Judge: Gail Killefer, Case: 22STCV31401, Date: 2025-03-20 Tentative Ruling
Case Number: 22STCV31401 Hearing Date: March 20, 2025 Dept: 37
HEARING DATE: Thursday, March 20, 2025
CASE NUMBER: 22STCV31401
CASE NAME: Radiah Blount, et al. v. James Dillard, Jr., et al.
TRIAL DATE: Not set.
PROOF OF SERVICE: OK
PROCEEDING: Special Motion to
Strike (CCP, § 425.16.)
MOVING PARTY: Defendant Emanuel Thomas, Esq.
OPPOSING PARTY: Plaintiff Radiah Blount
OPPOSITION: 20 February 2025
REPLY: None
TENTATIVE: Defendant
Thomas’ special motion to strike is granted.
PROCEEDING: Demurrer to Complaint
MOVING PARTY: Defendant Emanuel Thomas, Esq.
OPPOSING PARTY: Plaintiff Radiah Blount
OPPOSITION: 20 February 2025
REPLY: None.
TENTATIVE: Defendant Thomas’ demurrer is moot.
Background
On September 26, 2022, Radiah
Blount (“Radiah”), individual and as Conservator on behalf of Mathew Blount,
Jr. (“Blount”) (collectively “Plaintiff”) filed a Complaint against James
Dillard, Jr. (“Dillard”); Osbourne Blake, M.D.; Emanuel Thomas, Esq. (“Thomas”);
Kaiser Permanente Inc.; and Does 1 to 10.
The Complaint alleges three causes
of action:
1)
Violation of the California Confidentiality of
Medical Information Act (Civ. Code § 56 et seq.) against all Defendants;
2)
Negligence Per Se against all Defendants; and
3)
Negligence against US Healthworks.
Defendant Thomas has filed this Special Motion to Strike under CCP § 425.16 and a
demurrer to the Complaint. Plaintiff opposes both motions. The matter is now
before the court.
I. Legal Standard
CCP § 425.16 sets forth the procedure governing anti-SLAPP
motions.¿ In pertinent part, the statute provides: “A cause of action against a
person arising from any act of that person in furtherance of the person’s right
of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.” (CCP § 425.16(b)(1).) “[A]n anti-SLAPP motion, like a conventional
motion to strike, may be used to attack parts of a count as pleaded.” (Baral
v. Schnitt¿(2016) 1 Cal.5th 376, 393.) The purpose of the statute is to
identify and dispose of lawsuits brought to chill the valid exercise of a
litigant’s constitutional right of petition or free speech. (Code Civ. Proc., §
425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services,
Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)¿¿¿¿¿
Courts employ a two-step process to evaluate anti-SLAPP
motions. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, 61 (Equilon).) To invoke the statute's protections, the defendant
must first show that the challenged lawsuit arises from protected activity,
such as an act in furtherance of the right of petition or free speech. (Ibid.)
From this fact, courts “‘presume the purpose of the action was to chill the
defendant’s exercise of First Amendment rights.¿ It is then up to the plaintiff
to rebut the presumption by showing a reasonable probability of success on the
merits.’” (Ibid.) In determining whether the plaintiff has carried this
burden, the trial court considers “the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.”
(CCP § 425.16(b)(2); see Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 291 (Soukup).)¿¿¿¿
II. Discussion
A. Factual
Summary
The Complaint alleges that
Plaintiff Blount, while recently widowed, placed his residence for sale with
the intent of moving to North Carolina on or about July 2022. (Compl., ¶ 7.) His
residence was sold shortly after being placed on sale. (Id. ¶ 8.) Raven
Steele (“Steele”) was Plaintiff Blount’s full-time caregiver and wife prior to
his death and has assisted him with “facilitating the documentation to complete
the sale.” (Ibid.) At the close of escrow, Blount’s realtor received a
cease-and-desist letter from Blount's stepson, Defendant Dillard, via Dillard’s
personal counsel. (Ibid.)
The September 25, 2020 cease and letter
was sent by Defendant Thomas to Geoffrey Gill (“Gill) of Dwell California, the
escrow company, informing Gill to cease and desist with the sale of Blount’s
residence. (Compl., ¶ 9.) Plaintiff asserts that the September 25, 2020 Letter
was based on the false allegation that Blount lacked the mental capacity to act
on his own behalf. (Ibid.) Plaintiff Blount’s alleged lack of capacity
was based on a letter written by his physician stating that Blount was
diagnosed with dementia in October 2019 and listed Blount’s medical history,
diagnosis, and medications prescribed. (Id. ¶ 11.)
Plaintiff Blount did not authorize
Dillard or any of the other Defendants to release or circulate his medical
information. (Compl., ¶¶ 12, 15.) Plaintiff Blount believes the letter
containing his medical information was obtained by Dillard and provided to
Defendant Thomas. (Id. ¶ 13.) Plaintiff Blount asserts that Dillard
wanted funds from the sale proceeds of the residence but when his demands were
not met, he wanted to block Blount from accessing the sale proceed by
circulating the letter with Blount’s medical information. (Id. ¶ 15.)
Consequently, various entities froze Blount’s funds and prohibited their
release until a court order was received. (Ibid.) Because Blount could
not access the sale proceeds or his accounts, he became homeless and had to
secure temporary housing from the Veteran’s Administration and could not move
to North Carolina to live with close family. (Id. ¶ 17.) This caused
significant emotional distress to Blount. (Id. ¶ 18.)
Plaintiff Blount’s daughter,
Radiah Blount (“Radiah”), was forced to open a conservatorship to gain control
of Blount’s assets and to move him to North Carolina. (Compl., ¶ 18.)
Defendant Thomas now moves to
strike the first and second causes of action alleged against him on the basis
that they arose out of his petition activity to the court in his role as Dillard’s
lawyer.
B. Step 1: Does the Alleged Wrongful
Conduct Arise Out of a Protected Activity?
“In
ruling on a defendant's anti-SLAPP motion, the trial court engages in a
two-step analysis.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88
(Navellier).) First, the court determines “whether the defendant has
made a threshold showing that the challenged cause of action is one arising from
protected activity,” which includes the defendants’ right of petition, or free
speech, under a constitution, in connection with issues of public interest. (Ibid;
CCP, § 425.16.)¿“[T]he moving defendant must identify the acts alleged in the
complaint that it asserts are protected and what claims for relief are
predicated on them. In turn, a court should examine whether those acts are
protected and supply the basis for any claims.” (Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1010 (Bonni I).)
i. Defendant Thomas’ Relationship with
Defendant Dillard and the Cease and Desist Letter
Defendant
Thomas asserts that on September 24, 2020, his law firm was retained by
Defendant Dillard to petition the court to appoint Dillard as Conservator for
Plaintiff Blount and defend against a Temporary Restraining Order (“TRO”) filed
against Dillard by Raven Steele (“Steele”), who had acquired Power of Attorney,
signed by Blount when Blount lacked the
mental capacity to sign any documents. (Thomas Decl., ¶ 2.) Steele was
attempting to sell Blount’s house and Dillard presented Thomas with a September
11, 2020 letter from Kaiser Permanente signed by Blount’s physician, Defendant
Osbourne Blake (“Dr. Blake”) that stated that Blount had been diagnosed with
Dementia in December 2019. (Id. ¶ 2.)
The
same day Defendant Thomas was retained by Dillard, September 24, 2020, Thomas
sent the cease and desist letter to Dwell California “to guard against the sale
of Mr. Blount’s home by Steele who had wrongfully obtained the Power of
Attorney.” (Thomas, Decl., ¶ 3.) The September 11, 2020 letter was attached to
prove that Plaintiff Blount lacked the capacity to sign the Power of Attorney
and thus Ms. Steel could not act on his behalf. (Id. ¶ 3.) Thomas
asserts that Ms. Steele had filed a TRO to restrain Dillard from interfering in
the sale of Blount’s house. (Id. ¶ 4.) Defendant Thomas asserts that the
response to the TRO contained the following declaration from Dillard:
I
am the stepson of Matthew Blount, Jr., who was married to my mother, Dandy
Blount. My mother, Dandy Blount died on July 19, 2020. Attached hereto as
Exhibit B is a true and correct copy of my mother’s Certificate of Death.
My
stepfather, Matthew Blount, Jr., suffers from dementia. He was diagnosed with
dementia in December 2019. Attached hereto as Exhibit B is a true and correct
copy of a September 11, 2020 letter from Mr. Blount’s doctor, Osbourne Blake,
M.D., confirming that diagnosis, and confirming that Mr. Blount is not able to
sign any legally binding document due to poor judgment and capacity and that,
prior to her death, my mother cared for Mr. Blount and handled their finances
and necessities.
The
Request for Elder or Dependent Adult Abuse Restraining Order was not submitted
to this Court by Mathew Blount, Jr. This documentation was submitted by a woman
named Raven Steel, who is the caregiver of Mathew Blount, Jr. This
documentation was submitted by a woman named Raven Steele, who is the caregiver
of Mathew Blount, Jr. Please note on the Temporary Restraining Order issued,
Raven Steele listed her telephone number of 213-308-4983, and her e-mail
address of ravensteele94@icloud.com.
Immediately
after my mother died on July 10, 2020, Mathew Blount, Jr.’s caregiver, Raven
Steel, had Mr. Blount sign a power of attorney, giving her power to act on his
behalf.
Raven
Steele used this power of attorney to contact Mr. Blount’s bank and added
herself to his bank account, changing his contact information to her e-mail
address. Attached hereto as Exhibit D are true and correct copies of a Contact
Information Change Notice and Personal Membership and Account Agreement signed
by Raven Steele and Mathew Blout, Jr. from OneUnited Bank.
I
contacted OneUnited Bank and provided them with the information and
documentation needed to report Raven Steele’s fraud. OneUnited Bank has placed
a freeze on Mr. Blount’s accounts, and is working with me to stop Ravel [sic]
Steel from further fraud against my stepfather.
Raven
Steel has contacted a relator and listed Mr. Blount’s home located at 3015
Hillcrest Drive, Los Angles, California 90016, for sale. Attached hereto as
Exhibit E is a true and correct copy of the Grant Deed showing that title to
3015 Hillcrest Drive property is held by Dandy Blount (my mother) and Mathew
Blunt, as husband and wife. Attached hereto as Exhibit F is a true and correct
copy of the listing of the 3015 Hillcrest Drive property, on which an offer has
been accepted by Raven Steele, who is now accepting backup offers.
I
have contacted the police and reported Raven Steele’s fraudulent activities and
financial elder abuse she is perpetrating o Matthew Blount, Jr. I have turned
over all information and documentation currently in my possession, and am continuing
to gather information and documentation for the police to give to the prosecutor.
Raven
Steele has filed for these restraining orders against me to keep me away from
Mr. Blount, so she can continue to commit fraud and financial elder abuse
against my stepfather, Mathew Blount, Jr.
I
am in the process of petitioning to be appointed Conservator of Mathew Blount,
Jr., to stop the illegal sale of his house to take care of him personally, to
take care of his finances, and to protect him from the financial elder abuse
currently being perpetrated upon him by Raven Steele, and any future threat of
physical or financial abuse.
(Thomas
Decl., ¶ 4.)
Defendant
Thomas asserts the TRO hearing was scheduled for September 29, 2020, Steele did
not appear at the hearing, and the court denied the TRO. (Thomas Decl., ¶ 5.) Defendant
Thomas further asserts that on October 6, 2020, he prepared documents to petition
the court to appoint Dillard as the temporary and permanent conservator of Mr.
Blunt but did not proceed with the Petition “[u]pon learning that Plaintiff
Radiah Blount would be filing for conservatorship of Mr. Blount[.]” (Id.
¶ 6.)
The
September 11, 2020, Medical Letter is attached as Exhibit C to the Thomas
Declaration states in relevant part:
To Whom It May
Concern,
Mr. Matthew Blount
Jr. was diagnosed with dementia December 2019 formally, he therefore is not
able to sign any legally binding document due to poor judgement and capacity. .
. .
Eventually he had
stepwise decline of his memory throughout the years and finally was referred to
geriatric Medicine for full evaluation after significant decline in his
executive function was noted. Mr. Blount has been cared for by his wife who was
in charge of all of his finances and necessities because he was not able to
manage any of his own affairs, until her recent death.
[ . . . ]
Sincerely,
Osbourne Blake MD
[ . . . ]
This information has
been disclosed to you from records whose confidentiality is protected by
Federal law. Federal regulations prohibit you from making any further
disclosure without the specific written consent of the person to whom it
pertains, or is otherwise permitted by such regulations.
(Thomas
Decl., Ex. C.) Defendant Thomas also provides the Certificate of Death for
Dandy Blount confirming that she died on July 19, 2020. (Id. Ex. B.)
Thomas also provides the OneUnited Bank Notice of Change to bank account signed
by Steele and Blount dated September 3, 2020, the Grant Deed, and the listing
of Blount’s residence showing that a sale is pending (Id., Ex. D, E, F.)
While
Plaintiff Radiah’s Declaration asserts that Dillard had no standing to seek
conservatorship of Plaintiff Blount, Radiah fails to show she can make such a
legal conclusion and fails to cite any case law holding that a stepson cannot
seek conservatorship over a stepparent. Radiah further admits that she lives in
North Carolina but fails to state how long she has lived there and admits she
did not know that her father had been diagnosed with dementia. (Radiah Blount
Decl., ¶ 6.) To the extent that Radiah suggests that Defendant Dillard
attempted to defraud her father of his money, for purposes of this motion what
matters is whether Defendant Thomas knew or should have known that Dillard did
not seriously contemplate seeking a conservatorship over Blount or prevent the
sale of Blount’s home. This fact is not rebutted by the evidence before the
court.
Moreover,
“[a]claim is unsupported by probable cause if any reasonable attorney would
agree that it is totally and completely without merit.” (Roche v. Hyde¿(2020)
51 Cal.App.5th 757, 794.) Plaintiff Radiah
fails to show that Defendant Thomas lacked probable cause to believe that
Dillard did not seriously intend to seek a conservatorship over Blount.
Moreover, Radiah does not challenge Defendant Thomas’ contention that there was
a TRO hearing pending at the time the cease and desist letter was sent and that
the TRO pertained to the sale of Blount’s home.
Defendant
Thomas asserts that the cease-and-desist letter was a statement made in
connection with an issue under consideration or review before a judicial
proceeding and is protected by the litigation privilege. (See Dove Audio,
Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784
[“communications preparatory to or in anticipation of the bringing of an action
or other official proceeding are within the protection of the litigation
privilege” and “are equally entitled to the benefits of section 425.16.”].)
Civ.
Code § 425.16(a) expressly states that the anti-SLAPP statute seeks to protect
not only the freedom of speech but also the “petition for the redress of
grievances.” Here, it would extend to Defendant Thomas sending the cease and
desist letter to prevent the sale of Blount’s residence, an action his client
believed was not legally permissible given Blount’s mental capacity.
Section
425.16(e)(4) protects any conduct in furtherance of the right to petition,
including “any written or oral statement or writing made in connection
with an issue under consideration or review by a ... judicial
body....” (CCP § 425.16 (e)(2) [italics added].) Thus, “statements,
writings and pleadings in connection with civil litigation are covered by the
anti-SLAPP statute, and that statute does not require any showing that the
litigated matter concerns a matter of public interest. [Citations.]” (Rohde
v. Wolf (2007) 154 Cal.App.4th 28, 35.) “Accordingly, although
litigation may not have commenced, if a statement ‘concern[s] the subject
of the dispute’ and is made ‘in anticipation of litigation
“contemplated in good faith and under serious consideration” ’ [citation]
then the statement may be petitioning activity protected by section
425.16.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255,
1268 quoting Action Apartment Assn., Inc. v. City of Santa Monica (2007)
41 Cal.4th 1232, 1251.)
The
TRO hearing was a pending judicial proceeding, and the cease and desist letter related
to the subject matter of the TRO proceeding. (See Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 956 (Jacob
B.) [“Finally, the letter furthered the objects of the litigation, since
the information it conveyed had relevance to a family law visitation dispute.”];
Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478,
[“statements, writings and pleadings in connection with civil litigation are
covered by the anti-SLAPP statute”]; Fox Searchlight Pictures, Inc. v.
Paladino (2001) 89 Cal.App.4th 294, 305 (Fox Searchlight), [lawsuit
was not outside scope of SLAPP statute even though defendant had no First
Amendment right to disclose privileged and confidential information or refuse
to return materials to their rightful owner].)
“[A]
plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading
tactic of combining allegations of protected and nonprotected activity under
the label of one ‘cause of action.’ ” (Fox Searchlight, supra, 89 Cal.App.4th at p. 308.) Accordingly, the
court need only consider whether sending the cease and desist letter is
petitioning activity even when the claims arise from unprotected activity, such
as obtaining Blount’s confidential medical information and disclosing such
information. (See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287 [“A
mixed cause of action is subject to section 425.16 if at least one of the
underlying acts is protected conduct, unless the allegations of protected
conduct are merely incidental to the unprotected activity.”].) Defendant Thomas
prevailed on the first step of the SLAPP scheme because he succeeded in showing
that the cease and desist letter was petitioning activity within the scope of
section 425.16(e) and is subject to the protections of the SLAPP statute.
Defendant Thomas also succeeds in
showing that his conduct is protected by the litigation privilege. The
litigation privilege “applies
to any publication required or permitted by law in the course of a judicial
proceeding to achieve the objects of the litigation, even though the
publication is made outside the courtroom and no function of the court or its
officers is involved.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The
cease and desist letter was sent to challenge the TRO sought by Steele, and to achieve
the objective of preserving Blount’s assets while Dillard sought
conservatorship over Blount. The facts before the court also support the
finding that Defendant Thomas did not have reason to suspect that Dillard did
not seriously contemplate seeking conservatorship.
Defendant Thomas succeeds in making a threshold showing that the
cease and desist letter disclosing Blount’s medical information was done in furtherance
of the right to petition and is protected conduct under the litigation
privilege. Plaintiff fails to rebut this showing.
Plaintiff Radiah asserts that to
her “understating”, Dillard had spent time in prison and asserts that Dillard
is an “ex con” but fails to provide evidence that Dillard spent time in prison,
that his imprisonment precludes him as a matter of law from seeking a conservatorship
Blount, that Defendant Thomas was obligated to investigate whether Dillard’s
criminal history before sending the cease and desist letter, and that Thomas
did not seriously have a good faith litigation objective. “Unlike demurrers or
motions to strike, which are designed to eliminate sham or facially meritless
allegations, at the pleading stage a SLAPP motion, like a summary
judgment motion, pierces the pleadings and requires an evidentiary
showing.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073
(Simmons) [italics original].)
Furthermore, Plaintiff’s
unverified Complaint fails to show that sending the cease and desist was not
petitioning activity and that sending the cease and desist letter was conducted
not permitted by law therefore not subject to the litigation privilege. Plaintiff
asserts that the cease and desist letter violated the Confidential Medical
Information Act (CIMA), but none of the CIMA provisions cited in the Complaint apply
to Defendant Thomas because he is not a health care provider. (See Compl.
citing Civ. Code §§ 56.20, 56.10.) “The CMIA mostly governs disclosures of
patient medical information by health care providers, but one chapter governs
the use and disclosure of employee medical information by employers.” (Rossi
v. Sequoia Union Elementary School (2023) 94 Cal.App.5th 974, 986.)
Accordingly, the Complaint fails to allege CIMA statutory violations with the
requisite specificity as to Defendant Thomas. (See Covenant Care, Inc. v.
Superior Court (2004) 32 Cal.4th 771, 790.) Moreover, in McNair v. City
and County of San Francisco (2016) 5 Cal.App.5th 1154, the appellate court
held that CIMA did not trump the litigation privilege.
In their opposition, Plaintiff tries
to expand the scope of the pleadings by asserting that Defendant Thomas
violated Civ. Code § 56.36 of CIMA, despite no such allegation existing in the
Complaint. Plaintiff fails to show they can amend the Complaint after the
Anti-SLAPP hearing occurs. “Allowing a SLAPP plaintiff leave to amend the
complaint once the court finds the prima facie showing has been met would
completely undermine the statute by providing the pleader a ready escape from
section 425.16’s quick dismissal remedy.” (Simmons, supra, 92
Cal.App.4th at p. 1073.)
As
Defendant Thomas has met his burden, the burden shifts to Plaintiff to
establish a probability of prevailing on their claims.
C. Step
2: Plaintiff’s Probability of Success on the Merits
“The plaintiff need only establish that his or her claim has
‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup,
supra, 39 Cal.4th at p. 291.) “The trial court merely determines whether
a prima facie showing has been made that would warrant the claim going
forward.” (HMS Capital, Inc. v. Lawyers Title Co.¿(2004) 118 Cal.App.4th
204, 212.) “The court considers the pleadings and evidence submitted by both
sides, but does not weigh credibility or compare the weight of the evidence.
Rather, the court's responsibility is to accept as true the evidence favorable
to the plaintiff¿[citation] and evaluate the defendant's evidence only to
determine if it has defeated that submitted by the plaintiff as a matter of
law.¿[Citation.] The trial court merely determines whether a prima facie
showing has been made that would warrant the claim going forward.¿(Id.
at p. 212.)
“The SLAPP statute does not provide a defense to a claim or
a license to do anything. It merely subjects certain causes of action to closer
scrutiny because they target certain activities. A cause of action that targets
such activities will nonetheless survive if the plaintiff, in the second prong
of the SLAPP analysis, establishes some minimal degree of merit to the claim.”
(Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)
184 Cal.App.4th 1539, 1550.) Plaintiff’s Complaint is unverified and is
insufficient to survive the second step of SLAPP scheme. “It would defeat the
obvious purposes of the anti-SLAPP statute if mere allegations in an unverified
complaint would be sufficient to avoid an order to strike the complaint.
Substantiation requires something more than that. Once the court determines the
first prong of the statute has been met, a plaintiff must provide the court
with sufficient evidence to permit the court to determine whether ‘there is a
probability that the plaintiff will prevail on the claim.’ ” (DuPont Merck
Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568 citing
CCP § 425.16(b)(1); see also Navellier, supra, 106
Cal.App.4th at p. 776 [bare allegations in a complaint are insufficient to
survive the motion to strike that cause of action].)
The first cause of action for violation of the CIMA is
premised on violations Civ. Code §§ 56.10 and 56.20 which do not apply to
Defendant Thomas because he is not a healthcare provider. Plaintiff’s
opposition alleges for the first time violations of Civ. Code §§ 56.36(b) and
56.36(c), allegations that are not in the operative Complaint. As to
subdivision (b), Plaintiff fails to cite any case law finding that a nonhealthcare
provider can be held liable for “ negligently” releasing confidential
information or records. (Civ. Code, § 56.36(b).) “In any event, section 56.36
provides remedies when a health care provider has ‘negligently released
confidential information or records concerning [the plaintiff] in violation
of this part....’ ” (Sutter Health v. Superior Court (2014) 227
Cal.App.4th 1546, 1558 [italics original] citing Civ. Code § 56.36(b).)
Moreover, a claim for violations of Civ. Code § 56.36(b)
requires Plaintiff to prove common law negligence. (See Vigil v. Muir
Medical Group IPA, Inc. (2022) 84 Cal.App.5th 197, 215 [stating that “the
Legislature intended to incorporate those common law negligence principles”
into section 56.36 and 56.101.) Consequently, a claim alleging that Defendant
Thomas violated section 56.36(b) requires Plaintiff to prove negligence but the
third cause of action for negligence is not pled against Defendant Thomas.
Plaintiff also did not amend the Complaint to allege
violations of CIMA under Civ. Code § 56.30(c) which states in relevant part:
(c)(1) In
addition, a person or entity that negligently discloses medical information in
violation of the provisions of this part shall also be liable, irrespective of
the amount of damages suffered by the patient as a result of that violation,
for an administrative fine or civil penalty not to exceed two thousand five
hundred dollars ($2,500) per violation.
(2)(A)
person or entity, other than a licensed health care professional, who knowingly
and willfully obtains, discloses, or uses medical information in violation of
this part shall be liable for an administrative fine or civil penalty not to
exceed twenty-five thousand dollars ($25,000) per violation.
However,
Plaintiff fails to show that section 56.30(c) allows a party to bring a private
right of action under that subdivision. Civ. Code “sections 56.36, subdivision (b), and 56.101,
subdivision (a), provide a private cause of action for individual patients.” (Vigil
v. Muir Medical Group IPA, Inc. (2022) 84 Cal.App.5th 197, 219.)
In
contrast to the language of subdivision (b) of section 56.36, subdivision (c)
of section 56.36 provides only for an administrative fine or a civil penalty,
not a private right of action. Civ. Code § 56.36(d) states that the assessment
of “administrative fine or civil penalty pursuant to subdivision (c)” will be
made by “the State Department of Public Health, licensing agency, or certifying
board or court[.]” Section 56.36(f) further states:
(f)(1)
The civil penalty pursuant to subdivision (c) shall be assessed and recovered
in a civil action brought in the name of the people of the State of California
in any court of competent jurisdiction by any of the following:
(A) The
Attorney General.
(B) A
district attorney.
(C) A
county counsel authorized by agreement with the district attorney in actions
involving violation of a county ordinance.
(D) A
city attorney of a city.
(E) A
city attorney of a city and county having a population in excess of 750,000,
with the consent of the district attorney.
(F) A
city prosecutor in a city having a full-time city prosecutor or, with the
consent of the district attorney, by a city attorney in a city and county.
(G) The
State Public Health Officer, or his or her designee, may recommend that a
person described in subparagraphs (A) to (F), inclusive, bring a civil action
under this section.
Therefore, the court is not persuaded that even if Plaintiff
were allowed to amend the Complaint to add violations of section 56.36(c) by
Defendant Thomas, Plaintiff could bring a private right of action under
subdivision (c).
Therefore,
Plaintiff fails to show that the first cause of action for violation of CIMA as
alleged against Thomas has merit.
The
second cause of action alleged against Defendant Thomas is a claim for
negligence per se. However, negligence per se is not cause of action but an
evidentiary presumption. “[T]he doctrine of negligence per se is not a separate
cause of action, but creates an evidentiary presumption that affects the
standard of care in a cause of action for negligence.” (Millard v.
Biosources, Inc.(2007) 156 Cal.App.4th 1338, 1353, fn. 2.) “Under the
doctrine, ‘the plaintiff ‘borrows’ statutes to prove duty of care and standard
of care.’ ” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727,
738.) Even if Plaintiff allege the applicable CIMA provision to prove duty of
care and standard of care. Moreover, the third cause of action for negligence
claim is alleged against Defendant Thomas. Therefore, the second cause of
action also fails and has no merit.
Plaintiff has failed to meet their burden of showing that
their claims against Defendant Thomas have minimal merit.
Therefore, Defendant Thomas’ special motion to strike is
granted.
Conclusion
Defendant Thomas’ special motion
to strike is granted. The demurrer is moot.