Judge: Holly J. Fujie, Case: 22STCV208835, Date: 2023-12-07 Tentative Ruling

Case Number: 22STCV208835    Hearing Date: December 7, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Southern California Immediate Medical Center (“SCIMC”) and Thomas Roccapalumbo, D.O. (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers. 

BACKGROUND

The currently operative third amended complaint (the “TAC”) alleges: (1) invasion of privacy; (2) sexual battery; (3) negligent hiring and retention; and (4) premises liability.

In relevant part, the TAC alleges: as part of a job application, Plaintiff visited SCIMC to complete a physical exam and a drug test.  (TAC ¶¶ 8-9.)  Plaintiff had not previously been informed that she would be required to undergo an x-ray, but was falsely instructed by one of Moving Defendants’ employees that she needed to submit to an unauthorized x-ray examination.  (See TAC ¶¶ 11-12.)  The x-ray technician who oversaw the procedure sexually assaulted Plaintiff during the x-ray examination.  (See TAC ¶¶ 13-18.)

Moving Defendants filed a demurrer (the “Demurrer”) to the first and fourth causes of action on the grounds that the TAC fails to state sufficient facts to constitute a cause of action.  Moving Defendants also filed a motion to strike (the “Motion”) portions of the TAC.

DEMURRER

Meet and Confer

The meet and confer requirement has been met for the Demurrer and Motion.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

First Cause of Action

An action for intrusion has two elements: (1) intrusion into a private place, conversation or matter; and (2) in a manner highly offensive to a reasonable person.  (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)   

Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers.  (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343.)

Moving Defendants argue that the TAC improperly changed the identity of the individual who directed Plaintiff to submit to an unauthorized x-ray exam from a “doctor” as was alleged in the earlier iteration of the pleading to an “employee.”  Moving Defendants further argue that the TAC does not allege that they ratified the unnamed employee’s conduct. 

The Court is not persuaded by either of these arguments at this stage in the proceedings.  First, Plaintiff’s opposition (the “Demurrer Opposition”) explains that the TAC corrected an error in the previous pleading that misidentified the employee as a doctor.  Further, the employee’s job title, absent a consideration of outside facts that are inappropriate to be considered at the pleading stage, does not impact the analysis of Moving Defendants’ ratification of the alleged conduct.  Lastly, the TAC’s allegation that Moving Defendants had a policy of ordering patients to submit to unauthorized x-rays is sufficient to allege that Moving Defendants ratified the conduct.  (See TAC ¶ 26.)  The Court therefore OVERRULES the Demurrer to the first cause of action.

Fourth Cause of Action

The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.  (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

Where a party has alleged the existence of but one primary right, and but one violation of that right, the complaint states but one cause of action, even though two or more theories of recovery are alleged.  (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1612.)  A duplicative cause of action that adds nothing to the complaint by way of fact or theory of recovery may be challenged by demurrer.  (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

The premises liability claim is based on the same alleged wrongful conduct as the negligent hiring and retention claim.  The Court therefore finds that the premises liability claim is duplicative of the negligent hiring claim and SUSTAINS the Demurrer to the fourth cause of action without leave to amend.

MOTION TO STRIKE

Legal Standard

Under California Code of Civil Procedure (“CCP”) section 436, a motion to strike either: (1) strikes any irrelevant, false or improper matter inserted in any pleading; or (2) strikes any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

Moving Defendants seek to strike the allegations concerning punitive damages.

Punitive Damages

A plaintiff may recover punitive damages in an action for breach of an obligation not arising from contract when the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code § 3294, subd. (a).)  Malice is conduct which is intended by the defendant to cause injury to the plaintiff, or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (Civ. Code § 3294, subd. (c)(1).)  Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)  Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  (Civ. Code § 3294, subd. (c)(2).) 

            Under CCP section 425.13, subdivision (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.  (CCP § 425.13, subd. (a).)  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.  (Id.)  A claim arises out of professional negligence if the injury that is the basis for the claim was caused by 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.)  Identifying a cause of action as an intentional tort as opposed to negligence does not itself remove the claim from the requirements of section 425.13, subdivision (a).  (Id.)  The allegations that identify the nature and cause of a plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided.  (Id.)

            Upon consideration of the allegations underlying the TAC’s request for punitive damages, the Court finds that Moving Defendants’ alleged conduct falls within the ambit of CCP section 425.13, subdivision (a).  The alleged conduct—the policy of ordering patients to submit to unauthorized x-rays—is directly related to the rendition of professional services.  The Court therefore GRANTS the Motion to strike the punitive damages allegations.  If Plaintiff wishes to pursue punitive damages, she may seek a court order in accordance with CCP section 425.13.

Moving party is ordered to give notice of this ruling. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 8th day of December 2023