Judge: Mel Red Recana, Case: 22STCV13383, Date: 2024-11-12 Tentative Ruling
Case Number: 22STCV13383 Hearing Date: November 12, 2024 Dept: 45
Hearing
date: November
12, 2024
Moving
Party: Defendant
Advanced Dermatology Surgical & Medical Group, Inc.
Responding
Party: Plaintiff
Ernestina Aguila
Demurrer
to Second Amended Complaint
·
1st
Cause of Action: Civ. Code § 51.9 Statutory Sexual Harassment in Defined
Relationship
·
2nd
Cause of Action: Civ. Code § 1708.5 Statutory Sexual Battery
·
4th
Cause of Action: Civ. Code § 51 Statutory Violation of Civil Rights
·
5th
Cause of Action: Intentional Infliction of Emotional Distress
·
6th
Cause of Action: Negligent Infliction of Emotional Distress
The Court
considered the moving papers, opposition, and reply.
The demurrer is overruled as to each
challenged cause of action.
Background
Plaintiff
Ernestina Aguila (“Plaintiff”) filed this action on April 21, 2022. Plaintiff
filed a First Amended Complaint (FAC), and a Second Amended Complaint (SAC) against
defendants David Opai-Tetteh, M.D. (“Opai-Tetteh”) and Advanced Dermatology
Surgical & Medical Group, Inc. (“Advanced Dermatology”) , and together with
Dr. Opai-Tetteh “Defendants”), alleging causes of action for (1) Civ. Code §
51.9 statutory sexual harassment in defined relationships, (2) Civ. Code §
1708.5 statutory sexual battery, (3) Civ. Code § 52.4 statutory gender violence,
(4) Civ. Code § 51 statutory violation of civil rights, (5) intentional
infliction of emotional distress, (6) negligent infliction of emotional
distress, (7) negligent hiring/ retention/ supervision, and (8) fraudulent
misrepresentation.
In
the SAC, Plaintiff alleges as follows: Defendants were Plaintiff’s medical
physicians and treated Plaintiff on several occasions for skin concerns on her
face, neck, and arms until about January 2021. (SAC, ¶ 16.) While removing a
cyst from her face, Defendant Opai-Tetteh groped Plaintiff’s breasts. (Id.,
¶ 18.) When Plaintiff confronted Defendant Opai-Tetteh, he laughed and changed
the subject. (Id., ¶ 19, 21.) Defendant Advanced Dermatology allegedly ratified
Defendant Opai-Tetteh’s conduct by continuing his employment without imposing
discipline, and without interviewing anyone after learning of Plaintiff’s
sexual assault allegations. (Id., ¶¶ 23, 24.)
Defendant
Advanced Dermatology filed a demurrer and motion to strike portions of
Plaintiff’s SAC on January 23, 2024.
Plaintiff filed
an opposition on October 29, 2024.
Defendant Advanced
Dermatology filed a reply on November 4, 2024. The hearing is scheduled for
November 12, 2024.
Procedural Matters
Meet and Confer
Code Civ. Proc.
§ 430.41(a) requires that the demurring party meet and confer with the party
who filed the pleading that is subject to the demurrer at least 5 days before
the date the responsive pleading is due for the purpose of determining if the
parties can resolve the objections to be raised in the demurrer. (Code Civ.
Proc., § 430.41.) The demurring party must file and serve a declaration
detailing their meet and confer efforts.
Code Civ. Proc.
435.5, mandates a meet and confer process. The moving party, before filing a
motion to strike, must meet and confer with the party who filed the pleading
that is subject to the motion to strike to determine if the parties can resolve
the objections to be raised in the motion to strike. The meeting may be in
person or by telephone or video conference. (Code Civ. Proc. 435(a).)
During the meet
and confer process, the moving party must identify all of the specific causes
of action that it believes are subject to being stricken and identify with
legal support the basis of the deficiencies. The party who filed the pleading
must provide legal support for its position that the pleading is legally
sufficient or, in the alternative, how the subject pleading could be amended to
cure any legal insufficiency. (Code Civ. Proc. 435.5(a).)
Any
determination by the court that the meet and confer process was insufficient is
not grounds to grant or deny the motion. (Code Civ. Proc. 435.5(a)(4).)
As an initial
matter, the Court notes that on review of the declaration of Simon T. Sverdlov,
Defendant Advanced Dermatology’s meet-and-confer efforts were sufficient, as
Code of Civil Procedure section 430.41, subdivision (a), and section 435.5,
subdivision (a), require meeting and conferring “in person or by telephone.” On
January 10, 2024, Defense counsel discussed the merits of the demurrer and
motion to strike punitive damages with Plaintiff Ernestina Aguila’s counsel,
Matthew Gutierrez, by telephone, and were unable to reach an agreement. (Declaration
of Sverdlov, ¶¶ 3, 4.)
In opposition to
the demurrer, counsel for Plaintiff declares that Defendant’s counsel did not
meet and confer regarding a demurrer to the negligence claim in anticipation of
filing this demurrer to the second amended complaint. (Demurrer Opposition,
Declaration of Matthew Gutierrez, ¶ 3.)
In supporting the opposition, counsel for
Plaintiff, Matthew Gutierrez, Esq., declares that Defendant’s counsel did not
meet and confer prior to filing the motion to strike the prayer for injunctive
relief sought in the SAC. (Motion to Strike Opposition Declaration of Matthew
Gutierrez, ¶ 3.)
In reply,
Defendant Advanced Dermatology maintains that the parties met and conferred as
to the sixth cause of action, as stated in the Declaration of Simon Sverdlov.
(Reply, p. 4:4-6.)
Accordingly,
Defendant Advanced Dermatology has sufficiently fulfilled the meet and confer
requirements as to the demurrer. Even if the parties meet and confer efforts as
to the motion to strike are deemed insufficient, the Court exercised its
discretion to consider the motion to strike on its merits. (Code Civ. Proc. 435
(a)(4).)
Legal
Standard
When considering
demurrers, courts read the allegations liberally and in context. (Taylor v.
City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216,
1228.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984)
153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740,
747.)
Discussion
Advanced Dermatology Surgical &
Medical Group, Inc.’s Demurrer
Defendant
Advanced Dermatology Surgical & Medical Group Inc. (“Defendant”) asserts
that the First, Second, Fourth, Fifth, and Sixth causes of action alleged in
Plaintiff’s SAC are not sufficiently alleged. (CCP §§ 430.10(e).)
Ratification
as to the First Cause of Action for Statutory Sexual Harassment in Defined
Relationships (Civ. Code §51.9), Second Cause of Action for Statutory Sexual Battery
(Civ. Code § 1708.5), Fifth Cause of Action for Intentional Infliction of
Emotional Distress, and Sixth Cause of Action for Negligent Infliction of
Emotional Distress are sufficiently plead.
First Cause of
Action for Statutory Sexual Harassment in Defined Relationship
The issue is whether Plaintiff has alleged sufficient facts to sustain
a cause of action for violation of Cal. Civ. Code Section 51.9 against
Defendant Advanced Dermatology under a ratification theory of liability.
Under California Civil Code
Section 51.9, a person is liable for sexual harassment when plaintiff proves
(1) there is a “business, service, or professional relationship between the
plaintiff and defendant…”, (2) the defendant makes sexual advances,
solicitations, sexual requests, demands for sexual compliance by the plaintiff,
or engages in physical conduct of a sexual nature that were unwelcomed and
pervasive or severe, and (3) the plaintiff has suffered economic loss or
disadvantage or personal injury such as emotional distress. (Cal.
Civ. Code § 51.9.)
The business, service, or professional relationship may exist between
the plaintiff and a person including, but not limited to, physician,
psychotherapist, dentist, attorney, social worker, real estate agent, real
estate appraiser, investor, accountant, banker, trust officer, financial
planner loan officer, collection service, contractor, escrow loan officer,
executor, trustee, administrator, landlord, property manager, teacher, elected
official, lobbyist, director, or producer, or in a “relationship that is a
substantially similar to any of the above.” (Civ. Code, § 51.9, subd. (a)(1).) “It
is clear that each of the enumerated examples consists of a relationship where
an inherent power imbalance such that, by virtue of his or her ‘business,
service, or professional’ position, one party is uniquely situated to exercise
coercion or leverage over the other.” (Judd v. Weinstein¿(9th Cir. 2020)
967 F.3d 952, 957.) “For example, teachers can exercise coercive power over
their students because they control their students’ grades. Similarly,
landlords can exercise coercive power over their tenants because they control
access to the tenant’s security depositions, and at least to some extent,
access to the premises.” (Ibid.) And a highly influential top producer
is “uniquely situated to exercise coercive power or leverage” over a young
actor at the beginning of her career. (Ibid.) ¿“[E]ach inquiry into
whether a particular relationship falls within the scope of section 51.9 must
be informed by the specific facts of that case.” (Id.¿at p. 958.)¿
Defendant Advanced Dermatology demurs to the first cause of action on
the grounds that Plaintiff’s allegation that Defendant Advanced Dermatology
ratified Defendant Opai-Tetteh’s sexual harassment (SAC, ¶ 35) is
insufficiently pled. (Demurrer, p. 5:21-6:2.) Specifically, Defendant Advanced
Dermatology argues that Plaintiff has not sufficiently stated that Defendants
Advanced Dermatology had sufficient knowledge of Defendant Opai-Tetteh’s
conduct at the time the alleged sexual advances occurred to constitute
ratification because the Medical Board Accusation Plaintiff relies on was published
eight months following the filing of this action (C.R. v. Tenent Healthcare Corp. (2009) 169 Cal. App.4 1094, 1111). Defendant also
argues that Plaintiff’s ratification theory fails because Plaintiff has failed
to identify a corporate officer, director, or managing agent who ratified the
conduct of Defendant Opai-Tetteh. Finally, Defendant Advanced Dermatology
maintains that Plaintiff has failed to meet the particularity pleading standard
for statutory causes of action. (Covenant
Care Inc. v. Superior Court (2004)
32 Cal. 4th 771, 790 citing Lopez
v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal. 3d 780, 795.)
In opposition, Plaintiff argues that she has alleged sufficient
ratification conduct by Defendant Advanced Dermatology in paragraphs 5, 15, 16,
and 29-35 of the SAC, where Plaintiff alleges that Defendant Advanced
Dermatology continued Defendant Opai-Tetteh’s conduct by continuing his
employment without imposing discipline. (Opposition, pp. 3:12-4:25, citing Civ.
Code § 3294.) Additionally, Plaintiff argues that the sexual assault
allegations of Dr. Opai-Tetteh touching Plaintiff’s breasts are not directly
related to Dr. Opai-Tetteh’s surgical removal of the cysts from Plaintiff’s
face. (Opposition, p. 1:24-2:28, citing Cooper v. Super Ct., (1997) 56
Cal. App 4th 744, 748.)
Here, Plaintiff alleges there was a
professional relationship between herself and Defendants because Defendants
were Plaintiff’s medical physicians and treated Plaintiff. (SAC, ¶¶ 16, 29.) Plaintiff alleges that at
all relevant times, Defendant Opai-Tetteh acted as a duly authorized agent
and/or employee of Defendant Advanced Dermatology, and subject to the full
control and authority of Defendant Advanced Dermatology pursuant to the
Employment Agreement, dated August 16, 2016, by which Defendant Opai-Tetteh was
required to report to President, Frederic Rosenberg, M.D. (Id., at ¶¶ 15, 34.) Plaintiff alleges she was caught off
guard, as she had her eyes closed during a minor outpatient surgery to dig out
a cancerous mole on her face, Defendant Opai-Tetteh was patting and groping her
breasts. (Id., at ¶¶ 17-18.) Plaintiff alleges that Defendant
Opai-Tetteh made sexual advances to Plaintiff, engaged in verbal/physical
conduct of a sexual nature based on gender, and such conduct was unwelcome and
also pervasive or severe. (Id., at ¶¶ 30-33.) Plaintiff also alleges that
Defendant Opai-Tetteh carried out such actions as an employee, agent, and/or
representative of Defendant Advanced Dermatology, which provides medical
treatment to the public, and Defendant Advanced Dermatology ratified his
conduct by continuing his employment without imposing discipline, this
rendering Defendant Advanced Dermatology liable and vicariously liable for
Defendant Opai-Tetteh’s conduct. (Id., ¶ 35.) Plaintiff alleges that she suffered severe
emotional distress, injury to her person, emotional anguish, fear, anguish
fear, anxiety, humiliation, embarrassment, and other physical and emotional
injuries, and damages (both economic and noneconomic), in the past, present and
future. (Id., at ¶ 36.)
As an alternative to respondeat superior,
an employee may be liable for an employee's act where the employer subsequently
ratifies the originally unauthorized tort. The failure to investigate or
respond to charges that an employee has committed an intentional tort or the
failure to discharge the employee may be evidence of ratification. Generally,
ratification is a question of fact. (Samantha B. v. Aurora Vista Del Mar,
LLC, 77 Cal. App. 5th 85, 90.).
In the SAC, Plaintiff presents the
December 8, 2022 Accusation before the Medical Board of California, in which
Dr. Opai-Tetteh was alleged to have “touched areas where treatment was not
being performed” on Patient 1 on March 19, 2020 (SAC, Exhibit A, ¶ 23), and “inappropriately
touched her breast” during a biopsy on the forearm of Patient 3 on April 6,
2020 (Id., at ¶ 36.) Defendant Advanced Dermatology argues that they
cannot be liable under this theory because they were not on notice of the
charges until their December 8, 2022 publication, and Plaintiff’s claim that
Defendant Advanced Dermatology “eventually” became aware of Plaintiff's
allegations are insufficient for a claim of ratification. (Demurrer, p.
6:19-22.) Whether Defendant had notice and a duty to investigate these charged accusations
prior to Plaintiff's filing of the instant action is a question for fact that
is inappropriate at this stage of pleadings.
For the purposes of this demurrer,
Plaintiff has sufficiently plead a cause of action for under Civ. Code § 51.9. Plaintiff
has sufficiently set forth a professional relationship between herself and
Defendants as her medical providers, a profession listed in the statute.
Plaintiff also alleged that Defendant Advanced Dermatology’s employee made
unwanted sexual advances, and proximate damages incurred therefrom.
Second Cause of Action for Statutory Sexual Battery
The second cause
of action alleges sexual battery. A person commits a sexual battery when they
act with the intent to cause a harmful or offensive contact with an intimate
part of another, and a sexually offensive contact with that person directly or
indirectly results. (Civ. Code, § 1708.5, subd. (a)(1).)
Defendant Advanced
Dermatology argues that there are no allegations as to how Defendant Advanced
Dermatology authorized or ratified the conduct of Defendant Opai-Tetteh.
(Demurrer, pp. 8:9-12.) In the SAC, Plaintiff alleges that Defendant
Opai-Tetteh “acted with the intent to cause a harmful or offensive contact with
an intimate part of Plaintiff, and a sexually offensive contact with Plaintiff
resulted.” (SAC, ¶ 41.) Dr. Opai-Tetteh’s conduct “offended both Plaintiff and
a reasonable person’s sense of personal dignity.” (Id., at ¶ 42.) Defendant
Opai-Tetteh carried out these actions as an employee of Defendant Advanced
Dermatology, and Defendant Advanced Dermatology ratified his actions by
continuing his employment without imposing discipline, rendering Defendant
Advanced Dermatology liable or vicariously liable for Defendant Opai-Tetteh’s
conduct. (Id., at ¶ 46.)
Fifth
Cause of Action for Intentional Infliction of Emotional Distress
The elements of a prima facie case for the
tort of intentional infliction of emotional distress are: (1) extreme and
outrageous conduct by the defendant with the intention of causing, or reckless
disregard of the probability of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s outrageous
conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of
that usually tolerated in a civilized community.” (Wilson v. Hynek
(2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
Plaintiff alleges that Defendant Opai-Tetteh
breached his reasonably duty of care to Plaintiff by touching Plaintiff’s
breasts, causing Plaintiff to suffer severe emotional distress. (SAC, ¶¶ 83-85.)
Plaintiff further alleges that as a result of Defendant Opai-Tetteh’s conduct,
“Plaintiff sustained severe emotional distress, injury to her person, emotional
anguish fear, anxiety, humiliation, embarrassment, and other physical and
emotional injuries, and damages (both economic and noneconomic), in the past, present
and future, for which this claim is made” (Id., at ¶ 89.) Lastly, Plaintiff
alleges that “Defendant’s conduct … was despicable and was committed
maliciously, fraudulently, and/or oppressively with the wrongful intention of
injuring Plaintiff and with a willful and conscious disregard of her rights,
justifying an award of punitive damages.” (Id., at 90.)
Defendant Advanced Dermatology demurs as
to the fifth cause of action on the grounds that Plaintiff has failed to plead
any facts showing that the corporate entity had any knowledge of its employee’s
conduct at the time the conduct occurred. (Demurrer, p. 11:3-15.)
Sixth
Cause of Action for Negligent Infliction of Emotional Distress
The
court notes that for the same reason raised against the fifth cause of action
for intentional infliction of emotional distress, Defendant challenges the
sixth cause of action for negligent infliction of emotional distress.
(Demurrer, p. 11:15-17.)
“The law of negligent infliction of
emotional distress in California is typically analyzed by reference to two
theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.
The negligent 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. Whether a defendant owes a duty of care is a
question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th
208, 213, ellipses, quotation marks, brackets, and paragraph breaks
omitted.)
Plaintiff
alleges that Defendant Opai-Tetteh owed a reasonable duty not to touch
Plaintiff’s breasts, and breached that reasonably duty, causing Plaintiff to
suffer serious emotional distress. (SAC, ¶¶ 83-85.)
Accordingly, Plaintiff has
sufficiently plead the required elements to state a cause of action for
negligent infliction of emotional distress.
Ratification
Allegation
While the allegations of corporate
authorization/ratification are set forth in conclusory terms in the first,
second, fifth, and sixth causes of action, it is a general canon of pleading
that less specificity is required where the facts lie more in the knowledge of
the defendant. (Committee On Children's Television, Inc. v. General
Foods Corp. (1983) 35 Cal.3d 197, 217.)
In each of the challenged causes of
action, Plaintiff alleges that “Defendant Opai-Tetteh carried out such actions
and conduct as an employee, agent, and/or representative of Defendant Advanced
Dermatology, which provides medical treatment to the public. Defendant Advanced
Dermatology ratified the foregoing conduct of Defendant Opai-Tetteh by
continuing his employment and without imposition of discipline. Accordingly, Defendant
Advanced Dermatology is liable and vicariously liable for OPAI-TETTEH’s conduct.”
(SAC, ¶¶ 35, 46, 68, 78, 88.) As to how Defendant Advanced Dermatology had
sufficient knowledge to ratify, or which corporate officer, director, or agent
had knowledge of Defendant Opai-Tetteh’s conduct prior to the publication of
the December 2022 Accusation, Defendant Advanced Dermatology would have more
control over the surrounding facts than Plaintiff. Pleading in the language of
the statute is not objectionable when sufficient facts are alleged. (See Perkins
v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) In each cause of
action, Plaintiff has sufficiently pled the conduct of Defendant Advanced
Dermatology’s employee, Defendant Opai-Tetteh, during the course of Plaintiff’s
surgical treatment.
Accordingly, Plaintiff’s allegations are
sufficient at the pleading stage to support the first cause of action under
Civ. Code § 51.9, the second cause of action under Civ. Code § 1708.5, the
fifth cause of action for intentional infliction of emotional distress, and the
sixth cause of action for negligent infliction of emotional distress. Defendant’s
demurrer as to the first, second and fifth causes of action are OVERRULED.
Fourth Cause of Action for
Statutory Violation of Civil Rights (Civ. Code § 51) is sufficiently pled
The Unruh Civil Rights Act provides: “All
persons within the jurisdiction of this state are free and equal, and no matter
what their sex, race, color, religion, ancestry, national origin, disability,
medical condition, genetic information, marital status, sexual orientation,
citizenship, primary language, or immigration status are entitled to the full
and equal accommodations, advantages, facilities, privileges, or services in
all business establishments of every kind whatsoever.” (Civ. Code, §¿51,
subd. (b).)
The essential factual elements of a cause
of action for the violation of the Unruh Act are: (1) defendant denied, aided
or incited a denial of, discriminated or made a distinction that denied full
and equal accommodations, advantages, facilities, privileges, or services to
plaintiff; (2) that a motivating reason for defendant's conduct was its
perception of plaintiff's sex, race, color, religion, ancestry, national
origin, disability, medical condition, or other actionable characteristic; (3)
that plaintiff was harmed; and (4) that defendant's conduct was a substantial
factor in causing plaintiff's harm. (CACI 3020; See also Belton v. Comcast
Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1238 [intentional
discrimination required, and not an adverse impact].)
Plaintiff alleges that Defendant Advanced
Dermatology “negligently denied, or aided in the denial, the rights of
Plaintiff to the equal accommodations, advantages, facilities, privileges, or
services that men receive for medical care at the business establishment of
Advanced Dermatology without being touched on their intimate parts without
their consent, by its agent Defendant Opai-Tetteh.” (SAC, ¶ 63.) Plaintiff
further alleges that “a substantial motivating reason for Defendants’ conduct
was Plaintiff’s sex as a female”. (Id., at ¶ 64.) Plaintiff alleges that
she was harmed, and that Defendants’ conduct was a substantial factor in
causing her harm. (Id., at ¶¶ 65, 66.)
Defendant Advanced Dermatology contends
that the SAC lacks any showing of how Defendant Advanced Dermatology
discriminates between genders, class, or persons. (Demurrer, p. 10:2-6.) Defendant
Advanced Dermatology argues Plaintiff is speculating that Defendant
discriminates against all women because they receive non-consensual touching,
something unavailable to men. (Id., p. 10:3-6.)
Defendant
Advanced Dermatology does not cite any legal authority requiring specificity or
a heightened standard in pleading a cause of action under the Unruh Civil
Rights Act. Whether there is factual support and what Defendant Opai
Tetteh actually intended when he touched Plaintiff’s breasts are issues for
discovery and ultimately summary judgment or trial. Plaintiff has
adequately alleged that Defendant intentionally denied her accommodations due
to her sex.
Accordingly, the demurrer as to the fourth
cause of action is OVERRULED.
Therefore, Defendant Advanced
Dermatology Surgical & Medical Group Inc.’s demurrer as to the first,
second, third, fifth, and sixth causes of action are overruled.
Advanced
Dermatology Surgical & Medical Group, Inc.’s Motion to Strike
Defendant Advanced Dermatology moves to
strike paragraphs 8, 13, 49:5on the grounds that the additional causes of
action have been improperly pleaded. (Motion to Strike, p. 2:10-27.)
A court may, upon a motion or at any time
in its discretion: (1) strike out any irrelevant, false, or improper matter
inserted in any pleading; or (2) strike out all or any part of any pleading not
drawn or filed in conformity with the laws of California, a court rule, or an
order of the court. (Code Civ. Proc., § 436, subds. (a)-(b).)
Defendant seeks to strike paragraphs 37,
38:28, 56, 57, 70, 71:24, 80, 81, 90, 99, 100:23 of the SAC, and paragraphs 3
and 4 of the SAC’s Prayer.
Punitive damages may be recovered upon a
proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).)
“Malice” is defined as conduct intended to cause injury to a person or
despicable conduct carried on with a willful and conscious disregard for the
rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc.
(2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct
subjecting a person to cruel and unjust hardship, in conscious disregard of the
person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation,
deceit, or concealment of a material fact known by defendant, with intent to
deprive a person of property, rights or otherwise cause injury. (Ibid.)
Conclusory allegations, devoid of any factual assertions, are insufficient to
support a conclusion that parties acted with oppression, fraud, or malice. (Smith
v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)
For the statutory sexual harassment in defined
relationships cause of action, Plaintiff alleges that Defendant Advanced
Dermatology “ratified the foregoing conduct of Defendant Opai-Tetteh by
continuing his employment and without imposition of discipline. Accordingly, Defendant
Advanced Dermatology is liable and vicariously liable for Defendant Opai-Tetteh’s
conduct.” (SAC, ¶ 35.) Defendant Advanced Dermatology acknowledges that
Plaintiff has not brought the statutory gender violence cause of action against
it, and states that the motion to strike paragraphs 56 and 57 is requested as a
prophylactic measure due to Plaintiff’s incorporation of all preceding language
in later stated causes of action. (Motion to Strike, ¶ 7.) For the statutory
violation of civil rights cause of action, Plaintiff alleges that Defendants’ “negligently
denied, or aided in the denial, the rights of Plaintiff to the equal
accommodations, advantages, facilities, privileges, or services that men
receive for medical care at the business establishment of Defendant Advanced
Dermatology without being touched on their intimate parts without their
consent, by its agent Defendant Opai-Tetteh.” (SAC, ¶ 63.) For the intentional
infliction of emotional distress cause of action, Plaintiff alleges that
Defendant Advanced Dermatology ratified Defendant Opai-Tetteh’s outrageous
conduct by continuing his employment without the imposition of discipline.
(SAC, ¶¶ 73, 78.) These facts, if proven, would support a finding of oppression
or malice. As to each of the claims, Plaintiff alleges that Defendant
Advanced Dermatology’s liability is based on vicarious liability due to
ratifying Defendant Opai-Tetteh’s conduct.
A corporate employer can be liable for
punitive damages only when an officer, director, or managing agent of the
corporation had advance knowledge of the unfitness of the employee and employed
him or her with a conscious disregard of the rights or safety of others,
authorized or ratified the wrongful conduct, or was personally guilty of
oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).)
Plaintiff does not allege facts showing Defendant Advanced Dermatology’s
knowledge of unfit agents or her authorization or ratification of the wrongful
conduct.
The motion to strike is GRANTED with 30
days’ leave to amend.
Moving party to give notice.
It
is so ordered.
Dated: November 12, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court