Case Name: Vanessa Vasquez v. Winson Koo, M.D., et al.
Case No.: 2015-1-CV-279935

Defendant The Permanente Medical Group’s Demurrer to and Motion to Strike the Second Amended Complaint

This is an action for sexual battery and harassment. Defendant Winson Koo, M.D. (“Dr. Koo”) is a licensed physician employed by defendant The Permanente Medical Group, Inc. (“TPMG”). (Second Amended Complaint (“SAC”), p. 4, ¶ IT-1.) On December 22, 2013, Dr. Koo saw plaintiff Vanessa Vasquez (“Plaintiff”) as a patient. (Ibid.) Dr. Koo “made an unconsented to, unwelcome, and harmful and/or offensive contact with [Plaintiff’s] sexual organ, buttocks and/or breast” and acted with the intent to cause the harmful or offensive contact. (Ibid.) In doing so, Dr. Koo allegedly acted with malice and reckless disregard for Plaintiff. (Ibid.) Plaintiff further alleges that TPMG ratified Dr. Koo’s conduct. (Ibid.)

On January 13, 2016, Plaintiff filed the operative SAC against Dr. Koo and TPMG (collectively “Defendants”), asserting causes of action for: (1) intentional tort (against Defendants); and (2) violation of Civil Code section 51.9 (against Dr. Koo).

Currently before the Court are TPMG’s demurrer to and motion to strike the SAC. Plaintiff filed papers in opposition to the matters on March 9, 2016.

I. Demurrer

TPMG demurs to the first cause of action for intentional tort on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) TPMG argues that the claim fails to the extent it is based on the doctrine of respondeat superior pursuant to the California Supreme Court decision of Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291 (“Lisa M.”). TPMG further argues that the claim fails to the extent it is based on its alleged ratification of Dr. Koo’s conduct because Plaintiff does not plead specific facts demonstrating that it actually ratified Dr. Koo’s conduct.

In opposition, Plaintiff implicitly concedes that TPMG’s first argument—that the claim is precluded under Lisa M. to the extent it is based on the doctrine of respondeat superior—has merit because she fails to address the argument in her opposition papers.
Plaintiff only addresses TPMG’s second argument, asserting that she adequately pleads that TPMG ratified Dr. Koo’s conduct as the SAC states “[a]t all time herein mentioned, [TPMG] employed [Dr. Koo]” and “ratified [his] conduct as herein alleged.” (SAC, p. 4, ¶ IT-1.)
While Plaintiff appears to concede that TPMG cannot be held vicariously liable for Dr. Woo’s alleged sexual battery, TPMG may still be liable for its ratification of Dr. Woo’s conduct. (See Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852 superseded by statute on other grounds as stated in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 427.)

“A ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting or retaining the benefit of the act, with notice thereof.” (Civ. Code, § 2310.) “Ratification is the adoption and affirmance by one person of an act which another, without authority, has assumed to do as his agent. [Citation].” (Harris v. Seidell (1934) 1 Cal.App.2d 410, 413.) “[R]atification may be express or implied. [Citation].” (Ibid.)
Ratification “is implied whenever the acts and conduct of the principal, having full knowledge of the facts, are inconsistent with any other supposition than that of previous authority or an intention to abide by the act, though it was unauthorized. [Citation].” (Ibid.) Ratification requires that the principal has “knowledge of material facts at the time of the alleged ratification.” (Chastain v. Belmont (1954) 43 Cal.2d 45, 58.) That being said, “[t]he lack of full knowledge does not protect a principal who is willfully ignorant, and deliberately chooses to act without such knowledge, as where, knowing that he is ignorant of some of the facts, he has such confidence in his agent that he is willing to assume the risk and ratify the act without making inquiry for further information than he at the time possesses, or where he intentionally and deliberately ratifies without full knowledge, under circumstances which are sufficient to put a reasonable man upon inquiry.” (Hutchinson Co. v. Gould (1919) 180 Cal. 356, 358.) Simply put, a principal is liable for the unauthorized acts of its agent where it (1) knew of the conduct or was willfully ignorant of the conduct (i.e. fails to investigate), and (2) ratified the conduct by accepting the benefit and failing to repudiate the acts of the agent.

Here, Plaintiff does not allege any facts demonstrating that TPMG ratified Dr. Koo’s conduct. For example, Plaintiff does not allege that TPMG knew of Dr. Koo’s conduct, failed to investigate Dr. Koo’s alleged conduct, or failed to repudiate Dr. Koo’s acts. Rather, Plaintiff merely alleges in a conclusory manner that TPMG ratified Dr. Koo’s conduct. This conclusion of law and fact is not accepted as true on demurrer. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ”].) Consequently, Plaintiff fails to allege sufficient facts to state a claim for intentional tort.

Accordingly, the demurrer to the first cause of action for intentional tort is SUSTAINED, with 10 days’ leave to amend.

II. Motion to Strike

TPMG moves to strike the request for punitive damages from the SAC on the ground that Plaintiff fails to plead facts demonstrating that it acted with malice, oppression, or fraud or that an officer, director, or managing agent ratified Dr. Koo’s conduct.

In light of the ruling on TPMG’s demurrer, the motion to strike the request for punitive damages is MOOT.