D.B. vs. Doe Medical Center

34-2022-00331141-CU-PO-GDS: D.B. vs. Doe Medical Center 10/09/2024 Hearing on Demurrer to Plaintiff's First Amended Complaint in Department 53

Tentative Ruling

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TENTATIVE RULING: Defendant Sutter Health’s demurrer to the First Amended Complaint (“1AC”) filed by plaintiff D.B. was originally set for hearing on 8/21/2024 but was continued to this date to be heard concurrently with another pending demurrer to this same pleading. The Court now rules as follows.

A number of the moving papers’ citations to the provisions of Code of Civil Procedure §340.1 are inaccurate. (See, e.g., Mov. P&A, p.4:1-13 [quoting §340.1(f)(1) - (2) but citing it as §340.1(g)(1) - (2)]; p.4:20-21 [summarizing §340.1(j) but citing it as §340.1(k)]; p.5:1-6 [summarizing §340.1(f)(1) - (2) but citing it as §340.1(g)(1) - (2).) Moving counsel is advised to be more careful in the future in order to avoid the unnecessary consumption of finite judicial resources.

34-2022-00331141-CU-PO-GDS: D.B. vs. Doe Medical Center 10/09/2024 Hearing on Demurrer to Plaintiff's First Amended Complaint in Department 53

The Court acknowledges Sutter Health’s declaration in reply, asserting that plaintiff failed to serve his opposition to this demurrer. However, plaintiff’s opposition was nevertheless considered since Sutter Health’s declaration confirms the opposition was “found on the Court’s website” and since Sutter Health otherwise timely filed a substantive reply to the opposition. (See, e.g., Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [defective service waived by filing substantive response].) However, the Court reminds plaintiff’s counsel that all filings must also be properly and timely served on all parties that have appeared in this action.

Factual Background

This case arises from a childhood sexual assault against plaintiff while hospitalized. Plaintiff has sued the nurse who is alleged to have committed the assault as well as Sutter Health. The original complaint was filed on 12/8/2022 and plaintiff then lodged Certificates of Merit (“COM”) on 2/2/2023 but these were rejected on 3/2/2023. Plaintiff lodged additional COM on 5/9/2023 and on 5/26/2023, the Court found the COM to be sufficient. On 7/12/2023, plaintiff submitted his Certificate of Corroborative Fact (“CCF”) but it was rejected by the Court on 7/24/2023. Plaintiff submitted another CCF on 12/5/2023 and it was approved on 12/29/2023, with the 1AC being filed on 1/10/2024. The present demurrer by Sutter Health was filed on 3/18/2024.

Moving Papers. Sutter Health contends the 1AC is subject to demurrer because plaintiff failed to file the COM “before the statute of limitations expires or within sixty days of filing the [original] complaint” on 12/8/2022. (Mov. P&A, p.4:20-26.) More specifically, Sutter Health insists the statute of limitations expired on 1/1/2023 and the 60-day period expired on 2/6/2023 but plaintiff did not file sufficient COM until 5/9/2023, more than 90 days after the later deadline of 2/6/2023. (Id., at p.5:11-17.)

Sutter Health adds that even if the COM were timely filed, plaintiff’s final cause of action under the Bane Act fails since “the hospital [sic] did not use threats, intimidation, or coercion to violate plaintiffs [sic] rights.” (Mov. P&A, p.5:25-26.) Moreover, the allegations found in Paragraph 144 about plaintiff being “coerced into not reporting” the assault by Sutter Health’s “own intimidating, threatening, coercive, and humiliating conduct, conspiratorial silence, and inaction” are, aside from being impermissibly conclusory, insufficient to constitute conduct actionable under the Bane Act. (Id., at p.7:16-p.8:1.)

Therefore, coupled with the fact that plaintiff’s causes of action against the hospital sound in mere negligence for allegedly failing to investigate the assault (Id., at p.8:2-p.9:10) and that Sutter Health “is not responsible for the daily management of the hospital” (Id., at p.9:11-19), the demurrer to the Bane Act cause of action should be sustained.

Opposition. Plaintiff opposes, arguing first that the statute of limitations was by virtue of the Judicial Council’s Emergency Rule 9 automatically extended from 1/1/2023 to 6/27/2023 (see,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00331141-CU-PO-GDS: D.B. vs. Doe Medical Center 10/09/2024 Hearing on Demurrer to Plaintiff's First Amended Complaint in Department 53

Roe v. Doe (2023) 98 Cal.App.5th 965, 973 [Emergency Rule 9 tolled §340.1’s limitations period by 178 days]) and thus, the COM which PL submitted on 5/9/2023 and which were later approved by the Court on 5/26/2023 were timely. The opposition next asserts that the 1AC pleads a valid Bane Act claim against Sutter Health for engaging in intimidating, threatening and/or coercive conduct because (1) Sutter Health is “vicariously liable for its employee’s onthe-clock Bane Act violations” and (2) “the sexual assaults were within the scope of the assailant’s employment, for numerous reasons.” (Oppos., p.5:9-p.9:11.) Finally, the opposition contends “the relationship between the various Sutter entities are [sic] questions of fact that cannot be resolved at the pleading stage.” (Id., at p.9:12-24.)

The Court notes that the opposition also includes a request for leave to amend “to add a claim for a violation of [Civil Code §]51.9 should the Bane Act claim be found unsupportable.” (Oppos., p.9:9-11.) However, this request is not properly presented to the Court in opposition papers but plaintiff is free to file a noticed motion to amend in the even he desires to add a new cause of action.

Reply. In its reply, Sutter Health insists the Bane Act claim fails because (1) the 1AC does not actually allege that Sutter Health itself engaged in any intimidating, threatening and/or coercive conduct and (2) the opposition’s argument about Sutter Health’s vicarious liability is “irrelevant” to question of whether the facts are sufficient to state a Bane Act claim. Moreover, Sutter Health points out that the Bane Act claim is not actually alleged against the employee nurse and thus, Sutter Health cannot be vicariously liable under the Bane Act. The reply does not explicitly address the issue of whether plaintiff’s COM were timely filed either before the statute of limitations expired or within sixty days of the original complaint” on 12/8/2022, nor does it otherwise address the Roe v. Doe decision cited in the opposition.

Discussion

Timeliness of Plaintiff’s COM. As noted above, Sutter Health first contends the 1AC is subject to demurrer because plaintiff failed to file the COM either before the statute of limitations expired on 1/1/2023 or within 60 days of the original complaint filed on 12/8/2022. (Mov. P&A, p.4:20-26; p.5:11-17.) According to Sutter Health, Code of Civil Procedure §340.1’s statute of limitations expired on 1/1/2023 and the 60-day period expired on 2/6/2023 but plaintiff did not file sufficient COM until 5/9/2023, more than 90 days after the later deadline of 2/6/2023. (Id., at p.5:11-17.)

However, as pointed out by the opposition, the recent decision in Roe v. Doe unequivocally held that §340.1’s limitations period was extended by 178 days pursuant to the Judicial Council’s Emergency Rule 9 and thus, did not expire until 6/27/2023. (Roe v. Doe, 98 Cal.App.5th at 973.) Consequently, this Court holds that the COM which PL submitted on 5/9/2023 and which were approved by the Court on 5/26/2023 were timely. Coupled with the fact that Sutter Health’s

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00331141-CU-PO-GDS: D.B. vs. Doe Medical Center 10/09/2024 Hearing on Demurrer to Plaintiff's First Amended Complaint in Department 53

reply did not include any argument on this specific issue or otherwise address the Roe v. Doe decision on which the opposition primarily relies, the Court will OVERRULE the demurrer on this first ground.

Bane Act. The demurrer to this cause of action shall be SUSTAINED because plaintiff has failed to plead facts which establish that Sutter Health actually engaged in any conduct which could be fairly construed as intimidating, threatening or coercive. Instead, the 1AC merely characterizes in conclusory terms Sutter Health’s alleged silence and failure to take action following the sexual assault as constituting a form of threat, intimidation and/or coercion in violation of the Bane Act. While Paragraph 144 alleges plaintiff was “coerced into not reporting [the] sexual assault through Defendants’ own intimidating, threatening, coercive, and humiliating conduct, conspiratorial silence, and inaction,” the Court finds no facts purporting to describe the conduct Sutter Health is alleged to have engaged in order to intimidate, threaten or coerce plaintiff into not reporting the assault.

The conduct attributed to Sutter Health currently appears limited to silence and inaction but silence and inaction, without more, would not appear to violate the provisions of the Bane Act.

Furthermore, plaintiff’s suggestion that the Bane Act claim is adequately pleaded insofar as Sutter Health is “vicariously liable for its employee’s on-the-clock Bane Act violations” which “were within the scope of the assailant’s employment” (Oppos., p.5:9-p.9:11) misses the mark. Aside from Sutter Health’s vicarious liability for “its employee’s on-the-clock” sexual misconduct being uncertain, the fact remains that the 1AC does not allege the employee/nurse’s own conduct toward plaintiff actually violated the Bane Act and thus, Sutter Health cannot currently have even potential vicarious liability under the Bane Act. Thus, the Court finds that the Bane Act claim is not adequately against Sutter Health and is subject to demurrer.

Disposition

For the reasons explained above, defendant Sutter Health’s demurrer to the entire 1AC on the ground that plaintiff’s COM were not timely filed is OVERRULED but the demurrer to the Bane Act cause of action for failure to plead sufficient facts is SUSTAINED.

However, as this is the first challenge to plaintiff’s pleading on which the Court has opportunity to rule, leave to amend is also GRANTED. Plaintiff may file and serve a second amended complaint no later than 10/23/2024. Although not required by Court rule or statute, plaintiff is directed to present a copy of this order when the amended complaint is presented for filing.

To the extent plaintiff may desire to add one or more entirely new causes of action, he remains free to file a noticed motion to amend in conformity with Code of Civil Procedure §473 and CRC Rule 3.1324.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00331141-CU-PO-GDS: D.B. vs. Doe Medical Center 10/09/2024 Hearing on Demurrer to Plaintiff's First Amended Complaint in Department 53

Defendant Sutter Health to respond within 30 days if the amended complaint is personally served, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)