Judge: Stephen P. Pfahler, Case: 19STCV40434, Date: 2022-08-09 Tentative Ruling

Case Number: 19STCV40434    Hearing Date: August 9, 2022    Dept: F49

Dept. F-49

Date: 8-9-22

Case #19STCV40434

Trial Date: 2-14-23 c/f 6-6-22

SUMMARY JUDGMENT

MOVING PARTY: Defendant, Facey Medical Group, et al.

RESPONDING PARTY: Plaintiff, John Doe

RELIEF REQUESTED

Motion for Summary Judgment/Summary Adjudication

SUMMARY OF ACTION

On May 28, 2019, Plaintiff John Doe attended a yearly physical examination with Defendant Gregory Castillo. Plaintiff alleges that Dr. Castillo first began “repeatedly and inappropriately rubbing” plaintiff’s arms and legs, next proceeded to grab Plaintiff’s penis and testicles without “medical justification.” Dr. Castillo then began to digitally penetrate Plaintiff’s anus. During the course of this conduct, Dr. Castillo allegedly rubbed his own genitals on Plaintiff’s body for purposes of sexual gratification.

Notwithstanding the end of the conduct in the examination room, Dr. Castillo then removed a wart from the finger of Plaintiff in another room, and again rubbed his genitals on Plaintiff and again inappropriately touched him on the arms and legs. Dr. Castillo later told Plaintiff that the penal examination was required, due to an alleged lesion, which was not documented in any medical notes.

On November 7, 2019, Plaintiff filed his complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training.

The action was transferred to Department 49 on January 28, 2020.

On May 4, 2020, Plaintiff dismissed Providence Health & Services, David Mast, Jim Corwin and Teresa David. On June 19, 2020, the parties submitted a stipulated protective order for the exchange of discovery. On August 4, 2020, Plaintiff filed a first amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training. On August 5, 2020, Plaintiff filed a second dismissal of defendants Providence Health & Services, David Mast, Jim Corwin and Teresa David.

On November 3, 2020, the court sustained the demurrer Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the first amended complaint, and denied the motion to strike the use of pseudonyms. On December 3, 2020, Plaintiff filed the second amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training, and Negligence.[1]

On March 9, 2021, the court sustained the demurrer of Gregory Castillo, M.D. without leave to amend as to the fourth cause of action for constructive fraud, and fifth cause of action for unfair business practices. The court overruled the remainder of the demurrer. The court also granted the motion to strike the claim for punitive damages without prejudice, and granted the motion to strike the claim for treble damages with prejudice. On March 10, 2021, the court denied the motion for leave to add a claim for punitive damages against the medical defendants. On March 15, 2021, Castillo answered the second amended complaint.

On June 25, 2021, the court overruled the demurrer of Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the second amended complaint, and granted the motion to strike the claim for punitive damages. Defendants answered the second amended complaint on June 30, 2021.

On December 28, 2021, the court adopted the report and recommendations of discovery referee Honorable Richard Rico in regards to a motion to compel further response to Special Interrogatories (set two) from defendant Castilllo. On January 11, 2022, the court granted the ex parte motion to stay enforcement of the report and recommendations of the referee report, and stayed the entire action.

On March 1, 2022, the court denied the motion to sever. On April 19, 2022, the court declined to deem the 22STCV04812, John Doe, et al. v. Facey Medical Group, et al. related, and denied the motion to consolidate the cases.[2]

RULING: Denied in Part/Granted in Part.[3]

Request for Judicial Notice: Granted.

The court takes judicial notice of the filing of the second amended complaint, but not the content for the truth of the matter asserted. The court may also review its prior minute orders on the demurrers to the second complaint.

Evidentiary Objections to the Declaration of Geraldine Weiss, Ex. 1: Sustained (Hearasy as to the content of the report for the truth of the matter asserted)

Evidentiary Objections to the Declaration of Raymond Casciari, M.D.: Sustained (Hearsay as to content of the patient complaint only).

Defendants Facey Medical Group, Roscoe Marter, M.D. and Erik Davydov, M.D. move for summary judgment, or alternatively for summary adjudication on each and every cause of action in the second amended complaint, including: sexual battery, sexual orientation related violence, sexual harassment, constructive fraud, unfair business practices, intentional infliction of emotional distress, and negligent hiring retention supervision and training, and negligence.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (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 pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence.  It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

Defendants first address the intentional tort causes for sexual battery, sexual orientation related violence, sexual harassment, constructive fraud, unfair business practices, and intentional infliction of emotional distress. Defendants cite to the prior order on the demurrer of the Facey Defendants to the second amended complaint, where the court found Plaintiff insufficiently articulated a claim for vicarious liability on grounds that the alleged conduct of Dr. Castillo constituted approved examination protocol, and was therefore within the course and scope of employment duties. The court however found Plaintiff successfully alleged a potential claim of liability on grounds of ratification, which Defendants now challenge.

Plaintiff in opposition challenges the ratification argument on grounds that Defendants were allegedly aware of prior sexually inappropriate conduct by Dr. Castillo with a patient in 2013, yet kept Dr. Castillo on staff. Plaintiff also cites to an October 19, 2021, finding by the California Medical Board regarding sexual misconduct by Dr. Castillo with three separate patients during employment with Facey. Plaintiff emphasizes the complaint of Patient 1 as an incident putting Defendants on notice. Defendants allegedly violated their own “anti-harassment” policy in not sufficiently investigating the claim. Plaintiff also cites to an alleged additional incident of a patient complaint after Plaintiff’s appointment. Finally, Plaintiff contends that Dr. Castillo’s genital and rectal examination without the offer of a chaperone, violated protocol.

Defendants in reply reiterate the lack of legal support and evidence supporting a basis of liability against moving defendants for the intentional tort claims. Defendants contend the “negligence” based arguments are “irrelevant,” and rely on inadmissible hearsay.

Again, the pleadings frame the issues for the instant motion. For purposes of a demurrer, the court found the second amended complaint, paragraphs 19-21, sufficiently set forth the claim of ratification following the report of alleged wrongful conduct by Dr. Castilllo. The court now considers the factual underpinnings for the claim.

“A principal is responsible for no other wrongs committed by his agent … unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service.” (Civ. Code, § 2339.) “[A]n employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (Citations.) The failure to discharge an employee who has committed misconduct may be evidence of ratification. (Citation.) The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. (Citations.) Whether an employer has ratified an employee's conduct is generally a factual question. (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169–170; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 810.) “[R]atification [generally] relates back to the time the tortious act occurred.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1111.)

Defendants preemptively challenge the potential knowledge of the prior complaints regarding Dr. Castillo as falling within the exclusive realm of the negligence based causes of action, rather than intentional tort liability. Defendants instead focus on the post-response address to Plaintiff’s complaint as the single most relevant and decisive factor as to whether Plaintiff can state claim for ratification. The argument finds support in that the intentional tort claims belong to Plaintiff, not Patient 1 in 2013, or any alleged claims following Plaintiff. Notice of prior incidents, or post incident claims are not the standard for ratification of intentional torts. As stated in the prevailing authority for ratification, when dealing with an employer, the court must examine the post-incident response as a means of determining acceptance of said conduct barring a showing of pre-conduct approval. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1111 [“A principal may be liable when it ratifies an originally unauthorized tort”].)

The individual defendants on their own behalves and the corporate defendant dispute any ratification of the alleged misconduct by Dr. Castillo. [Declaration of Erik Davydov, M.D., ¶ 4; Declaration of Roscoe Marter, ¶ 7.] An investigation was conducted, which included a meeting with Plaintiff. [Marter Decl., ¶ 4.] Dr. Castillo subsequently resigned on August 2, 2019. [Id., ¶ 7.] Plaintiff in opposition relies on the general legal argument that ratification can be a question of fact, and factually focuses on the prior patients and the termination of Dr. Castillo without reporting Dr. Castillo “as a sexual predator.” Plaintiff also challenges any reliance on Fretland v. County of Humboldt cited by Defendants for support of any argument regarding a lack of sufficient evidence. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478.)

The examination by Dr. Castillo occurred on May 11, 2019, and Dr. Castillo resigned on August 2, 2019. Plaintiff admits that Dr. Castillo was suspended by the Facey board of directors on July 25, 2019. The expert declaration of Plaintiff offers the opinion that Dr. Castillo should have been immediately suspended upon the reporting of alleged sexual abuse, rather than waiting for six weeks to contact Plaintiff and undertake an investigation. [Declaration of Raymond Casciari, M.D., ¶¶ 16-17, 21.][4]

While the record presents no other disciplinary action taken against Dr. Castillo by Defendants, and whether the resignation was offered in lieu of termination (Plaintiff contends Dr. Castillo was given the option), nothing in the evidence supports the finding of a triable issue of material fact on grounds of post-ratification for the prior conduct under the articulated facts. (Baptist v. Robinson, supra, 143 Cal.App.4th at p. 170.) Again, the failure to earlier suspend a physician accused of sexual misconduct, delays in interviewing the complainant, and allowing for the resignation of a physician rather than a termination and reporting of conduct only demonstrates potential mishandling of the situation. The court finds no evidence of known approval of such conduct upon notice, or even benign acceptance simply based on the elongated time frame undertaken during the investigation and peer review process. These arguments are “not relevant to prove ratification of the [intentional tort claims].” (Fretland v. County of Humboldt, supra, 69 Cal.App.4th at p. 1491.) While Defendants concede to a potential negligence claim for allowing Dr. Castillo to see patients during the investigation period, the ultimate result demonstrates a rejection of the alleged conduct.

The court also finds no evidence of pre-ratification by moving defendants for any sexually prurient conduct by Dr. Castillo based on the prior report of Patient 1. In other words, even considering Patient 1 in 2013, the court finds an insufficient nexus between the prior reported incident and a general basis for a finding of broad based open-ended ratification of any conduct by Dr. Castillo to engage in sexual practices with patients at any given time.

The court therefore grants moving defendants motion for summary adjudication on the intentional tort claims—sexual battery, sexual orientation related violence, sexual harassment, constructive fraud, unfair business practices, and intentional infliction of emotional distress—to the extent the subject causes of action are solely dependent on the ratification theory of liability. The court therefore also finds the argument regarding the inability of Plaintiff to state claims for fraud and unfair business practices on grounds for the reasons presented in the successful demurrer of Dr. Castillo, moot.[5]

On the Negligent Hiring Retention Supervision and Training cause of action, Defendants argue that Drs. Marter and Davydov owe no duty of care towards Plaintiff, as neither were employers of Dr. Castillo and Plaintiff otherwise fails to establish an independent duty of care. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 220–221.) On the issue of an independent duty with regard to the corporate employer, Defendants deny any showing of foreseeability, and contend their systematic review process upon hiring demonstrated an effort to maintain professional standards.

Plaintiff in opposition offers extensive factual analysis with limited legal support. Plaintiff maintains that the initial screening process inadequately includes checks to determine potential past discipline or other indicators of unfitness. Plaintiff relies on Dr. Castillo’s discovery responses regarding the withholding information on the prior termination from employer, Community Medical Group, following 24 patient complaints, but then stated in deposition that he informed moving defendants he was fired. Plaintiff additionally contends that Facey failed to follow its own re-credentialing requirement, which was to be performed every 3 years. The argumenta are supported by the declaration of Raymond Casciari, M.D. The declaration of Dr. Casciari and opposition also address the notice and response of Facey to the 2013 complaint of Patient 1 following an uninvited sexual encounter with Dr. Castillo.

The court first notes that Drs. Marter and Davydov are actually NOT named in the eighth cause of action. To the extent Defendants collectively argue that Drs. Marter and Davydov represents all duties and obligations of Facey in the hiring and retention of Dr. Castillo, the court finds insufficient support for this argument. The court, again, relies on the foundation set by the operative complaint itself, which alleges a claim against Facey for actions undertaken by its various directors, not just Drs. Marter and Davydov. The court therefore considers the claim against Facey only.

While Defendant implicitly concedes negligence liability in the motion regarding the distinction between ratification and negligence arising from the complaint of Patient 1, the court still addresses the claim.[6] The court finds the complaint of Patient 1 alone presents sufficient evidence to establish triable issues of material fact regarding a clearly foreseeable basis for suspecting potential future sexual misconduct based on notice provided to Facey from the complaint of Patient 1. [Casciari Decl.] (Brown v. USA Taekwondo, supra, 11 Cal.5th at pp. 220–221.) Even without the Patient 1’s report, the court additionally finds a required adherence to a minimal standard in examining and questioning gaps in employment history from applicants, such as Dr. Castillo.

Patient protection in the form of determining requisite skill, knowledge, and ability of a physician to responsibly interact with a patient in private circumstances constitutes reasonable criteria for the screening of a potential physician hire. To the extent guidelines for interviewing potential physicians were drafted by Facey, the court finds the opinions of Dr. Casciari establishes both a standard of duty for better screening of potential physicians, and Facey’s breach of said standard. [Casciari Decl., ¶¶ 11, 13.]

The court also acknowledges the conflicting representations of Dr. Castillo both admitting and denying any disclosure of his prior termination. The court declines to make any determination of credibility, but finds that in case of such a disclosure, Facey as the employer entity was still responsible for inquiring into the nature of the prior termination or cessation of employment. Even if no such disclosure occurred, as addressed above, the basis for seeking new employment was a reasonable area of inquiry. The court therefore finds triable issues of material fact on the negligent hiring and retention claim. Defendant was in a position to protect its patients and fell below the standard of care in its own failure to act. (Brown v. USA Taekwondo, supra, 11 Cal.5th at pp. 220–221.) The inadequate inquiry into the history of Dr. Castillo constituted a compromise to the provision of appropriate medical care to customers of Facey.

In summary, the court finds the opinion of Dr. Casciari regarding the response to the complaint of Patient 1, at a minimum provided notice of a potential improper conduct by Dr. Castillo. The court also finds Dr. Casciari’s opinion regarding the inadequate investigation and follow-up of Dr. Castillo following the Patient 1 complaint were inadequate, thereby supporting a finding of a breach of duty in allowing Dr. Castillo to continue to see patients. Finally, Dr. Casciari also establishes a duty and breach in the interview and screening process for Dr. Castillo prior to his hire with Facey. The motion is therefore denied as to the seventh cause action.

Defendant Facey next challenges the eighth cause of action for Negligence on grounds that it’s time barred. The claim itself arises from the provision of healthcare, and therefore subject to the statute of limitations under Code of Civil Procedure section 340.5. [Sec. Amend. Comp., ¶¶ 83-86.] An action against a healthcare provider must be filed within the earlier of either three years from the date of the injury, or within one year of discovery of the injury causing event. (Code Civ. Proc., § 340.5.) The examination took place on May 28, 2019.[7] Plaintiff sent the complaint letter on June 10, 2019. The subject cause of action was not brought until December 3, 2020.[8]

Defendant relies on the argument that any and all facts regarding potential knowledge of medical malpractice was confirmed no later than July 9, 2019 during a conversation with Dr. Lee, whereby Dr. Lee discusses the lack of documentation on the record. [Deposition of John Doe, 216:12-218:4, 218:22-219:17; Deposition of Jong Lee, 78:19-22.] The court therefore finds that Plaintiff was aware of the injury causing event, thereby requiring the filing of the complaint within one year from the date Plaintiffs discovery of the failure to chart, and therefore the realization that the examination constituted improper touching. The court finds no specific address of the arguments in opposition or separate statement. The reply also notes the lack of any apparent opposition to the argument. The motion for summary adjudication on the eighth cause of action for negligence is therefore granted.

Finally, Drs. Marter and Davydov challenge any recovery on a claim for alter ego liability due to the lack of evidence. The court denies the motion on grounds that individual defendants present no authority allowing for summary adjudication on the issue of alter ego liability. A motion for summary adjudication can only be brought on claims “as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.” (Code Civ. Proc., § 437c, subd. (f).) Regardless, given the ruling on the ratification claims for the intentional torts, lack of claim against the individual defendants on the negligence cause of action, the subject request is moot either way.

In summary, the motion for summary judgment is DENIED. The motion for summary adjudication is GRANTED as to the first, second, third, fourth, fifth, sixth, and eighth causes of action for sexual battery, sexual orientation related violence, sexual harassment, constructive fraud, unfair business practices, intentional infliction of emotional distress, and negligence is granted as to all three moving defendants. The motion for summary adjudication on the seventh cause of action as to Facey for Negligent Hiring, Retention, Supervision and Training is DENIED. Drs. Marter and Davydov are no longer parties to the action, and the claims against Facey will proceed.

Trial remains set for February 4, 2023.

Moving Defendants to give notice to all parties.