Judge Gary Y. Tanaka, Case 22TRCV00532 2023-02-23 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, February 23, 2023

Department B Calendar No. 3

2. Ocean Surgery Center, LLC’s Motion to Strike Portions of First Amended Complaint

Ocean Surgery Center, LLC’s Demurrer to First Amended Complaint is sustained with 20 days leave to amend.

Ocean Surgery Center, LLC’s Motion to Strike Portions of First Amended Complaint is moot, in part, and granted with 20 days leave to amend, in part.

Plaintiff’s Complaint was filed on June 30, 2022, and the First Amended Complaint was filed on September 22, 2022. Plaintiff alleges the following facts. On May 17, 2021, Plaintiff visited Dr. Sherif Khattab for consultation and examination related to cosmetic procedures concerning her face and thighs. During the examination, Dr. Khattab asked Plaintiff inappropriate questions about her sex life, conducted unnecessary and unconsented examinations, and sexually battered Plaintiff. Ocean Surgery Center is owned and controlled by Dr. Khattab. Plaintiff alleges the following causes of action: 1. Medical Malpractice/Professional Negligence; 2. Assault; 3. Battery and Sexual Battery; 4. Sexual Harassment (CC 51.9); 5. IIED; 6. Negligent Hiring, Retention, and Supervision.

Defendant filed meet and confer declarations in sufficient compliance with both CCP § 430.41 and CCP § 435.5. (Decls., David J. Ozeran.)

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.)

Defendant demurs to the second through sixth causes of action of Plaintiff’s First Amended Complaint pursuant to CCP § 430.10(e) on the grounds that the causes of action fail to state facts sufficient to constitute a cause of action. Defendant argues that the second through fifth causes of action are subject to demurrer because demurring Defendant cannot be held vicariously liable for the acts of Dr. Khattab and cannot be independently liable for intentional torts. As to the sixth cause of action, Defendant contends that Plaintiff fails to state facts the necessary facts that were known to demurring Defendant regarding the alleged unfitness of Dr. Khattab.

Defendant’s demurrer to the second through fifth causes of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to constitute the causes of action.

Defendant’s demurrer is based on the ground that Defendant cannot be held vicariously liable for the intentional torts stated in the second through fifth causes of action. Plaintiff opposes the demurrer arguing that Plaintiff is attempting to hold Defendant liable under a theory of ratification.

“Typically, a corporation may be liable for employee misconduct under a respondeat superior theory. ... As an alternate theory to respondeat superior, an employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. The failure to discharge an employee who has committed misconduct may be evidence of ratification. The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. Whether an employer has ratified an employee's conduct is generally a factual question.” C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110 (internal citations and quotations omitted). “[R]atification may occur when an employer learns of misconduct and fails to discharge an agent or employee. Principles of ratification apply to a section 51.9 cause of action.” Id. at 1111 (internal citations and quotations omitted).

Here, however, Plaintiff fails to allege any facts whatsoever to support her theory of ratification. The ratification theory is pled in paragraphs 35, 44, 51, and 60. However, these paragraphs merely assert a bald unsupported conclusion that “[i]mplicitly or explicitly, Defendants, SHERIF M. KHATTAB, M.D., INC., OCEAN SURGERY CENTER, LLC, BEYOND BEAUTIFUL, and DOES 1 through 25, inclusive, and each of them, aided, abetted, incited, authorized and/or ratified, the wrongful conduct of DR. KHATTAB described herein.” (FAC, ¶ 60.) No facts are stated to support this bald conclusion.

Therefore, the demurrer to the second through fifth causes of action is sustained with 20 days leave to amend.

Defendant’s demurrer to the sixth cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to constitute the cause of action.

As to the sixth cause of action for Negligent Hiring, Training, and Supervision, the Court recognizes the following authority. “An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit. Liability for negligent hiring ... is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. Negligence liability will be imposed on an employer if it knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. California follows the rule set forth in the Restatement Second of Agency section 213, which provides in pertinent part: ‘A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: ... [¶] (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others[.]’ Liability for negligent ... retention of an employee is one of direct liability for negligence, not vicarious liability.” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133. 1139 (internal citations and quotations omitted).

“One who employs another to act for him is not liable ... merely because the one employed is incompetent, vicious, or careless. If liability results it is because, under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business in hand.... [¶] Liability results ... not because of the relation of the parties but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment.” Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1210, 1213-14.

Here, Plaintiff merely pleads conclusions parroting back the elements of the cause of action. (FAC, ¶¶ 65-74.) However, Plaintiff pleads no facts to support these conclusions such as the facts that Defendant was aware or should have been aware that would support the reason why Defendant’s hiring, supervision, and retention was negligent. Plaintiff fails to plead facts to demonstrate that demurring Defendant had notice of Dr. Khattab’s alleged incompetence or unfitness yet still proceeded to hire, retain, and train this individual. Plaintiff simply provided conclusions that Defendant had or should have had knowledge of the alleged incompetence of Dr. Khattab and should not have hired or retained him.

Therefore, the demurrer to the sixth cause of action is sustained with 20 days leave to amend.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.

Defendant moves to strike the following allegations and prayer, related to Plaintiff’s claim for punitive damages, as false, irrelevant, and/or improper:

As to Items 1 to 7, the motion is moot upon the sustaining of the demurrer to the second through fifth causes of action.

As to Item 8, the motion is granted with 20 days leave to amend. Plaintiff fails to allege specific facts to support a claim for punitive damages. In addition, Plaintiff failed to comply with CCP § 425.13.

“(a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”

Therefore, the motion to strike is moot, in part, and granted with 20 days leave to amend, in part.