Judge: Stephen P. Pfahler, Case: 19STCV40434, Date: 2023-03-14 Tentative Ruling
Case Number: 19STCV40434 Hearing Date: March 14, 2023 Dept: F49
Dept.
F-49
Date:
3-14-23
Case
#19STCV40434
Trial
Date: 7-17-23 c/f 2-14-23 c/f 6-6-22
LEAVE TO AMEND
MOVING
PARTY: Defendant, Facey Medical Group
RESPONDING
PARTY: Plaintiff, John Doe
RELIEF
REQUESTED
Motion
for Leave to Amend to File Third Amended Complaint
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.
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.
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.
RULING: Denied.
Plaintiff moves for leave to file a third
amended complaint in order to add allegations of ratification in support of the
first, second, fourth, fifth and sixth causes of action for Sexual Battery,
Sexual Orientation Related Violence, Constructive Fraud, Unfair Business
Practices, and Intentional Infliction of Emotional Distress causes of action
against Facey. The motion comes after the completion of additional discovery,
whereby Plaintiff confirmed that Patient 1 notified Facey of the alleged sexual
predilections of Castillo in 2013 following a reported incident. [Declaration
of Geraldine Weiss, Ex. 1.] Defendant in a two day late opposition
characterizes the motion as an improper motion for reconsideration following
the successful motion for summary adjudication. Plaintiff in reply notes the
late filed opposition, and denies any veiled motion for reconsideration.
Plaintiff reiterates the circumstances leading to the instant motion.
A
motion for leave to amend must comply with the requirements set forth in
California Rules of Court Rule 3.1324, which states as follows:
“(a) Contents of motion
A motion to amend
a pleading before trial must:
(1)
Include
a copy of the proposed amendment or amended pleading, which must be serially
numbered to differentiate it from previous pleadings or amendments;
(2)
State
what allegations in the previous pleading are proposed to be deleted, if any,
and where, by page, paragraph, and line number, the deleted allegations are
located; and
(3)
State
what allegations are proposed to be added to the previous pleading, if any, and
where, by page, paragraph, and line number, the additional allegations are
located.
(b) Supporting
declaration
A separate
declaration must accompany the motion and must specify:
(1) The effect of the amendment;
(2) Why the amendment is necessary and
proper;
(3) When the facts giving rise to the
amended allegations were discovered; and
(4)
The
reasons why the request for amendment was not made
earlier…”
(emphasis added).
Dilatory
delays and prejudice to the opposing parties is a valid ground for denial. (Hirsa v. Superior Court (1981) 118
Cal.App.3d 486, 490.) Prejudice exists
where the amendment would require delaying the trial, resulting in loss of
critical evidence, or added costs of preparation such as an increased burden of
discovery. (Magpali v. Farmers Group,
Inc. (1996) 48 Cal.App.4th 471, 486-488.)
Leave
to amend is generally liberally granted. (Code Civ. Proc., § 473(a); Mesler v. Bragg Management Co. (1985) 39
Cal.3d 290, 296.) The court will not generally consider the validity of the
proposed amended pleading in ruling on a motion for leave, instead deferring
such determinations for a demurrer or motion to strike, unless the proposed
amendment fails to state a valid claim as a matter of law. (Kittredge
Sports Co. v. Sup.Ct. (Marker, U.S.A.) (1989) 213 Cal. App.3d 1045, 1048; California Casualty Gen. Ins. Co. v.
Superior Court (1985) 173 Cal.App.3d 274, 280–281 disapproved of on other grounds by Kransco v. American Empire Surplus Lines
Ins. Co. (2000) 23 Cal.4th 390.)
The
motion complies with the California Rules of Court regarding the proposed
changes, including identification of the proposed allegation—Paragraph 19.
[Weiss Decl., Ex. 8.] Lacking from the proposed changes, as addressed further
below, is the effective reincorporation of the first, second, fourth, fifth and
sixth causes of action, which the court dismissed following the August 9, 2022,
motion for summary adjudication.
The
court finds Plaintiff also minimally complies with the diligence requirement. The
motion comes following the identification of “Patient 1,” on September 29,
2022, and the subsequent taking of a statement on November 13, 2022. The motion
was still not filed until February 15, 2023, and otherwise lacks explanation
for the three month delayed filing. Given the July 17, 2023 trial date, the
court declines to find a lack of prejudice based solely relative to the trial
date.
Most
importantly however, plaintiff brings the motion after the August 9, 2022,
motion for summary adjudication, whereby the court granted summary adjudication
on the Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment,
Constructive Fraud, Unfair Business Practices, Intentional Infliction of
Emotional Distress, and Negligence. Plaintiff recaps the evidentiary ruling of
the court regarding the denial of Exhibit One (1), the “Decision and Order of
the Medical Board of California, Department of Consumer Affairs, State of
California.” The court accepted the existence of the report and decisive action
undertaken regarding the stipulated surrender of the medical license for
Castillo, but found the “Factual Allegations” section in the patient “First
Amended Accusation” constituted hearsay for the truth of the matter asserted as
to the content of said “factual allegations.”
Even
considering the underlying circumstances, nothing prevented Plaintiff from
seeking a continuance of the motion on the basis of further discovery in order
to find corroborating evidence. The court finds the subsequent extended
discovery process, and eventual discovery of the reporting party in no way
provides a rationale for leave to amend given the prior procedural history. In
bringing the subject motion, notwithstanding the denial of such, Plaintiff
essentially seeks reconsideration of the successful motion for summary
adjudication based on delayed discovery of the material information following
an extensive, protracted discovery process verifying the alleged 2013 patient
report referenced in the complaint submitted to the Medical Board. Any
reconsideration is untimely and well outside the scope of any statutorily
available relief.
Furthermore,
even if the court allowed the declaration of Patient 1 to constitute support as
a basis of leave separate and apart from the procedural concerns raised, the
item constitutes evidence outside the scope of the pleading. The declaration
would also inevitably invite the refilling of a motion for summary
judgment/summary adjudication, which would could present additional problems
relative to the prior order, and further delay the adjudication of the action.
The court therefore finds such a course prejudicial to Defendants given they
were entitled to rely on the prior ruling of the court following extensive
opportunity to present the case within the set deadlines.
Thus,
in addition to unfair prejudice against Defendants, the court finds any
effective effort at reconsideration of the motion for summary adjudication
procedurally barred in that Plaintiff cannot present the “new” ratification
allegations for purposes of reviving the dismissed causes of action. The court
therefore denies leave to amend.
Trial
date remains set for July 17, 2023.
Plaintiff
to give notice to all parties.