Judge: Daniel M. Crowley, Case: 21STCV37567, Date: 2022-12-07 Tentative Ruling

Case Number: 21STCV37567    Hearing Date: December 7, 2022    Dept: 28

Defendants Dale Prokupek, M.D. and Dale Prokupek, M.D., Inc’s Motion to Strike; Defendant Soma Surgery Center, Inc’s Demurrer with Motion to Strike

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On October 12, 2021, Plaintiff Pericles Chamis (“Plaintiff”) filed this action against Defendants Dale Prokupek, M.D., (“Prokupek”), Dale Prokupek, M.D. Inc., a California corporation (“Prokupek Inc.”), Michelle Dinh, M.D. (“Dinh”), and Soma Surgery Center (“SSC”) for professional negligence – medical malpractice, breach of fiduciary duty, and intentional misrepresentation. Pursuant to a sustained demurrer, Plaintiff filed the First Amended Complaint on January 20, 2022, and then the Second Amended Complaint on April 11, 2022.

On September 1, 2022, Plaintiff filed the Third Amended Complaint.

On October 28, 2022, Prokupek and Prokupek, Inc. (collectively “Prokupek”) filed a Motion to Strike to be heard on December 7, 2022. On November 22, 2022, Plaintiff filed an opposition. On November 30, 2022, Prokupek filed a reply.

On October 31, 2022, SSC filed a Demurrer with Motion to Strike to be heard December 7, 2022. On November 22, 2022, Plaintiff filed an opposition. On November 30, 2022, SSC filed a reply.

Trial is scheduled for April 11, 2023. 

PARTY’S REQUESTS

SSC requests the Court sustain its demurrer to the second cause of second cause of action for breach of fiduciary duty and third cause of action for intentional misrepresentation. The request is made on the grounds that these causes of action fail to set forth facts that constitute the second cause of action and that there is not sufficient particularity for the third cause of action. Additionally, the demurrer is uncertain as to how those two causes of action are plead against SSC.

SSC and Prokupek request the Court strike the request “for civil penalties, pursuant to statute, restitution, injunctive relief, and reasonable attorney’s fees according to proof.” Prokupek also requests the Court strike conclusory statements made in support of punitive damages.

Plaintiff requests the Court overrule the demurrer, or, in the alternative, requests leave to amend. Plaintiff also requests the Court deny both Motions to Strike.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

A cause of action premised on a physician's breach of this fiduciary duty may alternatively be referred to as a claim for lack of informed consent. (See, e.g., Moore v. Regents of University of California (1990) 51 Cal.3d 120, 12) p. 133, 271 [“the allegations state a cause of action for breach of fiduciary duty or lack of informed consent”].) The elements of informed consent are: (1) A patient gives an “informed consent” only after the doctor has adequately explained the proposed treatment or procedure. (2) A doctor must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. (3) A doctor must give the patient as much information as he needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. (4) The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. (5) Lastly, a doctor is not required explain minor risks that are not likely to occur. (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343).

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.

In order for an organization to be found liable for medical negligence under a theory of ostensible agency, Plaintiff must prove two elements: “(1) conduct by the [organization] that would cause a reasonable person to believe that the physician was an agent of the [organization], and (2) reliance on that apparent agency relationship by the plaintiff.” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal App. 4th 1448, 1454.)

“[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency. [Citation.] Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . .[Citation.] While the existence of an agency relationship is ‘typically a question of fact, when ‘“the evidence is susceptible of but a single inference,”’ summary judgment may be appropriate.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 85.)

Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b).) The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out 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." (CCP § 436.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct intended by the defendant 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." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

“[S]imple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) Civil Code § 3294(a) states: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the 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.” “[E]ven gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal App 3d 82, 87.)

DISCUSSION

SSC’s Demurrer

SSC alleges that there are insufficient facts to constitute a cause of action for lack of informed consent and intentional misrepresentation against SSC, specifically, as Plaintiff does not provide non conclusory allegations that establish either vicarious liability or ostensible agency of SSC. The Court disagrees; in Plaintiff’s TAC, Plaintiff alleges that “Plaintiff was required to sign [SSC] Patient Registration and Consent for Treatment forms wherein [SSC] recognized that Dr. Prokupek was an agent of [SSC].” These allegations satisfy the basic requirements for ostensible agency, which requires an organization, such as SSC, engage in conduct that would reasonably lead a Plaintiff to believe that the relevant medical professional is employed by said organization.

SSC argues that this is a conclusory statement and fails to identify, verbatim, what language in the forms recognized as such.  The Court disagrees. When reviewing demurrers, the Court reads a complaint liberally and in context. Plaintiff’s complaint does not merely state that Dr. Prokupek was held out as an agent—it specifically identifies the papers in which Plaintiff bases the ostensible agency. This provides SSC with enough information to evaluate the merits of the claim and understand the allegations against it. As there is sufficient basis to at least argue ostensible agency, the Court finds that both causes of action are properly plead against SSC. The Court overrules the demurrer.

Motion to Strike

Moving Parties request the Court strike requests for punitive damages throughout Plaintiff’s TAC, citing that Plaintiff has not complied with CCP § 425.13, which requires that in any action for damages arising out of the professional negligence of a health care provider that Plaintiff submit a motion to amend the pleading to include punitive damages prior to the inclusion of the request in the complaint. In reviewing the Court record, the Court agrees. Plaintiff made a request for leave to file an amended complaint to claim punitive damages, which was denied on August 25, 2022. The Court strikes all requests for punitive damages.

Moving Parties otherwise requests the Court strike conclusory language and improper damages. The Court grants the motion as to these issues after reviewing the relevant sections. Conclusory statements that boil down to asserting that parties acted in a manner giving way to punitive damages are not only conclusory, but also irrelevant as Plaintiff is unable to bring a claim for punitive damages at this time. There are no applicable statutes that would give rise to civil penalties, restitution, injunctive relief, or attorney’s fees.

Plaintiff argues that he anticipates renewing a motion for leave to request punitive damages against Defendants. Said motion must be granted prior to making a claim for punitive damages—a plaintiff is not entitled to plead punitive damages on the basis of anticipation of filing a motion. Therefore, the request for punitive damages is immature. The Court grants both motions to strike, without prejudice and so the Court will not grant leave to amend at this time.

CONCLUSION

Defendants Dale Prokupek, M.D. and Dale Prokupek, M.D., Inc’s Motion to Strike is GRANTED, without leave to amend.

Defendant Soma Surgery Center, Inc’s Demurrer with Motion to Strike is OVERRULED as the demurrer, and GRANTED, without leave to amend, but without prejudice, as to the motion to strike.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.