Judge Michael Shultz, Case 22CMCV00347 2023-01-10 Tentative Ruling

The complaint, filed on October 6, 2022, alleges that Defendant and its employees vaccinated Plaintiff’s minor daughter against COVID-19 without Plaintiff’s permission. The complaint alleges claims for negligence and interference with Plaintiff’s parental rights causing Plaintiff emotional distress as the vaccinations are against Plaintiff’s religious beliefs and Defendant did not obtain Plaintiff’s consent.

Defendant demurs to all claims for failure to state a cause of action. Defendant is a medical provider who does not owe a duty to Plaintiff as she is not a patient, and a special relationship does not exist between Plaintiff and Defendant from which a duty arose. Plaintiff cannot assert a claim for negligent infliction of emotional distress, as she was not a bystander witness to an event that caused emotional distress, nor is she a direct victim of Defendant.

Plaintiff cannot rely on Family Code § 6920 to support a claim for negligence per se, as the statute does not protect parents, rather it protects minors from their own improvidence. Finally, California does not recognize a claim for interference with parental rights against non-parents except for situations involving abduction or enticement.

Plaintiff argues that Defendant owes Plaintiff a duty of care to seek her consent before providing medical care to Plaintiff’s daughter. Therefore, Plaintiff is a “direct victim” of Defendant’s negligence. While Plaintiff’s claim for interference with parental rights under the Family Code may be novel, it is not a bar to recovery. Because section 6920 imposes a statutory duty on Defendant which is owed to Plaintiff as a parent, Plaintiff need not allege the existence of a special relationship.

Negligence per se is not a cause of action. It is an evidentiary doctrine that permits the presumption of negligence. This is irrelevant to the duty of care analysis. Because Defendant breached its duty to Plaintiff imposed by the Family Code, Plaintiff is a direct victim who can recover for emotional distress. The court should recognize a new tort by deciding that Defendant’s conduct interfered with Plaintiff’s parental rights.

Defendant argues that it does not owe a duty to Plaintiff as a nonpatient, since Plaintiff’s claim arises from emotional distress derived solely from a reaction to another’s injury. Parental consent is required for treatment of a minor to ensure the minor’s interests are protected, not to protect the parents’ religious and non-scientific beliefs.

To recover as a direct victim of Defendant’s alleged negligence, an injury to the patient must have been foreseeable. Plaintiff does not allege foreseeable injury to the patient. Plaintiff’s daughter, who was the patient, is not a part of this action and does not allege any injury.

Regardless of whether negligence per se is a cause of action or evidentiary doctrine, it cannot be predicated for violation of Section 6920 since Plaintiff is not within the class of persons for whose protection the statute was adopted. Plaintiff concedes that no cause of action exists for interference with parental rights absent abduction or enticement.

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706. The court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The court may not consider contentions, deductions, or conclusions of fact or law. Moore v. Conliffe (1994) 7 Cal.4th 634, 638.

Plaintiff must allege facts sufficient to establish every element of each cause of action. Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43. Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126. The Plaintiff is required to allege facts "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644. Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.

A demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10 subd. (f).

A negligence claim requires factual allegations showing that defendant owed plaintiff a duty of care, breach of that duty, causation, and damages. Merrill v. Navegar, Inc. (2001) 26 Cal.4^th 465, 477. Plaintiff must allege facts supporting the contention that Defendant owed a legal duty. Jones v. Grewe (1987) 189 Cal. App. 3d 950, 954. The absence of these allegations renders a complaint fatally defective and is properly challenged by demurrer. Id.; Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103. The existence and the scope of a duty of care in a given factual situation are issues of law for the court.

Plaintiff alleges that Defendant, as medical providers, owed her a duty of care. Complaint ¶ 19. Plaintiff alleges that by administering vaccines to Plaintiff’s daughter, Plaintiff suffered anguish, fright, nervousness, anxiety, worry, shock, humiliation, and shame. Complaint ¶ 21. Negligent causing of emotional distress is not an independent tort, but the tort of negligence. Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072. There are two theories under which a plaintiff may recover: (1) as a bystander or (2) as a direct victim. Id. In “bystander cases,” the question of duty is analyzed in “circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.” (Christensen, supra, 54 Cal.3d at p. 884, 2 Cal.Rptr.2d 79, 820 P.2d 181.) These cases “all arise in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no preexisting relationship, and to whom the defendant had not previously assumed a duty of care beyond that owed to the public in general.” (Ibid., emphasis added.) In other words, bystander liability is premised upon a defendant's violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another." Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072–1073 [italics in original].

Plaintiff does not allege that she witnessed her daughter suffering injury, or that her daughter was injured; she is not a party to this action. Rather the alleged injury Plaintiff suffered is personal because Defendant allegedly administered vaccinations without her consent. Complaint, ¶ 20. As such, the alleged facts do not support a duty of care owed to Plaintiff as a bystander as she does not allege observing conduct which causes harm to another.

Negligent causing of emotional distress as a direct victim “arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two." Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073. However, "[w]hen the plaintiff is not the defendant's patient, [c]ourts have not extended the Molien direct-victim cause of action to emotional distress which is derived solely from a reaction to another's injury’ [citation].”” Shin v. Kong (2000) 80 Cal.App.4th 498, 511. Plaintiff does not allege she was Defendant’s patient.

Plaintiff alleges that Defendant owed her a statutory duty of care under Family Code section 6920, which states: "[s]ubject to the limitations provided in this chapter, notwithstanding any other provision of law, a minor may consent to the matters provided in this chapter, and the consent of the minor's parent or guardian is not necessary." Fam. Code, § 6920. On its face, the statute permits a minor to consent subject to limitations, which Plaintiff has not identified.

Plaintiff is correct that negligence per se is an evidentiary doctrine and not a cause of action. "Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285. The doctrine presumes negligence if four elements are established: “(1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 218, 7 Cal.Rptr.3d 597.)” Id. However, the latter two elements may be decided as a matter of law. Id.

Plaintiff has not persuasively established that section 6920 was designed to protect against injury to parents. Defendant cites Ballard v. Anderson (1971) 4 Cal.3d 873, 874 for the contention that the purpose of the statute was to protect the minor against his or her own improvidence and the designs of other persons. Ballard construed the purpose of former Civil Code § 34.5 among other former statutes relating to a minor’s consent and on which section 6920 was based. The Ballard court described the policy of the law to protect “minors against their own improvidence,” not to guard against emotional distress of parents who did not give their consent. Id. at 880, fn. 7.

Plaintiff’s reliance on Cobbs v. Grant (1972) 8 Cal.3d 229 is misplaced. Opposition, 4:2-5. Cobbs does not concern a duty to inform parents of a minor prior to rendering treatment to the minor. Cobbs generally acknowledged that "a patient should be denied the opportunity to weigh the risks only where it is evident, he cannot evaluate the data, as for example, where there is an emergency or the patient is a child or incompetent. For this reason, the law provides that in an emergency consent is implied (Wheeler v. Barker (1949) 92 Cal.App.2d 776, 785, 208 P.2d 68; Preston v. Hubbell (1948) 87 Cal.App.2d 53, 57—58, 196 P.2d 113), and if the patient is a minor or incompetent, the authority to consent is transferred to the patient's legal guardian or closest available relative.” Cobbs v. Grant (1972) 8 Cal.3d 229, 243–244. Plaintiff does not explain the interplay with section 6920 which provides that “a minor may consent to the matters provided in this chapter, and the consent of the minor’s parent or guardian is not necessary. Fam. Code, § 6920.

Plaintiff admits that the claims for interference with parental rights for violation of statute is a novel theory but that it should be recognized by the court. Opposition, 4:2-5. However, Plaintiff has not established a basis for imposing a duty on Defendant for failing to obtain Plaintiff’s consent to treat her daughter under section 6920 in the first instance.

Based on the foregoing, Defendant’s demurrer to Plaintiff’s complaint is SUSTAINED. Plaintiff has not shown how the defects can be cured which would ordinarily preclude granting leave to amend. Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 69–70 [noting the “well-established rule that, even where the defect is one of substance, a demurrer should not be sustained without leave to amend if there is a possibility that subsequent amendments will supply omitted allegations and the plaintiff has not had a fair opportunity to so amend."]. Plaintiff has not demonstrated there is a reasonable possibility that the defect can be cured, which is the Plaintiff’s burden. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302. Accordingly, the court is inclined to deny leave to amend unless Plaintiff can demonstrate how the complaint can be amended.

Defendant moves to strike the prayers for statutory damages and for an award of reasonable attorney's fees. Plaintiff has not cited any statute providing for such remedies.

Plaintiff argues that she may recover attorney’s fees under Civil Procedure section 1021.5 as the lawsuit affects the public interest. Plaintiff does not address the prayer for statutory damages.

In reply, Defendant argues that Plaintiff has not addressed the prayer for statutory damages. Nor has Plaintiff alleged attorney’s fees based on Section 1021.5, to which Plaintiff is not entitled since Plaintiff is not advancing an important public interest, but rather Plaintiff’s own non-scientific beliefs.

The court may, upon motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the 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 subd (a)-(b). Grounds for the motion to strike are limited to matters that appear on the face of the pleading or on any matter which the court shall or may take judicial notice. Code Civ. Proc., § 437.

As explained in the court’s ruling addressing Defendant’s demurrer, Plaintiff has not alleged viable claims as a matter of law chiefly because Plaintiff does not allege a basis for a duty owed to her, either statutory or otherwise. Therefore, there is no basis for awarding “statutory” damages or attorney’s fees under section 1021.5, where Plaintiff has not demonstrated that she is pursuing cognizable claims regardless of whether such claims are in the public interest.

Accordingly, Defendant’s Motion to Strike is GRANTED. Whether leave to amend will be permitted will be addressed at the hearing.