Judge: Martha K. Gooding, Case: 2022-01271912, Date: 2022-11-28 Tentative Ruling
1.Demurrer to Complaint
2. Motion to Strike Portions Of Complaint
3. Case Management Conference
Defendants Dr. Ken Cooper DC, FICPA and Cooperstown Chiropractic (collectively, “Defendants”) filed a Demurrer to the Complaint filed by Plaintiff Sabah Lambaret on her own behalf and, purportedly on behalf of Rita Kwon, a minor.
For the reasons set forth below, the Demurrer is SUSTAINED in its entirety, with 20 days leave to amend. The Motion to Strike is GRANTED IN PART and, otherwise, is moot.
Defendant’s Request for Judicial Notice
As an initial matter, the Court denies Defendant’s request for judicial notice.
Defendants ask the Court to take judicial notice of the “Report of Fullerton Police Department dated April 9, 2020,” pursuant Evidence Code sections 450, 451 and 452. The request is denied for two reasons.
First, Defendants do not identify the specific subdivision of Evidence Code section 452 that they believe supports judicial notice.
Second, in any event, a police report “is not subject to either mandatory or discretionary judicial notice under Evidence Code sections 451 or 452.” (In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481, 498.) A police report “is not part of a court record under section 452, subdivision (d), nor is it a record of the ‘[o]fficial acts of the legislative, executive [or] judicial departments’ of the state under section 452, subdivision (c).” (Id.).
In addition, police reports are reasonably subject to dispute and, therefore, are not subject to judicial notice pursuant to Evidence Code section452(h). (People v. Jones (1997) 15 Cal.4 th119, 171 n. 17 (overruled on unrelated grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1).)
In short, judicial notice of a police report is improper. (Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1345, n. 1.)
DEFENDANT’S DEMURRER
First Cause of Action for Assault and Second Cause of Action for Battery
The Demurrer to the First and Second Causes of Action is sustained on the grounds that Plaintiffs did not expressly allege a lack of consent and the claims are uncertain.
“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive conduct, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)
“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (Id. at 669.)
In demurring to both claims, Defendants assert “[t]here is no language in the operative pleading to establish [Plaintiff] did not consent to the chiropractic care rendered.” (Demurrer at 8:7-8, 8:25-26.) The Court agrees; although Plaintiffs allege “offensive” touching, the Complaint does not expressly assert a lack of consent.
Because lack of consent is a separate element of both a claim for assault and a claim for battery, the Demurrer is sustained. However, leave to amend is granted. Plaintiffs’ opposition papers make clear Plaintiff intended to allege a lack of consent.
Further, although the Complaint includes several factual allegations identified as “Common Allegations,” they are not incorporated into the later-stated claims. As noted in Kajima Engineering and Const., Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, “[c]omplaints generally incorporate prior allegations into subsequent causes of action.” (Id. at 931-932.) This is a “common practice…to save repetition.” (Id. at 932.) Here, because Plaintiff neither incorporated her prior allegations into any of the individual claims nor, in most instances, repeated the allegations, it is unclear what facts Plaintiffs intend to rely on.
For example, the First Cause of Action, for Assault, states only: “On or about March 4, 2019 and continuing through June 14, 2019, Defendant(s) intentionally assaulted the Plaintiff(s) physically and emotionally in an offensive manner.” (Complaint at p. 8.) Absent an express statement incorporating prior allegations, it is not clear what facts are being relied on. This renders Plaintiff’s claims ambiguous.
The Demurrer to these two causes of action is sustained with leave to amend.
Third Cause of Action for Intentional Infliction of Emotion Distress (“IIED”)
“To state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160 [disagreed with on other grounds in Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 99].) “Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Id.)
Although the Complaint includes “common allegations” of offensive touching that amounts to “outrageous” conduct, Plaintiffs did not incorporate the common allegations into the Third Cause of Action. Instead, in the Third Cause of Action, Plaintiffs simply assert that “Defendant Dr. Ken Cooper was extreme and outrageous...,” without identifying the allegedly outrageous conduct or acts.
As with the prior claims, the failure to incorporate or restate prior allegations renders this claim uncertain. Nonetheless, the common allegations suggest additional facts exist to support this claim. Accordingly, the Demurrer to this cause of action is sustained with leave to amend.
Fourth Cause of Action for Negligent Infliction of Emotional Distress
With respect to the Fourth Cause of Action, the claim simply alleges: “Dr. Ken Cooper acted negligently and caused the plaintiff(s) serious emotional harm and distress. The plaintiff(s) is still suffering from the yet unsolved physical and emotional pain. The whole way of life of the plaintiff(s) and routine has changed.” (Complaint at p. 9.)
Again, because the claim does not incorporate or repeat prior allegations, the claim does not identify the conduct alleged to have resulted in emotional distress.
The Demurrer to this cause of action is sustained with leave to amend.
Sixth Cause of Action for Fraud
“The elements of fraud, which give rise to the tort action for deceit, are (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or ‘scienter’); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
Every element of fraud must be pleaded with specificity. The particularity requirement for fraud requires the plaintiff to plead the facts showing how, when, where, to whom, and by what means the representations were made. Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 73. For example, for each alleged misrepresentation, the plaintiff must allege whether the alleged misrepresentation was oral or written; when the misrepresentation was made; who made the misrepresentation; to whom it was made; and specifically what fact or facts were misrepresented. This is to provide the defendant with notice and to give the court enough information to assess whether there is a foundation for the charge of fraud. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.
Plaintiffs also must allege that each alleged misrepresentation was false and known to be false at the time it was made.
Although the Sixth Cause of Action asserts Defendant “lied about [Plaintiff’s] condition,” the Complaint fails to clearly identify the alleged misrepresentation(s). (See Complaint p. 10.) Plaintiff does not incorporate the “common allegations” into this claim and, although the Sixth Cause of Action references several statements allegedly made by Dr. Cooper, the Complaint does not allege them with the specificity required.
The Demurrer to this cause of action is sustained with leave to amend.
Seventh Cause of Action for “Threats”
Defendants demur to the Seventh Cause of Action for “Threats” on the ground that it is ambiguous and uncertain, as California law does not recognize such a cause of action. (Demurrer at 12:21-26).
The Court agrees. It is not aware of any cause of action for “threats” and it is unclear whether Plaintiff intends these allegations to be part of the claim for intentional infliction of emotional distress.
The Demurrer to this cause of action is sustained with leave to amend.
DEFENDANTS’ MOTION TO STRIKE
Defendants’ Motion to Strike is GRANTED in part, to the extent it relates to Plaintiffs’ Fifth Cause of Action for Negligence. It is granted with 20 days leave to amend. To the extent the Motion relates to Plaintiffs’ remaining claims, the Motion to Strike is MOOT.
In light of the Court’s order above sustaining Defendants’ Demurrer to the First, Second, Third, Fourth, Sixth and Seventh Causes of Action, to the extent Plaintiffs’ request for punitive damages relates to the same, this Motion is MOOT.
To the extent the Motion relates to Plaintiff’s Fifth Cause of Action for Negligence, the Motion to Strike is granted, because Plaintiff’s request for punitive damages appears barred by Code of Civil Procedure (“CCP”) section 425.13.
Pursuant to CCP section 425.13(a), “[i]n 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.” (CCP section 425.13(a).)
For purposes of this section, “health care provider” includes any person licensed pursuant to the Chiropractic Initiative Act. (CCP section 425.13(b)).
Here, Plaintiff’s Complaint alleges Plaintiff sought chiropractic treatment from Defendants, which is sufficient to show that CCP section 425.13 applies. But there has been no motion requesting leave to seek punitive damages.
As explained in Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, CCP section 425.13 applies to any claim “directly related to the manner in which professional services were provided.” (Id. at 192.) “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 basis for the claim was caused by conduct that was directly related to the rendition of professional services.” (Id.)
Because Plaintiffs’ claim for negligence arises from Defendants’ professional services, the statute applies here and the Motion to Strike is granted. However, leave to amend is granted, as Plaintiff may be able to allege a cause of action that falls outside the scope of CCP section 425.13.
Finally, the Court notes the Complaint was filed by Plaintiff Sabah Lamrabet, in propria persona, partially on behalf of the minor Rita Kwon. This raises two potential issues.
First, it is not clear to the Court whether Plaintiff Lamrabet has been appointed as guardian ad litem for Plaintiff Rita Kwon, either before or after the case was transferred to this Court from the Los Angeles County Superior Court.
Second, even if Plaintiff Lamrabet has been so appointed, it is clear that a non-lawyer appointed as a guardian ad litem cannot represent a minor in propria persona. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 962.) The Complaint does not allege that Plaintiff Sabah Lamrabet is a licensed attorney who is authorized to litigate this action on behalf of the minor.
Because these issues were not raised or briefed by any of the parties, the Court makes no ruling on them at this juncture, but notes the issues for consideration by the parties.
Defendants are ordered to give notice.