Judge Gary Y. Tanaka, Case 22STCV12675 2023-05-16 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, May 16, 2023

Department B Calendar No. 8

Plaintiff’s Complaint was filed on April 14, 2022. On March 23, 2021, Plaintiff visited Dr. David Lee Haller for a pap smear. During the examination, Dr. Haller sexually battered Plaintiff and made sexually inappropriate remarks and noises. Dr. Haller was a medical staff member at Anphon Medical Center and was assigned by Anphon Medical Center to perform Plaintiff’s pap smear procedure. Plaintiff alleges the following causes of action: 1. Sexual Battery 2. Intentional Infliction of Emotional Distress 3. Sexual Harassment 4. Gender Violence 5. Negligence 6. Negligent Supervision & Retention.

Defendants filed a meet and confer declaration in sufficient compliance with CCP § 430.41. (Decl., Theida Salazar).

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendants demur to the Complaint and each cause of action on the grounds that there is a defect in parties, that the causes of action fail to state facts sufficient to constitute a cause of action, and that the causes of action are uncertain. CCP §§ 430.10(d)(e)(f). Defendants argue that the Complaint is subject to demurrer on the above grounds because demurring Defendant Haller did not perform the pap smear.

Defendants’ demurrer to the entire Complaint and each cause of action is overruled. The entirety of the arguments made with the demurrer consists of Defendants’ arguments denying the allegations purportedly bolstered with attached evidence, which Defendants believe support their contention that Defendant Haller did not perform the pap smear.

A demurrer can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. No other extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. Defendants’ demurrer is based on arguments and facts outside the scope of the pleadings and not properly subject to judicial notice. In addition, Defendants did not request judicial notice of any matter. Defendants’ demurrer essentially argues that Defendants’ version of the events is true and that, therefore, Plaintiff’s claims must be disregarded. These types of factual disputes are not proper for resolution for a demurrer. As noted above, when ruling on a demurrer, the truth of all the allegations set forth by Plaintiff is deemed true.

On the Court’s own motion, the Court strikes Exhibits 1 to 3 of Defendants’ demurrer, as well as Defendants’ Reply. The Court also strikes the declaration of Alexander Gamez, submitted with Plaintiff’s opposition and all exhibits attached thereto.