Judge Upinder S. Kalra, Case 22STCV09334 2022-12-21 Tentative Ruling

Judge: Upinder S. Kalra, Case: 22STCV09334, Date: 2022-12-21 Tentative Ruling

Case Number: 22STCV09334 Hearing Date: December 21, 2022 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: December 21, 2022

CASE NAME: John Doe v. Good Samaritan Hospital Auxiliary, et al.

CASE NO.: 22STCV09334

DEFENDANT’S DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Defendant Joshua Rice, M.D.

RESPONDING PARTY(S): Plaintiff John Doe

REQUESTED RELIEF:

1. An order sustaining the demurrer as to the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th, 9^th, and 11^th

2. An order striking the causes of action and various portions of the prayer for relief

TENTATIVE RULING:

1. Demurrer is OVERRULED, as to the 1^st subsection (a), 2^nd, 3^rd, 4^th, 5^th, 7^th, 8^th, and 9^th.

2. Demurrer is SUSTAINED, as to 1st of Action subsection (b),4^th, 6^th, and 8^th causes of action, with leave to amend.

3. Demurrer is SUSTAINED without leave to amend as to the 11^th causes of action.

4. Motion to Strike is GRANTED, in part as to the prayer for punitive damages, and DENIED, in all other parts.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On March 16, 2022, Plaintiff John Doe (“Plaintiff”) filed a complaint against Defendants Good Samaritan Hospital Auxiliary and Dr. Joshua Rice (“Defendants.”) The complaint alleged 11 causes of action: (1) California Health and Safety Code § 120980, (2) Confidentiality of Medical Information Act under California Civil Code § 56.10, (3) California Constitution, Article I, Section 1, (4) Intentional Infliction of Emotional Distress, (5) Invasion of Privacy, (6) Unruh Civil Rights Act, California Civil Code § 51, et seq., (7) California Uniform Health Care Decisions Act, California Probate code § 4600 et seq., (8) California Civil Code § 54.1, (9) California Business and Professions Code § 17200, and (11) Negligence Per Se. The complaint alleges that Defendants disclosed Plaintiff’s HIV status while other individuals were present. Plaintiff alleges that Defendants were not authorized to disclose such information.

On September 21, 2022, Defendant Dr. Joshua Rice filed a Demurrer with a Motion to Strike. Plaintiff’s Opposition was filed on November 3, 2022. Defendant’s Reply was filed on November 7, 2022.

LEGAL STANDARD

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn 147 Cal.App.4th at 747.)

Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

Meet and Confer:

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Shane Bekian states that counsel met and conferred July 27, 2022.

Length of Memorandum:

Plaintiff argues that Defendant’s memorandum exceeds the 15 page length. Under rule 3.1113(d), the length of the memorandum must not exceed 15 pages. However, Plaintiff’s Opposition to the Defendant Good Samaritan Hospital’s Demurrer was 20 pages. The Court will still hear the merits of the matter.

ANALYSIS:

Defendant Dr. Joshua Rice demurs on the grounds that the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, and eleventh causes of action fail.

a. First Cause of Action: Violation of Health and Safety Code § 120980

Defendant argues that the Complaint fails to allege facts sufficient to prove that Defendant willfully or maliciously disclosed HIV results. The complaint admits that Defendant “at minimum acted negligently.” Even still Defendant argues that the complaint only has conclusory allegations of Defendant’s conduct being negligent, malicious or willful. Plaintiff argues that the complaint adequately alleged that his medical information was released without his consent.

Under Health and Safety Code § 120980(a), when results of an HIV test are disclosed negligently, a civil penalty shall be assessed. Under subsection (b), when results are disclosed willfully or maliciously, a larger civil penalty shall be assessed.

A review of the complaint indicates that Plaintiff and Good Samaritan staff walked into Plaintiff’s room while he was being treated as a patient and revealed his HIV status in the presence of visitors. (Complaint ¶¶ 10-11.) Clearly, Plaintiff has sufficiently alleged negligent disclosure of HIV results. However, the facts do not indicate that Defendant’s alleged disclosure was willful or malicious. “ ‘While it bears emphasis that legislative use of the term “willful” may not be precisely the same for all purposes [citation], it has been generally recognized in the context of tort liability that the usual meaning assigned to “willful,” as well as to “wanton” and to other similar terms, is that “ ‘ “the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” (Prosser, Law of Torts (4th ed.1971) § 34, p. 185.)’ ”[Citations.] (Manuel v. Pac. Gas & Elec. Co. (2009) 173 Cal. App. 4th 927, 939.)

Here, there are no facts pleaded to suggest that Defendant Rice acted intentionally or that the conduct was a “conscious wrong.”

Thus, the Demurrer as to the First Cause of Action is OVERRULED, as to subsection (a), but SUSTAINED, as to subsection (b).

b. Second Cause of Action: Violation of the Confidentiality of Medical Information Act under California Civil Code § 56.10

Defendant argues that this specific cause of action is uncertain because it does not state which provision of the Confidentiality of Medical Information Act was violated. Moreover, the complaint contains general terms, but does not state or allege “a wrongful disclosure or wrongful maintenance, which,…are the only two categories of wrongful conduct under the Act.” (Motion 14: 17-18.) Even still, under subsection (a), Plaintiff would need to, but fails to, describe “with particularity any valid authorization between he and Dr. Rice.” (Id. at 15: 25-27.) Plaintiff’s arguments for the first cause of action are the same as for this cause of action.

Civil Code § 56.10(a) states “a provider of health care, health care service plan, or contractor shall not disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c).” Further, Civ. Code, § 56.1007 states(a) “a provider of health care, health care service plan, or contractor may, in accordance with subdivision (c) or (d), disclose to a family member, other relative, domestic partner, or a close personal friend of the patient, or any other person identified by the patient, the medical information directly relevant to that person's involvement with the patient's care or payment related to the patient's health care.”

The Court finds that the Complaint has sufficiently pleaded the facts necessary for this cause of action. Plaintiff refers to subsection (a) of Civil Code § 56.10, which provides that a healthcare provider shall not disclose medical information unless authorized. Here, the Complaint states that Plaintiff’s HIV results were disclosed in front of two individuals and Plaintiff had not authorized this disclosure. (Complaint ¶ 13, 26.)

Demurrer as to the Second Cause of action is OVERRULED.

c. Third Cause of Action: Violation of the California Constitution, Article I, Section 1

Defendant argues that the complaint fails to clearly state what legal basis Plaintiff is raising this cause of action under, thus making it uncertain. The complaint contains conclusory language without any factual support. Plaintiff argues that there is a legally protected privacy interest in an HIV positive status

The California Constitution, Article I, Section 1, states that “all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

Here, a review of the complaint indicates that Plaintiff has sufficiently alleged a privacy violation under the California constitution. Here, Plaintiff’s private medical records and sensitive health information was disclosed without his authorization. (Complaint ¶ 34-35.) Defendant’s argument that this is uncertain fails, as the Court can readily ascertain that Plaintiff’s privacy rights, i.e., his medical information, should have been kept private, as required under the California Constitution.

Demurrer as to the Third Cause of Action is OVERRULED.

d. Fourth Cause of Action: Intentional Infliction of Emotional Distress

Defendant argues that Plaintiff does not allege any facts demonstrating outrageous conduct, intentionality on the party of Dr. Rice, or that Dr. Rice was reckless. Nor are there any factual allegations that Plaintiff suffered severe emotional distress. Plaintiff argues that whether an act is outrageous depends on the “vulnerability of the victim.” (Opp. 9: 16-22.)

Intentional infliction of emotional distress requires the Plaintiff to show “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Conduct, to be ‘ “outrageous” ’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” ’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great[ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160).

Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.)

Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Tai Jing (2010) 189 Cal. App. 4th 1354, 1376.) Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1004.)

The Court finds that while the conduct may have been outrageous, in the sense that a reasonable person would not tolerate their private medical information, such as HIV results, to be disclosed to others without consent, there are insufficient allegations of emotional distress. The allegations are conclusory, merely stating that Plaintiff was shocked, embarrassed, disgraced, and humiliated. Allegations that a defendant’s conduct caused a plaintiff to suffer a heart attack, was sufficient for an IIED cause of action. (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal. App. 3d 222.) Similarly, allegations that a plaintiff suffered depression, anxiety, and physical illness, including vomiting, stomach cramps, and diarrhea, were adequate for an IIED claim. (Hailey v. California Physicians' Service (2007) 158 Cal. App. 4th 452, as modified on denial of reh'g (Jan. 22, 2008).) In contrast, allegations that a plaintiff lost sleep, had symptoms of anxiety, and suffered from nervousness, but sought no medical treatment, are not adequate to state a claim for IIED. (Girard v. Ball (1981) 125 Cal. App. 3d 772.) Here, the symptoms described are not severe enough for an IIED cause of action.

Demurrer as to the Fourth Cause of Action is SUSTAINED.

e. Fifth Cause of Action: Invasion of Privacy

Defendant argues that this cause of action is vague and uncertain. Specifically, Plaintiff uses various elements from different privacy tort laws, and fails to specify which privacy tort Defendant violated. Plaintiff argues that the complaint sufficiently alleges a cause of action for public disclosure of private facts that are outside the realm of legitimate public concern. (Opp. 10: 23-25.)

After a review of the complaint, the Court finds that there are sufficient facts to state a cause of action for common law invasion of privacy. “The elements of a common law invasion of privacy claim are intrusion into a private place, conversation, or matter, in a manner highly offensive to a reasonable person.” (Mezger v. Bick (2021) 66 Cal.App.5th 76, 86.) Here, Plaintiff alleges that his HIV status was disclosed, which is a wrongful intrusion into his private affairs. (Complaint ¶ 45-46.) Additionally, this intrusion would be highly objectionable to a reasonable person. (Id. at 46.)

Demurrer as to the Fifth Cause of Action is OVERRULED.

f. Sixth Cause of Action: Violation of Unruh Civil Rights Act, California Civil Code § 51, et seq.

Defendant argues that this cause of action is also uncertain and fails to state sufficient facts. The complaint lacks any particularity, which is required when alleging a statutory violation, and merely states in general terms that Dr. Rice treated Plaintiff differently from others. Plaintiff argues that he was a protected individual and was discriminated against in front of other individuals.

Civ. Code, § 51(b) states, “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

After a review of the complaint, the Court finds that Plaintiff has failed to establish a violation of the Unruh Civil Rights Act. While HIV is a disability under Civil Code § 51, (see Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 529,) the complaint fails to allege how Plaintiff was discriminated against by Defendant. No facts are alleged that Defendant intentionally engaged in any misconduct.

Demurrer as to the Sixth Cause of Action is SUSTAINED.

g. Seventh Cause of Action: California Uniform Health Care Decisions Act, California Probate code § 4600 et seq.

Defendant argues that Plaintiff fails to describe “with particularity how Dr. Rice violated this statute or why this is applicable to the case at hand.” (Motion 22: 28 – 23: 2.) Plaintiff failed to oppose this cause of action.

Prob. Code, § 4615 states, “Health care” means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient's physical or mental condition. Under Prob. Code, § 4670, “an adult having capacity may give an individual health care instruction. The individual instruction may be oral or written. The individual instruction may be limited to take effect only if a specified condition arises. Lastly, Prob. Code, § 4733 provides “

Except as provided in Sections 4734 and 4735, a health care provider or health care institution providing care to a patient shall do the following:

(a) Comply with an individual health care instruction of the patient and with a reasonable interpretation of that instruction made by a person then authorized to make health care decisions for the patient.

(b) Comply with a health care decision for the patient made by a person then authorized to make health care decisions for the patient to the same extent as if the decision had been made by the patient while having capacity.

After a review of the complaint, Plaintiff has sufficiently alleged a cause of action under Probate Code §§ 4615, 4670, and 4733. Plaintiff states that he had capacity to provide instruction and had capacity when it was given. (Complaint ¶ 61.) Additionally, the complaint states that Plaintiff gave explicit instructions to not disclose Plaintiff’s HIV status, but Defendants failed to comply with this instruction. (Complaint ¶ 61, 62.)

Demurrer as to the Seventh Cause of Action is OVERRULED.

h. Eighth Cause of Action: Violation of California Civil Code § 54.1

Defendant argues that Plaintiff fails to allege how his HIV diagnosis “limits one or more major life activities.” (Motion 25: 1-2.) Nor does Plaintiff allege that he had a disability, Defendant’s premises was a public accommodation, or was denied full and equal access. (Id. at 6-9.) Plaintiff argues that the complaint incorporated all previous allegations that “explains with particularity Defendant’s conduct.” (Opp. 12: 11-14.)

Civ. Code, § 54.1(a)(1) provides:

Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians' offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation (whether private, public, franchised, licensed, contracted, or otherwise provided), telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.

After a review of the complaint, the Court finds that the complaint has failed to allege how Plaintiff failed to gain equal access to the accommodations. The allegations in this cause of action are legal conclusions, merely stating the portions of the statute.

Demurrer as to the Eighth Cause of Action is SUSTAINED.

i. Ninth Cause of Action: Violation of California Business and Professions Code § 17200

Defendant argues that Plaintiff fails to cite any “constitutional, statutory, or regulatory provision that is the basis for the alleged California public policy to which Dr. Rice’s alleged unfair business practice is tethered, as required by the UCL.” (Motion 26: 25-27.) Plaintiff argues that the complaint alleges sufficient facts, specifically that the unlawful conduct as required for a violation under § 17200, was the disclosure of medical information, Civil Code § 56.10(a).

California Business and Professions Code section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code § 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) “An unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.” (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) A violation of other laws is deemed independently actionable under the UCL. (See Law Offices of Mathew Higbee v. Expungement Assistance Services (2013) 214 Cal.App.4th 544, 554.) “‘Virtually any law—federal, state or local—can serve as a predicate for a section 17200 action.’” (Id. (quoting Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1335).)

“A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619).

A review of the complaint indicates Plaintiff has sufficiently alleged the unlawful prong. The above indicates that the complaint sufficiently alleges various statutory violations. Therefore, because there was a violation of a statute, these violation “serve as a predicate for a section 17200 action.” (Law Offices of Mathew Higbee, supra, 214 Cal.App.4^th at 544.)

Demurrer as to the Ninth Cause of Action is OVERRULED.

j. Eleventh Cause of Action: Negligence Per Se

Defendant argues that negligence per se is not a cause of action, but rather an evidentiary presumption. Plaintiff did not oppose this challenge.

Defendant is correct. Negligence Per Se, although codified in Evidence Code § 669, is not a cause of action, but rather a rebuttable evidentiary presumption.

Demurrer as to the Eleventh Cause of Action is SUSTAINED.

Motion to Strike:

Defendant moves to strike 15 separate portions of the Complaint. The Court notes that for the most part, the motions are to strike causes of action or remedies associated with them. The Court also notes that there is no such Code of Civil Procedure section 430(e)(f). To the extent, that Defendant is moving under CCP § 430.10, subdivision (e) and (f), these two are simply a repeat of the Demurrer. However, to the extent that Defendant is challenging the prayer for punitive damages, the challenge is well taken at this time.

Under 425.13, “(a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.”

The Court finds that the requested damages are contrary to CCP § 425.13. The Court in Cooper v. Superior Court stated, “This pretrial hearing mechanism must be used if plaintiff's claim is for damages “arising out of the professional negligence of a health care provider.” (§ 425.13.) “[A]n action for damages arises out of the professional negligence of a health care provider if the injury for which damages are sought is directly related to the professional services provided by the health care provider.” (Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 748.) Here, despite Plaintiff’s claim that this does not pertain, the complaint alleges negligence on part of Defendant Rice on disclosing Plaintiff’s HIV status, while in his capacity as a health care provider.

Even if CCP § 425.13 did not apply (which the Court finds it does,) under Civil Code § 3294, the complaint fails to allege sufficient facts for punitive damages.

To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages. (See Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.) In addition, punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) Courts have viewed despicable conduct as conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Scott v. Phoenix Schools, Inc., (2009) 175 Cal.App.4th 702, 715.) Further, Civil Code § 3294(c) provides the definition of malice, oppression, and fraud. Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

The complaint does not allege any facts that would be considered so despicable as to be “so vile, base contemptible, miserable, wretched or loathsome.” (Scott, supra, 175 Cal.App.4^th at 715.)

Therefore, the Motion to Strike the prayer for Punitive damages is GRANTED.

Leave to amend:

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) It is likely that the Plaintiff can amend the complaint to fix the defects as it pertains to the 1^st, 4^th, and 8^th causes of action. Thus, leave to amend is GRANTED.

CONCLUSION:

For the foregoing reasons, the Court decides the pending motion as follows:

Demurrer is OVERRULED, as to causes of action 1^st, 2^nd, 3^rd, 4^th, 5^th, 7^th, 8^th, 9^th, and 11^th.

Demurrer is SUSTAINED, as to 1st of Action subsection (b), 4^th 6^th, and 8^th causes of action, with leave to amend.

Demurrer is SUSTAINED without leave to amend as to the 11^th causes of action.

Motion to Strike is GRANTED, in part as to punitive damages, and DENIED, in all other respects.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: December 21, 2022 __________________________________ Upinder S. Kalra

Judge of the Superior Court

CASE NAME: John Doe v. Good Samaritan Hospital Auxiliary, et al.

CASE NO.: 22STCV09334

DEFENDANT’S DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Defendant Good Samaritan Hospital Auxiliary

RESPONDING PARTY(S): Plaintiff John Doe

REQUESTED RELIEF:

1. An order sustaining the demurrer as to the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th, 9^th, and 11^th

2. An order striking various portions of the prayer for relief

TENTATIVE RULING:

1. Demurrer is OVERRULED, as to the 1^st subsection (a), 2^nd, 3^rd, 4^th, 5^th, 7^th, 8^th, and 9^th.

2. Demurrer is SUSTAINED, as to 1st of Action subsection (b),4^th, 6^th, and 8^th causes of action, with leave to amend.

3. Demurrer is SUSTAINED without leave to amend as to the 11^th causes of action.

4. Motion to Strike is GRANTED, in part as to the prayer for punitive damages, and DENIED, in all other parts.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On September 2, 2022, Defendant Good Samaritan Hospital Auxiliary filed a Demurrer with a Motion to Strike. On November 9, 2022, Plaintiff filed an ex parte application to continue the November 15, 2022, hearing date, which was GRANTED. Plaintiff’s Opposition was filed on December 1, 2022. Defendant’s Reply was filed on December 6, 2022.

LEGAL STANDARD

Demurrer

Motion to Strike

Meet and Confer:

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Michael K. Liu indicated that the parties met and conferred in accordance with CCP § 431.41.

Page Length:

The Court notes that the Plaintiff’s Opposition is 20 pages long. Under rule 3.1113(d), the length of the memorandum must not exceed 15 pages. The Court also notes that Plaintiff made a page length argument regarding Defendant Dr. Rice, but fails to conform this memorandum to the required page length. The Court will still hear the merits of the matter.

ANALYSIS:

Defendant Good Samaritan demurs on the grounds that

a. First Cause of Action: Violation of Health and Safety Code § 120980

Defendant argues that this cause of action fails because the complaint alleges that Dr. Rice revealed the HIV status, not Good Samaritan or its staff. Additionally, the hospital cannot be liable for Dr. Rice’s action under respondeat superior and/or agency principle, like in Lisa M, for the intentional torts of another individual. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 306 (Lisa M.)

Plaintiff argues that under modern pleading principles, the pleading need only state the elemts of the tort. Moreover, the issue of whether Defendant Rice is an agent of Defendant Hospital is a question of fact.

Defendant’s reliance on Lisa M. is misplaced. “The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. [citation.] Equally well established, if somewhat surprising on first encounter, is the principle that an employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” (Lisa M. 12 Cal. 4th at pp. 296–97.) “An intentional tort is foreseeable, for purposes of respondeat superior, only if “in the context of the particular enterprise an employee's conduct is 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.] The question is not one of statistical frequency, but of a relationship between the nature of the work involved and the type of tort committed. The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” (Id. at p. 302.)

While the holding of Lisa M. was that a sexual assault by a hospital technician of a patient was not foreseeable, the same finding cannot be made regarding disclosure of patient information in the presence of third parties. It is in the nature of the work of medical professionals, in fact it is expected, that they discuss medical information with their patients. Accordingly, it should be then generally foreseeable that medical information may be inadvertently, negligently or this or even intentionally discussed in the presence of unauthorized third parties. Hence, leading to an unauthorized disclosure.

After a review of the complaint, the complaint sufficiently alleges Respondeat superior liability. Plaintiff was a patient in the hospital. (Complaint ¶10.) Dr. Rice was alleged to be an employee of Defendant. (Complaint ¶5.) Dr. Rice then walked into Plaintiff’s room along with other employees of Defendant and disclosed his HIV status in the presence of unauthorized third parties. (Complaint ¶11.)

While Plaintiff may have sufficiently alleged negligent disclosure of HIV results, the allegations do not indicate that Defendant’s disclosure was willful or malicious. “ ‘While it bears emphasis that legislative use of the term “willful” may not be precisely the same for all purposes [citation], it has been generally recognized in the context of tort liability that the usual meaning assigned to “willful,” as well as to “wanton” and to other similar terms, is that “ ‘ “the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” (Prosser, Law of Torts (4th ed.1971) § 34, p. 185.)’ ”[Citations.] (Manuel v. Pac. Gas & Elec. Co. (2009) 173 Cal. App. 4th 927, 939.)

Here, there are no facts pleaded to suggest that Defendant Rice acted intentionally or that the conduct was a “conscious wrong.”

Thus, the Demurrer as to the First Cause of Action is OVERRULED, as to subsection (a), but SUSTAINED, as to subsection (b).

In large part, Defendant’s Demurrer as to the remaining causes of action is founded on the insufficiency of the respondent superior allegations. To the extent Defendant Demurrers on those grounds, the Demurrer as to the remaining causes of actions is OVERRULED.

b. Second Cause of Action: Violation of the Confidentiality of Medical Information Act under California Civil Code § 56.10

Demurrer as to the Second Cause of action is OVERRULED.

c. Third Cause of Action: Violation of the California Constitution, Article I, Section 1

Demurrer as to the Third Cause of Action is OVERRULED.

d. Fourth Cause of Action: Intentional Infliction of Emotional Distress

Demurrer as to the Fourth Cause of Action is SUSTAINED.

e. Fifth Cause of Action: Invasion of Privacy

Demurrer as to the Fifth Cause of Action is OVERRULED.

f. Sixth Cause of Action: Violation of Unruh Civil Rights Act, California Civil Code § 51, et seq.

Demurrer as to the Sixth Cause of Action is SUSTAINED.

g. Seventh Cause of Action: California Uniform Health Care Decisions Act, California Probate code § 4600 et seq.

Except as provided in Sections 4734 and 4735, a health care provider or health care institution providing care to a patient shall do the following:

Demurrer as to the Seventh Cause of Action is OVERRULED.

h. Eighth Cause of Action: Violation of California Civil Code § 54.1

Civ. Code, § 54.1(a)(1) provides:

Demurrer as to the Eighth Cause of Action is SUSTAINED.

i. Ninth Cause of Action: Violation of California Business and Professions Code § 17200

Demurrer as to the Ninth Cause of Action is OVERRULED.

j. Eleventh Cause of Action: Negligence Per Se

Defendant argues that negligence per se is not a cause of action, but rather an evidentiary presumption. Plaintiff did not oppose this challenge.

Defendant is correct. Negligence Per Se, although codified in Evidence Code § 669, is not a cause of action, but rather a rebuttable evidentiary presumption.

Demurrer as to the Eleventh Cause of Action is SUSTAINED.

Leave to amend:

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The Court finds that it is likely that Plaintiff can make amendments to the Complaint to include sufficient facts for vicarious liability. Thus, leave to amend is GRANTED., except as to the 11^th cause of action.

Motion to Strike:

Defendant moved to strike various portions of the prayer for relief. These prayers for relief were all tied to the specific causes of action. To the extent, that Defendant is moving under CCP § 430.10, subdivision (e) and (f), these two are simply a repeat of the Demurrer. However, to the extent that Defendant is challenging the prayer for punitive damages, the challenge is well taken at this time.

Even if CCP § 425.13 did not apply (which the Court finds it does,) under Civil Code § 3294, the complaint fails to allege sufficient facts for punitive damages.

Therefore, the Motion to Strike the prayer for Punitive damages is GRANTED.

CONCLUSION:

For the foregoing reasons, the Court decides the pending motion as follows:

Demurrer is OVERRULED, as to causes of action 1^st, 2^nd, 3^rd, 4^th, 5^th, 7^th, 8^th, 9^th, and 11^th.

Demurrer is SUSTAINED, as to 1st of Action subsection (b), 4^th 6^th, and 8^th causes of action, with leave to amend.

Demurrer is SUSTAINED without leave to amend as to the 11^th causes of action.

Motion to Strike is GRANTED, in part as to punitive damages, and DENIED, in all other respects.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: December 21, 2022 _________________________________ Upinder S. Kalra

Judge of the Superior Court