CLYDE BERG v. GERALD E. TROBOUGH, M.D.
Case No.: 1-14-CV-272642
DATE: February 3, 2015
TIME: 9:00 a.m.
DEPT.: 7

As an initial matter Defendant’s Motion to Strike the request for punitive damages in paragraph four of the Prayer and the punitive damage allegations in the Complaint at paragraphs 64 and 71, expressly unopposed by Plaintiff, is GRANTED WITHOUT LEAVE TO AMEND. The Court also notes that Plaintiff’s opposition to the demurrer does not comply with Rule of Court 3.1113(f).

The Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal App 4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

Defendant’s demurrer to the Complaint’s 1st cause of action, Violation of Family Code §7613(a), on the ground that it fails to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND.

Under controlling appellate authority this claim fails as a matter of law. “The clear words of section 7613 limit its application to determination of the identity of a child’s father, and do not address the liability of a doctor. . . . [T]he statute does not establish a requirement that a woman may not obtain artificial insemination without the consent of her husband. Because section 7613 was not designed to address a physician’s liability, it does not create a tort duty on the part of the physician.” Shin v. Kong (2000) 80 Cal App 4th 498, 505, internal citations omitted. See also Alexandria S. v. Pacific Fertility Medical Center, Inc. (1997) 55 Cal App 4th 110 (child conceived by artificial insemination by a donor has no tort claim against clinic or doctor for failure to certify signatures under Family Code §7613). As the claim fails as a matter of law leave to amend would be futile.

Defendant’s demurrer to the Complaint’s 2nd cause of action, General Negligence, on the ground that it fails to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND.

The existence and scope of a duty of care is a question of law for the court even at the pleading stage. See Melton v. Boustred (2010) 183 Cal App 4th 521, 531. Plaintiff does not allege that he was ever a patient of Defendant’s and the claim as pled is based solely on the (legally incorrect) theory that Family Code §7613 imposed a duty of care on Defendant that was owed to Plaintiff. See Complaint at 45-47, alleging that Defendant “negligently” failed to obtain Plaintiff’s written consent to his then-wife’s procedure, and failed to certify Plaintiff’s signatures on forms provided to Defendant by her. The decision in Shin makes clear there is no duty owed to Plaintiff by Defendant on these facts. “In cases of negligence, a plaintiff’s action must be founded on a duty owed to the plaintiff; not a duty owed to some other person. ‘Negligence in the air, so to speak, will not do.’” Shin, supra, at 506, internal citation omitted. Defendant owed Plaintiff’s ex-wife a duty of care based on their doctor-patient relationship. That duty did not extend to Plaintiff because the relationship did not extend to Plaintiff. A husband and wife are not a single entity for purposes of the doctor-patient relationship.

Defendant’s demurrer to the Complaint’s 3rd cause, Negligence Per Se, on the ground that it fails to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND.

The negligence per se doctrine, as codified in Evid. Code §669, creates a presumption of negligence if four elements are established: “(1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” Galvez v. Frields (2001) 88 Cal App 4th 1410, 1420. The first two elements are questions of fact, while the latter two are questions of law. Id. Under the Shin decision and its controlling interpretation of Family Code §7613 Plaintiff cannot establish the latter two elements as the claim is based solely on Defendant’s purported violation of that code section. See Complaint at 50-55. Leave to amend is denied as futile.

Defendant’s demurrer to the Complaint’s 4th cause of action, “Interference with Procreative Rights,” on the ground that it fails to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND.

This does not describe a California cause of action, but one that has been described in certain federal decisions based on reproductive choice. The only reference to it in a California decision concerning artificial insemination that the Court is aware of (or that has been cited by Plaintiff) is in dicta in the Alexandria S. decision (discussing an Ohio decision) which was subsequently rendered moot by the Shin court’s interpretation of Family Code §7613 as imposing no tort duty on a doctor. The sole support for this claim is the allegation that Defendant “interfered” with Plaintiff’s procreative rights by failing to obtain his written consent to the procedure performed by Defendant on Plaintiff’s then wife using donor sperm not Plaintiff’s. See Complaint at 59. As pled the claim fails as a matter of law as Defendant had no duty to obtain Plaintiff’s consent for his former wife’s procedure. Again, “the statute does not establish a requirement that a woman may not obtain artificial insemination without the consent of her husband.” Shin, supra, at 505. Like the appellant in Shin, Plaintiff does not allege that Defendant made any representations to him (false or otherwise) regarding the procedure, does not allege that he seeks parental status in regards to the child conceived through the procedure, or allege that he was ordered to pay child support for the child conceived through the procedure. Family Code §7613 did not impose any duty on Defendant to meet or speak with Plaintiff or create any special relationship between Plaintiff and Defendant. Further the Complaint admits on its face that the child that resulted from the procedure was not Plaintiff’s biological child and thus Plaintiff’s right not to procreate was not affected by any actions of Defendant.

Defendants’ demurrer to the Complaint’s 5th and 6th causes of action, Constructive Fraud and Breach of Fiduciary Duty respectively, on the ground that they both fail to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND.

“Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.” Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562, emphasis added. “In order to plead a cause of action for breach of fiduciary duty, there must be shown the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. The absence of any one of these elements is fatal to the cause of action.” Brown v. California Pension Administrators & Consultants, Inc. (1996) 45 Cal.App.4th 333, 347-348. “While breach of fiduciary duty is a question of fact, the existence of legal duty in the first instance and its scope are questions of law.” Kirschner Brothers Oil, Inc. v. Natomas Co. (1986) 185 Cal.App.3d 784, 790.

Plaintiff’s assertion that Defendant owed him a fiduciary duty is a legal conclusion the Court is not required to accept as true on demurrer. Both of these causes of action are expressly based on the incorrect assertion that Defendant’s status as the physician of Plaintiff’s former wife created a physician-patient and/or fiduciary relationship between Plaintiff and Defendant. See Complaint at 62 and 66. No other basis for a fiduciary relationship is alleged. Plaintiff does not allege that he and Defendant ever met or communicated prior to the procedure. Because Defendant owed no duty to Plaintiff as either his former wife’s physician or under Family Code §7613, Plaintiff cannot establish the essential elements of these two claims.