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




MOVING PARTY: Defendant USC Care Medical Group, Inc.


RESPONDING PARTY(S): Plaintiff Latina Young




1.      An order sustaining the demurrer as to all causes of action.

2.      An order striking various portions of the FAC.



1.      Demurrer, as to all causes of action, is SUSTAINED, without leave to amend.

2.      Motion to Strike is MOOT.


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.






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.




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.




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.




Dated:             March 23, 2023                       _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court