ENGEL vs REALYVASQUEZ, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

25CV012151: ENGEL vs REALYVASQUEZ, et al. 07/15/2026 Hearing on Demurrer to Plaintiff's Complaint in Department 8D

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

***If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the causes of action that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters.***

Defendant Fidel Realyvasquez Jr., M.D.’s (“Defendant”) demurrer to self-represented plaintiff Julius M. Engel’s (“Plaintiff”) complaint is ruled upon as follows:

Overview

Plaintiff alleges the following in his Complaint:

Plaintiff is 67 years old. He alleges that he was a tenured protective service officer with FPS. (Complaint, ¶ 1.) Plaintiff alleges that he had an impeccable attendance record. (Complaint, ¶ 3.) On October 27, 2022, without any reason given, Plaintiff was sent to Defendant for a fitnessduty-examination. Plaintiff alleges that he passed the first half of testing, but Defendant then told Plaintiff that he had a heart murmur and would not allow him to complete the tests. (Complaint, ¶ 4.) Plaintiff alleges that despite having had an echocardiogram ten months earlier that cleared him of any medical condition and signing a legal waiver to complete the testing, it was “obvious that Dr.

Fidel was looking for reasons to fail petitioner [sic] and lying about echocardiogram protocols.” (Ibid.) Plaintiff describes Defendant as “arrogant” and “rude.” (Ibid.) Plaintiff alleges that Defendant did not recommend that he see his own physician, which “prove[d] he knew his statement was false and part of a canard to end petitioner’s [sic] career.” (Ibid.)

Plaintiff alleges that on November 12, 2022, he had another echocardiogram by a doctor at the Veterans Administration “which was exactly the same result; innocent.” (Complaint, ¶ 6.) He alleges that Defendant never did the METS calculation “to increase Plaintiff’s chance of failing by using it as a pretext.” (Complaint, ¶ 7.) Plaintiff alleges that he passed other tests which “proves Dr. Fidel’s refusal to LET Petitioner test on October 28, 2023 [sic] was indeed a fraud to keep him from passing.” (Complaint, ¶¶ 8-9.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV012151: ENGEL vs REALYVASQUEZ, et al. 07/15/2026 Hearing on Demurrer to Plaintiff's Complaint in Department 8D

Plaintiff alleges that he returned on January 21st and passed certain tests, but could not do the METS test. He alleges that he left Defendant’s office “with assurances and congratulations that he passed.” (Complaint, ¶ 10.) However, when Plaintiff reported to his work that he planned to return to work, Defendant “created another pretext to veto the pass” by stating that Plaintiff “held onto the rails and that negated the test.” (Complaint, ¶ 11.) Plaintiff alleges that he was never instructed not to hold onto the rails. (Ibid.) Plaintiff returned for a fifth treadmill test on January 28th, and “did very well.” (Complaint, ¶ 14.) However, due to a malfunction in Defendant’s equipment, Defendant gave Plaintiff a lower score.

Plaintiff alleges that on April 14, 2023, he entered into a contract with his employer that if he passed a Concentra fitness-for-duty exam at his expense, he would be returned to work. (Complaint, ¶ 16.) On May 22, 2023, Defendant conducted another fitness duty exam, but gave him a “ridiculously low score.” (Ibid.) On June 22, 2023, Plaintiff went to a different tester, and “easily passed the physical.” (Ibid.) However, his employer did not return him to duty. Plaintiff alleges that this is the fault of Defendant. (Ibid.)

The complaint asserts causes of action for: (1) fraud, (2) elder abuse, (3) assault and battery, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, and (6) tortious interference with contract/economic benefit.

Defendant demurs to each cause of action on the ground that Plaintiff fails to state sufficient facts and is uncertain.[1]

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.)

A demurrer and a motion to strike “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV012151: ENGEL vs REALYVASQUEZ, et al. 07/15/2026 Hearing on Demurrer to Plaintiff's Complaint in Department 8D

Cal.App.4th 1106, 1111-1112.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank v. Kirwan, supra, 39 Cal.3d at 318, William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1616 n.2.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 Cal. 481, 482.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . ., we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

The Court notes that Plaintiff’s opposition raises a number of extrinsic facts, such as Plaintiff being harassed by a Department of Homeland Security officer because of his age and in retaliation for filing a complaint about the harassment. (Opposition, 2:3-11.) The Court did not consider these extrinsic facts. In ruling on a demurrer, this Court is limited to reviewing allegations in the complaint or to facts subject to judicial notice.

Fraud

Defendant demurs on the ground that Plaintiff’s allegations are conclusory and fail to identify specific misrepresentations made by Defendant, intent to defraud, or justifiable reliance.

Pointing to paragraphs 12-15 of the complaint and his allegations regarding Defendant’s disciplinary record, Plaintiff insists that he has sufficiently pleaded the “who, what, where, when and how.”

The elements of a general fraud claim are as follows: “(1) a misrepresentation, (2) knowledge of falsity (or ‘scienter’), (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance, and (5) resulting damage.” (Bains v. Moores (2009) 172 Cal.App.4th 445, 455, citing Unterberger v. Red Bull North America, Inc. (2008) 162 Cal.App.4th 414, 423.) Misrepresentation occurs when there is a material and knowingly false representation of fact. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 693.) Justifiable reliance exists when the plaintiff

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV012151: ENGEL vs REALYVASQUEZ, et al. 07/15/2026 Hearing on Demurrer to Plaintiff's Complaint in Department 8D

actually relied on the defendant’s misrepresentations and that they were reasonable in doing so. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 863.) To have actually relied on the defendant’s misrepresentations, the plaintiff’s conduct must have been at least substantially caused by the defendant’s misrepresentation. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1256.)

In this case, the Court finds that Plaintiff’s complaint fails to allege any misrepresentations of fact which Defendant made to Plaintiff, that Defendant intended to defraud Plaintiff, and that Plaintiff justifiably relied on any misrepresentation.

The demurrer is SUSTAINED with leave to amend as to this cause of action.

Elder Abuse

In this cause of action, Plaintiff alleges that Defendant’s actions constitute “elder abuse” and “this is criminalized by California Penal Code Sec. 368.” (Complaint, ¶ 18.)

Defendant demurs on the ground that Plaintiff fails to plead with particularity a cause of action for elder abuse under Welfare and Institutions Code section 15657. Specifically, Defendant argues that Plaintiff fails to allege that Defendant acted with recklessness, oppression, fraud, or malice, that Defendant’s actions caused physical harm or financial abuse as defined by the statute, or that there was a custodial relationship between he and Defendant and, within the scope of said relationship, when the neglect occurred.

In opposition, Plaintiff contends that the cause of action is not based on the Welfare and Institutions Code section 15657, but rather Penal Code section 368. Plaintiff insists that “CCP Sec. 3333 applies criminal standards as tort. This [sic] supported by Evidence Code Sec. 669 which specifically applies criminal statutes as the standard for civil liability.” (Opposition, 4:6- 8.) Plaintiff’s reliance on a purported Code of Civil Procedure section 3333 and Evidence Code section 669 does not assist him.

Code of Civil Procedure section 3333 does not exist. Evidence Code section 669 concerns the evidentiary presumption for the failure of a person to exercise due care. Further, Plaintiff provides no authority to support that the Legislature has impliedly or expressly recognized a private right of action under Penal Code section 368. “A violation of a state statute does not necessarily give rise to a private cause of action. [Citation.] Instead, whether a party has a right to sue depends on whether the Legislature has ‘manifested an intent to create such a private cause of action’ under the statute. [Citations.] Such legislative intent, if any, is revealed through the language of the statute and its legislative history.” (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596.) Instead, civil remedies for financial or physical abuse of an elder

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV012151: ENGEL vs REALYVASQUEZ, et al. 07/15/2026 Hearing on Demurrer to Plaintiff's Complaint in Department 8D

are provided under the California Elder Abuse Act. (Welf. & Inst. Code, §§ 15610.07, subd. (a)(1), (3), and 15610.30.)

Accordingly, the demurrer is SUSTAINED with leave to amend as to this cause of action.

Assault and Battery

Defendant demurs on the ground that Plaintiff fails to allege that he acted with the requisite intent to cause harmful or offensive contact, or that such contact occurred. Defendant contends that Plaintiff “fails to allege facts showing that Defendant acted with intent to cause harmful or offensive contact, other than performing the exact test to which Plaintiff voluntarily subjected himself. The allegations regarding repeat fitness tests and examinations do not rise to the level of assault or battery under California law, and Plaintiff pleads facts that directly contradict the essential elements of battery and/or assault.” (Reply, 4:12-17.)

Plaintiff argues that the cause of action is well pleaded based on the “numerous facts” in his twelve-page complaint “referencing the torture system of unnecessary physical stress test repeatedly passed, with dates to match, and not permitted to work. This was intended to be a physical attack on plaintiff’s body and cause him pain by this offensive and not knowingly consented to by plaintiff.” (Opposition, 5:3-8.)

In the medical context, the California Supreme Court has set forth that a battery theory should only apply “when a doctor intentionally performs a medical treatment to which the patient has not consented” or intentionally deviates from the consented treatment. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240.) Consent to medical care may be express or implied from the circumstances. (Bradford v. Winter (1963) 215 Cal.App.2d 448, 454.) Implied consent may be “manifested by acts or conduct.” (Kritzer v. Citron (1950) 101 Cal.App.2d 33, 38.)

In this case, the Court finds that the current allegations do not set forth a claim of assault or battery. The crux of Plaintiff’s cause of action is that Defendant subjected him to unnecessary tests. As alleged, however, Defendant conducted the exact tests required for the fitness-for-duty exam, and Plaintiff repeatedly returned to Defendant’s office to take those tests. The current factual allegations appear to support that Plaintiff impliedly consented to the tests, and Plaintiff has not sufficiently alleged facts to the contrary through the operative complaint.

The demurrer is SUSTAINED with leave to amend as to this cause of action.

Intentional Infliction of Emotional Distress

Defendant demurs on the ground that Plaintiff fails to allege facts sufficient to establish extreme

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV012151: ENGEL vs REALYVASQUEZ, et al. 07/15/2026 Hearing on Demurrer to Plaintiff's Complaint in Department 8D

and outrageous conduct by Defendant, that Defendant’s conduct was so extreme as to exceed all bounds of decency in a civilized society or that Plaintiff suffered severe emotional distress as a result of Defendant’s actions.

Plaintiff insists that the cause of action is well pleaded because “[i]t is over the top and defies public decency that Dr. Fidel would falsify plaintiff’s stress test (a test by its very nature cannot be done twice back-to-back - a second test would have to be done much later - which he made him repeat over and over again even when he passed.” (Opposition, 5:16-21.) Plaintiff adds that the complaint alleges “copious facts,” including painful COVID-19 pre-test each time he went to the VA doctor ” (Opposition, 5:25-26.)

A claim for intentional infliction of emotional distress requires that the plaintiff show: (1) the defendant engaged in extreme and outrageous conduct, (2) with the intention of causing or reckless disregard of the probability of causing emotional distress, (3) which actually and proximately caused, and (4) the plaintiff to suffer severe or extreme emotional distress. (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1289.) Extreme and outrageous conduct exists when “a defendant's conduct is ‘outrageous’ when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Miller v.

Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 229). To withstand a demurrer, “the plaintiff must allege with ‘great specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160-161). “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v.

Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.) “[T]he mere allegation that the plaintiffs suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant's alleged outrageous conduct, failed to state a cause of action for intentional infliction of emotional distress.” (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.)

The Court finds that the facts presently alleged to not rise to the level of extreme and outrageous conduct. Additionally, Plaintiff fails to allege any “facts indicating the nature or extent of any mental suffering.” Plaintiff simply alleges that he suffered “emotional distress.” (Complaint, ¶ 20.)

The demurrer is SUSTAINED with leave to amend as to this cause of action.

Negligent Infliction of Emotional Distress

Defendant demurs on the ground that Plaintiff fails to allege facts sufficient to establish that Defendant owed Plaintiff a duty of care, that Defendant breached such duty, that Defendant’s

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV012151: ENGEL vs REALYVASQUEZ, et al. 07/15/2026 Hearing on Demurrer to Plaintiff's Complaint in Department 8D

conduct was negligent, or that it caused Plaintiff to suffer emotional distress. In reply, Defendant narrows his argument to the lack of allegations regarding the nature and degree of Plaintiff’s emotional distress.

Plaintiff argues in opposition that the facts alleged in his complaint support negligent infliction of emotional distress.

“There is no independent tort of negligent infliction of emotional distress; rather, ‘[t]he tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.’” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205 (quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984).) “That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Potter, supra, 6 Cal.4th at p. 985.) A plaintiff must allege specific facts showing suffering severe emotional distress. (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 618 [“[s]erious emotional distress is an essential element of the cause of action for negligent infliction of emotional distress.”].)

In this case, as set forth above, the Court finds that the current factual allegations do not sufficiently allege facts supporting severe emotional distress.

The demurrer is SUSTAINED with leave to amend as to this cause of action.

Tortious Interference with Contract/Economic Benefit

Defendant demurs on the ground that Plaintiff fails to allege facts sufficient to establish the existence of a valid contract or an economic relationship with which Defendant interfered, that Defendant acted intentionally or wrongfully to disrupt such a relationship, or that Plaintiff suffered damages as a result.

Defendant failed to provide any legal authority in his moving papers or in his reply. The Court declines to provide arguments or legal support for positions not clearly articulated or supported by the moving party.

The demurrer is OVERRULED as to this cause of action.

Disposition

For the foregoing reasons, Defendants demurrer is SUSTAINED in part and OVERRULED in part as set forth above.

Where the Court has granted leave to amend, it grants leave to amend since this is Defendant’s

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV012151: ENGEL vs REALYVASQUEZ, et al. 07/15/2026 Hearing on Demurrer to Plaintiff's Complaint in Department 8D

first challenge to the complaint. Where leave to amend is granted, Plaintiff may file and serve a first amended complaint (“FAC”) by no later than July 31, 2026, Response to be filed and served within 30 days thereafter, 35 days if the FAC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the FAC to facilitate the filing of the pleading.)

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; CRC rule 3.1312.)

[1] The Court notes that Defendant fails to strictly comply with CRC rule 3.1320(a) which

requires that “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” Nevertheless, the Court finds such defects waived by Plaintiff’s substantive opposition.

Defendant is also admonished for failing to cite in his moving papers any legal authority providing the pleading requirements or elements for the fraud, assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and tortious interference with contract/economic benefit causes of action. Nevertheless, Plaintiff’s opposition includes reference to case law, and Defendant includes further argument within the scope of the moving papers on reply.