Judge Randy Rhodes, Case 22CHCV01215 2023-04-21 Tentative Ruling

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RESPONDING PARTY: Plaintiff John Doe 4, an individual (“Plaintiff”) NOTICE: OK

TENTATIVE RULING: The demurrer is sustained as to Plaintiff’s fourth cause of action with 20 days leave to amend, and overruled as to the remaining causes of action.

Plaintiff is a medical patient who alleges that in or around October 2013, his treating physician, nonmoving defendant Gregory Castillo, MD (“Castillo”), sexually assaulted Plaintiff during a standard physical examination at Defendant’s medical care center in Valencia, CA. (Compl. ¶¶ 41–43.)

On 11/22/22, Plaintiff filed his complaint against both Defendants, alleging the following causes of action: (1) Sexual Battery; (2) Sexual Orientation Related Violence; (3) Sexual Harassment; (4) Constructive Fraud; (5) Intentional Infliction of Emotional Distress; (6) Negligent Hiring, Training, Supervision, and Retention; and (7) Negligence.

On 2/3/23, Defendant filed the instant demurrer. On 4/10/23, Plaintiff filed his opposition. On 4/14/23, Defendant filed its reply.

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 asserts that on 1/19/23, his counsel sent Plaintiff’s counsel a meet and confer letter detailing the issues raised in the instant demurrer. (Dem. 3:6–8.) On 1/26/23, Plaintiff’s counsel responded, but the parties were unable to come to an agreement. (Id. at 3:8–9.)[1] 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).

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.” (Code Civ. Proc., § 430.10, subd. (e).)

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 Plaintiff’s complaint on the ground 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 Plaintiff fails to allege facts sufficient to state his cause of action for constructive fraud.

Here, Plaintiff alleges that he was injured by Defendants while receiving medical treatment from Castillo in October 2013. (Compl. ¶ 41.) Defendant demurs to each of Plaintiff’s causes of action against it on the basis that they are each time-barred by the relevant statute of limitations, which would allow, at most, three years for Plaintiff to bring the instant action. (Dem. 4:5–12.)

The parties disagree about whether Code of Civil Procedure section 340.16 applies to the instant action.

“In any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff’s 18th birthday, the time for commencement of the action shall be the later of the following: (1) Within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff;” or “(2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.” (Code Civ. Proc. § 340.16, subd. (a).)

The three or ten-year statute of limitations applies to any action that “is based upon conduct that occurred on or after January 1, 2009, and is commenced on or after January 1, 2019, that would have been barred solely because the applicable statute of limitations has or had expired.” (Id. at subd. (b)(3).) “It is not necessary that a criminal prosecution or other proceeding have been brought as a result of the sexual assault or, if a criminal prosecution or other proceeding was brought, that the prosecution or proceeding resulted in a conviction or adjudication.” (Id. at subd. (b)(2).)

For purposes of the statute, “sexual assault” includes sexual battery and an attempt to commit such a crime, as defined by Penal Code section 243.4. (Id. at subd. (b)(1).) The definition of a sexual battery under Penal Code section 243.4 includes the touching of an intimate part of another person, against the will of the person touched, for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. (Pen. Code § 243.4, subd. (e)(1).)

Here, Defendant argues that Code of Civil Procedure section 340.16 does not apply because Plaintiff’s claims are based on Civil Code sections 1708, 1708.5, 51, 51,7, 51.9 et seq., and 52, rather than the Penal Code. (Dem. 4:19–24.) Defendant argues that the appropriate statute of limitation to be applied is Code of Civil Procedure section 340.5, which applies in the medical negligence context. (Id. at 5:14–16.)

While Plaintiff does not cite to section 340.16 in his complaint, the Court finds that the alleged conduct complained of evidently sounds in sexual misconduct rather than medical negligence. (Compl. ¶¶ 42–47.)

In considering, for example, the definitions of sexual battery in Penal Code section 243.4 in comparison to Civil Code section 1708.5, the Civil Code definition includes “acts with the intent to cause a harmful or offensive contact with another by use of the person’s intimate part, and a sexually offensive contact with that person directly or indirectly results.” (Civ. Code § 1708.5, subd. (a)(2).) Both the Penal Code and Civil Code define an “intimate part” as “the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.” (Pen. Code § 243.4, subd. (g)(1); Civ. Code § 1708.5, subd. (d)(1).) “‘Offensive contact’ means contact that offends a reasonable sense of personal dignity.” (Civ. Code § 1708.5, subd. (d)(2).)

Here, Plaintiff has alleged that in October 2013, during a standard physical examination at Defendant’s medical facility, “CASTILLO suddenly performed an unexpected rectal examination. CASTILLO then had PLAINTIFF stand in front of him and lifted PLAINTIFF’S gown and suddenly attempted to put his mouth on PLAINTIFF’S penis, insisting that this was medically necessary for a prostate examination. PLAINTIFF told CASTILLO to stop, but he tried to do this two times.” (Compl. ¶ 43.)

Based on the foregoing, the Court finds that Plaintiff’s allegations clearly allege a “sexual assault” as defined by Code of Civil Procedure section 340.16, whether his underlying claims are founded in the Penal Code or Civil Code. At the demurrer stage, the Court finds no specific basis for a finding that the Penal Code definitions are exclusive and the Civil Code statutory definitions can in no way overlap or independently qualify under the criminal definitions as well. Accordingly, the Court finds sufficient basis to apply the statute of limitations set forth in Code of Civil Procedure section 340.16.

Defendant argues that Plaintiff’s claims are nevertheless time-barred by the relevant statutes of limitations, including Code of Civil Procedure 340.16, because Plaintiff cannot invoke the delayed discovery rule.

“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.)

Plaintiff argues in opposition that he has adequately pleaded that he did not discover Defendant’s wrongdoing until in or around 2019/2020, “when he was contacted by the California Medical Board and was made aware that an investigation had been commenced about the behavior of CASTILLO.” (Compl. ¶ 51.) Plaintiff asserts that he “was led to believe—and did reasonably believe—that CASTILLO’S sexual abuse, harassment, and discrimination was not, in fact, misconduct, but rather was legitimate medical care and treatment,” and “did not and could not have reasonably discovered the extent of Defendants’ wrongdoing at an earlier date than 2019/2020.” (Id. at ¶¶ 50–52.)

Defendant disputes the credibility of Plaintiff’s assertion that he did not discover the causes of action until 2019/2020, because Plaintiff alleges in his complaint that he made a formal complaint to Defendant’s staff regarding Castillo’s conduct in the weeks following the incident. (Compl. ¶¶ 45–46.) “While plaintiff is entitled to every reasonable inference on demurrer, he is not entitled to directly contradict his own allegations and falsely state he reasonably wasn’t aware of wrongdoing until a decade later despite making a complaint back in 2013.” (Dem. 8:1–4.)

In opposition, Plaintiff maintains that the statutes of limitation were tolled by the delayed discovery rule, as “the Complaint clearly alleges that Facey actively concealed and ignored complaints of Dr. Castillo’s behavior and deliberately deceived Plaintiff into believing that this conduct was legitimate medical treatment.” (Pl.’s Opp., 5:19–22, citing Compl. ¶¶ 22, 49, 50.) Moreover, Plaintiff asserts that he “was innocent with no medical training and therefore was convinced that things like attempted oral copulation by Castillo and an unnecessary rectal exam were not assault, but necessary medical treatment (Complaint, ¶¶40-46), i.e., any discomfort in the mind of Plaintiff was just that – a figment of his imagination, but he was being overly sensitive and misreading his trusted doctor’s acts.” (Id. at 5:3–7.)

The Court finds that at the demurrer stage, Plaintiff has 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 his complaint, supporting his contentions as to the delayed discovery of Defendant’s wrongdoing. (Fox, 35 Cal.4th at 808.) The factual allegations accordingly also support a finding that the ten-year period Code of Civil Procedure section 340.16, subdivision (a) applies to the instant action.

Accordingly, the demurrer is overruled on this ground, and the Court declines to reach the parties’ additional arguments regarding fraudulent concealment, equitable estoppel, and revival under Code of Civil Procedure section 340.16, subdivision (e).

Defendant argues that Plaintiff’s first through fifth 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. 11:28–12:1; quoting Lisa M., 12 Cal.4th at 301.) Defendant argues that here, because Plaintiff alleges that Castillo acted for his own sexual gratification, and not within the scope of medical treatment, Defendant cannot be held vicariously liable. (Dem. 12:23–13:7.)

In opposition, Plaintiff attempts to distinguish Lisa M. on the basis that the Supreme Court did not consider the foreseeability of risk to Plaintiff as a factor in its analysis. (Pl.’s Opp., 7:23–26.) Plaintiff cites to Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, where the Court of Appeal explained that “one way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity.” (50 Cal.App.3d at 618). However, the issues in Rodgers involved whether a physical assault between plaintiffs and defendants occurred outside the scope of employment as a bulldozer operator, where the assault occurred after working hours and was allegedly motivated by personal malice unrelated to work. Here, the instant case is more analogous to the facts in Lisa M., where an employee healthcare provider has allegedly sexually assaulted a patient. Furthermore, the Court notes that Plaintiff does not cite to any more recent authority to challenge the applicability of Lisa M.

Defendant observes that “Plaintiff notes that Dr. Castillo’s conduct went beyond the procedures contemplated and had no medical purpose (Complaint ¶ 15, 42-44), Dr. Castillo’s conduct was alleged to be deliberate and intentional. (See Complaint ¶ 54). It is also alleged that Dr. Castillo acted for his own sexual gratification (See Complaint ¶ 15). These allegations demonstrate that Dr. Castillo’s conduct arose out of propinquity, lust, and personal motives, rather than a natural outgrowth of the employment relationship serving the employer.” (Def.’s Reply, 5:9–14.)

Despite the parties’ arguments, the Court declines to reach the merits of this issue at the demurrer stage, and finds it sufficient that Plaintiff has alleged that Defendant hired Castillo on 4/1/09, and, “at all times relevant herein, CASTILLO was acting in the course and scope of his authority, agency, service, and/or employment for FACEY.” (Compl. ¶¶ 12–13, 91.) Accordingly, the demurrer is overruled on this ground.

Defendant further demurs to Plaintiff’s fourth cause of action, which alleges against it Constructive Fraud. 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.)

Here, Defendant argues that “Plaintiff fails to allege specific facts as to Facey’s nondisclosure of any material facts, nor that plaintiff relied on Facey’s misrepresentations to his detriment.” (Dem. 13:26–27.) Plaintiff argues in opposition that all the elements of this cause of action have been properly pled. (Pl.’s Opp., 9:14–10:20.) In the cited portions of the complaint, Plaintiff alleges that Defendant was aware of Castillo’s past sexual misconduct toward patients, but concealed these facts from Plaintiff while representing that Castillo was a competent and trustworthy professional physician.

However, as Defendant observes, Plaintiff’s allegations fail to meet the particularity standard for pleading fraud causes of action because Plaintiff has not specifically alleged who at Facey made (or failed to make) a representation to him, when the representation was made, and how the representation was tendered. (Def.’s Reply, 6:13–14; Lazar, 12 Cal.4th at 645.)

Based on the foregoing, the Court finds that Plaintiff has failed to plead facts with sufficient particularity to support his cause of action for Constructive Fraud against Defendant. Accordingly, the demurrer is sustained as to Plaintiff’s fourth cause of action.

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 this is the first demurrer brought against Plaintiff’s original complaint, and Plaintiff has specifically requested leave to amend the FAC in the event that the Court finds merit in any of Defendant’s arguments. (Pls.’ Opp., 10:23–11:2.) Accordingly, under the Court’s liberal policy of granting leave to amend, the Court grants Plaintiff 20 days leave to amend his complaint to cure the defects set forth above.¿

[1] The Court notes that while Defendant references an “attached Declaration of Zachary Schwake,” no such declaration has been filed with the moving papers.