Judge: Virginia Keeny, Case: 22STCV06560, Date: 2025-05-15 Tentative Ruling
Case Number: 22STCV06560 Hearing Date: May 15, 2025 Dept: 45
PARI ROEHI vs
DEAN ALLGEYER, M.D., et al.
defendant roger tsai, m.d. and roger tsai, m.d.,
inc.’s motion for summary adjudication
Date
of Hearing: May
15, 2025 Trial
Date: November
10, 2025
Department: 45 Case No.: 22STCV06560
Moving
Party: Defendant Roger Tsai,
M.D. and Roger Tsai, M.D., Inc.
Responding
Party: Plaintiff Pari Roehi
BACKGROUND
On September 17, 2024, Plaintiff Pari Roehi filed the operative Second Amended
Complaint (“SAC”) against Defendants Dean Allgeyer, M.D., Dean Allgeyer, M.D.,
Inc. (“Allgeyer Defendants”), Roger Tsai, M.D., Roger Tsai, M.D., Inc., (“Tsai
Defendants”), and Surgery on Sunset, alleging five causes of action for: (1)
Sexual Harassment in violation of Civil Code § 51.9; (2) Intentional Infliction
of Emotional Distress; (3) Negligent Infliction of Emotional Distress; (4)
Negligence; and (5) Fraud. On November 22, 2023, Plaintiff had dismissed
Defendant Gary Motykie, M.D. & Gary Motykie, M.D., a medical corporation.
Plaintiff is a transgender woman,
activist, model, host, and author. The SAC stems from Plaintiff’s gender
transition surgery that took place on May 18, 2021, where she enlisted Dr.
Roger Tsai and his staff, including Dr. Dean Allgeyer, to perform the surgery
breast implant removal and replacement at Sunset. After the parties agreed to
the terms surrounding a recording of the surgery for Plaintiff’s YouTube
channel, the surgery took place. However, upon receipt of the video for
editing, Plaintiff discovered that Dr. Roger Tsai and his staff had ridiculed
Plaintiff’s body and purposefully misgendered her. Plaintiff then filed
suit.
[Tentative] Ruling
Defendant Roger Tsai, M.D. and Roger
Tsai, M.D., Inc.’s Motion for Summary Adjudication is GRANTED, in part; DENIED,
in part.
discussion
Defendant Roger Tsai, M.D. and Roger
Tsai, M.D., Inc. (“Tsai Defendants”) move this court for an order granting
summary adjudication pursuant to Code of Civil Procedure section 437c(f) on the
grounds that based upon the undisputed facts, Plaintiff’s claims for sexual
harassment, intentional infliction of emotional distress, fraud, and punitive
damages have no merit.
“A party may move for summary
adjudication as to one or more causes of action within an action, one or more
affirmative defenses, one or more claims for damages, or one or more issues of
duty, if the party contends that the cause of action has no merit, that there
is no affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that one
or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs.” (CCP §437c(f)(1).) “A motion for summary adjudication shall be
granted only if it completely disposes of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty.” (Ibid.)
The moving party bears the initial
burden of production to make a prima facie showing that there are no triable
issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts
to the opposing party to make a prima facie showing that a triable issue of
material fact exists. (Ibid.) Courts “liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006)
39 Cal.4th 384, 389.)
Sexual Harassment
Civil Code section 51.9, subdivision (a)
creates a cause of action for sexual harassment against a defendant with whom
the plaintiff holds a business, service, or professional relationship,
including a teacher-student relationship. Civil Code section 52 authorizes the
imposition of damages for violations of Civil Code section 51.9 against the
perpetrator as well as anyone who “aids, incites or conspires” in the sexual
harassment. (Civ. Code, § 52, subd. (b).)
Tsai Defendants argue that they cannot
be liable for violation of Civil Code section 51.9 because by the undisputed
evidence, the Tsai Defendants did not make any of the complained-of comments. (SSUF
10-11, 18.) More importantly, Dr. Tsai was not present at the time the first
disparaging comments were made, and there is no evidence that Dr. Tsai was even
aware of the second disparaging comments at the time they were being made. (SSUF
14-15, 20.)
In opposition, Plaintiff argues Tsai
Defendants’ emphasis on who technically “made” the comments misses the point. There
is abundant evidence that Plaintiff was subjected to verbal conduct of a sexual
and hostile nature based on her gender (including her gender identity) during
the surgery. (SSUF 10, 11.) Accordingly, a jury could find Dr. Tsai himself
“engaged in” the hostile conduct by knowingly permitting it, joining in the
group laughter, and even adding his own commentary. Even if Dr. Tsai never
directly mocked Plaintiff’s gender, Plaintiff argues Tsai Defendants are responsible
for the acts of his surgical team under the well settled “captain of the ship”
doctrine. (See Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1396.) In
Baumgardner, a patient filed a malpractice action against a surgeon for
leaving a sponge in her left leg during surgery. After the trial court ruled in
the surgeon’s favor, the patient appealed arguing the trial court erred by not
instructing the jury on the “Captain of the Ship” doctrine. The Court of Appeal
agreed and reversed, holding that a physician who has the right to exercise
control over the work to be done by the hospital employee, and who controls the
manner of the employee’s performance can be subject to liability for the
employee’s negligence. (Ibid.)
The court finds a triable issue of
material fact exists as to whether Tsai Defendants may be liable under the
Captain of the Ship Doctrine. Tsai Defendants argue because Plaintiff has cited
no case where a court imputed sexual harassment by another professional onto a
lead surgeon, this court should not expand the scope of the legal doctrine. The
court disagrees. The Captain of the Ship Doctrine is not so static. The case Marie
Y. v. General Star Indemnity Co. (2003) 110 Cal.App.4th 928, would support a
finding of liability. (See Marie Y., supra, at p. 943 noting the trial
court imputed to defendant the negligent failure of his chairside assistants to
intercede to protect Marie Y from the sexual misconduct.) Although the facts differ,
the finding in Marie Y. is expansive enough to fit the situation here.
Defendant has also not presented a case stating that the courts cannot expand
the legal theory of liability in this situation. And at present, at least for
purposes of this motion and accepting Plaintiff’s statement of the facts, the
Captain of the Ship Doctrine fits. Turning to the Doctrine, because there is a
dispute as to whether Dr. Tsai was in a position to discover and prevent the
remarks made by Dr. Allgeyer , Ms. Moreno or Ms.
Daniele, the court denies the motion for summary judgment.
Accordingly, Tsai Defendants’ motion for
summary adjudication as to the first cause of action for sexual harassment is
DENIED.
Intentional Infliction of Emotional
Distress
“The elements of a cause of action for
IIED are as follows: (1) defendant engaged in extreme and outrageous conduct
(conduct so extreme as to exceed all bounds of decency in a civilized
community) with the intent to cause, or with reckless disregard to the
probability of causing, emotional distress; and (2) as a result, plaintiff
suffered extreme or severe emotional distress.” (Berry v. Frazier (2023)
90 Cal.App.5th 1258, 1273.) Defendant’s conduct must be “directed at the
plaintiff, or occur in the presence of the plaintiff of whom the defendant is
aware.” (Id.)
Tsai Defendants argue the undisputed
evidence shows that Dr. Tsai was not made aware of the comments that were made
until after Plaintiff watched the videos and discovered them first. As such,
none of the Tsai Defendants’ conduct could be considered outrageous. Moreover, without
any knowledge that the disparaging comments had been made, there is no reason
for Tsai Defendants to have known, nor should have known, that Plaintiff would
hear the disparaging comments upon her possession of the videos.
In opposition, Plaintiff argues if
mocking a sedated patient’s genitals and gender is not “beyond all bounds of
decency,” it is hard to imagine what is. A jury could conclude that Dr. Tsai’s
conduct was outrageous when he engaged by laughing, by echoing the comments,
and by failing to exercise his authority to stop the cruelty. Even assuming Dr.
Tsai said nothing, Plaintiff maintains outrageousness can include acts of
omission. (See Bundren v. Superior Court (1983) 145 Cal.App.3d 784,
789–791 [hospital’s deliberate failure to protect a patient from debt collector
may constitute outrageous conduct]; Stoiber v. Honeychuck (1980) 101
Cal.App.3d 903, 921–922 [landlord’s willful omission to remedy dangerous
conditions held actionable].) Moreover, Plaintiff maintains the Tsai
Defendants’ acted with intent and reckless disregard because Dr. Tsai knew the
surgery would be recorded and sent Plaintiff the unedited film. And even crediting
Dr. Tsai’s claim of not hearing anything during the operation, the issue of
intent can be satisfied by the intent of his agents for the purposes of
respondeat superior liability. Regardless, whether a defendant’s conduct is
outrageous and intended to cause emotional distress is a factual question for
the jury. (See KOVR, Inc. v. Superior Court (1995) 31 Cal. App. 4th
1023, 1031.)
The court finds a triable issue of
material fact exists as to Plaintiff’s IIED claim. As noted above, the court
finds the Captain of the Ship Doctrine may extend to the alleged intentional
torts of others in this action. Neither party disputes the outrageousness of
the alleged statements made by Dr. Allgeyer or Ms. Moreno in the operating room
or that they were made with reckless disregard. The court finds a jury could
conclude the statements made in the operating room so extreme and outrageous it
exceeded all bounds of decency.
Accordingly, Tsai Defendants’ motion for
summary adjudication as to the second cause of action for intentional
infliction of emotional distress is DENIED.
Fraud
The elements of fraud 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.” (Charnay v.
Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including
negligent misrepresentation, must be pled with specificity. (Small v. Fritz
Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands
that a plaintiff plead facts which show how, when, where, to whom, and by what
means the representations were tendered.” (Cansino v. Bank of America
(2014) 224 Cal.App.4th 1462, 1469.)
Tsai Defendants argue there is no
triable issue of material fact as to Plaintiff’s fraud claim because Plaintiff
lacks any evidence to establish that Dr. Tsai treated her with anything but the
“utmost respect.” Specifically, Dr. Tsai did not make any of the disparaging
comments that are at issue in this case and he was unaware that any disparaging comments were being made at the time.
(SSUF 26-27.) In fact, Dr. Tsai promptly notified the surgery center that he no
longer wanted to work with Dr. Allgeyer, and he immediately fired Ms. Daniele.
(SSUF 16.) He was also very emotional and apologetic to Plaintiff and offered
her a full refund on the procedure. (SSUF 17.)
In opposition, Plaintiff argues a jury
could readily conclude that Dr. Tsai’s pre-surgery representation that she
would be treated with the utmost respect was false as he (and his team)
blatantly failed to uphold that promise by making the derogatory remarks. At
minimum, there is a factual dispute as to whether Dr. Tsai breached the
promised standard of respect. Plaintiff further argues the circumstances
surrounding Dr. Tsai’s promise easily support an inference of fraudulent intent
given Dr. Tsai knew such a promise was pivotal to Plaintiff, a transgender
woman. In other words, a jury could find the promise was a deliberate ruse to
obtain Plaintiff’s consent (and business), with no real intent to refrain from
disparaging her during the procedure.
The court finds no triable issue of
material fact exists as to Plaintiff’s claim for fraud. Plaintiff has not
presented any evidence that the Tsai Defendants made the promise to “treat her
with the utmost respect” with no actual intent to refrain from disparaging
Plaintiff during the procedure. Nor has Plaintiff presented any evidence that
Dr. Tsai made such statements knowing they were false or were only intended to
induce her into the surgery.
Accordingly, Tsai Defendants’ motion for
summary adjudication as to the fifth cause of action for fraud is GRANTED.
Punitive Damages
Civil Code § 3294 authorizes the
recovery of punitive damages in non-contract cases where “the defendant has
been guilty of oppression, fraud, or malice.” A defendant does not need to act
intentionally for punitive damages to be found; a showing of malice is
sufficient to support a claim for punitive damages. (Pfeifer v. John Crane,
Inc. (2013) 220 Cal.App.4th 1270, 1299.) “Malice” is defined as
“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.”
(Civil Code § 3294, subd. (c)(1) [emphasis added].) Malice can be proven
through direct evidence or through indirect evidence from which the jury draws
inferences. (Ibid.)
Tsai Defendants argue there is no
evidence that Dr. Tsai intentionally attempted to sexually harass, inflict
emotional distress, and defraud Plaintiff. Even if any cause of action survive
this Motion, Defendants are still entitled to summary adjudication of their
punitive damages claim because there is simply no evidence of any evil motive
or intentionally callous conduct.
In opposition, Plaintiff argues California
law holds a principal liable for punitive damages if he authorizes or ratifies
egregious acts by his agents (Civ. Code §¿3294(b). Accordingly, Dr. Tsai’s
failure to prevent or reprimand the ongoing harassment of his patient — in an
environment entirely under his command — constitutes at least a conscious
disregard for her rights, if not an explicit authorization by silence.
As noted above, Plaintiff has provided
evidence establishing triable issue of material fact. Plaintiff has presented
evidence that the Tsai Defendants either participated in the wrongful or
subsequently ratified the act by laughing and/or commenting ‘no likey’ after
comments were made about the Plaintiff while she was on the operating table.
Accordingly, Tsai Defendants’ motion for
summary adjudication as to the prayer for punitive damages is DENIED.