Judge Randy Rhodes, Case 21STCV46466 2023-03-08 Tentative Ruling

Judge: Randy Rhodes, Case: 21STCV46466, Date: 2023-03-08 Tentative Ruling

Case Number: 21STCV46466 Hearing Date: March 8, 2023 Dept: F51

Dept. F-51

Date: 3/8/23

Case #21STCV46466

DEMURRER WITH MOTION TO STRIKE ¿

Demurrer Filed: 12/5/22

MOVING PARTY: Defendant Gregory Castillo, M.D. (“Defendant”)

RESPONDING PARTY: Plaintiffs John Doe 1, an individual; John Doe 2, an individual; John Doe 3, an individual; John Doe 4, an individual; John Doe 5, an individual; John Doe 6, an individual; John Doe 7, an individual; John Doe 8, an individual; John Doe 9, an individual; and John Doe 10, an individual (collectively, “Plaintiffs”)

NOTICE: OK

RELIEF REQUESTED: Defendant demurs to Plaintiffs’ entire first amended complaint (“FAC”). Defendant also seeks an order striking several phrases in the FAC as improper, false, and/or irrelevant, in addition to provisions relating to punitive damages.

TENTATIVE RULING: The demurrer is sustained as to Plaintiffs’ ninth cause of action, and overruled as to the remaining causes of action. The motion to strike is denied in part and granted in part. Plaintiffs are granted 20 days leave to amend the FAC to cure the defects set forth herein.

BACKGROUND

Plaintiffs are medical patients who allege that Defendant, their physician, committed various acts of sexual assault, battery, discrimination, and abuse against them while providing medical treatment to each of them at nonmoving defendant Facey Medical Group (“Facey”), in Valencia, California.

On 12/21/21, Plaintiffs filed their original complaint against Defendants, alleging the following causes of action: (1) Sexual Battery; (2) Battery; (3) Gender Violence; (4) Sexual Harassment; (5) Violation of the Unruh Act; (6) Violation of the Bane Act; (7) Negligent Hiring, Training, Supervision, and Retention; (8) Fraudulent Concealment; (9) Constructive Fraud; (10) Negligent Failure to Warn; (11) Negligent Misrepresentation; (12) Intentional Infliction of Emotional Distress; (13) Negligence; and (14) Professional Negligence. All but the seventh and tenth causes of action are alleged against Defendant.

On 3/1/22, Plaintiffs filed their FAC, alleging against Defendants the same 14 causes of action, and adding plaintiffs John Doe 8, John Doe 9, and John Doe 10.

On 12/5/22, Defendant filed the instant demurrer and motion to strike. On 2/1/23, Plaintiffs filed their opposition. On 3/1/23, Defendant filed his reply.

DEMURRER

Meet-and-Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) If the parties are unable to meet and confer at least five days before the responsive pleading is due, that deadline may be extended by 30 days if “a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer” is filed and served. (Ibid.)

Defendant’s counsel declares that on 10/6/22, she sent Plaintiffs’ counsel a meet and confer letter detailing the issues raised in the instant demurrer and motion to strike, but did not receive a response. (Decl. of Laura Cota, ¶¶ 4–5.) Therefore, the Court finds that Defendant’s counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

Legal Standard

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f)). A demurrer for uncertainty may be sustained when a defendant cannot reasonably determine what it is required to respond to; for example, when a plaintiff … fails to state against which party each cause of action is asserted if there are multiple defendants. (Williams v. Beechnut Nutrition Corp., 185 Cal.App.3d 135, 139 fn.2.)

In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Here, Defendant demurs to each cause of action alleged in Plaintiffs’ FAC on the grounds that each is time-barred by the relevant statute of limitations. Defendant also argues that Plaintiffs fail to allege facts sufficient to state any of their fraud causes of action, and that Plaintiffs’ thirteenth cause of action (alleging Negligence) is duplicative of their fourteenth cause of action (alleging Professional Negligence).

A. Statute of Limitations

Here, Defendant demurs to each of Plaintiffs’ causes of action against him on the basis that they are each time-barred by the relevant statute of limitations. Plaintiffs argue in opposition that they have adequately pleaded that they did not discover Defendant’s wrongdoing until October 2021, and thereby have properly brought the instant action within the required time period under each of the statutes of limitation. The relevant statutes of limitation require that the action be commenced within the time periods as follows:

(1) Sexual Battery: two years (Code Civ. Proc. § 1708.5, subd. (b));

(2) Battery: two years (Code Civ. Proc. § 335.1);

(3) Gender Violence: three years (Civ. Code § 52.4);

(4) Sexual Harassment: two years (Code Civ. Proc. § 1708.5, subd. (b);

(5) Violation of the Unruh Act: two years;

(6) Violation of the Bane Act: two years;

(8) Fraudulent Concealment: three years (Code Civ. Proc. § 338, subd. (d));

(9) Constructive Fraud: three years (Code Civ. Proc. § 338, subd. (d));

(11) Negligent Misrepresentation: two years (Code Civ. Proc. § 339);

(12) Intentional Infliction of Emotional Distress: two years (Code Civ. Proc. § 335.1);

(13) Negligence: two years (Code Civ. Proc. § 335.1); and

(14) Professional Negligence: three years after the date of injury, or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first (Code Civ. Proc. § 340.5).

Here, each of the Plaintiffs alleges that he was injured by Defendant while receiving medical treatment from him at various instances between 2011 at the earliest and 2019 at the latest. (FAC ¶¶ 44–93.) Defendant argues that because Plaintiffs filed their action on 12/21/21, many of the Plaintiffs’ claims are time-barred by the relevant statutes of limitation above. (Dem. 8:4–5.)

However, as Plaintiffs observe, the FAC clearly and specifically pleads facts alleging that “Plaintiffs did not discover the wrongdoing by the Defendants giving rise to this litigation until October 2021, and could not have reasonably discovered the wrongdoing at an earlier time, thereby causing their claims in this matter to accrue in October 2021.” (Pls.’ Opp. 5:10–13; FAC ¶¶ 96–100.) Plaintiffs specifically allege that they were ignorant of the true facts related to their abuse because they “had no specialized medical training, knowledge, or experience regarding what legitimate medical care, treatment, and examinations consisted of, and therefore did not and could not have known that Dr. Castillo’s conduct was not, in fact, medically legitimate, but instead constituted sexual abuse.” (Id. 7:23–26.) Plaintiffs allege that they only discovered the wrongful nature of Defendant’s conduct when he surrendered his medical license in October 2021. (FAC ¶ 99.)

Defendant disputes the credibility of Plaintiffs’ assertions that they did not discover the causes of action until October 2021, and argues that they would not have been monitoring the status of his medical license or public profile unless they believed he committed wrongdoing against them. (Dem. 15:3–11.)

The Court finds that at the demurrer stage, it is sufficient that Plaintiffs have pled facts supporting their allegations as to the delayed discovery of Defendant’s wrongdoing, thereby tolling the statutes of limitation. Accordingly, the demurrer is overruled on this ground.

B. Fraud Causes of Action

Defendant further demurs to Plaintiffs’ eighth, ninth, and eleventh causes of action against him, which respectively allege Fraudulent Concealment, Constructive Fraud, and Negligent Misrepresentation. The Court notes that Defendant’s substantive argument addresses only the ninth cause of action for Constructive Fraud, and as such, the Court’s discussion and ruling is only as to this cause of action.

A plaintiff alleging a cause of action for constructive fraud must show: “(1) a fiduciary relationship, (2) nondisclosure, (3) intent to deceive, and (4) reliance and resulting injury. Constructive fraud is any breach of duty that, without fraudulent intent, gains an advantage to the person at fault by misleading another to his prejudice.” (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1249–1250.)

Fairness requires that allegations of fraud be pled “with particularity” so that the court can weed out nonmeritorious actions before a defendant is required to answer. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity requirement necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Defendant argues that Plaintiffs failed to plead any specific facts supporting the nondisclosure, intent to deceive, and justifiable reliance elements of this cause of action. (Dem. 17:18–23.) In opposition, Plaintiff notes that Defendant’s nondisclosure and intent to deceive are pled in paragraphs 180 through 185 of the FAC. These paragraphs state, inter alia, that “Defendants intentionally failed to disclose to Plaintiffs known facts or facts that could have been discovered by Defendants, including that Facey had received complaints about Dr. Castillo’s misconduct in the past, and that Dr. Castillo engaged in inappropriate, abusive, harassing, and discriminatory conduct towards the male patient population.” (FAC ¶ 180.) Facts supporting the elements of justifiable reliance and resulting injury are pled in paragraphs 186 through 189 of the FAC.

Plaintiffs allege that they “justifiably relied upon Defendants for information relating to safety, security, history, character, authority, ability, morality, and trustworthiness of Dr. Castillo,” and “sustained severe emotional distress and physical pain, emotional anguish, fear, anxiety, humiliation, embarrassment, and other physical and emotional injuries, damages (both economic and non-economic as discussed above), and permanent disability” as a result of Defendants’ breach of their fiduciary duties as medical services providers. (Id. at ¶¶ 193, 196.)

Notwithstanding the above allegations, Plaintiffs’ cause of action still fails to meet the particularity standard for pleading fraud causes of action, because they have not specifically alleged “how, when, where, to whom, and by what means the representations were tendered.” (Lazar, 12 Cal.4th at 645.) As the Court finds that Plaintiffs have failed to plead facts with sufficient particularity to support the Constructive Fraud cause of action in their FAC, the demurrer is sustained as to Plaintiffs’ ninth cause of action.

C. Negligence Cause of Action

Defendant demurs against Plaintiffs’ thirteenth cause of action for Negligence, arguing that it is improper and duplicative of the fourteenth cause of action for Professional Negligence. (Dem. 18:1–14.) Defendant argues that “when an action alleges injury suffered as a result of negligence in rendering the professional services that providers by virtue of being health care professionals, such as medical diagnosis and treatment, is professional negligence, not general negligence.” (Id. at 18:3–6.)

In opposition, Plaintiffs argue that this cause of action is valid and separate from their cause of action for Professional Negligence because “the general negligence claim is predicated on Defendant’s unfettered access to Plaintiffs despite the known harm that was being inflicted to Plaintiffs,” whereas “the professional negligence claim is predicated on medical malpractice and specifically pertains to Defendant’s failure to provide appropriate medical care and treatment for Plaintiffs’ medical conditions and issues.” (Pls.’ Opp. 11:25–12:1.)

In the FAC, Plaintiffs’ Negligence cause of action is characterized as Defendants’ “failure to monitor and supervise Dr. Castillo and failing to prevent Dr. Castillo from committing sexual acts with medical patients, including Plaintiffs.” (FAC ¶ 221.) In contrast, Plaintiffs’ cause of action for Professional Negligence alleges that Defendant “failed to properly or adequately provide medical care and treatment to Plaintiffs,” resulting in Plaintiffs’ medical conditions remaining untreated. (Id. at ¶ 227.)

Based on the foregoing, the Court finds that Plaintiffs’ thirteenth and fourteenth causes of action are distinct from one another, therefore the demurrer is overruled on this ground.

MOTION TO STRIKE

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.) Here, Defendant moves to strike several phrases used in the FAC, in addition to provisions relating to punitive damages.

Meet and Confer

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).) The parties are required to meet and confer at least five days before the date a motion to strike must be filed, otherwise the moving party is granted a 30-day extension to file the motion. (Ibid.)

Here, as previously mentioned, Defendant’s attorney sent Plaintiffs’ counsel a meet and confer letter detailing the issues raised in the instant demurrer and motion to strike, but did not receive a response. (Cota Decl., ¶¶ 4–5.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 435.5, subdivision (a).

“Improper, False, and/or Irrelevant” Terms

Defendant moves to strike 25 identified portions of the FAC as improper, false, and/or irrelevant. (Mot. to Strike (MTS), 7:6–9:12.) Most of the language Defendant seeks to strike describes him as a “prurient” “sexual predator” with a “dangerous propensity to abuse, harass, and discriminate against Plaintiffs.” (Ibid.) Defendant argues that these terms “are included solely for the purpose of adding, ‘shock value,’ to the pleading in an attempt to sway the Court’s perception of the defendants at the very outset of the case.” (Id. at 7:3–4.)

Plaintiff argues in opposition that “what Defendant is coining as “descriptors” and claiming to be improper, false, and/or irrelevant material for inclusion in the First Amended Complaint, is nothing more than an attempt to exclude relevant factual information that is necessary to plead the causes of action in the First Amended Complaint.” (Pls.’ Opp. to MTS, 5:11–14.) “The fact that Dr. Castillo is referenced as a ‘sexual predator and unsafe to be around patients’ and posed a risk of ‘molesting and sexually assaulting patients’ goes to the heart of these causes of action and the premise of the entire First Amended Complaint.” (Id. at 6:21–23.)

Although the Court generally agrees with Plaintiffs’ argument, it nevertheless finds that some of the terms subject to the instant motion to strike are not relevant factual information. The Court finds the portions of the FAC with refer to Defendant’s “prurient” sexual desires to be irrelevant. Accordingly, the Court grants Defendants’ motion to strike page 3, line 15, paragraph 2 and page 7, line 5, paragraph 18 of Plaintiffs’ FAC to strike the word “prurient” from those portions.

Punitive Damages

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (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.) Punitive damages must be supported by factual allegations. 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; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)¿

However, “in 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.” (Code Civ. Proc. § 425.13.)

Here, the parties disagree as to whether Code of Civil Procedure section 425.13 applies, thereby requiring Plaintiffs to separately move for punitive damages. Defendant argues that “it is improper for the plaintiffs at this stage to reference punitive damages, or to include language included solely for the purpose of bolstering a potential future motion to add them to the Complaint.” (MTS, 10:17–19.)

Plaintiffs argue in opposition that Code of Civil Procedure section 425.13 is inapplicable because “a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant's conduct would not be directly related to the manner in which professional services were rendered.” (Pls.’ Opp. to MTS, 9:16–19, quoting Cooper v. Superior Court (1997) 56 Cal.App.4th 744.) Plaintiffs argue that Cooper limits the applicability of Code of Civil Procedure section 425.13 to actions involving injuries which are directly related to the particular professional services rendered, and here, Plaintiffs’ sexual injuries are not related to Defendant’s provision of medical services as a general practitioner. (Pls.’ Opp. to MTS, 10:7–15.)

As Defendant argues, “a primary care physician is a physician who practices general/internal medicine, and therefore could very well be called upon to address complaints and/or to perform preventative medicine tasks related to any body part, including genitalia. The comparison of the disciplines cited by Cooper simply do not apply here.” (Def.’s MTS Reply, 5:12–15.)

The Court agrees with Defendant, and finds that Plaintiffs’ argument for an exemption fails to sufficiently distinguish conduct separate and distinct from the course of care provided by Defendant in his capacity as a licensed examining physician in a professional setting. Plaintiffs state in their FAC that they “fully intend to file a motion under Code of Civil Procedure section 425.13 to recover punitive damages,” but have yet to do so. Accordingly, the motion to strike portions of Plaintiffs’ FAC relating to punitive damages is granted.

LEAVE TO AMEND

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).¿

Here, the Court notes that Plaintiffs have specifically requested leave to amend the FAC in the event that the Court finds merit in any of Defendant’s arguments. Accordingly, under the Court’s liberal policy of granting leave to amend, the Court grants Plaintiffs 20 days leave to amend the FAC to cure the defects set forth above.¿

CONCLUSION¿

The demurrer is sustained as to Plaintiffs’ ninth cause of action, and overruled as to the remaining causes of action. The motion to strike is denied in part and granted in part. Plaintiffs are granted 20 days leave to amend the FAC to cure the defects set forth herein.

Dept. F-51

Date: 3/8/23

Case #21STCV46466

DEMURRER

Demurrer Filed: 1/20/23

MOVING PARTY: Defendant Facey Medical Group (“Defendant”)

NOTICE: OK

RELIEF REQUESTED: Defendant demurs to the fourth through fourteenth causes of action in Plaintiffs’ first amended complaint (“FAC”).

TENTATIVE RULING: The demurrer is sustained as to Plaintiffs’ eighth, ninth, and eleventh causes of action with 20 days leave to amend, and overruled as to the remaining causes of action.

BACKGROUND¿

Plaintiffs are medical patients who allege that their physician, nonmoving defendant Gregory Castillo, MD (“Castillo”), committed various acts of sexual assault, battery, discrimination, and abuse against them while providing medical treatment to each of them at Defendant’s medical care center in Valencia, CA.

On 12/21/21, Plaintiffs filed their original complaint against both Defendants, alleging the following causes of action: (1) Sexual Battery; (2) Battery; (3) Gender Violence; (4) Sexual Harassment; (5) Violation of the Unruh Act; (6) Violation of the Bane Act; (7) Negligent Hiring, Training, Supervision, and Retention; (8) Fraudulent Concealment; (9) Constructive Fraud; (10) Negligent Failure to Warn; (11) Negligent Misrepresentation; (12) Intentional Infliction of Emotional Distress; (13) Negligence; and (14) Professional Negligence. The fourth through fourteenth causes of action are alleged against Defendant.

On 3/1/22, Plaintiffs filed their FAC, alleging against Defendants the same 14 causes of action, and adding plaintiffs John Doe 8, John Doe 9, and John Doe 10.

On 1/20/23, Defendant filed the instant demurrer and motion to strike. On 2/1/23, Plaintiffs filed their opposition. On 2/7/23, Defendant filed its reply.

DEMURRER

Meet-and-Confer

Defendant’s counsel declares that on 9/13/22, he sent Plaintiffs’ counsel a meet and confer letter detailing the issues raised in the instant demurrer, but received no response. (Decl. of Zachary Schwake, ¶ 2.) Therefore, the Court finds that Defendant’s counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

Legal Standard

Here, Defendant demurs to each cause of action alleged in Plaintiffs’ FAC on the grounds that each is time-barred by the relevant statute of limitations. Defendant also argues that it cannot be held vicariously liable for Castillo’s intentional torts, and that Plaintiffs fail to allege facts sufficient to state any of their fraud causes of action.

A. Statute of Limitations

“Generally speaking, a cause of action accrues at the time when the cause of action is complete with all of its elements. … An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806–807 [quotations and citations omitted].) “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’” (Id. at 808.)

Here, each of the Plaintiffs alleges that he was injured by Defendant while receiving medical treatment from Castillo at various instances between 2011 at the earliest and 2019 at the latest. (FAC ¶¶ 44–93.) Plaintiffs assert that they “did not discover the wrongdoing by the Defendants giving rise to this litigation until October 2021, and could not have reasonably discovered the wrongdoing at an earlier time, thereby causing their claims in this matter to accrue in October 2021.” (FAC ¶¶ 96–100.)

Defendant demurs to each of Plaintiffs’ causes of action against it on the basis that they are each time-barred by the relevant statute of limitations, which allow, at most, three yearsfor Plaintiffs to bring the instant action. (Dem. 5:11–13.) Plaintiffs argue in opposition that they have adequately pleaded that they did not discover Defendant’s wrongdoing until October 2021, when Castillo’s medical license was surrendered, and therefore have properly commenced the instant action within the required time period under each of the statutes of limitation.

Defendant disputes the credibility of Plaintiffs’ assertions that they did not discover the causes of action until October 2021, and argues that the FAC “is replete with allegations demonstrating that each plaintiff had actual knowledge of wrongdoing such that delayed discovery does not apply.” (Dem. 7:21–22.) Defendant further argues that “as soon as plaintiffs suspected wrongdoing, they were on inquiry notice and had a duty to investigate their potential claims in order to timely file them.” (Dem. 8:22–25.)

In opposition, Plaintiffs maintain that the statutes of limitation were tolled by the delayed discovery rule, and that “it is clearly pled in the First Amended Complaint that Plaintiffs were led to believe, and did reasonably believe, that Dr. Castillo’s sexual abuse, harassment, and discrimination was not, in fact, misconduct, but rather was legitimate medical care and treatment.” (Pls.’ Opp., 6:19–22.) Moreover, Plaintiffs assert that their “attempts to report any misconduct to employees to Facey were futile because no action was ever taken in response to those reports, thereby leading Plaintiffs to reasonably believe that their complaints were without merit.” (Id. 8:2–4.)

The Court finds that at the demurrer stage, Plaintiffs have sufficiently pled facts “to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence” in their FAC, supporting their contentions as to the delayed discovery of Defendant’s wrongdoing. (Fox, 35 Cal.4th at 808.) Accordingly, the demurrer is overruled on this ground.

B. Vicarious Liability

Respondeat Superior

Defendant argues that Plaintiffs’ fourth through twelfth causes of action cannot be maintained against it because it cannot be held vicariously liable for Castillo’s conduct under a theory of respondeat superior when such conduct falls outside the scope of his employment with Defendant. Defendant cites to Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, where the Supreme Court held that a defendant hospital was not liable under a theory of respondeat superior for its employee ultrasound technician’s sexual assault of a patient. In holding so, the Supreme Court found that “for injury to be foreseeable for purpose of respondeat superior liability, employment must be such as predictably to create risk employees will commit intentional torts of type for which liability is sought.” (Lisa M., 12 Cal.4th at 299.)

Defendant argues that the Court should follow the reasoning of the Lisa M. court, because “if sexual assault was the result of propinquity and lust, rather than triggered by anything in the employment activity, there should be no vicarious liability.” (Dem. 11:21–22; quoting Lisa M., 12 Cal.4th at 301.) Defendant argues that here, because Plaintiffs allege that Castillo acted for his own sexual gratification, and not within the scope of medical treatment, Defendant cannot be held vicariously liable. (Dem. 12:17–23.)

In opposition, Plaintiffs argue that Lisa M. should be distinguished on the facts because Castillo, as a primary care physician, had a more intimate relationship with patients than ultrasound technician would. (Pls.’ Opp. 9:12–26.) Plaintiffs cite to Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, where the Court of Appeal distinguished Lisa M. to find that an employee mental health worker was acting within the scope of his employment when he sexually assaulted former patients. There, the Court of Appeal found that the employee was acting within the scope of employment because “the duties of a mental health worker include helping patients with daily living activities. The workers are personally involved with the patients over an extended period of time. The patients are vulnerable; they may suffer from impaired judgment or other cognitive impairments. Sexual exploitation of the patients by employees is a foreseeable hazard arising from the circumstances of the job.” (Samantha B., 77 Cal.App.5th at 108.)

Plaintiffs argue that the Court should follow the Court of Appeal’s reasoning in Samantha B. because here, “as a primary care physician, Dr. Castillo had the requisite extensive involvement with care and personal relationship with his patients that spanned an extended period of time and made sexual exploitation a foreseeable hazard.” (Pls.’ Opp. 10:25–27.)

Defendant argues that Samantha B. is distinguishable because here, “Dr. Castillo was a primary care provider, not a mental health worker, therapist, psychologist or psychiatrist. It is not alleged that he was providing mental health treatment to any of these plaintiffs. Dr. Castillo was treating these patients briefly in a clinic setting, not “over an extended period of time.” He did not help the patients with their daily living activities. It is not alleged that any of the plaintiffs are unusually vulnerable or had cognitive disabilities.” (Def.’s Reply, 5:26–6:3.)

Despite the parties’ lengthy discussions, the Court declines to reach the merits of this issue at the demurrer stage, and finds it sufficient that Plaintiffs have pled that “at all times relevant herein, Dr. Castillo was acting in the course and scope of his authority, agency, service, and/or employment for Facey,” and that Castillo “sexually assaulted, abused, molested, harassed, and discriminated against dozens of male patients, including Plaintiffs, through the use of his position, power, authority, and trust as a primary care physician employed by Facey.” (FAC ¶¶ 13, 17.) Accordingly, the demurrer is overruled on this ground.

Ratification

The Court notes that the parties also discuss the issue of ratification as an alternative theory of vicarious liability. As the Court finds that Plaintiffs have sufficiently pled that Castillo was at all relevant times acting within the scope of his employment with Defendant, the Court declines to reach the issue of ratification at this time.

C. Fraud Causes of Action

Defendant further demurs to Plaintiffs’ eighth, ninth, and eleventh causes of action, which respectively allege Fraudulent Concealment, Constructive Fraud, and Negligent Misrepresentation.

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

“The elements of a cause of action for negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.)

Here, Defendant argues that “Plaintiffs fail to allege specifically Facey’s nondisclosure of any material facts, nor that plaintiffs relied on Facey’s misrepresentations to their detriment. Plaintiffs do not even allege any direct misrepresentations by Dr. Castillo. Further, a representation by Facey that their doctors are competent does not contain a representation or guarantee against unknown conduct outside the scope of employment, such as a sexual assault.” (Dem. 14:3–7.)

Plaintiffs argue in opposition that all the elements of their eight, ninth, and eleventh causes of action have been properly pled, respectively, in paragraphs 165 through 173, 174 through 197, and 203 through 207 of the FAC. In the cited portions of the FAC, Plaintiffs allege that Defendant was aware of Castillo’s past sexual misconduct toward patients, but concealed these facts from Plaintiffs while representing that Castillo was a professional health physician.

However, as Defendant observes, Plaintiff’s allegations fail to meet the particularity standard for pleading fraud causes of action because Plaintiffs have not specifically alleged “who at Facey made a representation to them, when the representation was made, [and] how the representation was tendered.” (Def.’s Reply, 8:12–13; Lazar, 12 Cal.4th at 645.)

Based on the foregoing, the Court finds that Plaintiffs have failed to plead facts with sufficient particularity to support the fraud causes of action in their FAC. Accordingly, the demurrer is sustained as the Plaintiffs’ eighth, ninth, and eleventh causes of action.

LEAVE TO AMEND

Here, the Court notes that Plaintiffs have specifically requested leave to amend the FAC in the event that the Court finds merit in any of Defendant’s arguments. (Pls.’ Opp., 16:1–11.) Accordingly, under the Court’s liberal policy of granting leave to amend, the Court grants Plaintiffs 20 days leave to amend the FAC to cure the defects set forth above.¿

CONCLUSION¿

The demurrer is sustained as to Plaintiffs’ eighth, ninth, and eleventh causes of action with 20 days leave to amend, and overruled as to the remaining causes of action.