Judge: Elaine W. Mandel, Case: 21STCV10353, Date: 2023-03-23 Tentative Ruling
Case Number: 21STCV10353 Hearing Date: March 23, 2023 Dept: P
Tentative Ruling
Knight v.
Ellenbogen, Case No. 21STCV10353
Hearing Date March
23, 2023
Defendants Desai
and Ellenbogen’s Demurrers to FAC and Motions to Strike
Plaintiff Knight
alleges defendant doctors Ellenbogen and Desai committed medical malpractice,
fraud and breach of contract by giving her the wrong size breast implant,
failing to replace the implant and failing to properly suture incisions. Plaintiff
alleges Desai violated her privacy by using her phone to post positive online
reviews of himself. Finally, plaintiff alleges Ellenbogen sexually harassed
her, making unwanted sexual advances. Defendants Desai and Ellenbogen each demurs
and moves to strike punitive damages requests.
Ellenbogen Demurrer/Motion
to Strike
Demurrer- Breach
of Contract
Generally, when a
patient claims to be dissatisfied due to alleged medical mistake, the action
sounds in professional negligence, not breach of contract. Weinstock v.
Eissler (1964) 224 Cal.App.2d 212, 226. A physician can only be liable for
breach of contract arising out of treatment if they promised a particular
result (rather than promising a positive outcome), and the patient consented in
reliance on the promise. Depenbrok v. Kaiser (1978) 79 Cal.App.3d 167.
Ellbogen argues this
is really a professional negligence claim, and plaintiff cannot avoid the
statutory requirements of a medical negligence claim by casting it as breach of
contract. Per Depenbrok, a cause of action for breach of contract in the
medical context can proceed if plaintiff alleges a provider promised a specific
outcome, and they consented to the procedure in reliance on that promise.
Plaintiff alleges Ellenbogen
promised the surgery “would yield breasts with the same appearance as they
appeared after the first surgery…” ¶70(a). Plaintiff alleges she consented in
reliance on that promised outcome, and the procedure did not produce the
promised outcome. Per Depenbrok, these allegations are enough to allege
a cause of action for breach of contract in the medical context. OVERRULED.
Demurrer- Promissory
Fraud
A cause of action
for fraud, including promissory fraud, must be pleaded with heightened factual specificity.
E.g., Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060. A cause of
action for promissory fraud must plead specific facts showing “From what data
the falsity of [defendant’s] intentions could be inferred.” Hills
Transportation Co. v. Southwest Forest Industries, Inc. (1968) 266
Cal.App.2d 702, 707.
Ellenbogen argues
Knight has not pleaded promise with adequate specificity or specific facts showing
his contemporaneous intent to not perform. Knight alleges Ellenbogen promised on
January 14, 2019 the procedure “would yield beasts [SIC] with the same
appearance as they appeared after the first surgery…” FAC ¶ 76. This is a specific
allegation of alleged false promise, sufficient to survive demurrer. The FAC also
alleges “[t]he truth was Dr. Ellenbogen intended to substitute his judgment instead
of Ms. Knight’s desires and to use implants that would result in visibly
smaller breasts[.]” Id. ¶77. This is a sufficiently specific allegation of defendant’s
intent not to perform at the time the promise was made. OVERRULED.
Demurrer- Sexual
Harassment
Under Cal. Civ.
Code §51.9, a cause of action for sexual harassment lies where defendant “made
sexual advances, sexual requests, demands for sexual compliance by the plaintiff
or engaged in other verbal, visual, or physical conduct of a sexual nature or
of a hostile nature based on gender, that were unwelcome and pervasive or
severe.”
Ellenbogen alleges
the FAC states “Ms. Knight was put in a position where she felt the need to
feign receptiveness[.]” Demurrer at pg. 8. He argues this indicates the
advances were not unwelcome, or there was no reason for him to conclude they
were unwelcome. This is a factual argument, not for demurrer. The FAC alleges
the advances were unwelcome and pervasive or severe. FAC ¶¶90-96. For purposes
of pleading, the allegations must be treated as true. OVERRULED.
Motion to Strike
Punitive Damages
Ellenbogen moves
to strike the requests for punitive damages, attorney’s fees and statutory
penalties under Cal. Civ. Code §52(b), which allows a plaintiff who prevails on
a claim for sexual harassment under Civ. Code §51.9 to recover fees and
exemplary damages. The statute also allows successful §51.7 plaintiffs to
recover statutory penalties of $25,000.
Ellenbogen argues plaintiff
cannot recover any of these categories because her §51.9 claim is inadequately
pleaded. As the SAC sufficiently alleges statutory sexual harassment, the
request for punitive damages and attorney’s fees under §52(b) is appropriate. Plaintiff
is not entitled to a statutory penalty, since §52(b) only allows such recovery
in actions brought under §51.7, and plaintiff does not make a claim under that
statute.
Ellenbogen argues
punitive damages are barred by Cal. Code of Civ. Proc. §425.13, which requires
plaintiff to obtain a court order before seeking punitive damages “arising out
of the professional negligence of a health care provider[.]” Despite the
statutory language, the Supreme Court held §425.13 applies to intentional torts
where the injury alleged 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.
Ellenbogen argues
alleged sexual harassment in the context of a physician-patient relationship is
“related to the manner in which professional services were provided,” so
subject to §425.13’s requirement of a court order, which has not been obtained.
Per Central Pathology, “a cause of action against a health care provider
for sexual battery would not, in most instances, fall within the statute[.]” Plaintiff
alleges sexual harassment rather than sexual battery, but the Central
Pathology reasoning applies. A claim for sexual harassment against a
healthcare provider is unrelated to the manner in which medical services were
provided, so §425.13 does not apply. GRANTED as to statutory penalties under
§52(b) ONLY; DENIED as to the remainder.
Desai Demurrer/Motion
to Strike
Demurrer- Invasion
of Privacy
To survive
demurrer, plaintiff need only plead ultimate facts constituting the cause of action.
Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592,
606. To prevail on a cause of action for invasion of privacy, plaintiff must
plead and prove intentional intrusion into an area in which plaintiff has a
reasonable expectation of privacy. Hernandez v. Hillsides, Inc. (2009)
47 Cal.4th 272, 295. There is no cause of action for accidental or negligent
invasion of privacy. Id.
Desai argues the FAC
is a sham pleading because the initial complaint stated “[p]laintiff has reason
to believe” the relevant allegations; the FAC omits this language. The “reason
to believe” language does not constitute an admission that the claim is without
merit; its omission does not alter the substance of the claim. Desai also argues
the FAC is a sham because it omits the word “knowingly,” in the original
complaint, so does not allege intent. While the FAC does not explicitly allege
Desai’s wrongdoing was intentional, it alleges he took the mobile phone and accessed
plaintiff’s online accounts without permission. FAC ¶85. This is intentional
conduct. The FAC does not contradict the original complaint and is not a sham
pleading.
Desai argues the
invasion of privacy claim does not state what Desai allegedly posted on
Knight’s accounts or when the posts were made. The FAC alleges “in or about
February through August 2020” Desai posted “positive reviews about himself” on
plaintiff’s online accounts without her permission. FAC ¶85. This is sufficient.
OVERRULED.
Motion to Strike
Under Cal. Code of
Civ. Proc. §425.13, plaintiff must obtain court approval before requesting
punitive damages in “any action for damages arising out of the professional
negligence of a health care provider.” The statute only applies to “an injury
that is directly related to the professional services provided by a health care
provider acting in its capacity as such.” Divino Plastic Surgery, Inc. v.
Superior Court (2022) 78 Cal.App.5th 972.
Desai argues Knight
did not seek leave of the court as required under MIRCA. Cal. Code of Civ.
Proc. §425.13. Under Divino, Knight’s alleged injury resulted from Desai’s
accessing her online accounts, not related to his professional services;
§425.13 does not apply. (See above reasoning).
Desai argues Knight
fails to allege the invasion of privacy cause of action with sufficient
specificity. The claim is specific enough to survive demurrer, so the request
for punitive damages is appropriate. DENIED.
Both moving
defendants to answer within 15 days.