Case Name: Katherine Pesic v. Zouves Fertility Center, et al.
Case No.: 2014-1-CV-271935

Currently before the Court are the following matters: (1) the demurrer by defendant Shelley Tarnoff (“Tarnoff”) to the third amended complaint (“TAC”) of plaintiff Katherine Pesic (“Plaintiff”); (2) the motion by Tarnoff to strike portions of Plaintiff’s TAC; (3) the demurrer by defendants Christo Zouves, M.D. (“Zouves”) and Zouves Fertility Center (“ZFC”) (collectively, “Zouves Defendants”) to the TAC of Plaintiff; and (4) the motion by Zouves Defendants to strike portions of Plaintiff’s TAC.

Factual and Procedural Background

This action arises out of the alleged use of decedent Ivan Pesic’s (“Pesic”) genetic material by Joyce Chin (“Chin”) to conceive two children.

In late 2010, Chin began receiving fertility treatments from Zouves Defendants and the purported father of any child created as a result of the treatments was to be Pesic. (TAC, ¶ 9.) Around that time, Pesic was diagnosed with cancer and Zouves Defendants were aware of the same. (Ibid.) Pesic’s semen was collected and preserved by ZFC. (Ibid.)

Subsequently, from 2011 through September 2012, Pesic received cancer treatments. (TAC, ¶ 10.) During that time period, Chin underwent six unsuccessful in vitro fertilization cycles at ZFC using Pesic’s sperm and Chin’s eggs. (Id., at ¶ 11.)

On July 30, 2012, Tarnoff—an attorney and licensed marriage and family therapist—conducted a psychological evaluation of Pesic and Chin as required by Zouves Defendants as a condition for performing “Egg Donor IVF,” a procedure whereby Pesic’s sperm would be used to fertilize eggs provided by an ovum donor. (TAC, ¶¶ 4, 12, & 15-16.) The evaluation was also required under the terms of an Ovum Donation Agreement executed by Pesic, Chin, an ovum donor, and the ovum donor’s husband, and an Egg Donation Services Agreement executed by Pesic, Chin, and an egg donor agency. (Id., at ¶¶ 12-14, and 16.) The psychological evaluation was conducted by telephone. (Id., at ¶ 16.)

After the evaluation, Tarnoff prepared and sent a report to Zouves Defendants. (TAC, ¶ 16.) In her report, Tarnoff told Zouves Defendants that Pesic and Chin were both in “good general health,” they had been married for 12 years, they had two children, and it was “OK to proceed.” (Ibid.)

Pesic traveled to Japan on September 24, 2012. (TAC, ¶ 17.) Chin claims that Pesic signed an Informed Consent to Undergo In Vitro Fertilization and Embryo Transfer on that same date. (Id., at ¶ 18.) Although no ZFC employee saw Pesic sign the document, “a ZFC employee witnessed his signature.” (Ibid.)

On October 13, 2012, Pesic executed his last will and testament, leaving all of his property to Plaintiff—his wife—without any provision for posthumously-conceived children. (TAC, ¶¶ 1 & 19.) Later that day, Pesic passed away. (Id., at ¶ 19.)

Two days later, Chin signed three additional consent forms for the “Egg Donor IVF” procedure. (TAC, ¶ 20.) ZFC allowed Chin to take the forms home with her in order to obtain Pesic’s signature. (Ibid.) Subsequently, Chin allegedly signed the consent forms in Pesic’s name and returned the forms to ZFC, but did not inform ZFC that she signed for Pesic as well as herself. (Ibid.) An employee of ZFC then witnessed the signatures. (Ibid.)

In late October, Plaintiff informed Chin that Pesic had passed away. (TAC, ¶ 21.) Chin did not inform Plaintiff that she planned to use Pesic’s sperm to fertilize donor eggs and have the fertilized eggs transferred to her. (Ibid.) Chin did not tell Zouves Defendants or the egg donor agency that Pesic had died. (Ibid.)

Thereafter, on November 3, 2012, Zouves or ZFC harvested eggs from the ovum donor and fertilized some of those eggs with Pesic’s cryogenically-preserved sperm. (TAC, ¶ 22.) Prior to the use of Pesic’s sperm, Chin did not present Zouves Defendants with a certified copy of his death certificate as required by the Informed Consent and Agreement for Longterm Cryopreservation and Storage of Semen dated February 5, 2011. (Ibid.) In addition, Chin and Zouves Defendants did not notify Plaintiff of the intended use of Pesic’s sperm. (Ibid.)

On November 8, 2012, Zouves or ZFC transferred two of the fertilized eggs to Chin’s body. (TAC, ¶ 23.) Prior to the embryo transfer, Chin did not present Zouves Defendants with a certified copy of Pesic’s death certificate or inform them that Pesic was dead. (Ibid.) Additionally, Chin and Zouves Defendants did not notify Plaintiff of the transfer. (Ibid.)

Chin then gave birth to twins—Maya Ivan Chen and Milo Ivan Chen—in July 2013, and filed claims for child support against Pesic’s estate on behalf of the twins and her son, Marco Ivan Chen. (TAC, ¶¶ 24-25.)

On July 24, 2018, Plaintiff, as an individual and administrator of Pesic’s estate, filed the operative TAC against Tarnoff and Zouves Defendants (collectively, “Defendants”), alleging causes of action for: (1) intentional misrepresentation (against Tarnoff); (2) negligent misrepresentation (against Tarnoff); (3) negligence (against Tarnoff); (4) conversion (against Defendants); (5) breach of fiduciary duty (against Defendants); (6) negligence (against Zouves Defendants); (7) negligence (against Defendants); and (8) Penal Code section 496 (against Defendants).

Approximately one month later, Defendants filed the pending demurrers and motions to strike. Plaintiff filed papers in opposition to the matters on January 2, 2019. On January 8, 2019, Defendants filed reply papers in support of their respective matters.

Discussion

I. Demurrer and Motion to Strike by Tarnoff

A. Request for Judicial Notice

Tarnoff asks the Court to take judicial notice of the first amended complaint (“FAC”) filed on December 12, 2017, and the court order on Tarnoff’s demurrer to the FAC filed on May 14, 2018.

The FAC and the court order on Tarnoff’s demurrer to the FAC are generally proper subjects of judicial notice under Evidence Code section 452, subdivision (d). Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455 (Woodell).) Consequently, Court will take judicial notice of the existence of the subject court records and the truth of the results reached in the court order on Tarnoff’s demurrer to the FAC. The Court will not take judicial notice of the truth of hearsay statements in those documents.

Accordingly, Tarnoff’s request for judicial notice is GRANTED as to the existence of the subject court records and the truth of the results reached in the court order on Tarnoff’s demurrer to the FAC.

B. Demurrer

Tarnoff demurs to the first, second, seventh, and eighth causes of action of the TAC on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

1. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621 (Shearson).) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (South Shore), internal citations and quotations omitted; see Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 (Align), internal citations and quotations omitted.)

2. First and Second Causes of Action

Tarnoff argues that the first and second causes of action for intentional and negligent misrepresentation, respectively, fail because there are no allegations that she made any misrepresentation to Pesic on which he relied. Tarnoff contends that she only made the alleged misrepresentation to Zouves Defendants and Plaintiff fails to allege that she intended or expected Pesic to rely on the misrepresentation made to Zouves Defendants.

The elements of intentional misrepresentation are: “(1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792.) A cause of action for negligent misrepresentation is comprised of the same elements, except there is no requirement of intent to defraud; rather, the defendant must have made the representation without reasonable ground for believing it to be true. (Ibid.; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173-74 (Small).)

“It has traditionally been the law in this state that to be liable for actionable fraud the defendant must intend his representation … be relied upon by a particular person or persons. [Citation.]” (Geernaert v. Mitchell (1995) 31 Cal.App.4th 601, 605.) “However, it is also recognized that the defendant will not escape liability if he makes a misrepresentation to one person intending that it be repeated and acted upon by the plaintiff. [Citations.]” (Ibid.) Section 533 of the Restatement Second of states, “The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transaction involved.” (Id., at pp. 605–606, italics omitted.) The rule stated in section 533 has been accepted by California cases involving indirect deception. (Id., at p. 606.)

As is relevant here, Plaintiff alleges that “Tarnoff made a representation to [Zouves Defendants] that she was qualified to perform psychological evaluations of intended parents of children conceived through Egg Donor IVF.” (TAC, ¶ 27.) Tarnoff allegedly “made this representation[,] either expressly or impliedly, by providing to [Zouves Defendants] reading material authored by Tarnoff stating that a psychological evaluation is required by most egg donor agencies prior to Egg Donor IVF and by accepting referrals from [Zouves Defendants] for the purpose of conducting such psychological evaluations of intended parents.” (Ibid.)

It is further alleged that Zouves Defendants referred Chin and Pesic to Tarnoff for the purpose of conducting a psychological evaluation. (TAC, ¶ 15.) ZFC also “distributed to Chin and [Pesic] reading material authored by Tarnoff stating that a psychological evaluation is required by most egg donor agencies prior to Egg Donor IVF.” (Ibid.)

“Tarnoff had reason to expect that her representation … would be repeated to Chin and [Pesic] by [Zouves Defendants] in the context of their referring Chin and [Pesic] to Tarnoff for the purpose of conducting a psychological evaluation of them as intended parents.” (TAC, ¶ 27.) Additionally, “Tarnoff intended that her representation be repeated by [Zouves Defendants] to all individuals to whom [Zouves Defendants] referred Tarnoff for the purpose of conducting a psychological evaluation of intended parents …, including Chin and [Pesic].” (Ibid.)

Furthermore, Tarnoff allegedly “intended to induce [Zouves Defendants] to rely on [her] representation and, by extension, to induce [Zouves Defendants’] patients who were referred to Tarnoff to rely on that representation.” (TAC, ¶ 31.)

Zouves Defendants, Chin, and Pesic allegedly relied on Tarnoff’s misrepresentation and Zouves Defendants proceeded with the Egg Donor IVF procedures that took place on November 3 and November 8, 2012. (TAC, ¶¶ 33-34.)

In light of the foregoing allegations, Tarnoff’s argument is not well-taken. Plaintiff clearly alleges that Tarnoff is subject to liability because the misrepresentation made by Tarnoff to Zouves Defendants was repeated to Pesic, Tarnoff intended and had reason to expect that the misrepresentation would be repeated or its substance communicated to the Pesic, Tarnoff intended that patients of Zouves Defendants—such as Pesic—would rely on the misrepresentation, and Pesic relied on the alleged misrepresentation.

Accordingly, Tarnoff’s demurrer to the first and second causes of action is OVERRULED.

3. Seventh Cause of Action

Tarnoff argues that the seventh cause of action for negligence fails because Plaintiff “alleges no duty owed by [her] that would support a claim for negligence.” (Mem. Ps. & As., p. 5:18-20.) Tarnoff states that Probate Code section 249.5 “does not create a duty supporting a negligence claim against [her] because it does not impose any duties in the first place.” (Id., at pp. 6:6-7:5.) Tarnoff also contends that to the extent the negligence claim is premised on the doctrine of res ipsa loquitur, “[n]othing in the decisions applying res ipsa loquitur suggests that it can be used to create a duty … where none otherwise is found.” (Id., at pp. 5:26-6:6.)

Tarnoff’s argument is well-taken. In the seventh cause of action, Plaintiff fails to allege that Tarnoff owed her any duty of care. (See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62 (Lueras) [the elements of negligence are duty, breach, causation, and damages].)

Instead, Plaintiff alleges that Probate Code section 249.5 and Family Code section 7611, subdivision (f) were generally violated because Pesic did not provide unconditional written consent for the posthumous conception of a child using his sperm and Plaintiff did not receive written notice that Pesic’s genetic material was available for the purpose of posthumous conception. (TAC, ¶¶ 77-78.) Plaintiff also alleges facts regarding the three conditions necessary to invoke the doctrine of res ipsa loquitur. (TAC, ¶¶ 80-83; see Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1161-1162 (Howe) [to invoke res ipsa loquitur, a plaintiff has the burden to establish three conditions: (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff].)

Plaintiff does not allege, or otherwise demonstrate, that Probate Code section 249.5 and/or Family Code section 7611, subdivision (f) impose any duty on Tarnoff. Thus, the allegations regarding the purported violation of Probate Code section 249.5 and Family Code section 7611, subdivision (f) do not establish the existence of a legal duty.

Furthermore, Plaintiff’s allegations regarding the application of the doctrine of res ipsa loquitur do not establish that Tarnoff owed any duty to Plaintiff or Pesic. “Res ipsa loquitur is applicable only to show a breach of duty, not the existence of a duty: ‘Res ipsa loquitur leads only to the conclusion that the defendant has not exercised reasonable care. It is not in itself any proof that he was under any duty to do so. Unless there is enough more to show such a duty, the plaintiff will be denied recovery even though he has otherwise made out a res ipsa case.’ [Citation]” (Hogan v. Miller (1957) 153 Cal.App.2d 107, 115 (Hogan); see Howe, supra, 189 Cal.App.4th 1161 [res ipsa loquitur is not a cause of action; rather, “[i]n California, it is a presumption affecting the burden of producing evidence.”]; see also Elcome v. Chin (2003) 110 Cal.App.4th 310, 316–317 (Elcome) [“Where the doctrine of res ipsa loquitur applies, ‘[t]he presumed fact … is that “a proximate cause of the [plaintiff’s injury] was some negligent conduct on the part of the defendant … .” ’ [Citation.]”].)

For these reasons, Plaintiff fails to allege sufficient facts to state a claim.

With respect to whether leave to amend is warranted, Plaintiff does not show in what manner she can amend the seventh cause of action or how that amendment would change the legal effect of the pleading. Additionally, Plaintiff previously had an opportunity to correct this pleading defect and failed to do so. Thus, leave to amend is not warranted. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (Goodman) [a plaintiff must show in what manner he or she can amend the pleading and how that amendment will change the legal effect of the pleading]; see also Melton v. Boustred (2010) 183 Cal.App.4th 521, 544 (Melton) [“the plaintiff must demonstrate a reasonable possibility that the complaint’s defects can be cured by amendment”]; Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1097 (Davies) [the appellate court determined that the trial court did not abuse its discretion in sustaining a demurrer without leave to amend after the plaintiff had previous opportunities to amend the complaint].)

Accordingly, Tarnoff’s demurrer to the seventh cause of action is SUSTAINED without leave to amend.

4. Eighth Cause of Action

Tarnoff argues that the eighth cause of action for violation of Penal Code section 496 fails because Plaintiff does not allege facts showing that the property—Pesic’s semen—was stolen when it was received by Defendants. Tarnoff also argues that Pesic’s subsequent death and Plaintiff’s acquisition of ownership of the semen by bequest did not somehow convert the semen into stolen property. Lastly, Tarnoff contends that Plaintiff fails to allege that Defendants knew that Pesic had died and title to the semen had passed to Plaintiff when Chin underwent the successful fertilization treatment in November 2012.

As is relevant here, Penal Code section 496, subdivision (a) states,

Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.

Penal Code section 496, subdivision (c) states: “Any person who has been injured by a violation of subdivision (a) … may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.”

As Tarnoff persuasively argues, Plaintiff does not allege facts showing that the property—Pesic’s semen—was stolen when it was received by Defendants. Defendants allegedly received the property in late 2010, when Pesic’s semen was collected and preserved by ZFC. (TAC, ¶ 9.) Plaintiff does not allege that the semen was collected and preserved in 2010, by fraud or some other manner constituting theft. Furthermore, Plaintiff does not allege, or otherwise demonstrate, that Pesic’s semen constituted stolen property at the time it was received or obtained by Defendants in 2010.

Rather, Plaintiff alleges that the semen was stolen in 2012, when Chin obtained possession of the property by fraud. (See TAC, ¶¶ 23 & 89-92; see also Opp’n., pp. 8:23-10:7.) In other words, the alleged theft of the property occurred when the eggs fertilized with Pesic’s sperm were transferred to Chin’s body in November 2012. (See TAC, ¶¶ 23 & 89-92; see also Opp’n., pp. 8:23-10:7.) Based on the allegations of the TAC, the semen was not stolen property prior to November 2012.

There are no allegations in the TAC providing that Defendants bought, received, obtained, concealed, sold, withheld, or aided in concealing, selling, or withholding the property from Plaintiff after the alleged theft of the property by Chin in November 2012. Consequently, Plaintiff fails to state a claim for violation of Penal Code section 496.

Because Plaintiff has not yet had an opportunity to cure this defect, leave to amend is warranted. (See City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 [“If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment.”].)

Accordingly, Tarnoff’s demurrer to the eighth cause of action is SUSTAINED, with 10 days’ leave to amend.

C. Motion to Strike

Tarnoff moves to strike the request for punitive damages from the TAC.

1. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 (Turman) citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

2. Punitive Damages

Tarnoff argues that Plaintiff’s request for punitive damages should be stricken from the TAC because the complaint alleges torts in the context of the provision of medical services and Code of Civil Procedure section 425.13 bars a plaintiff from seeking punitive damages in a case arising from the provision of medical services. Tarnoff further argues that Plaintiff cannot now move for leave to pursue punitive damages under Code of Civil Procedure section 425.13 because such a motion must be brought within two years after the complaint is filed. Tarnoff also argues that the Court previously struck Plaintiff’s claim for such damages on two occasions and, therefore, Plaintiff is improperly seeking reconsideration of those prior orders without satisfying the requirements of Code of Civil Procedure section 1008.

As an initial matter, Tarnoff’s last argument is not well-taken. The prior court orders only struck requests for damages as to Zouves Defendants. The prior orders did not address the Plaintiff’s request for damages against Tarnoff. Furthermore, the TAC is not an application or a motion, but a pleading, and it does not ask the Court to reconsider any of its prior orders. As Code of Civil Procedure section 1008 only governs applications for reconsideration (see Code Civ. Proc., § 1008 [addressing applications to reconsider, modify, or revoke prior order]), it does not apply here.

Turning to Tarnoff’s remaining arguments, Code of Civil Procedure section 425.13 states,

In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.

(Code Civ. Proc., § 425.13, subd. (a).) The statute also states that “[f]or the purposes of this section, ‘health care provider’ means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with section 1200) of the Health and Safety Code.” (Code Civ. Proc., § 425.13, subd. (b).)

“To determine what actions require compliance with the pleadings procedure of section 425.13, the courts will look to whether the injury for which damages are sought is directly related to the professional services provided by the health care provider.” (Cryolife, Inc. v. Super. Ct. (2003) 110 Cal.App.4th 1145, 1157.) “The test of whether a health care provider’s negligence constitutes professional negligence is whether the negligence occurred in rendering services for which the health care provider is licensed.” (Williams v. Super. Ct. (1994) 30 Cal.App.4th 318, 324–325, italics added; Cooper v. Super. Ct. (1997) 56 Cal.App.4th 744, 748 [“An action for damages arises out of the professional negligence of a health care provider if the injury for which damages are sought is directly related to the professional services provided by the health care provider. Thus, if a claim is ‘directly related’ to the professional services rendered by a health care provider, section 425.13 applies.”], internal citations and emphasis omitted.)

Here, Plaintiff expressly alleges that: Tarnoff misrepresented that she was qualified to perform psychological examinations; although Tarnoff was licensed as a marriage and family therapist, she was not a licensed psychologist; Tarnoff was not qualified to perform psychological evaluations; and Tarnoff acted outside of the scope of her license as a marriage and family therapist. (TAC, ¶¶ 4, 15-16, & 42.) Thus, according to the allegations of the complaint, the alleged injury occurred when Tarnoff was rendering services for which she was not licensed. As these allegations are accepted as true on a motion to strike (see Turman, supra, 191 Cal.App.4th at p. 63 [in ruling on a motion to strike, the court assumes the truth of all well-pleaded allegations]), it cannot be said that the action alleged against Tarnoff requires compliance with Code of Civil Procedure section 425.13.

Accordingly, Tarnoff’s motion to strike the request for punitive damages is DENIED.

II. Demurrer and Motion to Strike by Zouves Defendants

A. Demurrer

Zouves Defendants demur to the fourth, fifth, seventh, and eighth causes of action of the TAC on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Zouves Defendants also demur to the fourth, fifth, and seventh causes of action on the ground of uncertainty. (See Code Civ. Proc., § 430.10, subd. (f).)

1. Request for Judicial Notice

Zouves Defendants ask the Court to take judicial notice of documents filed in the case of Estate of Ivan Milovan Pesic (Santa Clara County Superior Court, Case No. 2012-1-PR-171707) and an order filed in the case of Joyce Chin, et al. v. Katherine Pesic, et al. (Santa Clara County Superior Court, Case No. 6-13-CP-001295).

The subject documents are generally proper subjects of judicial notice under Evidence Code section 452, subdivision (d). Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (Woodell, supra, 17 Cal.4th at p. 455.) Consequently, Court will take judicial notice of the existence of the court records and the truth of the results reached in the court order. The Court will not take judicial notice of the truth of hearsay statements in those documents.

Accordingly, Zouves Defendants’ request for judicial notice is GRANTED as to the existence of the subject court records and the truth of the results reached in the court order.

2. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Shearson, supra, 221 Cal.App.3d at p. 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore, supra, 226 Cal.App.2d at p. 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align, supra, 179 Cal.App.4th at p. 958, internal citations and quotations omitted.)

3. Fourth Cause of Action

Zouves Defendants argue that the fourth cause of action for conversion fails because Plaintiff cannot demonstrate that she owned the property at issue—Pesic’s semen. Zouves Defendants contend that it was Pesic’s intent, upon his death, to give Chin the right to continue to use his semen to conceive children and “the proper test for distribution of sperm [is the] decedent’s intent.” (Mem. Ps. & As., pp. 11:20-12:14, 13:2-4, 13:24-14:5.) Zouves Defendants assert, in a conclusory manner, that Pesic designated Chin as the owner of the property, in the event of his death, in a cryopreservation agreement executed in February 2011.

These arguments lack merit. There are no allegations in the TAC that Pesic intended to give Chin the right to continue to use his semen to conceive children. Similarly, the TAC does not include any allegations regarding a cryopreservation agreement executed in February 2011. Additionally, the Court has not taken judicial notice of any such document. As Zouves Defendants’ arguments are based on facts and documents that are not properly before the Court, those arguments lack merit. (See South Shore, supra, 226 Cal.App.2d at p. 732 [“[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.”], internal citations and quotations omitted.)

Accordingly, Zouves Defendants’ demurrer to the fourth cause of action is OVERRULED.

4. Fifth Cause of Action

Zouves Defendants argue that the fifth cause of action for breach of fiduciary duty fails to the extent it is alleged by Plaintiff as an individual because they did not owe Plaintiff a fiduciary duty. Zouves Defendants assert that a healthcare provider’s fiduciary duties are limited in scope; the absence of a provider-patient relationship insulates a healthcare provider from liability; and Plaintiff does not allege that she was their patient.

These arguments are not well-taken. The fifth cause of action, as currently alleged by Plaintiff as an individual, is not predicated on Zouves Defendants’ status as a healthcare provider or a purported provider-patient relationship. Instead, Plaintiff alleges that “[t]he fiduciary duty owed by [Zouves Defendants] to … [her] derived solely from their status as bailees of [Pesic’s] semen … .” (TAC, ¶¶ 60 & 62.) In other words, Plaintiff alleges that Zouves Defendants owed her a legal duty based on their alleged bailor-bailee relationship. Because Zouves Defendants’ arguments do not address the allegations underlying the fifth cause of action (i.e., whether the alleged bailor-bailee relationship gives rise to any of the alleged fiduciary duties), Zouves Defendants have not demonstrated that the fifth cause of action fails to state a claim.

Therefore, Zouves Defendants’ demurrer to the fifth cause of action is OVERRULED.

5. Seventh Cause of Action

First, Zouves Defendants argue that the seventh cause of action for negligence fails because there is no independent cause of action for res ipsa loquitur and the seventh cause of action is duplicative of the sixth cause of action. Second, Zouves Defendants argue that that Plaintiff does not adequately allege that they owed her a duty of care.

Zouves Defendants’ second argument is well-taken. In the seventh cause of action, Plaintiff fails to allege that Zouves Defendants owed her any duty of care. (See Lueras, supra, v. 221 Cal.App.4th at p. 62 [the elements of negligence are duty, breach, causation, and damages].)

Instead, Plaintiff alleges that Probate Code section 249.5 and Family Code section 7611, subdivision (f) were generally violated because Pesic did not provide unconditional written consent for the posthumous conception of a child using his sperm and Plaintiff did not receive written notice that Pesic’s genetic material was available for the purpose of posthumous conception. (TAC, ¶¶ 77-78.) Plaintiff also alleges facts regarding the three conditions necessary to invoke the doctrine of res ipsa loquitur. (TAC, ¶¶ 80-83; see Howe, supra, 189 Cal.App.4th at pp. 1161-1162 [to invoke res ipsa loquitur, a plaintiff has the burden to establish three conditions: (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff].)

Plaintiff does not allege, or otherwise demonstrate, that Probate Code section 249.5 and/or Family Code section 7611, subdivision (f) impose any duty on Zouves Defendants. Thus, the allegations regarding the purported violation of Probate Code section 249.5 and Family Code section 7611, subdivision (f) do not establish the existence of a legal duty.

Furthermore, Plaintiff’s allegations regarding the application of the doctrine of res ipsa loquitur do not establish that Zouves Defendants owed any duty to Plaintiff or Pesic. “Res ipsa loquitur is applicable only to show a breach of duty, not the existence of a duty: ‘Res ipsa loquitur leads only to the conclusion that the defendant has not exercised reasonable care. It is not in itself any proof that he was under any duty to do so. Unless there is enough more to show such a duty, the plaintiff will be denied recovery even though he has otherwise made out a res ipsa case.’ [Citation]” (Hogan, supra, 153 Cal.App.2d at p. 115; see Howe, supra, 189 Cal.App.4th 1161 [res ipsa loquitur is not a cause of action; rather, “[i]n California, it is a presumption affecting the burden of producing evidence.”]; see also Elcome, supra, 110 Cal.App.4th at pp. 316–317 [“Where the doctrine of res ipsa loquitur applies, ‘[t]he presumed fact … is that “a proximate cause of the [plaintiff’s injury] was some negligent conduct on the part of the defendant … .” ’ [Citation.]”].)

For these reasons, Plaintiff fails to allege sufficient facts to state a claim.

With respect to whether leave to amend is warranted, Plaintiff does not show in what manner she can amend the seventh cause of action or how that amendment would change the legal effect of the pleading. Additionally, Plaintiff previously had an opportunity to correct this pleading defect and failed to do so. Thus, leave to amend is not warranted. (See Goodman, supra, 18 Cal.3d at p. 349 [a plaintiff must show in what manner he or she can amend the pleading and how that amendment will change the legal effect of the pleading]; see also Melton, supra, 183 Cal.App.4th at p. 544 [“the plaintiff must demonstrate a reasonable possibility that the complaint’s defects can be cured by amendment”]; Davies, supra, 168 Cal.App.4th at p. 1097 [the appellate court determined that the trial court did not abuse its discretion in sustaining a demurrer without leave to amend after the plaintiff had previous opportunities to amend the complaint].)

Accordingly, Zouves Defendants’ demurrer to the seventh cause of action is SUSTAINED without leave to amend.

6. Eighth Cause of Action

First, Zouves Defendants argue that the eighth cause of action for violation of Penal Code section 496 fails because Plaintiff was not the owner of the subject property. With respect to the issue of ownership, Zouves Defendants present the same reasons that they offered in connection with their demurrer to the fourth cause of action. Second, Zouves Defendants argue that the eighth cause of action is based “the willful blindness doctrine” purportedly set forth in Global-Tech Appliances, Inc. v. SEB S.A. (2011) 563 U.S. 754 (Global-Tech). Zouves Defendants contend, in a conclusory manner, that the allegations of the TAC do not “give rise to the degree of willful blindness described in [Global-Tech].” (Mem. Ps. & As., p. 19:5-14.)

Zouves Defendants’ first argument regarding ownership lacks merit for the reasons previously set forth in the Court’s discussion of Zouves Defendants’ demurrer to the fourth cause of action.

Zouves Defendants’ second argument also lacks merit. As an initial matter, Zouves Defendants do not establish that Global-Tech applies in this case. Global-Tech involved a federal action for induced infringement of a patent. The issue before the federal court was whether the defendant had the requisite knowledge required under 35 U.S.C. section 271(b). (Global-Tech, supra, 563 U.S. at p. 754.) Zouves Defendants do not demonstrate that the knowledge required under 35 U.S.C. section 271(b) and Penal Code section 496 are the same, or explain why the standard of knowledge applicable in an action for induced patent infringement should apply to a state law claim for receipt of stolen property. Furthermore, Plaintiff affirmatively alleges that Zouves Defendants were willfully blind to Chin’s fraudulent conduct and their willful blindness is evidence that they had constructive knowledge that the subject property was stolen. (TAC, ¶ 91.) Zouves Defendants’ knowledge is a question of fact that is not properly resolved on demurrer. (See People v. Durham (1969) 70 Cal.2d 171, 181 [knowledge is a question of fact for the jury].)

Accordingly, Zouves Defendants’ demurrer to the eighth cause of action is OVERRULED.

B. Motion to Strike

Zouves Defendants move to strike the request for treble damages as well as the request for damages in connection with the fourth cause of action for conversion.

1. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman, supra, 191 Cal.App.4th at p. 63 citing Clauson, supra, 67 Cal.App.4th at p. 1255.)

2. Treble Damages

Zouves Defendants argue that the Court should strike Plaintiff’s request for treble damages because Plaintiff’s claims arise out of their provision of professional medical services and, therefore, the request for treble damages is barred by Code of Civil Procedure section 425.13.

This argument is not well-taken. Preliminarily, it is important to note that Plaintiff’s request for treble damages is separate and distinct from her request for punitive damages. (Compare TAC, Prayer ¶¶ 5 [treble damages] & 6 [punitive damages].)

Code of Civil Procedure section 425.13 merely precludes the recovery of punitive damages under Code of Civil Procedure section 3294 in an action arising out of the professional negligence of a health care provider. (Code Civ. Proc., § 425.13, subd. (a) [“In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.”].) The statute does not purport to restrict the recover of other types of damages.

Here, Plaintiff’s request for treble damages appears to have been made under Penal Code section 496, subdivision (c), which states that “[a]ny person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.” Because Zouves Defendants do not demonstrate that Code of Civil Procedure section 425.13 applies to a request for treble damages under Penal Code section 496, their motion to strike the request for treble damages is not well-taken.

Accordingly, Zouves Defendants’ motion to strike the request for treble damages is DENIED.

3. Damages Sought In Connection With Conversion Claim

Zouves Defendants argue that the prayer for damages arising from the fourth cause of action for conversion must be stricken from the FAC because the conversion claim fails for the reasons articulated in their demurrer.

This argument is lacks merit. As indicated above, Zouves Defendants’ demurrer to the fourth cause of action for conversion is not well-taken and that claim survives demurrer. Zouves Defendants do not present any other arguments explaining why the damages sought in connection with conversion claim should be stricken.

Accordingly, Zouves Defendants’ motion to strike the damages sought in connection with the conversion claim is DENIED.