Judge: Upinder S. Kalra, Case: 22STCV27753, Date: 2023-03-23 Tentative Ruling
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Case Number: 22STCV27753 Hearing Date: March 23, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: March
23, 2023
CASE NAME: Latina Young v. USC Medical Center
(Rape Treatment Center)
CASE NO.: 22STCV27753
DEMURRER
WITH MOTION TO STRIKE
MOVING PARTY: Defendant USC Care Medical Group, Inc.
RESPONDING PARTY(S): Plaintiff Latina Young
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to all causes of action.
2. An
order striking various portions of the FAC.
TENTATIVE RULING:
1. Demurrer,
as to all causes of action, is SUSTAINED, without leave to amend.
2. Motion
to Strike is MOOT.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On August 25, 2022, Plaintiff Latina Young (“Plaintiff”)
filed a complaint against Defendant USC Care Medical Group, Inc. (erroneously
sued as USC Medical Center (Rape Treatment Center)) (“Defendant.”)
On November 30, 2022, Plaintiff filed a First Amended
Complaint. The complaint alleged three causes of action: (1) Intentional Tort,
(2) Fraud, and (3) General Negligence. The FAC indicates that Plaintiff Young
alleges she was sexually assaulted. After being transported to the Medical
Center, Plaintiff had to complete a pap smear and mouth swab, and have her
fingerprints and blood taken. After the visit, Plaintiff states that she
requested discharged papers, but alleges that the medical record was falsified,
and her insurance was charged without her consent.
On February 10, 2023, Defendant filed a Demurrer with Motion
to Strike. Plaintiff’s Opposition was filed on March 2, 2023. Defendant’s Reply
was filed on March 16, 2023.
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
Gil Burkwitz indicates that Defendant caused to be mail-served a meet and
confer correspondence with Plaintiff for the original complaint as well as the
FAC. The parties were unable to contact each other on various dates. (Dec.
Burkwitz ¶¶ 3-9.)
Procedural Issues:
As argued in Defendant’s Reply, Plaintiff’s opposition
contains exhibits and statements that were not set forth in the FAC. Moreover,
Plaintiff’s Opposition was filed on February 28, 2023, that would ensure
Defendant’s would receive the documents on March 1, 2023. However, Defendant
did not receive the Opposition until March 14, 2023.
ANALYSIS:
Defendant demurs on the grounds that three various grounds.
1.
Statute
of Limitations:
Defendant argues that the entire
action is time-barred by the statute of limitations under Civil Code § 340.5.
Civil Code § 340.5 states “In an action for injury or death against a health
care provider based upon such person's alleged professional negligence, the
time for the commencement of action shall be three years after the date of
injury or one year after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the injury, whichever occurs
first.” Here, the FAC alleges that her treatment occurred on June 12, 2021, and
therefore, Plaintiff had until June 12, 2022, to file the current matter.
Plaintiff did not file this action until August 25, 2022. Additionally, as to
Plaintiff’s fraud claim, a similar one-year statute of limitation applies.
In response, Plaintiff’s opposition
contains nine paragraphs of a facts as well as many exhibits. Additionally,
Plaintiff also includes the following three points as to why the demurrer
should be overruled. First, “Uncertainty as to Legal Effect of Facts Alleged.
Uncertainty arising out of the Legal effect of facts alleged is not a ground of
demurrer (Gressley v. Williams (1961)
193 (p. 644.)” Second, “it is an error to sustain a general Demurrer without
prior notice provided to Plaintiff.” Lastly, “General Demurrer Admits Facts
Well Pleaded. (Warren v. Harootunian
(1961) 189 Cal. App. 2d 546, 548, 11 Cal. Rptr. 305).”
2.
Absolute
Immunity:
Defendant also argues that Civil
Code § 47 bars this current action. Subsection (b) of Civil Code § 47 states
that a privileged publication or broadcast is one made “in any (1) legislative
proceeding, (2) judicial proceeding, (3) in any other official proceeding
authorized by law, or (4) in the initiation or course of any other proceeding
authorized by law and reviewable pursuant to Chapter 2…” Defendant argues that
the third category applies here, citing to Hagberg
v. California Federal Bank. There, a plaintiff who was detained, searched,
and interrogated after a bank employee, who suspected a check was counterfeit,
called the police. The court determined that “a statement urging law
enforcement personnel to investigate another person's suspected violation of
criminal law, to apprehend a suspected lawbreaker, or to report a crime to
prosecutorial authorities is shielded from tort liability to the same extent as
a similar statement to administrative enforcement agencies.” (Hagberg v. California Federal Bank
(2004) 32 Cal.4th 350, 364.)
Here, Defendant argues that this
case, as well as other cases like Hunsucker
v. Sunnyvale Hilton Inn (1994) 23 Cal.App.4th 1498, Passman v. Torkan (1995) 34 Cal.App.4th 607, and Fremont Comp. Ins. Co. v. Superior Court
(1996) 44 Cal.App.4th 867, all establish that “reports made to law enforcement
officials are absolutely privileged.” (Demurrer 8: 2-3.)
3.
Fails
to State Sufficient Facts
Defendant lastly argues that all
three causes of action are either uncertain or fail to allege sufficient facts
to constitute causes of action.
a. Intentional
Tort:
Defendant argues that this cause of
action is uncertain as it does not indicate which specific intentional tort is
alleged to have occurred.
b. Fraud
– Intentional Misrepresentation
Defendant argues that the cause of
action for fraud does not plead with the required specificity. The FAC contains
no allegations of who made a representation, how it was made, and by what means
the representations were tendered. (Demurrer 9: 5-7.) Additionally, there are
no allegations of reliance on the part of Plaintiff. (Id. at 8-11.)
“The elements of fraud, which give
rise to the tort action for deceit, are (a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of falsity (or
‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable
reliance; and (e) resulting damage.” (Beckwith
v. Dahl (2012) 205 Cal.App.4th 1039, 1060).
“[W]hen averments of fraud are
made, the circumstances constituting the alleged fraud must be specific enough
to give defendants notice of the particular misconduct so that they can defend
against the charge and not just deny that they have done anything
wrong.” (Vess v. Ciba–Geigy Corp.
USA, 317 F.3d 1097, 1106 (9th Cir.2003) (internal quotations and
citations omitted). The allegations “must be accompanied by ‘the who, what,
when, where, and how’ of the misconduct charged.” (Arikat v. JP Morgan Chase & Co. (N.D. Cal. 2006)
430 F.Supp.2d 1013, 1022.)
c. Negligence
Defendant argues that the third
cause of action for negligence fails because there are no factual allegations
that Defendants breached the appliable standard of care or caused injury.
“To state a cause of action for
professional negligence, a party must show “(1) the duty of the professional to
use such skill, prudence and diligence as other members of the profession
commonly possess and exercise; (2) breach of that duty; (3) a causal connection
between the negligent conduct and the resulting injury; and (4) actual loss or
damage resulting from the professional negligence.” (Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137).
The Court finds that the statute of
limitations has not run, as the FAC indicates that Plaintiff only became aware
of the alleged falsities until February 2022. However, as Defendant argues,
under Civil Code § 47, there is a privilege when a privileged publication is
made “in any other official proceeding authorized by law.” Here, the
allegations raised by Plaintiff indicate that Defendant made fraudulent
statements on the medical reports, which were then sent to the police. Even
without this absolute privilege, the FAC fails to provide factual allegations
for each of the causes of action.
The Court finds that the FAC fails
to state a cause of action for intentional tort. “Adoption of Official Forms
for the most common civil actions has not changed the statutory requirement
that the complaint contain ‘facts constituting the cause of action. [citation
omitted.] Thus, in order to be demurrer-proof, a form “complaint must contain
whatever ultimate facts are essential to state a cause of action under existing
statutes or case law.”” (People ex rel.
Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484.)
Here, there are insufficient facts to indicate Defendant committed an
intentional tort against Plaintiff. Further, the complaint is uncertain.
“[D]emurrers for uncertainty are disfavored, and are granted only if the
pleading is so incomprehensible that a defendant cannot reasonably respond.” (Morris v. JPMorgan Chase Bank, N.A.
(2022) 78 Cal.App.5th 279, 292 [293 Cal.Rptr.3d 417, 439, 78 Cal.App.5th 279,
292]. Like the arguments made in Defendant’s demurrer, the complaint does not
indicate which intentional tort is being pleaded.
As for the fraud cause of action,
the FAC does not contain factual allegations that meet the required
specificity. There are no allegations about who made the representations, how
they were made, Plaintiff’s reliance on these alleged representations; the FAC
does not contain the “who, what, where, when, how, and by what means.” Lastly,
the negligence cause of action does not contain any allegations about an
alleged breach of duty or that Plaintiff was injured as a result of that
breach.
Demurrer is SUSTAINED, as to all
causes of action.
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 unlikely that Plaintiff will be able to amend the
FAC, as Civil Code § 47 provides an absolute immunity to those who make
publication in an official proceeding authorized by law. As far as the Court
can tell, as evidenced by attaching portions of the investigative police
reports, Plaintiff is unhappy with how the criminal investigation was conducted
by law enforcement especially in transporting her to USC as opposed to UCLA.
Leave to Amend is
DENIED.
Motion to Strike:
Defendant moved to
strike various portions of the FAC that concerned punitive damages as well as
the first and third causes of action in their entirety. However, because the
Demurrer was sustained, the Motion to Strike is MOOT.
Motion to Strike is
MOOT.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Demurrer is
SUSTAINED, without leave to amend.
Motion to
Strike is MOOT.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: March
23, 2023 _________________________________ Upinder
S. Kalra
Judge
of the Superior Court