welfare check on Defendant’s facility. (Complaint, ¶¶ 41-43.) Moreover, daughter Plaintiff claims that Defendant’s facility could have accommodated her mother Plaintiff, in which case the transfer might have been unnecessary in the first place. (Complaint, ¶¶ 26-27.) The complaint’s allegations, if true, suggest that Defendant’s misconduct served a personal retaliatory motive rather than the professional duties of a psychiatrist. Accordingly, Code of Civil Procedure section 425.13, subdivision (a) does not bar Plaintiffs from seeking punitive damages from Defendant.

            Moreover, Central Pathology Service Medical Clinic, Inc. v. Superior Court 3 Cal.4th 181 is distinguishable. There, the plaintiffs sought to amend their complaint to include causes of action for fraud and intentional infliction of emotional distress, as well as punitive damages. (Id. at p. 185.) The Court ultimately held that the plaintiffs had to comply with Code of Civil Procedure section 425.13, subdivision (a) because the causes of action directly related to the manner in which the defendants provided professional services. (Id. at p. 193.) However, the plaintiffs had already asserted a cause of action for medical negligence based on the defendants’ failure to care for the decedent. (Id. at p. 185.) The new causes of action and punitive damages depended on this alleged medical negligence. (Ibid.) Thus, the new causes of action arose out of the professional negligence of a health care provider. Such is not the case here. The causes of action, insofar as they apply to Defendant, are not based on his professional negligence. As noted above, the claims against Defendant are based on misconduct serving his own ends rather than his responsibilities as a healthcare provider. Plaintiffs’ claims against Defendant are not grounded in allegations of professional misconduct. (So v. Shin, supra, at p. 667 [“[N]egligent actions undertaken by a health care provider for the purpose of delivering medical care to a patient constitute professional negligence; tortious actions undertaken for a different purpose . . . are not.”].)

            Thus, Code of Civil Procedure section 425.13, subdivision (a) does not require the claims for punitive damages in paragraph 87 of the complaint and paragraph 5 of the prayer to be stricken from the complaint.

            Pleading Requirements.

            “In an action for the breach of an obligation not arising form contract, where it is proven with clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “Malice means conduct which is intended to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c).)

            Defendant contends that Plaintiffs have not provided specific allegations demonstrating why his conduct warrants punitive damages. But the complaint’s allegations, if true, suggest that Defendant acted with malice because Defendant evicted and transferred mother Plaintiff to retaliate against daughter Plaintiff. (Complaint, ¶¶ 37-42.) Further, he did so with knowledge of and disregard for mother Plaintiff’s fragile health. (Complaint, ¶¶ 33, 36, 38, 41-42.) Accordingly, the court does not strike paragraph 87 of the complaint for failure to adequately allege malice, oppression, or fraud.

CONCLUSION 

            Based on the foregoing, the court denies Defendant’s motion to strike portions of Plaintiffs’ complaint.

Defendant is ordered to give notice.

IT IS SO ORDERED. 

DATED:  ¿April 14, 2023 

_____________________________ 

Colin Leis 

Judge of the Superior Court