Case Name: Doe, et al. v. Hong, et al.
Case No.: 1-14-CV-261702
Defendants Frederick Dirbas, M.D. and Stanford Hospital & Clinics (collectively, “Defendants”) demur to the complaint (“Complaint”) filed by plaintiffs Jane Doe and John Doe (collectively, “Plaintiffs”).
This is an action for medical malpractice. According to the allegations of the Complaint, Plaintiff Jane Doe was at high risk of developing breast cancer and therefore elected to undergo a single stage, concurrent bilateral mastectomy and breast reconstruction surgery. (Complaint at ¶ 15.) The defendants conducted the procedure in a way contrary to Jane Doe’s express wishes, resulting in pain, excessive scarring and the need for corrective revision surgery. (Id. at ¶¶ 20, 21.) Plaintiffs allege that the defendants failed to provide Jane Doe with adequate post surgical care and also that defendant Roy Hong, M.D. invaded her privacy rights by (1) taking photographs of her breasts on his cellular phone during surgery, without her consent, and sharing those photographs with other individuals, and (2) sharing confidential information about her breast reconstruction surgery, without her consent, with other physicians who were not involved in her care and treatment. (Id. at ¶¶ 22, 25-29.)
On March 5, 2014, Plaintiffs filed the Complaint asserting the following causes of action: (1) medical malpractice; (2) battery (3) invasion of privacy; intrusion into private matter; (4) invasion of privacy; wrongful disclosure of private information; (5) violation of the Confidentiality of Medical Information Act; and (6) loss of consortium.
On July 16, 2014, Defendants filed the instant demurrer to the Complaint on the grounds of uncertainty and that Plaintiffs lack the legal capacity to sue. (Code Civ. Proc., § 430.10, subds. (b) and (f).)
Defendants’ demurrer rests entirely on Plaintiffs having filed their lawsuit anonymously. Citing to Code of Civil Procedure section 367, which provides that “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute,” Defendants assert that having failed to file suit in their true identities, Plaintiffs’ lack capacity to sue and their claims are uncertain. These contentions are unavailing.
First, a demurrer for uncertainty is disfavored and will be sustained only where the allegations of the complaint are so unintelligible that they cannot reasonably be responded to. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Even though Plaintiffs have asserted their claims anonymously, there is nothing ambiguous or uncertain about the Complaint. Defendants are aware of the identities of Jane and John Doe as provided by Plaintiffs in their notice to sue letters pursuant to Code of Civil Procedure section 264. (See Declaration of Christopher Johnson., ¶ 2, Exhibit A.) Thus, Defendants’ contention that they cannot identify Jane Doe out of “billions” of medical records and will not be able to investigate her claims is unavailing. Accordingly, Defendants’ demurrer to the Complaint on the ground of uncertainty is OVERRULED.
Defendants’ demurrer to the Complaint on the ground that Plaintiffs lack the legal capacity to sue is also OVERRULED. A lack of capacity to sue generally refers to a party being a minor, deceased, or other incapable of filing suit. This ground rarely appears on the face of the pleading under attack and that is precisely the case here. There are no facts pleaded which demonstrate that Plaintiffs are somehow unable to sue or be sued.
In citing to Code of Civil Procedure section 367, Defendants’ argument is really not one involving a lack of capacity but rather an assertion that this provision requires that a party sue in his or her own name. This is not correct. (See Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 765.) This provision requires that an action be brought by the real party in interest, who is ordinarily defined as “the person possessing the right sued upon by reason of the substantive law.” (Id. [internal quotations and citations omitted].) Here, there is no question that Plaintiffs, as the parties injured by Defendants’ alleged actions, are the parties possessing the right sued upon.
Defendants’ insistence that Plaintiffs, rather than them, bear the burden of establishing their entitlement to confidentiality in prosecuting their claims is unpersuasive. Defendants cite to no California authority which holds for such a proposition. In Doe v. Lincoln Unified School Dist., supra, the court rejected the defendants’ demurrer to the plaintiff’s complaint that was based on the contention that the plaintiff could not sue under a fictitious name, reasoning that the defendants had presented no argument as to why the use of a pseudonym by the plaintiff was inappropriate under the circumstances of the case. (Doe v. Lincoln Unified, 188 Cal.App.4th at 767.) Here, Defendants similarly have failed to articulate why Jane Doe should not be able to pursue her claim under a fictitious name. Plaintiffs explain that Jane Doe works in the medical profession and prosecuting a medical malpractice claim in her own name will negatively affect her career, which relies on referrals from other medical professionals. Her election to pursue a medical malpractice claim may ostracize her from the medical community.
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