Judge Stephen P. Pfahler, Case 19STCV40434 2022-09-30 Tentative Ruling

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.

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 Castillo. 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]

On July 11, 2022, the court vacated the December 28, 2021, adopted recommendations and findings of the referee regarding special interrogatories, numbers 26 and 34. On August 9, 2022, the court denied the motion for summary judgment of Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D., but granted summary adjudication 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. Doctors Marter and Davydov are now dismissed with the remaining claim for Negligent Hiring, Retention, Supervision and Training remaining against Facey Medical Group.

The Court is in receipt of the Court of Appeal’s Order and Alternative Writ of Mandate issued on August 30, 2022 (hereinafter “August 30 Order”). Pursuant to and in compliance with the August 30 Order, this Court now hereby modifies its order as set forth below.

On April 22, 2022, the court adopted the three recommendations and finding of the discovery referee, Honorable Richard Rico (Ret.) compelling further responses to form interrogatories (set one), number 17.1, request for admissions (set three), numbers 35, 37, 38, and 40, and request for production (set five), numbers 50-53, without objections. The subject items addressed the release of information regarding notice of Dr. Castillo’s alleged inappropriate behavior with other patients both with the former employer and Facey Medical Group. The referee was presented with the determination of the protections afforded under Evidence Code section 1157, which protects disclosure of peer review activities conducted within a medical provider context. The referee determined the requested discovery constituted information related to administrative review of Dr. Castillo’s prior employment history, rather than any actual examination of peer review findings.

In its August 30 Order, the Court of Appeal ordered this Court to, inter alia, vacate the April 22 orders adopting the referee recommendations, and conduct new proceedings to address and distinguish the sources of information sought by Plaintiff in support of the negligent hiring, supervision and training cause of action against Facey Medical Group. In ordering the writ of mandate, the Court of Appeal discusses Evidence Code section 1157 as a means to prevent disclosure of peer review generated material, but specifically notes the burden on the claiming party seeking to exclude discovery. Section 1157 in no way constitutes a privilege, which therefore allows a party to discover and present the same information from other sources than a peer review committee or participants.

The appellate court also specifically addresses the lack of lack of protection for administrative materials in the context of determination physician competency versus peer review generated material. (Brown v. Superior Court (1985) 168 Cal.App.3d 489, 499-501.) In considering the source of the materials, a party seeking protection may not place administrative materials in a peer review file to shield potential discovery.

Upon discussing the standard, the Court of Appeal directed the court to consider conduct a more thorough and precise review of the source materials before compelling any potential production. Such a review is conducted in camera.

The court subsequently set the subject OSC in order to allow the parties an opportunity to respond to the writ of mandate. “[F]ollowing the issuance of any alternative writ, there is always the possibility that the trial court will comply with the writ, and that the appellate court will dismiss the petition as moot. (Citations.) This is analogous to the scenario discussed in section V., and it follows that under the principles set forth above, if a trial court is considering changing an interim order in response to an alternative writ, it must give the respective parties notice and an opportunity to be heard.” (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1250 (footnote 10).)

Both parties submitted supplemental briefs. Plaintiff addresses the standard for discovery of documents potentially shielded under Evidence Code section 1157, and the burden of proof on the Facey party to block disclosure. Facey in its brief requests the court deny any and all production on grounds that the sought after information, including the physician credential process, constitutes peer review source material. At a minimum, Facey requests in camera review of the section 1157 identified protected documents.

The court acknowledges the burden on Defendant to establish applicability of Evidence Code section 1157, and declines to order a blanket denial of production without further review of the files. The Court therefore vacates the April 14, 2022, adoptions of the recommendations and findings of the discovery referee, and orders the parties compliance with the guidance of the appellate court. The court orders the parties to submit briefs and materials to the referee whereby the referee will review the files in camera style in order to determine which information remains truly shielded from protection under Evidence Code 1157 as peer review generated content, and which information may be admissible as administrative material received in the course and scope of business during both the hiring of Dr. Castillo and receipt of patient complaints during Dr. Castillo’s employment with Facey Medical Group. (Brown v. Superior Court, supra, 168 Cal.App.3d at pp. 499-501; Alexander v. Superior Court, 5 Cal.4th 1218, 1224-1227.) The court finds that any and all determinations regarding Evidence Code 1157 during the document review process remain within the purview of Judge Rico as the appointed discovery referee. The court will consider the revised referee report and findings, when presented.

[1]The eighth cause of action for negligence was added without leave of court.

[2]While the January 11, 2022 minute order stayed the entire case, the court limited the stay to issues directly impacted by the referee report and therefore considered the subject procedural issue.