Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Gary Motykie 

 

RESPONDING PARTY: Plaintiff Celeste Bianchi 

 

BACKGROUND 

This case arises from an alleged unauthorized publication of patient photos.  Defendant Gary Motykie, M.D. performed several cosmetic procedures on Plaintiff Celeste Bianchi.  Before and after each procedure, Defendant or his staff took photographs of Plaintiff.  Plaintiff alleges she explicitly declined consent for her photos to be used on Defendant’s website or in any similar capacity.   

On or before July 16, 2018, Defendant allegedly published Plaintiff’s photographs to an Instagram account as part of an advertisement for Defendant’s services.  Plaintiff discovered the use of her photos on October 18, 2022.       

The operative complaint alleges claims for (1) professional negligence, (2) common law misappropriation of likeness, (3) violation of California Civil Code section 3344 (statutory misappropriation of likeness), (4) defamation and (5) intentional infliction of emotional distress.   

This hearing is on Defendant’s demurrer and motion to strike the complaint.  As to his demurrer, Defendant argues that (1) Plaintiff’s claim for common law misappropriation of likeness fails because Plaintiff has not alleged facts showing that Defendant published her photos, he gained a commercial advantage, or she suffered non-speculative damages, (2) Plaintiff’s claim for statutory misappropriation of likeness is duplicative of her common law misappropriation of likeness claim and fails for the same reasons as the common law claim, (3) Plaintiff’s claim for defamation fails because Plaintiff does not assert how the alleged publication was false, and (4) Plaintiff’s claim for intentional infliction of emotional distress fails because the alleged publication is not extreme or outrageous.   

Defendant also moves to strike (1) Plaintiff’s claim for punitive damages on the grounds that Plaintiff has not complied with Code Civ. Proc. § 425.13 which requires that in an action against a health care provider, a plaintiff must first seek leave of court to plead a claim for punitive damages, (2) Plaintiff’s prayer for restitution, lost revenues and lost profits as those damages are not available in a medical negligence action, and (3) Plaintiff’s claim for statutory damages for her common law misappropriation of likeness claim which is a common law count and not a statutory claim.      

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).)¿ The term uncertain includes the issue of whether the pleading is “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

Further, the court may, upon 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, subd. (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, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

 

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Defendant submits the Declaration of Simon Sverdlov which shows counsel met and conferred by phone prior to bringing this demurrer and motion to strike.  Defendant’s meet and confer is in compliance with § 430.41. 

DISCUSSION 

Demurrer 

The Court concludes that Plaintiff’s second to fifth causes of action are time-barred under the single publication rule.   

Defamation has a one year statute of limitations. (Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal. 4th 883, 891; Code Civ. Proc. § 340, subd. (3).)¿ In defamation actions, the general rule is that publication occurs (and the cause action accrues) when the defendant communicates the defamatory statement to a person other than the person being defamed.¿ (Hebrew Academy, 42 Cal.4th at 891; Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245–1246 (“Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the first general distribution of the publication to the public. … Under this rule, the cause of action accrues and the period of limitations commences, regardless of when the plaintiff secured a copy or became aware of the publication.”) (citations and internal quotations omitted).)¿¿¿ 

Here, Plaintiff’s photos were published on Instagram on July 16, 2018.  (Compl. ¶9.)  Plaintiff filed this lawsuit more than a year later, in May 2023.¿ Accordingly, Plaintiff’s defamation claim is time-barred.¿ 

Moreover, as Plaintiff’s other causes of action rely on the alleged defamatory publication, they are also subject to a one year statute of limitations.¿ The Uniform Single Publication Act “USPA”) states: “No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.  Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.”¿ (Civ. Code, § 3425.3.) ¿ 

Relying on the USPA, courts have found that “[w]here the complaint is based on an offensive statement that is defamatory, plaintiffs have not been allowed to circumvent the statutory limitation by proceeding on a theory other than defamation.” (Long v. Walt Disney Co. (2005) 116 Cal. App. 4th 868, 873.)¿ California courts have held that the USPA’s phrase “any tort” means exactly that. “The enactment of section 3425.3 of the [USPA] by the California Legislature reflected great deference to the First Amendment and sought to alleviate many problems presented in respect to tort actions where mass communications are involved. When the Legislature inserted the clause ‘or any other tort’ it is presumed to have meant exactly what it said.”¿ (Long v. Walt Disney Co. (2005) 116 Cal. App. 4th 868, 874-875) (applying USPA to claims for violation of the right of publicity, the appropriation of likenesses, and intentional infliction of emotional distress); Strick v. Superior Court (1983) 143 Cal. App. 3d 916, 924 (a plaintiff whose cause of action for libel was time-barred under section 3425.3 and Code of Civil Procedure section 340, subdivision (3) could not proceed with another, equivalent cause of action, for to do so would undercut the legislative policies of the statute of limitations and the USPA; applying USPA to claims for libel, fraud, and deceit based on the publication of a magazine article); McGuiness v. Motor Trend Magazine (1982) 129 Cal. App. 3d 59, 63 (applying USPA to cause of action for negligence); (Belli v. Roberts Brothers Furs (1966) 240 Cal. App. 2d 284, 289–290 (USPA applies to invasion of privacy claim); Baugh v. CBS, Inc. (N.D.Cal. 1993) 828 F. Supp. 745, 756 (applying USPA to claims for trespass, unfair competition, fraud, and intentional and negligent infliction of emotional distress).)¿  

Accordingly, the Court concludes Plaintiffs’ second to fifth causes of action are barred by the one year statute of limitations, and for this reason, the Court sustains Defendant’s demurrer.   

Motion to Strike 

Defendant moves to strike Plaintiff’s claim for punitive damages because Plaintiff has not sought leave of court as required under Code Civ. Proc. § 425.13.  The Court agrees.     

Code Civ. Proc. § 425.13 requires that in an action against a health care provider, a plaintiff must first seek leave of court to plead a cause of action for punitive damages.  Plaintiff must establish in a motion, a “substantial probability” that she will prevail on a claim for punitive damages.   

Section 425.13 applies to all claims directly related to the manner in which Defendant provided professional services, not just to a claim for professional negligence.  (Central Pathology Service Medical Clinic v. Superior Court (1992) 3 Cal.4th 181, 191-92 (“Whenever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a healthcare provider acting in his capacity as such, then the action is one ‘arising out of the professional negligence of a healthcare provider,’ and the party must comply with section 425.13(a).”)   

Identifying a cause of action as an intentional tort as opposed to negligence does not itself remove the claim from the requirements of § 425.13.  Instead, the allegations that identify the nature and cause of plaintiff’s injury must be examined to determine whether each is related to the manner in which the professional services were provided.  (Cooper v. Superior Court (1997) 56 Cal.App.744, 749 (section 425.13 applied to claims for sex harassment, sex discrimination, bias related to violence or intimidation, sexual assault, sexual battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and medical malpractice). 

Here, Plaintiff’s claims are related to the manner in which Defendant provided professional services.  They arise from Defendant’s use of photos taken in the course of his medical treatment of Plaintiff.  Accordingly, § 425.13 applies, and because Plaintiff has failed to seek leave of Court before asserting a claim for punitive damages, the claim must be stricken.      

Defendant also moves to strike Plaintiff’s claim for statutory damages in connection with her second cause of action for common law misappropriation of likeness.  Plaintiff does not address this argument in her opposition to the motion to strike.  In any event, as the Court has sustained the demurrer on the common law misappropriation of likeness claim, it denies as moot the motion to strike statutory damages in connection with the claim.   

Defendant next moves to strike Plaintiff’s claim for restitution, lost revenues and lost profits in connection with her claim for professional negligence.  Citing Civ. Code § 3333.2, Defendant argues such damages are not available for a claim for professional negligence.  Plaintiff does not address this argument in her Opposition.  Accordingly, as there is no opposition, the Court grants the motion to strike Plaintiff’s prayer for restitution, lost revenues and lost profits in connection with her claim for professional negligence.        

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendant’s demurrer without leave to amend and GRANTS IN PART and DENIES IN PART Defendant’s motion to strike.   

 

IT IS SO ORDERED. 

 

DATED: October 10, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court