Judge: Stephen P. Pfahler, Case: 22STCV24928, Date: 2023-01-26 Tentative Ruling

Case Number: 22STCV24928    Hearing Date: January 26, 2023    Dept: F49

Dept. F-49

Date: 1-26-23 c/f 11-4-22

Case #22STCV24928

 

DEMURRER

 

MOVING PARTY: Defendants, Gregory Castillo

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

 

Motion to Strike Allegations in Support of, and Claim for, Punitive Damages

 

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

Demurrer: Overruled in Part/Moot

Requests for Judicial Notice: Granted.

Defendant Gregory Castillo submits the subject demurer to the complaint on grounds that the complaint is barred by the three year statute of limitations, and Plaintiff fails to sufficiently articulate constructive fraud.

 

Plaintiff in opposition argues against any bar by the statute of limitations, and Plaintiff sufficiently supports the claim for constructive fraud.

 

Defendant in reply reiterates the statute of limitations argument, including citation to the ruling in John Doe I v. Castillo, et al. (22STCV04812), whereby the court declined to rule on any revival under Code of Civil Procedure section 340.16. The order was issued by Department 28, and in no way binding on this court. The court conducts its own consideration of the statute, as addressed below.

 

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

Castillo contends that any potential two or three year statute of limitations lapsed in 2019 or 2020 under Code of Civil Procedure sections 335.1 or 340.5, due to the last alleged examination occurring in 2017. Castillo 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, 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.)

 

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)(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 language of the descriptively applicable criminal 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.)

 

As referenced above, the operative allegations clearly allege a sexual assault based complaint. 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 Castillo for purposes of this demurrer.

 

On the non-sexual abuse based claims, 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.)

 

Paragraph 50 of the complaint specifically alleges Castillo representing the underlying conduct was always for proper medical purpose. Any arguments challenging the actual conduct of Castillo versus the actual allegations within the complaint constitute qualitative distinctions beyond the scope of the demurrer. The court 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.

 

The demurrer is therefore overruled on all statute of limitations arguments.

 

4th Cause of Action: Constructive Fraud

The court sustained the demurrer of Facey on Janury 19, 2023 with 30 days leave to amend. The demurrer is therefore moot. Plaintiff will either file a second amended complaint or the subject cause of action will be dismissed.

 

 

Motion to Strike: Denied.

Defendant Castillo moves to strike the claim for punitive damages in the complaint on grounds that Plaintiff failed to seek leave under Code of Civil Procedure section 425.13.

 

Plaintiff in opposition denies any claim for punitive damages, and contends the allegations regarding egregious conduct are justified.

 

Defendant in reply tacitly acknowledges the lack of an actual prayer for punitive damages, but reiterates the lack of any purpose for language generally indicating a claim for punitive damages. Like the reply to the demurrer, Defendant also cites the Department 28 ruling in John Doe I, whereby the court granted the motion to strike. Once again, the court finds the Department 28 not binding on the subject action. The court considers the complaint as presented.

 

The complaint in fact lacks any claim for punitive damages, and instead alleges a prayer for potential leave to seek punitive damages. To the extent the motion seeks to strike the claims for punitive damages under Code of Civil Procedure section 425.13, the motion is therefore denied. The court otherwise finds no basis for the striking of the language describing the allegedly prurient conduct of Castillo outside the scope of the rendering medical care as egregious. The motion to strike is denied.

 

 

In summary, the demurrer is therefore overruled on the statute of limitations, and moot as to the constructive fraud cause of action. The motion to strike is denied. Consistent with the prior demurrer of Facey, if Plaintiff fails to file an amended pleading concurrent with the 30 day amendment deadline addressed in the Facey demurrer, moving defendant shall answer the complaint within 10 days of the lapsed deadline. Moving Defendant shall otherwise address the any new pleading under statutory guidelines. Any potential, new causes of action may also be addressed via a motion to strike.

 

Castillo to give notice to all defendants.