On 05/18/2016 ROBERT S MARKMAN filed a Civil Right - Other Civil Right lawsuit against COLLEGE HOSPITAL GROUP INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHU WEIMING DAVID
COLLEGE HOSPITAL GROUP INC.
CHU WEIMING DAVID M.D.
COLLEGE HOSPITAL GROUP INC. DBA COLLEGE HOSPITAL CERRITOS
CROSSIN PETER HUGH ESQ.
PAPPAS LOUIS W. ESQ.
PLEISS LARRY T. ESQ.
WEINSTEIN MARK ALAN
WEINSTEIN MARK A.
PAPPAS LOUIS W.
PLEISS LARRY T.
6/25/2019: Motion in Limine - MOTION IN LIMINE NO. 2 - TO EXCLUDE EVIDENCE OF PUNITIVE DAMAGES
6/25/2019: Statement of the Case - JOINT STATEMENT OF THE CASE
7/1/2019: Trial Brief
7/2/2019: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)
7/16/2019: Minute Order - MINUTE ORDER (JURY TRIAL; FINAL STATUS CONFERENCE)
7/22/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL DATE
1/30/2018: DECLARATION OF ROBERT MARKMAN IN OPPOSITION TO DEFENDANTS' EX PARTE APPLICATON TO REOPEN DISCOVERY, ETC
3/14/2018: NOTICE OF RULING ON DEFENDANT LASOTA'S MOTION TO REOPEN DISCOVERY AND NOTICE OF NEW TRIAL AND FINAL STATUS CONFERENCE DATES
4/4/2018: REQUEST FOR REFUND
7/2/2018: ORDER ON EX PARTE APPLICATION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF ROBERT S. MARKMAN, TO COMPEL THE DEPOSITION OF LISA MARKMAN, AND TO CONTINUE TRIAL
11/6/2018: Notice of Continuance - Notice of Court's Continuance of Defendant Rachel Lasota's Motion for Sanctions
11/26/2018: Order - Order Ruling Re Defendant Rachel Lasota's Motion for Terminating Sanctions
5/18/2016: SUMMONS -
6/30/2016: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO COMPLAINT AND MOTION TO STRIKE PORTIONS OF COMPLAINT
9/14/2016: CASE MANAGEMENT STATEMENT -
10/26/2016: CIVIL DEPOSIT -
7/12/2017: PLAINTIFF'S OPPOSITION TO DEFENDANT RACHEL LASOTA'S MOTION FOR SUNMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AGAINST PLAINTIFF ROBERT MARKMAN'S FIRST AMENDED COMPLAINT; POINTS AND AUTH
7/21/2017: DEFENDANT RACHEL LASOTA'S REPLY IN SUPPORT OF HER SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AND HER OPPOSITION T
Hearing01/21/2020 at 09:30 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing01/07/2020 at 08:30 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing11/26/2019 at 08:30 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)Read MoreRead Less
Hearing09/26/2019 at 09:00 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Status ConferenceRead MoreRead Less
DocketOther - (Ruling Re: Plaintiff's Motion for Reconsideration of Terminating Sanctions); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 78; Hearing on Motion for Reconsideration - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Reconsideration)); Filed by ClerkRead MoreRead Less
DocketNotice (of Court's Advancement of Hearing Date on Defendant's Demurrer to and Motion to Strike Portions of Plaintiff's SAC); Filed by Rachel LaSota (Defendant)Read MoreRead Less
DocketReply (TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER IMPOSING SANCTIONS ON PLAINTIFF); Filed by Robert Markman (Plaintiff)Read MoreRead Less
DocketDemurrer - with Motion to Strike (CCP 430.10); Filed by Rachel LaSota (Defendant)Read MoreRead Less
DocketPROOF OF SERVICE OF SUMMONSRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketFIRST AMENDED COMPLAINT PERSONAL INJURIESRead MoreRead Less
DocketSUMMONS PROOF OF SERVICE BY MAILRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT PERSONAL INJURIESRead MoreRead Less
DocketNOTICE OF RELATED CASERead MoreRead Less
DocketComplaint; Filed by Robert Markman (Plaintiff)Read MoreRead Less
Case Number: BC620808 Hearing Date: December 12, 2019 Dept: 78
ROBERT S. MARKMAN;
COLLEGE HOSPITAL GROUP INC., et al.;
December 12, 2019
[TENTATIVE] RULING RE:
DEFENDANT RACHEL LASOTA’S DEMURRER TO THE SECOND AMENDED COMPLAINT and motion to strike
Defendant Rachel LaSota’s Demurrer to the Second Amended Complaint is SUSTAINED without leave to amend as to the First and Fourth Causes of Action, and SUSTAINED with leave to amend as to the Second, Fifth and Sixth Causes of Action..
Defendant Rachel LaSota’s Motion to Strike is DENIED as moot.
This case stems from an involuntary commitment of plaintiff pursuant to a “5150” hold. The First Amended Complaint (“FAC”) alleges that plaintiff Robert S. Markman (“Markman”) was detained by Officer Jeremy Tolen (“Tolen”) of the California Highway Patrol on May 29, 2014, and delivered to the College Hospital of Cerritos, a facility operated by defendant College Hospital Group, Inc. (“CHG”). (FAC ¶ 1.) Tolen filled out a 5150 Application for Involuntary 72-hour Detention, and Markman was involuntarily confined for 72 hours. (Ibid.)
The FAC alleges that CHG did not comply with the provisions of the Lanterman-Petris-Short Act (“5150”), specifically, because it failed to advise Markman in writing of his right to request to be evaluated or treated by a mental professional of his choice at a facility of his choice. (FAC ¶¶ 3–4.) Markman also alleges that CHG failed to train its admission staff to provide this advisement. (FAC ¶ 4.)
Defendants Chantal Cabebe, Kelly Mitchell, Marilyn Smith, and psychiatrist Weiming David Chu (“Chu”) were all part of the CHG staff that admitted Markman. (FAC ¶ 5.) Each individual defendant is alleged to have signed the admission paperwork, and none of the individual defendants advised Markman of his rights. (Ibid.)
The FAC also alleges that defendant Rachel LaSota (“LaSota”) knowingly and deliberately provided false information to Tolen when Markman was first detained, specifically, that Markman repeatedly sexually assaulted her daughter and attacked and hospitalized two LAPD officers. (FAC ¶ 8.) This information was used on the 5150 application. (FAC ¶ 10.) The FAC alleges that LaSota admitted during a March 14, 2016 “OAH” hearing “that at the time she provided that information she had no factual basis to believe it was true.” (FAC ¶ 11.)
Markman filed his original Complaint on May 18, 2016. Markman filed his FAC on June 24, 2016. Markman filed his Second Amended Complaint (“SAC”) on August 12, 2019, alleging six causes of action. The causes of action in the SAC are alleged only against LaSota:
False Imprisonment (All Defendants)
Fraud (CHG only)
Negligence (CHG, Chu, LaSota)
Professional Negligence (Chu)
Defamation (All Defendants)
Negligent, Intentional, and Reckless Infliction of Emotional Distress (All Defendants)
On August 8, 2016, this Court sustained Weiming David Chu’s Demurrer to the Fifth and Sixth Causes of Action and overruled it as to the First, Third, and Fourth Causes of Action. The Court granted Chu’s Motion to Strike.
On September 1, 2016, this Court sustained CHG, Cabebe, Mitchell, and Smith’s Demurrer to the FAC without leave to amend as to all causes of action.
On July 26, 2017, this Court denied LaSota’s Motion for Summary Judgment or Summary Adjudication.
On September 20, 2017, this Court denied Markman’s ex parte motion to reopen discovery without prejudice to a properly noticed motion.
On March 13, 2018, this Court granted LaSota’s Motion to Re-Open Discovery. The Court ordered LaSota to submit a proposed order for a mental examination to be taken of Markman.
On March 19, 2018, this Court ordered that Markman’s mental examination be taken.
On June 18, 2018, this Court granted LaSota’s Ex Parte Application to Compel Mental Examination of Markman.
LaSota filed a Motion for Terminating Sanctions on September 17, 2018. The motion was continued pending LaSota’s serving and filing of a proposed order for a mental examination. On November 26, 2018, the Court further continued the motion pending Markman’s attendance at the court-ordered mental examination.
On May 8, 2019 the Court granted the motion for monetary sanctions following Plaintiff’s failure to appear at two court-ordered mental examinations and lack of appearance at the hearing.
On August 12, 2019, Markman filed a SAC.
On September 3, 2019, LaSota filed a Demurrer and Motion to Strike the SAC.
On September 13, 2019, the Court granted Plaintiff’s Motion for Reconsideration of Sanctions, vacating the $3,700 award.
On December 2, 2019, Markman filed an Opposition to the Demurrer and Motion to Strike the SAC.
On December 5, 2019, LaSota filed Replies to the Opposition to Demurrer and Motion to Strike.
A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)
“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)
Here, LaSota demurrers to the First, Second, Fourth, Fifth, and Sixth Causes of Action.
First Cause of Action – False Imprisonment and Fourth Cause of Action – Defamation
LaSota argues that the First and Fourth Causes of Action are barred by the statute of limitations. (Motion at pp. 5-6.) LaSota contends that the statute of limitations for both false imprisonment and defamation is one year, that Plaintiff was aware of the facts and circumstances of the 5150 hold and the alleged misrepresentations by LaSota on May 4, 2015 at the latest, and that Plaintiff did not file the instant case until May 18, 2016. (Motion at p. 5.)
An action for false imprisonment, as well as defamation (libel/slander) has a statute of limitations of one year. (Code Civ. Proc., § 340(c).) “It is settled that a cause of action for false imprisonment accrues on the person's release from incarceration.” (Torres v. Department of Corrections & Rehabilitation (2013) 217 Cal.App.4th 844, 848.)
The SAC alleges that Plaintiff was detained by CHP Officer Tolen, allegedly based on LaSota’s alleged false statements, on May 29, 2014 and subsequently placed on an involuntary 72-hour 5150 hold. (SAC ¶ 2.) The SAC alleges that LaSota “knowingly and deliberately provided false information to CHP officer Jeremy Tolen about the plaintiff starting on April 22, 2014 and continuing through May 29, 2014, when the plaintiff was detained by Officer Tolen.” (SAC ¶ 1.)
LaSota argues that, based on the discovery rule, the accrual for both claims began at the latest on May 4, 2015, the date of filing of the Federal Court Complaint. (Motion at p. 5.) LaSota cites to the SAC where Plaintiff indicates that the SAC explicitly provides that “On May 4, 2015, the plaintiff filed a 42 U.S.C. § 1983 Claim in Federal Court (CV15 3335) against LaSota that listed all of the misrepresentations that the plaintiff alleges were made by LaSota in the current case. The set of circumstances and facts in the Federal case are identical to the facts and circumstances in the current case. This federal claim was served on LaSota on August 21, 2015. (SAC ¶ 6.)
In Opposition, Plaintiff argues that the relevant statute of limitations is Welfare and Institutions Code section 5150, subdivision (e) and Code of Civil Procedure section 338, subdivision (a), which has a statute of limitations of three years. (Opposition at p. 2.) Plaintiff contends that section 5150(e) the applicable statute because the causes of action are based on giving a false statement. (Opposition at p. 2) Plaintiff however, provides no legal support for this argument.
The Court previously addressed the issue of statute of limitations in its September 1, 2016 Ruling on the Demurrer to the FAC of the other Defendants. The Court has previously determined that the applicable statute of limitations is Code of Civil Procedure section 340, subdivision (c). (9/1/16 Ruling p. 4.) The Court has previously determined that Plaintiff believed he was injured by the 5150 hold at the time that he was in the hospital on May 4, 2015, but that he waited two years (until May 18, 2016) to file the Complaint in this case. (9/1/16.) Even if Plaintiff did not discover the circumstances LaSota’s alleged misrepresentations until May 4, 2015, the statute of limitations bars both claims as of May 4, 2016, two weeks prior to the filing of the Complaint. Plaintiff has not provided any further facts or details to alter the Court’s determination on the statute of limitations from its prior ruling.
Accordingly, the First and Fourth Causes of Action for false imprisonment and defamation are barred by the statute of limitations. The Demurrer to the First and Fourth Causes of Action in the Second Amended Complaint is SUSTAINED without leave to amend.
Second Cause of Action – Fraud
The elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
LaSota argues that the Second Cause of Action for Fraud fails because the alleged misrepresentations in the SAC attributed to LaSota were made to persons other than the Plaintiff. (Motion at pp. 6-7.) Further, LaSota contends that the cause of cause of action is not pleaded with the sufficient heightened particularity required for fraud because the SAC does not set forth alleged misrepresentations made by LaSota to Plaintiff upon which Plaintiff relied to his detriment. (Motion at p. 7.)
In Opposition, Plaintiff argues that the SAC alleges that LaSota represented to Plaintiff that he was required to come for an in-person interview on May 29, 2014 to comply with the medical board probation requirements, that Plaintiff went to the meeting in reliance, and that he was damaged because he was detained in the parking lot by Officer Tolen. (Opposition at pp. 3-4.)
In Reply, LaSota argues that the Opposition does not dispute the fact that the alleged misrepresentations were made to persons other than Plaintiff. (Reply at p. 4.) LaSota highlights that the SAC alleges that “Rachel LaSota made more than 18 false representations to CHP officer Jeremy Tolen between April 22, 2014 and May 29, 2014. Officer Tolen then relied on those misrepresentations and communicated those misrepresentations to admission personnel at College Hospital of Cerritos[.]” (Reply at p. 4, citing SAC ¶ 9, italics in Reply.)
First, the Court agrees with LaSota that paragraph nine in the SAC, regarding the alleged 18 misrepresentations that LaSota made to Officer Tolen could not induce reliance by Plaintiff because they were not communicated to Plaintiff. Accordingly, Plaintiff may not prevail on the fraud cause of action against LaSota with respect to these allegations.
Second, the SAC further alleges that “LaSota also deliberately misrepresented directly to the plaintiff that he was require to come to her office for an in-person interview on May 29, 2014 in order to be in compliance with the medical license probation conditions that were in place at the time for the plaintiff.” (SAC ¶ 10.) The SAC alleges that because he suffered from a torn rotator cuff, he asked LaSota if the security guard at the meeting could search him without being touched, which LaSota denied. (SAC ¶ 11.) Plaintiff then asked if he instead “could come to the interview ‘naked’ to avoid further injury to his shoulder, LaSota deliberately misrepresented to the plaintiff that it was ‘OK’ for him to come to the May 29, 2014 interview ‘naked’. The plaintiff went to that interview in his underwear; LaSota refused to interview him” and then he was detained by Officer Tolen in the parking lot. (SAC ¶ 11.)
Even if the statement by LaSota agreeing that Plaintiff could attend the meeting naked were true, Plaintiff has failed to allege that LaSota allegedly made such statement with the intention to induce reliance by Plaintiff. The SAC alleges the LaSota made the alleged misrepresentation and that Plaintiff relied on it, but the SAC does not allege the third element.
“[I]ntent to induce him to alter his position to his injury or risk” is a statutory element of deceit. (Civ. Code, § 1709.) “What distinguishes actionable fraudulent deceit is the element of knowing intent to induce someone's action to his or her detriment with false representations of fact. Fraud is an intentional tort; it is the element of fraudulent intent, or intent to deceive, that distinguishes it from actionable negligent misrepresentation and from nonactionable innocent misrepresentation. It is the element of intent which makes fraud actionable, irrespective of any contractual or fiduciary duty one party might owe to the other.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 482, as modified on denial of reh'g (Jan. 6, 1999).)
In this case, the SAC alleges only a singular exchange, even a singular word (“OK”), that was allegedly said by LaSota and that which induced Plaintiff to arrive at a meeting at the Medical Board Probation Office building without any clothes on. (SAC ¶ 11.) This allegation is not sufficiently definite and substantive to state a cause of action for fraud that LaSota intended to induce Plaintiff to arrive at a meeting at her probation office naked. The SAC does not allege sufficient facts that indicate that LaSota actually wanted Plaintiff to arrive without clothes. The allegation of a single word of “OK” is sparse, lacking in context, and lacking in additional facts to corroborate the belief that this statement was, in fact, intended to result in Plaintiff’s action.
Accordingly, the Demurrer to the Second Cause of Action is SUSTAINED with leave to amend.
Fifth Cause of Action – Negligent, Intentional and Reckless Infliction of Emotional Distress
To prevail on a claim for intentional infliction of emotion distress (“IIED”), plaintiff must prove “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 896.) Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id.) Reckless infliction of emotional distress is not a separate legal theory and is encompassed by IIED.
Negligent infliction of emotional distress (“NIED”) is a tort in negligence, and the plaintiff must prove the elements of duty, breach of duty, causation, and damages. (Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009.)
Here, the SAC alleges that “many false statements written in the College Hospital record that can be attributed directly to LaSota were then presented as evidence by the Medical Board at an administrative hearing that resulted in the plaintiff having his license to practice medicine revoked.” (SAC ¶ 29.)
LaSota argues in her Demurrer that the SAC does not sufficiently plead the elements of either IIED or NIED. (Motion at p. 9.)
In Opposition, Plaintiff relies on allegations from sections in the SAC other than those pleaded for the Fifth Cause of Action. (Opposition at p. 5.) Plaintiff argues that the outrageous conduct needed for IIED is that “defendant deliberately misrepresented to CHP Officer Tolen that the plaintiff had sexually abused his daughter. This unquestionably goes beyond all bound of decency[.]” (Opposition at p. 5.) Plaintiff further argues that LaSota deliberately provided this false information in order to have Plaintiff detained in a 5150 hold, knowing that it would cause severe emotional distress. (Opposition at p. 5.)
However, the SAC does not plead such facts in a manner. The SAC does allege in various places that LaSota provided allegedly false information to Officer Tolen regarding Plaintiff sexually abusing his daughter (SAC ¶ 1, 9, 16, 21, 33), however, this allegation is not pleaded with regards to the IIED claim. In fact, the Fifth Cause of Action is the only cause of action to not contain reference to such facts. Instead, the Fifth Cause of Action only says that false statements in the College Hospital Records can be attributed to LaSota. (SAC ¶ 29.) The SAC also does not plead that the false statements were extreme or outrageous conduct or that that the records caused the 5150 hold. The SAC in this section alleges that the records resulted in Plaintiff having his medical license revoked, not that the records resulted in the 5150 hold. (SAC ¶ 29.)
Further, “[t]he law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 905.) Here, the SAC for this cause of action has not alleged any conduct by LaSota towards Plaintiff. The SAC alleges that LaSota contributed to the College Hospital medical records, and Plaintiff alleges in his Opposition that the relevant conduct was providing allegedly false information to Officer Tolen. However, neither of these contentions allege egregious conduct or reckless disregard towards Plaintiff. In the context of reckless disregard, “the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability.” (Id.) Here, the SAC does not allege that Plaintiff was present for either the conveying of alleged misinformation to Officer Tolen or drafting the medical records.
Plaintiff has not alleged that the conduct of LaSota (drafting records or conveying information to Officer Tolen) was directed primarily at him, was calculated to cause him severe emotional distress, or was done with knowledge of him presence and of a substantial certainty that they would suffer severe emotional injury.
Further, in his Opposition, Plaintiff does not present an argument for NIED, and the Court does not find that the SAC has pleaded any allegations regarding a duty or breach of duty. Accordingly, the SAC may not prevail as to the NIED claim.
Accordingly, the Demurrer to the Fifth Cause of Action is SUSTAINED with leave to amend.
Sixth Cause of Action – Willful Misconduct
Willful misconduct is an aggravated form of negligence, not a separate tort from negligence, differing in quality rather than degree from ordinary lack of care. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1140, as modified on denial of reh'g (Mar. 16, 2017), review denied (June 14, 2017).)
In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril. (Id.)
LaSota argues that willful misconduct is not a viable cause of action under California law. (Motion at pp. 9-10.)
The Court disagrees with LaSota that willful misconduct is not a cause of action. However, the Court finds that the SAC does not plead to the elements of willful misconduct. The SAC does not allege a duty of LaSota’s or breach of that duty, to satisfy the negligence component. The SAC further conflates misrepresentation with willful misconduct. A claim for willful misconduct must allege “a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.” (Doe v. United States Youth Soccer Assn., Inc., supra, 8 Cal.App.5th at 1140.)
Accordingly, the Demurrer to the Sixth Cause of Action is SUSTAINED with leave to amend.
Because the Demurrer has been sustained (with or without leave to amend) as to the sections sought to be stricken, LaSota’s concurrently filed Motion to Strike is effectively moot, and is therefore DENIED.
DATED: December 12, 2019
Hon. Robert S. Draper
Judge of the Superior Court