Judge: Virginia Keeny, Case: 22STCV27644, Date: 2023-03-23 Tentative Ruling
Case Number: 22STCV27644 Hearing Date: March 23, 2023 Dept: W
LESLEY-ANN
BRUAL FERNANDEZ v. SHERMAN OAKS INTEGRATED MEDICAL GROUP, INC., et al.
Defendant SHERMAN OAKS INTEGRATED
MEDICAL GROUP, INC. dba HEALTH ATLAST SHERMAN OAKS’ demurrer with motion to
strike the first amended complaint
Date of Hearing: March
23, 2023 Trial
Date: None
set.
Department: W Case
No.: 22STCV27644
Moving Party: Defendant
Sherman Oaks Integrated Medical Group Inc. dba Health Atlast Sherman Oaks
Responding Party: Plaintiff
Lesley-Ann Brual Fernandez
Meet and Confer: Yes.
(Steinberg Decl. ¶3.)
BACKGROUND
On August 28, 2022, Plaintiff
Lesley-Ann Brual Fernandez filed a Complaint against Defendants Sherman Oaks
Integrated Medical Group Inc. dba Health Atlast Sherman Oaks, Health Atlast
LLC, and Enoc Otero. On November 15, 2022, Plaintiff filed her First Amended
Complaint against Defendants, asserting causes of action for (1) Sexual
Battery; (2) Sexual Assault; (3) Intentional Infliction of Emotional Distress;
(4) Violation of Civil Code §51.9; (5) Violation of Civil Code §52.4; (6)
Negligence; (7) Negligent Hiring; (8) Negligent Failure to Warn, Train, or
Educate; (9) Negligent Infliction of Emotional Distress; and (10) Constructive
Fraud.
Plaintiff was a regular patient of Sherman
Oaks Integrated Medical Group Inc. dba Health Atlast Sherman Oaks (“Sherman Oaks
Integrated”) since 2018. Plaintiff regularly sought medical care from Sherman
Oaks Integrated in order to receive treatment for severe lumbar spine pain with
sciatica associated with multiple lumbar spine disc protrusions. Plaintiff
alleges on September 26, 2020, Plaintiff arrived at the Sherman Oaks Integrated
for a massage therapy appointment with Defendant Otero, an employee of Sherman
Oaks Integrated. Plaintiff further alleges halfway through the massage,
Defendant Otero sexually assaulted, battered, and harassed Plaintiff. Plaintiff
reported the incident to another Sherman Oaks Integrated, Dr. Bryce Matthews.
[Tentative] Ruling
Defendant Sherman Oaks Integrated Medical Group Inc. dba Health Atlast
Sherman Oaks’s Demurrer is OVERRULED; Defendant Sherman Oaks Integrated Medical
Group Inc. dba Health Atlast Sherman Oaks’ Motion to Strike is GRANTED WITH
LEAVE TO AMEND.
DISCUSSION
Defendant Sherman Oaks Integrated Medical
Group Inc. dba Health Atlast Sherman Oaks demur to the First Amended Complaint
on the grounds the first, second, third, fourth, and tenth causes of action do
not state facts sufficient to constitute a cause of action as against Defendant
Sherman Oaks Integrated.
Respondent Superior
Defendant first Sherman Oaks Integrated
first demurs to the complaint on the grounds sexual misconduct is not conduct
that arises out of the scope of an employee’s employment.
“[A]n employer is vicariously liable
for the torts of its employees committed within the scope of the
employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995)
12 Cal.4th 291, 296.) “[A]n 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.” (Id. at
297.) “[T]he employer will not be held liable for an assault or other
intentional tort that did not have a causal nexus to the employee’s
work.” (Id. at 297.) “[T]hat a job involves physical contact
is, by itself, an insufficient basis on which to impose vicarious liability for
sexual assault.” (Id. at 302.) Sexual misconduct usually falls
outside the course and scope of employment and should not be imputed to the
employer. (Juarez v. Boy Scouts of America, Inc. (2000) 81
Cal.App.4th 377, 394.)
Plaintiff alleges halfway through the
massage Defendant Otero sexually assaulted, battered and harassed Plaintiff.
(FAC ¶21.) Plaintiff attempted to move away from Defendant Otero and warned him
to stop. (FAC ¶22.) After Defendant Otero continued to touch and rub Plaintiff, Plaintiff immediately ended the massage therapy
session and exited the treatment room. (FAC ¶23.) Plaintiff then reported the
incident to Dr. Matthews, an employee and Chiropractic Treating Director of
Defendant Sherman Oaks Integrated. (FAC ¶23.) Upon receiving Plaintiff’s report
that Defendant Otero had sexually assaulted her during the massage therapy
session, Dr. Matthews questioned the veracity of Plaintiff’s report and affirmatively
represented to Plaintiff that Defendant Otero had no prior complaints of sexual
misconduct against him. (FAC ¶24.) Later that same day, Plaintiff filed a
sexual crime report against Defendant Otero. (FAC ¶25.) During the course of
the LAPD’s criminal investigation of Defendant Otero, Dr. Matthews reported to
LAPD that he was, in fact, aware of at least one prior complaint of sexual misconduct
and inappropriate touching committed by Defendant Otero. (FAC ¶26.)
Defendant argues like Lisa M.
(cited above), no sufficient factual allegations support that Defendant Otero’s
actions were generated by an outgrowth of workplace responsibilities, conditions,
or events. The court agrees.
The court finds the Lisa M. case
instructive. Lisa M. involved
an ultrasound technician who inappropriately fondled and touched a pregnant
patient during her ultrasound examination. (Lisa M. v. Henry Mayo Newhall
Memorial Hospital (1995) 12 Cal.4th 291.) The Lisa M. court held
that defendant hospital was not vicariously liable for the sexual assault of
the patient. (Id. at 305.) The Lisa
M. court held that “[t]he technician’s decision to engage in conscious
exploitation of the patient did not arise out of the performance of the
examination, although the circumstances of the examination made it possible.” (Id.
at 301.) Further, the Lisa M.
court states that “’i]f . . . the assault was not motivated or triggered off by
anything in the employment activity but was the result of only propinquity and
lust, there should be no liability.” (Id.)
Even though Defendant Otero’s job
involved intimate physical contact, Plaintiff has not alleged the motivating
emotions were fairly attributed to work-related events or conditions. (Lisa
M., supra, 12 Cal.4th at p. 301.) A recent case, Samantha B. v.
Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, highlights this
importance. In Samantha B., former patients at an acute psychiatric
hospital suffered sexual abuse by a hospital employee. The court found the
hospital and management company were vicariously liable on the grounds the
mental health workers were personally involved with patients over an extended
period of time including helping patients with daily living activities. (Samantha
B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 108.) Moreover, the
patients were vulnerable as many suffered from impaired judgment or other
cognitive impairments. (Ibid.) Samantha B. went on to distinguish
itself from Lisa M. on the grounds the interactions in Lisa M.
were brief and the employee’s duties were technical. As with Lisa M.,
the interactions between Plaintiff and Defendant Otero were brief and
technical.
Ratification
Defendant further argues Plaintiff does
not sufficiently allege facts demonstrating that Defendant Sherman Oaks
Integrated approved through words or conduct any alleged misconduct by
Defendant Otero.
An employer may be held liable for an
employee’s act when the employer subsequently ratifies that employee’s
act. (Ventura v. AMB Industries Inc. (2012) 212 Cal.App.4th 258,
272.) “[R]atification is generally applied where an employer fails to
investigate or respond to charges that an employee committed an intentional
tort, such as an assault or battery.” (Id.) “[For] adoption
and ratification there must be some relation, actual or assumed, of principal
and agent.” (Watkins v. Clemmer (1933) 129 Cal.App. 567,
572.) “A principal cannot ratify the act of the alleged agent, unless
the agent purported to act on behalf of the principal.” (Emery v.
Visa Internat. Service Ass’n (2002) 95 Cal.App.4th 952, 961, emphasis
added.)
Defendant argues Plaintiff does not
sufficiently allege facts demonstrating that Defendant Sherman Oaks Integrated
approved through words or conduct any alleged misconduct by Defendant Otero. Further,
Plaintiff has not pled sufficient facts that Defendant Otero’s alleged
intentional sexual misconduct was generated by an outgrowth of workplace
responsibilities so that Defendant Otero purported to act on behalf of
Defendant Sherman Oaks Integrated.
The court disagrees with Defendant. Taking
Plaintiff’s allegations as true, Defendant Sherman Oaks Integrated ratified Defendant
Otero’s by knowing of his prior complaint of sexual misconduct and
inappropriate touching but not undertaking any investigation or discharging
Otero. Moreover, Defendant Sherman Oaks Integrated allowed Otero to be alone
with clients.
Accordingly, the court OVERRULES the
demurrer on this basis.
Third Cause of Action
Defendant demurs to the third cause of
action on the grounds Plaintiff has not pled with sufficient particularity that
Defendant Sherman Oaks Integrated committed conduct so outrageous to exceed all
bounds of that usually tolerated in a civilized society.
The elements for a cause of action for
intentional infliction of emotional distress are (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) an actual and proximate
causal link between the tortious conduct and the emotional distress. (Hughes v. Pair (2009) 46 Cal.4th
1035, 1050.)
The third cause of action alleges a
reasonable person would not expect or tolerate that Defendant Sherman Oaks
Integrated – with actual knowledge of, and opportunity to learn of, Defendant Otero’s
dangerous propensity to commit sexual misconduct against patients, and callous
indifference thereto – would permit Defendant Otero to continue providing
massage therapy to vulnerable patients as an employee and agent of Sherman Oaks
Integrated. (FAC ¶56.) The court finds these allegations are alleged 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. (See Vasquez v.
Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)
Specifically, Plaintiff alleges Defendant Sherman Oaks Integrated’s knowledge of
Otero’s prior sexual assault and continuing employment of Otero was so extreme
to exceed all bounds of that usually tolerated in a civilized society.
Accordingly, Defendant’s demurrer is
OVERRULED.
Fourth Cause of Action
Defendant Sherman Oaks Integrated
demurs to the fourth cause of action on the grounds Plaintiff has failed to
plead facts sufficient to constitute a cause of action for violation Civil Code
§51.9.
Civil Code section 51.9 provides that
“[a] person is liable in a cause of action for sexual harassment under this
section when the plaintiff proves all of the following elements: (1) [t]here is
a business, service, or professional relationship between the plaintiff and the
defendant” and that there is an inability for the plaintiff to easily terminate
the relationship. (Civil Code §51.9(a).)
Defendant Sherman Oaks Integrated
argues Plaintiff does not allege facts with sufficient particularity as to a
business relationship between Plaintiff and Defendant Sherman Oaks Integrated.
Further, no facts are alleged that any relationship with the Defendant was not
easily terminable. The court disagrees.
Plaintiff has alleged sufficient facts
to support an inference that a business relationship existed between her and
Defendant. Plaintiff alleges she first became a patient of Defendant around
2018 and regularly sought medical care from Defendant in order to receive
treatment for severe lumbar spine pain with sciatica associated with multiple
lumbar spine disc protrusions. (FAC ¶16.) Such a relationship may exist between
a patient and doctor. Moreover, Plaintiff is no longer required to prove there
is an inability by the plaintiff to easily terminate the relationship.
Accordingly, Defendant’s demurrer to
the fourth cause of action is OVERRULED.
Tenth Cause of Action
Defendant demurs to the tenth cause of
action on the grounds Plaintiff has failed to plead facts sufficient to
constitute a cause of action for constructive fraud.
“Constructive fraud is a unique species
of fraud applicable only to a fiduciary or confidential relationship.” (Assilzadeh
v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.) Constructive
fraud “comprises any act, omission or concealment involving a breach of legal
or equitable duty, trust or confidence which results in damage to another even
though the conduct is not otherwise fraudulent.” (Id.) “Constructive
fraud ‘arises on a breach of duty by one in a confidential or fiduciary
relationship to another which induces justifiable reliance by the latter to
his prejudice.’” (Tyler v. Children’s Home Society (1994) 29
Cal.App.4th 511, 548 (quoting Odorizzi v. Bloomfield School Dist. (1966)
246 Cal.App.2d 123, 129) (emphasis in original).) “Actual reliance and
causation of injury must be shown.” (Id.)
Defendant argues Plaintiff does not
allege facts with sufficient particularity as to a fiduciary or confidential
relationship between Plaintiff and Defendant Sherman Oaks Integrated that
created a duty to Plaintiff, Defendant Sherman Oaks Integrated took active
steps to conceal matters from Plaintiff so that Plaintiff would rely on Defendant’s
actions and be injured become injured as a result, or that an advantage was
gained to Defendant Sherman Oaks Integrated by misleading her.
The court disagrees. The relationship
alleged is sufficient to show a fiduciary relationship between Plaintiff and
Defendant. As noted above, Plaintiff has alleged a fiduciary physician-patient
relationship with Plaintiff. Plaintiff also alleges she relied on Defendant’s
concealment of Otero’s prior sexual misconduct.
Accordingly, Defendant’s demurrer to
the tenth cause of action is OVERRULED.
Motion to Strike
Defendant moves to strike Plaintiff’s
allegations and prayer for punitive damages, attorney fees, and statutory
damages.
Punitive Damages
Defendant moves to strike Plaintiff’s
claims and prayer for punitive damages on the grounds Plaintiff does not
sufficiently allege Defendant is vicariously liable for actions of its
employee. Defendant also moves to strike the claims and prayer for punitive
damages on the grounds Plaintiff fails to plead facts to show that Defendant
acted with malice, oppression, or fraud.
California Civil Code section 3294
authorizes the recovery of punitive damages in non-contract cases where “the
defendant has been guilty of oppression, fraud, or malice ....” (Civ. Code §
3294(a).) “’Malice’ means 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.” (Id., § 3294(c)(1).) “‘Oppression’ means despicable conduct
that subjects a person to cruel and unjust hardship in conscious disregard of
that person’s rights.” (Id., § 3294(c)(2).) A plaintiff must establish
the defendant was aware of the probable dangerous consequences of his conduct
and that he willfully and deliberately failed to avoid those consequences to
support an award of punitive damages based on conscious disregard of the safety
of others. (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.) Punitive
damages thus require more than the mere commission of a tort. (See Taylor v.
Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be
pleaded in support of punitive damages. (See Hillard v. A.H. Robins Co.
(1983) 148 Cal.App.3d 374, 391-92.)
As noted above, the court finds
Plaintiff has sufficiently alleged vicarious liability. Moreover, Plaintiff has
sufficiently alleged Defendant acted with a willful and conscious disregard of
the rights or safety of others when Defendant Matthews had advance knowledge
that Otero was unsafe and unfit to serve as a massage therapist but continued
to employ Otero.
Attorney Fees
Defendant moves to strike Plaintiff’s
request for attorney fees on the grounds Section 1021.5 is entirely
inapplicable here as this action does not seek the enforcement of an important
right affecting the public interest or the conveyance of a significant benefit
upon the general public or a large class of persons.
Section 1021.5 provides the court with
discretion to award attorneys’ fees to a successful party in an action which
has resulted in the enforcement of an important right affecting the public
interest if a significant benefit has been conferred on the general public or a
large class of persons, the necessity and financial burden of private
enforcement makes the award appropriate, and such fees should not be paid out
of the recovery in the interest of justice. (See CCP §1021.5.)
As an award of attorneys’ fees pursuant
to Code of Civil Procedure section 1021.5 is discretionary and depends on a
weighing of factors, it cannot be determined that Plaintiff is not entitled to
section 1021.5 attorneys’ fees at this stage. Plaintiff has alleged an attempt
to confer a significant benefit on the general public or a large class of
persons by identifying an alleged sexual abuser as well as those who fail to
properly report sexual abusers.
The court denies Defendant’s motion to
strike on this basis.
Statutory Damages
Defendants move to strike Plaintiff’s
prayer for statutory damages on the grounds the body of the FAC itself does not
cite to specific authority supporting an award of such damages.
Plaintiff does not address this
argument in their opposition. Accordingly, Defendant’s motion to strike is
GRANTED. The court will determine at the
hearing whether plaintiff is requesting leave to amend.