Andre Luiz Costa Soares v. Jasmine A. Tehrani

MOTION TO STRIKE

 

MOVING PARTY(S): Defendant Jasmine A. Tehrani

RESPONDING PARTY(S): Plaintiff Andre Luiz Costa Soares

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Andre Luiz Costa Soares (“Soares”), in pro per, brings the claim against Defendant Jasmine A. Tehrani, a psychologist, for alleged professional negligence.  

Defendant now moves to strike portions of the First Amended Complaint.  Plaintiff opposed. 

TENTATIVE RULING:

Defendant’s Motion to Strike is GRANTED IN ITS ENTIRETY.

Defendant is to file an Answer (if she hasn’t already done so) within 21 days.

Moving party to give notice.

DISCUSSION:

Motion to Strike

Meet and Confer

The Declaration of Attorney Richard Wood reflects that the meet and confer requirement was satisfied. (CCP § 430.41.) 

Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

Background

The FAC alleges that Defendant, a psychologist, gave Plaintiff a psychiatric exam pursuant to the order of an immigration judge.  (FAC ¶¶ 5, 6.)  Defendant found Plaintiff was “schizophrenic and incompetent to represent himself in Immigration proceedings.”  (Id. ¶ 8.) 

As a result of the diagnosis, Plaintiff “had to wait months until he had an attorney appointed to take care of his case -which delayed his case and extended his time in detention center.”  (Id. ¶ 10.)  Plaintiff alleges Defendant’s diagnosis caused him “emotional distress,” “medical expenses to have new evaluations showing he is not schizophrenic,” “mental and emotional sorrow and anguish,” “permanent physical injuries during the time he was detained in a facility he was not supposed to be,” and “other damages.”  (Id. ¶ 22.)  

Plaintiff seeks $25,000,000 from Defendant in “monetary compensation” as the “appropriate amount to cover all the expenses Plaintiff had to face and to ensure that Defendant won’t ever do this again.”  (Id. ¶ 25.)

Analysis

Defendant moves to strike the following portions of Plaintiff’s First Amended Complaint:

(1) Paragraphs 16, 17, 18, and 19 of the First Amended Complaint in the entirety.

(2) Fifth subparagraph of ¶ 25 of the First Amended Complaint in its entirety, to wit: “The monetary compensation in the amount of $25,000,000 (twenty-five million dollars), an amount higher than the initially stated in the first complaint because that is the appropriate amount to cover all the expenses plaintiff had to face and to ensure that defendant won’t ever do this again.”

(3) Paragraph 21 of the First Amended Complaint in its entirety.

A. Paragraphs 16, 17, 18, and 19

Paragraphs 16, 17, 18, and 19 include a description and symptoms of schizophrenia.  Defendant argues these paragraphs should be stricken because they are “unsupported, non-expert medical opinion which are irrelevant to these proceedings and, beyond this, are completely superfluous to the pleading of plaintiff’s cause of action for professional negligence.”

The court agrees that the paragraphs—which do not reference any established medical authority—are irrelevant to the claim, even if they are factually accurate. (CCP § 436.)  Accordingly, these paragraphs are ordered stricken.

B. Fifth Subparagraph of ¶ 25 (Page 5, lines 6-9.)

Defendant moves to strike the following paragraph in full: 

The monetary compensation is the amount of $25,000,000 (twenty-five million dollars), an amount higher than the initially stated in the first complaint because that is the appropriate amount to cover all the expenses Plaintiff had to face and to ensure that Defendant won't ever do this again.

Defendant first argues this portion should be stricken because a specific dollar amount is not recoverable in personal injury suits.  Defendant relies on CCP section 425.10(b).  Under this section, “where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated” in the complaint.  (§ 425.10(b).)  This section also applies to non-personal injury claims that are closely tied to an injury or death cause of action. (See Jones v. Interstate Recovery Service (1984) 160 CA3d 925, 929 [cause of action for trespass and conversion of personal property held “closely tied” to claims for assault and intentional infliction of emotional distress].)

Here, Plaintiff alleges his harms include “emotional distress,” “medical expenses to have new evaluations showing he is not schizophrenic,” “mental and emotional sorrow and anguish,” “permanent physical injuries during the time he was detained in a facility he was not supposed to be,” and “other damages.”  (Id. ¶ 22.)

The court agrees that Plaintiff’s claim is essentially one for personal injury.  Accordingly, to the extent a portion of the $25,000,000 dollar damages sought is based on these injuries, Plaintiff may not state a dollar amount. The paragraph is therefore stricken on this ground.

Defendant also moves to strike this paragraph on the grounds that it seeks punitive damages for professional negligence without having sought leave of court to include the request.  CCP § 425.13(a) provides that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.”  Psychologist are included in the definition of “health care provider.”  (§ 425.13(b); Cal. BPC Div. 2, Chap. 6.6 [“Psychologists]”.) CCP § 425.13 is not limited to malpractice claims. It applies to any claim for injury “directly related to the professional services provided” by a health care provider. (Central Pathology Service Med. Clinic, Inc. v. Sup.Ct. (1992) 3 C4th 181, 191.)

In opposition, Plaintiff argues that he is not seeking punitive damages.  However, the FAC specifically states that the damages are sought “to ensure that Defendant won't ever do this again.”  (FAC 25.) This undeniably resembles the purpose of punitive damages, which is “to punish wrongdoing and deter future misconduct.” (Bardis v. Oates (2004) 119 Cal. App. 4th 1.)

Here, there is little doubt that Plaintiff’s alleged injuries resulted directly from the professional services provided by Defendant and that the FAC seeks punitive damages.  Because Plaintiff has not sought leave to include a request for punitive damages, the paragraph is also stricken on this ground.

Accordingly, the subparagraph is ordered stricken in its entirety.

C. Paragraph 21

Defendant also moves to strike paragraph 21 of the FAC, which alleges that “Defendant has a history of lawsuits against her for fraudulent evaluations.”  

Defendant argues this allegation is “untrue” and “irrelevant.”  This Court agrees that the allegation is “irrelevant” and unnecessary for pleading purposes.   If the allegation is true, and Plaintiff could prove same, that evidence may be relevant for the trier of fact as to the professional negligence claim.  This remains to be seen.

The motion is GRANTED as to Paragraph 21.

Conclusion

Defendant’s Motion to Strike is GRANTED IN ITS ENTIRETY.

Defendant is to file an Answer (if she hasn’t already done so) within 21 days.

Moving party to give notice.

IT IS SO ORDERED.

Dated:   October 21, 2022 ___________________________________

Randolph M. Hammock

Judge of the Superior Court