Judge: Stephen P. Pfahler, Case: 22STCV24928, Date: 2023-01-19 Tentative Ruling

Case Number: 22STCV24928    Hearing Date: January 19, 2023    Dept: F49

Dept. F-49

Date: 1-19-23 c/f 11-4-22

Case #22STCV24928

 

DEMURRER

 

MOVING PARTY: Defendants, Facey Medical Group

RESPONDING PARTY: Plaintiff, John Doe 3

 

RELIEF REQUESTED

Demurrer to the Complaint

·         1st Cause of Action: Sexual Battery

·         2nd Cause of Action: Sexual Orientation Related Violence

·         3rd Cause of Action: Sexual Harassment

·         4th Cause of Action: Constructive Fraud

·         5th Cause of Action: Intentional Infliction of Emotional Distress

·         6th Cause of Action: Negligent Hiring, Retention, Supervision and Training

·         7th Cause of Action: Negligence

 

SUMMARY OF ACTION

Plaintiff John Doe 3 was a regular patient of Defendant Gregory Castillo. Beginning in 2010, Plaintiff alleges Dr. Castillo positioned himself in close proximity to Plaintiff and made contact with Plaintiff’s shoulder. Dr. Castillo also began regularly performing digital probing rectal examinations for a “protracted” period of time, and remarked about the size of Plaintiff’s testicles. Plaintiff determined the conduct was wrongful/not necessarily related to the delivery of medical care upon discovering the stipulated surrender of the medical license of Gregory Castillo in October/November 2021.

 

On August 2, 2022, Plaintiff filed his complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Intentional Infliction of Emotional Distress, Negligent Hiring Retention Supervision and Training, and Negligence.

 

The action was transferred to Department 49 on October 6, 2022.

 

RULING

Overruled in Part/Sustained with Leave to Amend in Part

Request for Judicial Notice in Opposition: Granted.

Defendant Facey Medical Group submits the subject demurer to the complaint on grounds that the complaint is barred by the three year statute of limitations, Plaintiff fails to allege a basis of vicarious liability against moving defendants based on the alleged conduct of Defendant Gregory Castillo, M.D., and Plaintiff fails to sufficiently articulate constructive fraud.

 

Plaintiff in opposition argues against any bar by the statute of limitations, contends vicarious liability based allegations find support in that the examination misconduct occurred within the course and scope of employment as a physician, and Plaintiff sufficiently supports the claim for constructive fraud.

 

Defendant in reply challenges the applicability of Code of Civil Procedure section 340.16. Defendant supports the argument with a denial of any underlying criminal conduct, as well as the plain language of Civil Code sections 51, et seq. and 1708, et seq. in regards to the sexual orientation violence and sexual battery claims. Defendant additionally denies any revival of any claims. Defendant subsequently reiterates the arguments regarding the conduct falling outside the course and scope of conduct for an examining physician, as well as the bar to the constructive fraud cause of action.

 

Defendant was ostensibly aware of the 340.16 statute of limitations claim from the prior ruling on Doe 2, yet chose to only raise the subject arguments in the reply. [Declaration of Geraldine Weiss, Ex. 1.] The court can therefore decline to even consider this argument in that it constitutes a new argument without the opportunity of Plaintiff to respond. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-764.)

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

Statute of Limitations

Facey contends that any potential three year statute of limitations lapsed in 2020 under Code of Civil Procedure section 340.5, due to the last alleged examination occurring in 2017. Facey also preemptively challenges the allegations regarding any delayed discovery as a result of the fraudulent concealment claims. Plaintiff in opposition cites to the revival of the sexual assault claims under Code of Civil Procedure section 340.16.

 

Both parties cite to competing potentially applicable statutes of limitations. The argument of Defendant depends on a characterization of the claim as arising in professional negligence. While the operative complaint lacks any citation to section 340.16, the plain language of the allegations imbues the entire action as one arising in sexual misconduct and the failure to protect patients from the prurient interests of the treating physician, rather than medical negligence. [Comp., ¶¶ 17, 43-46, 53, 58, 65, 76, 85, 93, 115.]

 

The demurrer and reply lack actual address of the standard for professional negligence, and instead proceed under an assumption, due to the context of the medical appointment. “‘Professional negligence’ means negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (Code Civ. Proc., § 364.)

 

Furthermore, as raised via new argument in the reply, Facey additionally seeks to increase the scope of the statute of limitations argument by contending that Plaintiff cannot state a claim under section 340.16, due to the failure to allege conduct under the identified Penal Code statutes within section 340.16. Thus, section 340.5 becomes the applicable statute by default. The court examines the relevant portions of section 340.16:

 

(a) In any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff's 18th birthday, the time for commencement of the action shall be the later of the following:

(1) Within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

(2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

(b)(1) As used in this section, “sexual assault” means any of the crimes described in Section 243.4, 261, 264.1, 286, 287, or 289, or former Sections 262 and 288a, of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.

(2) For the purpose of this section, it is not necessary that a criminal prosecution or other proceeding have been brought as a result of the sexual assault or, if a criminal prosecution or other proceeding was brought, that the prosecution or proceeding resulted in a conviction or adjudication. This subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged person who committed the crime.
(b)(3) This section applies to any action described in subdivision (a) that is based upon conduct that occurred on or after January 1, 2009, and is commenced on or after January 1, 2019, that would have been barred solely because the applicable statute of limitations has or had expired. Such claims are hereby revived and may be commenced until December 31, 2026. …

(d)(2) This subdivision revives claims brought by a plaintiff who alleges all of the following:

(A) The plaintiff was sexually assaulted.

(B) One or more entities are legally responsible for damages arising out of the sexual assault.

(C) The entity or entities, including, but not limited to, their officers, directors, representatives, employees, or agents, engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse.

(3) Failure to allege a cover up as required by subparagraph (C) of paragraph (2) as to one entity does not affect revival of the plaintiff's claim or claims against any other entity.

(4) For purposes of this subdivision:

(A) “Cover up” means a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.

(B) “Entity” means a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity.

(C) “Legally responsible” means that the entity or entities are liable under any theory of liability established by statute or common law, including, but not limited to, negligence, intentional torts, and vicarious liability.

…

(8) Nothing in this subdivision precludes a plaintiff from bringing an action for sexual assault pursuant to subdivisions (a) and (b).

 

(Code Civ. Proc., § 340.16.)

 

The plain language of subdivision (b)(2) specifically excludes any requirement of a prior prosecution in order to seek the protection of the extended and revived statute of limitations. The complaint lacks reference to the Penal code sections.

 

The court therefore considers portions of the plain language of the descriptively, applicable sections. Penal Code section 234.4 in part defines sexual assault as: “(e)(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse…” (Pen. Code, § 243.4.) Penal Code section 289 also addresses acts involving sexual penetration: “(d) Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed … As used in this subdivision, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions: … (3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.” (Pen. Code, § 289.)

 

For comparison, the court also cites to the two relevant Civil Code sections.

 

(a) A person commits a sexual battery who does any of the following:

(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.

(2) Acts with the intent to cause a harmful or offensive contact with another by use of the person’s intimate part, and a sexually offensive contact with that person directly or indirectly results.

(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.

…

(d)(1) “Intimate part” means the sexual organ, anus, groin, or buttocks of any person, or the breast of a female.

(2) “Offensive contact” means contact that offends a reasonable sense of personal dignity.

(e) The rights and remedies provided in this section are in addition to any other rights and remedies provided by law.

 

(Civ. Code, § 1708.5.)

 

(a) A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the following elements:

(1) There is a business, service, or professional relationship between the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons:

(A) Physician, psychotherapist, or dentist. For purposes of this section, “psychotherapist” has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code. …

(2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.

…

(c) Nothing in this section shall be construed to limit application of any other remedies or rights provided under the law.

…

 

(Civ. Code, § 51.9.)

 

While the court declines to substantively consider the new arguments raised in the reply, even in considering the plain language of the statutes, for purposes of the demurrer, the court declines to conclude that the pled facts undermine a valid claim under Code of Civil Procedure section 340.16, subdivision (b)(2). Thus, the court finds the operative allegations clearly allege a sexual assault based complaint for purposes of the statute. Whether the claims are timely, or lapsed and subsequently revived, the plain language of section 340.16 establishes application within the sexual assault statute of limitations, including claims against Facey for purposes of this demurrer. The court finds no specific basis for a finding that the Penal Code definitions are exclusive and the Civil Code statutory definitions can in no way overlap or independently qualify under the criminal definitions as well.  Further, such an inquiry is beyond the scope of the demurrer itself in that it relies on inference beyond the four corners of the operative pleading. Sustaining the demurrer will only invite later amendments thereby furthering impermissible qualitative arguments. Defendant otherwise offers no other sufficient argument as to these potential limitations.

 

Defendant additionally presents an omnibus argument for the non-sexual assault based claims as also barred under the statute of limitations. Defendant lacks citation to the actual applicable code sections and time frames.

 

Regardless, the court considers the equitable estoppel argument. Generally, a statute of limitations begins to run “when the cause of action is complete with all of its elements”—namely, wrongdoing, causation, and resulting harm. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397; Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797 [“A cause of action accrues ‘when [it] is complete with all of its elements’—those elements being wrongdoing, harm, and causation”].) An exception to the general rule on accrual is identified as the “discovery rule.” (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397; Pooshs v. Philip Morris USA, Inc., supra, 51 Cal.4th at p. 797.) “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her [him].” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) “In the statute of limitations context, equitable estoppel may be appropriate where the defendant's act or omission actually and reasonably induced the plaintiff to refrain from filing a timely suit. (Citation.) The requisite act or omission must involve a misrepresentation or nondisclosure of a material fact bearing on the necessity of bringing a timely suit. (Citation.)” (Doe v. Marten (2020) 49 Cal.App.5th 1022, 1028.)

 

Paragraphs 49 and 50 of the complaint specifically allege Facey both concealed known prior incidents involving Castillo, and also held Castillo as a competent physician conducting all examinations for proper medical purpose. Defendant’s arguments distinguishing purported representations of Castillo versus the actual allegation of omissions by Facey constitute qualitative distinctions beyond the scope of the demurrer. The court, again, declines to engage in such determinations, and finds the complaint sufficiently alleges a basis of equitable estoppel for purposes of arguing the non-sexual assault claims are also barred by the statute of limitations.

 

The demurrer is therefore overruled on all statute of limitations arguments under both section 340.16 and equitable estoppel principles.

 

Vicarious Liability

Facey challenges the first, second, third, fourth and fifth causes of action on grounds that the subject causes of action cannot be stated as a matter of law under a vicarious liability claim. Plaintiff counters that examinations in and of themselves was part of the course and scope of work conduct.

 

Vicarious liability requires allegations that the tortfeasor was acting within the course and scope of employment duties. (Civ. Code, § 2338; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297 [“While the employee thus need not have intended to further the employer's interests, the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work”].) “An employee's willful and malicious intentional torts, including those that might contravene an employer's express policies, do not automatically fall outside the scope of employment. (Citation.) But to fall within the scope of employment, the intentional misconduct must be ‘an “outgrowth” of the employment’ and the risk of tortious injury must be ‘“inherent in the working environment”’ or ‘“typical of or broadly incidental to the enterprise [the employer] has undertaken.”’ (Citations.) Similarly, the intentional conduct must be foreseeable from the employee's duties, which means ‘“in the context of the particular enterprise,”’ the conduct was ‘“‘not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.”’ (Citation.)” (Daza v. Los Angeles Community College Dist. (2016) 247 Cal.App.4th 260, 268.)

 

The complaint itself alleges the rectal examinations and testicular discussions were part of the course and conduct of the regular physical examinations. [Comp., ¶¶ 42-46.] The subject allegations therefore sufficiently support the subsequent allegations for vicarious liability based on knowledge and awareness of the allegedly unnecessary, pruriently driven conduct while under the care of a treating physician. [Comp., ¶¶ 13-14, 18, 20.] The court, again, declines to otherwise consider any qualitative distinctions. The demurrer is overruled.

 

4th Cause of Action: Constructive Fraud

Facey specifically challenges the constructive fraud claim on grounds that Plaintiff fails to allege the basis of a special relationship requiring disclosure, any nondisclosure of material facts, or alternatively and misrepresentation. Plaintiff alleges the business relationship of the parties created a fiduciary duty, and Facey intentionally deceived Plaintiff.

 

“The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive[;] and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517 (footnote 14.) “‘Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be so treated—that is, in which such conduct is a constructive or quasi fraud, having all the actual consequences and all the legal effects of actual fraud.’” (Barrett v. Bank of America (1986) 183 Cal.App.3d 1362, 1369.)

 

“‘[A]s a general principle constructive fraud comprises any, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary's motives or the principal's decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent.’”

 

(Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.)

 

A fiduciary duty is founded upon a special relationship imposed by law or under circumstances in which “confidence is reposed by persons in the integrity of others” who voluntarily accept the confidence. (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1150.) “A fiduciary or confidential relationship can arise when confidence is reposed by persons in the integrity of others, and if the latter voluntarily accepts or assumes to accept the confidence, he or she may not act so as to take advantage of the other's interest without that person's knowledge or consent.” (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101–02.)

 

As pled, the mere existence of a transactional relationship for the provision of medical services will not meet the threshold for the establishment of a fiduciary or other special, confidential relationship imposing a duty to disclose certain information. The demurrer is sustained.

 

The demurrer is therefore sustained as to the constructive fraud cause of action, and overruled on the remainder. Plaintiff has 30 days leave to amend as to the constructive fraud cause of action ONLY. Plaintiff may not add any new causes of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) If Plaintiff declines or fails to file a first amended complaint, moving defendant shall answer the complaint within 10 days of the lapsed deadline. Any new causes of action may also be addressed via a motion to strike.

 

The demurrer and motion to strike of Gregory Castillo set for January 26, 2023.

 

Defendants to give notice.