Judge Randy Rhodes, Case 22CHCV01215 2023-04-24 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

RELIEF REQUESTED: Defendant demurs to the first, second, third, fourth, fifth, and seventh causes of action in Plaintiff’s complaint.

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.

Defendant is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

Plaintiff is a medical patient who alleges that in or around October 2013, Defendant, as Plaintiff’s treating physician, sexually assaulted Plaintiff during a standard physical examination at nonmoving defendant Facey Medical Group (“Facey”), in Valencia, California.

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. All but the sixth cause of action are alleged against Defendant.

On 2/14/23, Defendant filed the instant demurrer. On 4/11/23, Plaintiff filed his opposition. On 4/13/23, 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 2/6/23, his counsel sent Plaintiff’s counsel a meet and confer letter raising the issues discussed in the instant demurrer. (Dem. 5:1–8; Ex. B to Dem.)[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” 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 Plaintiff’s complaint on the ground that each is time-barred by the relevant statute of limitations. Defendant also argues that Plaintiff fails to allege facts sufficient to state his cause of action for constructive fraud.

Here, Plaintiff alleges that he was injured while receiving medical treatment from Defendant 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. 4:1–2.)

The parties disagree about whether Code of Civil Procedure section 340.16 applies to the instant action. Plaintiff argues that the statute applies to set forth the statute of limitations in cases where, as here, a sexual assault has been alleged. Defendant argues that the statute does not apply because Plaintiff has not sufficiently alleged a “cover up” which would revive Plaintiff’s otherwise time-barred claims.

“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).)

Moreover, under the statute, a plaintiff who alleges that the entities legally responsible for the damages arising out of the sexual assault engaged in or attempted to cover up previous instances of sexual assault by the alleged perpetrator may have his otherwise time-barred claims revived. (Code Civ. Proc. § 340.16, subd. (e)(1)–(2).) A qualifying “cover up” is defined as “a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.” (Id. at subd. (e)(4)(A).)

Here, Defendant argues that Plaintiff has not sufficiently alleged a cover up, and thus cannot invoke Code of Civil Procedure 340.16. (Def.’s Reply, 2:16–3:8.) Defendant asserts 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 3:9–16.) 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.)

Plaintiff has alleged in his complaint that in October 2013, during a standard physical examination, “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.)

The Court finds that Plaintiff’s allegations clearly allege a “sexual assault” as defined by Code of Civil Procedure section 340.16. Whether or not Plaintiff’s factual allegations sufficiently allege a “cover up” as to invoke the revival provision of the statute is immaterial, because they satisfy the preliminary requirements for the statute’s application under Code of Civil Procedure section 340.16, subdivision (b)(3). The alleged sexual assault occurred in October 2013, and the instant action was commenced on 11/22/22.

Accordingly, the Court finds sufficient basis to apply the statute of limitations set forth in Code of Civil Procedure section 340.16 to the facts of the instant action.

Defendant argues that Plaintiff’s claims are nevertheless time-barred by the relevant statutes of limitations 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. (Id. at ¶¶ 45–46.) “Obviously the plaintiff believed by October or November of 2013 that Dr. Castillo’s conduct was wrong.” (Dem. 6:21–22.)

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., 5:6–8, 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 4:23–27.)

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.

Defendant further demurs to Plaintiff’s fourth cause of action, which alleges 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 meet the particularity standard for pleading fraud causes of action because Plaintiff has not specifically alleged facts to support second, third, and fourth elements of a constructive fraud cause of action. (Dem. 6:13–14.) Plaintiff concedes to this issue raised in Defendant’s demurrer, and requests leave to amend his fourth cause of action. 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 complaint in the event that the Court finds merit in any of Defendant’s arguments. (Pl.’s Opp., 6:5–16.) 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.

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.

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