Case Name: Eva Mortensen, et al. v. Farnoosh Ebadat, et al.
Case No: 18CV336702

I. Background

Plaintiff Eva Mortensen (“Plaintiff”) brings this action for herself and her two children against defendants Farnoosh Ebadat (“Ebadat”) and Stanford Health Care (“SHC”)(collectively, “Defendants”) for claims associated with child abuse reporting.

According to the allegations of the first amended complaint (“FAC”), Plaintiff sought medical treatment for her daughter Jane Doe at SHC, where Ebadat is employed as a nurse practitioner. (FAC, ¶ ¶ 3, 4.) During the appointment, Plaintiff’s son John Doe “performed an act” on his sister that led Ebadat to call Child Protective Services (“CPS”) to report John Doe for abuse and Plaintiff for neglect. (Id. at ¶ 4.) She also documented the encounter in Jane Doe’s medical chart. (Ibid.)

Furthermore, Ebadat did not document Plaintiff’s concerns regarding the children’s father who had failed to provide Jane Doe with urgently needed medical care. (FAC, ¶ 6.) Plaintiff brought electronic and audio evidence of father’s inaction to the medical appointment. (Ibid.) However, Ebadat did not report the children’s father to CPS which resulted in them continuing to live in the care of a person who committed child abuse. (Id. at ¶ 10.)

It is also alleged that Ebadat failed to write factually accurate progress notes in Jane Doe’s chart to support the call to CPS. (FAC, ¶ 12.) Ebadat also did not call CPS immediately, but did so four days after the incident. (Id. at ¶ 14.) During this time, she created a more muddled chart, contradicting herself and she consulted other practitioners about whether or not to report. (Id. at ¶ 14.) Plaintiff filed a complaint with SHC indicating her belief that Ebadat made a wrongful report to CPS. (Id. at ¶ 17.) SHC concluded that “the Nurse Practitioner who treated [Jane Doe] believes the information is accurate and correct.” (Ibid.)

As a result of the foregoing, Plaintiff brings the FAC which makes several allegations including failure to “uphold the standard of care,” “failure to assess the situation for violence abuse, and neglect,” “endangerment,” “lack of consent,” and “violation of multiple mandatory reporting laws, nursing laws, and HIPAA.”

Presently before the court is Defendants’ demurrer.

II. Request for Judicial Notice

In support of their demurrer, Defendants request judicial notice of the original complaint filed in this action, the FAC, and the second amended complaint which was rejected by the clerk’s office, and therefore not filed.

Preliminarily, the Court notes that it need not take judicial notice of the FAC as it is the subject of the present demurrer. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].)

Furthermore, a request for judicial notice must be relevant to a material issue. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn.1.) The original complaint is not referenced in Defendants’ argument, so no basis for relevance has been established, therefore this request will be denied.

With respect to the second amended complaint, Defendants provide no legal basis for the request for judicial notice of a document that was not filed by the Court. Consequently, this request will be denied.

Consequently, the request for judicial notice is DENIED.

III. Demurrer

Defendants demur to the FAC on the ground of failure to state sufficient facts pursuant to Code of Civil Procedure section 430.10, subdivision (e), lack of capacity to sue pursuant to section 430.10, subdivision (b), and uncertainty pursuant to section 430.10, subdivision (f).

A. Legal Standard

A demurrer tests the legal sufficiency of a pleading, but not the truth of a plaintiff’s allegations or the accuracy with which he or she describes the defendant’s conduct. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958; citing Committee on Children’s Television Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) The demurrer is treated as admitting all material facts, properly pleaded, but not contentions, deductions or conclusions of law. (Ibid.)

B. Notice of Motion

In her reply in opposition to the demurrer, Plaintiff contends that she did not receive notice of the motion. The Court observes that Defendants’ notice of the demurrer was accompanied by a “Declaration of Service” signed under penalty of perjury attesting that the notice was sent to Plaintiff, to the address identified by her in the FAC as her residence. (FAC, ¶ 1.)

Even assuming notice was not proper, Plaintiff does not contend she was prejudiced or precluded from responding to the demurrer, in fact she did file opposition, nor is she requesting a continuance based on this alleged defect. (See Carlton v. Quint, supra, 77 Cal.App.4th 690, 697-699.) Consequently, the Court will proceed on the merits of the demurrer.

C. Lack of Capacity to Sue

Defendants first demur on the ground that Plaintiff has sued on behalf of herself and her minor children, who lack capacity to sue.

Pursuant to Code of Civil Procedure section 372, minors may only appear in court by and through a guardian ad litem appointed by the court. (See also Code Civ. Proc., § § 372.5, 373.) Furthermore, a demurrer will lie where the plaintiff lacks capacity to sue. (Code Civ. Proc., § 430.10, subd. (b).)

Here, Plaintiff alleges that Jane Doe and John Doe are minors. (FAC, ¶ 1.) However, she sues on behalf of them, and they are not represented by or through a guardian ad litem, nor has one apparently been appointed. Furthermore, as Defendants argue, even assuming Plaintiff is appointed as guardian ad litem for the children, she would not be able to proceed without an attorney representing her in that capacity. (See J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 969.)

Consequently, the demurrer on the ground of lack of capacity to sue is SUSTAINED with 10 days leave to amend after service of the signed order.

D. Uncertainty

Defendants argue that the FAC is uncertain as no causes of action are alleged for which they can prepare a defense.

In order to plead a cause of action, the complaint must contain a “statement of the facts constituting the cause of action, in ordinary and concise language.” (§ 425.10, subd. (a); Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) Rule of Court 2.112 requires each separately-stated cause of action to specifically state its number, nature, the party asserting the cause of action, and the party to whom the cause of action is directed. Failing to adhere to the rule on the identification of parties and causes of action “may render a complaint confusing and subject to a special demurrer for uncertainty.” (Williams v. Beechnut Nutrition Corporation (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Here, the complaint consists only of a list of factual allegations which at times references various statutes. No specific cause of action is alleged, much less listed by number, nature or to whom it is directed.

Consequently, the demurrer on the ground of uncertainty is SUSTAINED, with 10 days leave to amend.

E. Failure to State Sufficient Facts
Defendants also demur to the complaint on the ground of failure to state sufficient facts, on the basis that no duty has been pleaded as to Plaintiff and her son, and on the basis that as mandated reporters Defendants have absolute immunity for child abuse reporting.

1. No duty

Defendants demur on the ground of failure to state sufficient facts on the basis that no duty is pleaded as to Plaintiff or her son John Doe. Their theory is that as the complaint arises out of professional negligence, Defendants owed no duty to non-patients.

However, Defendants’ argument seems to concede that they would have owed a duty of care to Jane Doe. Consequently, since a demurrer cannot lie to a portion of a cause of action, it cannot be sustained on this basis. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [since a demurrer does not lie to a portion of a cause of action, a defendant may attack it by motion to strike].)

Furthermore, to the extent that a duty need be pleaded, the Court is unable to discern that on the face of the pleadings, as no cause of action is specifically alleged. Therefore, the Court cannot sustain the demurrer on this basis.

2. Immunity

Finally, to the extent that Plaintiff’s claims arise out of Ebadat’s report to CPS, Defendants demur on the basis of immunity in that no cause of action can be alleged against a mandated reporter for making a report of suspected child abuse or neglect.

A demurrer on the ground of failure to state sufficient facts will lie where facts allege absolute immunity for the behavior alleged. (See Newton v. County of Napa (1990) 217 Cal.App.3d 1551.) As Defendants assert, absolute immunity from liability extends to mandated reporters of child abuse, even to negligent, knowingly false, or malicious reports of abuse. (Pen. Code § 11172; Arce v. Children’s Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1485.)

Here, to the extent that a cause of action can be discerned from the pleadings, such as defamation, a HIPAA violation, or even medical malpractice, there would be absolute immunity for a mandated reporter in the discharge of her obligation to report suspected child abuse or neglect. Therefore, as pleaded it appears that Ebadat has immunity from any cause of action arising from her alleged behavior.

Consequently, the demurrer on the ground of failure to state sufficient facts is SUSTAINED, with 10 days leave to amend after service of the signed order, on the basis that Defendants have immunity when making mandated reports of child abuse.

The Court will prepare the order.