JANE DOE C.C. vs. WEBB; ET AL.

As discussed above, identifying a cause of action as an "intentional tort" as opposed to "negligence" does not itself remove the claim from the requirements of section 425.13(a). The allegations that identify the nature and cause of a plaintiff’s injury must be examined to determine whether each is directly related to the manner in which professional services were provided. Thus, a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13 because the injury arose out of the manner in which professional services are provided.

By contrast, a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant’s conduct would not be directly related to the manner in which professional services were rendered. (Cf. Waters v. Bourhis, supra, 40 Cal.3d at p. 424.) And, contrary to plaintiffs’ argument, section 425.13(a) applies regardless of whether the complaint purports to state a single cause of action for an intentional tort or also states a cause of action for professional negligence.

The clear intent of the Legislature is that any claim for punitive damages in an action against a health care provider be subject to the statute if the injury that is the basis for the claim was caused by conduct that was directly related to the rendition of professional services. Id. at 192.

Two subsequent California appellate court reported cases noted but rejected this reasoning, and instead have held sexual assault allegations against a health care provider on the health care provider’s site are subject to C.C.P. §425.13 compliance requirements. United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500 [sexual assault claims raised by a hospital patient recovering from traumatic brain stem surgery, who alleged that she was sexually assaulted by two hospital employees]; Cooper v. Superior Court (1997) 56 Cal.App.4th 744 [sexual assault claim against a gynecologist].

Trial and appellate courts must follow California Supreme Court caselaw involving statements “necessary to the decision”, but this “extends only to the ratio decidendi of a decision, not to supplementary or explanatory comments which might be included in a [California Supreme Court] decision.” People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892, 903.

It seems clear that the statement in Central Pathology suggesting that most cases involving sexual battery would not be subject to C.C.P. §425.13 was an “explanatory comment”, not “necessary to the decision” in a case which involved no claim of sexual battery. That is why two subsequent appellate court cases held that sexual batteries occurring on medical provider premises related to the providing of medical care and thus were subject to C.C.P. §425.13.

Conversely, reported decisions by a higher court, such as an appellate court, are binding precedent on trial courts for the issues necessarily decided by the appellate court.

Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].) Lafferty v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 569.

Under current California law and precedent, punitive damage claims against a health services provider based on alleged sexual assault occurring on premises during or around the time that health services were provided are subject to C.C.P. §425.13 compliance.

Since Plaintiffs failed to file timely C.C.P. §425.13 motions to add punitive damage allegations to their respective complaints, the punitive damage allegations in their 4 th amended complaints are hereby stricken as to moving defendants NORTHERN CALIFORNIA FACIAL AND ORAL SURGERY (“NCFOS”) and MAHR ELDER, D.D.S. A PROFESSIONAL CORPORATION (“ELDER DDS”).

There is also a second, independent basis for striking the punitive damage claims as to the moving defendants.

Civil Code §3294(b) requires that punitive damage claims against a corporate employer be based on advance knowledge of employee unfitness, or authorization or ratification of the wrongful conduct by a corporate officer, director, or managing agent.

A plaintiff at outset of a case does not always have access to information such as this, and in that situation, may not need to provide specifics. Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838 [“less particularity is required when the facts lie more in the knowledge of the opposite party”]. Still, a complaint inclusive of a punitive damage claim should allege, at least in general terms, the authorization or ratification of the wrongful conduct was made by a corporate officer, director or managing agent (and Plaintiffs’ fourth amended complaints fail to do so).

In the present cases, the initial complaints and responsive pleadings by these and other defendants were filed years ago. A plaintiff is allowed to propound written discovery on a defendant as soon as 10 days after service of summons, or appearance by the defendant, whichever occurs first. See, e.g., C.C.P. §2030.20(b) [interrogatories]; §2031.020(b) [requests for production]. A plaintiff can notice a defendant’s deposition as soon as 20 days after service of summons or the defendant’s appearance. C.C.P. §2025.210(b).

There is no reasonable excuse for a plaintiff years into litigation to not provide specific allegations as to identifying names and/or titles of corporate officers, directors or managing agents alleged to have authorized or ratified the misconduct of an employee.

Therefore, the court strikes the punitive damage allegations against NCFOS and ELDER DDS in each of the fourth amended complaints by these Plaintiffs, without leave to amend.

NCFOS and ELDER DDS have 30 days leave to file answers to the remainders of these fourth amended complaints.

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