Judge: John J. Kralik, Case: 23BBCV01487, Date: 2025-01-31 Tentative Ruling


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Case Number: 23BBCV01487    Hearing Date: January 31, 2025    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

 

 

mahnaz sadanian, et al.,

 

                        Plaintiffs,

            v.

burbank emergency medical group, et al.,

 

                        Defendants.

 

  Case No.: 23BBCV01487

 

  Hearing Date:  January 31, 2025

 

 [TENTATIVE] order RE:

demurrer WITH MOTION TO STRIKE

 

BACKGROUND

A.    Allegations

Plaintiff Mahnaz Sadanian (“Ms. Sadanian”) alleges that on April 18, 2022, she was admitted to the Emergency Department at Providence St. Joseph Medical Center where she was seen by Defendant Dr. Roger C. Lai and a female nurse/staff.  Ms. Sadanian alleges that Dr. Lai is employed by Defendant Burbank Emergency Medical Group (“Burbank EMG”).  Ms. Sadanian alleges that Dr. Lai and his staff did not disclose that they were performing a rectal exam or digital rectal exam, nor did they obtain her consent.  She alleges that a female nurse/staff turned her over and held her while Dr. Lai penetrated her rectum, causing Ms. Sadanian to experience pain and to scream.  Ms. Sadanian alleges that she bled, the pain lasted for over week, and she was emotionally distressed.   

Plaintiff and counsel Isaac Toveg (“Toveg”) alleges that he is the husband of Ms. Sadanian. He alleges that as a result of Ms. Sadanian’s injuries, she has been unable to perform the necessary duties as a wife, such that Mr. Toveg has suffered a loss of consortium. 

The second amended complaint (“SAC”), filed on July 11, 2024, alleges causes of action for: (1) professional negligence by Sadanian against Defendants; (2) sexual assault and battery by Ms. Sadanian against all Defendants; and (3) loss of consortium by Toveg against Dr. Lai. 

On October 4, 2024, the Court sustained Defendants Roger C. Lai, M.D. and Burbank Emergency Medical Group, Inc.’s demurrer to the Second Amended Complaint with leave to amend as to the first and second causes of action.

On November 14, 2024, Plaintiffs filed their third amended complaint (“TAC”). The TAC alleges (1) professional negligence by Ms. Sadanian against Defendants; (2) battery by Ms. Sadanian against Defendants; and (3) sexual battery by Ms. Sadanian against Defendants; (4) loss of consortium by Mr. Toveg against Dr. Lai; and (5) intentional infliction of emotional distress by Ms. Sadanian against all Defendants.

 

B.     Demurrer on Calendar

On December 4, 2024, Dr. Lai and Burbank EMG filed a demurrer to the TAC.

On January 21, 2025, Plaintiffs filed an opposition brief. 

On January 24, 2025, Defendants filed a reply brief.

DISCUSSION

            Defendants demur to the 2nd cause of action for battery; the 3rd cause of action for sexual battery; and the 5th cause of action for intentional infliction of emotional distress.

A.    Timeliness

            Defendants argue that the opposition is untimely and should be disregarded. All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing. (California Code of Civil Procedure §1005(c)). Plaintiffs’ opposition was due January 17, 2025. However, it was not served until Saturday, January 18, 2025, at 10:02 p.m. (Reply, Exh. A.) Nevertheless, the Court will consider the opposition because Defendants fail to show any prejudice by the one-day delay.

B.     Uncertainty: Burbank EMG and Providence St. Joseph Medical Center

Defendants demur to the TAC, arguing that there are allegations against Providence St. Joseph Medical Center’s Emergency Department, which makes the pleading uncertain and confusing as no facts are alleged to show a relationship between Defendants and that entity.   

Here, the TAC alleges “[o]n or about April 18, 2022, at the Providence St. Joseph Medical Center Emergency Dept. (in which Burbank Emergency Medical Group Inc., is the owner)…”) (TAC ¶ 28.) The TAC further alleges “Burbank Emergency Medical Group Inc., employed Dr. Roger C. Lai and the nurses or staff in the emergency department, and thus Burbank Emergency Medical Group Inc., can be held vicariously liable for any Battery ( IIED) committed by its employees.” (TAC ¶ 29.)

Here, Plaintiff has also alleged sufficient facts showing the relationship between Burbank EMG and Providence Saint Joseph Medical Center to establish whether liability on the party of Providence Saint Joseph Medical Center may be imputed to Burbank EMG. 

For these reasons, the demurrer to 2nd cause of action as alleged against Burbank EMG is overruled on this ground of uncertainty. 

C.     Failure to State Sufficient Facts: 2nd and 3rd causes of action for battery and sexual battery

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal. App. 4th 879, 890.) While negligent actions undertaken by health care provider for the purposes the purpose of delivering medical care to a patient constitute professional negligence; tortious actions undertaken for a different purpose—i.e., a physician's sexual gratification—are not.  (So v. Shin (2013) 212 Cal.App.4th 652, 667.)

In the 2nd and 3rd causes of action, Ms, Sadanian alleges that she was seen by Dr. Lai and his female nurse/staff at the Providence Saint Joseph Medical Center’s Emergency Department.  (TAC ¶ 27.)  She alleges that they did not disclose they were going to examine her private parts nor ask for her permission. (Id.) She alleges that Defendants’ actions constituted offensive touching and penetration of the rectum/private parts without her consent.  (Id. at ¶ 32.) 

The third amended complaint is Ms. Sadanian’s fourth try at making these allegations. At this point, they are sufficient to state a cause of action for negligence, despite the conclusory nature of the allegations. Nevertheless, despite four tries the pleading still does not state sufficient facts to raise the inference that any of the defendants intentionally sought to harm Ms. Sadanian or that they sought sexual gratification through this examination. (See So, supra, 212 Cal.App.4th at 667.)

The Court previously stated on October 4, 2024, “[t]he Court will allow Plaintiffs a final opportunity to amend the 2nd cause of action (formerly alleged as an “intentional tort” cause of action).” Since pleadings remain deficient, the demurrer to the 2nd and 3rd causes of action are sustained without leave to amend. 

D.    5th cause of action for intentional infliction of emotional distress

            To state a claim for intentional infliction of emotional distress, a plaintiff must allege “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc., (2019) 39 Cal.App.5th 994, 1007).)

            The TAC alleges “Dr. Lai's conduct was outrageous as Dr. Lai with the help of his nurse or staff intended to cause Mahnaz Sadanian emotional distress. Dr. Lai with the help of his nurse or staff that was with him acted with a reckless disregard of the probability that Mahnaz Sadanian would suffer emotional distress while he had his nurse or staff turn her over and hold her down by being on top of her while he performs invasive examinations of her organs without her consent. Dr. Lais conduct with the help of his nurse or staff was extreme and outrageous with the intention of causing severe emotional distress. Plaintiff Sadanian alleges that she suffered severe emotional distress. (TAC ¶¶ 47-49.) As with the second and third causes of action, the allegations remain conclusory. There are no supporting facts from which it could be inferred that these Defendants sought to harm Ms. Sadanian or that they sought sexual gratification.

            Nobody likes rectal exams. Nonetheless, they are sometimes necessary, and can be undertaken with consent. While there is a possibility that the Defendants acted negligently by failing to obtain her consent and explain the procedure to her, there is nothing from which it can be inferred that they sought to harm her or otherwise sought sexual gratification by the examination.  

            Thus, the Court sustains the Demurrer as to the 5th cause of action for intentional infliction of emotional distress.

            As this is the Third Amended Complaint the Court is not persuaded that Plaintiffs would be able to cure the deficiencies, therefore, the Court sustains the demurrer without leave to amend as to the 2nd, 3rd, and 5th causes of action. 

            Motion to Strike

            Courts are permitted to strike from any pleading irrelevant, false, or improper matter subject to notice requirements under C.C.P. § 435. Specifically, section 435 provides that "[a]ny Party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof." (C.C.P. § 435) Further, C.C.P. §436 provides that "[t]he court may, upon any motion made pursuant to §435, or at any time in its discretion, and upon terms it deems proper; (a) Strike out any irrelevant, false, or improper matter inserted in any pleading." and "(b) Strike out all or any part of any pleading not drawn or filed in conformity with the law of this state, or court rule, or an order of the court." (C.C.P. § 436.)

                Two New Causes of Action: Battery (2nd cause of action) and Intentional Infliction of Emotional Distress (5th cause of action)

                Defendants argue that the two new causes of action for battery and intentional infliction of emotional distress should be stricken in their entirety because they were not authorized by the Court.

                “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015 [acknowledging rule but finding it inapplicable where new cause of action “directly responds” to trial court's reason for sustaining the demurrer].) . . .(Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

            Here, the previous complaints included three causes of action for professional negligence, sexual battery and assault, and loss of consortium. Neither battery nor intentional infliction of emotional distress causes of action were authorized or discussed at any point in the previous three complaints. Plaintiffs’ counsel states that the Court orally granted the addition of the new causes of action. However, the Minute Order from October 4, 2024, fails to include this authorization. The Minute Order states “There are several issues with this cause of action. First, Plaintiffs allege sexual battery and assault. If Plaintiffs are alleging two separate torts, the cause of action should be alleged in two separate causes of action. (In the opposition brief, Plaintiffs only address the “intentional tort” of battery, but do not discuss assault.) Second, Plaintiffs have not alleged facts showing that Defendants’ actions were intentional and undertaken for a different purpose. (See So, supra, 212 Cal.App.4th at 667.) As currently alleged, the 2nd cause of action is essentially duplicative of the 1st cause of action for professional negligence.” Therefore, the causes of action are stricken.

            Prejudicial Language

            Defendants also request the following language be stricken: (1) Paragraph 17, Page 4, Lines 11-13, the words “can be held vicariously liable for any professional negligence committed by its employees”; (2) Paragraph 23, Page 5, line 11, the words “reckless or willful disregard”; (3) Paragraph 25, Page 5, lines 21-23, the sentence “In addition, Defendant Burbank Medical Group, Inc., has had numerous sexual assault/battery complaints by their employees and or patients in the past”; (4) Paragraph 29, Page 6, Lines 15-16, the phrase “can be held vicariously liable for any Battery (IIED) committed by its employees”; (5) Paragraph 34, Page 7, Line 1, the words “reckless or willful disregard”; (6) Paragraph 40, Page 7, the phrase “can be held vicariously liable for any Sexual Battery committed by its employees”; and (7) Paragraphs 41, Page 8, Line 1, the words “reckless or willful disregard”.

            Here, paragraphs 17, 29, 40, and 49 are not factual assertions but rather legal conclusions and assertions of liability. Pleading conclusions of law does not fulfill the ultimate facts requirement. (Perkins v. Superior Court, (1981) 117 Cal. App. 3d 1.) Moreover, paragraphs 23, 25, 34, and 41 are statutory definitions and citations.

            Therefore, this language is stricken. Thus, the Motion to Strike is GRANTED in its entirety.

CONCLUSION AND ORDER

Defendants Roger C. Lai, M.D. and Burbank Emergency Medical Group, Inc.’s demurrer to the Third Amended Complaint is sustained without leave to amend as to the 2nd, 3rd and 5th causes of action. The Motion to Strike is also GRANTED.

Defendants shall provide notice of this order. 

 

DATED: January 31, 2025                                                     ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court