Emily McCarthy vs Mercy Medical Center Merced, et al.

26CV-02453 Emily McCarthy vs Mercy Medical Center Merced, et al.

Demurrer to Complaint

Defendant generally and specially demurs to Plaintiff’s fourth cause of action. Defendant’s request for judicial notice is GRANTED. Defendant Dignity Health dba Mercy Medical Center Merced’s demurrer to Plaintiff’s complaint is OVERRULED.

At the demurrer stage, Plaintiff sufficiently alleges facts to constitute a cause of action pursuant to Civil Code section 51.9. The facts as alleged in the complaint regarding the unwelcome comments and touching are sufficient to support an allegation of severe conduct under Civil Code section 51.9.

In addition, the cause of action is not uncertain. There are no ambiguous or unintelligible allegations.

The remaining issue is the naming of Defendant in the complaint. Here, the court grants leave to make a non-substantive amendment to the complaint, specifically to correct Defendant’s name.

Plaintiff is order to file the amended complaint correcting Defendant’s name within ten (10) days of this court’s order.

Motion to Strike Portions of Plaintiff’s Complaint

Defendant Dignity Health dba Mercy Medical Center Merced’s motion to strike is DENIED.

As a preliminary note, the court finds the typographical error regarding the incorrectly named defendant to be harmless and this was not considered in the below ruling.

As to attorney’s fees, Plaintiff’s fourth cause of action has alleged a cause of action against Defendant pursuant to Civil Code section 51.9. Although section 51.9 does not contain an express attorney's fees provision within its own text, it expressly incorporates the remedies set forth in Civil Code Section 52, subdivision (b), which explicitly provides for attorney's fees, as determined by the court. (Civ. Code § 52, subd. (b)(3).)

Regarding the prayer for punitive damages, the prayer is for “For exemplary damages only on claims and against defendants for which such damages may be pleaded and recovered without prior leave of Court; and, as to any claim governed by Code of Civil Procedure section 425.13, for leave to amend to seek punitive or exemplary damages if and when authorized by law.” (Complaint, Prayer ¶ (d), 19:1-4.)

Although the phrasing is perhaps inartful, the prayer is limited to those claims and defendants for which punitive damages may be pleaded without leave of court. As to Code of Civil Procedure section 425.13, the prayer provides that Plaintiff will seek leave to amend to plead punitive damages if and when authorized by law. Absent court approval pursuant to Code of Civil Procedure section 425.13, the prayer for punitive damages is not applicable to Defendant Dignity Health dba Mercy Medical Center Merced.