Doe C.H., Jane vs. Nguyen, MD, John T.

Plaintiff left the room, performed the urine test, handed the sample to a staff member who was in the hallway, and re-entered the examination room which was then unoccupied. After a short wait, Defendant JOHN T. NGUYEN, MD re-entered the room. Defendant JOHN T. NGUYEN, MD, informed Plaintiff that she had a UTI, discussed medication and provided pharmacy information. Next, Defendant JOHN T. NGUYEN, MD unexpectedly instructed her to sit on the examination table and then forcibly pushed her shoulders back, causing her to lie down.

Defendant JOHN T. NGUYEN, MD proceeded to touch her abdomen, pulled down her pants, and fondled her vagina. When Plaintiff reacted to the contact, Defendant JOHN T. NGUYEN, MD stated, "Oh, I was just looking for your C-section scar." Plaintiff's C-section scar is 22 years old and had no reason to be examined. Defendant JOHN T. NGUYEN, MD performed the examination and touched Plaintiff's vagina without a female (or any other) staff member present, without gloves, without discussing a vaginal examination, and without asking Plaintiff to undress herself for any reason." (SAC P.P.12, 17, 23, 35.)

Further, that Plaintiff "did not consent to Defendant's conduct" (SAC P.P. 13,19), that Defendant Dr. Nguyen intentionally did the acts alleged above and that Plaintiff was harmed or offended by the conduct. (SAC P.P.10, 11, 15, 18, 20, 21, 24.) Further, that the conduct was outrageous, socially unacceptably and beyond what a reasonable person in a civilized society would be expected to endure." (SAC P.P.25, 26, 27.)

As to negligence, Plaintiff alleges Defendant Dr. Nguyen "...owed a duty of care to all customers and patients, including Plaintiff, to provide a reasonably safe environment, protect them from unsafe conditions and prevent reasonably foreseeable harm" and that Defendant "...breached their duty of care to Plaintiff in that Defendants, as the owners, lessors, sub-lessors, managing agents, landlords, renters, managers, operators, marketers, inspectors, maintainers and controllers of the SUBJECT PREMISES in which the subject sexual assault and harassment occurred, failed to implement and enforce reasonable policies and procedures to prevent sexual assault including obtaining pertinent consent, ensuring other staff are present for sensitive examinations and safe undressing protocols.

As a medical doctor and part of management of the facility, Defendant JOHN T. NGUYEN, MD was involved in this failure to create safe conditions and breach of duty which allowed Defendant JOHN T. NGUYEN, MD to conduct himself in such a manner that resulted in the sexual assault and harassment of Plaintiff." (SAC P.P.35, 36.)

Defendant Dr. Nguyen's demurrer first argues that allegations that "Dr. Nguyen fondled her vagina" are inconsistent with the prior pleadings and subject to the sham pleading doctrine. Further, that, if disregarded, the causes of action for battery, assault, IIED and negligence fail to constitute a cause of action. Further, that the conduct alleged as to negligence is duplicative of the professional negligence cause of action.

On July 6, 2026, Plaintiff filed an untimely opposition to the demurrer arguing that the allegations in the newly amended complaint do not constitute a sham pleading, that sufficient facts are alleged to substantiate the intentional tort causes of action and negligence.

Authority and Analysis

Demurrer

The purpose of a demurrer is to test whether a complaint "states facts sufficient to constitute a cause of action upon which relief may be based." (Young v. Gannon (2002) 97 Cal.App.4 th 209, 220. To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if "the defendants negate any essential element of a particular cause of action." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4 th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4 th 634, 638.) It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer. (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But "doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4 th 1219, 1226.)

Sham Pleading Doctrine

Under the sham pleading doctrine, "[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict facts pleaded in the original complaint, or by suppressing facts which prove the pleaded facts false." (Cantu v. Resolution Trust Corporation (1992) 4 Cal.App.4th 857, 877-878.) Therefore, where an amended complaint omits harmful allegations without explanation, the Court may take judicial notice of the prior pleadings and disregard any inconsistent allegations in the amended pleading. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751)

The sham pleading doctrine can be invoked when the newly alleged facts contradict or substantively alter the prior allegations. (See Owens v. Kings Supermarket (1988) 198 Cal. App.3d 379.) The pleadings in Owens differed when the plaintiff alleged that the slip and fall occurred on a street adjacent to the supermarket initial complaint and then alleged that the slip and fall occurred on the defendant's premises rather than on the street in a subsequent complaint. (Id. at 384.) The court found that the purpose of this change was to avoid demurrer on a premises liability theory. (Id.) Therefore, absent a satisfactory explanation for the change, the court properly disregarded the sham pleadings. (Id.)

As to the application of this doctrine, the court in Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426 notes: "'Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.' (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2005) P. 6.708, p. 6-142.1.)" Further, the Deveny court cited to Colapinto v.

County of Riverside (1991) 230 Cal. App. 3d 147, 151, noting "If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations." (Id.)

Here, the Defendant argues that the allegation Defendant fondled Plaintiff's vagina is inconsistent with the prior pleadings. However, the Court's prior ruling sought specificity as to the type of medical procedure or examination and scope of consent of Plaintiff, finding the allegation of touching "without Plaintiff's consent" to be conclusory. In the Court's view, Plaintiff's second amended complaint comports with the Court's prior ruling. To start, Plaintiff has characterized, in both the complaint and first amended complaint, that Defendant Dr.

Nguyen "sexually harassed and assaulted" Plaintiff. The further details in the second amended complaint that Plaintiff presented for treatment for back pain, headache and hot flashes, was initially diagnosed with having a urinary tract infection and which was confirmed after urine sample was provided are sufficient for the Court to find Plaintiff has alleged the type of medical treatment sought, the scope of the examination and scope of consent. Further, that, after confirming the diagnosis, Plaintiff alleges Dr.

Nguyen then "unexpectedly instructed her to sit on the examination table and then forcibly pushed her shoulders back, causing her to lie down. Defendant JOHN T. NGUYEN, MD proceeded to touch her abdomen, pulled down her pants, and fondled her vagina" which is sufficiently specific intentional conduct.

The Court finds no application of the sham pleading doctrine in this matter.

Assault and Battery

"The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching. [Citations.]" (So v. Shin (2013) 212 Cal.App.4th 652, 669.) In order to establish a case of civil battery, the complaint must plead that Defendant acted with wanton, willful or reckless disregard of plaintiffs rights. (Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318.)

"The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiffs harm." (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

Allegations of intentional wrongdoing must be pled with specificity. (Allen v. Jones (1980) 104 Cal.App.3d 207, 215.) The Court finds Plaintiff has sufficiently pled the elements of assault and battery. Plaintiff's second amended complaint sufficiently pleads she sought treatment for back pain, headaches and hot flashes, was diagnosed with UTI, was tested for UTI and that the test confirmed the UTI. This sufficiently pleads the purpose of Plaintiff's examination and scope of consent. Allegations that, after confirming the UTI, Dr.

Nguyen had Plaintiff sit on the examination table, forcibly push her shoulders back, caused her lie down, and then "proceeded to touch her abdomen, pulled down her pants, and fondled her vagina" properly plead a lack of consent to this conduct, that Plaintiff was harmed or offended and that a reasonable person, under these circumstances, would likewise have been offended. The Court, therefore, overrules the demurrer to the first cause of action for battery and second cause of action for assault.

IIED

"The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.)

"Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress." (McDaniel v. Gile (1991) 230 Cal. App. 3d 363, 372.) This factor appears to assist as to whether the conduct is outrageous. (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal. App. 3d 222, 230.)

Under the same facts as above, the Court finds, on demurrer, the conduct alleged as to touching Plaintiff's vagina after diagnosing Plaintiff with the UTI, and given the relationship of patient and doctor, a cause of action for IIED has been sufficiently pled. Therefore, the Court overrules the demurrer as to IIED.

Negligence

The elements of negligence are duty, breach, causation, and damages. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) The Court notes the sixth cause of action is pled as "professional negligence." Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 804 notes that "...a plaintiff cannot, on the same facts, state causes of action for ordinary negligence as well as professional negligence, as a defendant has only one duty that can be measured by one standard of care under any given circumstances."

Here, the fifth cause of action contains allegations that sound in medical negligence, as Plaintiff pleads Defendant "...failed to implement and enforce reasonable policies and procedures to prevent sexual assault including obtaining pertinent consent, ensuring other staff are present for sensitive examinations and safe undressing protocols. As a medical doctor and part of management of the facility, Defendant JOHN T. NGUYEN, MD was involved in this failure to create safe conditions and breach of duty..." (SAC P.37; emphasis added.) As such, the Court finds a failure to state a cause of action pursuant to the above and sustains the demurrer with leave to amend as to the fifth cause of action for negligence only.

Plaintiff shall have ten (10) days from the date of this hearing to file the amended complaint. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: In the Matter of Jimmy L. Dreo and Charlotte L. Dreo 1996 Living Trust