Judge: Ronald F. Frank, Case: 19STCV32547, Date: 2023-05-03 Tentative Ruling
Case Number: 19STCV32547 Hearing Date: May 3, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: May 3, 2023
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CASE NUMBER: 19STCV32547
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CASE NAME: Erica H.
Leventhal, a minor, by and through her Guardian Ad Litem Cornelia A.R. Pechmann
v. Select Medical Holdings Corporation, Inc., et al
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MOVING PARTY: (1) Defendant, Jamie Lu Dominguez
(2)
Defendants, Heather Seyfert, PT, and Physiotherapy Associates, Inc. dba
Select Physical Therapy
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RESPONDING PARTY: Plaintiff,
Erica H. Leventhal
TRIAL DATE: July 7, 2023
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MOTION:¿ (1) Defendant, Jamie Lu
Dominguez’s Demurrer
(2)
Defendant, Jamie Lu Dominguez’s Motion to Strike
(3)
Defendants, Heather Seyfert, PT, and Physiotherapy Associates, Inc. dba Select
Physical Therapy Demurrer
(4) Seyfert’s Motion to Strike
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Tentative Rulings: (1) SUSTAINED, with 20 days leave
to amend
(2)
MOOTED by the sustaining of the intentional tort cause of action on which the
punitive damages allegations are predicated
(3)
SUSTAINED, with 20 days leave to amend
(4)
MOOTED for the same reason
I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On
September 13, 2019, plaintiff Erica H. Leventhal, a minor by and through her
guardian ad litem, Cornelia A.R. Pechmann (“Plaintiff”), filed a complaint
against Select Medical Holdings Corporation, Inc., Select Physical Therapy,
Novacare Rehabilitation Health Services, Inc., Heather Seyfert, and Doe
defendants for (1) battery, (2) fraud, and (3) negligence. On February 21,
2020, the court overruled defendants Physiotherapy Associates, Inc., Select
Medical Holdings Corporation, Inc., and Heather Seyfert’s demurrer as to the
1st cause of action for battery and sustained it without leave to amend as to
the 2nd cause of action for fraud. The court granted the motion to strike in
its entirety. On December 1, 2020, plaintiff filed an amendment designating
Jamielu Dominguez as Doe 1. On February 22, 2021, plaintiff filed an amendment
designating Physiotherapy Associates, Inc. dba Select Physical Therapy as Doe
2. On March 23, 2021, plaintiff filed a FAC. Dominguez’ demurrer to the FAC was sustained as
to the battery cause of action with leave to amend. On March 8, 2023, two years later, Plaintiff
filed a Second Amended Complaint (“SAC”) after the Court granted a January 17,
2023 motion for leave to file it, alleging causes of action for (1) battery
against Syfert, Physio, and DOES 3 through 10; (2) battery against Dominguez,
Physio, and DOES 3 through 10; and (3) negligence against all Defendants; and
(4) Deceit against Defendants Physio, Seyfert, and DOES 3 through 10.
Defendant
Jamie Lu Dominguez filed a Demurrer to the second cause of action for battery and
a Motion to Strike the punitive damages allegations in the SAC. Defendants Heather Seyfert, PT, Physiotherapy
Associates, Inc. dba Select Physical Therapy also brought a Demurrer and Motion
to Strike portions of the SAC.
B. Procedural¿¿¿
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On March
27, 2023, Defendant, Jamie Lu Dominguez filed a Demurrer and Motion to Strike.
On April 7, 2023, Plaintiff filed oppositions to both motions. On April 13,
2023, Defendant Dominguez filed reply briefs.
On April 7, Defendants Seyfert and Physio filed a Motion to
Strike. On April 13, 2023, Defendants Seyfert and Physio brought a Demurrer. On
April 20, 2023, Plaintiff filed oppositions to both motions, and on April 24 Plaintiff
filed a “Notice of Errata” regarding the opposition to Seyfert’s Demurrer. On April 26, 2023, Defendants filed reply
briefs and an objection to the “Notice of Errata”.
II. REQUEST FOR JUDICIAL
NOTICE
Defendants
Seyfert and Physio requested this Court take Judicial Notice of the following:
Document # 1: Approved Medicare
Enrollment Record provided to Physiotherapy Associates, Inc., dba Select
Physical Therapy. The report date for this current enrollment is 3/16/2023. The
effective date is identified a 6/1/2017. This document identifies that
Physiotherapy Associates is approved and certified by Medicare and have
provided an enrollment ID of 020050718000079.
The Court GRANTS
Defendants’ request and takes judicial notice of the above pursuant to Evidence
Code, Section 452(c), as official acts of an executive administrative agency
are judicially noticeable.
III. ANALYSIS¿¿
As a
preliminary matter, this Court observes that Plaintiff’s April 24, 2023 “Notice
of Errata” is not in fact what it is labeled.
Instead, the so-called “Errata” is a series of additional arguments
asserted by Plaintiff to essentially extend the time and page limit for its
earlier-filed Opposition brief. The Court
will not consider any of the tardy and untimely arguments in the “Notice of
Errata” for purposes of hearing the pending demurrers and motions to
strike. The Court notes that Plaintiff
had a preview of the Seyfert Demurrer when Seyfert filed her opposition to the motion
for leave to file the SAC on February 23, 2023.
A. Jamie Lu Dominguez’ Demurrer
Legal
Standard
A demurrer can be used only to challenge defects that
appear on the face of the pleading under attack or from matters outside the
pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts
sufficient to state a cause of action; each evidentiary fact that might
eventually form part of the plaintiff’s proof need not be
alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of
action, the demurrer admits the truth of all material facts properly pleaded. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does
not admit contentions, deductions or conclusions of fact or law.” (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿
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A pleading is uncertain if it is ambiguous or
unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for
uncertainty may lie if the failure to label the parties and claims renders the
complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿
Discussion
The first cause of action for
battery against Seyfert is not raised by Dominguez’ Demurrer to the SAC. Instead, Dominguez demurs to the Second Cause
of Action for Battery because Dominguez argues it fails to state facts
sufficient to constitute a cause of action against Dominguez, and is uncertain,
ambiguous, and unintelligible. “The essential elements of a cause of
action for battery are: (1) defendant touched plaintiff, or caused plaintiff to
be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by defendant’s
conduct; and (4) a reasonable person in plaintiff’s position would have been
offended by the touching.” (So v. Shin
(2013) 212 Cal.App.4th 652, 668-669.)
Here, the SAC alleges that on September 14, 2018, as
detailed above herein, “Jamie” (Defendant Dominguez) acting for and on behalf
of all Defendants aggressively applied a percussive massage machine to bony
prominences at Erica’s right shoulder, right armpit, and right upper arm, which
resulted in harmful and offensive contact to Erica. (SAC, ¶ 47.) Plaintiff
claims Erica did not consent to the contact and told Dominguez to stop, but she
did not stop and continued the hypervolt machine. (SAC, ¶¶ 48-50.) Plaintiff
argues that this resulted in harmful and offensive contact with Erica’s body.
(SAC, ¶ 51.) Plaintiff further notes that as a result, Erica was required to
and did obtain hospital care and attention and services and incur, and will
continue to incur medical, incidental, and service expenses. (SAC, ¶ 51.)
In Defendant Dominguez’s Demurrer, she argues that there
are no allegations in the SAC that Dominguez knew, should have known, or had
anything to do with the conditional consent the plaintiff's mother provided
many months before the subject treatment in which Ms. Dominguez was allegedly
involved. As such, Dominguez argues that SAC does not allege any facts which
might demonstrate that Ms. Dominguez knowingly or intentionally violated a
conditional consent, and therefore fails to substantiate a claim for Medical
Battery. Dominguez relies on Cobbs v. Grant (1972) 8 Cal.3d 229, 240-41,
noting that the Supreme Court stated battery causes of action are disfavored in
the context arising out of medical treatment.
Cobb discussed medical battery as being a viable cause of action
where the health care provider performs an operation or medical procedure to which
the plaintiff never consented; that case is not entirely on point here where
Plaintiff admittedly consented to have physical therapy but the lack of consent
arises from the identity of the person who performed the consensual treatment
or the modality employed for that phase of the agreed-upon therapy.
Dominguez
further notes that Plaintiff is alternatively attempting to allege a common law
Battery, by way of an allegation of an improper harmful touching by Ms.
Dominguez after plaintiff allegedly asked Ms. Dominguez to stop using a
modality of treatment after consenting to have physical therapy performed. Dominguez submits that plaintiff is alleging
that she was injured only by the use of the modality by Ms. Dominguez after she
was allegedly told to stop, but that it is just as likely that plaintiff was
injured, if at all, before consent was allegedly withdrawn. The Court does not
find this to be an appropriate argument on demurrer, which is limited in its scope
to the four corners of the pleading, not any outside facts the defendant may
wish to raise at trial or in a dispositive motion. Dominguez also asserts that the SAC does not
allege that Dominguez intended to harm Plaintiff, and thus, Plaintiff fails to
allege all elements for battery. The Court also notes that that the SAC is
devoid of any allegation that a reasonable person would find such contact to be
harmful or offensive.
In
opposition, Plaintiff argues that the intent to harm is inferred from Dominguez
refusing to cease applying the Hypervolt machine when Plaintiff asked her to.
(SAC, ¶ 16.) Plaintiff also argues that the issue of whether a reasonable
person would have been offended by someone continuing to apply a machine when
they were asking them to stop, is also alleged by inference. (SAC, ¶ 16.) The Court disagrees. The allegation of common law battery in the second
cause of action is uncertain in that it purports to allege that Dominguez told Plaintiff
that she needed the treatment even though it might hurt, which is not consistent
with the intent to injure element. Plaintiff
attempts to argue that the SAC supports causes of action for Intentional
Infliction of Emotional Distress and Assault. But as noted in Dominguez’s reply, such causes
of action are not present in the SAC, nor are they alleged against Dominguez.
The Court is not persuaded by any of these arguments. Because the SAC fails to
state a cause of action for common law or medical battery the demurrer as to
that one cause of action is SUSTAINED, with leave to amend.
The Court
is mindful that there is a July trial date in this case. A further amendment and a further round of
pleading motions will likely result in the trial being postponed.
B. Jamie Lu Dominguez Motion to Strike
Because the Demurrer to the
intentional tort claim is sustained, the Motion to Strike the punitive damages allegations
contained in the SAC that are predicated on that intentional tort is mooted. Accordingly, the Court need not reach the
question of whether the medical battery punitive damages allegations were
timely raised or whether that statute applies to an intern performing a
procedure under the supervision of a physical therapist, duly licensed or not.
C. Seyfert and Physio’s Demurrer
Discussion
Here, Defendants
Seyfert and Physio demur to the SAC on the grounds that they argue the fourth
cause of action for deceit fails to state facts sufficient to constitute a
cause of action against demurring defendants, is time-barred, and is uncertain,
vague, and ambiguous.
Statute of
Limitations
Defendants, Seyfert and Physio first
argue that the cause of action for deceit is time-barred, noting the alleged
incident occurred on September 14, 2018, Plaintiff’s claim was filed on
November 8, 2019, and that the matter was initially set for trial on March 12,
2021. Defendants assert that deceit has a statute of limitations of three
years, and the Plaintiff failed to raise this cause of action until that time
was over. Defendants argue that based upon the facts pled in plaintiff’s
original fraud cause of action, plaintiff was aware of her alleged licensing
and alleged this claim against defendant Jamie Lu Dominguez. However, Defendants
contend that plaintiff only recently investigated the licensing of Heather
Seyfert and Jamie Lu Dominguez. Logically, Defendants argue that if plaintiff
had done her due diligence, all defendants should have been investigated and if
this had occurred, then plaintiff would have made this new corporate claim in
her original complaint. Thus, Defendant argues this alleged cause of action for
fraud/deceit should have and could have been discovered earlier and timely pled.
Defendant also argues that the
relation-back doctrine does not apply to Plaintiff’s cause of action for
deceit. The
relation-back doctrine
allows an amended complaint to be filed outside the limitations period if it
relates back to a pleading that was filed within the period of limitations. (Norgart
v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409.) For the relation-back doctrine
to apply, the amended complaint must (1) rest on the same general set of facts
as does the original complaint, (2) involve the same injury as the original
complaint, and (3) refer to the same instrumentality as does the original
complaint. (Ibid.; see also Burgos v. Tamulonis (1994) 28
Cal.App.4th 757, 763 (Burgos).)
Plaintiff’s
original Complaint alleged causes of action for: (1) Battery; (2) Fraud; and
(3) Negligence. Defendants contends that the battery and negligence causes of
action related directly to the provision of physical therapy care and
treatment, and that the fraud cause of action alleged misrepresentation in Complaint
¶ 36 that that plaintiff would only be treated “by a duly licensed physical
therapist, and more particularly would not subject her to treatment by a student
or intern physical therapist.” Defendants argue that nowhere in Plaintiff’s
original complaint were there any allegations of violations of the Moscone-Knox
Professional Corporations Act or Physical Therapy Practice Act. Defendants also
assert that none of the alleged facts in the original complaint allege deceit
of any kind by the corporate entity pertaining to allegations that
Physiotherapy was not licensed or permitted to provide physical therapy.
In
opposition, Plaintiff argues that the deceit cause of action relates back
because it is based upon the same general set of facts plead in her original
complaint since the she plead fifteen material facts, and those facts were
either duplicated or the trye names of previously unknown individuals had been
substituted. Plaintiff notes that the only additional general allegations
contained in the SAC that are not found in the Plaintiff’s original complaint
can be found in paragraphs 30-37 which attached and reiterated the findings
delineated in an August 13, 2021, Public Letter of Reprimand against Defendant
Seyfert. (SAC, ¶¶ 30 – 37; Exhibit B.)
The Court notes that both the original
and second amended complaint allege a form of deceit, the alleged concealment of
Dominguez’ involvement in the therapy in the treatment records for the
September 14, 2018 visit, i.e., a one-time, single-day record-keeping violation. (Complaint ¶¶ 21, 22; SAC ¶19.) The original complaint contained a fraud
cause of action as to which a demurrer was sustained with leave to amend; the
SAC adds a new fourth cause of action for deceit. But the SAC’s deceit claim concerns the concealment
or non-disclosure that they shareholders of Physio were not licensed and that
Physio had allegedly failed to comply with the Moscone-Knox Professional
Corporation Act. This is a much broader and
pervasive allegation than a one-time, single-day record-keeping violation.
Cause of
Action for Deceit
The tort of deceit or fraud requires a
plaintiff to plead and prove: “(a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c)
intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e)
resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631,
638.) The facts constituting the alleged fraud or deceit must be alleged
factually and specifically as to every element of fraud, as the policy of
“liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 645.) To properly allege fraud or deceit against a corporation,
the plaintiffs must plead the names of the persons allegedly making the false
representations, their authority to speak, to whom they spoke, what they said
or wrote, and when it was said or written. (Tarmann
v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
The SAC alleges that Seyfert and
Physio failed to disclose to Connie or Erica that Physio was not permitted to
provide physical therapy services in California because it purportedly had not
complied with the Moscone-Knox Professional Corporation Act or the Physical
Therapy Practice Act. (SAC, ¶ 64.) Plaintiff claims that neither Seyfert nor
Physio disclosed to Connie or Erica that the shareholders, directors, or officers
of Physio were not licensed California physical therapists. (SAC, ¶¶ 65-67.)
Plaintiff asserts that by concealing that Physio was neither owned nor
controlled by licensed California physical therapists, both Seyfert and Physio
deceived Connie, and Erica. (SAC, ¶ 68.) Plaintiff further submits that if
Connie known the true facts, then she would not have had Erica receive
treatment at Select MB. (SAC, ¶ 69.) Lastly, the SAC alleges that Physio and
Seyfert’s fraudulent and oppressive acts and omissions justify an award of
punitive damages against them under Civil Code section 3294. (SAC, ¶ 70.)
Defendants
argue that the fourth cause of action for deceit is time-barred and does not
relate back to the filing of the original complaint. Seyfert asserts that Plaintiff fails to state
a cause of action for deceit with the required specificity needed to allege
such a claim. Defendants also argue that Plaintiff has not identified the type
of fraud she is alleging (i.e., false promise, misrepresentation, concealment,
etc.), and lacks the necessary and required specificity. As noted by
Defendants, Plaintiff has failed to allege knowledge of falsity, intent to
defraud, and justifiable reliance. The Court finds that the deceit claim sufficiently
alleges the species of fraud, i.e., deceit or concealment, as contrasted with an
affirmative misrepresentation. But the fourth
cause of action lacks several requisite elements, and lacks the detail and
specificity with which the battery and negligence causes of action are alleged. Ironically, the law requires greater
specificity for the SAC’s fourth cause of action than it requires for the three
more detailed claims. These elements are
necessary to state a cause of action for fraud or deceit, even where as here the
basis for the claimed deceit is an omission or concealment. Because Plaintiff fails to do so, the demurrer
is sustained, with 20 days leave to amend.
On
the statute of limitations issue, the Demurrer argues that plaintiff did not investigate
the corporate licensure issue until recently, and did not even seek leave to
add the deceit cause of action until after the three-year period had
expired. Seyfert’s Demurrer contends the
deceit cause of action does not relate back because – while there were concealment
or omission facts alleged in the original complaint – there are new facts
alleged in the SAC such as the license status of the defendant company and its
managers and therapists which were not contemplated by the original Complaint’s
allegations of defrauding Plaintiff with the use of a student intern. Are the corporate licensure allegations “entirely
unrelated to those pleaded in the original complaint” as in Pointe San Diego
Residential Community, LP v. Procopio, Cory Hargreaves & Savich, LLP (2011)
195 Cal.App.4th 265, 276-77), or as Plaintiff’s Opposition contends
are most of the operative facts repeated verbatim in the SAC? The Opposition
relies too heavily on the two words “duly licensed” in an effort to tie the SAC
to the allegations of the original Complaint.
But in doing so, Plaintiff ignores the fact that her original pleading purported
to state an active fraud claim, i.e., an affirmative misrepresentation in Complaint
¶ 36 that that plaintiff would only be treated “by a duly licensed physical
therapist, and more particularly would not subject her to treatment by a student
or intern physical therapist.” The
fourth cause of action for deceit is more a passive or constructive fraud
claim, and the “more particularly” focus in Paragraph 36 of the original
pleading, which is abandoned in the SAC’s fraud claim, makes it clear to the Court
that the new deceit claim is far afield from the original Complaint. The Court is inclined to allow leave to amend
since this is a first-time demurrer to a new cause of action, but Plaintiff
must be mindful that much more will be needed to overcome the statute of limitations
in a possible third amended complaint than the SAC currently provides.
D. Seyfert and Physio’s Motion to Strike
As noted above, the demurrer was
sustained. As such, the Motion to Strike is mooted.