Judge: Erick L. Larsh, Case: 2022-01277066, Date: 2023-07-27 Tentative Ruling

Defendant Trieu Hoang Nguyen, M.D.’s Demurrers to the 2nd, 4th, 5th 7th and 8th causes of action of the Complaint are OVERRULED on the grounds of failure to state a cause of action and uncertainty.

The 2nd cause of action for False Imprisonment is sufficiently alleged. Both actual and nominal damages are available for this cause of action. Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990 The measure of damages will be determined by the evidence. Plaintiff does not have to make an election at the pleading stage.

The 3rd cause of action states a claim for sexual harassment by a physician under Civil Code §51.9. Under the statute, the sexual harassment must be either pervasive or severe.

A single act of harassment may be severe enough to state a claim for harassment. [Ellison v. Brady (9th Cir. 1991) 924 F.2nd 872, 878] Under FEHA “the groping of plaintiff by itself constitutes actionable conduct.” [Myers v. Trendwest Resorts (2007) 148 Cal.App.4th 1403, 1419; see also Huges v. Pair (2009) 46 Cal.4th 1035, 1049 [isolated incident may qualify as “severe” when it consists of physical assault or threat thereof, construing Civil Code §51.9]]

Plaintiff has sufficiently alleged causes of action for negligence. For the 5th and 8th causes of action. They do not rely on the theory of professional negligence. Whatever they are called, they state claims for emotional distress damages. As causes of action for common law negligence they are properly alleged.

As to the 7th cause of action for Willful, Wanton and Reckless Misconduct, the California Supreme Court explains that wanton or reckless misconduct, or willful and wanton negligence, describes conduct by a person who has no intent to cause harm, but who also intentionally performs an act so unreasonable and dangerous that he knows it is highly probable that harm will result. [City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, fn. 4] Facts alleging intentionally unreasonable and dangerous conduct showing a knowledge of a high probability of harm have been alleged.

Defendant Nguyen is to Answer within 5 days.

Defendants are to answer within 10 days.

Motion to Strike

Defendant Trieu Hoang Nguyen, M.D.’s Motion to Strike the punitive damages allegations and prayer from the Complaint is DENIED.

The Court has carefully reviewed CCP §423.15 and authorities construing it. On the facts alleged here, the Court concludes that the claims for which punitive damages are sought are not based on conduct that was “directly related to the rendition of professional services.” [Divino Plastic Surgery, Inc. v. Superior Court (2022) 78 Cal.App.5th 972, 984-985, citing Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192] As such, CCP §423,15 does not apply.