Kruger vs. Alicia Surgery

# Case Name Tentative 50 Kruger vs. Alicia Surgery

26-01541621 Demurrer to Complaint

Defendant Alica Surgery Center, LLC demurs to the Complaint filed by Plaintiff Stephen Kruger and its first through fifth causes of action. The demurrer is SUSTAINED as to the first, third, fourth, and fifth causes of action. The demurrer is OVERRULED as to the second cause of action. Should Plaintiff wish to file an amended complaint that addresses the issues in this ruling, Plaintiff must file and serve it within 30 days of service of notice of ruling.

Plaintiff is reminded that, when leave to amend is granted upon the sustaining of a demurrer, amendments are limited to the issues addressed in the court’s ruling and generally may not include amendments to causes of action not addressed in the ruling or the addition of new causes of action. (See Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329 [“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.”].)

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404- 05.)

First Cause of Action for Assault and Battery

The tort of “assault is based upon an invasion of the right of a person to live without being put in fear of personal harm.” (Lowry v. Standard Oil Co. of California (1944) 63 Cal.App.2d 1, 7.) “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 plaintiff's harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668– 669, as modified on denial of reh’g (Jan. 28, 2013).)

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. (So, supra, 212 Cal.App.4th at p. 669.)

The first cause of action alleges Defendant employed a man named Ernest de los Santos and permitted de los Santos to approach, assault, and batter Plaintiff. (Compl. ¶¶ 8, 10, 13.)

Although a complaint may allege ultimate rather than evidentiary facts (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550), courts do not consider conclusory factual or legal allegations. (B & P Development Corp. v. City of

Saratoga (1986) 185 Cal.App.3d 949, 953.) Here, the allegations are conclusory and fall short of pleading ultimate facts showing that Defendant touched Plaintiff with the intent to harm or offend Plaintiff and that a reasonable person in Plaintiff’s position would be offended by the touching.

Similarly, the Complaint alleges, in conclusory fashion, that de los Santos assaulted Plaintiff. Ultimate facts demonstrating that Defendant acted with intent to cause harmful or offensive contact, or threatened to touch Plaintiff in a harmful or offensive manner are missing.

The demurrer is sustained as to the first cause of action.

Second Cause of Action for Failure to Provide Considerate and Respectful Care

Section 70707 of Title 22 of the California Code of Regulations (“Section 70707”) provides, in pertinent part, that the hospital must adopt and post a policy on patients’ rights. The posted list “shall include but not be limited to the patients’ rights to: ... [¶] (2) Considerate and respectful care.” Subsection (c) of Section 70707 provides that “[a] procedure shall be established whereby patient complaints are forwarded to the hospital administration for appropriate response” while subsection (d) states that “[a]ll hospital personnel shall observe these patients’ rights.”

The Complaint does not allege that Section 70707 provides a private cause of action for violation of the regulation. Thus, the court will assume Plaintiff is pursuing a negligence claim and is relying on the violation of Section 70707 to establish the duty element of his negligence cause of action.

To establish a claim for negligence, Plaintiff must allege the elements of “ ‘a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” ’ [Citation.]” (Novak v. Continental Tire North America (2018) 22 Cal.App.5th 189, 195.)

The Complaint alleges Defendant had a duty to provide Plaintiff with “considerate and respectful care” while he was in the surgery center, that Defendant breached its duty of care by permitting de los Santos to approach, assault, and batter Plaintiff, that Plaintiff was caused harm by Defendant. (Compl. ¶¶ 15-18.) These allegations are sufficient to allege a cause of action for negligent failure to provide considerate and respectful care. The demurrer is overruled as to the second cause of action.

Third Cause of Action for Violation of Right to Privacy

California Constitution, article I, section 1, provides, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” “The party claiming a violation of the constitutional right of privacy established in article I, section 1 of the California Constitution must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest. [Citations.]” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)

The Complaint alleges Plaintiff had a right to privacy in the surgical cubicle he occupied and that only authorized persons would enter. (Compl. ¶¶ 22-23.) Plaintiff’s right to privacy was breached when de los Santos, an unauthorized

person, entered the surgical cubicle and approached, assaulted, and battered Plaintiff. (Id. at ¶ 24.)

Plaintiff has not shown that he has a legitimate, objectively reasonable expectation of privacy in a space where people, if authorized, may enter. Additionally, “ ‘actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is [sic] an indispensable consideration in assessing an alleged invasion of privacy.’ ” (Mathews v. Becerra (2019) 8 Cal.5th 756, 779.) “ ‘[W]hether [a] defendant’s conduct constitutes a serious invasion of privacy [is a] mixed question[] of law and fact. If the undisputed material facts show ... an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.’ ” (Folgelstrom v. Lamps Plus, Inc. (2011) 195 Cal.App.4th 986, 990.)

Here, the Complaint does not allege facts which demonstrate an egregious breach of the norms underlying the privacy right. Although de los Santos’s alleged assault and battery on Plaintiff is egregious, the allegations are not sufficient to show a serious invasion of Plaintiff’s privacy. The demurrer is sustained as to the third cause of action.

Fourth Cause of Action for Violation of Hospital Rights

Section 883 of Title 9 of the California Code of Regulations (“Section 883”) provides the basis for the fourth cause of action for violation of hospital rights. (Compl. ¶ 29.) Section 883 is titled “Non-LPS Patients’ Rights—Non-Deniable” and is part of Chapter 4.5, which “applies to patients’ rights and related procedures for all non-Lanterman-Petris-Short Act (LPS) patients placed in or committed to a treatment program in a Department of Mental Health facility, except when transferred to or placed in a federally certified program.” (Cal. Code Regs., tit. 9, § 880.) “The LPS [Lanterman-Petris-Short] Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled.” (Conservatorship of John L. (2010) 48 Cal.4th 131, 142.)

The Complaint does not allege that Plaintiff was placed in or committed to a treatment program in a Department of Mental Health facility. Accordingly, Section 883 is not applicable. The demurrer is sustained as to the fourth cause of action.

Fifth Cause of Action for Negligent Training and Supervision of Employee

An employer may be directly liable for negligent supervision and retention “if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) “To establish negligent supervision, a plaintiff must show that a person in supervisory position over the actor had prior knowledge of the actor's propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; see Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1157 [“Awareness, constructive or actual, that a person is unfit or incompetent [for the work] underlies a claim that an employer was negligent in hiring or retaining that person ....”].)

The Complaint alleges Defendant had a duty to hire, train, and supervise de los Santos so that he would act in a manner consistent with Plaintiff’s rights as a

patient. (Compl. ¶ 37.) Defendant breached its duty by allowing de los Santos to violate Plaintiff’s rights as a patient and Plaintiff was harmed. (Id. at ¶¶ 38-39.)

The Complaint fails to allege that Defendant had knowledge of de los Santos’s unfitness. There are no facts showing that Defendant should have known that de los Santos had a propensity to assault and batter patients. The demurrer is sustained as to the fifth cause of action.

Defendant to give notice.

51 Flynn vs. FCA US, LLC

23-01333219 Motion to Set Aside/Vacate Dismissal

NO TENTATIVE RULING – Parties to appear on Zoom or in-person.

52 Wysocki vs. Hoang

25-01512631 Motion to Be Relieved as Counsel of Record

Attorney Yuri Voronin and Wade Litigation, APC (together, “Moving Counsel”) move to be relieved as counsel for Defendants John Hoang, an individual, and John Hoang dba All American Builders & Contractors. The unopposed motion is GRANTED.

The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination . . . [u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.)

Rule of Court 3.1362 governs motions to be relieved as counsel. The court has reviewed the materials submitted by Moving Counsel, Attorney Yuri Voronin and Wade Litigation, APC, and finds that Moving Counsel have complied with the requirements of Rule 3.1362. The court’s order shall become effective upon the filing of a Proof of Service showing service of the order on Defendants John Hoang, an individual, and John Hoang dba All American Builders & Contractors.

Moving Counsel to give notice within 5 court days of the hearing.

54 Reichert vs. Wightman

25-01481529 2x Motions to Be Relieved as Counsel of Record

The motions of attorney Casey R. Johnson to withdraw as attorney of record for Plaintiffs Jeffery Reichert (ROA 55) and Nicolette Reichert, individually and as Guardian ad Litem for Asa Reichert and Violet Reichert (ROA 46) are DENIED WITHOUT PREJUDICE.

California Rule of Court, rule 3.1362(d), requires moving counsel to serve the notice of motion, motion, declaration, and proposed order on the client and all parties who have appeared in the action. The proof of service submitted with the moving papers does not demonstrate that the clients were served.

In addition, moving counsel has not lodged a proposed order (Form MC-053) as required by California Rules of Court, rule 3.1362(e), and the record does not