Judge: Margaret L. Oldendorf, Case: 22AHCV01231, Date: 2023-09-06 Tentative Ruling

Case Number: 22AHCV01231    Hearing Date: September 6, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This is action alleges childhood sexual abuse against a medical doctor. Plaintiff D.W. alleges she was 13 years old when Defendant Hubert Chow, M.D. (Chow) sexually abused her during an examination at Garfield Medical Center where he was employed.

          Chow is sued both as an individual and a corporation.  Both defendants are referred to in the singular here; although both are moving parties. Chow raises two challenges to the Complaint. In the demurrer, he argues that the causes of action against him are barred by the statute of limitations. This argument fails. because the Complaint does not show on its face that it is time-barred. In the motion to strike, Chow seeks to have the punitive damages allegations stricken from the Complaint on the ground that they were included without leave of court, in violation of Code Civ. Proc. §425.13. As D.W.’s claims for childhood sexual abuse are not related to the manner in which professional services were provided, Section 425.13 does not apply.

          The demurrer is therefore overruled, and the motion to strike is denied.

II.       LEGAL STANDARD

A. Law Governing Demurrers

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. 

Code Civ. Proc. §430.10(f) provides for a demurrer where a pleading is uncertain.

Demurrers for uncertainty are disfavored, and are only sustained where a pleading is so incomprehensible that a defendant cannot reasonably respond. A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.

B. The Law Governing Motions to Strike

          Code Civ. Proc. §436 provides: “The court may, upon a motion made pursuant to Section 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.

(b) Strike out 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.”

III.     ANALYSIS

          A. Summary of the Complaint

¶4       D.W. is an adult female, born in 1993. She was a victim of childhood sexual abuse in 2006 when she was 13 years old.

¶6       Chow is an adult male who was an agent and/or employee of Chow, Inc., Garfield Health Medical Center Group, Inc., and AHMC Garfield Medical Center LP (Garfield and AHMC are referred to herein as the “Entity Defendants”). Throughout his employment as a physician, Chow held a position of trust, confidence, and responsibility over minor children, including D.W.

¶27     At all relevant times, Chow was employed by and/or was an agent of the Entity Defendants.

¶31     Chow used the Entity Defendants’ facilities to gain access to D.W.

¶34     D.W. attended the Entity Defendants’ hospital while Chow was employed there. In approximately 2006, Chow allegedly used his position as a trustworthy physician to sexually assault D.W. during a medical examination for a rash on D.W.’s hand. [Details of the alleged assault are alleged in ¶¶34 and 35, but have been omitted from this summary.]

¶36     D.W. is informed and believes that other patients, including minors, were sexually assaulted and/or abused by Chow at Entity Defendants’ facilities.

¶37     D.W. is informed and believes that Chow was later arrested for lewd and lascivious conduct with a minor in violation of Penal Code §288(a).

¶¶38-41 and 44-60 concern the alleged knowledge of Entity Defendants and their failure to take appropriate steps.

          Based on these facts, D.W. alleges the following causes of action:

1. Sexual Assault of Minor           v. Chow

2. Intentional Infliction of Emotional Distress    v. Chow

3. Negligent Hiring/Retention       v. Entity Defendants

4. Negligent Supervision              v. Entity Defendants

5. Negligence                               v. Does.

          B. Chow’s Demurrer Is Overruled

          “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 321, internal quotation marks and citations omitted.

          In his demurrer, Chow argues that all four causes of action alleged against him (as an individual and a corporation) are governed by the period of limitations set forth in Code Civ. Proc. §340.1, and that all of the claims are time-barred. What Chow has demonstrated is that the claims against him may be time barred -- not that they are.

          Code Civ. Proc. §340.1 requires that claims for childhood sexual abuse be brought either (1) within 22 years after the minor turns 18; or (2) within 5 years after the minor discovers or reasonably should have discovered that psychological injury or illness after the age of majority was caused by the assault, whichever occurs later. Here, as the Complaint alleges, D.W. was born in 1993.  She therefore reached the age of majority in 2011. She thus had 22 years from 2011 to file this lawsuit based on the first prong of Section 340.1. That time limit (2033) has not yet expired. The Complaint does not allege facts concerning when D.W. discovered that her psychological injury or illness stemmed from the assault. Consequently, the pleading does not demonstrate on its face that the claims are time-barred.

          Chow also urges that the claims are ambiguous, because the pleading does not allege when D.W. discovered that her psychological injury or illness was caused by the sexual assault. Such omission does not render the Complaint uncertain, however. The facts that have been alleged are sufficient to inform Chow of the claims that have been made against him. Failure to allege when D.W. discovered her injury does not render the pleading uncertain.

          C. The Motion to Strike is Denied

          “‘In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294.’ (Citation.)” Today IV’s Inc. v. Los Angeles County MTA (2022) 83 Cal.App.5th 1137, 1193.

          Here, the Complaint contains sufficient factual allegations to support the allegations of, and prayer for, punitive damages. The factual allegations regarding Chow’s conduct towards D.W. would support a finding of malice and oppression. Additionally, allegations that the Entity Defendants were aware of such conduct, and failed to take steps to protect D.W., are sufficient to demonstrate malice and oppression as well.

          Code Civ. Proc. §425.13(a) provides in part, “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 gist of Chow’s motion to strike is that Code Civ. Proc. §425.13 applies to the Complaint, such that D.W. must seek leave of court to allege punitive damages. Section 425.13 explicitly applies to actions “arising out of the professional negligence” of a healthcare provider. It applies even to intentional torts arising out of professional services. Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181. In  Central Pathology, the defendant failed to notify a patient that she was developing cancer and failed to redo all tests for the past five years as ordered.  For her part, the patient’s doctor denied “using” Central Pathology in an effort to cover up her own negligence. Shortly before trial the plaintiff moved for leave to amend her complaint to add fraud and intentional infliction of emotional distress causes of action; as well as a claim for punitive damages. The defendants opposed the motion on the basis that the patient did not comply with §425.13. The trial court granted the motion for leave to amend. The California Supreme Court reversed, noting that the fraud and intentional conduct allegations were “directly related to the manner in which defendants provided professional services.” Id. at 192.

          Central Pathology distinguishes claims for sexual battery.  It instructs that such a claim would not, in most instances, fall under the statute because “the defendant’s conduct would not be directly related to the manner in which professional services were rendered.” Id. Claims for sexual battery that may have occurred in conjunction with the rendering of  gynecological services are treated differently.  In those instances, a plaintiff must comply with the statute. Cooper v. Superior Court (1997) 56 Cal.App.4th 744.

          Pursuant to these authorities, D.W. is not required to comply with §425.13.  D.W.’s allegations of sexual assault do not arise out of the professional services rendered by Chow.

          Chow’s reliance on United Western Medical Center v. Superior Court (1996) 42 Cal.App.4th 500 is inapposite, as it concerned claims against a hospital that allegedly  negligently supervised the employees who sexually assaulted the plaintiff (not the assailants themselves). Likewise, Davis v. Superior Court (1994) 27 Cal.App.4th 623 does not assist Chow. There, the defendants were alleged to have committed malpractice as well as engaged in workers’ compensation fraud. As in Central Pathology, the facts in Davis were directly related to the provision of professional services. The same is not true here.

IV.     ORDER

          Chow’s demurrer is overruled and his motion to strike is denied. The Chow defendants are granted 10 days to answer. D.W. is ordered to provide notice of this ruling.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT