Case Number: BC682687 Hearing Date: June 18, 2019 Dept: 40

MOVING PARTY: Defendant Blue Cross of California, Inc.

OPPOSITION: None as of 6/14/19

Plaintiffs Thomas Impliazzo and Cynthia Impliazzo (“Plaintiffs”) sue Blue Cross of California,

Inc., doing business as Anthem Blue Cross (“Blue Cross”), Facey Medical Group and Dr.

Elise Kwon (collectively, “Defendants”), for damages based on allegations that their failure to provide medically necessary care caused Thomas Impliazzo to undergo multiple surgeries, including reconstruction of his penis, scrotum, and genital area. Thomas Impliazzo and Cynthia Impliazzo are husband and wife.

Plaintiffs allege that following gastric bypass surgery, Thomas Impliazzo (“Thomas”) lost a significant amount of weight. The severe weight loss resulted in folds of excess skin that covered, pressed down upon, irritated, and threatened severe injury to his genitals. It is alleged that Blue Cross, Thomas’ insurer, denied him surgeries that would have corrected the skin fold problem. Plaintiffs allege that Blue Cross’ denial of medical care, necessitated further surgeries and caused Thomas a great deal of pain.

On November 8, 2017, plaintiffs filed a complaint against defendants alleging:

1) Negligence

2) Breach of contract

3) Breach of the covenant of good faith and fair dealing

4) Loss of consortium

5) Negligent infliction of emotional distress

6) Intentional infliction of emotional distress

The later amended complaints alleged the same six causes of action. On July 20, 2018, the Court sustained Blue Cross’s demurrer, with leave to amend, as to the fifth and sixth causes of action.

On September 18, 2018, Blue Cross filed a demurrer against the fifth and sixth causes of action of the second amended complaint. Blue Cross’s demurrer became moot on February 5, 2019, when plaintiffs filed a third amended complaint (“TAC”).

On March 12, 2019, Blue Cross filed this demurrer-again, as to the fifth and sixth causes of action and a motion to strike references to punitive damages and attorneys’ fees.

The Court notes that it has received Blue Cross’s moving papers and reply. The reply references plaintiffs’ opposition but the Court does not have a copy of it. All opposition papers must be filed with the court, nine court days before the hearing. CCP §1005(b).

Fifth Cause of Action, Negligent Infliction of Emotional Distress: SUSTAINED WITH LEAVE TO AMEND

Blue Cross demurs to the fifth cause of action, on the ground that plaintiffs have failed to allege facts supporting the necessary elements.

There are two theories of recovery for a negligent infliction of emotional distress claim (NIED): the “bystander” theory and the “direct victim” theory. Buress v. Superior Court (1992) 2 Cal.4th 1.064, 1071. Under the bystander theory, the plaintiff seeks to recover damages for serious emotional distress suffered because of an injury to a close family member. Recovery is limited as a matter of public policy to those cases where the plaintiff was present at the scene of the injury-producing event and was aware that the event was causing injury to the victim. Id. at pp. 1072-1073.

There are three mandatory requirements for bystander NIED claims. “[A] plaintiff may recover

damages for emotional distress caused by observing the negligently inflicted injury of a third

person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the

scene of the injury-producing event at the time it occurs and is then aware that it is causing injury

to the victim; and (3) as a result suffers serious emotional distress – a reaction beyond that which,

would be anticipated in a disinterested witness and which is not an abnormal response to the

circumstances.” Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668 (footnotes omitted).

“A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations.” Aas v. Superior Court (2000) 24 Cal.4th 627, 643. But “… conduct amounting to a breach of contract becomes tortious when it also violates a duty independent of the contract arising from principles of tort law.” Id.

Plaintiffs allege that Blue Cross owed them a duty of care, as previously alleged in the first amended complaint, and that “…California law imposes obligatory responsibilities on each of the Defendants, to promptly, thoroughly, and fairly conduct balanced investigations of claims for benefits made by their insureds.” (TAC, ¶65.) However, the duties alleged arise from Blue Cross’s contractual obligation to provide health care to Thomas. Therefore, they are not independent of the contractual relationship. Accordingly, Blue Cross’s demurrer is SUSTAINED WITH LEAVE TO AMEND.

Sixth Cause of Action, Intentional Infliction of Emotional Distress: SUSTAINED WITHOUT LEAVE TO AMEND

“[T]o state a cause of action for intentional infliction of emotional distress (“IIED”) a plaintiff

must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or

reckless disregard of the probability of causing emotional distress; (3) the plaintiffs suffering

severe or extreme emotional distress; and (4) actual and proximate causation of the emotional

distress by the defendant’s outrageous conduct.’ [Citation.]” Johnson v. Ralphs Grocery Co.

(2012) 204 Cal.App.4th 1097, 1108 [ruling sustaining demurrer on ground that conduct was not

too extreme and outrageous was affirmed].)

“Liability for intentional infliction of emotional distress extends only to conduct so extreme and outrageous as to go beyond all possible bonds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 416. While the question of whether conduct is in fact outrageous is usually a question of fact, many cases have dismissed IIED claims on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law. See Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1608-1609.

Blue Cross demurs to the sixth cause of action, on the ground that plaintiffs have failed to allege facts supporting the necessary elements. Plaintiffs allege that Blue Cross denied Thomas’s claim for medically necessary treatment, to which he was entitled to under the policy. (TAC, ¶ 92.) Plaintiffs also allege that the treatment was denied so that Blue Cross could avoid paying for Thomas’s costly treatment. Id. Generally, “[d]elay or denial of insurance claims is not sufficiently outrageous to state a cause of action for intentional infliction of emotional distress.” Coleman, supra, 132 Cal.App.4th at p. 417; Mintz v. Blue Cross of Cal. (2009) 172 Cal.App.4th 1594, 1607-1609. There must be more than just a routine delay or denial by the insurer to allege intentional infliction of emotional distress on their part. For example, “[i]n [Hailey v. California Physicians’ Service (2007) 158 Cal.App.4th 452] there was more [than a routine delay or denial]: the insurer obtained information entitling it to rescind, yet adopted a “wait and see” attitude, continuing to collect premiums and deliberately foregoing rescission until after the subscriber suffered a serious illness; the facts alleged showed the rescission may not have been because of omissions in the insurance application, but because of the substantial medical bills resulting from an automobile accident.” Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609. Plaintiffs do not allege anything more than routine delay and denial of treatment by Blue Cross, which is not outrageous conduct by itself.

Motion to Strike Standard: California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (CCP § 92(d).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party’s declaration or factual representations made by counsel in the motion papers.) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40. California’s policy of liberal construction applies to motions to strike. CCP § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

Punitive Damages Standard:

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” CCP §3294(a). “Malice” under CCP §3294(c)(1) means conduct intended to injure the plaintiff or despicable conduct by the defendant with a willful and conscious disregard of others. “Oppression” is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” CCP § 3294(c)(2). Malice “based on a conscious disregard of the plaintiff’s rights, requires proof that the defendant’s conduct is ‘despicable’ and ‘willful.’” Lackner v. North (2006) 135 Cal.App.4th 1188, 1211. “‘[D]espicable’ connotes conduct that is ‘…so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’” (Id. [citations omitted].) Despicable conduct includes “that which is in blatant violation of law or policy.” American Airlines, Inc. v. Sheppard, Mullin, Richter, & Hampton (2002) 96 Cal.App.4th 1017, 1050.

Regarding corporations, “an employer shall not be liable for damages pursuant to [CCP § 3294(a)], based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, 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.” CCP §3294(b).

Strike Punitive Damage: DENIED

Plaintiffs allege that Blue Cross denied Thomas needed medical care to which he was entitled to under his policy. (TAC, ¶ 93.) Plaintiffs state that the reason the medical care was denied was so that Blue Cross would save money. (TAC, ¶ 92.) Finally, plaintiffs allege that an officer of Blue Cross authorized this behavior. (TAC, ¶ 95.) Accordingly, for the purposes of a demurrer, punitive damages have been sufficiently alleged, and therefore the motion to strike is DENIED.

Strike Attorneys’ Fees: GRANTED

The Court’s July 2018 ruling struck attorneys’ fee from the complaint without leave to amend. Plaintiffs have realleged their request for attorneys’ fees in the TAC. Accordingly, all references to attorneys’ fees shall be stricken from the complaint and the prayer for relief.

Conclusion: Blue Cross’s demurrer to the fifth cause of action is SUSTAINED WITH LEAVE TO AMEND. Blue Cross’s demurrer to the sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Blue Cross’s motion to strike punitive damages is DENIED. Blue Cross’s motion to strike attorneys’ fees is GRANTED.