JANE DOE VS MICHAEL B SCOTT M D INC

Case Number: BC541360    Hearing Date: September 30, 2014    Dept: 73

JANE DOE vs. SCOTT, et al. (BC541360)

Counsel for plaintiff/opposing party: David Cwiklo
Counsel for defendants Scott, etc./moving parties: David Ozeran (La Follette, etc.)

TENTATIVE RULING:
Defendants Michael Scott, M.D., Inc., and Michael Scott’s demurrers/joinder and motions to strike.

The demurrer to the first, second, third, and fifth causes of action: Overruled.

Defendants’ vicarious liability for Rodriguez’ sexual assault, breach of fiduciary duty, IIED, and fraud is a question of fact that cannot be determined as a matter of law given the facts alleged. While plaintiff rightfully recognizes Rodriguez’ “personal sexual arousal” as the motivating factor for his actions, the demurrer ignores other allegations made regarding defendant Scott’s statement about plaintiff being “hot,” inferring a prior related discussion occurring in the course and scope of Rodriguez’ employment; Rodriguez’ request that plaintiff not tell Dr. Scott of his request to see the string, a health condition which was precisely one of the purposes of her visit, deemed non-emergent by defendants; and Rodriguez’ apologetic call to plaintiff later that day made possible by another employee in defendants’ office despite plaintiff’s request to tell only Dr. Scott.

Demurrer to the fourth cause of action (Unruh Civil Rights Act- Civil Code 51): Sustained without leave to amend unless plaintiff can offer a good faith basis to do so.
Defendants have not sufficiently alleged denial to the plaintiff of “full and equal” access to accommodations, privileges, services, etc. due to a “substantial motivating reason” attributable to any of plaintiff’s alleged protected characteristics under this statute. The pleading fails to state facts supporting the first and second elements in CACI 3060 (not 3020 as the moving papers indicate).

Demurrer to the sixth cause of action (negligent hiring, etc.): Overruled. The allegations are plainly sufficient.

The unopposed motion to strike. Granted. The punitive damages are stricken without prejudice to a possible future motion to amend to add such allegations.

TBD: Instructions/order re leave to amend and red-line version:
Plaintiff is granted leave either to file and serve a writing by_______________ indicating no intent to amend the complaint or to file and serve a first amended complaint by that date. If plaintiff elects the latter, a red-line copy of the amended complaint showing the changes from the previous complaint is to be concurrently provided to defendant. If defendant intends to file a demurrer to the amended complaint, defendant must lodge directly in Dept. 73 the red-line copy of the amended complaint with its demurrer.

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