SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT 

DEPARTMENT V 

 

 

 

MOVING PARTIES: Defendant David Ahdoot, M.D. (erroneously named and served as Dr. David Ahdoot)   

 

RESPONDING PARTY: Plaintiff Patricia Rivas    

Demurrer to First Amended Complaint and Motion to Strike  

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

BACKGROUND 

Plaintiff Patricia Rivas (“Plaintiff”) filed a complaint against Defendant Dr. David Adhoot alleging seven causes of action.  

On January 5, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendant Dr. David Adhoot and DOES 1 through 50, inclusive, alleging causes of action for: (1) Medical Negligence, (2) Battery, and (3) Intentional Infliction of Emotional Distress.  

On January 18, 2024, a Notice of Case Reassignment was issued which assigned this case to the Honorable Sarah J. Heidel in Department V at Alhambra Courthouse effective February 5, 2024. 

On February 1, 2024, Defendant David Ahdoot, M.D., erroneously sued and served as Dr. David Ahdoot (“Defendant”) filed a demurrer to the second and third causes of action in the FAC, as well as a motion to strike portions of the FAC as it relates to punitive damages and attorney’s fees. On March 4, 2024, Plaintiff filed oppositions to the demurrer and motion to strike.  Defendant filed reply briefs on March 8, 2024.  

LEGAL STANDARD 

“A demurrer tests the sufficiency of a complaint as a matter of law.”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.”  (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) In ruling on a demurrer, “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)   

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. § 435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436(a).)  A court may “[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(b).) 

 

DEMURRER  

A. Meet and Confer   

Per Code of Civil Procedure section 430.41, subdivision (a), the parties were required to meet and confer in person, by telephone, or by video conference before bringing the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) An insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) A motion to strike also requires a meet and confer process, which is procedurally identical to the meet and confer process prior to filing a demurrer. (Code Civ. Proc., § 435.5.)  

Counsel for Defendant, Kathleen McColgan (“McColgan”), declares that the parties’ counsel met and conferred by telephone but did not come to an agreement regarding the issues raised in the demurrer and motion to strike. (McColgan Decl., ¶¶ 2, 3.)  

The Court finds that the meet and confer requirement has been met as to both the demurrer and motion to strike.  

B. Sufficiency of the Second Cause of Action for Battery 

Defendant contends that the second cause of action fails to state a claim for medical battery.  

To state a cause of action for medical battery, a plaintiff must allege the following: (1) that defendant performed a medical procedure without plaintiff’s consent or that plaintiff consented to one medical procedure, but defendant performed a substantially different procedure; (2) plaintiff was harmed; and (3) defendant’s conduct was a substantial factor is causing plaintiff’s harm. (CACI 530A.) “A patient can consent to a medical procedure by words or conduct.” (Ibid.) Whether the contact between a patient and a doctor was within the scope of a patient’s consent is a factual question for the court to decide. (So v. Shin (2013) 212 Cal.App.4th 652, 669.) “It is firmly established as the law that where a person has been subjected to an operation without his consent such an operation constitutes technical assault and battery.” (Valdez v. Percy (1939) 35 Cal.App.2d 485, 491.) “Consent to medical care, including surgery, may be express or may be implied from the circumstances.” (Bradford v. Winter (1963) 215 Cal.App.2d 448, 454.)  

The FAC alleges the following: On July 26, 2022, Plaintiff saw Defendant for a post-operation consultation, which occurred after Plaintiff’s surgery with Defendant on July 20, 2022. (FAC, ¶ 8.) Defendant performed a vaginal exam and followed by an ultrasound exam. (FAC, ¶ 9.) Defendant stated that he saw an ovarian cyst on the left side when Plaintiff remarked that he previously told her that the cyst was on the right ovary. (FAC, ¶ 9.) Defendant did not respond but continued with the ultrasound exam. (FAC, ¶ 9.) Plaintiff asked Defendant to see the photos taken during surgery to locate the position of her old mesh. (FAC, ¶ 9.) Plaintiff alleges she was seeking Defendant’s diagnosis and future medical treatment for her condition, but Defendant had no future medical plan that day. (FAC, ¶ 11.) Defendant informed Plaintiff that he was done with the ultrasound exam and suggested that Plaintiff could begin having intimate relations with her husband and that she responded by stating “that is the last thing she was thinking about.” (FAC, ¶ 11.)  

Defendant then asked Plaintiff to lay down again and he was going to pretend Plaintiff was having sex. (FAC, ¶ 12.) Plaintiff looked at Defendant and his two medical assistants, who looked at each other without saying anything. (FAC, ¶ 12.) Plaintiff alleges that Defendant then inserted the ultrasound wand back into Plaintiff’s vagina and manipulated the wand in and out, in different directions. (FAC, ¶ 12.) Plaintiff told Defendant that it was hurting and to stop. (FAC, ¶ 13.) Defendant informed her that it was painful because she had an IUD on the left side and “Defendant then finished the second ultrasound exam, which did not feel like a normal medical ultrasound exam for a patient.” (FAC, ¶ 13.) Defendant then told Plaintiff to get dressed, that she was ready to have sex with her husband, and to make sure that she was on top so that she can be in control. (FAC, ¶ 14.) Plaintiff alleges that she “was extremely embarrassed and disturbed that Defendant did this to her in front of the two medical assistants, who just stood by the door watching without saying anything to Defendant.” (FAC, ¶ 15.)  

The second cause of action alleges that Defendant “assaulted and battered Plaintiff with the intent to make offensive, unwanted physical contact with Plaintiff’s person despite her express wishes to stop the vaginal ultrasound examination due to pain.” (FAC, ¶ 30.) Plaintiff alleges that Defendant performed an unnecessary, painful, and offensive ultrasound examination of Plaintiff as simulated sex, and that Defendant failed to monitor Plaintiff’s condition which created additional emotional, physical, and psychological pain to Plaintiff. (FAC, ¶ 30(a)-(b).)  

The allegations are sufficient to state a cause of action for medical battery.  

The Court Overrules Defendant’s demurrer to the Second Cause of Action for Battery with 30 days leave to amend.  

C. Sufficiency of the Third Cause of Action for IIED  

Defendant contends that the third cause of action for intentional infliction of emotional distress fails. Plaintiff argues that the third cause of action is sufficiently pleaded.  

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) “Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004, internal quotations omitted.) Behavior may be deemed outrageous “if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the facts are likely to result in illness through mental distress.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372.)  

The FAC alleges the following pursuant to the third cause of action: Defendant’s conduct was intentional and malicious, and done for the sole purpose of causing humiliation, mental anguish, and emotional and physical distress. (FAC, ¶ 40.) Defendant’s words and actions—an unnecessary, violative second vaginal examination simulating intercourse with an ultrasound wand despite Plaintiff’s protests and expressions of pain, accompanied by multiple references to sex—constituted extreme and outrageous conduct unrelated to the medical care and treatment of Plaintiff. (FAC, ¶ 41.) Plaintiff alleges that she was severely traumatized and suffered severe emotional and physical distress. (FAC, ¶ 42.) Plaintiff alleges that she “reported the incident to law enforcement, has been injured in mind and body, and has only sought care from female physicians since the July 26 episode with [Defendant].” (FAC, ¶ 42.)  

Plaintiff alleges that Defendant conducted an unnecessary and unrequested vaginal ultrasound to address an issue Plaintiff did not have about her sex life, and then refused to stop when she complained that Defendant was hurting her.  If true constitute the alleged conduct potentially both abuses a position of power and/or intentionally or unreasonably resulted in mental distress.  The court accordingly finds that the allegations are sufficient to state of cause of action for intentional infliction of emotional distress. 

Defendant’s demurrer to the Third Cause of Action for Intentional Infliction of Emotional Distress is OVERRULED.  

 

MOTION TO STRIKE  

In her opposition to the motion to strike Plaintiff  states that she does not oppose the motion to strike punitive damages items 1 (FAC, ¶ 36), 2 (FAC, ¶ 37), 4 (FAC, ¶ 43), 5 (FAC, Prayer, ¶ 3) and 6 (FAC, Prayer, ¶ 4).   Accordingly, the court grants the motion to strike the specified paragraphs with leave to amend under C.C.P. § 425.13. 

Defendant states that he withdraws his request to strike “intentional” from the FAC at paragraph 40 because it is essential to Plaintiff’s third cause of action but maintains that “malicious” should be stricken.  Malice is not an essential component of Plaintiff’s claims for intentional infliction of emotional distress and the court grants the motion to strike that term for paragraph 40.  

The Court therefore GRANTS Defendant’s motion to strike as to punitive damages (FAC, ¶ 36), 2 (FAC, ¶ 37), 4 (FAC, ¶ 43), 5 (FAC, Prayer, ¶ 3) and 6 (FAC, Prayer, ¶ 4) and as to “malicious” (FAC, ¶ 40) with leave to amend.  

 

Moving Party is ordered to give notice of this ruling.