Judge William A. Crowfoot, Case Number: 23AHCV00172, Date: 2023-11-07 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00172, Date: 2023-11-07 Tentative Ruling

On January 25, 2023, plaintiff John Doe (“Plaintiff”) filed this action against defendant Huntington Hospital (“Defendant”). On July 21, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) asserting causes of action for assault, battery, sexual battery in violation of Civil Code section 1708.5, intentional infliction of emotional distress (“IIED”), negligent hiring, training, supervision and retention, and negligence.

On September 28, 2023, Defendant filed a demurrer and motion to strike. Defendant demurs to Plaintiff’s assault, battery, sexual battery, and IIED claims. Defendant moves to strike Plaintiff’s prayer for punitive damages and attorney’s fees.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) 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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Plaintiff alleges that on June 7, 2022, he sought care at Defendant’s emergency room for symptoms of a panic attack. (FAC, ¶ 7.) He was accompanied by his boyfriend. (Ibid.) While being evaluated, Plaintiff noticed that a member of the support staff, “Juan”, took a “high level of interest” in him. (FAC, ¶ 9.) Juan then arranged a staffing reassignment and became assigned to Plaintiff’s care; he proceeded “almost immediately” to ask questions unrelated to Plaintiff’s care, beginning with “What’s your sign?” (FAC, ¶¶ 9-10.) Plaintiff replied with his birth date and Juan commented, “oh [sic] you’re a cancer,” before leaving to attend to other matters. (FAC, ¶ 11.) Juan then returned to obtain a blood sample. (FAC, ¶ 12.) Upon entering the room, Juan directed Plaintiff’s boyfriend to sit in a corner of the room which blocked his boyfriend’s from viewing anything Juan was doing with his hands to Plaintiff. (FAC, ¶ 12.)

To prepare for the blood draw, Juan asked Plaintiff to extend his arm and placed a rubber strap on it. (FAC, ¶ 13.) While Plaintiff’s arm was extended, “Plaintiff’s hand was pointed away from his body, palm up, approximately 3 feet above the floor due to his laying in a hospital bed.” (FAC, ¶ 14.) Juan moved forward with the needle and just before inserting the needle into Plaintiff’s vein, he placed his genital in Plaintiff’s palm. (FAC, ¶¶ 14-15.) Plaintiff thought this was a mistake and expected Juan to immediately move away, but when Juan did not do so, he realized he was being taken advantage of. (FAC, ¶ 16.) In under a minute, “it appeared that Juan had gone from a flaccid to a fully erect state.” (FAC, ¶ 18.) Juan kept his genitals in Plaintiff’s hand during the entire 3-minute procedure. (FAC, ¶ 19.) After removing the needle, Juan applied a bandage; Plaintiff reported the incident to Defendant’s staff and the local police department. (FAC, ¶ 20.)

Defendant demurs to the four intentional torts on the grounds that it cannot be held directly liable as an entity and is not vicariously liable for Juan’s inappropriate touching. Defendant relies on a single case, Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291. In Lisa M., a pregnant patient went to a hospital emergency room for treatment. (Lisa M., supra, 12 Cal.4th at pp. 294-295.) She had an ultrasound performed in an ultrasound room. The technician denied the plaintiff’s boyfriend access to the ultrasound room before molesting the plaintiff by inappropriately touching her vagina. (Id. at p. 295.) The California Supreme Court held that the hospital was not vicariously liable for the technician’s deliberate sexual battery because the reasons for committing battery did not derive from any events or conditions of his employment, nor were his actions provoked by anything that occurred during the prescribed examination. While the Supreme Court acknowledged that the hospital may have provided the opportunity for the technician’s misconduct, the technician acted independently and his conduct fell outside the scope of his employment.

In opposition, Plaintiff distinguishes Lisa M. from the present case by emphasizing that Juan’s misconduct took place during the blood draw, whereas the plaintiff in Lisa M. was molested after the ultrasound procedure. Plaintiff argues that the blood draw required Juan to touch him, thus the inappropriate conduct was triggered by the needs of the medical procedure. (Opp. at p. 6.) This is a distinction without a difference. Plaintiff’s cited portions of Lisa M. show that for vicarious liability to attach, the employment must predictably “create the risk [that] employees will commit intentional torts of the type for which liability is sought” and that the tortious occurrence is a “generally foreseeable consequence.” (Lisa M. at p. 299.)

Here, although Juan was required to touch Plaintiff during the blood draw, nothing required him to place his genitals in Plaintiff’s open hand, and it cannot be reasonably inferred that this is a “generally foreseeable consequence” of a commonly-performed medical procedure, instead of “the result of only propinquity and lust.” (Lisa M. at p. 301.)

Accordingly, the Court SUSTAINS Defendant’s demurrer to Plaintiff’s First, Second, Third, and Fourth Causes of Action.

Because the Court sustains the demurrer, Defendant’s motion to strike Plaintiff’s prayer for punitive damages as to the First, Second, Third, and Fourth Causes of Action is moot.

As for Plaintiff’s prayer for attorneys’ fees, Plaintiff identifies no statute or contract which entitled him to fees. (Code Civ. Proc., § 1021 [“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys . . . is left to the agreement . . . .of the parties.”]) Accordingly, Defendant’s motion to strike Plaintiff’s request for attorneys’ fees is GRANTED.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.