Case Number: 19STCV05230 Hearing Date: February 18, 2020 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

LUIS AGUIAR, etc.,

Plaintiff,

vs.

PROVIDENCE HEALTH SYSTEMS – SOUTHERN CALIFORNIA d.b.a. PROVIDENCE TARZANA MEDICAL CENTER, etc., et al.,

Defendants.

CASE NO.: 19STCV05230

[TENTATIVE] ORDER RE: DEMURRERS TO PLAINTIFF’S THIRD AMENDED COMPLAINT; MOTIONS TO STRIKE

Date: February 18, 2020

Time: 8:30 a.m.

Dept. 56

FSC: April 6, 2020

Jury Trial: April 20, 2020

MOVING PARTIES: Defendant Providence Health Systems—Southern California d.b.a. Providence Tarzana Medical Center (“PHS”); Defendant Manny Reyes (“Reyes”)

RESPONDING PARTY: Plaintiff Luis Aguiar

The Court has considered the moving, opposition, and reply papers. The Court will exercise its discretion and will consider Plaintiff’s opposition papers despite PHS’s argument that such opposition papers should not be considered due to their late filing.

BACKGROUND

Plaintiff’s Third Amended Complaint (“TAC”) arises from alleged wrongful actions that occurred when he was admitted to the hospital. Plaintiff filed the TAC alleging causes of action against Defendants for: (1) dependent adult abuse; (2) sexual assault and battery; (3) negligence; (4) negligent hiring – Elam; (5) intentional infliction of emotional distress; and (6) sexual harassment in violation of California Civil Code, Section 51.9.

PHS and Reyes each filed separate demurrers. PHS filed a demurrer to the first, second, fourth, fifth, and sixth causes of action in the TAC. Reyes filed a demurrer to the first and sixth causes of action in the TAC. PHS and Reyes also filed respective motions to strike

MEET AND CONFER

Both PHS and Reyes have met the meet and confer requirement.

JUDICIAL NOTICE

The Court GRANTS Reyes’ request for judicial notice.

PHS’ DEMURRER

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) “On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted.” (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 198.) “In ruling on a demurrer, the court may take judicial notice of a party’s earlier pleadings.” (Ruiz v. Musclewood Investment Properties, LLC (2018) 28 Cal.App.5th 15, 20.) A demurrer will be sustained without leave to amend if there exists no “reasonable possibility that the defect and be cured by amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Id.)

Issue No. 1: First Cause of Action

“The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a person residing in this state 65 years of age or older.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404.) California Welfare and Institutions Code, Section 15610.07 codifies the Elder Abuse Act and defines the abuse of a dependent elder or adult “as [p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or “[t]he depravation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Id.) California Welfare and Institutions Code, Section 15610.07 also classifies financial abuse as the abuse of a dependent elder or adult. “To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder.” (Id. at 405.) “The plaintiff must prove by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice.” (Id.) “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature.” (Id.) “Recklessness involves deliberate disregard of the high degree of probability that an injury will occur.” (Id.) “[I]n order to obtain the Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support the recovery of punitive damages.” (Id.) “With respect to corporate defendant, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572.) “A managing agent is an employee with authority to establish corporate policy, that is, the broad principles and rules of general application which govern corporate conduct.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 163.) Managing agents are employees who “exercise substantial discretionary authority over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.)

“Generally, negligence is the failure to exercise the care a person of ordinary prudence would exercise under the circumstances, and professional negligence is simply one type of negligence, to which general negligence principles apply.” (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 122.) “Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur . . . Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.” (Id.)

Under California Welfare and Institutions Code, Section 15610.57 neglect is defined as either: (1) the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise; or (2) the negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise. California Welfare and Institutions Code, Section 15610.63(e) says that sexual assault can mean actions such as “[s]exual battery, as defined in Section 243.4 of the Penal Code.” California Penal Code, Section 243.4(a) defines sexual battery as “[a]ny person who touches an intimate part of another person while that person is unlawfully restrained by the accused . . . and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse” then one is “guilty of sexual battery.” California Penal Code, Section 243.4(e)(1) defines sexual battery as “[a]ny person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another person, against that person’s will while that person is unlawfully restrained . . . or is institutionalized for medical treatment . . . to masturbate or touch an intimate part of either those persons or a third person.” California Penal Code, Section 243.4(b) says that sexual battery exists when “[a]ny person . . . touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse.” California Penal Code, Section 243.4(c) classifies sexual battery as occurring when “[a]ny person . . . touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose.”

“[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) “[C]lear and convincing evidence of (i) liability and (ii) recklessness, malice, oppression, or fraud—adequately protects health care providers from liability under the statute for acts of simple or even gross negligence.” (Id. at 785.) “Under the theory of respondeat superior, employers are vicariously labile for tortious acts committed by employees during the course and scope of their employment.” (Vogt v. Herron Construction, Inc. (2011) 200 Cal.App.4th 643, 649.) The general rule is that liability exists except “for cases where the employee has substantially deviated from his duties for personal purposes.” (Id.) “[I]f an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.” (Id. at 650.)

Analysis with Respect to the First Cause of Action

Plaintiff has failed to state a cause of action against PHS under a theory of vicarious liability or ratification. While pursuant to the first cause of action, the TAC asserts that Nurse Daisy, the nursing supervisors of PHS, the Director of Nursing at PHS, and the Risk Manager of PHS authorized and ratified the conduct of Reyes, the TAC fails to plead that any of those individuals were a managing agent of PHS as required by White to show ratification of such actions. The TAC is void of any allegations pursuant to the first cause of action that such individuals exercise substantial control over the corporate decision-making of PHS. Moreover, while the TAC alleges that PHS: (1) failed to properly screen Reyes for conduct indicating a propensity to engage in sexual abuse prior to employing him; (2) ignored signs and indications that Reyes had a propensity to sexually abuse patients prior to this sexual assault of Plaintiff; (3) through Nurse Daisy, failed to respond to signs and indications that Reyes was going to sexually assault Plaintiff; (4) failed to properly intervene to stop a preventable sexual assault by having proper policies and procedures in place with respect to hiring, training, and retention of employees; (5) failed to make mandatory reports after the sexual assault and failed to properly screen Reyes; and (6) failed to take reasonable action and respond when informed about the sexual assault committed against Plaintiff (TAC at ¶¶ 22-24), the TAC does not provide sufficient acts to indicate that such actions were taken by an officer, director, or managing agent of PHS who determines corporate policy and does not indicate with specificity what measures were or were not taken and what information was known specifically about Reyes’ propensity for sexual assault. The TAC alleges acts of the purported managing agents of PHS, and in general PHS, but does not indicate for instance: (1) what information PHS knew with respect to Reyes’ propensity to sexually assault; or (2) who at PHS with substantial authority to determine corporate policy failed to discipline or report such incident to law enforcement. (TAC at ¶¶ 15-17.)

Also, under Vogt, the Court finds that there is no basis for vicarious liability as the alleged tort committed by Reyes was merely personal in nature. The Court finds that Reyes deviated from his employment for personal purposes as Plaintiff was admitted for respiratory distress and Reyes started massaging Plaintiff’s right leg without gloves in order to help him relax. (TAC at ¶¶ 9-11.) Even the TAC alleges that when Nurse Daisy saw Reyes touching a patient without gloves, she indicated it was inappropriate to be touching a patient without gloves. (Id. at ¶ 10.)

Plaintiff has not pled this cause of action with the required particularity and has not shown malice, oppression, fraud, or recklessness on behalf of PHS.

The demurrer of PHS to the first cause of action in the TAC is SUSTAINED WITHOUT LEAVE TO AMEND under Blank. Plaintiff has failed to meet his burden to establish that the defects in the first cause of action can be cured by amendment. Additionally, this is Plaintiff’s fourth iteration of his complaint as he has previously filed the original complaint, first amended complaint, and second amended complaint.

Issue No. 2: Second Cause of Action

“Allegations of misconduct directed against one defendant, however, do not state a cause of action against another defendant against whom the allegations of misconduct are not directed.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) “[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.) Nevertheless, 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.)

The Court finds the Lisa M. case instructive. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.) Lisa M. involved an ultrasound technician who inappropriately fondled and touched a pregnant patient during her ultrasound examination. (Id.) 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.)

The Court incorporates its analysis of ratification and vicarious liability with respect to the first cause of action and applies it to the second cause of action. The Court finds that the second cause of action is not sufficient with respect to PHS. Despite Reyes wearing PHS’ name badge, scrubs, and being an employee with them at the time of the alleged sexual assault (TAC at ¶ 13), the Court finds that there are no facts indicating that Reyes was acting on behalf of PHS. The TAC even alleges that Reyes’ purported massage was not related to the reason for Plaintiff’s admission, which was respiratory issues. (Id. at ¶ 29.) Thus, the fact that Reyes allegedly massaged Plaintiff to help him relax has no connection to his medical condition for which he was at PHS. As indicated above, however, the TAC has not pled sufficient facts to indicate that a managing agent of PHS subsequently ratified Reyes’ conduct. Under Juarez and Lisa M., Plaintiff has not stated a sufficient cause of action for sexual assault and battery against PHS.

Therefore, the Court SUSTAINS WITHOUT LEAVE TO AMEND the demurrer of PHS to the second cause of action in the TAC under Blank.

Issue No. 3: Fourth Cause of Action

“[I]n California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395.) “[T]here can be no liability for negligent supervision in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.” (Id.) Where an employer knew or should have known of prior sexual misconduct and knows that an employee poses a foreseeable risk of harm to patients, the employer owed a duty to protect patients from that harm. (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855.) “[A] hospital’s failure to insure the competence of its medical staff through careful selection and review creates an unreasonable risk of harm to its patients.” (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 341.) “Liability results . . . not because of the relation of the parties but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment.” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214.) “Generally, whether a defendant was negligent constitutes a question of fact.” (Id.) “An employer is not charged with guaranteeing the safety of anyone his employee might incidentally meet while on the job against injuries inflicted independent of the performance of work-related functions.” (Id. at 1215.) “[L]iability for negligence can be imposed only when the employer knows, or should know, that the employee because of past behavior or other factors, is unfit for the specific tasks to be performed.” (Id.)

Pursuant to the fourth cause of action, the TAC alleges that: (1) PHS failed to properly perform background checks and re-evaluate Reyes and knew or should have know that Reyes had a propensity for committing sexually violent acts that placed its patients at an unreasonable risk of harm; (2) failed to screen for conduct indicating a propensity to engage in sexual abuse of patients prior to employing him and ignored sings indicating such propensity; and (3) ignored signs that Reyes had a propensity to sexually abuse patients including complaints by other patients about Reyes. (TAC at ¶ 42.)

The Court finds that the conclusory allegations with respect to the fourth cause of action are insufficient to state a cause of action for negligent hiring. The TAC does not indicate what history existed with respect to Reyes’ sexual propensity, how the screening of Reyes was flawed, or what signs were ignored and what the contents of the complaints lodged against Reyes indicated.

Thus the demurrer of PHS to the fourth cause of action in the TAC is SUSTAINED WITHOUT LEAVE TO AMEND under Blank.

Issue No. 4: Fifth Cause of Action

“The elements of the tort of 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) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct . . . Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) “The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.” (Id.) “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617.) To plead extreme and outrageous conduct, specific facts must be set forth because “[g]enerally, conduct will be found actionable where the recitation of facts to an average member of the community would arose his resentment against the actor and lead him to exclaim, Outrageous!” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1515-1516.) Conclusory allegations will not suffice to state a cause of action for intentional infliction of emotional distress. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1422.) A complaint “must plead specific facts that establish severe emotional distress resulting from defendant’s conduct.” (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093,1114.)

Pursuant to the fifth cause of action, Plaintiff pleads that: (1) PHS assured Plaintiff that it would provide a safe environment for medical treatment which Plaintiff reasonably understood to mean that PHS would keep its patients safe from sexual assault by healthcare providers employed by PHS (TAC at ¶ 46); (2) PHS failed to properly screen Reyes prior to hiring him, failed to take reasonable action when presented with information that Reyes had a propensity to sexually abuse patients, failed to take action when presented with information that Reyes was about to sexually abuse Plaintiff and failed to respond to such abuse, and failed to comply with their mandatory reporting duties (Id.); (3) Defendants’ conduct was done with intent, or reckless disregard, of the fact that their conduct would cause severe emotional distress to Plaintiff (Id. at ¶ 48); and (4) Plaintiff did in fact suffer from severe emotional distress as a result of Defendants’ actions, including anxiety, depression, loss of sleep, severe humiliation and embarrassment, and has required mental health therapy to treat his injuries. (Id. at ¶ 49.)

The Court incorporates its discussion of ratification and vicarious liability with respect to PHS from above and applies it to the fifth cause of action in the TAC. The conduct of PHS pursuant to the fifth cause of does not rise to the level of outrageous needed to state a cause of action for intentional infliction of emotional distress. The conduct of PHS alleged in connection with the fifth cause of action does not rise to the level of extreme or outrageous.

Therefore, the Court SUSTAINS WITHOUT LEAVE TO AMEND the demurrer of PHS to the fifth cause of action in the TAC pursuant to Blank.

Issue No. 5: Sixth Cause of Action

California Civil Code, Section 51.9(a)(1) indicates that liability for a cause of action for sexual harassment arises when: (1) there is a business, service, or professional relationships between the plaintiff and defendant or the defendant holds himself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party; (2) the defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe; and (3) the plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2) of California Civil Code, Section 51.9. The business, service, or professional relationship may exist “between a plaintiff and a person, including, but not limited to” people such as: (1) a physician, psychotherapist, or dentist; or (2) a relationship that is similar to a physician, psychotherapist, or dentist. (Cal. Civ. Code § 51.9(a)(1)(A)-(I).) “Depending on the facts, a certified nurse assistant can have a service or professional relationship with a plaintiff, as can other hospital staff. It depends on the facts.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1106.) “Principles of ratification apply to a section 51.9 cause of action.” (Id. at 1111.) To state a cause of action under California Civil Code, Section 51.9, a plaintiff must also plead that there exists an inability to easily terminate the relationship. (C.R. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1105.)

The TAC only makes a conclusory allegation that Reyes had responsibilities that were substantially similar to that of a physician. Plaintiff has not shown that certified nursing assistants come within the ambit of California Code of Civil Procedure, Section 51.9 in order to impute liability on PHS. Plaintiff has not stated this cause of action with the required particularity per Covenant Care. Plaintiff has failed to plead there was an inability to terminate the relationship. Moreover, pursuant to the Court’s discussion above in connection with the first and second causes of action, with respect to the lack of facts pled to indicate ratification and vicarious liability, the Court finds that no facts exist to find that PHS ratified the conduct of Reyes.

Therefore, the Court SUSTAINS WITHOUT LEAVE TO AMEND the demurrer of PHS to the sixth cause of action in the TAC pursuant to Blank.

PHS’ MOTION TO STRIKE

PHS seeks to strike: (1) damages sought for Plaintiff’s first cause of action because Plaintiff failed to allege sufficient facts to state a claim for elder abuse/neglect; (2) Plaintiff’s prayer for attorneys’ fees pursuant to the first cause of action; and (3) Plaintiff’s prayer for attorneys’ fees pursuant to the sixth cause of action in the TAC.

California Code of Civil Procedure, Section 436(a) allows a court to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” California Code of Civil Procedure, Section 436(b) allows a court to “[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.”

As indicated above with respect to PHS’s demurrer to the TAC, the Court finds that Plaintiff’s first, second, fourth, fifth, and sixth causes of action do not state facts sufficient to constitute causes of action against PHS. As such, any damages and attorneys’ fees Plaintiff is seeking pursuant to those causes of action are unwarranted.

Therefore, the Court GRANTS PHS’ motion to strike WITHOUT LEAVE TO AMEND.

REYES’ DEMURRER

Issue No. 1: First Cause of Action

The Court incorporates its discussion of law above with respect to the first cause of action in connection with PHS’ demurrer to the TAC and applies it to its discussion of Reyes’ demurrer to the first cause of action in the TAC. Plaintiff has not pleaded sufficient facts to show sexual assault under California Penal Code, Section 243.4, and as such Plaintiff has not stated physical abuse for purposes of Reyes’ alleged acts being physical abuse for purposes of imputing liability to him for Dependent Adult Abuse.

The Court finds that the TAC does not state sufficient facts to constitute a cause of action for Dependent Adult Abuse with respect to Reyes. The first cause of action for Dependent Adult Abuse is based on the sexual assault of Plaintiff (TAC at ¶ 21) pursuant to California Welfare and Institutions Code, Sections 15610.07 and 15610.63, and the TAC does not sufficiently plead those elements. Plaintiff’s first cause of action is not based on battery or assault within the meaning of Section 15610.63 despite Plaintiff’s argument to the contrary[1]. Pursuant to the first cause of action, the TAC does not plead that: (1) Plaintiff was unlawfully restrained; (2) was seriously disabled or medically incapacitated; or (3) Plaintiff was unconscious at the time Reyes touched him. Plaintiff also pleads in a conclusory manner that Reyes touched Plaintiff “for purposes of . . . sexual arousal, sexual gratification, or sexual abuse.” (TAC at ¶ 21.) Thus, Plaintiff does not fall within the scope of California Penal Code, Sections 243.4(a), (b), (c), or (d). Given that Plaintiff’s first cause of action is a statutory cause of action, Plaintiff must plead such cause of action with particularity under Covenant Care.

Plaintiff has not stated sufficient facts to constitute a cause of action for Dependent Adult Abuse. Therefore, the Court SUSTAINS WITHOUT LEAVE TO AMEND the demurrer of Reyes to the first cause of action in the TAC under Blank. Plaintiff has failed to meet his burden to establish that the defects in the first cause of action can be cured by amendment. Additionally, this is Plaintiff’s fourth iteration of his complaint as he has previously filed the original complaint, first amended complaint, and second amended complaint.

Issue No.2: Sixth Cause of Action

The Court incorporates its discussion of law above with respect to the sixth cause of action in connection with PHS’s demurrer to the TAC and applies it to its discussion of Reyes’ demurrer to the sixth cause of action in the TAC.

The Court finds that Plaintiff has not stated a cause of action for sexual harassment. Pursuant to the sixth cause of action in the TAC, Plaintiff has not pled that there was an inability to easily terminate the relationship between himself and Reyes. As a statutory cause of action, arising under Civil Code Section 59.1, under Covenant Care Plaintiff was required to plead such cause of action with particularity.

Therefore, the Court SUSTAINS WITHOUT LEAVE TO AMEND Reyes’ demurrer to the sixth cause of action in the TAC under Blank. Plaintiff has failed to meet his burden to establish that the defects in the sixth cause of action can be cured by amendment. Additionally, this is Plaintiff’s fourth iteration of his complaint as he has previously filed the original complaint, first amended complaint, and second amended complaint.

REYES’ MOTION TO STRIKE

Reyes filed a motion to strike in connection with the TAC. Reyes seeks to strike: (1) the prayer for punitive damages with respect to the first, second, fifth, and sixth causes of action; (2) the prayer for attorneys’ fees associated with the first and sixth causes of action; and (3) references to punitive damages in connection with the first, second, and fifth causes of action. Reyes asserts that: (1) Plaintiff cannot make a claim for punitive damages pursuant to the second, fifth, and sixth causes of action until he complies with California Code of Civil Procedure, Section 425.13; and (2) Plaintiff is not entitled to attorneys’ fees or punitive damages arising out of the claims for dependent adult abuse or sexual harassment.

Plaintiff contends that: (1) he has asserted valid claims for dependent adult abuse and sexual harassment against Reyes and is entitled to include a claim for punitive damages in the TAC; and (2) there was no medical basis for Reyes to massage his legs.

With respect to the: (1) prayer for punitive damages in connection with the first and sixth causes of action; (2) references to punitive damages in connection with the first cause of action; and (3) prayer for attorneys’ fees associated with the first and sixth causes of action, the Court GRANTS Reyes’ motion to strike without leave to amend thereto because such causes of action, as indicated above, were sustained without leave to amend in connection with Reyes’ demurrer to the TAC.

Thus, this ruling will now address Reyes’ request to strike: (1) the prayer for punitive damages with respect to the second and fifth causes of action; and (2) the reference to punitive damages pursuant to the fifth cause of action.

Issue No. 1: Punitive Damages

California Code of Civil Procedure, Section 425.13(a) says that “[i]n any action for damages arising out of the professional negligence of a healthcare 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 to be filed that includes a claim for punitive damages to be filed.” “[M]erely identifying 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).” (Davis v. Superior Court (1994) 27 Cal.App.4th 623, 627.) “What is required is an examination of the allegations that identify the nature and cause of a plaintiff’s injury . . . to determine whether each is directly related to the manner in which professional services were provided.” (Id.) “Thus, a cause of action against a healthcare provider for battery predicated on treatment exceeding or different form 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 defendant’s conduct would not be directly related to the manner in which professional services were rendered.” (Id. at 627-628.) The allegations must be “indisputably directly related to the rendition of healthcare” in order for compliance with Section 425.13 to be required. (Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 749.) “[A]n action for damages arises out of the professional negligence of a healthcare provider if the injury for which damages are sought is directly related to the professional services provided by the healthcare provider.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191.) “[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).” (Id. at 192.) A cause of action is within the scope of Section 425.13(a) when it “is directly related to the manner in which defendants provided professional services.” (Id.)

The TAC alleges that: (1) Reyes told Plaintiff that he looked like he needed a massage to help him relax and that he did it all the time to help them relax and that he did this all the time for patients (TAC at ¶ 10); (2) Plaintiff was presented to PHS in respiratory distress with significant hypoxia (Id. at ¶ 9); (3) Reyes began massaging Plaintiff without gloves on when Nurse Daisy told him it was inappropriate to be touching a patient without gloves, Reyes got gloves, and came back to the room with gloves on and lotion in his hands (Id. at ¶ 10); (4) Reyes began massaging Plaintiff’s right leg with gloves and lotion in his hands and, at one point, brushed against Plaintiff’s testicles(Id.); (5) at one point, Reyes grabbed Plaintiff’s penis out from under Plaintiff’s boxers, squeezed it, and forced Plaintiff to ejaculate. (Id.) Pursuant to the second cause of action, the TAC alleges that: (1) under the guise of providing appropriate medical treatment, Reyes massaged Plaintiff’s extremities without wearing gloves which was not the reason for Plaintiff’s admission to PHS due to respiratory issues (Id. at ¶ 29); (2) Reyes repeatedly touched Plaintiff’s genitalia causing him to ejaculate (Id.); and (3) Plaintiff did not consent to Reyes touching his genitalia and repeatedly requested Reyes to stop. (Id.)

Pursuant to the second cause of action, the Court finds that the second cause of action arose from Plaintiff’s medical care. Reyes is a certified nurse assistant and Plaintiff was a patient at PHS, which is where Reyes worked. The TAC alleges that Reyes informed Plaintiff that he provided massages to all of his patients. Additionally, under the second cause of action the TAC asserts that Reyes’ conduct was done under the guise of providing medical treatment. (Id. at ¶ 29.)

Plaintiff’s second cause of action arises from the nature in which patient care was provided to him. Therefore, Plaintiff must comply with California Code of Civil Procedure, Section 425.13(a) before making a claim for punitive damages pursuant to the second cause of action. The Court previously found in ruling on Reyes’ motion to strike portions of the Second Amended Complaint of action that Plaintiff was required to comply with Section 425.13(a) in connection with claiming punitive damages pursuant to the fifth cause of action. (RJN at Exhibit A.)

Therefore, the Court GRANTS Reyes’ request to strike punitive damages arising from the second, fifth, and sixth causes of action due to Plaintiff’s non-compliance with California Code of Civil Procedure, Section 425.13(a).

The Court GRANTS Reyes’ motion to strike in its entirety WITHOUT LEAVE TO AMEND.

PHS is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 18th day of February 2020

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Even if Plaintiff’s first cause of action was based on assault which is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another” (Cal. Penal Code § 240), the FAC would fail to state sufficient facts for such assault for purposes of Dependent Adult Abuse because in connection with the first cause of action there is no specific allegation that Reyes made an unlawful attempt to commit a violent injury on Plaintiff. Additionally, if Plaintiff’s first cause of action was based on battery which is defined as “any willful and unlawful use of force or violence upon the person of another” (Cal. Penal Code § 242), the FAC would fail to state sufficient facts for battery for purposes of Dependent Adult Abuse because there is no specific allegation pursuant to the first cause of action that Reyes battered Plaintiff or used willful and unlawful force or violence on Plaintiff. Under Covenant Care, statutory causes of action are required to be pled with particularity.