Judge: Salvatore Sirna, Case: 20STCV48320, Date: 2023-04-17 Tentative Ruling
Case Number: 20STCV48320 Hearing Date: April 17, 2023 Dept: G
Defendant Nageswara R. Guntupalli, M.D.’s Demurrer to Plaintiffs’
Third Amended Complaint
Respondent: Plaintiffs Joshua Acosta and Veronica Gallegos
Defendant Nageswara R. Guntupalli, M.D.’s Motion to Strike Portions of Plaintiffs’ Third Amended Complaint
Respondent: Plaintiffs Joshua Acosta and Veronica Gallegos
TENTATIVE RULING
Defendant Nageswara R. Guntupalli, M.D.’s Demurrer to Plaintiffs’ Third Amended Complaint is SUSTAINED without leave to amend.
Defendant Nageswara R. Guntupalli, M.D.’s Motion to Strike Portions of Plaintiffs’ Third Amended Complaint is GRANTED without leave to amend.
BACKGROUND
This is a personal injury action. Plaintiff Joshua Acosta (Acosta) was involuntarily committed to the Aurora Charter Oak Hospital, a psychiatric hospital in Covina, where Acosta was allegedly attacked and beaten by hospital employees.
On December 18, 2020, Acosta filed a complaint against Aurora Charter Oak-Los Angeles, LLC (Aurora LLC) and Does 1-100, alleging the following causes of action: (1) negligent hiring, supervision, and retention; (2) civil conspiracy; (3) battery; (4) negligence per se (child abuse); (5) intentional infliction of emotional distress; and (6) premises liability.
On January 4, 2021, Acosta and Plaintiff Veronica Gallegos (Gallegos, collectively, Plaintiffs), Acosta’s mother, filed a First Amended Complaint (FAC) against Aurora LLC; Nageswara R. Guntupalli, M.D. (Defendant); William M. Gillespie, M.D. (Dr. Gillespie); Signature Healthcare Services, LLC (Signature LLC); Signature Healthcare Management Inc. (Signature Inc.); Aurora Health Care, Inc. (Aurora Inc.); Todd Smith (Smith); and Does 1-100, alleging the following causes of action: (1) breach of mandatory duty pursuant to CANRA; (2) civil conspiracy based on statutory violations of CANRA; (3) negligent failure to render aid; (4) violation of the Bane Act, Civil Code section 52.1; (5) violation of the Ralph Act, Civil Code section 51.7; (6) negligent supervision, management, and retention; (7) battery; (8) fraud by intentional misrepresentation; (9) fraud by intentional concealment; (10) negligent infliction of emotional distress; (11) intentional infliction of emotional distress; (12) premises liability; (13) non-delegable duty doctrine; (14) peculiar risk doctrine; and (15) negligence per se (breach of duties pursuant to Penal Code section 273d).
On December 13, 2021, Aurora LLC, Aurora Inc., Signature LLC, Signature Inc., and Smith (collectively, Aurora Defendants) demurred to Plaintiffs’ FAC. On April 27, 2022, the court sustained the demurrer in part without leave to amend as to the fourth and fifth causes of action by Gallegos and as to the tenth cause of action by Acosta.
On May 13, 2022, Defendant demurred to Plaintiffs’ FAC. On May 20, Acosta also demurred to the Aurora Defendants’ answer. On June 20, the court sustained Acosta’s demurrer with leave to amend. On June 27, the court also sustained Defendant’s demurrer with leave to amend.
On July 28, 2022, Plaintiffs filed a Second Amended Complaint (SAC) against Defendant, the Aurora Defendants, and Does 1-100, alleging the same causes of action.
On September 9, 2022, Defendant demurred to Plaintiffs’ SAC. On September 22, the Aurora Defendants filed motions for summary judgment or adjudication. On October 20, Plaintiffs dismissed the fourth, fifth, and eleventh causes of action against Defendant. The first and second causes of action were also dismissed, but only by Gallegos and not Acosta. On November 30, the court sustained Defendant’s demurrer in part with leave to amend as to the second and ninth causes of action.
On January 27, 2023, Plaintiffs filed a Third Amended Complaint (TAC) against Defendant, the Aurora Defendants (minus Smith), Dr. Gillespie, and Does 1-100, alleging the same causes of action.
On February 28, 2023, Defendant filed the present demurrer and motion to strike. On February 20, prior to filing the present motions, Defendant’s counsel met and conferred telephonically with Plaintiffs’ counsel but was unable to reach a resolution. (McColgan Decl., ¶ 7.) A hearing on the present motions is set for April 17 and a hearing on the Aurora Defendants’ motions for summary judgment or adjudication is set for August 11.
ANALYSIS
Defendant demurrers to Acosta’s second cause of action (civil conspiracy) and Gallegos’s ninth cause of action (fraud by intentional concealment).
For the following reasons, the court SUSTAINS Defendant’s demurrer in its entirety.
Legal Standard
A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)
Civil Conspiracy (Second Cause of Action)
Defendant argues Acosta’s second cause of action for civil conspiracy fails to state a claim. The court agrees.
“Civil conspiracy is not an independent tort. Instead, it is ‘a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.’” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211-212, quoting Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) “The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages.” (Id., at p. 212.) “The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582.)
Here, Defendant argues Acosta’s claim for conspiracy fails because the essential elements of the claim are missing. The court agrees. The TAC alleges “[a]t all material times, each named Defendant was jointly engaged in tortious activity, and an integral participant in the conduct described herein, including the violation of mandatory duties to investigate and/or report child abuse and/or neglect.” (TAC, p. 19:14-17.) However, because “bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient” to establish the formation and operation of a conspiracy, the court finds this general allegation of joint tortious activity to be insufficient. (Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509, 521.)
Acosta also alleges Defendant reported to another medical provider at the Aurora Charter Oak Hospital that Acosta had suffered a “subjunctival hemorrhage” and reported being choked but should not be taken to an emergency room. (TAC, p. 23:14-21.) Furthermore, Defendant allegedly refused to release Acosta to Gallegos on the grounds that Acosta was on a fourteen day hold but reversed course after Gallegos threatened “she would go to the media to report the attack on her son and the subsequent conduct by hospital staff.” (TAC, p. 23:22-24:2.) While these pled facts support the allegation that Defendant breached a mandatory reporting duty pursuant to CANRA, they are insufficient to establish Defendant was part of a group that agreed to a common plan or design to avoid CANRA reporting duties. Thus, Acosta cannot establish a cause of action for civil conspiracy.
Furthermore, because Acosta has now amended the complaint three times in response to a demurrer by Defendant and has not shown there is a reasonable possibility that further amendment can cure the defects noted above, the court declines to grant leave to amend. (Code Civ. Proc., § 430.41, subd. (e)(1).)
Accordingly, Defendant’s demurrer to Acosta’s second cause of action is SUSTAINED without leave to amend.
Fraud by Intentional Concealment (Ninth Cause of Action)
Defendant contends Gallegos’s ninth cause of action for fraud by intentional concealment is insufficiently pled. The court agrees.
“[T]he elements of a cause of action for fraud based on concealment are: ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’” (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850, quoting Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 665-666.)
Here, Defendant contends Defendant did not owe a duty of disclosure to Gallegos because Gallegos’s claim involves alleged professional medical negligence, not a breach of fiduciary duty. However, a duty to disclose material facts exists between doctors and patients. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311.) Thus, Defendant has a duty to disclose Acosta’s treatments and diagnoses to Gallegos as Acosta’s guardian. (Cf. Edward W. v. Lamkins (2002) 99 Cal.App.4th 516, 533 [informed consent given by parents when patient is child].) Furthermore, even when there is no confidential or fiduciary relationship between parties, “a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.)
In this case, when Gallegos spoke to Defendant regarding Acosta’s injuries, Defendant allegedly “feigned ignorance of the actual cause of [Acosta’s] injuries and suggested to [Gallegos] that [Acosta] had an eye infection.” (TAC, p. 44:2-5.) Previously however, Defendant told another medical provider Acosta suffered a “subjunctival hemorrhage” and reported being choked. (TAC, p. 41:8-15.) Given these allegations, Gallegos has alleged sufficient facts to show Defendant was aware Acosta’s had bleeding in the eyes and had reported being choked and concealed the potential cause of these injuries from Gallegos by failing to inform Gallegos and instead suggesting they were caused by an eye infection.
However, Gallegos cannot state a cause of action for intentional concealment because Gallegos was not unaware of the material facts that Defendant allegedly concealed. Prior to speaking with Defendant, Gallegos visited Acosta and observed Acosta had bloody eyes and bruising. (TAC, p. 39.25-28.) Furthermore, Acosta informed Gallegos that Acosta had been choked and now suffered from blurry vision. (TAC, p. 39:21-24.) As a result of these allegations, Gallegos now cannot allege Defendant concealed facts from Gallegos that Gallegos already previous knowledge of.
Additionally, because Gallegos has now amended the complaint three times in response to a demurrer by Defendant and has not shown there is a reasonable possibility that further amendment can cure the defects noted above, the court declines to grant leave to amend. (Code Civ. Proc., § 430.41, subd. (e)(1).)
Accordingly, Defendant’s demurrer to Gallegos’s ninth cause of action is SUSTAINED without leave to amend.
Motion
to Strike
Lastly, Defendant moves to strike punitive damages from Plaintiffs’ TAC on the grounds that (1) they are improper pursuant to Code of Civil Procedure 425.13 and (2) insufficiently supported by the pleading. For the following reasons, the court GRANTS Defendant’s motion.
Legal Standard
Upon a party’s motion or the court’s own motion, the court may strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
Code of Civil Procedure section 425.13
As an initial matter, the court notes Defendant’s motion to strike mislabeled the proper code section by citing to a nonexistent Code of Civil Procedure section 425.1 when the proper code section is section 425.13. Pursuant to Code of Civil Procedure section 425.13, subdivision (a):
“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” (Code Civ. Proc., § 425.13, subd. (a)
In this case, the sole remaining cause of action against Defendant is the first cause of action for breach of mandatory CANRA reporting duties. An action is arising from professional negligence if it arises “out of the manner in which professional services are provided.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.) In David M. v. Beverly Hospital (2005) 131 Cal.App.4th 1272, the court held an action against a doctor and hospital for failure to report child abuse was governed by the statute of limitations for professional negligence. (Id., at p. 1281.) In holding so, the court noted that when a physician fails to report suspicions of child abuse encountered in the scope of the physician’s duties, “Plaintiffs claim is thus one for medical malpractice based on ordinary negligence.” (Ibid.)
Here, the TAC alleges that during the course of Defendant’s treatment of Acosta, Defendant failed to report Acosta’s bloody eyes or the allegations that Acosta was held tightly or choked. (TAC, p. 13:27-14:11, 14:22-27.) Thus, the court finds Acosta’s first cause of action arises out of the alleged professional negligence of Defendant and is governed by Code of Civil Procedure section 425.13.
Since Plaintiffs did not seek leave to file an amended complaint with punitive damages against a healthcare provider pursuant to Code of Civil Procedure section 425.13, subdivision (a), the prayer for punitive damages and supporting facts are subject to a motion to strike. Furthermore, as it has been more than two years since the first complaint in this action was filed, the court finds any motion seeking leave to amend on these grounds is untimely.
Accordingly, Defendant’s motion to strike is GRANTED without leave to amend.
CONCLUSION
Based on the foregoing, Defendant’s demurrer to Plaintiffs’ Third Amended Complaint is SUSTAINED in its entirety without leave to amend.
Furthermore, Defendant’s motion to strike portions of Plaintiffs’ Third Amended Complaint is GRANTED without leave to amend.
Defendant to file an answer within ten (10) days.