Judge: Ronald F. Frank, Case: 21STCV33265, Date: 2023-09-13 Tentative Ruling


Case Number: 21STCV33265    Hearing Date: March 26, 2024    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 March 26, 2024¿ 

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CASE NUMBER:                  21STCV33265

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CASE NAME:                        Plaintiff Doe v. Innovative Fertility Center, et al.

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MOVING PARTY:                Defendants, Innovative Fertility Center; Mark Rispler

 

RESPONDING PARTY:       Plaintiff, Plaintiff Doe

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TRIAL DATE:                        May 6, 2024

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MOTION:¿                              (1) Motion for Summary Adjudication

                                               

¿ Tentative Rulings:                 (1) DENIED

 

 

 

 

I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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Plaintiff Doe filed this action against Defendants Innovative Fertility Center, Mark J. Rispler (collectively “Defendants”), and Does 1-50 on September 9, 2021. On November 15, 2021, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants alleging the following causes of action: (1) Battery; (2) Sexual Assault; (3) Medical Negligence; and (4) Intentional Infliction of Emotional Distress. These causes of action are based on Plaintiff’s allegation that on October 1, 2019, during her medical appointment with Mark J. Rispler, M.D., that he intentionally and inappropriately used the transvaginal ultrasound wand in a sexual nature as he was performing the exam.

 

Defendants have now filed a Motion for Summary Adjudication stating that the First, Second, and Fourth causes of action lack merit and that there are grounds for summary adjudication of ¾ of the causes of action.

 

B. Procedural¿¿ 

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On August 23, 2023, Defendants filed a Motion for Summary Adjudication. On December 20, 2023, Plaintiff filed an ex parte application to continue the hearing on Defendant’s Motion for Summary Adjudication, which was granted in part. On March 11, 2024,  Plaintiff filed an opposition with a declaration from the Plaintiff and from counsel. On March 18, 2024, Defendants filed a reply brief.

 

 

 

II. EVIDENTIARY OBJECTIONS

 

Defendants’ Evidentiary Objections to Plaintiff’s Opposition Evidence

SUSTAIN: 3, 4, 5 on ambiguity grounds only (“that he did it” and “I did that” and “he did that”), 9 (all but 1st sentence), 14

 

OVERRULE: 1-2, 6, 7, 8 and 9 first sentence (lay opinion, not expert opinion, based on the Plaintiff’s stated experience with other transvaginal ultrasounds)

 

There are no objections numbered 10-13 in the document filed by defendant on March 18, 2024

 

III. ANALYSIS¿ 

 

 

A. Legal Standard

 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿ 

 

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.¿¿¿ 

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 

 

B. Discussion 

 

Preliminarily, the Court observes that its role on a dispositive motion is not to consider the weight or credibility of the evidence. It should only determine if a triable issue of material fact exists which requires the weighing procedures of trial. (Id.) In making its motion, Defendants lay out Plaintiff’s allegations, statements made in her deposition, indicate that as of the time the motion was filed Dr. Rispler had not had his deposition taken, but did provide a declaration in support of his view and recollection of what transpired when re-positioning the probe or lubricating the tip. Assuming for sake of argument that Defendants may have met their initial burden, Plaintiff’s opposition papers -- which include her declaration of her view and recollection of what transpired several times during the ultrasound examination -- demonstrate that a finder of fact must decide between the parties’ competing views and recollections.  Plaintiff’s evidence, particularly her own declaration as to the matters to which the Court overruled objections reveals several triable issues of material fact including the movements of the wand during the examination, the location of the wand during the examination, and perhaps whatever the “that” is where Plaintiff recounts statements made by Dr. Rispler during the procedure. As such, for the Battery, Sexual Assault, and IIED claims, the Court finds that at minimum, Plaintiff has carried her shifted burden as the same type of evidence, declaration/deposition testimony, is provided by both parties and the Court refuses nor is permitted to weigh the strength of the evidence of these parties’ testimonies.

 

Defendants seem to rely on the fact that Dr. Rispler’s declaration as to his intent is dispositive to whether Plaintiff can carry the intentional tort causes of action. However, if this were true, any declaration or deposition testimony of a party accused of an intentional tort asserting that it was not their intent, would rarely proceed to trial. Further, this case involves a medical procedure. As such, the rules for medical battery and assault are different. Lack of consent in a medical procedure is different than the general intentional torts. As such, simply because Plaintiff consented to a transvaginal ultrasound procedure does not mean that a battery or assault may not have occurred when Plaintiff’s consent was allegedly exceeded by Dr. Rispler’s actions. It is undisputed that Plaintiff gave conditional consent to receive a transvaginal ultrasound, however there is no evidence of what documents Plaintiff was provided or that she signed. There is no evidence of whether the documents Plaintiff may have signed indicated the procedure for a transvaginal ultra sound. There is no evidence of whether consent for a transvaginal ultrasound includes the alleged movement of the wand to spread lubricant multiple times on portions of the Plaintiff’s vulva up near the superior part of the clitoris.  The trier of fact may well believe Dr. Rispler’s testimony as to the need to lubricate the labia and to reposition the wand to gain a view of each ovary, but they may believe Plaintiff’s testimony instead. 

 

Unlike sexual battery crimes that require proof of the alleged perpetrator’s mens rea as to gratification or arousal, in a civil battery setting the intentional tort only requires proof that the act of moving the wand was done intentionally rather than negligently, and the Plaintiff’s declaration raises a triable issue of fact bearing on that species of intent given the number of times she states the wand touched her clitoris.  She says he rubbed the wand across her clitoris 5 times; he “absolutely” denied that he did so.  That is sufficient by itself to deny summary adjudication. 

 

The fact that Plaintiff’s counsel elected to refrain from asking her client question at the deposition noticed by defense counsel is not sufficient to raise the Benavides v. San Jose Police Department issue because the declaration does not CONTRACDICT the deposition testimony.  Nowhere in the objections or reply brief are any specific deposition passages cited where plaintiff allegedly contradicted deposition testimony in her declaration. 

 

Thus, the Motion for Summary Adjudication as to the First, Second, and Fourth causes of action are DENIED.

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