Judge: Richard Y. Lee, Case: 30-2023-01308194, Date: 2023-07-20 Tentative Ruling
Defendant Martha Rogers (“Defendant”) demurs to the Complaint filed by Plaintiff Tin Q. Phan (“Plaintiff”) on the grounds that all causes of action fail to state any conduct that is actionable as a matter of law and are uncertain. Defendant further moves to strike the two causes of action for professional negligence and defamation and the claim for punitive damages.
Meet and Confer
Here, the parties adequately met and conferred prior to the filing of this Demurrer and Motion to Strike.
Request for Judicial Notice
Defendant requests judicial notice of an April 28, 2021 Order Appointing Expert filed in Juvenile Case No. 21DP0344, In re the Matter of: Mia Phan, of the Orange County Superior Court. The Request for Judicial Notice is GRANTED. (Evid. Code, § 452(d).)
Merits
Though the Complaint does not expressly name the causes of action asserted, Plaintiff alleges that Defendant was negligent in an attempted psychological evaluation and failed to obtain Plaintiff’s consent, failed to provide a comprehensive evaluation, failed to properly consider information provided by Plaintiff, and reached conclusions contrary to and unsupported by available facts and evidence. (Compl. at p. 2.) Plaintiff alleges he has suffered damages as a result of Defendant’s negligent conduct and the resulting defamation of his character. (Compl. at p. 3.) The Judicial Council form for intentional tort causes of action is attached to Plaintiff’s Complaint at page 4. Further, the Civil Case Cover Sheet filed along with the Complaint describes this case as one for defamation and professional negligence. (ROA 3.) Thus, it appears that Plaintiff is asserting causes of action for professional negligence and defamation here.
Professional Negligence
As to a cause of action for professional negligence, Defendant argues there are insufficient facts alleged in support, the claim is barred by the applicable statute of limitations, and Plaintiff has not provided notice of this action pursuant to Code of Civil Procedure section 364.
The elements of a cause of action for professional negligence are: “(1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)
Code of Civil Procedure section 364 provides: “No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” (Code Civ. Proc., § 364(a).) It appears that Plaintiff has not complied with this section. However, “[f]ailure to comply with this chapter shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein.” (Code Civ. Proc., § 365.) “The Supreme Court recently reiterated the rule that failure to comply with the 90–day notice provision does not invalidate court proceedings and is not jurisdictional, although it may subject the plaintiff's attorney to State Bar discipline.” (Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180.) Thus, Plaintiff’s apparent failure to comply with this section does not invalidate these proceedings. The Demurrer on this ground is OVERRULED.
Further, Defendant’s statute of limitation argument rests on the contention that Plaintiff had notice of Defendant’s report on or about June 11, 2021, when the social worker received a copy via email, or by June 16, 2021 at the latest, when a court hearing was conducted. However, neither the face of the Complaint nor the documents attached to Defendant’s Request for Judicial Notice reveal that this is necessarily true. They do not show that Plaintiff received notice of the report when the social worker received it or what was discussed or disclosed at the June 16 hearing. Thus, the Demurrer on this ground is OVERRULED as well. (See Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 972 [demurrer based on statute of limitations will only be sustained where the defect clearly and affirmatively appears on the face of the complaint].)
As to whether the Complaint adequately alleges facts to support this cause of action, Plaintiff alleges that Defendant negligently failed to obtain Plaintiff’s consent, failed to provide a comprehensive evaluation, failed to properly consider information provided by Plaintiff, and reached conclusions contrary to and unsupported by available facts and evidence. There are no further facts alleged demonstrating how Defendant’s evaluation was not comprehensive or did not properly consider all information provided. These allegations are vague and insufficient to show that Defendant breached any duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise. The Complaint therefore fails to adequately allege the breach element of this cause of action.
In light of the above, the Court holds that the Complaint fails to state facts sufficient to support a professional negligence cause of action. The Demurrer on this ground is therefore SUSTAINED.
Defamation
Defendant contends this cause of action fails because the Complaint does not include a specific identification of the words used or identify when, where, or how any defamatory comments were made public by Defendant. Defendant argues that the allegedly defamatory statements were made between herself and the social worker and the Court and that all those involved were interested parties and not the general public. She further argues that the statements were made during court proceedings and are absolutely protected by the litigation privilege.
The elements of a defamation claim are “(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.)
Pursuant to Civil Code section 47, a publication made in any judicial proceeding is privileged. (Civ. Code, § 47(b).) This privilege “has been given broad application.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 211.) “Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citation.] The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Id. at p. 212.)
The Complaint alleges that on June 11, 2021, a social worker for the County of Orange received a copy of a “Report of Attempted Psychological Evaluation” from Defendant via email (the “Report”). Plaintiff alleges that 15 of the statements contained in that Report are untrue. The Report was allegedly made for the juvenile court for the County of Orange Social Services Agency.
The judicially noticed April 28, 2021 order and Complaint show that Defendant was appointed to evaluate Plaintiff in connection with a Juvenile Court proceeding and provide copies of her report to the assigned social worker. Defendant attempted to complete an evaluation as ordered and provided the Report to the social worker on June 11, 2021. Thus, the Report was made as part of a judicial proceeding and was privileged. Thus, the defamation cause of action fails because there are no allegations showing that the Report was unprivileged.
The Demurrer to the defamation cause of action is therefore SUSTAINED.
Motion to Strike
Defendant’s Motion to Strike the two causes of action is MOOT, as the Demurrer to each cause of action is sustained.
As Defendant’s Demurrer to the Complaint is SUSTAINED, Plaintiff has failed to adequately state any cause of action against Defendant. The Court finds that Plaintiff’s prayer for punitive damages fails as well. Further, Defendant is correct that Plaintiff has not obtained an order allowing an amended pleading that includes a claim for punitive damages to be filed in this action for professional negligence, as required by Code of Civil Procedure section 425.13(a). Thus, the Motion to Strike is GRANTED as to Plaintiff’s request for punitive damages.
As this is the first attack of the Complaint filed by Defendant, the Court grants Plaintiff 20 days leave to amend.
Defendant to give notice.