Judge: Mel Red Recana, Case: 22STCV06560, Date: 2024-02-23 Tentative Ruling

Case Number: 22STCV06560    Hearing Date: February 23, 2024    Dept: 45

Hearing Date: February 23, 2024                  

Moving Parties: Defendants Roger Tsai, M.D. and Roger Tsai, M.D., Inc. (the “Tsai Defendants”)

Responding Party: Plaintiff Pari Roehi         

Demurrer with Motion to Strike

            The court considered the moving, opposition, and reply papers.

RULING

            Defendants Roger Tsai, M.D. and Roger Tsai, M.D., Inc.’s Demurrer is OVERRULED as to the first, second, third, and eighth causes of action and SUSTAINED without Leave to Amend as to the fifth, sixth, seventh, and ninth causes of action.

            Defendants Roger Tsai, M.D. and Roger Tsai, M.D., Inc.’s Motion to Strike is GRANTED with 20 days Leave to Amend.

BACKGROUND

            On December 22, 2022, Plaintiff Pari Roehi filed the operative First Amended Complaint (“FAC”) against Defendants Dean Allgeyer, M.D., Dean Allgeyer, M.D., Inc., Roger Tsai, M.D., Roger Tsai, M.D., Inc., a Medical Corporation, Gary Motykie, M.D., Gary Motykie, M.D., a Medical Corporation, and DOES 1 through 50, inclusive for: (1) Sexual Harassment in violation of Civil Code § 51.9; (2) Intentional Infliction of Emotional Distress; (3) Negligent Infliction of Emotional Distress; (4) Negligence; (5) Breach of Contract; (6) Breach of Implied Covenant of Good Faith and Fair Dealing; (7) Breach of Duty to Perform with Reasonable Care; (8) Fraud; and (9) Violation of the California Unruh Civil Rights Act [Civil Code §§ 51 & 51.5].

            On January 24, 2023, Tsai Defendants filed this instant Demurrer with Motion to Strike. On November 8, 2023, Plaintiff filed an opposition. On November 15, 2023, Tsai Defendants filed a reply.

MEET AND CONFER

            Prior to filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 and 435.5.)  

            Here, Tsai Defendants advance the declaration their counsel of record, Young W. Choi discussing the following meet and confer efforts. Mr. Choi declares on January 17, 2023, he telephonically met and conferred with Plaintiff’s counsels James Bulger and Jonathan Seber regarding the demurrer and motion to strike. (Choi Decl., ¶ 3.) Mr. Choi avers the parties could not come to an agreement. (Id.)

The Court finds that Tsai Defendants sufficiently met and conferred with Plaintiff’s counsels prior to filing this instant Demurrer and Motion to Strike.

LEGAL AUTHORITY

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)  

“A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  

A general demurrer may be brought under Code of Civil Procedure Section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)  

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 complainant to show the Court that a pleading can be amended successfully. (Id.)   

DISCUSSION

Demurrer

            Tsai Defendants demur to Plaintiff’s FAC on the grounds that the first, second, third, fifth, sixth, seventh, eighth, and ninth causes of action fail to state facts sufficient to state a valid claim.

First Cause of Action for Sexual Harassment in Violation of Civil Code § 51.9

To establish a cause of action for sexual harassment under Civil Code Section 51.9, subdivision (a), Plaintiff must prove: “(1) [t]here is a business, service, or professional relationship between the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party; (2) [t]he defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe; [and] (3) [t]he plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2).” (Civ. Code § 51.9, subd. (a).)

Tsai Defendants contend the alleged sexual harassment consists only of comments made on a single occasion, so such an isolated incident is not “pervasive” under the applicable law. Tsai Defendants further contend the alleged conduct is not “severe” where the isolated incident of comments that ridiculed and misgendered Plaintiff did not amount to a threat of physical/sexual assault.

In opposition, Plaintiff argues she can consolidate evidence of multiple forms of discriminations and harassment, such as gender identity, gender expression, and sexual harassment, even though, individually, each of these forms may not be considered “severe” or “pervasive” enough to support the claim. Plaintiff also argues the recent legislative change to Government Code Section 12923 clarifies that harassment cases are not determinable on paper.

In reply, Tsai Defendants argue regardless of what form of discrimination the alleged comments may constitute, Plaintiff failed to proffer any case law that would refute the holdings in Ramirez v. Wong (2010) 188 Cal.App.4th 1480 and Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264.

The FAC alleges on May 11, 2021, Plaintiff scheduled surgery for breast implant removal/replacement and areola reduction with Tsai Defendants. (FAC ¶¶ 20, 25.) Plaintiff asked Tsai Defendants’ staff to send her footage taken during the surgery to review and edit for her YouTube channel. (Id. at ¶ 29.) When Plaintiff arrived home, she reviewed the footage and discovered that while she was unconscious on the operating table Tsai Defendants and staff ridiculed her body and purposefully misgendered her in a demeaning way. (Id. at ¶ 30.) Specifically, the FAC alleges Tsai Defendants, or one of their agents, can be heard saying, “she’s worried about boobs and not her wiener.” (Id. at ¶ 31.) The FAC further alleges Tsai Defendants, or one of their agents, replied: “Pari might need a joke,” to which the person holding the camera said: “Oh, oh, let me finish filming first.” (Id.) The FAC further alleges in footage from another video, Tsai Defendants, or one of their agents, can be heard laughing and saying, “He said this guy is wearing a – this woman is wearing her bikini, and I see a potato, haha” and everyone in the operating room laughed. (Id. at ¶ 32.) The FAC also alleges Plaintiff was injected with a solution and her chest twitches when the injection goes in, wherein Tsai Defendants, or one of their agents, said, “She don’t like it.” (Id. at ¶ 33.) The FAC also alleges, another Defendant, or one of their agents, repeats this phrase. (Id.) The FAC alleges then another Defendant, or one of their agents, says, “Me no megusta,” and the cameraperson says, “I can feel the camera on my boob right now.” (Id.) The FAC alleges by virtue of Tsai Defendants conduct alleged, they intentionally discriminated against Plaintiff solely on the basis of her gender expression, as proscribed by the Unruh Civil Rights Act. (Id. at ¶ 38.) The FAC further alleges Plaintiff had a business and/or service relationship with Tsai Defendants, and each of them, engaged in verbal conduct of a sexual nature and/or hostile nature based on gender. (Id. at ¶¶ 39-40.) The FAC also alleges Tsai Defendants’ conduct was unwelcome and also pervasive or severe. (Id. at ¶ 41.) The FAC then alleges as a result of Tsai Defendants’ conduct, Plaintiff has suffered, and will continue to suffer damages. (Id. at ¶ 42.)

The Court finds that the FAC alleges sufficient facts to support a cause of action for sexual harassment in violation of Civil Code Section 51.9, subdivision (a). Plaintiff alleges there is a business, service, or professional relationship between her and Tsai Defendants, as patient and physician. Plaintiff further alleges Tsai Defendants made verbal comments that were of sexual nature based on her gender expression that were unwelcome and pervasive or severe. Lastly, Plaintiff alleges she suffered economic damages and personal injury, including emotional distress.

Therefore, the demurrer as to the first cause of action is OVERRULED.

Second Cause of Action for Intentional Infliction of Emotional Distress

“The elements of a cause of action for IIED are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.) Defendant’s conduct must be “directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.” (Id.)

Tsai Defendants contend Plaintiff’s allegations that she suffered humiliation, mental anguish and physical distress from a few alleged comments do not establish the requisite degree of severe emotional distress under the applicable law. Furthermore, Tsai Defendants contend the FAC is devoid of any facts that would support Tsai Defendants’ intent to cause emotional distress to Plaintiff because Plaintiff was unconscious at the time of the incident.

In opposition, Plaintiff argues the FAC alleges harrowing conduct to which she was subjected, which satisfies the “extreme and outrageous conduct” element. Plaintiff further argues the conduct was also discriminatory, which also satisfies the “extreme and outrageous conduct” prong. Lastly, Plaintiff argues the question of whether conduct is outrageous is firmly a question for the jury, not for the court at the pleading stage.

In reply, Tsai Defendant reiterate the arguments set forth in the initial demurrer.

The FAC alleges through Tsai Defendants outrageous conduct, Tsai Defendants and their agents acted with a discriminatory intent to cause, or with a reckless disregard for the probability to cause, Plaintiff humiliation, mental anguish, and substantial and enduring emotional distress. (FAC ¶ 46.) The FAC further alleges as a direct and proximate result of Tsai Defendants’ actions against Plaintiff, she has suffered general damages including but not limited to significant and enduring emotional distress. (Id. at ¶ 47.)

The Court finds that the FAC alleges sufficient facts to support a cause of action for intentional infliction of emotional distress. Plaintiff alleges that Tsai Defendants engaged in outrageous conduct by ridiculing and misgendering her on videotape during her surgery. Plaintiff also alleges Tsai Defendants’ acted with discriminatory intent to cause her emotional distress or with reckless disregard to the probability of causing her emotional distress. Finally, Plaintiff alleges she suffered damages as a result of Tsai Defendants’ conduct.

Therefore, the demurrer as to the second cause of action is OVERRULED.

Third Cause of Action for Negligent Infliction of Emotional Distress

“[N]egligent causing of emotional distress is not an independent tort but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply.” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.)

Tsai Defendants contend the FAC already includes a cause of action for negligence, so this cause of action is duplicative and improper.

In opposition, Plaintiff argues the California Supreme Court has allowed plaintiffs to bring negligent infliction of emotional distress actions as direct victims where there has been a negligent breach of duty arising out of a preexisting relationship. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076.)

In reply, Tsai Defendants argue Plaintiff misinterprets the holding in Burgess, where the court viewed the claim for emotional distress damages as a professional malpractice claim.

The FAC alleges the acts of Tsai Defendants, each of them, were negligent and/or carried out with a conscious disregard for the rights of Plaintiff. (FAC ¶ 50.) The FAC further alleges Tsai Defendants, knew or should have known of the severe emotional distress in the form of fear, nervousness, anxiety, worry, and indignity, which would and did result from their wrongful conduct. (Id.) The FAC further alleges as a proximate result of Tsai Defendants’ conduct, as alleged herein, Plaintiff suffered extreme mental anguish, humiliation, worry, anxiety, emotional and physical distress and mental and physical injury amounting to general damages. (Id. at ¶ 51.)

Although legal precedent indicates that negligent infliction of emotional distress is not an independent tort, there is no case law cited by Tsai Defendants to suggest that it cannot be brought as a separate cause of action. However, case law does support that negligent infliction of emotional distress is simply the tort of negligence. Thus, a demurrer could be sustained without leave to amend if the allegations set forth in the third cause of action contains the same allegations as the fourth cause of action for negligence as to essentially add nothing to the FAC by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

The Court finds that the FAC alleges sufficient facts to support a cause of action for negligent infliction of emotional distress. Plaintiff alleges Tsai Defendants owed her a duty to exercise reasonable care through their relationship as physician and patient. Plaintiff further alleges Tsai Defendants breached that duty during the surgery by ridiculing and misgendering her on videotape. Plaintiff also alleges as a direct and proximate result of Tsai Defendants’ conduct she suffered damages including but not limited to emotional distress. The facts alleged in the third cause of action speak to the emotional distress, which is not addressed in the fourth cause of action, so this cause of action adds to the FAC and is not duplicative.

Therefore, the demurrer as to the third cause of action is OVERRULED.

Fifth Cause of Action for Breach of Contract

“Establishing that claim requires a showing of “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

Tsai Defendants contend there is no allegation that Dr. Tsai breached or reneged on the agreement to give Plaintiff a 50 percent discount on the surgery in exchange for Plaintiff promoting Dr. Tsai’s work on her social media accounts. Tsai Defendants further assert the FAC seems to allege Dr. Tsai breached a contractual obligation to perform the surgery in a professional and dignified manner, supposedly referring to the alleged comments that ridiculed and misgendered Plaintiff during the operation, which amounts to medical negligence. As such, Tsai Defendants argue there are no allegations indicating any basis of liability arising out of the contract or out of any source other than the law of torts.

In opposition, Plaintiff argues a contract to perform services gives rise to a duty of care requiring that such services be performed in a competent and reasonable manner and negligent failure to do so may be both a breach of contract and a tort. (Michaelis v. Benavides (1998) 61 Cal.App.4th 681, 687–688.)

In reply, Tsai Defendants argue Plaintiff failed to refute their argument that Plaintiff’s allegations sound in tort of medical negligence and not in contract. Tsai Defendant further argue since Plaintiff has no viable contract claim, there can likewise be no breach of the implied covenant of good faith and fair dealing, and breach of duty to perform with reasonable care.

The FAC alleges on or about May 11, 2021 Plaintiff entered into a contract with Tsai Defendants for Plaintiff to use her social media accounts to promote Dr. Tsai’s work by creating and uploading a YouTube video of the procedure in exchange for 50 percent discount on the removal and replacement fee. (FAC ¶ 59.) The FAC also alleges Dr. Tsai would be permitted to use a before and after picture of Plaintiff in her bikini top on his social media accounts and website. (Id.) The FAC also alleges the parties agreed Plaintiff’s areolas would not be shown in any video footage or pictures. (Id.) The FAC further alleges after this discount the remaining fee was $11,900.00. (Id.) The FAC further alleges in accordance with the terms of the agreement, Plaintiff underwent the surgery, posed for photographs, paid the $11,900.00 fee, and allowed the video of the surgery to be recorded. (Id. at ¶ 60.) The FAC alleges Plaintiff performed substantially all of the significant things the Agreement required her to do and to the extent Plaintiff did not perform, her non-performance was excused by Tsai Defendants’ actions. (Id. at ¶ 61.) The FAC then alleges Tsai Defendants breached their contractual obligation to perform the surgery in a professional and dignified manner, respecting Plaintiff’s body and emotional well-being. (Id. at ¶ 63.) Finally, the FAC alleges as a proximate and direct result of the acts and omissions by Tsai Defendants, she suffered damages. (Id. at ¶ 64.)

The Court finds that the FAC does not sufficiently state facts to support a cause of action for breach of contract. Plaintiff does not allege Tsai Defendants failed to give her the 50 percent discount on the surgery. Plaintiff also fails to allege the video footage and/or pictures show her areolas.

Therefore, the demurrer as to the fifth cause of action is SUSTAINED without Leave to Amend. 

Sixth Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing

“The [implied] covenant of good faith and fair dealing [is] implied by law in every contract. The covenant is read into contracts and functions ‘as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract.’” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.) As such, “A breach of the implied covenant of good faith is a breach of the contract.” (Id.)

Tsai Defendants contend Plaintiff has no viable breach of contract claim against Tsai Defendants, thus there can be no breach of implied covenant of good faith and fair dealing. In opposition, Plaintiff advances the same argument as to the fifth cause of action. In reply, Tsai Defendant advance the same argument as to the fifth cause of action. 

The Court finds that this cause of action essentially re-alleges the same facts supporting the fifth and seventh causes of action.

Therefore, the demurrer as to the sixth cause of action  is SUSTAINED without Leave to Amend.

Seventh Cause of Action for Breach of Duty to Perform with Reasonable Care

Tsai Defendants demurs to this cause of action in the notice of motion but does not address it separately in the memorandum of points and authorities. It appears this cause of action is analyzed in conjunction with the fifth and sixth causes of action. (Reply at p. 5, lns. 3-8.)

Therefore, the demurrer as to the seventh cause of action is SUSTAINED without Leave to Amend.

Eighth Cause of Action for Fraud

“The essential elements of fraud, generally, are (1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211.)

Tsai Defendants contend Plaintiff’s allegation Dr. Tsai misrepresented that he would treat her with the utmost respect does not amount to fraud simply because Plaintiff feels she was disrespected.

In opposition, Plaintiff argues a statement of what the defendant intends to do relates to an existing state of mind and is a representation of fact, and it is on this basis that a promise made without any intention to perform may constitute fraud. As such, Plaintiff contends if the Tsai Defendants assured her of treating her with the utmost respect without any actual intention of doing so,  could amount to fraud.

In reply, Tsai Defendants advance the same arguments set forth in the demurrer.

The FAC alleges at Plaintiff’s consultation, Dr. Tsai told Plaintiff he would treat her with the utmost respect. (FAC ¶ 86.) The FAC also alleges after doing research and visiting other doctors, Plaintiff decided to schedule a surgery for breast implant removal/replacement and areola reduction with Dr. Tsai. (Id. at ¶ 88.) The FAC also alleges the representations made by Tsai Defendants were false and that Tsai Defendants knew they were false when they were made to Plaintiff. (Id. at ¶ 89.) The FAC further alleges the representations were made with the intention to deceive and defraud Plaintiff and induce Plaintiff to act in reliance. (Id.) The FAC then alleges in reliance on these representations, Plaintiff was induced to pay Tsai Defendants for surgery and had she known the facts, she would not have taken such action. (Id. at ¶ 90.) Moreover, the FAC alleges Plaintiff’s reliance on Tsai Defendants’ representations was justified because they were a doctor and his staff, and it was reasonable for Plaintiff to expect them to treat her with respect. (Id. at ¶ 91.) Last, the FAC alleges as a proximate result of Tsai Defendants’ fraudulent conduct Plaintiff suffered  emotional distress damages. (Id. at ¶ 92.)

The Court finds that the FAC alleges sufficient facts to support a cause of action for fraud. Plaintiff alleges Tsai Defendants misrepresented to her that they would treat her with the utmost respect. Plaintiff further alleges Tsai Defendants made the misrepresentation knowing it was false. Plaintiff also alleges Tsai Defendants made the misrepresentation with the intent to induce her reliance and have them perform the surgery in exchange for the promotion on social media. Plaintiff alleges she was justified in relying on the misrepresentation because it was being made by a doctor and his staff. Finally, Plaintiff alleges she suffered emotional distress damages as a result of the misrepresentation.

Therefore, the demurrer as to the eighth cause of action is OVERRULED.

Ninth Cause of Action for Violation of California Unruh Civil Rights Act (Civil Code §§ 51 & 51.5)

“No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or of the person’s partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers, because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics.” (Civ. Code §§ 51, 51.5, subd. (a).)

To establish a claim under the California Unruh Act, plaintiff must prove “(i) defendant denied plaintiff full and equal accommodations, advantages, facilities, privileges, or services; (ii) that a substantial motivating reason for defendant's conduct was plaintiff's membership in a protected class; (iii) that plaintiff was harmed; and (iv) that defendant's conduct was a substantial factor in causing plaintiff's harm.” (Nia v. Bank of America, N.A. (2022) 603 F.Supp.3d 894, 906.)

Tsai Defendants contend the FAC simply alleges in conclusory fashion that Tsai Defendants intentionally discriminated against Plaintiff solely on the basis of her gender expression. Tsai Defendants argue mere comments do not amount to discrimination. Furthermore, Tsai Defendants contend there are no facts showing Plaintiff was denied full and equal medical services.

In opposition, Plaintiff argues clear legal precedent in Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, affirms that discriminatory comments constitute intentional discrimination, and if made by a business establishment in the course of providing goods, services, or facilities to its clients, patrons, or customers, it constitutes a violation of the Unruh Civil Rights Act.

In reply, Tsai Defendants argue Plaintiff did not address how Tsai Defendants failed to provide “full and equal accommodation, advantages, facilities, privileges, or services.” Tsai Defendants further argue no denial services or accommodations is alleged in the FAC. Moreover, Tsai Defendants argue it is not alleged that Plaintiff encountered an exclusionary practice or policy or that she was prevented from using the medical services offered by Tsai Defendants.

The FAC alleges Tsai Defendants intentionally discriminated against Plaintiff solely on the basis of her gender expression, as proscribed by the Unruh Civil Rights Act, codified in Civil Code Section 51 et seq. (FAC ¶ 95.) The FAC further alleges Tsai Defendants’ conduct caused Plaintiff to sustain damages. (Id. at ¶ 96.) Lastly, the FAC alleges Tsai Defendants’ discrimination renders them liable to Plaintiff  under Civil Code Section 52, subdivision (a). (Id. at ¶ 97.)

The Court finds that the FAC does not sufficiently allege facts to support a cause of action under the California Unruh Act. Plaintiff does not allege Tsai Defendants denied her full and equal accommodations, advantages, facilities, privileges, or services. Plaintiff also does not allege that a substantial motivating reason for Tsai Defendants’ conduct was Plaintiff’s membership in a protected class.

Therefore, the demurrer as to the ninth cause of action is SUSTAINED without Leave to Amend.

Motion to Strike

“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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(1).)

“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.” (Code Civ. Proc., § 436, subd. (a).)

            Here, Tsai Defendants move to strike the following portions of Plaintiff’s FAC: (1) Prayer for Damages: “For punitive damages in an amount to be determined at trial;” (2) “For reasonable attorneys’ fees in an amount according to proof;” (3) “For treble damages pursuant to Civil Code section 52;” (4) “For attorneys’ fees pursuant to Civil Code section 52;” and (5) “For statutory damages, not less than $4,000.00, as afforded by Civil Code section 52 for violations on the date of incident.

            Tsai Defendants argue Plaintiff improperly seeks to recover punitive damages under the causes of action for sexual harassment, intentional infliction of emotional distress, and fraud. Specifically, Tsai Defendants contend no claim for punitive damages can be included in a complaint or other pleading for any action for damages arising out of the professional negligence of a healthcare provider unless the court enters an order permitting an amended pleading to include the claim to be filed under Code of Civil Procedure Section 425.13, subdivision (a). Tsai Defendant contend Plaintiff’s claims for sexual harassment, intentional infliction of emotional distress, and fraud all arise from allegations concerning Tsai Defendants’ performance of professional services, so Plaintiff was required to seek leave to amend to add punitive damages. Moreover, Tsai Defendants argue the FAC is devoid of any factual allegations showing they are guilty of “oppression, fraud, or malice” to warrant punitive damages under Civil Code Section 3294. Lastly, Tsai Defendants argue Plaintiff has failed to state sufficient facts in the FAC to constitute claims for sexual harassment under Civil Code Section 51.9 or Violation of the California Unruh Civil Rights Act under Sections 51 and 51.5, thus Plaintiff is not entitled to the relief afforded under Civil Code Section 52 for attorneys’ fees, treble damages, and statutory damages.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the¿defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. Id. A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.) 

“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)¿¿“Fraud” is defined in section 3294(c)(3) as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” 

To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)

In opposition, Plaintiff argues her allegations detailed in paragraphs 18, 31, 32, and 33, support her request for punitive damages. Furthermore, Plaintiff contends these allegations vividly portray her deeply distressing experience of hearing the derogatory comments including the act of mocking and intentionally misgendering Plaintiff during a vulnerable period, as she underwent gender transition surgery. Moreover, Plaintiff argues her claims of sexual harassment and discrimination are not inherently connected to the provision of professional services, rendering the Code of Civil Procedure Section 425.13 inapplicable. Finally, Plaintiff contends her request for attorneys’ fees, treble damages, and statutory damages are warranted under Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138.

In reply, Tsai Defendants advance the same arguments set forth in the motion.

The Court finds that the FAC sufficiently pleads facts to support Plaintiff’s prayer for punitive damages, treble damages, statutory damages, and attorneys’ fees. The FAC alleges Tsai Defendants made comments recorded on video about Plaintiff’s gender expression while Plaintiff was undergoing breast implant removal/replacement and areola reduction surgery. (FAC ¶¶ 30-33.) A  reasonable jury could conclude that Tsai Defendants’ conduct was base, vile, or contemptible given the context they were said in and the person who the comments were made about, in this instance, a transgender woman. Finally, the demurrer is overruled as to the first and third causes of action, so Plaintiff would have a basis of recovery under Civil Code Section 52. Nonetheless, these causes of action are based on Tsai Defendants’ alleged professional negligence as a healthcare provider and required Plaintiff to seek leave to amend to add punitive damages.

Therefore, the motion to strike is GRANTED with 20 days Leave to Amend.

            Moving party is ordered to give notice of ruling.

Hearing Date: February 23, 2024                  

Moving Parties: Defendants
Dean Allgeyer, M.D. and Dean Allgeyer, M.D., Inc. (the “Allgeyer Defendants”)

Responding Party:
Plaintiff Pari Roehi         

Demurrer with Motion to Strike

            The court considered the moving,
opposition, and reply papers.

RULING

            Defendants
Dean Allgeyer, M.D. and Dean Allgeyer, M.D., Inc.’s Demurrer is OVERRULED as to
the first, second, third, and fourth causes of action and SUSTAINED without
Leave to Amend as to the sixth, seventh, and ninth causes of action.

            Defendants
Dean Allgeyer, M.D. and Dean Allgeyer, M.D., Inc.’s Motion to Strike is GRANTED
with 20 days Leave to Amend.

BACKGROUND

            On December 22, 2022, Plaintiff Pari
Roehi filed the operative First Amended Complaint (“FAC”) against Defendants
Dean Allgeyer, M.D., Dean Allgeyer, M.D., Inc., Roger Tsai, M.D., Roger Tsai,
M.D., Inc., a Medical Corporation, Gary Motykie, M.D., Gary Motykie, M.D., a
Medical Corporation, and DOES 1 through 50, inclusive for: (1) Sexual
Harassment in violation of Civil Code § 51.9; (2) Intentional Infliction of
Emotional Distress; (3) Negligent Infliction of Emotional Distress; (4)
Negligence; (5) Breach of Contract; (6) Breach of Implied Covenant of Good
Faith and Fair Dealing; (7) Breach of Duty to Perform with Reasonable Care; (8)
Fraud; and (9) Violation of the California Unruh Civil Rights Act [Civil Code
§§ 51 & 51.5].

            On January 23 and 24, 2023, Allgeyer
Defendants filed this instant Demurrer with Motion to Strike. On November 13,
2023, Plaintiff filed an opposition. On November 20, 2023, Allgeyer Defendants
filed a reply.

MEET AND CONFER

            Prior
to filing a demurrer or a motion to strike, the demurring or moving party is
required to meet and confer with the party who filed the pleading demurred to
or the pleading that is subject to the motion to strike for the purposes of
determining whether an agreement can be reached through a filing of an amended
pleading that would resolve the objections to be raised in the demurrer. (Code
Civ. Proc., §§ 430.41 and 435.5.)  

            Here,
Allgeyer Defendants advance the declaration their counsel of record, Sara K.
Mores discussing the following meet and confer efforts. Ms. Mores declares on
January 11, 2023, she sent a meet and confer letter via e-mail to Plaintiff’s
counsel, setting forth the bases for the Demurrer to the First Amended
Complaint. (Mores Decl., ¶ 4, ex. B) Ms. Mores further avers Plaintiff’s
counsel never responded. (Id. at ¶ 5.)

The Court finds that Allgeyer Defendants
sufficiently met and conferred with Plaintiff’s counsels prior to filing this
instant Demurrer and Motion to Strike.

LEGAL AUTHORITY

“The
primary function of a pleading is to give the other party notice so that it may
prepare its case [citation], and a defect in a pleading that otherwise properly
notifies a party cannot be said to affect substantial rights.” (Harris v.
City of Santa Monica (2013) 56 Cal.4th 203, 240.)  

“A¿demurrer¿tests
the legal sufficiency of the factual allegations in a complaint.” (Ivanoff
v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to
whether “the complaint alleges facts sufficient to state a cause of action or
discloses a complete defense.” (Id.) The Court does not “read passages
from a complaint in isolation; in reviewing a ruling on a demurrer, we read the
complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v.
JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court
“assume[s] the truth of the properly pleaded factual allegations, facts that
reasonably can be inferred from those expressly pleaded and matters of which
judicial notice has been taken.” (Harris, supra, 56 Cal.4th p.
240.) “The court does not, however, assume the truth of contentions, deductions
or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010)
183 Cal.App.4th 1350, 1358.)  

A
general demurrer may be brought under Code of Civil Procedure Section 430.10,
subdivision (e) if insufficient facts are stated to support the cause of action
asserted or under section 430.10, subdivision (a), where the court has no
jurisdiction of the subject of the cause of action alleged in the pleading. All
other grounds listed in Section 430.10, including uncertainty under subdivision
(f), are special demurrers. Special demurrers are not allowed in limited
jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)  

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 complainant to show the Court that a pleading can be amended
successfully. (Id.)   

DISCUSSION

Demurrer

            Allgeyer
Defendants demur to Plaintiff’s FAC on
the grounds that the first, second, third, fourth, sixth, seventh, and ninth
causes of action fail to state facts sufficient to state a valid claim and
fatally uncertain as pled.

First Cause of Action for Sexual Harassment
in Violation of Civil Code § 51.9

To establish a cause of action for sexual
harassment under Civil Code Section 51.9, subdivision (a), Plaintiff must
prove: “(1) [t]here is a business, service, or professional relationship
between the plaintiff and defendant or the defendant holds himself or herself
out as being able to help the plaintiff establish a business, service, or
professional relationship with the defendant or a third party; (2) [t]he
defendant has made sexual advances, solicitations, sexual requests, demands for
sexual compliance by the plaintiff, or engaged in other verbal, visual, or
physical conduct of a sexual nature or of a hostile nature based on gender,
that were unwelcome and pervasive or severe; [and] (3) [t]he plaintiff has
suffered or will suffer economic loss or disadvantage or personal injury,
including, but not limited to, emotional distress or the violation of a
statutory or constitutional right, as a result of the conduct described in
paragraph (2).” (Civ. Code § 51.9, subd. (a).)

Allgeyer
Defendants contend there are no facts
or detail of any sexual advances made or other hostile conduct that was
pervasive or severe. Allgeyer Defendants also contend there are no facts
of any damage suffered by Plaintiff other than general garden-variety emotional
distress. Finally, Allgeyer Defendants argue statutory causes of action must be
pled with particularity.

In opposition, Plaintiff argues her
allegations detailed in paragraphs 31, 32, and 33 make this cause of action
certain. Plaintiff further argues a reasonable interpretation of Plaintiff’s
alleged facts is that collectively, they are particular to support the cause of
action for sexual harassment.

In reply, Allgeyer Defendants argue Plaintiff entirely fails to
address how the action was “pervasive or severe” as specifically required by
the statute. Allgeyer Defendants further contend the language at issue was said
on one single occasion while Plaintiff was under anesthesia. Finally, Allgeyer
Defendants contend Plaintiff does not present any specific facts evidencing her
damages other than general emotional distress.

The FAC alleges on May 11, 2021, Plaintiff
scheduled surgery for breast implant removal/replacement and areola reduction
with Tsai Defendants. (FAC ¶¶ 20, 25.) Plaintiff asked Tsai Defendants’ staff
to send her footage taken during the surgery to review and edit for her YouTube
channel. (Id. at ¶ 29.) When Plaintiff arrived home, she reviewed the
footage and discovered that while she was unconscious on the operating table
Defendants and staff ridiculed her body and purposefully misgendered her in a
demeaning way. (Id. at ¶ 30.) Specifically, the FAC alleges Defendants,
or one of their agents, can be heard saying, “she’s worried about boobs and not
her wiener.” (Id. at ¶ 31.) The FAC further alleges Defendants, or one
of their agents, replied: “Pari might need a joke,” to which the person holding
the camera said: “Oh, oh, let me finish filming first.” (Id.) The FAC
further alleges in footage from another video, Defendants, or one of their
agents, can be heard laughing and saying, “He said this guy is wearing a – this
woman is wearing her bikini, and I see a potato, haha” and everyone in the
operating room laughed. (Id. at ¶ 32.) The FAC also alleges Plaintiff
was injected with a solution and her chest twitches when the injection goes in,
wherein Defendants, or one of their agents, said, “She don’t like it.” (Id.
at ¶ 33.) The FAC also alleges, another Defendant, or one of their agents,
repeats this phrase. (Id.) The FAC alleges then another Defendant, or
one of their agents, says, “Me no megusta,” and the cameraperson says, “I can
feel the camera on my boob right now.” (Id.) The FAC alleges by virtue
of Defendants conduct alleged, they intentionally discriminated against
Plaintiff solely on the basis of her gender expression, as proscribed by the
Unruh Civil Rights Act. (Id. at ¶ 38.) The FAC further alleges Plaintiff
had a business and/or service relationship with Defendants, and each of them,
engaged in verbal conduct of a sexual nature and/or hostile nature based on
gender. (Id. at ¶¶ 39-40.) The FAC also alleges Defendants’ conduct was
unwelcome and also pervasive or severe. (Id. at ¶ 41.) The FAC then
alleges as a result of Defendants’ conduct, Plaintiff has suffered, and will
continue to suffer damages. (Id. at ¶ 42.)

The Court finds that the FAC alleges
sufficient facts to support a cause of action for sexual harassment in
violation of Civil Code Section 51.9, subdivision (a). Plaintiff alleges there
is a business, service, or professional relationship between her and Allgeyer Defendants,
as patient and physician. Plaintiff further alleges Allgeyer Defendants made
verbal comments that were of sexual nature based on her gender expression that
were unwelcome and pervasive or severe. Lastly, Plaintiff alleges she suffered economic
damages and personal injury, including emotional distress.

Therefore, the demurrer as to the first cause
of action is OVERRULED.

Second Cause of Action for Intentional
Infliction of Emotional Distress

“The elements of a cause of action for IIED
are as follows: (1) defendant engaged in extreme and outrageous conduct
(conduct so extreme as to exceed all bounds of decency in a civilized
community) with the intent to cause, or with reckless disregard to the
probability of causing, emotional distress; and (2) as a result, plaintiff
suffered extreme or severe emotional distress.” (Berry v. Frazier (2023)
90 Cal.App.5th 1258, 1273.) Defendant’s conduct must be “directed at the
plaintiff, or occur in the presence of the plaintiff of whom the defendant is
aware.” (Id.)

Allgeyer
Defendants contend Plaintiff’s
allegations are completely void of any facts setting forth the alleged
injurious conduct on behalf of Dr. Allgeyer. Allgeyer Defendants further
argue other than the alleged comments made by an unidentified person as claimed
in paragraphs 30-33 of Plaintiff’s FAC, there are no facts demonstrating the
alleged “extreme and outrageous conduct” necessary to support a claim for
intentional infliction of emotional distress. Moreover, Allgeyer Defendants
contend there are no facts evidencing any intent on behalf of Dr. Allgeyer to
harm Plaintiff or cause her distress, and there cannot be any facts pled given
Plaintiff’s lack of percipience.

In opposition, Plaintiff argues the FAC
alleges harrowing conduct to which she was subjected, which satisfies the
“extreme and outrageous conduct” element. Plaintiff further argues the conduct
was also discriminatory, which also satisfies the “extreme and outrageous
conduct” prong. Moreover, Plaintiff argues the question of whether conduct is
outrageous is firmly a question for the jury, not for the court at the pleading
stage. Finally, Plaintiff argues there is nothing unusual or improper about her
lumping the Defendants together and making allegations against them jointly.

In reply, Allgeyer Defendants reiterate the arguments set forth in the
initial demurrer.

The FAC alleges through Allgeyer Defendants
outrageous conduct, Allgeyer Defendants and their agents acted with a
discriminatory intent to cause, or with a reckless disregard for the
probability to cause, Plaintiff humiliation, mental anguish, and substantial
and enduring emotional distress. (FAC ¶ 46.) The FAC further alleges as a
direct and proximate result of Allgeyer Defendants’ actions against Plaintiff,
she has suffered general damages including but not limited to significant and
enduring emotional distress. (Id. at ¶ 47.)

The Court finds that the FAC alleges
sufficient facts to support a cause of action for intentional infliction of
emotional distress. Plaintiff alleges that Allgeyer Defendants engaged in
outrageous conduct by ridiculing and misgendering her on videotape during her
surgery. Plaintiff also alleges Allgeyer Defendants’ acted with discriminatory
intent to cause her emotional distress or with reckless disregard to the
probability of causing her emotional distress. Finally, Plaintiff alleges she
suffered damages as a result of Allgeyer Defendants’ conduct.

Therefore, the demurrer as to the second
cause of action is OVERRULED.

Third Cause of Action for Negligent
Infliction of Emotional Distress

“[N]egligent causing of emotional distress is
not an independent tort but the tort of negligence. The traditional elements of
duty, breach of duty, causation, and damages apply.” (Eriksson v. Nunnink
(2015) 233 Cal.App.4th 708, 729.)

Allgeyer
Defendants contend the very language of
paragraphs 30-34 of Plaintiff’s FAC precluded a cause of action for negligent
infliction of emotional distress because Plaintiff admits she was unconscious
while she was “ridiculed,” thus necessarily lacked the required “awareness” of
the injury producing event.

In opposition, Plaintiff argues the
California Supreme Court has allowed plaintiffs to bring negligent infliction
of emotional distress actions as direct victims where there has been a
negligent breach of duty arising out of a preexisting relationship. (Burgess
v. Superior Court (1992) 2 Cal.4th 1064, 1076.) Furthermore, Plaintiff
argues she was cognizant of the derision, misgendering, and blatant
discrimination when she received the corresponding video, as alleged in
paragraphs 29, 31, and 32 of the Complaint. Plaintiff also argues the Allgeyer
Defendants fail to provide any legal basis for the assertion that the Plaintiff
must have immediate awareness of the injury-producing event. Lastly, Plaintiff
contends because she is a direct victim, she is not required t be “aware” at
the precise moment of the incident.

In reply, Allgeyer Defendants argue the mere existence of a
patient-physician relationship does not turn this claim into anything more than
medical malpractice.

The FAC alleges the acts of Defendants, each
of them, were negligent and/or carried out with a conscious disregard
for the rights of Plaintiff. (FAC ¶ 50.) The FAC further alleges Defendants,
knew or should have known of the severe emotional distress in the form of fear,
nervousness, anxiety, worry, and indignity, which would and did result from
their wrongful conduct. (Id.) The FAC further alleges as a proximate
result of Defendants’ conduct, as alleged herein, Plaintiff suffered extreme
mental anguish, humiliation, worry, anxiety, emotional and physical distress
and mental and physical injury amounting to general damages. (Id. at ¶
51.)

The Court finds that the FAC alleges
sufficient facts to support a cause of action for negligent infliction of
emotional distress. Plaintiff alleges Allgeyer Defendants owed her a duty to
exercise reasonable care through their relationship as physician and patient.
Plaintiff further alleges Allgeyer Defendants breached that duty during the
surgery by ridiculing and misgendering her on videotape. Plaintiff also alleges
as a direct and proximate result of Allgeyer Defendants conduct she suffered
damages including but not limited to emotional distress.

Therefore, the demurrer as to the third cause
of action is OVERRULED.

Fourth Cause of Action for Negligence

“To state a cause of action for negligence, a
plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2)
the defendant breached that duty, and (3) the breach proximately caused the
plaintiff's damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP
(2013) 221 Cal.App.4th 49, 62.)

Allgeyer
Defendants contend Dr. Allgeyer’s alleged failures fall squarely within the
definition of professional negligence making this cause of action improper.

In
opposition, Plaintiff argues there is no distinction between ordinary and
professional, as explicitly held by the California Supreme Court in Flowers
v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992.

Allgeyer
Defendants’ reply brief does not address the opposition on this point.

The
FAC alleges Defendants, and each of them, agreed to perform and undertook to
perform for Plaintiff all services necessary to Plaintiff’s care. (FAC ¶ 53.)
The FAC further alleges in so doing the Defendants, and each of them,
established a relationship with Plaintiff, giving rise to each Defendant’s duty
to exercise reasonable care. (Id.) The FAC further alleges Defendants
named herein and each of them, and DOES 1 through 50, inclusive, and each of
them, breached their duty to Plaintiff. (Id. at ¶ 54.) The FAC also
alleges Defendants negligently and carelessly cared for, treated and rendered
services upon the person and body of the Plaintiff and so negligently and
carelessly operated, managed, controlled and conducted their services,
activities and supervision in connection with Plaintiff's care and treatment,
and so negligently and carelessly failed to properly ensure the character,
quality, ability and competence of individuals treating patients that as a
direct and proximate result thereof Plaintiff was caused to and did suffer the
injuries herein alleged. (Id. at ¶ 55.) Lastly, the FAC alleges as
direct and legal result of the aforesaid negligence, carelessness and
unskillfulness of Defendants, and each of them, Plaintiff suffered severe
mental and emotional distress and anguish. (Id. at ¶ 56.)

The
Court finds that the FAC sufficiently states facts to support a cause of action
for negligence. Plaintiff alleges Allgeyer Defendants owed a her a duty of
reasonable care, breached that duty, and Allgeyer Defendants’ breach was the
direct and proximate result of her damages.

Therefore,
the demurrer as to the fourth cause of action is OVERRULED.

Sixth Cause of Action for Breach of Implied
Covenant of Good Faith and Fair Dealing

“The [implied] covenant of good faith and
fair dealing [is] implied by law in every contract. The covenant is read into
contracts and functions ‘as a supplement to the express contractual
covenants, to prevent a contracting party from engaging in conduct which (while
not technically transgressing the express covenants) frustrates the other
party's rights to the benefits of the contract.’” (Thrifty Payless, Inc. v. The
Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.) As such, “A breach
of the implied covenant of good faith is a breach of the contract.” (Id.)

“Establishing that claim requires a showing
of “(1) the existence of the contract, (2) plaintiff's performance or excuse
for nonperformance, (3) defendant's breach, and (4) the resulting damages to
the plaintiff.” (D’Arrigo Bros. of California v. United Farmworkers of
America (2014) 224 Cal.App.4th 790, 800.)

Allgeyer
Defendants contend Plaintiff’s
allegation that Dr. Allgeyer agreed to perform anesthesia services and
Defendants “breached their contractual obligation to, among other things,
perform, the surgery in a professional and dignified manner” does not remove
the facts from that of a MICRA-covered medical malpractice claim. Allgeyer
Defendants further argue Plaintiff does not and cannot plead a particular
result that was clearly promised or that she consented to treatment in reliance
on that promise. Moreover, Allgeyer Defendants argue Plaintiff fails to attach
any contract or describe in detail the contents of the contract that Plaintiff
alleges existed and upon which she based her cause of action for breach of the
covenant of good faith and fair dealing.

In opposition, Plaintiff argues a contract to
perform services gives rise to a duty of care requiring that such services be
performed in a competent and reasonable manner and negligent failure to do so
may be both a breach of contract and a tort. (Michaelis v. Benavides
(1998) 61 Cal.App.4th 681, 687–688.) Plaintiff also argues the Allgeyer
Defendants conspicuously fell short of performing their duties with care,
skill, reasonable expedience, and faithfulness by subjecting the Plaintiff to
ridicule and repeatedly misgendering her. Moreover, Plaintiff argues it
constitutes a breach of the contract and the implied covenant of good faith and
fair dealing.

In
reply, Allgeyer Defendants reiterate
the arguments set forth in the initial demurrer.

The FAC alleges on or about May 11,
2021 Plaintiff entered into a contract with Tsai Defendants for Plaintiff to
use her social media accounts to promote Dr. Tsai’s work by creating and
uploading a YouTube video of the procedure in exchange for 50 percent discount
on the removal and replacement fee. (FAC ¶ 66.) The FAC also alleges Dr. Tsai
would be permitted to use a before and after picture of Plaintiff in her bikini
top on his social media accounts and website. (Id.) The FAC also alleges
the parties agreed Plaintiff’s areolas would not be shown in any video footage
or pictures. (Id.) The FAC further alleges after this discount the
remaining fee was $11,900.00. (Id.) The FAC further alleges in
accordance with the terms of the agreement, Plaintiff underwent the surgery,
posed for photographs, paid the $11,900.00 fee, and allowed the video of the
surgery to be recorded. (Id. at ¶ 67.) The FAC alleges in connection
with the surgery, Plaintiff and Allgeyer Defendants and related staff agreed
that they perform anesthesia services on Plaintiff. (Id. at ¶ 68.)

Furthermore, the
FAC alleges Plaintiff performed substantially all of the significant things the
Agreement required her to do and to the extent Plaintiff did not perform, her
non-performance was excused by Tsai Defendants’ actions. (Id. at ¶ 70.)
The FAC then alleges the Agreement between the parties contains a covenant of
good faith and fair dealing implied by law. (Id. at ¶ 71.) Moreover, the
FAC alleges Defendants, each of them, breached their contractual obligation to
perform the surgery in a professional and dignified manner, respecting
Plaintiff’s body and emotional well-being. (Id. at ¶ 72.) Additionally,
the FAC alleges by virtue of the acts and omissions alleged above, Defendants
and each of them breached the covenant of good faith and fair dealing implicit
in the Agreement. (Id. at ¶ 73.) Finally, the FAC alleges as a proximate
and direct result of the acts and omissions by Tsai Defendants, she suffered
damages. (Id. at ¶ 74.)

The
Court finds that the FAC does not sufficiently state facts to support a cause
of action for breach of contract. Plaintiff does not allege Allgeyer Defendants
failed to put her under anesthesia during the surgery as purportedly agreed
upon.

Therefore, the demurrer as to the sixth cause
of action  is SUSTAINED without Leave to
Amend.

Seventh Cause of Action for Breach of Duty to
Perform with Reasonable Care

Allgeyer
Defendants contend this cause of action is also based on breach of contract.
Furthermore, Allgeyer Defendants reiterates Plaintiff’s allegation that Dr. Allgeyer agreed to perform anesthesia
services and Defendants “breached their contractual obligation to, among other
things, perform, the surgery in a professional and dignified manner” does not
remove the facts from that of a MICRA-covered medical malpractice claim.
Moreover, Allgeyer Defendants argue Plaintiff does not and cannot plead
that Plaintiff and Dr. Allgeyer entered into a contract, Plaintiff did all or
substantially of the things the contract required of Plaintiff, that Defendant
failed to use reasonable care, and Plaintiff was harmed by said conduct.
Finally, Allgeyer Defendants assert Plaintiff fails to attach any contract or
describe in detail the contents of the contract that Plaintiff alleges existed
and upon which she based her cause of action for breach of duty to perform with
reasonable care.

Plaintiff’s
opposition as noted by the reply brief does not contest this issue.
Furthermore, the FAC alleges the same facts as asserted in the sixth cause of
action for the seventh cause of action.

Therefore, the demurrer as to the seventh
cause of action is SUSTAINED without Leave to Amend.

Ninth Cause of Action for Violation of
California Unruh Civil Rights Act (Civil Code §§ 51 & 51.5)

“No business establishment of any kind
whatsoever shall discriminate against, boycott or blacklist, or refuse to buy
from, contract with, sell to, or trade with any person in this state on account
of any characteristic listed or defined in subdivision (b) or (e) of Section
51, or of the person’s partners, members, stockholders, directors, officers,
managers, superintendents, agents, employees, business associates, suppliers,
or customers, because the person is perceived to have one or more of those
characteristics, or because the person is associated with a person who has, or
is perceived to have, any of those characteristics.” (Civ. Code §§ 51, 51.5,
subd. (a).)

To establish a claim under the California Unruh
Act, plaintiff must prove “(i) defendant denied plaintiff full and equal
accommodations, advantages, facilities, privileges, or services; (ii) that a
substantial motivating reason for defendant's conduct was plaintiff's
membership in a protected class; (iii) that plaintiff was harmed; and (iv) that
defendant's conduct was a substantial factor in causing plaintiff's harm.” (Nia
v. Bank of America, N.A. (2022) 603 F.Supp.3d 894, 906.)

Allgeyer
Defendants contend Plaintiff
alleges no facts supporting the requisite elements to pursue a cause of action
for violation of the California Unruh Act. Further, Allgeyer Defendants assert
Plaintiff vaguely states “Defendant intentionally discriminated against
Plaintiff solely on the basis of her gender expression…by their conduct,
Defendants caused Plaintiff to sustain damages.” (FAC ¶¶ 95-96). Allgeyer
Defendants also argue the FAC is so void of facts that they are entirely
uncertain as to what conduct by Dr. Allgeyer is at issue here. Lastly, Allgeyer
Defendants contend statutory causes of action must be pled with particularity.

In opposition, Plaintiff advances the same
arguments set forth as to the first cause of action.

In reply, Allgeyer Defendants argue as to the claim for violation of the
Unruh Act, the Code of Civil Procedure requires Plaintiff prove that
“Defendant denied full and equal accommodations/privileges to Plaintiff.”
Allgeyer Defendants contend Plaintiff does not plead any facts supporting this
essential element.

The FAC alleges Defendants intentionally
discriminated against Plaintiff solely on the basis of her gender expression,
as proscribed by the Unruh Civil Rights Act, codified in Civil Code Section 51
et seq. (FAC ¶ 95.) The FAC further alleges Defendants’ conduct caused
Plaintiff to sustain damages. (Id. at ¶ 96.) Lastly, the FAC alleges
Defendants’ discrimination renders them liable to Plaintiff  under Civil Code Section 52, subdivision (a).
(Id. at ¶ 97.)

The Court finds that the FAC does not
sufficiently allege facts to support a cause of action under the California
Unruh Act. Plaintiff does not allege Allgeyer Defendants denied her full and
equal accommodations, advantages, facilities, privileges, or services.
Plaintiff also does not allege that a substantial motivating reason for Allgeyer
Defendants’ conduct was Plaintiff’s membership in a protected class.

Therefore, the demurrer as to the ninth cause
of action is SUSTAINED without Leave to Amend.

Motion to Strike

“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, but this time limitation shall not apply to motions
specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(1).)

“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.” (Code Civ. Proc., § 436, subd. (a).)

            Here,
Allgeyer Defendants move to strike the following portions of Plaintiff’s FAC: “Wherefore,
Plaintiff prays for judgment against Defendants, and each of them, as follows:…
c. For punitive damages in an amount to be determined at trial.”

            Allgeyer
Defendants argue Plaintiff improperly seeks to recover punitive damages arising
out of medical negligence by a health care provider. Specifically, Allgeyer
Defendants contend no claim for punitive damages can be included in a complaint
or other pleading for any action for damages arising out of the professional
negligence of a healthcare provider unless the court enters an order permitting
an amended pleading to include the claim to be filed under Code of Civil
Procedure Section 425.13, subdivision (a). Allgeyer Defendants contend
Plaintiff’s cause of action arise out of events that relate to the medical
services rendered by Plaintiff by Dr. Allgeyer as an anesthesiologist pursuant
to his professional medical license. Finally, Allgeyer Defendants argue Plaintiff has not brought a motion to
amend the complaint to plead punitive damages, nor has she made a showing of
substantial probability that she will prevail on a claim for punitive damages.

To state a claim for punitive damages under
Civil Code section 3294, a plaintiff must allege specific facts showing that
the¿defendant has been guilty of malice, oppression or fraud. (Smith v.
Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive
damages must be pled with specificity; conclusory allegations devoid of any
factual assertions are insufficient. Id. A motion to strike may lie
where the facts alleged, if proven, would not support a finding that the
defendant acted with malice, fraud or oppression. (Turman v. Turning Point
of Central California (2010) 191 Cal. App. 4th 53, 63.) 

“Malice” is defined in section 3294(c)(1) as
“conduct which is intended by the defendant to cause injury” or “despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.” “Oppression” is defined in
section 3294(c)(2) as “despicable conduct subjecting a person to cruel and
unjust hardship in conscious disregard of that person’s rights.” The term
“despicable” has been defined in the case law as actions that are “base,”
“vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales
& Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)¿¿“Fraud” is
defined in section 3294(c)(3) as “an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the intention on the
part of the defendant of thereby depriving a person of property or legal rights
or otherwise causing injury.” 

To prove that a defendant acted with “willful
and conscious disregard of the rights or safety of others,” it is not enough to
prove negligence, gross negligence or even recklessness. (Dawes v. Superior
Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege
facts demonstrating that “the defendant acted in such an outrageous and
reprehensible manner that the jury could infer that he [or she] knowingly
disregarded the substantial certainty of injury to others.” (Id. at 90). Further,
the allegations must be sufficient for a reasonable jury to conclude that
Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College
Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)

In opposition, Plaintiff argues her
allegations detailed in paragraphs 18, 31, 32, and 33, support her request for
punitive damages. Furthermore, Plaintiff contends these allegations vividly
portray her deeply distressing experience of hearing the derogatory comments
including the act of mocking and intentionally misgendering Plaintiff during a
vulnerable period, as she underwent gender transition surgery. Moreover,
Plaintiff argues her claims of sexual harassment and discrimination are not
inherently connected to the provision of professional services, rendering the
Code of Civil Procedure Section 425.13 inapplicable.

In
reply, Tsai Defendants advance the same arguments set forth in the motion.

The
Court finds that the FAC sufficiently pleads facts to support Plaintiff’s
prayer for punitive damages. The FAC alleges Defendants made comments recorded
on video about Plaintiff’s gender expression while Plaintiff was undergoing
breast implant removal/replacement and areola reduction surgery. (FAC ¶¶
30-33.) A  reasonable jury could conclude
that Defendants’ conduct was base, vile, or contemptible given the context they
were said in and the person who the comments were made about, in this instance,
a transgender woman. Nonetheless, the causes of action are based on Allgeyer Defendants’ alleged
professional negligence as a healthcare provider and required Plaintiff to seek
leave to amend to add punitive damages.

Therefore,
the motion to strike is GRANTED with 20 days Leave to Amend.

            Moving
party is ordered to give notice of ruling.