This case was last updated from Los Angeles County Superior Courts on 11/21/2021 at 21:06:46 (UTC).

JOHN DOE VS FACEY MEDICAL GROUP, A CALIFORNIA CORPORATION, ET AL.

Case Summary

On 11/07/2019 JOHN DOE filed a Personal Injury - Other Personal Injury lawsuit against FACEY MEDICAL GROUP, A CALIFORNIA CORPORATION. This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI, THOMAS D. LONG, AUDRA MORI, CHARLES C. LEE and STEPHEN P. PFAHLER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0434

  • Filing Date:

    11/07/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JON R. TAKASUGI

THOMAS D. LONG

AUDRA MORI

CHARLES C. LEE

STEPHEN P. PFAHLER

 

Party Details

Plaintiff

DOE JOHN

Defendants

DAVID TERESA

MARTER ROSCOE MD

MAST DAVE

CASTILLO GREGORY MD

PROVIDENCE HEALTH AND SERVICES A CALIFORNIA CORPORATION

DAVYDOV ERIK M.D.

FACEY MEDICAL GROUP A CALIFORNIA CORPORATION

CORWIN JIM

Attorney/Law Firm Details

Plaintiff Attorneys

BARNETT CASE C.

WEISS GERALDINE

Defendant Attorneys

LAW YUK

COONEY JENNIFER ANNE

COTA LAURA LYNN

 

Court Documents

Declaration - DECLARATION STATEMENT REGARDING (I) PROCEEDINGS BEFORE REFEREE PURSUANT TO CRC RULE 3.931(B), ACCESS TO DOCUMENTS AND EXHIBITS SUBMITTED TO THE REFEREE PURSUANT TO CRC RULE 2.400(D)

9/3/2021: Declaration - DECLARATION STATEMENT REGARDING (I) PROCEEDINGS BEFORE REFEREE PURSUANT TO CRC RULE 3.931(B), ACCESS TO DOCUMENTS AND EXHIBITS SUBMITTED TO THE REFEREE PURSUANT TO CRC RULE 2.400(D)

Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROPOSED ORDER APPOINTING DISCOVERY REFEREE

8/30/2021: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROPOSED ORDER APPOINTING DISCOVERY REFEREE

Notice of Ruling

8/26/2021: Notice of Ruling

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: APPOINTMENT OF REFEREE FOR ALL PARTIES)

8/17/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: APPOINTMENT OF REFEREE FOR ALL PARTIES)

Opposition - OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO

7/30/2021: Opposition - OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO

Separate Statement

7/30/2021: Separate Statement

Notice - NOTICE OF DEFERMENT OF FILING PLAINTIFF'S REPLY BRIEFS RELATED TO MOTIONS TO COMPEL TAKEN OFF CALENDAR

8/2/2021: Notice - NOTICE OF DEFERMENT OF FILING PLAINTIFF'S REPLY BRIEFS RELATED TO MOTIONS TO COMPEL TAKEN OFF CALENDAR

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES)

8/2/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES) OF 08/02/2021

8/2/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES) OF 08/02/2021

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES)

8/2/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES)

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

8/6/2021: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Opposition - OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET THREE

7/27/2021: Opposition - OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET THREE

Separate Statement

7/27/2021: Separate Statement

Opposition - OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO

7/29/2021: Opposition - OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO

Separate Statement

7/29/2021: Separate Statement

Request for Judicial Notice

7/26/2021: Request for Judicial Notice

Motion to Compel - MOTION TO COMPEL EVEN FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, FROM DEFENDANT FACEY

7/26/2021: Motion to Compel - MOTION TO COMPEL EVEN FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, FROM DEFENDANT FACEY

Separate Statement

7/26/2021: Separate Statement

126 More Documents Available

 

Docket Entries

  • 06/06/2022
  • Hearing06/06/2022 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Jury Trial

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  • 05/26/2022
  • Hearing05/26/2022 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Final Status Conference

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  • 10/26/2021
  • Docketat 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 09/03/2021
  • DocketDeclaration (Statement Regarding (i) Proceedings Before Referee Pursuant to CRC Rule 3.931(b), Access to Documents and Exhibits Submitted to the Referee Pursuant to CRC Rule 2.400(d)); Filed by JOHN DOE (Plaintiff)

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  • 08/30/2021
  • DocketStipulation and Order (Stipulation and Proposed Order Appointing Discovery Referee); Filed by FACEY MEDICAL GROUP, a California Corporation (Defendant); Gregory Castillo, MD (Defendant); Roscoe Marter, MD (Defendant) et al.

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  • 08/26/2021
  • DocketNotice of Ruling; Filed by JOHN DOE (Plaintiff)

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  • 08/17/2021
  • Docketat 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Order to Show Cause Re: (Appointment of Referee for All Parties) - Held

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  • 08/17/2021
  • Docketat 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Advanced and Vacated

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  • 08/17/2021
  • DocketMinute Order ( (Order to Show Cause Re: Appointment of Referee for All Parties)); Filed by Clerk

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  • 08/16/2021
  • Docketat 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Advanced and Vacated

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156 More Docket Entries
  • 01/14/2020
  • DocketOpposition (Opposition to Motion to Strike); Filed by JOHN DOE (Plaintiff)

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  • 12/30/2019
  • DocketDemand for Jury Trial; Filed by FACEY MEDICAL GROUP, a California Corporation (Defendant)

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  • 12/30/2019
  • DocketMotion to Strike (not initial pleading); Filed by FACEY MEDICAL GROUP, a California Corporation (Defendant)

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  • 12/30/2019
  • DocketDemurrer - with Motion to Strike (CCP 430.10); Filed by FACEY MEDICAL GROUP, a California Corporation (Defendant)

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  • 12/04/2019
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 12/04/2019
  • DocketPI General Order; Filed by Clerk

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  • 11/07/2019
  • DocketComplaint; Filed by JOHN DOE (Plaintiff)

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  • 11/07/2019
  • DocketSummons (on Complaint); Filed by JOHN DOE (Plaintiff)

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  • 11/07/2019
  • DocketCivil Case Cover Sheet; Filed by JOHN DOE (Plaintiff)

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  • 11/07/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

b"

Case Number: 19STCV40434 Hearing Date: August 2, 2021 Dept: F49

Dept.\r\nF-49

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Calendar\r\n# 3

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Date:\r\n8-2-21 c/f 7-6-21

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Case\r\n#19STCV40434

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FURTHER DISCOVERY

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MOVING\r\nPARTY: Plaintiff, John Doe

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RESPONDING\r\nPARTY: Defendant, Gregory Castillo

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RELIEF\r\nREQUESTED

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Motion\r\nto Compel Further Responses to Special Interrogatories (set two)

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SUMMARY\r\nOF ACTION

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On\r\nMay 28, 2019, Plaintiff John Doe attended a yearly physical examination with\r\nDefendant Gregory Castillo. Plaintiff alleges that Dr. Castillo first began\r\n“repeatedly and inappropriately rubbing” plaintiff’s arms and legs, next\r\nproceeded to grab Plaintiff’s penis and testicles without “medical\r\njustification.” Dr. Castillo then began to digitally penetrate Plaintiff’s\r\nanus. During the course of this conduct, Dr. Castillo allegedly rubbed his own\r\ngenitals on Plaintiff’s body for purposes of sexual gratification.

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Notwithstanding\r\nthe end of the conduct in the examination room, Dr. Castillo then removed a\r\nwart from the finger of Plaintiff in another room, and again rubbed his\r\ngenitals on Plaintiff and again inappropriately touched him on the arms and\r\nlegs. Dr. Castillo later told Plaintiff that the penal examination was\r\nrequired, due to an alleged lesion, which was not documented in any medical\r\nnotes.

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On\r\nNovember 7, 2019, Plaintiff filed his complaint for Sexual Battery, Sexual\r\nOrientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair\r\nBusiness Practices, Intentional Infliction of Emotional Distress, and Negligent\r\nHiring Retention Supervision and Training.

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The\r\naction was transferred to Department 49 on January 28, 2020.

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On\r\nMay 4, 2020, Plaintiff dismissed Providence Health & Services, David Mast,\r\nJim Corwin and Teresa David. On June 19, 2020, the parties submitted a\r\nstipulated protective order for the exchange of discovery. On August 4, 2020,\r\nPlaintiff filed a first amended complaint for Sexual Battery, Sexual\r\nOrientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair\r\nBusiness Practices, Intentional Infliction of Emotional Distress, and Negligent\r\nHiring Retention Supervision and Training. On August 5, 2020, Plaintiff filed a\r\nsecond dismissal of defendants Providence Health & Services, David Mast,\r\nJim Corwin and Teresa David.

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On\r\nNovember 3, 2020, the court sustained the demurrer Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the first\r\namended complaint, and denied the motion to strike the use of pseudonyms. On\r\nDecember 3, 2020, Plaintiff filed the second amended complaint for Sexual\r\nBattery, Sexual Orientation Related Violence, Sexual Harassment, Constructive\r\nFraud, Unfair Business Practices, Intentional Infliction of Emotional Distress,\r\nand Negligent Hiring Retention Supervision and Training, and Negligence.[1]

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On\r\nMarch 9, 2021, the court sustained the demurrer of Gregory Castillo, M.D.\r\nwithout leave to amend as to the fourth cause of action for constructive fraud,\r\nand fifth cause of action for unfair business practices. The court overruled\r\nthe remainder of the demurrer. The court also granted the motion to strike the\r\nclaim for punitive damages without prejudice, and granted the motion to strike\r\nthe claim for treble damages with prejudice. On March 10, 2021, the court\r\ndenied the motion for leave to add a claim for punitive damages against the\r\nmedical defendants. On March 15, 2021, Castillo answered the second amended\r\ncomplaint.

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On\r\nJune 25, 2021, the court overruled the demurrer of Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to\r\nthe second amended complaint, and granted the motion to strike the claim for\r\npunitive damages. Defendants answered the second amended complaint on June 30,\r\n2021.

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RULING: Granted Subject\r\nto Privilege Limitations and Compliance with Notice Requirements

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Plaintiff\r\nmoves to compel further responses to Special Interrogatories (set two), numbers\r\n25-27, 31-35 and 41-43. Plaintiff summarizes the items as follows: 25-27, prior\r\npatient complaints about Dr. Castillo; 31-35, specified contact with the\r\nCalifornia Medical Board regarding Dr. Castillo; 41 & 43, suspension of\r\nemployment duties against Dr. Castillo and subsequent resignation; and, 42,\r\nexamination protocol justifying the penal examination.

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Defendants\r\nin opposition first object to the citation of Code of Civil Procedure section\r\n2030.290 in support of the motion. Under Section 2030.290, Dr. Castillo stands\r\nby the responses and objections.

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Defendants\r\nreiterate the third party patient privacy objections, as well as the bar into\r\nreport made to the California Medical Board. Finally, Defendants object to the\r\nburden of tracking down each and every assistant to Dr Castillo within the last\r\nthree years, and contend said search will not reasonably lead to admissible\r\nevidence.

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Plaintiff\r\nin reply challenges the sufficiency of the opposition and separate statement.\r\nPlaintiff next asserts that all objections were waived, and no basis for relief\r\nexists. Plaintiff then addresses the factual basis for numbers 25-27, 31-35,\r\nand 42.

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Plaintiff served Special Interrogatories\r\n(set two). Dr. Castillo served responses on January 26, 2021. Supplemental\r\nresponses were served on February 10, 2021, as to numbers 35 and 42. The motion\r\nwas filed on March 10, 2021. The court, its discretion, considers the timely\r\nfiled motion under the correct rule—Code of Civil Procedure section 2030.300. (Mannino\r\nv. Superior Court (1983) 142 Cal.App.3d 776, 778.)

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The\r\nvague, ambiguous, and overbroad objections lack merit. Defendants may not\r\nintentionally misconstrue a work for obstreperous purposes. “Indeed, where the question is somewhat\r\nambiguous, but the nature of the information sought is apparent, the proper\r\nsolution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 superseded by\r\nstatute on unrelated ground as stated in Guzman\r\nv. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) Defendant\r\nunderstands the nature of the dispute. The form of question objections\r\ndemonstrate an intent to evade discovery rather than a genuine debate.

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The relevance objections lack merit. “But ‘[f]or discovery purposes, information is relevant if\r\nit “might reasonably assist a party in evaluating the case, preparing for\r\ntrial, or facilitating settlement….” [Citation.]\r\nAdmissibility is not the test and information, unless privileged, is\r\ndiscoverable if it might reasonably lead to admissible evidence. [Citation.]\r\nThese rules are applied liberally in favor of discovery [citation], and\r\n(contrary to popular belief), fishing expeditions are permissible in some\r\ncases. [Citation.]’ (Citations.)”\r\n(Cruz v. Superior Court (2004)\r\n121 Cal.App.4th 646, 653–654.) Plaintiff seeks information regarding both\r\nalleged prior conduct of Dr. Castillo and Defendants knowledge of said alleged\r\nconduct. The relevance objection lacks merit.

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Defendant\r\nmakes no showing that the request is overbroad. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) Defendant indicates\r\nan agreement for a three year time frame. This is not an overly broad time\r\nframe.

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The\r\nburdensome objection lacks merit. Objecting parties must file evidence\r\ndetailing the amount of work involved, in order to support objections based\r\nupon burden and oppression. (West Pico Furniture Co. v.\r\nSup. Ct. (1961) 56 Cal.2d 407, 417.) “[S]ome burden is inherent in\r\nall demands for discovery. The objection of burden is valid only when that\r\nburden is demonstrated to result in injustice.” (Id. at p. 418.) Defendants’\r\ncontention that the requested search into other medical assistants is\r\n“functionally impossible to compile” relies on the claim that Defendant\r\nmaintain no records or computer system regarding matching “physician\r\nassistants” with Dr. Castillo.

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Privilege\r\nObjections

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Plaintiff\r\nseeks specific discovery into patient complaints. Plaintiff relies on a prior\r\nresponse to Special Interrogatory Number 5, whereby Defendants acknowledged\r\ncomplaints made to the California Medical Board regarding Dr. Castillo.\r\nPlaintiff contends information presented to the committee is NOT privileged, as\r\nit is not generated by the review board itself. Defendants counter that records\r\nsubmitted to a peer review committee are in and of themselves protected.

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Evidence\r\nCode section 1157 provides in relevant part:

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(a) Neither the proceedings\r\nnor the records of organized committees of medical … or of a peer review body,\r\nas defined in Section 805 of the Business and Professions Code … … shall be\r\nsubject to discovery.

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(b) Except as hereinafter\r\nprovided, a person in attendance at a meeting of any of the committees described\r\nin subdivision (a) shall not be required to testify as to what transpired at\r\nthat meeting.

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(c) The prohibition relating\r\nto discovery or testimony does not apply to the statements made by a person in\r\nattendance at a meeting of any of the committees described in subdivision (a)\r\nif that person is a party to an action or proceeding the subject matter of which\r\nwas reviewed at that meeting …

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(d) The prohibitions in this section\r\ndo not apply to medical …committees that exceed 10 percent of the membership of\r\nthe society, nor to any of those committees if a person serves upon the\r\ncommittee when his or her own conduct or practice is being reviewed.

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Business and Professions Code\r\nsection 805 requires any acting medical director to report certain disciplinary\r\naction to the California Medical Board within 15 days. (Bus. & Prof. Code,\r\n§ 805.) Reasons for submission of a report can include, “sexual misconduct with\r\none or more patients during a court of treatment or examination.” (Bus. &\r\nProf. Code, § 805.01, subd. (b)(4).) Upon submission, the operative agency[2], in this case the\r\nCalifornia Medical Board, becomes entitled to inspect any statements of\r\ncharges, documents, exhibits, opinions, findings, conclusions and medical\r\nrecords. (Bus. & Prof. Code, § 805.01, subd. (c).) The report itself is\r\nconfidential and not subject to discovery. (Id., subd. (d).)

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Case\r\nlaw on the subject extends the privilege to peer submitted information tendered\r\nto the California Medical Board and potentially relied upon in any generated\r\nreport. The public policy is clear: the balance of interests weighs in favor of\r\nallowing physicians to submit appraisals on their peers with candor rather than\r\ninhibiting objectivity caused by potential external examination from litigation\r\ndiscovery. (Alexander v. Superior Court (1993)\r\n5 Cal.4th 1218, 1225-1227 (distinguished Hassan\r\nMercy American River Hospital (2003) 31 Cal.4th 709 for other reasons);\r\nFox v. Kramer (2000) 22 Cal.4th\r\n531, 542; Cedars-Sinai Medical Center v.\r\nSuperior Court (1993) 12 Cal.App.4th 579, 587.)

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Plaintiff\r\nrelies on a distinction requiring a finding that any and all patient submitted\r\ncomplaints constitute pre-investigative documents, thereby excluding said\r\ncomplaints from the section 1157 privilege. An early case examining the later\r\ndeveloped distinctions stated:

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“The medical staff immunity described\r\nin section 1157 extends to, first, the proceedings, and second, the\r\nrecords of the described staff committees. It does not embrace the files of the\r\nhospital administration (as distinguished from staff). The trial court should\r\nhave inquired into the existence of a hospital administration file concerning\r\nthe doctor and, if such a file existed, should have permitted its inspection,\r\nexcluding any portions which reflected the proceedings of staff committees\r\nconforming to the specifications of the immunity statute.”

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(Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 628.)

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Later\r\ncourts clarified the standard:

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Information developed or obtained\r\nby hospital administrators or others which does not derive from an\r\ninvestigation into the quality of care or the evaluation thereof by a medical\r\nstaff committee, and which does not disclose the investigative and evaluative\r\nactivities of such a committee, is not rendered immune from discovery\r\nunder section 1157 merely because it is later placed in the possession of\r\na medical staff committee or made known to committee members; and this may be\r\nso even if the information in question may be relevant in a general way to the\r\ninvestigative and evaluative functions of the committee. Just as “'a party\r\ncannot [under the attorney-client privilege] conceal a fact merely by revealing\r\nit to his lawyer… a hospital cannot render its files immune from discovery\r\nsimply by disclosing them to a medical staff committee. Hospital administrators\r\ncannot, in other words, evade their concurrent duty to insure the adequacy of\r\nmedical care provided patients at their facility-the duty articulated\r\nin Elam-simply by purporting to have delegated that entire responsibility\r\nto medical staff committees. The responsibilities of hospital administrators\r\npertaining to the quality of in-hospital care will, of course, usually be\r\nrelated to the similar duties of medical staff committees. Nonetheless, the\r\nresponsibilities of hospital administrators are independent of those resting\r\nwith medical staff committees.”\r\n\r\n

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(Santa Rosa Memorial Hospital v. Superior\r\nCourt (1985) 174 Cal.App.3d 711, 724; see Willits v. Superior Court (1993) 20 Cal.App.4th 90, 103 [“we\r\nfully endorse the distinction that Matchett,\r\nSanta Rosa Memorial Hospital, and\r\nother cases have consistently drawn between administrative functions/records and\r\ncommittee functions/records”]; see Arnett v. Dal Cielo (1996) 14 Cal.4th\r\n4, 24 [Discovery in section 1157 “is to be given its well-established meaning\r\nof a formal exchange”].)

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Defendants\r\nconcede that the existence of the complaints are not privileged, but emphasize\r\nthat the content relied upon by the examining peers becomes part of the\r\nprivileged material report. The lack of privilege on the complaints is clear as\r\nsaid reports are not generated by any committee, and instead are created/submitted\r\nby patients with no responsibilities for reviewing the competency of a fellow\r\npeer. While section 805.01, subdivision (b)(4) clearly renders the subject\r\nmatter of the investigation confidential, the triggering mechanism begins as an\r\nadministrative inquiry into independent responsibilities and duties of a\r\nphysician accused of improper conduct beyond the scope of the provision of\r\nmedical care.

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The\r\ncourt therefore finds the actual content of the reports, as a primary source of\r\nnotice of potentially alleged misconduct, discoverable. The court also finds\r\nthat the objections to the existence of a request for information or other form\r\nof contact from the California Board (numbers 37-37) is also not privileged in\r\nthat no content is part of the request. Nevertheless, discovery into the\r\nsubject items will not constitute an alternative means for examination into the\r\nfindings of any peer committee. As Plaintiff concedes in reply, number 39 seeks\r\ncommunications with the California Medical Board, which clearly infringes on\r\nthe privilege. The court therefore defers to the parties to determine the\r\ncontent threshold of information constituting a pre-reporting item, versus a\r\npeer submitted item.

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As\r\nfor any identified individuals however, the requested identifying information\r\nalso raises privacy concerns. Defendant\r\nraises valid objections over third party individual information, including both\r\nformer employees and patients. The objecting party has the burden to\r\nsupport privacy objections. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) “Privacy interests\r\ngenerally fall into one of two categories: (1) an interest in making intimate\r\npersonal decisions or conducting personal activities without observation,\r\nintrusion, or interference (‘autonomy privacy’); and (2) an interest in\r\nprecluding the dissemination or misuse of sensitive and confidential\r\ninformation (‘informational privacy’).” (Ortiz\r\nv. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1301.)

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“A\r\nthreatened invasion of privacy can, to be sure, be extremely grave, and to the\r\nextent it is, to conclude in a given case that only a compelling countervailing\r\ninterest and an absence of alternatives will suffice to justify the intrusion\r\nmay be right. (Citation.) But the flaw in the Court of Appeal's legal analysis,\r\nand in the cases it relied upon, is the de facto starting assumption that such\r\nan egregious invasion is involved in every request for discovery of private\r\ninformation. Courts must instead place the burden on the party asserting a\r\nprivacy interest to establish its extent and the seriousness of the\r\nprospective invasion, and against that showing must weigh the countervailing\r\ninterests the opposing party identifies, as Hill requires.\r\nWhat suffices to justify an invasion will … vary according to the context. Only\r\nobvious invasions of interests fundamental to personal autonomy must be\r\nsupported by a compelling interest. (Citation.) To the extent prior\r\ncases require a party seeking discovery of private information to always\r\nestablish a compelling interest or compelling need, without regard to the other\r\nconsiderations articulated in Hill v. National Collegiate Athletic\r\nAssn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633,\r\nthey are disapproved.”

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(Williams v. Superior Court (2017) 3\r\nCal.5th 531, 557.)

\r\n\r\n

\r\n\r\n

Identification of a person and provision of contact information\r\nclearly constitutes privileged information. The parties cannot waive such\r\nrights of third parties. The court finds Plaintiff presents a compelling\r\ninterest for the disclosure of any individual former employees to the extent\r\nthey were aware of prior incidents involving Dr. Castillo. The mere\r\nidentification of former employees will not violate their privacy privilege. However,\r\nany efforts to obtain contact information of said employees may require\r\nconsideration of a provision allowing the employee to decline contact. Any\r\npotential individuals should be given the opportunity to either consent or\r\nobject, before discovery responses revealing their private information. (Pioneer Electronics (USA), Inc. v. Sup. Ct. (2007)\r\n40 Cal.4th 360, 374-375; Belaire-West\r\nLandscape, Inc. v. Sup. Ct. (2007) 149 Cal.App.4th 554, 561-562.)

\r\n\r\n

\r\n\r\n

On\r\nthe individual patients, Defendant correctly points out that the California\r\nConfidentiality of Medical Information Act applies. Because it is a more\r\nspecific section, a greater level of protection applies. (Pettus v. Cole (1996) 49 Cal.App.4th 402, 438.)

\r\n\r\n

\r\n\r\n

(a) A provider of health care,\r\nhealth care service plan, or contractor shall not disclose medical information\r\nregarding a patient of the provider of health care or an enrollee or subscriber\r\nof a health care service plan without first obtaining an authorization, except\r\nas provided in subdivision (b) or (c).

\r\n\r\n

…\r\n(1)\r\nBy a court pursuant to an order of that court.

\r\n\r\n

(b)(2) By a board, commission, or\r\nadministrative agency for purposes of adjudication pursuant to its lawful\r\nauthority.

\r\n\r\n

\r\n\r\n

(Civ.\r\nCode, § 56.10.)

\r\n\r\n

\r\n\r\n

There\r\nis no evidence of any waiver of the privilege based on the submission of\r\ninformation to the California Medical Board. The information provided to the\r\nCalifornia Medical Board therefore remains privileged. The court can still\r\norder the disclosure of information. (See Sutter\r\nHealth v. Superior Court (2014) 227 Cal.App.4th 1546, 1555–1556.) The\r\ncourt finds production of the information supports a compelling interest, and\r\ntherefore allows for production subject to proper notice and limitations. Any\r\npatient approved disclosures should only address reports of involving alleged\r\nincidents with Dr. Castillo, and not involve any other conditions of the\r\npatient. The parties may agree to production of redacted records without any\r\nidentifying information, which would presumably provide information regarding\r\nnotice, while also reducing the complexity and burden of the request. If\r\nPlaintiff continues to press for contact information, the parties are ordered\r\nto agree upon a system. Any and all disclosures must comply with requirements\r\nof Civil Code section 56.11.

\r\n\r\n

\r\n\r\n

The\r\ncourt therefore orders Defendant to provide complete and straightforward\r\nresponses in compliance with Code of Civil Procedure section 2030.220.\r\nDefendants are ordered to provide patient generated information leading to the\r\nreferral of any and all incidents to the California Medical Board, and any\r\nacknowledge or deny any contact with the Board. Defendants are not required to\r\ndisclose any privileged information generated as a result of peer review. Any\r\nunderlying incident claims are limited to Dr. Castillo for allegedly\r\ninappropriate conduct and not reflective on the provision of medical care, such\r\nas an alleged misdiagnosis or improper specialist referral. Again, the parties\r\nare instructed to meet and confer as to the proper qualifying content. Any\r\npatient or former employee information must comply with the notice requirements\r\naddressed, but Defendants may still provide information regarding the existence\r\nof said claims, including the date, whether the reporting person was an\r\nemployee or patient, without disclosing any personal identifying information.

\r\n\r\n

\r\n\r\n

The\r\ncourt docket shows five additional motions to compel further responses on\r\nAugust 9, 11, 12, 16 and 17, 2021.[3] The\r\nsubject items come after the court already extensively addressed two prior\r\ndiscovery disputes for further responses. The volume and complexity of the\r\nprior and upcoming motions leads the court to set an OSC re: Appointment of\r\nReferee for all parties on August 17, 2021.

\r\n\r\n

\r\n\r\n

Absent agreement of all parties, courts may not\r\nmake blanket referrals, except “in the unusual case where a majority of\r\nfactors” favor reference, including: “(1)\r\nthere are multiple issues to be resolved; (2) there are multiple motions to be\r\nheard simultaneously; (3) the present motion is only one in a continuum of\r\nmany; (4) the number of documents to be reviewed (especially in issues based on\r\nassertions of privilege) make the inquiry inordinately time-consuming.” (Taggeres v.\r\nSuperior Court (1998) 62 Cal. App. 4th 94, 105. “Where one or more of the above factors\r\nunduly impact the court’s time and/or limited resources, the court is clearly\r\nwithin its discretion to make an appropriate reference.” (Id. at p. 106.) “When\r\nthe court in any pending action determines that it is necessary for the court\r\nto appoint a referee to hear and determine any and all discovery motions and\r\ndisputes relevant to discovery in the action and to report findings and make a\r\nrecommendation thereon.” (Code Civ. Proc., §\r\n639, subd. (a)(5).) Appointment requires a court finding of “exceptional\r\ncircumstances.” (Code Civ. Proc., § 639,\r\nsubd. (d)(2).)

\r\n\r\n

\r\n\r\n

If\r\nthe parties wish to stipulate in advance of the hearing, the court invites such\r\nan agreement. Given the current June 6, 2022 trial date, and potential\r\nmotion(s) for summary judgment, the court strongly encourages the parties base\r\nany potential selection criteria for referee selection based on both\r\navailability and ability to expeditiously complete the work in order to\r\npreserve any applicable dates. The parties may also base selection criteria on\r\ncosts of the respective referee. Allocation of costs may also be worked out\r\namong the parties, or the court will decide, if applicable.

\r\n\r\n

\r\n\r\n

If the parties refuse to stipulate, the parties may submit any\r\nopposition to the appointment no later than nine (9) court days before the\r\nhearing date—due date of August 4, 2021. The motions set for 9, 11, 12, 16 and\r\n17, 2021 are placed off-calendar pending the OSC and subject to either\r\npresentation before the referee or reset on the court calendar.

\r\n\r\n

\r\n\r\n

Plaintiff\r\nis ordered to give notice.

\r\n\r\n

\r\n\r\n

\r\n\r\n
\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1]The eighth cause of action for\r\nnegligence was added without leave of court.

\r\n\r\n
\r\n\r\n
\r\n\r\n

[2] “Agency” means\r\nthe relevant state licensing agency having regulatory jurisdiction over the\r\nlicentiates listed in paragraph (2). (Bus. & Prof. Code, § 805, subd.\r\n(a)(3).)

\r\n\r\n

\r\n\r\n
\r\n\r\n
\r\n\r\n

[3]Includes the July 26, 2021 motion\r\nto compel “even further responses” to special interrogatories (set two) for\r\nAugust 17, 2021.

\r\n\r\n
\r\n\r\n
"

Case Number: 19STCV40434    Hearing Date: April 12, 2021    Dept: F49

Dept. F-49

Calendar # 5

Date: 4-12-21

Case #19STCV40434

FURTHER DISCOVERY

MOVING PARTY: Plaintiff, John Doe

RESPONDING PARTY: Defendants, Facey Medical Group, et al.

RELIEF REQUESTED

Motion to Compel Further Responses to Special Interrogatories (set two)

SUMMARY OF ACTION

On May 28, 2019, Plaintiff John Doe attended a yearly physical examination with Defendant Gregory Castillo. Plaintiff alleges that Dr. Castillo first began “repeatedly and inappropriately rubbing” plaintiff’s arms and legs, next proceeded to grab Plaintiff’s penis and testicles without “medical justification.” Dr. Castillo then began to digitally penetrate Plaintiff’s anus. During the course of this conduct, Dr. Castillo allegedly rubbed his own genitals on Plaintiff’s body for purposes of sexual gratification.

Notwithstanding the end of the conduct in the examination room, Dr. Castillo then removed a wart from the finger of Plaintiff in another room, and again rubbed his genitals on Plaintiff and again inappropriately touched him on the arms and legs. Dr. Castillo later told Plaintiff that the penal examination was required, due to an alleged lesion, which was not documented in any medical notes.

On November 7, 2019, Plaintiff filed his complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training.

The action was transferred to Department 49 on January 28, 2020.

On May 4, 2020, Plaintiff dismissed Providence Health & Services, David Mast, Jim Corwin and Teresa David. On June 19, 2020, the parties submitted a stipulated protective order for the exchange of discovery. On August 4, 2020, Plaintiff filed a first amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training. On August 5, 2020, Plaintiff filed a second dismissal of defendants Providence Health & Services, David Mast, Jim Corwin and Teresa David.

On November 3, 2020, the court sustained the demurrer Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the first amended complaint, and denied the motion to strike the use of pseudonyms. On December 3, 2020, Plaintiff filed the second amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training, and Negligence.[1]

On March 10, 2021, the court sustained the demurrer of Gregory Castillo, M.D. without leave to amend as to the fourth cause of action for constructive fraud, and fifth cause of action for unfair business practices. The court overruled the remainder of the demurrer. On March 10, 2021, the court denied the motion for leave to add a claim for punitive damages against the medical defendants. On March 15, 2021, Castillo answered the second amended complaint.

RULING: Granted Subject to Privilege Limitations and Compliance with Notice Requirements

Plaintiff moves to compel further responses to Special Interrogatories (set two), numbers 28-30, 36-39, 41, and 49. Plaintiff summarizes the items as follows: 28-30, prior patient complaints about Dr. Castillo; 33-35, physician assistant identities working with Dr. Castillo; 36-39 and 41, specified contact with the California Medical Board regarding Dr. Castillo; and, 49, suspension of Dr. Castillo.

Defendants in opposition first object to the consolidation of discovery items against two defendants in a single motion, as the objections and arguments of the respective defendants differ. Defendants reiterate the third party patient privacy objections, as well as the bar into report made to the California Medical Board. Finally, Defendants object to the burden of tracking down each and every assistant to Dr Castillo within the last three years, and contend said search will not reasonably lead to admissible evidence.

Plaintiff in reply to the procedural challenge argues that the combined motion constitutes an efficiency of judicial resources. Plaintiff next addresses the privilege arguments under Evidence code 1157. Plaintiff agrees to change the phrasing of the search from physician assistant to medical assistant. Plaintiff concedes that item 39 may be subject to protections under the medical reporting privilege.

Plaintiff served separate sets of Special Interrogatories (set two) on both Facey Medical Group and [Declaration of G. Weiss, Ex. 2] and Dr. Marter [Id., Ex. 3]. Supplemental responses were served by both defendants on December 1, 2020 [Id., Exs. 10-11.] The motion was timely filed on December 28, 2020. While Plaintiff indisputably consolidated the subject items into a single motion, the court finds no lack of ability for Defendants to substantively address the issues presented. The court therefore declines to deny the motion on grounds of the procedural objections.

The vague, ambiguous, and premature objections lack merit. Defendants may not intentionally misconstrue a work for obstreperous purposes. “Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne superseded by statute on unrelated ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) Defendant understands the nature of the dispute. The form of question objections demonstrate an intent to evade discovery rather than a genuine debate.

The relevance objections lack merit. “But ‘[f]or discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement….” [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]’ (Citations.)” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653–654.) Plaintiff seeks information regarding both alleged prior conduct of Dr. Castillo and Defendants knowledge of said alleged conduct. The relevance objection lacks merit.

Defendant makes no showing that the request is overbroad. (Obregon v. Superior Court

The burdensome objection lacks merit. Objecting parties must file evidence detailing the amount of work involved, in order to support objections based upon burden and oppression. (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 417.) “[S]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id. at p. 418.) Defendants’ contention that the requested search into other medical assistants is “functionally impossible to compile” relies on the claim that Defendant maintain no records or computer system regarding matching “physician assistants” with Dr. Castillo.

The court appreciates the distinction between a physician assistant and a medical assistant. Nevertheless, it’s not clear whether Defendants also actually contend that NO records exist regarding whether a medical assistant was actually present during any part of a patient examination involving Dr. Castillo. The hyperbolic claim of “hundreds,” if not “thousands” of person hours to find said information lacks actual support, and Defendants failed to exercise any such right to file a preemptive protective order.[2]

As addressed above, this is a three-year time frame. Dr. Castillo presumably worked in one office. The court also assumes that Defendants kept records of all medical assistants actually present in their office for purposes of tracking absences, payroll or staffing levels, even if it the records were handwritten. The claimed inability to cross-reference any employee information by times both Dr. Castillo and a medical assistant were concurrently present via a computer system at any time will not be disputed, but the court will not allow this claim to serve as an impediment to the gathering of said information either. Barring an extraordinarily high rate of employee turnover during the three year window, the manual gathering of the information is not burdensome. If the information is not available through the computer system, then the information should be readily identifiable by manual reference to Dr. Castillo’s patient records.

Privilege Objections

The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734.) The transmission of information between third parties and counsel also maintain attorney client privilege protection, if the communication is in further interest of the client. (Evid. Code, § 952.) “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th at p. 733.)

The work product privilege applies where the sought after documents contains Defendant’s “impressions, conclusions, opinions or legal research or theories,” the information is protected by the work product doctrine. (Code Civ. Proc., § 2018.030(c).) “An objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts”].) (Coito v. Superior Court (2012) 54 Cal.4th 480, 502.) Notes, statements, and impressions of the case are protected by the work product doctrine. A list of potential witnesses is not work product. (Coito v. Superior Court (2012) 54 Cal.4th 480, 495; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217–218.)

It’s not clear how the receipt of potential patient complaints regarding allegedly improper conduct by a practicing physician in any way in any way systematically involves legal review and/or an anticipation of litigation by the complaining patient in cooperation with Defendants. Plaintiff is NOT seeking any responsive communications or actions taken by Defendants or representing counsel. The complaints themselves are notification documents, and not subject to attorney client or work product privileges. As addressed below, potential referral to the California Medical Board is the responsibility of a medical director, and presumably may occur without the necessity of counsel. The objections lack merit.

Plaintiff seeks specific discovery into patient complaints. Plaintiff relies on a prior response to Special Interrogatory Number 5, whereby Defendants acknowledged complaints made to the California Medical Board regarding Dr. Castillo. Plaintiff contends information presented to the committee is NOT privileged, as it is not generated by the review board itself. Defendants counter that records submitted to a peer review committee are in and of themselves protected.

Evidence Code section 1157 provides in relevant part:

(a) Neither the proceedings nor the records of organized committees of medical … or of a peer review body, as defined in Section 805 of the Business and Professions Code … … shall be subject to discovery.

(b) Except as hereinafter provided, a person in attendance at a meeting of any of the committees described in subdivision (a) shall not be required to testify as to what transpired at that meeting.

(c) The prohibition relating to discovery or testimony does not apply to the statements made by a person in attendance at a meeting of any of the committees described in subdivision (a) if that person is a party to an action or proceeding the subject matter of which was reviewed at that meeting …

(d) The prohibitions in this section do not apply to medical …committees that exceed 10 percent of the membership of the society, nor to any of those committees if a person serves upon the committee when his or her own conduct or practice is being reviewed.

Business and Professions Code section 805 requires any acting medical director to report certain disciplinary action to the California Medical Board within 15 days. (Bus. & Prof. Code, § 805.) Reasons for submission of a report can include, “sexual misconduct with one or more patients during a court of treatment or examination.” (Bus. & Prof. Code, § 805.01, subd. (b)(4).) Upon submission, the operative agency[3], in this case the California Medical Board, becomes entitled to inspect any statements of charges, documents, exhibits, opinions, findings, conclusions and medical records. (Bus. & Prof. Code, § 805.01, subd. (c).) The report itself is confidential and not subject to discovery. (Id., subd. (d).)

Case law on the subject extends the privilege to peer submitted information tendered to the California Medical Board and potentially relied upon in any generated report. The public policy is clear: the balance of interests weighs in favor of allowing physicians to submit appraisals on their peers with candor rather than inhibiting objectivity caused by potential external examination from litigation discovery. (Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1225-1227 (distinguished Hassan Mercy American River Hospital (2003) 31 Cal.4th 709 for other reasons); Fox v. Kramer (2000) 22 Cal.4th 531, 542; Cedars-Sinai Medical Center v. Superior Court (1993) 12 Cal.App.4th 579, 587.)

Plaintiff relies on a distinction requiring a finding that any and all patient submitted complaints constitute pre-investigative documents, thereby excluding said complaints from the section 1157 privilege. An early case examining the later developed distinctions stated:

“The medical staff immunity described in section 1157 extends to, first, the proceedings, and second, the records of the described staff committees. It does not embrace the files of the hospital administration (as distinguished from staff). The trial court should have inquired into the existence of a hospital administration file concerning the doctor and, if such a file existed, should have permitted its inspection, excluding any portions which reflected the proceedings of staff committees conforming to the specifications of the immunity statute.”

(Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 628.)

Later courts clarified the standard:

Information developed or obtained by hospital administrators or others which does not derive from an investigation into the quality of care or the evaluation thereof by a medical staff committee, and which does not disclose the investigative and evaluative activities of such a committee, is not rendered immune from discovery under section 1157 merely because it is later placed in the possession of a medical staff committee or made known to committee members; and this may be so even if the information in question may be relevant in a general way to the investigative and evaluative functions of the committee. Just as “'a party cannot [under the attorney-client privilege] conceal a fact merely by revealing it to his lawyer… a hospital cannot render its files immune from discovery simply by disclosing them to a medical staff committee. Hospital administrators cannot, in other words, evade their concurrent duty to insure the adequacy of medical care provided patients at their facility-the duty articulated in Elam-simply by purporting to have delegated that entire responsibility to medical staff committees. The responsibilities of hospital administrators pertaining to the quality of in-hospital care will, of course, usually be related to the similar duties of medical staff committees. Nonetheless, the responsibilities of hospital administrators are independent of those resting with medical staff committees.”

(Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal.App.3d 711, 724; see Willits v. Superior Court (1993) 20 Cal.App.4th 90, 103 [“we fully endorse the distinction that Matchett, Santa Rosa Memorial Hospital, and other cases have consistently drawn between administrative functions/records and committee functions/records”]; see Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 24 [Discovery in section 1157 “is to be given its well-established meaning of a formal exchange”].)

Defendants concede that the existence of the complaints are not privileged, but emphasize that the content relied upon by the examining peers becomes part of the privileged material report. The lack of privilege on the complaints is clear as said reports are not generated by any committee, and instead are created/submitted by patients with no responsibilities for reviewing the competency of a fellow peer. While section 805.01, subdivision (b)(4) clearly renders the subject matter of the investigation confidential, the triggering mechanism begins as an administrative inquiry into independent responsibilities and duties of a physician accused of improper conduct beyond the scope of the provision of medical care.

The court therefore finds the actual content of the reports, as a primary source of notice of potentially alleged misconduct, discoverable. The court also finds that the objections to the existence of a request for information or other form of contact from the California Board (numbers 37-37) is also not privileged in that no content is part of the request. Nevertheless, discovery into the subject items will not constitute an alternative means for examination into the findings of any peer committee. As Plaintiff concedes in reply, number 39 seeks communications with the California Medical Board, which clearly infringes on the privilege. The court therefore defers to the parties to determine the content threshold of information constituting a pre-reporting item, versus a peer submitted item.

As for any identified individuals however, the requested identifying information also raises privacy concerns. The corporate and third party privacy objections require an additional level of scrutiny.

A corporate defendant is not an individual entitled to invoke the constitutional right to privacy. (SCC Acquisitions, Inc. v. Superior Court Ameri-Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288.) A corporation exercises no reasonable expectation of privacy, but the nature of the interest sought to be protected will determine the question whether under given facts the corporation per se Current employees hold no privacy privileges, as it part of the corporate privacy objection. The objection on the identification of current employees is therefore overruled.[4]

Nevertheless, Defendant raises valid objections over third party individual information, including both former employees and patients. The objecting party has the burden to support privacy objections. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) “Privacy interests generally fall into one of two categories: (1) an interest in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’); and (2) an interest in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’).” (Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1301.)

“A threatened invasion of privacy can, to be sure, be extremely grave, and to the extent it is, to conclude in a given case that only a compelling countervailing interest and an absence of alternatives will suffice to justify the intrusion may be right. (Citation.) But the flaw in the Court of Appeal's legal analysis, and in the cases it relied upon, is the de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information. Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires. What suffices to justify an invasion will … vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Citation.) To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn.supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.”

(Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

Identification of a person and provision of contact information clearly constitutes privileged information. The parties cannot waive such rights of third parties. The court finds Plaintiff presents a compelling interest for the disclosure of any individual former employees to the extent they were aware of prior incidents involving Dr. Castillo. The mere identification of former employees will not violate their privacy privilege. However, any efforts to obtain contact information of said employees may require consideration of a provision allowing the employee to decline contact. Any potential individuals should be given the opportunity to either consent or object, before discovery responses revealing their private information. (Pioneer Electronics (USA), Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 374-375; Belaire-West Landscape, Inc. v. Sup. Ct. (2007) 149 Cal.App.4th 554, 561-562.)

On the individual patients, Defendant correctly points out that the California Confidentiality of Medical Information Act applies. Because it is a more specific section, a greater level of protection applies. (Pettus v. Cole (1996) 49 Cal.App.4th 402, 438.)

(a) A provider of health care, health care service plan, or contractor shall not disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c).

(1) By a court pursuant to an order of that court.

(b)(2) By a board, commission, or administrative agency for purposes of adjudication pursuant to its lawful authority.

(Civ. Code, § 56.10.)

There is no evidence of any waiver of the privilege based on the submission of information to the California Medical Board. The information provided to the California Medical Board therefore remains privileged. The court can still order the disclosure of information. (See Sutter Health v. Superior Court (2014) 227 Cal.App.4th 1546, 1555–1556.) The court finds production of the information supports a compelling interest, and therefore allows for production subject to proper notice and limitations. Any patient approved disclosures should only address reports of involving alleged incidents with Dr. Castillo, and not involve any other conditions of the patient. The parties may agree to production of redacted records without any identifying information, which would presumably provide information regarding notice, while also reducing the complexity and burden of the request. If Plaintiff continues to press for contact information, the parties are ordered to agree upon a system. Any and all disclosures must comply with requirements of Civil Code section 56.11.

The court therefore orders Defendant to provide complete, straightforward, and verified responses in compliance with Code of Civil Procedure section 2030.220 within 30 days from the date of this order. Defendants are ordered to provide patient generated information leading to the referral of any and all incidents to the California Medical Board, and any acknowledge or deny any contact with the Board. Defendants are not required to disclose any privileged information generated as a result of peer review. Any underlying incident claims are limited to Dr. Castillo for allegedly inappropriate conduct and not reflective on the provision of medical care, such as an alleged misdiagnosis or improper specialist referral. Again, the parties are instructed to meet and confer as to the proper qualifying content. Any patient or former employee information must comply with the notice requirements addressed, but Defendants may still provide information regarding the existence of said claims, including the date, whether the reporting person was an employee or patient, without disclosing any personal identifying information.

A demurrer from Facey Medical Group, et al. set for June 25, 2021, and second motion to compel further responses set for July 6, 2021.

Plaintiff to give notice.


[1]The eighth cause of action for negligence was added without leave of court.

[2]The court notes that the motion also lacks any supporting declaration from any actual office staff member regarding data management and personnel operations. [See Opposition, 12:9-15.]

[3] “Agency” means the relevant state licensing agency having regulatory jurisdiction over the licentiates listed in paragraph (2). (Bus. & Prof. Code, § 805, subd. (a)(3).)

[4]Defendants already acknowledge the identification of medical assistant Ashley Aldrich.

Case Number: 19STCV40434    Hearing Date: March 10, 2021    Dept: F49

Dept. F-49

Calendar # 7

Date: 3-10-21

Case #19STCV40434

LEAVE TO AMEND

MOVING PARTY: Plaintiff, John Doe

RESPONDING PARTY: Defendants, Facey Medical Group, et al.

RELIEF REQUESTED

Motion for Leave to Amend the Second Amended Complaint in Order to Add Allegations for Punitive Damages

SUMMARY OF ACTION

On May 28, 2019, Plaintiff John Doe attended a yearly physical examination with Defendant Gregory Castillo. Plaintiff alleges that Dr. Castillo first began “repeatedly and inappropriately rubbing” plaintiff’s arms and legs, next proceeded to grab Plaintiff’s penis and testicles without “medical justification.” Dr. Castillo then began to digitally penetrate Plaintiff’s anus. During the course of this conduct, Dr. Castillo allegedly rubbed his own genitals on Plaintiff’s body for purposes of sexual gratification.

Notwithstanding the end of the conduct in the examination room, Dr. Castillo then removed a wart from the finger of Plaintiff in another room, and again rubbed his genitals on Plaintiff and again inappropriately touched him on the arms and legs. Dr. Castillo later told Plaintiff that the penal examination was required, due to an alleged lesion, which was not documented in any medical notes.

On November 7, 2019, Plaintiff filed his complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training.

The action was transferred to Department 49 on January 28, 2020.

On May 4, 2020, Plaintiff dismissed Providence Health & Services, David Mast, Jim Corwin and Teresa David. On June 19, 2020, the parties submitted a stipulated protective order for the exchange of discovery. On August 4, 2020, Plaintiff filed a first amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training. On August 5, 2020, Plaintiff filed a second dismissal of defendants Providence Health & Services, David Mast, Jim Corwin and Teresa David.

On November 3, 2020, the court sustained the demurrer Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the first amended complaint, and denied the motion to strike the use of pseudonyms. On December 3, 2020, Plaintiff filed the second amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training, and Negligence.[1]

RULING: Denied without Prejudice.

Plaintiff moves for leave to add punitive damages claims against Defendants Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. Defendants challenge the motion as deficient and premature. Defendants contend the pleading to which the motion is based was the subject of the November 3, 2020 demurrer.

Defendants also note that the operative second amended complaint already contains a punitive damages claim, which will be part of the subject matter in Defendants’ demurrer to the second amended complaint currently on calendar for June 25, 2021. The instant motion was filed on October 23, 2020 before the prior demurrer. The court also acknowledges that the punitive damages allegations are subject to a motion to strike, but considers the merits of the arguments presented in the motion.

Defendants also contend that Plaintiff fails to meet the burden to establish a substantial claim for a probability of success. Specifically, Defendants contend that Plaintiff lacks evidence that any of the alleged conduct by Dr. Castillo occurred within the course and scope of his physician practice for employer defendants/business partners.

On a threshold level, the court finds that Plaintiff must obtain leave of court. Even though the subject action alleges sexual based tort causes of action, because the claim arises within the context of the provision of medical care, Plaintiff must obtain leave from the court. (Code Civ. Proc., §425.13; Central Pathology Service Medical Clinic, Inc. v. Superior Court Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 751.)

Plaintiff only needs to provide “‘a sufficient prima facie showing of facts to sustain a favorable decision if the evidence submitted by the [plaintiff] is credited.’ (Citation.) The trial court is not required to make any factual determination or to become involved in any weighing process beyond that necessarily involved in deciding whether a prima facie case for punitive damages exists. Once the court concludes that such a case can be presented at trial it must permit the proposed amended pleading to be filed. If it concludes that no such case exists, then it properly rejects the proposed pleading amendment. In making this judgment, the trial court's consideration of the defendant's opposing affidavits does not permit a weighing of them against the plaintiff's supporting evidence, but only a determination that they do or do not, as a matter of law, defeat that evidence. (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 539.) Nevertheless, Plaintiff must still meet the higher standard of malice oppression and fraud by clear and convincing evidence. (Id. at pp. 539-540.)

Plaintiff relies on both allegations of the first amended complaint and Plaintiff’s own responses to Special Interrogatories (set one) numbers 5-6 describing the alleged incident with Dr. Castillo. Nothing in the argument addresses the punitive standard against employers.

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

(Civ. Code, § 3294, subd. (b).)

The self-serving allegations and discovery responses insufficiently meet the burden for punitive damages against an employer. The court therefore finds Plaintiff fails to make the required showing for the recovery of punitive damages. In addition to the procedural defects addressed by Defendants, the court also finds the motion lacking sufficient evidentiary support. The motion for leave is also denied without prejudice .

Motion to compel further responses on April 12, 2021, and a demurrer from Facey Medical Group, et al. on June 25, 2021, respectively.

Plaintiff to give notice.


[1]The eighth cause of action for negligence was added without leave of court.

Case Number: 19STCV40434    Hearing Date: March 9, 2021    Dept: F49

Dept. F-49

Calendar # 7

Date: 3-9-21

Case #19STCV40434

DEMURRER

MOVING PARTY: Defendants, Gregory Castillo, M.D.

RESPONDING PARTY: Plaintiff, John Doe

RELIEF REQUESTED

Demurrer to the Second Amended Complaint

· 1st Cause of Action: Sexual Battery

· 2nd Cause of Action: Sexual Orientation Related Violence

· 3rd Cause of Action: Sexual Harassment

· 4th Cause of Action: Constructive Fraud

· 5th Cause of Action: Unfair Business Practices

· 6th Cause of Action: Intentional Infliction of Emotional Distress

· 8th Cause of Action: Negligence

Motion to Strike

· Allegations in support of, and claim for, punitive damages

· Treble Damages

· $2,500 Civil Penalty under Business & Professions Code section 17200

SUMMARY OF ACTION

On May 28, 2019, Plaintiff John Doe attended a yearly physical examination with Defendant Gregory Castillo. Plaintiff alleges that Dr. Castillo first began “repeatedly and inappropriately rubbing” plaintiff’s arms and legs, next proceeded to grab Plaintiff’s penis and testicles without “medical justification.” Dr. Castillo then began to digitally penetrate Plaintiff’s anus. During the course of this conduct, Dr. Castillo allegedly rubbed his own genitals on Plaintiff’s body for purposes of sexual gratification.

Notwithstanding the end of the conduct in the examination room, Dr. Castillo then removed a wart from the finger of Plaintiff in another room, and again rubbed his genitals on Plaintiff and again inappropriately touched him on the arms and legs. Dr. Castillo later told Plaintiff that the penal examination was required, due to an alleged lesion, which was not documented in any medical notes.

On November 7, 2019, Plaintiff filed his complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training.

The action was transferred to Department 49 on January 28, 2020.

On May 4, 2020, Plaintiff dismissed Providence Health & Services, David Mast, Jim Corwin and Teresa David. On June 19, 2020, the parties submitted a stipulated protective order for the exchange of discovery. On August 4, 2020, Plaintiff filed a first amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training. On August 5, 2020, Plaintiff filed a second dismissal of defendants Providence Health & Services, David Mast, Jim Corwin and Teresa David.

On November 3, 2020, the court sustained the demurrer Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. to the first amended complaint, and denied the motion to strike the use of pseudonyms. On December 3, 2020, Plaintiff filed the second amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training, and Negligence.[1]

RULING

Demurrer: Overruled in Part/Sustained without Leave to Amend in Part

Defendant Gregory Castillo, M.D. challenges multiple causes of action on grounds of uncertainty. Plaintiff counters that all causes of action are sufficiently pled. Defendant in reply reiterates the lack of sufficient factual specificity in the fraud and unlawful business practices causes of action, as well as the other causes of action.

“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 California, Inc.

1st Cause of Action, Sexual Battery: Overruled.

2nd Cause of Action, Sexual Orientation Related Violence: Overruled.

3rd Cause of Action, Sexual Harassment: Overruled.

6th Cause of Action, Intentional Infliction of Emotional Distress: Overruled.

8th Cause of Action, Negligence: Overruled.

Defendant offers a two-paragraph argument on the subject causes of action without any address of the elements of a single element of any of the five challenged causes of action. Plaintiff counters with specific address of each and every cause of action including citation to the law and supporting allegations.

The court finds the subject causes of action properly pled, and therefore overrules the demurrer.

4th Cause of Action, Constructive Fraud: Sustained without Leave to Amend.

Plaintiff alleges constructive fraud as a result of alleged misrepresentations regarding the provision of well being for the care of Plaintiff, instead of the commitment of physical harm.

1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or,

2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.

Civ. Code, § 1573

Constructive fraud ‘is a unique species of fraud applicable only to a fiduciary or confidential relationship.’ (Citation.) ‘Constructive fraud “arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.’ [Citation.] Actual reliance and causation of injury must be shown. [Citation.]” … “In its generic sense, constructive fraud comprises all acts, omissions and concealments involving a breach of legal or equitable duty, trust, or confidence, and resulting in damages to another. [Citations.] Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be so treated—that is, in which such conduct is a constructive or quasi fraud, having all the actual consequences and all the legal effects of actual fraud.” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131 (internal quotations omitted.)

Plaintiff relies on allegations that the advertisements from Defendants Facey Medical Group, et al. regarding the competence of their practicing physicians constitutes a representation against non-consensual physical harm from an examining physician. The luring of a patient seeking medical care thereby leading to a situation involving a physician engaging in alleged conduct outside the scope of the represented examination finds no support for a fraud claim in any form. Conduct occurring outside the proper scope of the examination in no way causatively links the practice with a knowing fraudulent representation or concealment regarding the alleged sexual predilections of a practicing member or lack of said penchants. In other words, a mere advertisement regarding the quality of the medical practice in no way encapsulates a representation or guarantee against unknown conduct beyond the proper scope of practice for their practicing physicians. A medical provider is already bound to adhere to certain guidelines, and the law addresses claims involving alleged conduct beyond the appropriate standard of care—both negligent and intentional. Allowing Plaintiff to characterize the business of the clinic as a place to lure in unsuspecting patients for sexual molestation by physicians would render any and all claims occurring outside the scope of duties as a fraud, thereby expanding fraud claims to a scope well beyond its current purpose and form. The declines to make this finding.

The court finds Plaintiff cannot amend the complaint to add additional facts supporting the subject cause of the action. The demurrer is sustained without leave to amend.

5th Cause of Action, Unfair Business Practices: Sustained without Leave to Amend.

Like the fraud cause of action, Plaintiff alleges a claim based on allegedly deceptive representations to the public regarding the “criminal” conduct occurring on the premises.

“The UCL does not proscribe specific acts, but broadly prohibits ‘any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising....’” [¶] “‘A private plaintiff must make a twofold showing: he or she must demonstrate injury in fact and a loss of money or property caused by unfair competition.’ (Citation.)” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1359.) Fact specific pleading is not required in order to allege an unfair business practice. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46–47.

An “unlawful” practice “means any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made.… ‘Unfair’ simply means any practice whose harm to the victim outweighs its benefits. (Citation.) ‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public ‘“are likely to be deceived.”’” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 838–839.)

As addressed above, the complaint fails to allege any improperly deceptive conduct. Additionally, the complaint lacks any claim for any lost funds—a prerequisite to any claim. (Durell v. Sharp Healthcare, supra, 183 Cal.App.4th at p. 1359.)

The court finds Plaintiff cannot amend the complaint to add additional facts supporting the subject cause of the action. The demurrer is sustained without leave to amend.

Motion to Strike

Punitive Damages: Moot in Part/Granted in Part.

Defendant moves to strike the punitive damages claim on grounds that Plaintiff alleged the claim for punitive damages against a medical professional without obtaining prior leave of court. (Code Civ. Proc., § 425.13.) Plaintiff counters that the sexual nature of the complaint exempts it from coverage under 425.13. Defendant in reply emphasizes that section 425.13 applies in cases where the alleged injury occurs during the “directly related” provision of medical care. Section 425.13 in no way depends on a distinction between intentional versus negligent theories of recocvery.

The motion to strike is granted. Plaintiff failed to obtain leave of court. (Central Pathology Service Medical Clinic, Inc. v. Superior Court Plaintiff’s argument regarding an exemption fails to sufficiently distinguish conduct separate and distinct from the course of care provided by Dr. Castillo in his capacity as a licensed examining physician in a professional setting. (Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 751.)

Treble Damages: Granted with Prejudice.

Plaintiff agrees withdraw the claim for treble damages.

Civil Penalties: Moot (see demurrer)

The demurrer is overruled on the first, second, third, sixth and eighth causes of action, and sustained without leave to amend on the fourth and fifth causes of action. The motion to strike is moot in part and granted in part on punitive damages, granted with prejudice on treble damages, and moot on the civil penalties provision.

A motion for leave to seek punitive damages against Facey Medical Group, et al. is on calendar for March 10, 2021. Motion to compel further responses on April 12, 2021, and a demurrer from Facey Medical Group, et al. on June 25, 2021, respectively.

Defendant Castillo is ordered to answer the second amended complaint within 10 days.

Moving party to give notice.


[1]The eighth cause of action for negligence was added without leave of court.

Case Number: 19STCV40434    Hearing Date: November 03, 2020    Dept: F49

Dept. F-49

Calendar # 5

Date: 11-3-20

Case #19STCV40434

DEMURRER

MOVING PARTY: Defendants, Facey Medical Group, et al.

RESPONDING PARTY: Plaintiff, John Doe

RELIEF REQUESTED

Demurrer to the First Amended Complaint

· 1st Cause of Action: Sexual Battery

· 2nd Cause of Action: Sexual Orientation Related Violence

· 3rd Cause of Action: Sexual Harassment

· 4th Cause of Action: Constructive Fraud

· 5th Cause of Action: Unfair Business Practices

· 6th Cause of Action: Intentional Infliction of Emotional Distress

Motion to Strike

· Use of a Pseudonym Name/John Doe

· Allegations in support of, and claim for, punitive damages

SUMMARY OF ACTION

On May 28, 2019, Plaintiff John Doe attended a yearly physical examination with Defendant Gregory Castillo. Plaintiff alleges that Dr. Castillo first began “repeatedly and inappropriately rubbing” plaintiff’s arms and legs, next proceeded to grab Plaintiff’s penis and testicles without “medical justification.” Dr. Castillo then began to digitally penetrate Plaintiff’s anus. During the course of this conduct, Dr. Castillo allegedly rubbed his own genitals on Plaintiff’s body for purposes of sexual gratification.

Notwithstanding the end of the conduct in the examination room, Dr. Castillo then removed a wart from the finger of Plaintiff in another room, and again rubbed his genitals on Plaintiff and again inappropriately touched him on the arms and legs. Dr. Castillo later told Plaintiff that the penal examination was required, due to an alleged lesion, which was not documented in any medical notes.

On November 7, 2019, Plaintiff filed his complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training.

The action was transferred to Department 49 on January 28, 2020.

On May 4, 2020, Plaintiff dismissed Providence Health & Services, David Mast, Jim Corwin and Teresa David. On June 19, 2020, the parties submitted a stipulated protective order for the exchange of discovery. On August 4, 2020, Plaintiff filed a first amended complaint for Sexual Battery, Sexual Orientation Related Violence, Sexual Harassment, Constructive Fraud, Unfair Business Practices, Intentional Infliction of Emotional Distress, and Negligent Hiring Retention Supervision and Training. On August 5, 2020, Plaintiff filed a second dismissal of defendants Providence Health & Services, David Mast, Jim Corwin and Teresa David.

RULING

Demurrer: Sustained with Leave to Amend.

Defendants Facey Medical Group, Roscoe Marter, M.D., and Erik Davydov, M.D. submit the subject demurrer to the first amended complaint on grounds that Plaintiff fails to allege a basis of vicarious liability against moving defendants based on the alleged conduct of Defendant Gregory Castillo, M.D.[1] Doctors Marter and Davydov are not named as alleged participants in any of the alleged conduct described during the purported examination, and only identified as directors, agent and/or leadership of the subject Facey medical office. [First Amend. Comp., ¶¶ 8, 22.]

The individual defendants further contend that the complaint lacks sufficient allegations of alter ego liability simply based on general alter ego claims and the lack of any alleged shareholder corporate relationship by the individual doctors.

Plaintiff in opposition argues in favor of vicarious liability based on allegations of a “casual nexus” between the alleged conduct and scope of work. Specifically, Plaintiff contends that an annual physical examination can involve genital health and sexually transmitted disease screening. Furthermore, a chaperone should have been present to discourage any such alleged behavior by Dr. Castillo.

Defendants in reply emphasize the lack of conduct within the course and scope of the medical practice.

On the alter ego arguments, Plaintiff counters that a shareholder relationship is not required, but can be shown by other factors establishing a “unity of interest.” Defendant in reply challenges the sufficiency of the allegations.

Alter Ego

There is no litmus test to determine when the corporate veil will be pierced; rather the result will depend on the circumstances of each particular case. There are, nevertheless, two general requirements: ‘(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow (internal citation omitted).’” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300.) The first amended complaint insufficiently articulates facts supporting this threshold requirement. [First Amend. Comp., ¶ 8.]

Vicarious Liability

Vicarious liability requires allegations that the tortfeasor was acting within the course and scope of employment duties. (Civ. Code, § 2338; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297 [“While the employee thus need not have intended to further the employer's interests, the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work”].)

The operative complaint lacks sufficient allegations that Gregory Castillo acted within the course and scope of employment as a physician. Plaintiff in opposition raises arguments regarding the course and scope of conduct includes a genital examination, but the plain language of the operative complaint only briefly references such conduct in a pleading otherwise replete with allegations of “inappropriate” touching without “medical justification” by Dr. Castillo for the purpose of obtaining personal sexual gratification. [First Amend. Comp., ¶¶ 13, 15-16, 18, 37.] Furthermore, the arguments in opposition regarding whether an assistant/chaperone should be present is neither pled in the operative complaint or addressed by any binding standard of law in the state of California.[2]

Plaintiff alternatively alleges liability through a claim of employer ratification. “A principal is responsible for no other wrongs committed by his agent … unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service.” (Civ. Code, § 2339.) Nothing in the operative complaint specifically alleges that moving defendants were actually aware of the conduct Dr. Castillo with other patients, including Plaintiff, or even other employees, and yet still allowed Dr. Castillo to examine patients in private. (C.R. v. Tenet Healthcare Corp. [3]

The demurrer is therefore sustained with 30 days leave to amend.

Motion to Strike

Punitive Damages: Moot

Pseudonym: Denied without Prejudice

The parties both agree that the use of the use of pseudonyms derives from the protection of privacy interests. A court addressed the standard followed in federal courts:

“[F]ederal courts ‘have permitted plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm [citations]; (2) when anonymity is necessary “to preserve privacy in a matter of sensitive and highly personal nature,” [citations]; and (3) when the anonymous party is “compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution,” [Citation.] The court went on to hold that ‘a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.’”

(Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 767.)

The sexual nature of the assault constitutes a “sensitive and highly personal” claim. The motion to strike only considers the nature of the claims as pled in the operative pleading, and cannot consider the quality of the allegations. This is not a motion to seal. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-1218.) Even if the court considered the public policy argument presented, moving defendants fail to present a basis for an “overriding public interest” in the name of Plaintiff. Arguments regarding how other courts in other districts characterize sexual assaults and privacy rights are neither binding nor persuasive in the instant action.

The motion to strike is denied without prejudice.

A demurrer and motion to strike by Dr. Castillo, and motion for leave to add punitive damages on calendar for March 9 and 10, 2021, respectively.


[1]The notice of demurrer identifies the first six causes of action in the first amended complaint, while the points and authorities only identify the first four causes of action. Given the vicarious liability arguments permeate all six causes of action, the court considers the impact to all noticed causes of action.

[2]The court acknowledges Plaintiff’s citation of United States District Court authority in support of the opposition. The court declines to consider such authority as it is not binding, and current binding California case law sufficient addresses the issue of vicarious liability for conduct arising from sexual assault and battery.

[3]Note, the negligent hiring, retention, and supervision cause of action against moving defendants is not challenged in the instant demurrer.

Case Number: 19STCV40434    Hearing Date: January 28, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

JOHN DOE,

FACEY MEDICAL GROUP, ET AL.,

Case No.:  19STCV40434

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

After review of the court file, the Court makes the following order:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented. 

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE NORTH VALLEY DISTRICT, JUDGE STEPHEN PFAHLER presiding in DEPT. F49 of the Chatsworth Courthouse, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.  

The Order is signed and filed this date, and incorporated herein by reference.  Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Upon receipt of this notice, counsel for Plaintiff shall give notice to all parties of record.

DATED: January 28, 2020 ___________________________

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