Judge: Virginia Keeny, Case: 22STCV13383, Date: 2025-02-05 Tentative Ruling

Case Number: 22STCV13383    Hearing Date: February 5, 2025    Dept: 45

AGUILA V. OPAI-TETTEH, ET AL.

MOTION TO STRIKE PORTIONS OF PLAINTIFF’S THIRD AMENDED COMPLAINT

Date of Hearing:          2/5/2025                                 Trial Date:       9/29/2025

Department:               45                                            Case No.:         22STCV13383

Moving Party:             Defendants Advanced Dermatology Surgial & Medical Group, Inc. and Fredric Robert Rosenberg, M.D.

Responding Party:       Plaintiff Ernestina Aguila

[TENTATIVE] RULING

Defendants’ motion is denied.

BACKGROUND

            Allegations in the Pleadings

Plaintiff Ernestina Aguila (“Plaintiff”) filed this action against defendants David Opai-Tetteh (“Opai-Tetteh”), Advanced Dermatology Surgical & Medical Group, Inc. (“Advanced Dermatology”), and Fredric Robert Rosenberg (“Rosenberg”) (as Doe 1) on April 21, 2022. She filed her operative third amended complaint (“TAC”) on November 14, 2024. The TAC asserts claims for:

1.         Civ. Code § 51.9 Statutory Sexual Harassment in Defined Relationships;

2.         Civ. Code § 1708.5 Statutory Sexual Battery;

3.         Civ. Code § 52.4 Statutory Gender Violence;

4.         Civ. Code § 51 Statutory Violation of Civil Rights;

5.         Intentional Infliction of Emotional Distress;

6.         Negligent Infliction of Emotional Distress;

7.         Negligent Hiring/Retention/Supervision; and

8.         Fraudulent Misrepresentatio  n.

As alleged in the TAC: Advanced Dermatology is a medical practice that employs Opai-Tetteh. Rosenberg is a licensed doctor and an executive of Advanced Dermatology. Plaintiff was their patient until around January 2021. Dr. Opai-Tetteh inappropriately touched Plaintiff’s breasts during a medical exam. Advanced Dermatology became aware of his misconduct, but continued his employment. Rosenberg became aware of Plaintiff’s allegations and considered them serious, but did not investigate or discipline Opai-Tetteh. Opai-Tetteh similarly assaulted at least two other female patients; Advanced Dermatology and Rosenberg also became aware of these incidents and took no action.

            Procedural History (Pleadings and Responses)

Plaintiff filed her complaint on April 21, 2022.  On July 1, 2022, Advanced Dermatology demurred and moved to strike portions of Plaintiff’s complaint.  On July 20, 2022, Opai-Tetteh demurred and moved to strike portions of Plaintiff’s complaint.

On November 8, 2022, the Court overruled Opai-Tetteh’s demurrers to Plaintiff’s first and eighth causes of action. The Court concurrently granted his motion to strike in part without leave to amend, and otherwise denied the motion.  On November 17, 2022, Opai-Tetteh answered Plaintiff’s complaint.

On June 30, 2023, Plaintiff filed her first amended complaint (“FAC”).On June 13, 2023, Opai-Tetteh demurred and moved to strike portions of Plaintiff’s FAC.  On August 1 and 2, 2023, Advanced Dermatology demurred and moved to strike portions of Plaintiff’s FAC.

On August 24, 2023, the Court approved the parties’ stipulation for Plaintiff to withdraw her claims for punitive damages based on her sixth (NIED) cause of action, against Opai-Tetteh only.

On December 20, 2023, the Court granted Plaintiff leave to file a second amended complaint (“SAC”). Plaintiff filed her SAC the same day.  On January 16, 2024, Opai-Tetteh demurred to the SAC.  On January 23, 2024, Advanced Dermatology demurred and moved to strike portions of the SAC.

On March 19, 2024, Plaintiff amended her SAC to name Rosenberg as Doe 1.  On April 4, 2024, Plaintiff dismissed her third and eighth causes of action against Rosenberg only.

On April 25, 2024, Rosenberg demurred and moved to strike portions of the SAC.

On November 12, 2024, the Court overruled Advanced Dermatology’s demurrer to the SAC. The Court granted Advanced Dermatology’s motion to strike with thirty days’ leave to amend.

On November 14, 2024, Plaintiff filed her operative third amended complaint (“TAC”).

On December 13, 2024, Advanced Dermatology and Rosenberg (hereafter “Defendants”) filed the instant motion to strike portions of the TAC.  On January 23, 2025, Plaintiff filed her opposition to Defendants’ motion to  strike.  Defendants filed no reply.

LEGAL STANDARD

“The court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436 (a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (Id., § 431.10.) The court may also “[s]trike out 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).)

A motion to strike is also the proper procedure to attack a purportedly improper remedy such as unjustified punitive damages. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.) A complaint including a request for punitive damages must also include allegations showing that the plaintiff is entitled to such an award. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

MEETING AND CONFERENCE

Code of Civil Procedure section 435.5 requires a party to meet and confer in person, by telephone, or by video conference with its adversary before it files a motion to strike.

Defendants’ counsel attests she exchanged letters with Plaintiff’s counsel. This does not satisfy section 435.5, which requires meeting and conferring in person, by telephone, or by videoconference. Nonetheless, failure to meet and confer is not grounds to deny a motion to strike. (Code Civ. Proc., § 435.5(a)(4).) The Court proceeds to the merits, but advises counsel to observe meeting-and-conference requirements more strictly going forward.

DISCUSSION

Defendants move to strike all language in the TAC that “improperly seeks punitive damages”, “and/or additional causes of action that have been improperly pleaded” in the TAC. (Not. of Mot., 2:8-9.)

Defendants argue, briefly, that Plaintiff relies on a ratification theory to impose punitive liability against them, but she has alleged no facts demonstrating ratification. This was the same ground for the Court’s order regarding Plaintiff’s SAC,

Defendants also argue Plaintiff’s claims for punitive damages should be stricken because she failed to comply with Code of Civil Procedure section 425.13, which imposes unique procedural requirements for punitive damages allegations in professional negligence claims.

            Failure to Plead Specific Facts

Plaintiff’s failure to plead facts supporting punitive damages against Defendants was the basis for the Court’s prior order on Advanced Dermatology’s motion to strike:

“Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. [Citation.]” (11-12-2024 Order, p. 15.) “Plaintiff does not allege facts showing Defendant Advanced Determatology’s knowledge of unfit agents or [its] authorization or ratification of the wrongful conduct.” (Id., at p. 16.)

Plaintiff argues she has cured these deficiencies by amendment. Her SAC contained two paragraphs of allegations related to ratification:

“23. Eventually, ADVANCED DERMATOLOGY became aware of Plaintiff’s allegations. ADVANCED DERMATOLOGY ratified the foregoing conduct of OPAI-TETTEH against Plaintiff by continuing his employment after learning of the allegations and without imposition of discipline.

24. Furthermore, as of April 15, 2022, ADVANCED DERMATOLOGY had failed to interview any individual concerning Plaintiff’s allegations. And as of April 15, 2022, ADVANCED DERMATOLOGY had failed to seek a written or recorded statement of any individual concerning Plaintiff’s allegations. Both of these circumstances provide further evidence of its ratification.”

These paragraphs have been amended and expanded in Plaintiff’s TAC to read:

“25. Eventually, ADVANCED DERMATOLOGY became aware of Plaintiff’s allegations. ADVANCED DERMATOLOGY ratified the foregoing conduct of OPAI-TETTEH against Plaintiff by continuing his employment after learning of the allegations and without imposition of discipline.

26. Eventually, ROSENBERG became aware of Plaintiff’s allegations. Upon reviewing Plaintiff’s allegations of sexual abuse against OPAI-TETTEH, provided to ROSENBERG by service of this lawsuit, ROSENBERG “thought the allegations were serious.” But even after notice of Plaintiff’s allegations of sexual abuse against OPAI-TETTEH provided by service of Plaintiff’s lawsuit, ROSENBERG did not investigate the allegations, he did not ask OPAI-TETTEH if the allegations were true, and did not impose any discipline on OPAI-TETTEH. ROSENBERG’s attorney, Thomas McAndrews, even instructed ROSENBERG to not ask OPAI-TETTEH if he ever did what Plaintiff accuses him of. Thus, ROSENBERG ratified the foregoing conduct of OPAI-TETTEH against Plaintiff by failing to investigate, continuing his employment after learning of the allegations, and without imposition of discipline.

27. Furthermore, as of January 4, 2024, ADVANCED DERMATOLOGY had failed to interview any individual concerning Plaintiff’s allegations. And as of January 4, 2024, ADVANCED DERMATOLOGY had failed to seek a written or recorded statement of any individual concerning Plaintiff’s allegations. Both of these circumstances provide further evidence of its ratification.”

The Court finds these allegations sufficiently specific to state a claim for punitive damages against Defendants, Opai-Tetteh’s employers. The allegations state a specific frame of time and specific failures to act during that time that could amount to ratification of Opai-Tetteh’s wrongdoing. If the allegations are true, a jury could feasibly conclude Defendants had ratified Opai-Tetteh’s conduct.

            First through Sixth Causes of Action - Failure to Comply with Section 425.13

As Plaintiff notes, the Court has already ruled that section 425.13 does not apply to Plaintiff’s first through sixth causes of action, as to Opai-Tetteh and therefore vicariously as to the moving Defendants. The Court’s November 8, 2022 ruling on Opai-Tetteh’s motion to strike stated, in relevant part:

“CCP § 425.13 does not apply to Plaintiffs claim for punitive damages for the first through sixth causes of action, which involve Defendant's alleged sexual misconduct against Plaintiff. The Complaint alleges that Defendant performed surgery to remove a cyst from Plaintiff's face. . . .During this surgery, Defendant allegedly groped Plaintiff's breasts. . . . Defendant's physical contact with Plaintiff's breasts had little or no connection with Defendant's surgery on Plaintiffs face. Defendant was not conducting an examination of Plaintiff's breasts or performing any kind of medical procedure on them. Defendant's physical contact with Plaintiffs breasts was entirely separate from the medical procedure that Defendant performed.

Defendant cites Central Pathology to support his arguments, but the Supreme Court there stated that "a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant's conduct would not be directly related to the manner in which professional services were rendered." . . . Accordingly, the court finds that the injury that is the basis for the first through sixth causes of action was not caused by conduct that was directly related to the rendition of Defendant's professional services.”

(11-08-2022 Order, internal citations omitted.)

            Seventh Cause of Action – Failure to Comply with Section 425.13

Defendants also direct their argument based on section 425.13 to Plaintiff’s seventh cause of action for negligent hiring or supervision, which is brought only against Defendants. The Court did not rule on these arguments in its November 8, 2022 Order, because the motion there was brought only by Opai-Tetteh.

However, Defendants have directed no new argument to the seventh cause of action that was not also directed to the sixth in Opai-Tetteh’s motion heard in November 2022. They do not argue, for example, that the hiring and supervision of doctors amounts to the provision of medical services for purposes of 425.13. Defendants only argue, as to both the sixth and the seventh causes of action, that section 425.13 does not apply to claims sounding in negligence. The Court already ruled that section 425.13 applies to a negligence claim (Plaintiff’s sixth). This is an independent and sufficient basis to deny Defendants’ motion as to the seventh cause of action.

The Court also disagrees with Plaintiff’s reading of Central Pathology Service Medical Clinic v. Superior Court (1992) 3 Cal.4th 181 (Central Pathology). Defendants admit the Central Pathology court did not rule on the question of whether section 425.13 applies to unintentional torts. Defendants pivot to Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891; the ruling there did not implicate section 425.13. It only discussed generally the standard for punitive damages based on negligence – which is not an impossible standard, as Defendants suggest, and is one the Court has already ruled Plaintiff has met at the pleading stage.

The motion is denied as directed to the seventh cause of action.

CONCLUSION AND ORDER

Defendants’ motion is denied in its entirety.