Judge: Martha K. Gooding, Case: 22-01271912, Date: 2023-05-22 Tentative Ruling
1) Demurrer to Amended Complaint
2) Motion to Strike Portions of Complaint
3) Case Management Conference – continued to July 10, 2023 at 9:00 a.m.
Before the Court are two motions. The first is a Demurrer by Dr. Ken Cooper DC, FICPA and Cooperstown Chiropractic (collectively, “Defendants”) to the First Amended Complaint (“FAC”) filed by Plaintiff Sabah Lambaret (“Plaintiff”) on her own behalf and, purportedly, on behalf of her daughter, Rita Kwon, a minor. The second is a Motion to Strike by Defendants, which asks the Court to strike some or all of the FAC.
A. Late-Filed Opposition Papers
Before turning to its analysis of the Demurrer and Motion to Strike, the Court notes that Plaintiff filed her Opposition papers on May 11, 2023, in violation of CCP §1005(b). (ROA 116, 117). Moreover, Plaintiff served the Opposition papers by mail, which also violates the CCP §1005(b) requirement for next day delivery.
Litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 [self-represented litigants are entitled to same treatment as represented parties]; see Cal Rules of Court, rule 1.6(15) [defines “parties” as including both self-represented persons and persons represented by an attorney of record without making any distinction between them].)
The Court has, in the exercise of its discretion, considered the Opposition papers, but admonishes Plaintiff that all future filings must be timely and compliant with the Code of Civil Procedure and the California Rules of Court, or they may not be considered by this Court.
B. Motion to Strike
Defendants ask the Court to “strike plaintiffs’ entire first amended complaint, or in the alternative, portions thereof relating to the minor, Rita Kwon.”
Defendants provide no authority for the Court to strike the entire FAC, which includes by Plaintiff Lambaret as to which she can represent herself. That portion of the Motion to Strike is denied.
Alternatively, Defendant asks the Court to strike portions of the FAC. Specifically, the Notice asks the Court to “at a minimum, strike the following allegations, including, but not limited to: 1. Intentional Child’s Life Endangerment; 2. Intentional Infliction of Physical Pain on a Child (a Minor); 3. Sexual Assault on a Minor; and 4. Intentional Infliction of Emotional Harm on a Minor.”
It is not clear what allegations Defendants seek to strike. There are no specific allegations identified verbatim or by page and line number, as required by California Rule of Court, rule 3.1322: “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.”
Finally, Defendant raises the issue that the minor Plaintiff, Rita Kwon, cannot be represented by her mother in pro per because her mother is not a lawyer.
Minors and persons without legal capacity to make decisions lack capacity to sue in their own names or to defend an action brought against them. Instead, litigation must be conducted through a guardian, conservator of the estate or guardian ad litem. (CCP § 372(a).) If a guardian or conservator has not previously been appointed for the minor or person lacking decision-making capacity, a guardian ad litem must be appointed unless one of the limited statutory exceptions applies. (CCP § 372(a).)
Although the guardian ad litem serves as a representative of the ward, he or she does not act as an advocate simply representing the war’s wishes. It is the court’s duty to ensure the ward’s interests are protected. (McClintock v. West (2013) 219 CA4th 540, 549.)
Counsel must appear on behalf of the minor or person lacking legal capacity to make decisions. A non-attorney appointed as guardian ad litem cannot act in pro per; doing so would constitute the unauthorized practice of law. (Bus. & Prof. C. § 6125; J.W. v. Sup.Ct. (1993) 17 CA4th 958, 965 - mother appointed as guardian ad litem for minor child in paternity proceedings could not represent child in pro per (although she could appear in her own right in pro per).)
Here, Plaintiff Lamrabet continues to purport to represent her minor daughter. The court raised this issue on 11/28/22 in a prior Order. (ROA 91). The FAC does not cure this defect. (ROA 86). Moreover, rather than taking action to secure counsel, Plaintiff Lamrabet filed an application to have herself appointed as guardian ad litem, but in pro per. (ROA 106).
Plaintiff’s late-filed opposition argues that she is unable to obtain counsel. There is no legal authority to permit Plaintiff Lamrabet to represent her daughter, even if she is unable to locate counsel.
Thus, the Court strikes the minor Plaintiff Rita Kwon from the First Amened Complaint (and all causes of action purportedly asserted on behalf of the minor Plaintiff) without prejudice. (See Hansen v. Hansen (2003) 114 Cal.App.4th 618, 622.)
The pending Application for appointment of guardian ad litem is denied for the same reasons set forth above.
C. Demurrer to the FAC
The FAC contains two headings, one for fraud and one for “hate crimes”, with nine sub-headings under the “hate crimes” heading. For ease of reference, the Court renumbers the claims as follows:
1. Fraud
2. “Hate crimes”
3. Intentional physical torture
4. Battery
5. “Life endangerment (intentional)”
6. Intentional sexual battery
7. Intentional infliction of emotional harm
8. Intentional child’s life endangerment
9. Intentional infliction of physical pain on a child (minor)
10. Sexual assault on a minor
11. Intentional infliction of emotional harm on a minor
As a result of the ruling on the Motion to Strike, the eighth through eleventh causes of action are dismissed without prejudice. The remainder of the claims are brought by Plaintiff Lamrabet on her own behalf, which is permissible.
The Court SUSTAINS the Demurrer to the second, third, fifth, and sixth causes of action, and is inclined to do so without further leave to amend. The fourth cause of action is sustained only as to Defendant Cooper individually, and the Court again is inclined to sustain it without leave to amend.
That leaves the first, fourth (as to the corporate Defendant) and seventh causes of action for fraud, battery, and intentional infliction of emotional distress asserted only by Plaintiff Lambaret. The Demurrer is OVERRULED as to these claims.
Defendants are ordered to answer the FAC within 20 days.
1. Fraud – overruled
“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.)
Further, every element of the cause of action for fraud must be pleaded with “sufficient specificity to allow Defendant to understand fully the nature of the charges made.” (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.) 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.)
The Court now finds that the fraud claim is pled with sufficient specificity.
Plaintiff alleges that on 3/5/19 at 10:00 am, Defendant gave her the results of an x-ray, indicating that it showed a serious problem and that Plaintiff will be in a wheelchair in 3 to 4 years, all with tears in his eyes. (FAC, ¶11, see also ¶¶12-13.)
Plaintiff alleges that “Defendant knew since the day of the x-ray that Plaintiff didn’t need his services. He knew that he was torturing her…” (FAC, ¶19.) She then paid $2k for adjustments. (FAC, ¶14.)
Plaintiff alleges that Defendant purposefully misdiagnosed her “and made up untrue bad health condition.” She alleges Defendant “lied and misrepresented the finding on the Plaintiff’s x-ray, as well as the finding of ‘his’ physical examination that he performed on the Plaintiff… in order to make money out of the Plaintiff”.
For purposes of this Demurrer the Court is bound to accept these allegations as true. The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action—not whether they are true. Thus, no matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 CA3d 593, 604; Hacker v. Homeward Residential, Inc. (2018) 26 CA5th 270, 280.)
Based on the limited function of a demurrer, the Court overrules the Demurrer to the first cause of action for fraud.
2. “Hate crimes” – sustained
This claim appears to be a heading, as it contains no facts. But even liberally construing the FAC, Plaintiff does not allege any statutory hate crimes. The Opposition provides no facts to state such a claim by Plaintiff Lambaret.
It is not up to the court to figure out how the complaint can be amended to state a cause of action. Rather, 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. (Medina v. Safe-Guard Products (2008) 164 CA4th 105, 112; Shaeffer v. Califia Farms, LLC (2020) 44 CA5th 1125, 1145—“onus” on plaintiff to show specific ways in which complaint can be amended, and denial of leave to amend affirmed where plaintiff “proffered no specific amendments to the trial court”; Chen v. PayPal, Inc. (2021) 61 CA5th 559, 584.)
Thus, the Demurrer to the second cause of action for “hate crimes” is sustained.
3. Intentional physical torture– sustained
“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.” (So v. Shin (2013) 212 Cal.App.4th 652, 669.)
The gist of this claim is that Defendant’s treatment left Plaintiff in more pain than before she started treatments. These allegations sound in negligence, for which Plaintiff has disclaimed any intention to seek relief.
Further, the Court previously ruled that Plaintiff must allege lack of consent to the treatment because it otherwise sounds in negligence:
“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.”
(ROA 83)
To the extent this is a claim for battery and not negligence, lack of consent is required – and again is not alleged. After being provided leave to rectify this issue, the problem remains.
The Demurrer to the third cause of action for “intentional physical torture” is sustained.
4. Battery - sustained as to Defendant Cooper individually
The elements of battery are set forth above.
In this cause of action, Plaintiff alleges that Dr. Cooper had his employee cause physical damage to Plaintiff’s back and neck by surprise and unexpectedly. During a treatment, Plaintiff alleges that she told the employee to stop multiple times and said “stop”, “you are hurting me” and she did not stop, causing a lot of pain, but the employee did not stop the treatment. (FAC, ¶20.)
Liberally construing the FAC, as the Court must, the Court finds sufficient facts to state a claim against the corporate Defendant only.
Thus, the Demurrer is sustained as to the fourth cause of action for battery as to Defendant Cooper only.
5. “Life endangerment (intentional)” – sustained
Plaintiff alleges that Defendant was indifferent to the consequences of his actions, which could have caused disability, amputation, or even death.
This is not a cognizable cause of action. Plaintiff has also not alleged facts to state a claim that does not duplicate other properly-alleged claims.
Thus, the Demurrer to the fifth cause of action for “Life endangerment (intentional)” is sustained.
6. Intentional sexual battery – sustained
The elements of battery are set forth above. Plaintiff alleges she did not know that Defendant committed a sexual battery that was not for any legitimate medical purpose. (FAC, ¶23.) But again, she has still not alleged a lack of consent or conditional consent, even after being given leave for the specific purpose to do so.
Thus, the Demurrer to the sixth cause of action for sexual battery is sustained.
7. Intentional infliction of emotional harm – overruled
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.)
Judges will not sustain a demurrer unless the basis for the demurrer is clearly well taken. The complaint must be “liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see Stevens v. Sup.Ct. (API Ins. Services, Inc.) (1999) 75 CA4th 594, 601; Perez v. Golden Empire Transit Dist. (2012) 209 CA4th 1228, 1238—where allegations are subject to different reasonable interpretations, court must draw “inferences favorable to the plaintiff, not the defendant”]; Gressley v. Williams (1961) 193 CA2d 636, 639, complaints which show some right to relief are held sufficient against demurrer—even though the facts are not clearly stated; or are intermingled with irrelevant matters; or the plaintiff has demanded relief to which he is not entitled.)
Here, within the cause of action, Plaintiff references Defendant lying on top of her and disrespecting her body. Construing the FAC liberally and accepting all allegations as true, as the Court must do, the Court finds sufficient facts alleged to show outrageous conduct.
The Court will hear from Plaintiff at the hearing concerning what specific additional facts she can and would allege to cure the defects in the pleading, as noted above. Absent such a showing, the portions of the Demurrer that are sustained above will be sustained without further leave to amend.
Defendants are ordered to give notice.