Judge: Mark A. Young, Case: 24SMCV03232, Date: 2025-05-14 Tentative Ruling
Case Number: 24SMCV03232 Hearing Date: May 14, 2025 Dept: M
CASE NAME: Boghozian v. LACCD, et al.
CASE NO.: 24SMCV03232
MOTION: Motion to Strike
HEARING DATE: 5/14/2025
LEGAL STANDARD
Any 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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).)
The court may, upon a motion or at any time in its discretion and upon terms it
deems proper: (1) strike out any irrelevant, false, or improper matter inserted
in any pleading; or (2) strike out all or any part of any pleading not drawn or
filed in conformity with the laws of California, a court rule, or an order of
the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,
782 [“Matter in a pleading which is not essential to the claim is surplusage;
probative facts are surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment is
the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in
what manner¿plaintiff can amend the complaint, and¿how¿that
amendment will change the legal effect of the pleading.¿(Id.)
ANALYSIS
Defendants Los Angeles
Community College District, Natalie Ferrigno, Lisa Kamibayashi, Carlos Sermeno,
Amanda L. Delavega, and Lila Zarrinnam move to strike Plaintiff Preni
Boghozian’s prayers for punitive damages, attorney fees, and prejudgment
interest in her First Amended Complaint (FAC).
Plaintiff’s objections to
evidence are OVERRULED.
Punitive Damages
Civil Code section 3294
authorizes the recovery of punitive damages in non-contract cases where “the
defendant has been guilty of oppression, fraud, or malice . . ..” (Civ. Code §
3294(a).) Punitive damages thus require more than the mere commission of a
tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.)
Specific facts must be pleaded in support of punitive damages. (Hillard v.
A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.) “‘Malice’ means
conduct which is intended by the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.” (Civ. Code §
3294(c)(1).) Despicable is a powerful term used to describe circumstances that
are “base,” “vile,” or “contemptible.” (Coll. Hosp. v. Superior Ct.
(1994) 9 Cal.4th 704, 726.) The statute “plainly indicates that absent an
intent to injure the plaintiff, “malice” requires more than a “willful and
conscious” disregard of the plaintiffs' interests, as the additional component
of “despicable conduct” must be found. (See, e.g., Angie M., supra, 37
Cal.App.4th at 1221-1222 [finding vile, base, or contemptible conduct in
unlawful seduction and sexual abuse where a 48-year-old doctor engaged in
sexual intercourse with a minor, plying the minor with drugs and alcohol, and
paying the minor to procure illegal substances for him]; College Hospital,
supra, 8 Cal.4th at 710 [punitive damages not well-pled against Hospital,
where woman receiving outpatient treatment for agoraphobia was courted and
“manipulated” by employee into giving him sex, money and gifts, the Hospital knew
of the employee’s propensities, the Hospital therapists “encouraged” the
plaintiff to accept the employee’s advances, and the Hospital later “abandoned”
plaintiff as a patient after the affair ended].)
Plaintiff alleges that in 2023, she was a
dental hygiene student at West Los Angeles College. (FAC, ¶ 17.) Beginning the
Spring semester of 2023, as part of the clinical portion of the dental hygiene program,
dental hygiene students would practice procedures on other students under the
supervision of licensed dental hygienists and licensed dentists. (¶ 18.) Plaintiff
completed the student patient intake form prior to any dental hygiene student
performing any procedure on her which disclosed that she has a Ventricular
Septal Defect (“VSD”). (¶¶ 19-20.) When a patient has VSD, the medical protocol
requires the patient to present a medical clearance letter from a cardiologist
prior to any procedure. (¶ 21.) After Plaintiff’s initial disclosure, the
supervising instructor/professor properly followed this protocol and did not
allow any procedure to be conducted on Plaintiff until Plaintiff presented
Defendants with a medical clearance letter from her cardiologist. (¶ 22.) This
information was logged into the intake form, which was entered into the
school’s portal. (¶ 23.) The FAC alleges that despite her disclosures and lack
of medical clearance, Defendants intentionally ignored her medical condition
and forced her to undergo dental hygiene procedures which put Plaintiff’s
health and safety at risk. (¶ 25.)
During the Spring 2023 semester, despite
previous notification that she suffered from a minor jaw issue, Plaintiff
suffered a Temporomandibular Joint (“TMJ’’) locked jaw while a student
clinician was performing a dental hygiene procedure on her. (FAC, ¶ 26.) Plaintiff
obtained a letter from a TMJ specialist which stated that she should not have
any dental procedure done on her until the TMJ specialist provided a separate
clearance letter. (¶¶ 27-29.) Plaintiff provided the letter to Ferrigno, the supervising
instructor/professor at the time for the clinical portion of the dental hygiene
program. (¶ 30.) Ferrigno “intentionally disregarded” the doctor’s note and
continued to schedule Plaintiff as a student-patient throughout the spring and summer
semesters. (¶¶ 31, 35.) Plaintiff experienced TMJ locked jaw several times during
her time as a student patient. (¶ 32.)
Plaintiff was under “duress” to do so,
since if she did not attend the clinical session as a student patient, “she
would be penalized by having a point deducted from her grade.” (FAC, ¶ 33.) During
this time, Plaintiff received several injections with anesthetic mediation from
student clinicians in the anesthesia clinic. (¶ 36.) During one such injection,
Plaintiff immediately and promptly notified Ferrigno that the injection was
causing tremendous pain. (¶ 37.) Ferrigno told Plaintiff to hang in there and
allow the student clinician to complete the injection. (Id.) Upon returning
home and finding that her condition was not improving, Plaintiff notified
Ferrigno about the situation, but Ferrigno told her to just wait and the
numbness will go away. (¶ 38.) Plaintiff was once again scheduled to attend the anesthesia clinic
under duress since if Plaintiff did not attend the clinical session, she would
receive a point deduction and be subject to not passing the anesthesia clinic
class. (¶ 39.) Plaintiff again notified Ferrigno that her situation had not
improved, but Ferrigno intentionally ignored her and continued to schedule
Plaintiff as a student patient to receive additional injections. (¶ 40.)
Plaintiff later visited her primary
dentist and a specialist for the numbness in her lower right lip. (FAC, ¶ 41.)
Her dentist prescribed steroids in an attempt to repair the damage, but the
steroids did not help. (Id.) Plaintiff’s dentist
and specialist informed her that if she
promptly received steroids, her condition could have healed. (Id.) Plaintiff
justifiably relied on Ferrigno’s direction and did not receive steroids in
time. (¶ 42.) Plaintiff still experiences numbness in her lower right lip. (¶¶
43, 46.) This condition is probably permanent, since it has not improved after
receiving steroids and after more than a year. (¶ 44.)
The FAC further alleges that Defendants
knew or should have known of the risks posed for their failures to provide
reasonably prudent dental care. (FAC, ¶ 85.) Defendants knew or should have
known that the risks posed by their failure to comply with the standards of
care and intentionally, and/or with conscious disregard, exposed Plaintiff to
the high probability of her injuries. (¶ 86.) Defendants knowingly disregarded
the aforesaid risks and high probability of injury to Plaintiff. (¶ 87.) Defendant’s
failure and refusal to communicate with Plaintiff to obtain her authorization
and informed consent before allowing a dental hygiene student to perform
procedures on Plaintiff during the clinical portion of the dental hygiene
program was despicable and it subjected Plaintiff to cruel and unjust injuries
in conscious disregard of Plaintiff’s health and safety. (¶ 91.) Defendants allowed
procedures to be performed on Plaintiff without first obtaining informed
consent for each procedure. (¶¶ 96-104.) Defendants committed medical battery
by allowing procedures to be performed on Plaintiff without first obtaining
informed consent. (¶¶ 112-113, 119-120.) Defendants “inflicted serious injury
on [Plaintiff], which demonstrates that Defendants acted with intent to cause
severe emotional distress to [Plaintiff] and/or acted in conscious disregard of
the probability that [Plaintiff] would suffer severe emotional distress.” (¶
127.)
The FAC does not allege facts which
support the conclusion that Defendants’ conduct was intentionally harmful or
despicable. At best, the FAC alleges that Defendants “intentionally” ignored
Plaintiff’s lack of medical clearance and her complained-of pain and continued
to require her to receive dental treatment as part of her curriculum. Of
course, this is not the type of intent of which the punitive damages statute is
concerned. Even as to the intentional infliction of emotional distress claim,
Plaintiff merely alleges that Defendants’ infliction of “serious injury” on
Plaintiff “demonstrates” that Defendants acted with intent to cause severe
emotional distress or acted in
conscious disregard of the probability that she would suffer severe emotional distress.
(Compl., ¶ 127-129.) This statement is a conclusion which does not establish an
intent to harm Plaintiff as a matter of fact.
Absent an intent to harm Plaintiff, the complaint
must show that Defendants’ conduct rises to the level of “despicable” conduct. Here, the Court cannot conclude that subjecting Plaintiff to regular procedures
as part of a dental school program could be despicable without further facts. For
example, more information on the
procedures or the alleged “duress” would be required to establish that
Defendants’ treatment of Plaintiff was base, vile,
or contemptible. As these terms are defined by caselaw, penalizing Plaintiff by
having “a point deducted from her grade” unless she submitted to the procedures
in the context of a dental school program does not establish base, vile, or contemptible conduct.
Plaintiff fails to connect her injuries suffered by Defendants’
medical negligence/battery with her VSD/TMJ. The FAC does not clearly allege
she was harmed by Defendants ignoring her VSD/TMJ and the medical clearance
requirements. Plaintiff also alleges that she did not give informed consent,
but does not allege what information she should have been given or any
causation with her injuries from her lack of informed consent. In other words,
Plaintiff does not allege that she would have refused to undergo the procedure
if given the proper information. As such, even if the Court considers such acts
to be despicable, the FAC would still fail to establish that such despicable
conduct caused her any harm.
Accordingly, the motion is GRANTED. Leave to amend is denied. Code of Civil
Procedure Section 425.13(a) forbids punitive damages in this matter. Furthermore,
the college is a public entity and immune from punitive damages under Government
Code Section 818. Finally, there are no
allegations in the FAC that any of the individual defendants are managing
agents. (Civ. Code § 3294(b).)
Attorneys’
Fees
Plaintiff claims attorneys’ fees under Code of Civil Procedure
section 1021.5. Section 1021.5 codifies the “private attorney general”
exception to the general rule that each side bears its own fees unless the
parties contracted otherwise. (CCP §1021.) It permits a trial court to
award fees to a successful party in any action that: has resulted in the
enforcement of an important right affecting the public interest if: (a) a
significant benefit has been conferred on the general public or a large class
of persons, (b) the necessity and financial burden of private enforcement 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. (Flannery v.
California Highway Patrol, (1998) 61 Cal.App.4th 629, 634.) “[T]he
‘significant benefit’ that will justify an attorney fee award need not
represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be
recognized simply from the effectuation of a fundamental constitutional or
statutory policy.” (Woodland Hills Residents Assn., Inc. v. City
Council, (1979) 23 Cal.3d 917, 939; see Braude v. Automobile Club of
Southern Cal., (1986) 178 Cal.App.3d 994, 1011 [the benefit may be
conceptual or doctrinal and need not be actual or concrete; further, the
effectuation of a statutory or constitutional purpose may be sufficient].) The
trial court determines “the significance of the benefit, as well as the size of
the class receiving benefit, from a realistic assessment, in light of all the
pertinent circumstances, of the gains which have resulted in a particular
case.” (Woodland Hills, supra, 23 Cal.3d at 939–940.) The party
seeking attorney’s fees must show that the necessity for pursuing the lawsuit
placed a burden on the plaintiff “out of proportion to his individual stake in
the matter.” (Id. at 941.) The court must also determine whether
advancement of the public interest was merely coincidental to the attainment of
the party’s personal goals. (Bowman v. City of¿Berkeley (2005) 131
Cal.App.4th 173, 181.) The financial burden criterion focuses on the
objectively quantifiable pecuniary interests and does not include nonpecuniary
motives. (In re Conservatorship of Whitley, (2010) 50 Cal.4th 1206,
1224-25.) The party seeking attorney fees bears the burden of establishing that
its litigation costs transcend its personal pecuniary interests. (Save
Open Space Santa Monica Mountains v. Superior Court, (2000) 84 Cal.App.4th
235, 247.)
Plaintiff argues that her suit arises out of her attendance as a
student in a dental program. The instructors and supervisors of the program
repeatedly forced Plaintiff to undergo these procedures while ignoring her
medical documentation. Otherwise, her grade in the program and/or her ability
to continue in the program would be negatively affected. Plaintiff thus reasons
that the suit is not just about her, but about current and future students
facing similar dilemmas.
Plaintiff
fails to allege facts which show that a significant benefit would be conferred
on the general public or a large class of persons if the suit is successful, or
that the necessity and financial burden on Plaintiff would justify the award.
From the allegations, the primary purpose of Plaintiff’s lawsuit is not to
vindicate public rights, but to vindicate her own pecuniary interests. Plaintiff’s
stake is central to this medical malpractice suit. Any benefit to other
students would be speculative and purely coincidental to Plaintiff’s interest.
Accordingly, the motion is GRANTED.
Prejudgment
Interest
Civil Code §3287 permits prejudgment interest when the plaintiff
is entitled to recover
damages
certain, or capable of being made certain by calculation and the right to
recover such
damages is
vested upon a particular day. (Civ. Code, § 3287(a); Children's Hosp. &
Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 774 [“certainty” depends on whether
defendant actually knows the amount owed or could have computed the amount from
reasonably available information]; Wisper Corp. v. California Commerce Bank
(1996) 49 Cal.App.4th 948, 960 [if the amount of damages cannot be resolved
except by verdict or judgment, § 3287(a) prejudgment interest is not
appropriate]; see also Civ. Code §§ 3288 [requires malice, fraud or
oppression]; 3291 [starting interest in personal injury claims after a
rejection of a § 998 offer].) Here, Plaintiff claims personal injuries which are
not readily ascertainable or capable of being made certain by calculation prior
to trial. Plaintiff therefore does not plead entitlement to prejudgment
interest.
Accordingly, the motion is GRANTED.