Judge: Edward B. Moreton, Jr, Case: 24SMCV03084, Date: 2024-12-03 Tentative Ruling

Case Number: 24SMCV03084    Hearing Date: December 3, 2024    Dept: 205

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 205

Background

This action arises from alleged injuries that Plaintiff Nazifa Wyshak (“Plaintiff”) sustained during an eye surgery, as well from as an alleged assault that occurred during an eye examination.

On June 25, 2024, Plaintiff filed a Complaint against Defendants Maziar Lalezary, M.D. (“Lalezary”), Doctor Retina, PC (“DRP”), Regal Medical Group, and DOES 1 to 10, inclusive, alleging causes of action for: (1) Professional Negligence; (2) Assault; (3) Sexual Battery; and (4) Intentional Infliction of Emotional Distress.

On September 6, 2024, Defendants Lalezary and DRP filed a demurrer and motion to strike, which was later withdrawn by Defendants Lalezary and DRP due to the filing of the First Amended Complaint.

On September 24, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants alleging causes of action for: (1) Professional Negligence; (2) Assault; (3) Sexual Battery; and (4) Intentional Infliction of Emotional Distress.

On October 24, 2024, Defendants Lalezary and DRP (collectively, the “Lalezary Defendants”) filed a demurrer to the second, third, and fourth causes of action in the FAC.

On October 30, 2024, Defendant Regal Medical Group, Inc. (erroneously sued as Regal Medical Group) (“Regal”) filed a demurrer to the second, third, and fourth causes of action in the FAC.   

On October 30, 2024, Defendant Regal filed a Notice of Joinder indicating that it joins in the demurrer filed by the Lalezary Defendants.

On November 18, 2024, Plaintiff filed an opposition to the demurrers.

On November 22, 2024, the Lalezary Defendants and Defendant Regal filed their respective reply briefs.

Given that the demurrers are directed at the same causes of action in the FAC, the Court will address both demurrers in this one ruling.

Meet and Confer

            Per Code of Civil Procedure section 430.41, subdivision (a), the parties were required to meet and confer in person, by telephone, or by video conference before bringing the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) An insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

Counsel for the Lalezary Defendants, Hilliary B. Powell (“Powell”), states that she telephonically spoke with Plaintiff’s counsel on October 16, 2024, in an attempt to resolve the issues raised in the demurrer. (Powell Decl., ¶ 5.)

Counsel for Defendant Regal, Jeffrey A. Rector (“Rector”), declares that on October 29, 2024, he had a telephonic meet and confer with Plaintiff’s counsel in an attempt to resolve the issues raised in the demurrer. (Rector Decl., ¶ 3.)  

The Court finds that the meet and confer requirement has been met.

Demurrer Standard

            In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4^th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4^th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4^th 952, 958.) A court, however, does not consider “contentions, deductions or conclusions of fact or law” in assessing the sufficiency of a complaint on demurrer. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.)

            When ruling on a demurrer, the Court may only consider the complaint’s

allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4^th 574, 578.)

            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.4^th 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.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4^th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.)

Analysis

Uncertainty

            Initially, the Court rejects the arguments raised by Defendant Regal and the Lalezary Defendants that the FAC is uncertain. The Court finds that the FAC is not uncertain because it is not so unclear that Defendants are not apprised of the issues that must be met. (Bacon v. Wahrhaftig, supra, 97 Cal.App.2d 599, 605 [“[a] special demurrer should not be sustained when . . . [the pleading is] sufficiently clear to apprise the [moving party] of the issues which he is to meet.”].)

Second Cause of Action for Assault

            “The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4^th 652, 668-669.)

            The FAC is set forth on a Judicial Council PLD-PI-001 form. Plaintiff alleges that Defendants “and each of them, were the agents and employees of their co-defendants, and in doing the things alleged in this complaint were acting within the course and scope of that agency and employment. Each defendant, when acting as a principal, was negligent in the selection and hiring of each other defendant as agent or employee.” (FAC, ¶ 4.)

            As to the second cause of action for assault, Plaintiff alleges the following: On September 13, 2023, Plaintiff went to Defendants’ office for an eye examination following a retina surgery that Defendant Lalezary had performed on her a few months earlier. (FAC, ¶ 10.) During the examination, Defendant Lalezary made inappropriate and offensive advances toward Plaintiff, by asking her if she participated in any kind of sports since she had very nice legs. (FAC, ¶ 11.) Plaintiff alleges that, during the examination of her right eye, Defendant Lalezary stood extremely close to her, as though he was rubbing himself on Plaintiff. (FAC, ¶ 12.) At all times, Defendant Lalezary’s groin was clearly touching Plaintiff’s body and such conduct was very offensive to Plaintiff. (FAC, ¶ 12.) After the examination, Defendant Lalezary did not move away from Plaintiff, and while still rubbing against Plaintiff, would ask Plaintiff to read the letters on the wall to check her vision. (FAC, ¶ 13.) Plaintiff did not consent to Defendant Lalezary rubbing himself against her body. (FAC, ¶ 14.) The conduct of Defendant Lalezary harmed Plaintiff and injured her person. (FAC, ¶ 15.) Plaintiff alleges that Defendant Lalezary’s conduct in rubbing himself against her body was the substantial cause of her injuries. (FAC, ¶ 16.)  

            The Court finds that the second cause of action for assault is insufficiently alleged against the Lazelary Defendants as Plaintiff has failed to allege that Defendant Lazelary intended to cause a harmful or offensive contact with Plaintiff. The allegation of the form complaint that “[b]y the following acts or omissions to act, defendant intentionally caused the damage to plaintiff” is a conclusion and is not a sufficient allegation to meet the requisite element of intent. (See FAC at PLD-PI-001(3).)

            As to Defendant Regal, the Court finds that Plaintiff has not stated a cause of action for assault against Defendant Regal under a respondeat superior theory of liability. “[A]n intentional tort gives rise to respondeat superior liability only if it was engendered by the employment . . . .” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298.) “Respondeat superior liability should apply only to the types of injuries that as a practical matter are sure to occur in the conduct of the employer’s enterprise.” (Id. at p. 299 (internal quotations omitted).) Here, the second cause of action fails to state sufficient facts to constitute an assault cause of action against the Lazelary Defendants and, therefore, such cause of action fails as to Defendant Regal. Plaintiff has not identified any specific conduct of Defendant Regal as to the second cause of action.

            Additionally, Plaintiff has failed to allege facts to impute liability onto Defendant Regal for negligent hiring because there are no allegations in the FAC that Defendant Regal “knew or had reason to believe” that Defendant Lazelary would engage in the alleged wrongful acts. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591.)

            Additionally, the Court finds that Plaintiff’s allegation as to agency is much too conclusory. (FAC, ¶ 4.)

            The Court therefore sustains the respective demurrers to the second cause of action for assault with leave to amend.

Third Cause of Action for Sexual Battery

            Civil Code section 1708.5, subdivision (a), states that “[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 Civil Code section 1708.5 makes “[a] person who commits a sexual battery upon another [] liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages.” An “intimate part means the sexual organ, anus, groin, or buttocks of any person, or the breast of a female.” (Civ. Code, § 1708.5, subd. (d)(1).) “Offensive contact means contact that offends a reasonable sense of personal dignity.” (Civ. Code, § 1708.5, subd. (d)(2).)

            Pursuant to the third cause of action, Plaintiff alleges that Defendant Lalezary intended to cause a harmful and offensive contact with her by rubbing his groin against her body. (FAC, ¶ 18.) Defendant Lalezary’s conduct created a sexually offensive contact that was directly made with Plaintiff. (FAC, ¶ 18.) Plaintiff did not consent to Defendant Lalezary rubbing his groin against her body. (FAC, ¶ 19.) Defendant Lalezary’s conduct was harmful to Plaintiff and injured her person. (FAC, ¶ 20.) Defendant Lalezary’s conduct in rubbing himself against Plaintiff’s body was the substantial cause of Plaintiff’s injuries. (FAC, ¶ 21.)

            The Court finds that the third cause of action states sufficient facts to constitute a cause of action for sexual battery against the Lalezary Defendants. Here, Plaintiff has alleged that Defendant Lalezary “intend[ed] to cause a ‘harmful or offensive’ contact and [that] [Plaintiff] suffer[ed] a ‘sexually offensive contact’.” (Jacqueline R. v. Household of Faith Family Church, Inc. (2002) 97 Cal.App.4th 198, 208.)

            As to Defendant Regal, the Court finds that the sexual battery allegations are insufficient to show the presence of respondeat superior liability. “[A] sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th 291, 301.) “[T]hat a job involves physical contact, by itself, is an insufficient basis on which to impose vicarious liability for a sexual assault.” (Id. at p. 302.) “To hold medical care providers strictly liable for deliberate sexual assaults by every employee whose duties include examining or touching patients[] . . . would be virtually to remove the scope of employment as a limitation on a providers’ vicarious liability.” (Ibid.) “[A] deliberate sexual assault is fairly attributed not to any particular aspect of the health care enterprise, but only to propinquity and lust.” (Ibid.) Where an incident occurs that is “the independent product of [an] [employee’s] aberrant decision to engage in conduct unrelated to his duties” no liability will be imposed against an employer under a respondeat superior theory. (Id. at p. 303.)

            Here, as to Defendant Regal, Defendant Lalezary is alleged to have engaged in a sexual battery against Plaintiff. However, the Court finds that such act is an independent product of Defendant Lalezary’s decision to engage in such conduct and is not related to any particular aspect of Defendant Regal’s enterprise. Also, Plaintiff has failed to allege any “emotional involvement, either mutual or unilateral, arising from the medical relationship.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4^th 291, 302.) Based on the facts alleged in the FAC, Defenant Lalezary “simply took advantage of solitude, [and] access” to commit the alleged sexual battery. (Id. at p. 303.)

            The Court therefore overrules the demurrer of the Lalezary Defendants to the third cause of action for sexual battery.

            The Court sustains the demurrer of Defendant Regal to the third cause of action for sexual battery with leave to amend.

Fourth 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.4^th 999, 1009 (citation and ellipses omitted).)

            Pursuant to the fourth cause of action, Plaintiff alleges the following: Defendant Lalezary’s conduct was intentional, outrageous, malicious and done with ill will and with the intent to cause Plaintiff to suffer humiliation, mental anguish, and emotional distress. (FAC, ¶ 24.) Defendant Lalezary’s conduct was so severe and outrageous that, as a proximate result, Plaintiff suffered harm in the form of humiliation, mental anguish, and emotional distress. (FAC, ¶ 24.)

            The Court finds that Plaintiff’s fourth cause of action for IIED is insufficiently alleged as it is much too conclusory. Plaintiff has not alleged that she suffered severe or extreme emotional distress.

            The Court therefore sustains the respective demurrers of Defendant Regal and the Lalezary Defendants to the fourth cause of action in the FAC for IIED with leave to amend.

Conclusion

Accordingly, the Court SUSTAINS the respective demurrers of the Lalezary Defendants and Defendant Regal to the second cause of action for assault with leave to amend.

The Court OVERRULES the demurrer of the Lalezary Defendants to the third cause of action for sexual battery.

The Court SUSTAINS the demurrer of Defendant Regal to the third cause of action for sexual battery with leave to amend.

The Court SUSTAINS the respective demurrers of the Lalezary Defendants and Defendant Regal to the fourth cause of action for intentional infliction of emotional distress with leave to amend.

Dated: December 3, 2024

__________________________________________

Edward B. Moreton, Jr.

Judge of the Superior Court