Judge: Deirdre Hill, Case: 22TRCV01318, Date: 2023-04-27 Tentative Ruling

Case Number: 22TRCV01318    Hearing Date: April 27, 2023    Dept: M

Hearing Date:                         April 27, 2023

Moving Parties:                      Defendant Ginder Marshall, M.D.

Responding Party:                  Plaintiff S.W.

(1)   Demurrer

(2)   Motion to Strike

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

RULING

            The demurrer to the complaint is OVERRULED as to the 1^st and 2^nd causes of action and SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the 3^rd, 4^th, and 5^th causes of action.  The motion to strike is DENIED.

BACKGROUND

            On November 22, 2022, plaintiff S.W. filed a complaint against defendants Ginder Marshall, M.D., an individual, and Ginder Marshall, M.D., a professional corporation for (1) sexual assault and battery, (2) IIED, (3) medical battery, (4) failure to obtain informed consent, and (5) negligent misrepresentation.

LEGAL AUTHORITY

Demurrer

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.  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.  “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

Strike

“The court may, upon a motion . . ., or at any time in its discretion, and upon terms it deems proper:  (a) Strike any irrelevant, false, or improper matter inserted 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(b).

            CCP §431.10 states:  “(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.”

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP §437.

DISCUSSION

Demurrer

Defendants Ginder Marshall, M.D., individually and as a professional corporation, demur to the 1^st through 5^th causes of action in the complaint on the grounds that they fail to state sufficient facts to constitute a cause of action and are uncertain.

The complaint alleges that plaintiff met defendant Ginder Marshall, M.D. in approximately 2006 when she was referred to his rheumatology practice located at 655 E. Queen Street, Inglewood for medical procedures, testing, and treatment.  Complaint, ¶12.  Marshall’s inappropriate behavior and sexual assault and abuse of plaintiff began in February 2006 at plaintiff’s first appointment with Marshall.  Marshall began touching her inappropriately at plaintiff’s first medical treatment with Marshall, having plaintiff bend over in front of Marshall, and Marshall groping plaintiff’s buttocks.  Marshall placed his hands between plaintiff’s legs and grind his penis over the clothes against plaintiff’s buttocks during plaintiff’s first medical appointment.  Id., ¶13.  Marshall was a rheumatologist providing medical treatment for plaintiff and the treatment did not necessitate the touching of plaintiff’s legs, buttocks, or having plaintiff bend over in front of Marshall.  Id., ¶14.  Thereafter, Marshall’s sexual assault and abuse of plaintiff continued on countless occasions between February 2006 through 2020.  Marshall’s sexual abuse and assault of plaintiff continued to include inappropriate touching of plaintiff’s legs, buttocks, grinding of Marshall’s penis into plaintiff’s buttocks, and forcing plaintiff into unnecessary positions including bending over in front of Marshall.  Marshall’s sexual assault escalated to Marshall forcibly kissing plaintiff, taking down her pants and touching plaintiff’s buttocks, and Marshall fondling of plaintiff without penetration.  Defendants’ conduct constitutes a recurring pattern and practice of sexual assault that has been occurring continuously, consistently, and systematically since February 2006 through 2020.  Id., ¶15.  Marshall’s touching of plaintiff had no medical purpose whatsoever for his treatment of plaintiff.  Marshall preyed upon plaintiff’s trust in Marshall as a medical professional to sexually assault, abuse, and molest plaintiff.  Id., ¶17.

1^st cause of action for sexual assault and battery

Civil Code §1708.5 provides the following:  (a) 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.

Section 1708.5 defines an intimate part as “the sexual organ, anus, groin, or buttocks of any person, or the breast of a female” and offensive contact as “contact that offends a reasonable sense of personal dignity.”  CCP §1708.5(d), (f).

“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.

The court finds that the allegations are sufficient to meet the elements and that plaintiff has alleged ultimate facts.

The demurrer is OVERRULED.

2^nd cause of action for IIED

The elements of an intentional infliction of emotional distress cause of action are:  (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress.  See Moncada v. West Coast Quartz Corp. (2013) 221 Cal. App. 4th 768, 780; Wilson v. Hynek (2012) 207 Cal. App. 4th 999, 1009.  To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’”  Moncada, supra, at 780 (citation omitted).

            “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.”  McDaniel v. Gile (1991) 230 Cal. App. 3d 363, 372.

“[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.”  Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.  “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  Id.  While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage.  Id. at 494.  However, when reasonable persons may differ, it is for the jury, subject to the control of the Court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.¿ Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.

The court finds that the allegations are sufficient to meet the elements.

The demurrer is OVERRULED.

3^rd cause of action for medical battery

In order to establish a claim for medical battery, a plaintiff must show:  (1) that defendant performed a medical procedure without plaintiff’s informed consent; [or] that plaintiff gave informed consent to one medical procedure, but defendant performed a substantially different medical procedure; (2) plaintiff was harmed; (3) and that defendant’s conduct was a substantial factor in causing plaintiff’s harm.  CACI 530A.

In order to establish a claim for medical battery based on conditional consent, plaintiff must prove all of the following:  (1) that plaintiff consented to a medical procedure, but only on the condition that [description of what had to occur before consent would be given]; (2) that defendant proceeded without this condition having occurred; (3) that defendant intended to perform the procedure with knowledge that the condition had not occurred; (4) that plaintiff was harmed; and 5. That defendant’s conduct was a substantial factor in causing plaintiff’s harm.  CACI 530B. 

“Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.”  Cobbs v. Grant (1972) 8 Cal.3d 229, 239.  Further, “[t]he battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented.  When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.  However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.”  Id. at 240.

The complaint alleges that defendants performed a medical procedure without plaintiff’s consent and/or defendants performed a medical procedure on plaintiff but performed a substantially different medical procedure than the medical procedure plaintiff consented to.  Complaint, ¶32. 

The court finds that the allegations are insufficient and conclusory.  The allegations do not show any facts that defendant performed a medical procedure without plaintiff’s informed consent or that plaintiff gave informed consent to one medical procedure, but defendant performed a substantially different medical procedure.  This cause of action is based on the general allegations of which plaintiff alleges that defendant sexually assaulted her.  Such conduct is not a medical procedure.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

4^th cause of action for failure to obtain informed consent

“A patient’s consent to a medical procedure must be ‘informed.’  A patient gives an ‘informed consent’ only after [the surgeon] has adequately explained the proposed treatment or procedure.  [A surgeon] must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand.  [A surgeon] must give the patient as much information as she 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.  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. [A surgeon] is not required to explain minor risks that are not likely to occur.”  CACI 532.

The elements for a cause of action failure to obtain informed consent are that, 

1. That defendant performed a medical procedure on plaintiff;

2. That defendant did not disclose to plaintiff the important potential results and risks of and alternatives to the medical procedure;

3. That a reasonable person in plaintiff’s position would not have agreed to the medical procedure if that person had been adequately informed; and

4. That plaintiff was harmed by a result or risk that defendant should have explained.”  CACI 533.

The complaint alleges that plaintiff was seeking medical treatment at defendants’ office.  Defendants were negligent because defendants performed various unnecessary medical procedures on plaintiff without first obtaining plaintiff’s informed consent.  Complaint, ¶36.  Defendants negligently failed to disclose to plaintiff the potential risks and results of defendants’ medical procedures on plaintiff.  Id., ¶37.  A reasonable person in plaintiff’s position would not have agreed to defendants’ medical procedures on plaintiff if that person had been adequately informed.  Id., ¶38.

The court finds that the allegations are insufficient and conclusory.  Plaintiff uses the language of CACI but does not allege ultimate facts.  Is plaintiff referring to the sexual assault and conduct for which she alleges she did not consent or other “unnecessary medical procedures”?  If she is referring only to sexual assault and conduct, they are not medical procedures.  The general allegations upon which this cause of action appears to be based only refers to intentional sexual assault and conduct, not that defendants acted negligently.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

5^th cause of action for negligent misrepresentation

The elements of negligent misrepresentation are: (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages. Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.  B.L.M. v. Sabo & Deitsch (1997) 55 Cal. App. 4th 823, 834.

In California, fraud, including negligent misrepresentation, must be pled with specificity. Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.  “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.”  Cansino v. Bank of America (2014) 224 Cal. App. 4th 1462, 1469.

The complaint alleges that defendants negligently represented that Marshall would perform all medical procedures in a competent manner.  Complaint, ¶41.  Defendants knew or should have known that such representation to patients, including plaintiff, was not true and had no reasonable grounds for believing that defendants’ negligent misrepresentation was true when defendants made it.  Id., ¶42.  Defendants, by virtue of their medical treatment of female patients, including plaintiff, intended that plaintiff rely on defendants’ misrepresentation.  Id., ¶43.  Plaintiff reasonably relied upon defendants’ misrepresentation as defendants were acting as plaintiff’s medical provider.  Id., ¶44.

The court finds that the allegations are insufficient and conclusory and are not pled with particularity.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

Motion to Strike

Defendant requests that the court strike paras. 25 and 30 and the prayer at item 5 for punitive damages.

Civil Code §3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .”  The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages.  There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

“’Malice’ means conduct which is 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.”  Civil Code §3294(c)(1).  

As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful.  The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.”  Id. at 725 (citation omitted). 

            Defendant argues that punitive damages are improperly included in the complaint because the pre-trial hearing mechanism under CCP §425.13 applies to the circumstances.  Defendant contends that he is a physician and all of the alleged acts contained in the complaint arose during the provision of medical care and treatment at Dr. Marshall’s place of practice.  Thus, defendant contends, plaintiff is required on noticed motion to establish a “substantial probability” that she will prevail in a claim for punitive damages against Dr. Marshall before including a prayer for punitive damages.  Defendant also argues that the allegations are insufficient to support a claim for punitive damages.

            In opposition, plaintiff argues that the allegations are sufficient based on defendants’ malicious repeated and continuous sexual assault against plaintiff and clearly show egregious and despicable conduct by Dr. Marshall.  Plaintiff also argues that CCP 425.13 does not apply because Dr. Marshall’s egregious sexual assaults far exceeded and was entirely distinct from the professional service which plaintiff sought rheumatology treatment at Dr. Marshall’s office and do not rise out of professional negligence.

CCP §425.13 states:  “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” without a court order upon a motion by the plaintiff.  The plaintiff must establish “there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.”  CCP §425.13 applies to causes of action “arising out” of the defendant’s professional negligence.  As such, section 425.13 applies to intentional torts if they are based on or relate to the provision of medical services.  “[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.”  Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 (CCP §425.13 applied to plaintiff 's claim for fraudulent nondisclosure or concealment based on medical provider 's failure to inform plaintiff of pap smear results indicating cancer or her need to retest).

A sexual assault may be unrelated or related to the underlying medical services performed depending upon the type of medical services provided.  “[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.”  Id. at 192.  Where the medical services being rendered involve the patient’s sex organs (e.g., a gynecologist touches plaintiff’s sex organs improperly in the course of a gynecological examination), a sexual battery claim in such a case is necessarily “directly related to” the manner in which the gynecological services were rendered, and therefore subject to CCP § 425.13.  Cooper v. Superior Court (1997) 56 Cal. App. 4th 744, 751.

Plaintiff’s claims do not arise out of professional negligence.  Rather, she alleges defendant sexually assaulted her, which is not “directly related to” the purported professional services for rheumatology rendered by a health care provider. 

The motion to strike is DENIED.

Plaintiff is ordered to give notice of ruling.