Judge Daniel M. Crowley, Case 20STCV39445 2023-04-21 Tentative Ruling

Judge: Daniel M. Crowley, Case: 20STCV39445, Date: 2023-04-21 Tentative Ruling

Case Number: 20STCV39445 Hearing Date: April 21, 2023 Dept: 207

Background

Plaintiff Jennifer Molin (“Plaintiff”) brings this action against Defendants The Angeles Clinic (“Angeles Clinic”) and Leland Foshag (“Foshag” or, collectively with Angeles Clinic, “Defendants”) stemming from allegations that Foshag inappropriately groped and fondled Plaintiff while she was seeking medical treatment from Defendants. Plaintiff’s operative complaint is the Second Amended Complaint (“SAC”) filed December 16, 2022. Defendants bring this demurrer to Plaintiff’s first cause of action for sexual battery, second cause of action for sexual harassment, third cause of action for gender acts of violence under Civil Code § 51.7, fourth cause of action for sexual harassment in a defined relationship under Civil Code § 51.9, fifth cause of action for battery, seventh cause of action for intentional infliction of emotional distress, and ninth cause of action for negligent misrepresentation. Defendants argue each of these causes of action fails to state sufficient facts to constitute a cause of action against them under Code Civ. Proc. § 430.10(e) and is uncertain under Code Civ. Proc. § 430.10(f). Defendants separately move to strike the allegations concerning punitive damages contained in the SAC.

Request for Judicial Notice

Defendants request the Court take judicial notice of printouts from the websites of the Medical Board of California (Ex. A) and Los Angeles Superior Court (Ex. B-F). Defendants’ request is unopposed. Judicial notice may not be taken of any matter, unless authorized or required by law. (Evid. Code, § 450.) Matters that are subject to judicial notice are listed in Evidence Code §§ 451 and 452. Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia Inc. v. Superior Court (1999) 20 Cal. 4th 449, 457, fn. 9.) Taking judicial notice of a document is not, therefore, the same as the court accepting the truth of the document’s contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal. App. 3d 1023, 1038.) Subject to these limitations, Defendants’ request is GRANTED.

Demurrer Standard

When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

A special demurrer for uncertainty under Section 430.10(f) is disfavored and will only be sustained where the pleading is so unintelligible that a defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)

Motion to Strike Standard

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. (Id., § 436(b).) The grounds for a motion to strike are: the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Analysis

1. Meet and Confer Requirement

The Court finds Defendants have complied with the meet and confer requirements set forth under Code of Civil Procedure §§ 430.41 and 435.5. (Iacopino Decl. at ¶¶2-6.)

2. First Cause of Action for Sexual Battery Under Civil Code § 1708.5

Civil Code section 1708.5, subdivision (a), states “[a] person commits a sexual battery who does any of the following: [¶] (1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results. [¶] (2) Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results. [¶] (3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.” Subdivision (b) of section 1708.5 provides “[a] person who commits a sexual battery upon another [is] liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages.” “A cause of action for sexual battery under Civil Code section 1708.5 requires the batterer intend to cause a ‘harmful or offensive’ contact and the¿batteree¿suffer a ‘sexually offensive contact.’” (Angie M. v. Superior Court¿(1995) 37 Cal.App.4th 1217, 1225.) Defendants correctly cite “the general rule that statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

The Court sustained Defendants’ prior demurrer to Plaintiff’s cause of action for sexual battery under Code Civ. Proc. § 1708.5 because the prior First Amended Complaint (“FAC”) did not contain sufficient factual allegations describing the circumstances of the alleged sexual battery and did not contain any factual allegations of intent as required under the statute. (November 18, 2022, Order at 3-4.) The Court noted the FAC alleged Foshag massaged Plaintiff’s breasts and other intimate areas of her body, but held these allegations standing alone were insufficient to pled sexual battery because such actions are “only indicative of intent to cause a harmful or offensive contact if such action extended beyond the bounds of the medical care for which Plaintiff was seeing Foshag.” (Id. at 4.)

The Court granted Plaintiff leave to amend. The SAC attempts to cure this issue by adding the allegation that “the reasons for [Plaintiff’s] visit related to lymph nodes in her underarm.” (SAC at ¶16.) The SAC alleges further alleges that in addition to massaging Plaintiff’s breasts, Foshag also massaged “the area above and around [] PLAINTIFF’s vaginal area.” (Id.) Defendants argue these additional allegations are insufficient for the same reasons as the prior allegations of the FAC. The Court agrees. The SAC does not provide the Court with any basis to determine if the alleged offensive conduct by Foshag exceeded the bounds of the medical care for which Plaintiff was seeing him. The SAC does not allege that Plaintiff had come to see Foshag for an examination of her underarm, but rather vaguely characterizes the visit as “related to the lymph nodes in her underarm” without specifying the nature of this relation. As Defendants point out, the lymphatic system includes clusters of lymph nodes located in the neck, armpit, groin, chest, and abdomen. (Ex. A to RJN.) Thus, it is possible that any alleged examination of Plaintiff’s chest and groin were directly related to the purpose of her visit.

The Court finds the SAC fails to cure the issues noted in the Court’s prior ruling sustaining Defendants’ demurrer to the FAC as the SAC does not sufficiently allege facts showing an intent to cause harmful or offensive contact. Plaintiff bears the burden of demonstrating she can cure the defects in the SAC through further amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff did not file an opposition to Defendants’ demurrer and has thus failed to carry the burden to demonstrate this cause of action could be cured by further amendment. On such facts, the Court SUSTAINS the demurrer to the first cause of action for sexual battery without leave to amend.

3. Second, Third, Fourth and Fifth Causes of Action

Defendants raise similar arguments regarding the sufficiency of the factual allegations as to Plaintiff’s second cause of action for sexual harassment, third cause of action for gender acts of violence under Civil Code § 51.7, fourth cause of action for sexual harassment in a defined relationship under Civil Code § 51.9, and fifth cause of action for battery. Defendants allege the factual allegations in these causes of action are deficient for the same reason as Plaintiff’s first cause of action for sexual battery. The Court agrees. The specific allegations contained in these causes of action merely state the elements of a claim without providing additional factual allegations in support of those elements. The Court previously sustained Defendants’ demurrer to these causes of action in the FAC for these same reasons. Plaintiff has not filed an opposition to Defendants’ demurrer or otherwise demonstrated she can cure these issues by further amendment. As with Plaintiff’s first cause of action, the Court SUSTAINS Defendants’ demurrer to these causes of action without leave to amend.

5. Seventh Cause of Action for Intentional Infliction of Emotional Distress

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009 [citation and ellipses omitted].)

Defendants raise similar arguments to Plaintiff’s cause of action for intentional infliction of emotional distress as are raised with respect to Plaintiff’s first cause of action for sexual battery. Defendants argue the SAC fails to allege extreme or outrageous conduct by Defendants because the SAC does not show Foshag’s alleged touching of Plaintiff was not medically necessary. The Court previously overruled Defendants’ demurrer to this cause of action in the FAC. In overruling that demurrer, the Court noted paragraph 60 of the FAC alleged Foshag’s alleged conduct was not medically necessary. The same allegation appears in paragraph 52 of the SAC. While the Court must accept Plaintiff’s factual allegations as true in ruling on a demurrer, the Court need not accept unsupported deductions or contentions as true. (Stonehouse Homes LLC, supra, 167 Cal.App.4th at 538.) As set forth above the only factual allegation of the SAC regarding the scope of Plaintiff’s medical treatment is the claim that the purpose of her visit was “related to” lymph nodes in her underarm. This factual allegation, standing alone, does not support a conclusion that Foshag’s alleged touching was not medically necessary for Plaintiff’s treatment. The Court thus SUSTAINS Defendants’ demurrer to Plaintiff’s seventh cause of action for intentional infliction of emotional distress. As Plaintiff has not carried her burden to show this issue can be cured by further amendment, the Court sustains Defendants’ demurrer without leave to amend.

6. Ninth Cause of Action for Negligent Misrepresentation

On February 24, 2023, Plaintiff filed a request for dismissal seeking dismissal of the sixth and ninth causes of action. That dismissal was entered by the clerk on February 27, 2023. As the ninth cause of action has been dismissed, Defendants’ demurrer to this cause of action is OVERRULED as moot.

8. Motion to Strike

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (internal citations omitted).)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud, or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Tacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-42.) A plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied, within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

Defendants separately move to strike Plaintiff’s claim for punitive damages and the allegations related thereto. Defendants argue Plaintiff’s claim for punitive damages is procedurally defective under Code Civ. Proc. § 425.13. Defendants also argue Plaintiff has failed to set forth sufficient allegations to support a claim for punitive damages against Defendants for the same reasons as set forth above with regard to Defendants’ demurrer.

Code Civ. Proc. § 425.13 provides “In any action for damages arising out 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 filling 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. . . .” (C.C.P. § 425.13.) The provision applies whenever the gravamen of the action is professional negligence. (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191.) Therefore, a plaintiff must comply with Section 425.13 when seeking 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. (Id.)

However, this does not mean section 425.13 applies to every action brought against a health care provider. As the California Supreme Court explained in Central Pathology, “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.” (Central Pathology, supra, 3 Cal.4th at 192.)

Whether a defendant’s conduct is directly related to the manner in which professional services were rendered is necessarily a fact specific inquiry concerning the context of a defendant’s actions. In Cooper v. Superior Court (1997) 56 Cal.App.4th 744 a plaintiff brought a claim for sexual battery against a physician. The plaintiff alleged she came to defendant’s office for gynecological treatment, specifically to have an intrauterine device removed and replaced. Plaintiff alleged the defendant improperly attempted to perform the procedure without gloves or use of antiseptic, and improperly massaged her genitals under the pretense of performing a pelvic examination. The Court found section 425.13 applied to such claims. In so holding, the Court stressed the importance of the context surrounding the alleged sexual battery:

Central Pathology noted merely that "in most instances" a claim of sexual battery would not be related to the manner in which professional services are rendered. Clearly this is so. Most types of services rendered by health care providers do not involve the genitalia. Thus if a podiatrist, ophthalmologist or dentist touches or manipulates a patient's genitalia, there will usually be no arguable connection between such conduct and the rendition of legitimate health care. If a patient consults an orthopedic surgeon for treatment of bursitis in an elbow, there would usually be no occasion for the surgeon to touch or manipulate that patient's genitalia. A doctor consulted for nutritional advice about cholesterol levels would not likely have a legitimate medical reason for manipulating genitalia. The list of examples of this type is endless. A doctor rendering gynecological care, by contrast, cannot render the full panoply of gynecological services without touching, probing or otherwise manipulating a woman's genitalia. Thus when a gynecologist is accused, as here, of committing a sexual battery in the course of rendering gynecological services, that accusation is necessarily “directly related” to the manner in which the gynecological services were rendered.

(Id. at 751.)

As noted above with respect to Defendants’ demurrer, Plaintiff’s cause of action for sexual battery lacks necessary factual allegations as to the context in which the alleged battery occurred. The factual allegations in the SAC fail to show the alleged conduct of Foshag was not directly related to the manner in which professional services were rendered to her. The SAC thus does not show Code Civ. Proc. § 425.13 is inapplicable to Plaintiff’s claims. In the absence of such a showing, section 425.13 by its own terms plainly applies and bars Plaintiff from pursuing punitive damages without first obtaining a Court order allowing her to do so. Defendants’ motion to strike Plaintiff’s punitive damages allegations is thus GRANTED.

Conclusion

Defendants’ demurrer to the first, second, third, fourth, fifth, and seventh causes of action is SUSTAINED without leave to amend. Defendants’ demurrer to the ninth cause of action is OVERRULED as moot. Defendant’s motion to strike is GRANTED.