Judge: Holly J. Fujie, Case: 22STCV27415, Date: 2023-01-19 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 22STCV27415    Hearing Date: January 19, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Lucien Cox, M.D. (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

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

BACKGROUND

            Plaintiff’s complaint (the “Complaint”) alleges: (1) medical malpractice; and (2) medical battery.  In relevant part, the Complaint alleges: On September 9, 2021, Plaintiff visited Moving Defendant’s office to receive a pap smear exam.  (Complaint ¶ 9.)  Before beginning the procedure, Moving Defendant asked Plaintiff questions about her religious beliefs and abruptly inserted multiple fingers inside Plaintiff’s vagina before he inserted a clamp for the purpose of the pap smear exam.  (Id.)

Moving Defendant filed a demurrer (the “Demurrer”) to the second cause of action on the grounds that the Complaint fails to allege sufficient facts to state a cause of action and is uncertain. 

DISCUSSION

Meet and Confer

The meet and confer requirement has been met.

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.) 

Demurrers for uncertainty are disfavored.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)  A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.  (Id.)  A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant's knowledge.  (Id.)  Demurrers for uncertainty are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.  (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.) 

Second Cause of Action

The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.  (So v. Shin (2013) 212 Cal.App.4th 652, 669.)  As a general rule, one who consents to a touching cannot recover in an action for battery.  (Ashcraft v. King. (1991) 228 Cal.App.3d 604 109.)  It is well-recognized, however, that a person may place conditions on the consent.  (Id. at 610.)  If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act.  (Id.)  Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.  (Cobbs v. Grant (1972) 8 Cal.3d 229, 239; Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495-96.)

The Demurrer argues that the Complaint fails to allege medical battery because all of Moving Defendant’s alleged physical contact occurred in the scope of a procedure for which Plaintiff had provided consent.  The Court finds that the Complaint sufficiently alleges facts to state a medical battery at the pleading stage because the pleadings specify that Moving Defendant deviated from the scope of the consent of the procedure and touched her in a manner that was materially different from the routine contact of a pap smear exam.  (See Complaint ¶ 20.)

The Court therefore OVERRULES the Demurrer.  Moving Defendant is ordered to file an answer within 20 days of this order.

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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 19th day of January 2023