Judge: Joseph Lipner, Case: 24STCV07093, Date: 2024-08-01 Tentative Ruling
Case Number: 24STCV07093 Hearing Date: August 1, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
A. E. B., Plaintiff, v. HONEY MILESTONE, M.D., et al., Defendants. |
Case No:
24STCV07093 Hearing Date: August 1, 2024 Calendar Number: 7 |
Defendants Honey Milestone, M.D. (“Milestone”) and Honey
M.D., Inc. (“Honey M.D.”) (collectively, “Defendants”) demur to the Complaint
filed by Plaintiff A. E. B. Defendants additionally move to strike portions of
the Complaint relating to Plaintiff’s requests for punitive damages and
attorney’s fees.
The Court OVERRULES the demurrer to the fifth and seventh
claims.
The Court OVERRULES the demurrer to the second claim as
moot.
The Court SUSTAINS the demurrer to Plaintiff’s NIED claim
with leave to amend for the purposes of moving Plaintiff’s NIED allegations
into her negligence claim.
The Court SUSTAINS the demurrer to Plaintiff’s remaining
claims with leave to amend.
The Court DENIES the motion to strike as to punitive
damages. The Court GRANTS the motion to
strike WITH LEAVE TO AMEND as to attorney’s fees.
This is a health information privacy case. The following
facts are taken from the allegations of the Complaint, which the Court accepts
as true for the purposes of the demurrer.
In September 2023, Plaintiff sought healthcare from
Milestone, a licensed healthcare provider. Plaintiff alleges that Defendants
failed to safeguard Plaintiff’s personal health information and failed to take
the appropriate security measures to ensure confidentiality of Plaintiff’s
personal information.
Plaintiff posted a negative
review online regarding Plaintiff’s experience with Milestone. Plaintiff
alleges that Milestone posted a publicly viewable response to the review which
disclosed sensitive personal health information belonging to Plaintiff.
Plaintiff alleges that Defendants’ response reads as
follows:
“You came for an annual exam. Then wanted contraceptive
counseling. Then you had a vaginal infection and needed medication and
counseling on the medication, it’s [sic] use and restrictions. I’m sorry that
you are leaving a poor review because you don’t want to pay your copay. I hope
you find a provider that is willing to see you for free. Good luck.”
(Complaint, Ex. A.)
The name on Plaintiff’s account where Plaintiff posted the
review is redacted in Exhibit A. (Complaint, Ex. A.)
Plaintiff filed this action on March 21, 2024, raising
claims for (1) violation of California Confidentiality of Medical Information
Act, Civil Code, sections 56 et seq. (“CMIA”); (2) violation of Privacy/Data
Breach Notice Statute, Civ. Code, sections 1798.82, et seq.; (3) common law
invasion of privacy; (4) violation of California Constitution Art. 1, section 1
right to privacy; (5) breach of contract – written and implied; (6) negligence
and negligence per se; (7) intentional infliction of emotional distress
(“IIED”) and negligent infliction of emotional distress (“NIED”); and (8)
violation of Business & Professions Code, sections 17200, et seq.
Defendants filed the demurrer and motion to strike on June
10, 2024. Plaintiff filed a single opposition to both motions together.
Defendants filed a separate reply in support of each motion.
As a general matter, in a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
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. (Code Civ. Proc., § 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.
(Code Civ. Proc., § 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. (Code Civ. Proc., § 436.) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(Code Civ. Proc., § 437.)
“A provider of health care, health care service plan, or
contractor shall not disclose medical information regarding a patient of the
provider of health care or an enrollee or subscriber of a health care service
plan without first obtaining an authorization, except as provided in
subdivision (b) or (c).” (Civ. Code, § 56.10, subd. (a).)
“Every provider of health care, health care service plan,
pharmaceutical company, or contractor who creates, maintains, preserves,
stores, abandons, destroys, or disposes of medical information shall do so in a
manner that preserves the confidentiality of the information contained therein.
Any provider of health care, health care service plan, pharmaceutical company,
or contractor who negligently creates, maintains, preserves, stores, abandons,
destroys, or disposes of medical information shall be subject to the remedies
and penalties provided under subdivisions (b) and (c) of Section 56.36.” (Civ.
Code, § 56.101, subd. (a).)
“‘Medical information’ means any individually identifiable
information, in electronic or physical form, in possession of or derived from a
provider of health care, health care service plan, pharmaceutical company, or
contractor regarding a patient's medical history, mental health application
information, mental or physical condition, or treatment. ‘Individually
identifiable’ means that the medical information includes or contains any
element of personal identifying information sufficient to allow identification
of the individual, such as the patient's name, address, electronic mail
address, telephone number, or social security number, or other information
that, alone or in combination with other publicly available information,
reveals the identity of the individual.” (Civ. Code, § 56.05, subd. (i).)
The text of Defendants’ alleged response does not contain
Plaintiff’s name or other personally identifiable information about Plaintiff.
Plaintiff argues that at the time of the original review and Defendants’
response, Plaintiff’s profile moniker was either Plaintiff’s full name or a
combination of Plaintiff’s nickname coupled with her last name. Plaintiff does
not allege this fact. However, amendment could cure this defect.
The Court sustains the demurrer to this claim with leave to
amend.
Plaintiff has agreed to withdraw this claim. (Opposition at
p. 5:22-24.)
The Court overrules the demurrer to this claim as moot.
“An actionable claim [for invasion of privacy] requires
three essential elements: (1) the claimant must possess a legally protected
privacy interest; (2) the claimant’s expectation of privacy must be objectively
reasonable; and (3) the invasion of privacy complained of must be serious in
both its nature and scope.” (County of
Los Angeles v. Los Angeles County Employee Relations Commission (2013) 56
Cal.4th 905, 926, citations omitted.) “An otherwise actionable invasion of
privacy may be legally justified if it substantively furthers one or more
legitimate competing interests. Conversely, the invasion may be unjustified if
the claimant can point to ‘feasible and effective alternatives’ with ‘a lesser
impact on privacy interests.’” (Ibid.,
citation omitted.)
Plaintiff incorporates her allegations from the rest of the
Complaint and alleges that Defendant disclosed her personal health information.
Plaintiff’s invasion of privacy claim thus appears to be based on the alleged
illegal disclosure of her medical information.
Because Plaintiff has not alleged that the information
disclosed was actually personally identifiable, as discussed above, this claim
is similarly defective, but could be cured by amendment.
The Court sustains the demurrer to this claim with leave to
amend.
Plaintiff groups her response to the demurrer to this claim
with her response regarding her third claim.
For the same reasons as with the third claim, the Court
sustains the demurrer to this claim with leave to amend.
If a breach of contract claim “is based on alleged breach of
a written contract, the terms must be set out verbatim in the body of the
complaint or a copy of the written agreement must be attached and incorporated
by reference.” (Harris v. Rudin, Richman
& Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a
plaintiff may also “plead the legal effect of the contract rather than its
precise language.” (Construction
Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189,
198-199.)
Defendants argue that Plaintiff has not pled the existence
of a contract.
Plaintiff alleges that Defendants’ patient intake documents
contractually obligated Defendants to maintain the confidentiality of
Plaintiff’s personal health information. Plaintiff has therefore adequately
pled the existence of a contract.
Defendants make no other arguments supporting the demurrer
to this claim.
The Court therefore overrules the demurrer to this claim.
In order to state a claim for negligence, a plaintiff must
allege the elements of (1) “the existence of a legal duty of care,” (2) “breach
of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014)
228 Cal.App.4th 664, 671.)
“The negligence per se doctrine, as codified in Evidence
Code section 669, creates a presumption of negligence if four elements are
established: (1) the defendant violated a statute, ordinance, or regulation of
a public entity; (2) the violation proximately caused death or injury to person
or property; (3) the death or injury resulted from an occurrence of the nature
of which the statute, ordinance, or regulation was designed to prevent; and (4)
the person suffering the death or the injury to his person or property was one
of the class of persons for whose protection the statute, ordinance, or
regulation was adopted.” (Spates v.
Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation
marks omitted.) “The doctrine of negligence per se is not a separate cause of
action, but creates an evidentiary presumption that affects the standard of
care in a cause of action for negligence.” (Johnson
v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation
marks and brackets omitted.)
Defendants argue that Plaintiff fails to state a cognizable
injury for which she may recover. Because Plaintiff’s injury is based in the
disclosure of her personally identifiable medical information, the Court agrees
insofar as Plaintiff has not pleaded facts showing that the information was
personally identifiable. However, this defect could be cured by amendment.
The Court sustains the demurrer to this claim with leave to
amend.
“The elements of a prima facie case for the tort of
intentional infliction of emotional distress are: (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’s
suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct.
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community.” (Wilson
v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
Defendants argue that Plaintiff has not pleaded extreme and
outrageous conduct. The Court disagrees. Regardless of the identifiability the
information Defendants allegedly posted, publicly and unnecessarily discussing
the sensitive nature of the treatment that Plaintiff sought in order to respond
to a negative business review appears to be the type of extreme and outrageous
behavior that the tort of IIED is meant to correct.
Plaintiff has pled that she suffered severe emotional
distress as a result. (Complaint ¶ 123.)
The Court overrules the demurrer to this claim.
Plaintiff has stated that she is willing to move her NIED
allegations into her negligence claim. For clarity’s sake, the Court analyzes
the NIED claim here because that is where it was alleged in the Complaint.
The Court sustains the demurrer to this claim with leave to
amend for the purpose of moving the relevant allegations to Plaintiff’s
negligence claim.
Defendants argue that Plaintiff has not adequately stated a
cognizable injury. However, as discussed above, California medical privacy law
treats the disclosure of personally identifiable medical information as a
cognizable injury.
Defendants argue in their reply that Plaintiff fails to
identify the statutes that were violated. First, this argument is new in the
reply and therefore cannot be considered. Second, even if the Court did
consider the argument, the Court would reject it on the merits because
Plaintiff has identified the statutes that Defendants allegedly violated.
Due to the pleading issues discussed above with Plaintiff’s
privacy claims, the Court sustains the demurrer to this claim with leave to
amend.
Punitive damages are appropriate when a defendant acted with
malice, oppression, or fraud. (Civ. Code, § 3294, subd. (a).) “Malice” is
defined as conduct intended to cause injury to a person or despicable conduct
carried on with a willful and conscious disregard for the rights or safety of
others. (Turman v. Turning Point of Cent.
Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable
conduct subjecting a person to cruel and unjust hardship, in conscious
disregard of the person’s rights. (Ibid.)
“Fraud” is an intentional misrepresentation, deceit, or concealment of a
material fact known by defendant, with intent to deprive a person of property,
rights or otherwise cause injury. (Ibid.)
“In order to survive a motion to strike an allegation of
punitive damages, the ultimate facts showing an entitlement to such relief must
be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255.) “In passing on the correctness of a ruling on a motion
to strike, judges read allegations of a pleading subject to a motion to strike
as a whole, all parts in their context, and assume their truth.” (Ibid.)
“In ruling on a motion to strike, courts do not read allegations in isolation.”
(Ibid.) Conclusory allegations, devoid of any factual assertions, are
insufficient to support a conclusion that parties acted with oppression, fraud
or malice. (Smith v. Superior Court
(1992) 10 Cal.App.4th 1033, 1042.)
Defendants argue that Plaintiff has not adequately alleged
malice, oppression, or fraud. The Court disagrees. Plaintiff alleges that
Defendants unnecessarily used sensitive information about the medical treatment
Plaintiff sought in order to respond to Plaintiff’s negative review. These
alleged facts support allegations of intent to cause injury and of subjecting
Plaintiff to a cruel and unjust hardship. Plaintiff has therefore adequately
alleged malice or oppression.
Defendants argue that punitive damages are improper in any
action arising out of professional negligence of a healthcare provider. (Code
Civ. Proc., § 425.13.) This is not an action arising out of professional
negligence. This is an action alleging intentional wrongful conduct.
The Court denies the motion to strike Plaintiff’s
allegations related to punitive damages.
The Court notes that a Plaintiff in a CMIA action may
recover punitive damages up to $3,000.00. (Civ. Code, § 56.35.) However,
because the Court sustains the demurrer to Plaintiff’s CMIA claim with leave to
amend, it is not a basis for the Court’s ruling on the motion to strike.
An award of attorney’s fees is proper when authorized by
contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd.
(a)(10).)
A plaintiff in a CMIA action may recover attorney’s fees up
to $1,000.00 and the costs of litigation. (Civ. Code, § 56.35.) However,
because the Court sustains the demurrer to Plaintiff’s CMIA claim with leave to
amend, it is not a basis to deny the motion to strike.
“Upon motion, a court may award attorneys' fees to a
successful party against one or more opposing parties in any action which has
resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons, (b) the necessity
and financial burden of private enforcement, or of enforcement by one public
entity against another public entity, are such as to make the award appropriate,
and (c) such fees should not in the interest of justice be paid out of the
recovery, if any.” (Code Civ. Proc., § 1021.5.)
“Although the statute is phrased in permissive terms, a
court's discretion to deny attorney's fees to a party that meets the statutory
requirements of section 1021.5 is limited.” (Carlsbad Police Officers
Association v. City of Carlsbad (2020) 49 Cal.App.5th 135, 145.)
The current pleading provides little basis to believe that
this action will confer a significant benefit to the general public.
Defendants’ alleged response to Plaintiff’s review appears to be a one-off
event, and not a part of a systemic pattern of behavior. If the mere commission
of a tort against one individual, without more, supported a finding of public
benefit, then section 1021.5 would expand to cover the vast majority of tort
actions. The Court does not find that this case falls within the public benefit
rule.
Plaintiff argues that the California Supreme Court has
signaled that attorney’s fees are generally appropriate when a plaintiff’s
action catalyzes a public benefit such as a voluntary change in the defendant’s
behavior. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 566–67.) However, as
discussed above, this does not appear to be a case with such broad potential
benefits. The same is true for Plaintiff’s argument that cases vindicating
constitutional rights support an award of fees – the case law that Plaintiff
cites indicates that the benefit must be one that “flowed to the general
public”. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 319
[citation and quotation marks omitted].)
The Court grants the motion to strike. Because Plaintiff may
be able to amend to state a CMIA claim or otherwise support the attorney’s fees
request, the Court grants leave to amend.