Anja Bayet, et al. v. Peter Levy, DC
Case No: 19CV04232
Hearing Date: Tue Dec 17, 2019 9:30

Nature of Proceedings: Motion Strike Portions of Plaintiffs’ First Amended Complaint

Defendant’s Motion to Strike Portions of First Amended Complaint

ATTORNEYS:

Jordan D. Hankey for Plaintiffs Ajna Bayet and Kathleen Korsan

Kylie A. Schofield for Defendant Peter Levy, D.C.

RULING: Defendant’s motion to strike the claim for punitive damages in plaintiffs’ first amended complaint is denied. The Court intends to call the CMC Calendar matter on this case at 9:30am; appearances at 8:30am are not expected.

BACKGROUND:

Plaintiffs Ajna Bayet (“Bayet”) and Kathleen Korsan (“Korsan”) are former employees of defendant Peter Levy, D.C., a chiropractor with offices located at 3710 State Street, Suite E, Santa Barbara, California 93105. On October 8, 2019, plaintiffs filed their first amended complaint alleging two causes of action against defendant. The first cause of action is for sexual battery and is brought on behalf of both plaintiffs. The second cause of action is for professional negligence and is brought on behalf of Korsan only. In the first cause of action, Bayet and Korsan allege that defendant committed sexually offensive contact with them on several occasions in the office. In the second cause of action, Korsan alleges that defendant injured her clavicle by use of an Activator Gun during chiropractic treatments she received. Plaintiffs seek punitive damages in connection with the sexual battery cause of action.

By this motion, defendant requests an order striking the claim for punitive damages on the ground that he is a health care provider and plaintiffs filed their punitive damages claim without first seeking leave of court. Plaintiffs oppose the motion to strike as they are only seeking punitive damages in connection with the sexual battery cause of action, not the professional negligence claim.

ANALYSIS:

Code of Civil Procedure Section 435, subdivision (b)(1), provides that “[a]ny 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.” The grounds for a motion to strike are set forth in Code of Civil Procedure Section 436, which provides:

“The court may, upon a motion made pursuant to Section 435, 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.

“(b) Strike 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.”

Defendant contends that plaintiffs are barred from seeking punitive damages because their alleged injuries are directly related to the chiropractic services he provided and they failed to obtain leave of court before alleging such damages. Code of Civil Procedure Section 425.13, subdivision (a), provides:

“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.”

In Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, the plaintiffs, a husband and wife, brought an action for medical malpractice against a physician and a medical laboratory. After learning that the defendants had attempted to cover up that they had failed to notify the wife that she was developing cancer, the plaintiffs sought to amend their complaint to add a cause of action for fraud, together with a claim for punitive damages. The trial court concluded that Code of Civil Procedure Section 425.13 did not apply and allowed the amendment, but the California Supreme Court directed the trial court to vacate its order and to conduct further proceedings. Although the plaintiffs’ fraud cause of action was an “intentional tort,” the Supreme Court held that Section 425.13 still applied because the cause of action “[was] directly related to the manner in which defendants provided professional services.” Id., at 193. As the court explained:

“[I]dentifying a cause of action as an ‘intentional tort’ as opposed to ‘negligence’ does not itself remove the claim from the requirements of section 425.13(a). The allegations that identify the nature and cause of a plaintiff’s injury must be examined to determine whether each is directly related to the manner in which professional services were provided. Thus, a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13 because the injury arose out of the manner in which professional services are provided. By contrast, 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.”

Id., at 192.

Cooper v. Superior Court (1997) 56 Cal.App.4th 744 is also instructive. In Cooper, the plaintiff brought an action for medical malpractice and sexual assault against her doctor, a gynecologist, based on allegations that the defendant touched her inappropriately during the course of a gynecological examination. The defendant filed a petition for writ of mandate after the trial court denied his motion to strike the punitive damages claim on the ground that the plaintiff had failed to seek leave of court to allege such damages. The court of appeal granted the writ and directed the trial court to vacate its order denying the defendant’s motion to strike the punitive damages allegations and to issue a new order striking the punitive damages claim without prejudice to a properly noticed and supported motion pursuant to Code of Civil Procedure Section 425.13. Id., at 752. The court held that the sexual assault cause of action, though an intentional tort, was controlled by Code of Civil Procedure section 425.13 because a doctor rendering gynecological care cannot render such services without touching the private parts of a woman’s body and therefore plaintiff’s allegations were directly related to the manner in which the gynecological services were provided. Id., at 751.

The court in Cooper, while ordering that the punitive damages claim be struck, was careful to point out that gynecological services are unique and that “in most instances” a claim of sexual battery against a doctor or health care provider would not be related to the manner in which the professional services were rendered. Id., at 751. The court stated:

“Most types of services rendered by health care providers do not involve the genitalia. Thus if a podiatrist, ophthalmologist or dentist touches or manipulates a patient’s genitalia, there will usually be no arguable connection between such conduct and the rendition of legitimate health care. If a patient consults an orthopedic surgeon for treatment of bursitis in an elbow, there would usually be no occasion for the surgeon to touch or manipulate that patient’s genitalia. A doctor consulted for nutritional advice about cholesterol levels would not likely have a legitimate medical reason for manipulating genitalia. The list of examples of this type is endless. A doctor rendering gynecological care, by contrast, cannot render the full panoply of gynecological services without touching, probing or otherwise manipulating a woman’s genitalia. Thus when a gynecologist is accused . . . of committing a sexual battery in the course of rendering gynecological services, that accusation is necessarily ‘directly related’ to the manner in which the gynecological services were rendered.”

Ibid.

Defendant argues that plaintiffs are barred from seeking punitive damages without leave of court because their alleged injuries are directly related to the professional services he provided, but the Court disagrees. First, plaintiffs allege that some of the sexual batteries committed by defendant did not occur when he was rendering chiropractic services. On page 4 of the first amended complaint, plaintiffs allege:

“Plaintiffs Bayet and Korsan had an employee/employer relationship with Defendant Peter Levy, D.C. Defendant intended to cause harmful and offensive contact with Plaintiff Bayet’s groin and breasts. Defendant intended to cause harmful and offensive contact with Korsan’s breasts. Defendant did commit sexually offensive contact directly with Plaintiff Bayet on several occasions. Defendant did commit sexually offensive contact directly with Plaintiff Korsan on several occasions. . . . [T]he conduct and touching by Defendant to Plaintiff Bayet and Plaintiff Korsan happened while they were both at 3710 State Street, Suite E, Santa Barbara, California 93105.”

(FAC, p. 4, ¶IT-1.)

In addition, on page 6 of the first amended complaint, Korsan alleges that defendant “[g]roped her breasts during greetings.” (FAC, p. 6, ¶EX-2.) None of these actions are alleged to have occurred during the rendition of professional services.

Second, plaintiffs allege that the sexual batteries that were committed by defendant while administering chiropractic services were unrelated to the services. Specifically, Korsan alleges that defendant “[d]emanded that she take her top off to administer soft tissue adjustments.” (FAC, p. 6, EX-2.) Bayet alleges that defendant “[r]epeatedly touched her buttock” and “[g]rabbed her breast” during chiropractic treatments. (Ibid.) The Court finds no arguable connection between such conduct and the rendition of chiropractic services and therefore plaintiffs were not required to comply with Code of Civil Procedure Section 425.13 before seeking punitive damages.

Based on the foregoing, the Court will deny defendant’s motion to strike plaintiffs’ claim for punitive damages.