Judge Robert B. Broadbelt, Case 22STCV21699 2023-02-02 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV21699, Date: 2023-02-02 Tentative Ruling

MOVING PARTY: Defendant Houman Vosoghi, M.D. (erroneously sued and served as Hovman Vosoghi)

The court considered the moving, opposition, and reply papers filed in connection with the demurrer and motion to strike.

Plaintiff Shahnaz Bahadori (“Plaintiff”) filed this action on July 6, 2022, alleging five causes of action against various defendants.

On October 14, 2022, Plaintiff filed the operative First Amended Complaint against defendants DLV Vision; Dougherty Laser Vision; DLV Vision ASC, LLC; DLV Vision Management, LLC; Sharmini Asha Balakrishnan, M.D.; Hovman Vosoghi; Paul J. Dougherty, M.D.; and Paul J. Dougherty M.D., Inc. Plaintiff alleges four causes of action for (1) negligence; (2) human rights violation; (3) elder abuse; and (4) intentional infliction of emotional distress.[1]

Defendant Houman Vosoghi, M.D. (erroneously sued and served as Hovman Vosoghi) (“Defendant”) moves the court for an order (1) sustaining the demurrer to Plaintiff’s causes of action for failure to obtain informed consent, human rights violations, elder abuse, and intentional infliction of emotional distress, and (2) striking Plaintiff’s requests for punitive damages, attorney’s fees, general damages of five million dollars, prejudgment interest, and statutory fees from the First Amended Complaint.

The court notes that Defendant has filed a demurrer to the purported second cause of action for failure to obtain informed consent. This cause of action is identified in the caption of the First Amended Complaint, but is not included in the body of the complaint. (FAC p. 1:14-15.) In opposition, Plaintiff states that the caption contains a typographical error, as Plaintiff intended to delete this cause of action in its entirety. (Opp., p. 4, fn. 1.) Plaintiff states that she consents to dismissal of this cause of action since she intended to remove it from her amended complaint. The court therefore sustains Defendant’s demurrer to the purported cause of action for failure to obtain informed consent.

The court sustains Defendant’s demurrer to Plaintiff’s second cause of action for human rights violation because it does not state facts sufficient to constitute a cause of action since Plaintiff does not allege, with the requisite particularity, facts establishing that Defendant (1) denied Plaintiff full and equal accommodations because of her race or religion in violation of the Unruh Civil Rights Act; (2) committed violence against or intimidated Plaintiff by threat of violence in violation of the Ralph Civil Rights Act of 1976, because Plaintiff alleges only that Defendant failed to “catch[] [or ignore] the problem” suffered by Plaintiff as a result of her procedure; or (3) interfered or attempted to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by Plaintiff of any right secured to her by Constitution or statute in violation of the Tom Bane Civil Rights Act. (Code Civ. Proc., § 430.10, subd. (e); FAC ¶¶ 25, 46, subds. (i), (j), 30; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [“statutory causes of action must be pleaded with particularity”]; Civ. Code, §§ 51, subd. (b), 51.7, subd. (b)(1), 52.1, subds. (b), (c).)

The court sustains Defendant’s demurrer to Plaintiff’s second cause of action for human rights violation on the ground of uncertainty because it is ambiguous and unintelligible since Plaintiff alleges violations of various statutes with separate elements in one cause of action, which should be pleaded separately. (Code Civ. Proc., § 430.10, subd. (f).)

The court overrules Defendant’s demurrer to Plaintiff’s third cause of action for elder abuse because Plaintiff alleges that Defendant “engaged in physical elder abuse” and does not appear to allege elder abuse based on neglect. (FAC ¶¶ 53, 55, 59.) Even if the First Amended Complaint could be read to allege a claim for elder abuse based on neglect as well as physical abuse, Defendant has not challenged the sufficiency of the allegations that Defendant engaged in physical elder abuse. The court cannot sustain the demurrer as to only a portion of the cause of action that may be alleging elder abuse based on neglect. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action”]; Demurrer, pp. 7:26-8:6.)

The court sustains Defendant’s demurrer to Plaintiff’s fourth cause of action for intentional infliction of emotional distress because it does not state facts sufficient to constitute a cause of action since Plaintiff fails to allege facts establishing that Defendant’s conduct was “so extreme as to exceed all bounds of that usually tolerated in a civilized community” and therefore has failed to allege the element of extreme and outrageous conduct. (Code Civ. Proc., § 430.10, subd. (e); Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [internal quotations omitted].)

Defendant moves the court for an order striking from Plaintiff’s First Amended Complaint the (1) requests and prayer for punitive damages; (2) requests and prayer for attorney’s fees; (3) prayer for general damages; (4) prayer for prejudgment interest; and (5) prayer for statutory fees.

The court denies as moot Defendant’s motion to strike Plaintiff’s requests for punitive damages as set forth in paragraphs 51 and 65, because those requests are set forth in allegations made in support of Plaintiff’s second and fourth causes of action, to which the court has sustained Defendant’s demurrer.

The court denies Defendant’s motion to strike Plaintiff’s prayer of punitive damages pursuant to Code of Civil Procedure section 425.13. (Code Civ. Proc., § 436, subd. (a).) “Section 425.13, subdivision (a) ‘bars inclusion of a punitive damages claim in certain actions against health care providers unless the plaintiff first demonstrates a “substantial probability” that he “will prevail” on the claim.’” (Pomona Valley Hospital Medical Center v. Superior Court (2013) 213 Cal.App.4th 828, 835-836; Code Civ. Proc., § 425.13, subd. (a).) However, this section “does not apply to elder abuse actions because the statute is not needed to weed out frivolous elder abuse claims, which require essentially the same high level of mental culpability as is required for punitive damages.” (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 124; Covenant Care, Inc., supra, 32 Cal.4th at pp. 776, 783, 790.) Defendant has not moved to strike punitive damages on the ground that Plaintiff has not alleged facts establishing that Defendant is guilty of recklessness, oppression, fraud, or malice in the commission of the alleged elder abuse, and the court has overruled Defendant’s demurrer to Plaintiff’s elder abuse cause of action. (Wel. & Inst. Code, § 15657; Civ. Code, § 3294.) The court therefore finds that Defendant has not met his burden of establishing that Plaintiff’s requests and prayer for punitive damages are improper pursuant to Code of Civil Procedure section 425.13.

The court denies Defendant’s motion to strike Plaintiff’s prayer for attorney’s fees, statutory fees, and prejudgment interest because the court has overruled Defendant’s demurrer to Plaintiff’s third cause of action for elder abuse. (Code Civ. Proc., § 436, subd. (a).)

The court grants Defendant’s motion to strike Plaintiff’s prayer for “[g]eneral damages of five million dollars” as improper because, in an action to recover actual damages for personal injury, “the amount demanded shall not be stated….” (Code Civ. Proc., §§ 436, subd. (a), 425.10, subd. (b).)

The court sustains defendant Houman Vosoghi, M.D.’s demurrer to plaintiff Shahnaz Bahadori’s purported cause of action for failure to obtain informed consent, second cause of action for human rights violation, and fourth cause of action for intentional infliction of emotional distress.

The court overrules defendant Houman Vosoghi, M.D.’s demurrer to plaintiff Shahnaz Bahadori’s third cause of action for elder abuse.

The court grants defendant Houman Vosoghi, M.D.’s motion to strike the prayer for “[g]eneral damages of five million dollars.” (FAC, Prayer, ¶ 1.)

The court denies all other requests made in defendant Houman Vosoghi, M.D.’s motion to strike.

The court grants plaintiff Shahnaz Bahadori 20 days leave to file a Second Amended Complaint that cures the deficiencies with the second cause of action for human rights violation and fourth cause of action for intentional infliction of emotional distress discussed above.

[1] The court notes, and the parties do not dispute, that the causes of action listed in the caption do not reflect the causes of action asserted in Plaintiff’s First Amended Complaint. The court addresses the causes of action that have been asserted in the body of the First Amended Complaint in numerical order.

shahnaz bahadori ; Plaintiff, vs. dlv vision , et al.; Defendants.	Case No.:	22STCV21699

	Hearing Date:	February 2, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: (1) demurrer to first amended complaint (2) motion to strike portions of first amended complaint