Judge: John J. Kralik, Case: 22AHCV00829, Date: 2023-02-17 Tentative Ruling
Case Number: 22AHCV00829 Hearing Date: February 17, 2023 Dept: NCB
North
Central District
|
Jane doe, Plaintiff, v. JAMES J. JABER,
M.D., et
al, Defendants. |
Case No.: 22AHCV00829 Hearing
Date: February 17, 2023 [TENTATIVE]
order RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiff Jane
Doe (“Plaintiff”) is a 39-year-old woman who has had the Human Papillomavirus
(HPV) in her throat since birth.
Plaintiff alleges that she sought medical treatment through L.A. Care in
September 2021 and contacted Defendant Preferred IPA of California (“Preferred
IPA”) for a referral to a physician who could treat and manage her
condition. She alleges she was referred
to Dr. Pierce, who then referred her to Defendant James J. Jaber, M.D. (“Dr.
Jaber”).
Plaintiff
alleges that when she presented to Dr. Jaber, he did not use his skill,
prudence, and diligence in treating her.
She alleges that on September 25, 2021, Dr. Jaber represented that he
had medication and treatment that could cure her condition. She alleges that Dr. Jaber began “grooming
her” to enter into a sexual relationship by asking for text updates regarding
medication, in order to lay the groundwork for him to later send her sexually
explicit text messages. Plaintiff
alleges that she tried to pick up her medication from Dr. Jaber’s office, but
he informed her that he forgot the medicine at home and that she could pick it
up from his home. Plaintiff alleges
while at his home, Dr. Jaber tried to offer her alcohol, began rubbing her
back, and then proceeded to kiss her neck.
Plaintiff alleges she grabbed the medicine and left. Thereafter, she alleges that Dr. Jaber began
“sexting” and sending sexually explicit photographs. Plaintiff alleges that in another incident of
picking up medication at his home, Dr. Jaber appeared to be unconscious on his
bed and she went to check in on him, but he proceeded to grab her, pull her
onto his bed, and raped Plaintiff. Plaintiff
alleges that she informed Dr. Jaber on November 9, 2021 that she would not
engage in sexual activity for medical treatment. On November 14, 2021, she alleges that Dr.
Jaber abandoned her as a patient and banned her from Defendant Southern
California Head and Neck Surgery (“SCHNS”).
The complaint,
filed October 13, 2022, alleges causes of action for: (1) medical negligence;
(2) medical negligence – patient abandonment; (3) NIED; (4) negligent referral;
(5) negligent misrepresentation; (6) NIED; (7) sexual harassment – Civil Code,
§§ 51.9 and 52; (8) gender violence – Civil Code § 52.4; (9) violation of the
“Bane Act” Civil Code, § 52.1; (10) sexual battery – Civil Code, § 1708.5; (11)
assault; (12) battery; (13) false imprisonment; (14) IIED; (15) negligence;
(16) fraud; (17) constructive fraud; and (18) violation of Business &
Professions Code, § 17200.
On December 29,
2022, Plaintiff dismissed without prejudice Defendant Los Angeles Center for
Ear, Nose, Throat, & Allergy from the complaint.
B.
Motions on Calendar
On December 20,
2022, Dr. Jaber and SCHNS demur to the 16th and 17th
causes of action alleged against Dr. Jaber.
They also demur to the complaint in its entirety as alleged against
SCHN. Concurrently, Dr. Jaber and SCHNS filed
a motion to strike portions of the complaint.
On February 3,
2023, Plaintiff filed opposition briefs.
On February 7,
2023, Dr. Jaber and SCHNS filed a single reply brief to the demurrer and motion
to strike.
DISCUSSION
RE DEMURRER
A. 16th
cause of action for Fraud
To allege a cause of action for fraud, the
requisite elements are: (1) a representation,
usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation;
and (5) damage resulting from that justifiable reliance. (Stansfield
v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.) This cause of action is a tort of
deceit and the facts constituting each element must be alleged with
particularity; the claim cannot be saved by referring to the policy favoring
liberal construction of pleadings. (Committee on Children's Television, Inc. v. General Foods Corp.
(1983) 35 Cal.3d 197, 216.) Since
the claim must be pleaded with particularity, the cause of action based on
misrepresentations must allege facts showing how, when, where, to whom, and by
what means the misrepresentations were tendered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)
In the 16th cause of
action, Plaintiff alleges that on September 25, 2021, she had a consultation
with Dr. Jaber at his office. (Compl.,
¶157.) She alleges that at the
consultation, he verbally represented to Plaintiff that he would provide her
medical care and, as an agent of Defendant Penrose Therapeutx, Inc. (“Penrose”),
would provide her with life changing medication and treatment that would cure
her throat condition. (Id.,
¶158.) Plaintiff alleges that Dr. Jaber
verbally represented that he created the medication (manufactured by Penrose),
was the only person with access to the medication, and he would be doing her a
favor by providing her the treatment. (Id.,
¶¶159-160.) Plaintiff alleges that Dr.
Jaber’s representations were false and that when he made the representations,
Dr. Jaber and Penrose had knowledge of the falsity. (Id., ¶¶161-162.) Plaintiff alleges that Dr. Jaber and Penrose
intended to defraud Plaintiff with the purpose of testing their medication on
Plaintiff without her consent, as well as for Dr. Jaber to lure Plaintiff into
a sexual relationship. (Id.,
¶163.) Plaintiff alleges that she
justifiably relied on Dr. Jaber’s statements because he is a physician that was
referred to her through her Medi-Cal HMO.
(Id., ¶164.) In the
general allegations, Plaintiff alleges that the medication Dr. Jaber provided
was not FDA-approved, the medication was unmarked and unlabeled, and the
capsules did not treat her condition and instead resulted in harmful side
effects. (Id., ¶22.)
Dr. Jaber demurs to this cause of
action arguing that Plaintiff has not alleged facts showing that the
representations that he made the medication and that it would be treat her condition were false and
how the falsity of these representations are connected with her injury of being
an alleged test subject or being in a sexual relationship with Dr. Jaber. While the allegations of the complaint allege
that Dr. Jaber’s representations were false in a general sense, Plaintiff has
not alleged specific facts showing that Dr. Jaber knew the falsity of his
representations. For example, Plaintiff
has not alleged facts that Dr. Jaber did not create the medication, that he was
not the only one with access to the medication, and/or that he did not know the
medication would not work on Plaintiff.
Plaintiff argues that these facts are more readily in Dr.
Jaber’s possession such that the pleading standard may be relaxed. (Tarmann v. State Farm Mut.
Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.) However, in order to allege a causal
connection, Plaintiff should allege further facts showing whether Dr. Jaber
knew about the falsity of his statements about the medication’s efficacy and
whether he intended to make false representations with the purpose of harming
Plaintiff. Thus, additional facts should
be provided to support the elements of knowledge of falsity and resulting
damages.
The demurrer to the 16th
cause of action is sustained with leave to amend.
B. 17th
cause of action for Constructive Fraud
The elements of a
constructive fraud cause of action are: (1) fiduciary relationship; (2)
nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4)
reliance and resulting injury (causation).
(Younan v. Equifax Inc. (1980)
111 Cal.App.3d 498, 516, fn. 14.) This
too is a tort of deceit and must be pled with the requisite particularity.
In the 17th
cause of action, Plaintiff alleges that a doctor-patient relationship existed
between Plaintiff and Dr. Jaber, in which she reposed trust and confidence in
Dr. Jaber. (Compl., ¶167.) She alleges that Dr. Jaber deceived her by
holding himself out as someone she could trust.
(Id., ¶168.) She alleges
that Dr. Jaber provided her with medication that was not FDA approved and which
caused side effects and that he had no intention of performing throat
surgery. (Id.) Plaintiff alleges that his intention was to
force her to engage in sexual relations.
(Id.) Plaintiff alleges that his acts, omissions, and concealments
breached his legal or equitable duty, trust, or confidence to Plaintiff. (Id., ¶169.)
Dr. Jaber demurs
to the 17th cause of action on the same grounds as the 16th
cause of action. However, the 17th
cause of action has different elements.
Here, Plaintiff has sufficiently alleged a fiduciary relationship and
Dr. Jaber’s intent to deceive her into a forced sexual relationship in exchange
for medication and surgery. At the
demurrer stage, these allegations are sufficient to allege constructive
fraud.
The demurrer to the 17th cause of
action is overruled.
C. SCHNS
Defendants
argue that SCHNS is not named in any cause of action as a defendant. Thus, they demur to the entirety of the
complaint as alleged against it. In
opposition, Plaintiff requests leave to amend the complaint so that more facts
may be alleged against SCHNS.
The
demurrer to the complaint as alleged against SCHNS is sustained with leave to
amend.
DISCUSSION RE MOTION TO STRIKE
Dr.
Jaber and SCHNS move to strike allegations for punitive/exemplary damages
(¶¶50, 120, and 126; Prayer at Item 9), the request for temporary restraining
order/preliminary and permanent injunction (¶120, Prayer at Item 8), and claim
for attorney’s fees in the 18th cause of action (¶178).
A. Punitive
Damages
Dr. Jaber argues
that the allegations for punitive damages are improper because this action
arises out of professional negligence. CCP
§ 425.13(a) states:
(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.
(CCP
§ 425.13(a).)
“The clear intent of the Legislature is that any claim for punitive damages
in an action against a health care provider be subject to the statute if the
injury that is the basis for the claim was caused by conduct that was directly
related to the rendition of professional services.” (Central
Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.) “By contrast, a
cause of action against a health care provider for sexual battery would not, in
most instances, fall within the statute because the defendant's conduct would
not be directly related to the manner in which professional services were
rendered.” (Id.)
Here, the
allegations of the complaint allege sufficient facts that the alleged sexual
assault that Plaintiff experienced did not arise from the rendering of
professional medical services. Plaintiff
has alleged facts that when she went to Dr. Jaber’s home to pick up medication,
Dr. Jaber would rubbed her back and tried to kiss her throat and that he pulled
her down onto his bed and raped her.
However, neither of these instances involved Dr. Jaber rendering medical
services to Plaintiff for her HPV and throat issues. This is not like a case where a gynecologist
was alleged to have committed sexual battery in the course of performing a
gynecological examination as argued by Dr. Jaber. (Cooper v. Superior Court
(1997) 56 Cal.App.4th 744.) It may be
that Defendants have evidence that Dr. Jaber was rendering medical services at
the time of Plaintiff’s visits to his home, but such arguments and evidence should
be presented beyond the pleading stage.
The motion to
strike the allegations for punitive damages against Dr. Jaber is denied.
SCHNS argues that
it is a medical facility such that section 425.13 also applies against it. The allegations against SCHNS regarding
punitive damages is not adequately pled.
To the extent that Plaintiff alleges that SCHNS authorized Dr. Jaber’s
conduct by banning her from SCHNS even though she had a pending appointment,
this is more akin to a claim for medical negligence as opposed to sexual
battery. As such, section 425.13 would apply and Plaintiff would need to seek
leave to add a claim for punitive damages against SCHNS. Thus, the motion to strike is granted as to
SCHNS.
B. TRO/Injunctive
Relief
In
connection with the 9th cause of action for violation of the Bane
Act, Plaintiff seeks a temporary restraining order or preliminary or permanent
injunction order Defendant to refrain from conduct or activities alleged
herein, stating “VIOLATION OF THIS ORDER IS A CRIME PUNISHABLE UNDER SECTION
422.77 OF THE PENAL CODE.” (Compl.,
¶120.) The prayer for relief alleges
injunctive relief, including but not limited to the supervision of
Defendant. (Id., Prayer for
Relief at Item 8.)
Civil
Code, § 52.1(c) permits injunctive relief. However, Dr. Jaber argues that Plaintiff’s
request for a TRO/injunctive relief fails to state the purpose of Plaintiff’s
injunction.
The Court will
grant the motion to strike with leave to amend so that Plaintiff can state the
nature of the injunctive relief sought.
C. Attorney’s
Fees
In
the 18th cause of action for violation of Business & Professions
Code, § 17200, Plaintiff seeks attorney’s fees pursuant to CCP § 1021.5. (Compl., ¶178.)
CCP § 1021.5
permits the recovery of attorney’s fees by a successful party in an action
which results in the enforcement of an important right affecting the public
interest.
Dr. Jaber argues
that Business & Professions Code, § 17200 does not permit the recovery of
attorney’s fees and that this action is a purely private, personal action by
Plaintiff that would serve no public benefit.
Thus, Dr. Jaber argues that attorney’s fees under CCP § 1021.5 are not
permissible.
In opposition,
Plaintiff argues that striking the claim for attorney’s fees is premature. Plaintiff argues that private enforcement is
necessary because no one else has stepped forward to stop Dr. Jaber from
sexually preying on others and Dr. Jaber’s receptionist assured Plaintiff that
sending patients to Dr. Jaber’s house was a common practice. (Compl., ¶30.)
At this time,
the Court will allow the request for attorney’s fees. However, this does not mean that the claim
for attorney’s fees is necessarily viable.
This will have to be determined at a later stage upon Plaintiff’s proof
that this action resulted in the enforcement of an important right affecting
the public interest that conferred a significant benefit to the general public
or a large class of persons.
The
motion to strike the allegations for attorney’s fees is denied.
CONCLUSION AND ORDER
Defendants
James J. Jaber, M.D. and Southern California Head and Neck Surgery’s demurrer
is sustained with 20 days leave to amend as to the 16th cause of
action. The demurrer is overruled as to
the 17th cause of action.
Defendants’
motion to strike is denied as to the allegations for punitive damages against
Dr. Jaber, but granted as to Southern California Head and Neck Surgery. If Plaintiff intends to seek punitive damages
against Southern California Head and Neck Surgery, she should file a separate
motion for leave to amend pursuant to CCP § 425.13 showing that a claim for punitive
damages against this defendant is proper.
The motion to strike is granted with 20 days leave to amend as to the
allegations for injunctive relief. The
motion to strike the allegations for attorney’s fees is denied.
Defendant shall give notice of
this order.