The meet and confer declaration filed by defendant’s counsel reached the court as the tentative decisions were being finalized for posting. It indicates that plaintiff intends to dismiss this action but that the dismissal might not reach the court until after the hearing on this motion. Accordingly, the court will issue its tentative decision.

Defendant Sonoma Valley Hospital (“SVH”) moves to strike punitive damages from plaintiff’s second amended complaint. Additionally, defendant SVH demurs to the complaint as a whole on the ground that plaintiff failed to comply with the Government Claims Act and to each cause of action on the grounds that each fails to state facts
sufficient to constitute a cause of action and that each—minus the third cause of action for fraud—is uncertain. Plaintiff has not opposed the motion.

Motion to Strike:

Plaintiff’s complaint alleges she was subjected to an MRI without being given a way to call for help during the procedure; i.e., a “panic button.” The complaint is based on the professional negligence of a health care provider. Therefore, plaintiff must comply with CCP §425.13, which she has failed to do. Defendant’s motion to strike punitive damages is granted.
Defendant’s request for judicial notice is denied. The date shown on a letter is not sufficient to prove that the letter was mailed on the same date. The date of actual mailing is not something of which the court could take judicial notice based on the date of the letter. (See generally, Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114-115; StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th449, 457, citing Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374; Poseidon Development,Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.)

Demurrer:

With regard to the demurrer to the complaint as a whole, defendant has not shown that it is a Health Care District requiring compliance with the Government Claims Act. (See Health & Safety Code §§32000.1, 32492.) Therefore, this demurrer is overruled.

The first cause of action for willful misconduct embodies an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care. (Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 270). Where liability is based on more culpable conduct, a more specific pleading is required. The pleading does not allege sufficient details to show that defendant actually knew of her severe anxiety, PTSD, and claustrophobia, what peril plaintiff suffered as a result of defendant’s conduct, that defendant’s conduct was done with knowledge that serious injury would probably result or with a wanton and reckless disregard of the probable results. The demurrers to this cause of action are sustained with leave to amend.

Although the second cause of action is not labeled “professional negligence” or “medical negligence,” it is clear from the allegations that professional/medical negligence is intended. As defendant has not addressed professional/medical negligence, it has not met its burden on this cause of action. The demurrers to this cause of action are overruled.

The third cause of action for constructive fraud, like a claim for actual fraud, must be pled with specificity. (Knox v. Dean (2012) 205 Cal.App.4th 417, 434). 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.” (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 129; see also Civ. Code §1573). Actual reliance and causation of injury must be shown. (Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 548). This cause of action is not pled with sufficient specificity. The demurrer to this cause of action is sustained with leave to amend.

With regard to the fourth cause of action for medical battery, plaintiff’s Second Amended Complaint does not allege that defendant performed a medical procedure without plaintiff’s consent or that plaintiff consented to one medical procedure but defendant performed a substantially different medical procedure. (See Judicial Council of California Civil Jury Instructions “(CACI”) Instruction 530A). The demurrers to this cause of action are sustained with leave to amend.

If Plaintiff elects to amend, the amended complaint must be filed within twenty days of service of the written order.
Defendant is ordered to submit a written order consistent with this ruling.