Jane Doe vs W Kiernan O’Callaghan, MD et al
Jane Doe vs W Kiernan O’Callaghan, MD et al
Case Number
23CV00415
Case Type
Hearing Date / Time
Fri, 01/26/2024 - 10:00
Nature of Proceedings
CMC; Demurrer
Tentative Ruling
For reasons more fully articulated below (1) the statute of limitations demurrers to the premises liability, battery, and gender violence causes of action will be overruled; (2) the general demurrer to the Ralph Act cause of action will be overruled; and (3) the general demurrer to the gender violence cause of action, based upon the failure to allege the claim with requisite specificity, is overruled as to defendant O’Callaghan, and sustained with respect to defendants Sansum Clinic and Sansum Santa Barbara Medical Clinic, Inc., with leave to amend on or before February 16, 2024.
BACKGROUND: Plaintiff Jane Doe (Doe) filed the current action on January 31, 2023. Her original complaint named as defendants W. Kiernan O’Callaghan, M.D. (O’Callaghan), Sansum Clinic, and Sansum Santa Barbara Medical Clinic, Inc. It alleged causes of action for (1) negligence, (2) premises liability, (3) sexual battery in violation of Civil Code section 1708.5, (4) battery, (5) sexual harassment in violation of Civil Code section 51.9, (6) intentional infliction of emotional distress, (7) violation of the Ralph Act (Civ. Code, § 51.7), (8) gender violence, in violation of Civil Code section 52.4, and (9) fraud, intentional misrepresentation, concealment, and false promise. Each of the causes of action was alleged against all three defendants. The complaint.
On August 11, 2023, the Court sustained in part and overruled in part the defendants’ demurrer to the complaint. It overruled the demurrers to the fifth cause of action for sexual harassment in violation of Civil Code section 51.7, sixth cause of action for intentional infliction of emotional distress, and ninth cause of action for fraud. It sustained defendants statute of limitations demurrers to the second cause of action for premises liability, fourth cause of action for medical battery, and eight cause of action for gender violence in violation of Civil Coded section 52.4, and sustained the general demurrer to the seventh cause of action for violation of the Ralph Act, all with leave to amend.
Plaintiff filed her First Amended Complaint (FAC) on September 1, 2023. The FAC alleged the same nine causes of action, except that the ninth cause of action was limited to a claim for concealment. The FAC alleged that on November 11, 2018, plaintiff Doe awoke with a sore throat in Hanford, California. After driving to Santa Barbara for the purposes of attending a November 12 appointment, Doe and her niece on November 11 went to the Pesetas Urgent Care. She was escorted to a private, windowless patient room, and given half a gown. She removed the clothing on her upper body, donned the gown with the open back, and sat on the examination table. About 10 minutes later, defendant O’Callaghan entered the room and closed the door. After Doe advised him she had a sore throat with unbearable pain, Dr. O’Callaghan instructed her to get up and walk away from him and then toward him. He had plaintiff touch her nose with one finger and then the other. He walked behind her and had her bend forward from the waist to touch her toes approximately five times. He directed her to sit back on the examination table. He swabbed her throat, and confirmed she had strep throat.
The FAC alleges further that defendant O’Callaghan then “demanded” that plaintiff lay down on the examination table. While standing to her left and leaning over her body, and without warning, he put his bare right hand under her gown and aggressively and forcefully touched, squeezed, rubbed and cupped her left breast for approximately 30 seconds, to the point that his actions caused pain in plaintiff’s breast and caused her to cry out in pain. Defendant asked plaintiff is she was sexually active and used contraceptives. He then leaned further over her body and aggressively and forcefully touched, squeezed, rubbed, and cupped her right breast for about 25-30 seconds, again to the point of causing her pain in her breast. While doing this, defendant was also fondling and groping plaintiff’s sexual organs, and he started breathing harder. By leaning over plaintiff as she laid on the examination table, defendant prevented her from getting off the table. Defendant then proceeded to examine plaintiff’s upper abdomen, asking whether it hurt there as he palpated it. She answered “no” each time. He then lifted her leggings with his left hand, and slid his right hand down her pants. He pushed hard against the lymph nodes along her groin, causing her pain. Using his bare hands on her bare genitals, he fondled her sexual organ, slowly touching the upper part of her vagina on the right and left sides and then touching her right and left lower labia, breathing heavily as he did so. He then removed his hands from underneath her leggings. He directed her to sit on the examination table, prescribed an antibiotic for the strep throat, and left the room.
The FAC alleges that defendant continually yelled and barked his instructions to plaintiff, intimidating her and making her afraid. It alleges that there is no medical reason or purpose for a physician performing an examination for strep throat to touch, squeeze, cup, or rub a female patient’s breast or vagina. Defendant O’Callaghan used his position of authority and took advantage of the coercive environment over plaintiff, who was frozen in place, unable to move or leave, and was trapped by his intimidating behavior and body position.
Plaintiff reported the incident to the Santa Barbara Police Department on November 12, 2018, and later learned that at least two other patients had complained that defendant O’Callaghan had acted in a sexual nature in a manner that amounted to violence and sexual violence, including on September 25, 2020 when he groped a female patient’s breasts during a back examination, and at some time approximately seven years prior to that incident when a patient complained to Sansum Clinic after defendant exposed her breasts during an examination. In spite of at least one prior complaint of inappropriate sexual misconduct, Sansum concealed the prior complaints from plaintiff. The SBPD found that defendant had violated Penal Code section 243.4(a) [any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and the touching is against the will of the person touched and is for the purpose of sexual arousal, gratification, or abuse, is guilty of sexual battery]. Plaintiff alleges that he also violated Section 243.4(e) [any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery]. Penal Code section 243.4 defines “intimate part” as “the sexual organ, anus, groan, or buttocks of any person, and the breast of a female.”
The complaint then contains multiple paragraphs of general allegations on physician sexual misconduct, its impact on a patient’s well-being, among other topics. She alleges she was subjected to repeated acts of a sexual nature, by force, threat of force, or coercion of a medical doctor during an examination. Defendant took advantage of the coercive environment and plaintiff’s incapacity to give genuine consent, exploiting her for his own personal gratification. She trusted him to conduct a legitimate medical examination, but he instead touched her breasts on two separate instances, and her vagina on at least four separate instances. It was not reasonably expected, was not consensual, was not for diagnostic, therapeutic or treatment purposes, or for any legitimate medical purpose.
The FAC then makes numerous allegations regarding the Sansum defendants’ responsibility for the harms she sustained, their concealment of the prior instance of defendant’s sexual misconduct from plaintiff, their failure to sufficiently vet defendant, their failure to ensure a reasonably safe environment, their failure to discipline defendant, and their failure to supervise defendant, all of which resulted in plaintiffs’ sustaining of injuries and damages.
On October 3, 2023, defendants jointly generally demurred to the second cause of action for premises liability, the fourth cause of action for battery, and the eighth caused of action for gender violence on statute of limitations grounds. They have also generally demurred to the seventh cause of action for violation of the Ralph Act and eighth caused of action for gender violence on the ground that neither statutory cause of action has been pleaded with sufficient specificity. Finally, they specially demurred to the seventh cause of action for violation of the Ralph Act on the basis that it is vague and uncertain since no violence or threat of violence is alleged.
Plaintiff has opposed the demurrer, contending that the causes of action are adequately alleged, and that no causes of action are barred by the statutes of limitation because of the operation of Code of Civil Procedure section 340.16, which provides a 10-year statute of limitations for cause of action arising out of sexual assault.
ANALYSIS: For reasons that will be more fully articulated below, the demurrer made by defendant O’Callaghan will be overruled in its entirety.
For reasons that will be more fully articulated below, the demurrer made by entity defendants Sansum Clinic, and Sansum Santa Barbara Medical Clinic, Inc will be overruled as to the second cause of action for premises liability, the fourth cause of action for battery, the seventh cause of action for violation of the Ralph Act, and the eighth cause of action for gender violence in violation of Civil Code section 52.4 with respect to the statute of limitations claim only.
The demurrer made by the entity defendants to the eighth cause of action for gender violence in violation of Civil Code section 52.4 will be sustained to the extent it is based upon the failure to allege sufficient allegations against these defendants to constitute a cause of action, with leave to amend on or before February 16, 2024.
1. Demurrer standards.
The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)
Claims based upon statutory liability cannot be generally alleged, but must allege specific facts demonstrating the right to recover under the statute. (Green v. Grimes-Stassforth S. Co. (1940) 39 Cal.App.2d 52, 55.) Plaintiff must allege sufficiently detailed facts to support an inference that each of the statutory elements of liability is satisfied. (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.) The statute supporting imposition of liability should be identified and alleged. (See Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.)
Where the allegations of the complaint or matters of which judicial notice may be taken reveal a defense to the action, such as a statute of limitations bar, the plaintiff must “plead around” the defense by alleging specific facts which would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825; Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 917, 921-922.)
A special demurrer on the ground that a pleading is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible. (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.) Such a demurrer is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 883.) A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond, i.e., that he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Demurrers for uncertainly will not be sustained where the facts alleged in the complaint are presumptively within the knowledge of the demurring party, or are ascertainable by invoking discovery procedures. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)
2. General demurrer to second cause of action for premises liability on statute of limitations grounds.
Plaintiff’s original complaint was filed on January 31, 2023. Code of Civil Procedure section 335.1 provides a two-year statute of limitations for actions “for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” The FAC alleges that the incident occurred on November 11, 2018. As a result, on the face of the allegations, the two-year statute of limitations expired on November 12, 2020. If the full amount of the tolling provided by Emergency Rule 9 due to the Covid-19 pandemic were applied, the statute of limitations would have expired on May 9, 2021. If analyzed solely pursuant to the terms of Section 335.1, the cause of action for premises liability would appear to be barred.
However, the impacts and applicability of Code of Civil Procedure section 340.16 must be considered, in determining whether the nature of defendant’s conduct and plaintiff’s injuries and damages render her cause of action timely.
As it was originally enacted effective January 1, 2019, Section 340.16 provided:
(a) In any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff's 18th birthday, the time for commencement of the action shall be the later of the following:
(1) Within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault by the defendant against the plaintiff.
(2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault by the defendant against the plaintiff.
(b) As used in this section, “sexual assault” means any of the crimes described in Section 243.4, 261, 262, 264.1, 286, 288a, or 289 of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.
(c) This section applies to any action described in subdivision (a) that is commenced on or after January 1, 2019. [Emphasis added.]
Provisions regarding the revival of lapsed claims, generally (as opposed to the revival of lapsed claims related to conduct occurring in student health centers, or at medical clinics or hospitals owned and operated by the University of California, Los Angeles), were originally inserted into Section 340.16 by its amendment which was effective January 1, 2023 (prior to the date on which this action was filed).
As it currently exists, Section 340.16 provides, in relevant parts:
(a) In any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff's 18th birthday, the time for commencement of the action shall be the later of the following:
(1) Within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.
(2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.
(b)(1) As used in this section, “sexual assault” means any of the crimes described in Section 243.4, 261, 264.1, 286, 287, or 289, or former Sections 262 and 288a, of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.
(2) For the purpose of this section, it is not necessary that a criminal prosecution or other proceeding have been brought as a result of the sexual assault or, if a criminal prosecution or other proceeding was brought, that the prosecution or proceeding resulted in a conviction or adjudication. This subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged person who committed the crime.
(3) This section applies to any action described in subdivision (a) that is based upon conduct that occurred on or after January 1, 2009, and is commenced on or after January 1, 2019, that would have been barred solely because the applicable statute of limitations has or had expired. Such claims are hereby revived and may be commenced until December 31, 2026.
* * *
(e)(1) Notwithstanding any other law, any claim seeking to recover damages suffered as a result of a sexual assault that occurred on or after the plaintiff's 18th birthday that would otherwise be barred before January 1, 2023, solely because the applicable statute of limitations has or had expired, is hereby revived, and a cause of action may proceed if already pending in court on January 1, 2023, or, if not filed by that date, may be commenced between January 1, 2023, and December 31, 2023.
(2) This subdivision revives claims brought by a plaintiff who alleges all of the following:
(A) The plaintiff was sexually assaulted.
(B) One or more entities are legally responsible for damages arising out of the sexual assault.
(C) The entity or entities, including, but not limited to, their officers, directors, representatives, employees, or agents, engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse.
(3) Failure to allege a cover up as required by subparagraph (C) of paragraph (2) as to one entity does not affect revival of the plaintiff's claim or claims against any other entity.
(4) For purposes of this subdivision:
(A) “Cover up” means a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.
(B) “Entity” means a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity.
(C) “Legally responsible” means that the entity or entities are liable under any theory of liability established by statute or common law, including, but not limited to, negligence, intentional torts, and vicarious liability.
(5) This subdivision revives any related claims, including, but not limited to, wrongful termination and sexual harassment, arising out of the sexual assault that is the basis for a claim pursuant to this subdivision.
(6) This subdivision does not revive either of the following claims:
(A) A claim that has been litigated to finality in a court of competent jurisdiction before January 1, 2023.
(B) A claim that has been compromised by a written settlement agreement between the parties entered into before January 1, 2023.
(7) This subdivision shall not be construed to alter the otherwise applicable burden of proof, as defined in Section 115 of the Evidence Code, that a plaintiff has in a civil action subject to this section. [Emphasis added.]
[Note: The provisions of Section 340.16(c) (limited to claims arising out conduct that occurred at a student health center), (d) (limited to claims arising out of conduct that occurred at a medical clinic or hospital owned and operated by the University of California, Los Angeles) were omitted because neither has any application to his action.]
The provisions of Section 340.16 limit the application of both the 1-year statute of limitations and the revival of a lapsed cause of action to only those actions for damages resulting from a “sexual assault,” the occurrence of which constitutes one of the crimes articulated in Section 340.16(b)(1). Those crimes include criminal sexual battery (§ 243.4), rape (§ 261), spousal rape (§ 262, repealed effective 1/1/2022, when § 261 was amended to include conduct that would constitute spousal rape), rape or penetration by foreign object (§ 264.1), sodomy (§ 286), oral copulation (§ 287 and former § 288a), and forcible sexual penetration (§ 289).
Penal Code section 243.4 provides, in relevant parts:
(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. . . .
* * *
(e)(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery. . . .
(2) As used in this subdivision, “touches” means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.
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(g) As used in this section the following terms have the following meanings:
(1) “Intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. . . .
In this case, plaintiff has alleged facts which support the conclusion that defendant O’Callaghan’s conduct at a minimum constituted misdemeanor sexual battery, in violation of Penal Code section 243.4(e)(1). It alleges that he touched intimate parts of plaintiff (her breasts, her groin area—vagina and labia, and her sexual organ), against her will and without her consent, and without any legitimate medical purpose in the course of his examination of her for suspected strep throat, all for his own sexual arousal and gratification, as evidenced by the fact that he began and continued to breathe heavily while touching her intimate parts. Penal Code section 243.4 is one of the statutes referenced in Section 340.16, for purposes of determining whether the action falls within and is governed by the terms of Section 340.16.
At the time Section 340.16 was enacted (effective January 1, 2019) to provide a minimum 10-year statute of limitations for actions for damages based upon conduct falling within its terms, no action had been filed, and in fact the violative conduct had occurred only 51 days prior. Consequently, under the terms of the statute as it then existed—which applied the 10-year statute of limitations to any action falling within its terms which had not been commenced until on or after January 1, 2019—plaintiff had until November 11, 2028 to file her complaint. As a result, plaintiff’s claim for damages based upon such conduct is governed by Section 340.16.
In an apparent attempt to avoid this result, defendants’ demurrer argues that Section 340.16 does not revive plaintiff’s premises liability cause of action for several reasons. First, Section 340.16 does not mention that it applies to premises liability claims. Second, it does not mention Section 335.1 at all or mention that it intended to eviscerate the statute of limitations set forth in Section 335.1. Third, there is no language in Section 340.16 stating it was intended to apply retroactively to all causes of action, no matter how pled. Defendants argue that Code of Civil Procedure section 3 provides that no part of the Code of Civil Procedure is intended to apply retroactively “unless expressly so declared.” Further lapsed claims are not considered revived without express legislative language of revival. (Quarry v. Doe (2012) 53 Cal.4th 945, 953.) Defendants argue that Section 340.16 does not contain any express language that it was intended to revive any premises liability cause of action, or any expired claims under Section 335.1. Section 340.16 expressly applies to causes of action for damages arising from sexual assault, and therefore expressly applies to sexual assault claims; defendants argue that it does not state it was intended to revive all expired claims, including premises liability, and a claim for premises liability is not one for damages suffered as a result of sexual assault, but rather for damages suffered as a result of the failure to maintain safe premises, or to warn an invitee of the purportedly unsafe conditions.
Plaintiff notes that Section 340.16 was enacted in 2018, effective January 1, 2019, less than two months after the conduct at issue. At that time, the statute clearly provided for a 10-year statute of limitations for all civil actions for damages suffered as a result of sexual assault. (Code Civ. Proc., § 340.16, subd. (a)(1).) The lawsuit, filed January 31, 2023, was therefore timely filed, and there is no revival issue. While defendants rely on Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, for the position that the only time a court will apply a limitations period enacted after the underlying wrong occurs is when the pre-amendment limitation period has not yet expired, or when the Legislature expressly declares its intent to revive expired claims—but that is exactly what occurred here. Even if plaintiff needed the benefit of revival, it clearly exists as of January 1, 2023, through the 2022 amendment of Section 340.16(b)(3). Revival would also exist pursuant to Section 340.16(e)(1).
In reply, defendants again assert that there is a presumption against retroactive application of a statute to revive expired claims in the absence of express legislative intent. Defendants note that the alleged sexual misconduct occurred on November 11, 2018, at a time when Section 340.16 did not exist. Its initial version, enacted effective January 1, 2019, contained no language indicating it was to apply retroactively or to revive previously expired claims. Defendants argue that the later amendments to Section 340.16 added language to indicate an intent to revive previously expired causes of action, but contend that the added language “is too ambiguous for this Court to deduce that section 340.16 should apply to all of plaintiff’s causes of action.” Citing principles of statutory interpretation, defendants contend there is a presumption against applying legislation retroactively in light of due process concerns (McClung v. Emp. Dev. Dept. (2004) 34 Cal.4th 467, 475), and that a statute may be applied retroactively “only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application,” citing Myers v. Philip Morris Cos. (2002) 28 Cal.4th 838, 844.) Defendants contend Section 340.16 remains ambiguous after the amendments, with respect to intent to revive causes of action, in failing to mention them, failing to state an intent to overrule MICRA, failing to specify that other limitations periods for statutory claims will no longer apply, giving rise to an inference that the Legislature did not intent to revive statutory causes of action that are otherwise barred under Code of Civil Procedure sections 335.1, 340.5, and Civil Code 52.4.
[Note: The Court notes that while the demurrer separately addressed the causes of action to which statute of limitations demurrers were interposed, plaintiff’s opposition contains a single section (with subsections) in which she addressed all of the statute of limitations demurrers, without differentiating among the causes of action. This has made it somewhat complicated for the Court to address the issues, because not all arguments apply to all causes of action—e.g., the defendants’ arguments regarding statutory claims are not applicable to their statute of limitations demurrer to the current premises liability claim. To the extent necessary and appropriate, the Court will discuss the arguments made by plaintiff within its separate discussions of the causes of action. Since the arguments regarding statutory causes of action are not relevant to this cause of action, they will be discussed later in the analysis.]
As this Court noted above, on the effective date of section 340.16 after its initial enactment, January 1, 2019, the conduct in question in this case had occurred only 51 days prior. While the Court agrees with defendants’ demurrer contentions that lapsed claims are not considered revived without express legislative language of revival, and the only time a court will apply a limitations period enacted after the underlying wrong occurs is when the pre-amendment limitations period has not yet expired, no limitations period applicable to the underlying conduct had expired on Section 340.16’s effective date, and none of plaintiff’s claims against defendants could even remotely be described as having “lapsed” at that time. Under the very authority cited by defendants in their demurrer (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 962 [“[t]he only time a court will apply a limitations period enacted after the underlying wrong occurs is when the pre-amendment limitations period has not yet expired (because, in that situation, the plaintiff’s claim is still viable and the new limitations period is not being applied retroactively) or . . . when the Legislature ‘expressly’ declares its intent to revive expired claims”]), Section 340.16 may properly be applied to plaintiff’s claims against defendants, because no statute of limitations applicable to the conduct had expired after only 51 days.
Consequently, because Section 340.16 provided for a minimum 10-year statute of limitations for actions for damages suffered as a result of sexual assault, as defined therein, even in its originally enacted form, any such action based thereon would be timely if filed prior to November 11, 2028. This action was filed on January 31, 2023, well within the applicable statute of limitations.
As a result, defendants’ extensive contentions and arguments regarding the circumstances under which statutes of limitations may be “revived” after claims have lapsed are irrelevant to their statute of limitations demurrer to the premises liability cause of action. However, even if the issue of revival had relevant to plaintiff’s premises liability claim, the current language of Section 340.16 sets forth the Legislature’s clear intent to revive lapsed claims that fall within its terms, in subdivision (b)(3) [“This section applies to any action described in subdivision (a) that is based upon conduct that occurred on or after January 1, 2009, and is commenced on or after January 1, 2019, that would have been barred solely because the applicable statute of limitations has or had expired. Such claims are hereby revived and may be commenced until December 31, 2026”], and the action is timely because it was filed prior to December 31, 2026. Further, because plaintiff has alleged facts to bring her claim within the provisions of Section 340.16(e) (i.e., that she was sexually assaulted, that one or more entities are legally responsible for damages arising out of the sexual assault, and that the entity or entities engaged in a cover up or attempted cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse), the action would similarly be revived as to those entities alleged to have vicarious liability for defendant O’Callaghan’s sexual assault, i.e., the Sansum defendants. (Code Civ. Proc., § 340.16, subd. (e)(1) [“Notwithstanding any other law, any claim seeking to recover damages suffered as a result of a sexual assault that occurred on or after the plaintiff's 18th birthday that would otherwise be barred before January 1, 2023, solely because the applicable statute of limitations has or had expired, is hereby revived, and a cause of action may proceed if already pending in court on January 1, 2023, or, if not filed by that date, may be commenced between January 1, 2023, and December 31, 2023.”].)
Defendants contend that Section 340.16 cannot apply to actions for premises liability governed by Code of Civil Procedure section 335.1, because it never mentions either premises liability causes of action, or Section 335.1. [Note: The Court notes that Section 335.1 does not create a statutory cause of action for premises liability, nor does it articulate a limitations period applicable only to premises liability claims; rather, it sets forth the statute of limitations applicable to “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”]
The language of Section 340.16, however, is very broad. It applies to “any civil action for recovery of damages suffered as a result of sexual assault” (§ 340.16, subd. (a)); to “any action described in subdivision (a)” which occurred within certain time parameters (§ 340.16, subd. (b)(3)); and to “any claim seeking to recover damages suffered as a result of a sexual assault” which occurred within certain time parameters (§ 340.16, subd. (e)(1)). Further, Section 340.16(b)(2) expressly states that “[t]his subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged person who committed the crime.” Finally, Section 340.16(e)(5) expressly states that the subdivision revives “any related claims, including, but not limited to, wrongful termination and sexual harassment, arising out of the sexual assault that is the basis for a claim pursuant to this subdivision.” This expansive language makes quite clear to this Court that the Legislature intended Section 340.16 to apply to any cause of action for damages resulting from sexual assault, regardless of the title given to the cause of action, or the nature of the theory underlying it.
While the court in Jane Doe #21 v. CFR Enterprises, Inc. (2023) 93 Cal.App.5th 1199, did not definitively determine the applicability of Section 340.16 to causes of action other than sexual assault/battery causes of action, instead remanding the case to the trial court for further proceedings since Section 340.16 had been amended at a time after the pleadings were drafted, demurrers were sustained, and the appeal was in progress, it expressly found unpersuasive the argument made by the defendants therein that Section 340.16 and its revival provisions applied only to sexual assault/battery causes of action, since Section 340.16(b)(3) expressly applied to “any action described in subdivision (a) that is based upon conduct that occurred on or after January 1, 2009. . . ,” and subdivision (a) is not limited to causes of action for sexual assault/battery, and expressly applies to “any civil action for recovery of damages suffered as a result of sexual assault.” (Jane Doe #21, supra, 93 Cal.App.5th at p. 1209.)
This Court agrees with that conclusion, and cannot find the failure of Section 340.16 to specifically state that it is applicable to premises liability causes of action as a whole, or to refer to the statute which sets forth the limitations period applicable to claims for personal injury, as having any impact on the applicability of Section 340.16 to the cause of action. The focus of Section 340.16 is on the conduct underlying the claim, not the theory of liability or the title given to the claim. The allegations underlying the claim fall within the terms of Section 340.16(b)(1), in alleging sufficient facts support the conclusion that defendant O’Callaghan’s conduct constituted misdemeanor sexual battery in violation of Penal Code section 243.4(e)(1). Consequently, the Court find that Section 340.16 applies to the premises liability claim, and it was timely filed pursuant to the terms of that section.
For all of the foregoing reasons, the Court will overrule the statute of limitations demurrer to the premises liability cause of action.
3. General demurrer to fourth cause of action for battery on statute of limitations grounds.
Plaintiff’s fourth cause of action, entitled “Battery,” alleges that during the course of his examination of plaintiff, defendant O’Callaghan used his position, authority, and cunning to subject her to sexually offensive contact with the intimate parts of her body and other acts offensive to her personal dignity, knowing that she was physically and emotionally vulnerable. That contact constituted a harmful and offensive touching and battery upon her person, to which she did not consent. She was offended by the sexualized touching and offensive contact with the intimate parts of her body and other acts offensive to her personal dignity as would any reasonable person in her position. She alleges the Sansum defendants ratified his conduct through various acts and omissions, that the acts, omissions, and negligence of defendants were a direct cause of, and substantial factor in causing, her personal injuries and damages.
Defendants demurrer to the cause of action on statute of limitations grounds, contending that it is a cause of action for medical battery—as opposed to a cause of action for sexual battery in violation of Civil Code section 1708.5, which plaintiff alleged but to which they did not demurrer. They assert that the complained-of conduct occurred in the midst of providing medical treatment. As a result, defendants conclude that it falls within the scope of MICRA under Code of Civil Procedure section 340.5, because it arises out of professional negligence. They cite Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, which applied Section 425.13 [related to punitive damages claims against health care providers] to a battery claim, and Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, which instructed that when a cause of action is asserted against a health care provider on a legal theory other than medical malpractice, courts must determine whether it is based on the professional negligence of the health care provider so as to trigger MICRA.
Defendants argue that since the acts complained of were part of the medical examination, and since the medical examination is something for which the health care providers were licensed to provide to plaintiff, the one-year statute of limitations for professional negligence applies. Since plaintiff complained about the incident to SBPD on November 12, 2018, no delayed discovery applies. Her claim should have been filed by November 12, 2019 and is barred.
Defendants argue further that Section 340.16 does not revive her medical battery cause of action, because it dose not state it is intended to apply to medical battery causes of action, or to any claims otherwise expired under MICRA. They assert that in the absence of express language to revive claims governed by Section 340.5, the court should not expand Section 340.16 to do so.
Plaintiff has opposed the demurrer, reasoning that her battery cause of action is not time barred under Section 340.16, because additional causes of action may arise out of the same facts as a medical malpractice action that do not trigger MICRA, and the MICRA statute of limitations does not apply to intentional torts, citing Unruh-Haxton v. Regents of the Univ. of Cal. (2008) 162 Cal.App.4th 343, 352. She asserts that none of the cases cited by defendants support a finding that her intentional tort cause of action is grounded in professional negligence. The mere facts that O’Callaghan is a medical professional, plaintiff went to Sansum for medical care, and the clinic is a medical setting, do not automatically place her case within MICRA and its 1-year statute of limitations.
The reliance by defendants’ demurrer upon Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, and its discussion of Code of Civil Procedure section 425.13 [relating to claims for punitive damages against health care providers] (along with other cases involving application of Section 425.13 to health care providers), as authority for their argument that this Court should not apply Section 340.16 to a cause of action for “medical” battery, and should instead apply the MICRA statute of limitations, is problematic. The first problem with that analysis is that Section 425.13 is not a MICRA statute, and its analysis of the standard set forth in Section 425.13 (“action for damages arising out the professional negligence of a health care provide”) is not the standard for determining when MICRA applies. (Larsen v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 350-351, citing Delaney v. Baker (1999) 20 Cal.4th 23, 39-40.) Rather, Section 425.13 was enacted more than a decade after MICRA, as part of a reform act addressing punitive damages. (Delaney v. Baker, supra.)
As stated by the court in Larsen: “Because section 425.13 is not part of MICRA and employs different language than MICRA's statutes, the Supreme Court repeatedly has rejected attempts to apply the standard it announced in Central Pathology to MICRA or other statutory provisions. (Delaney v. Baker (1999) 20 Cal.4th 23, 39-40, 82 Cal.Rptr.2d 610, 971 P.2d 986 (Delaney); Barris, supra, 20 Cal.4th at pp. 115–116, 83 Cal.Rptr.2d 145, 972 P.2d 966 [refusing to use Central Pathology standard to determine whether claim was based on professional negligence and therefore subject to MICRA's limit on noneconomic damages].) As the Supreme Court explained in Delaney, ‘The Central Pathology court made clear that it was not deciding the meaning of the term ‘professional negligence’ used in MICRA or in statutes other than section 425.13(a).... [¶] ... [T]he Central Pathology court [also] did not purport to universally define the phrase ‘arising out of professional negligence’ much less the phrase ‘based on professional negligence.’ ... To claim that the Central Pathology definition extended beyond section 425.13(a) is to ignore the limitations that this court put on its own opinion.’ (Delaney, at pp. 39–40, 82 Cal.Rptr.2d 610, 971 P.2d 986.)” (Larsen v. UHS of Rancho Springs, Inc., supra.)
Certainly, it is true that when a cause of action is asserted against a health care provider on a legal theory other than medical malpractice, courts must determine whether it is based on the professional negligence of the health care provider so as to trigger MICRA. (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514.) It is also true that a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented falls within MICRA, because the injury arose out of the manner in which professional services are provided. (See Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.) It is also true, however, that a cause of action against a health care provider for sexual battery would not, in most instances, fall within MICRA, because the defendant’s conduct would not be directly related to the manner in which professional services were rendered. (Ibid.)
Defendants appear to contend that this cause of action must be a cause of action for medical battery, i.e., predicated on treatment exceeding or different from that to which a plaintiff consented, because plaintiff has also separately alleged a cause of action for sexual battery in violation of Civil Code section 1708.5. Plaintiff disagrees that the cause of action is based upon the mere exceeding of the scope of consent, or providing treatment other than that to which plaintiff consented, and insists that the cause of action is one for intentional battery, to which MICRA does not apply.
By its terms, the fourth cause of action states a cause of action for battery committed by defendant O’Callaghan, which does not constitute treatment which merely exceeds the scope of plaintiff’s consent, or differed from that to which plaintiff consented. Indeed, the allegations of the cause of action are sufficient to support the conclusion that the conduct placed at issue in the cause of action, allegedly committed by defendant O’Callaghan, did not constitute “treatment” at all, but rather involved offensive touching of an inappropriate sexual nature. As such, MICRA—including the MICRA statute of limitations—would not apply to the cause of action, and plaintiff’s claim would necessarily be rendered timely-filed by the provisions of Code of Civil Procedure section 340.16, discussed above.
The Court is unaware of whether a common law cause of action for sexual battery exists separately from the statutory claim, or whether the attempt to allege it would be merely duplicative of the statutory cause of action. However, it is unnecessary for the Court to resolve that issue at this time, because even if the fourth cause of action for battery is entirely duplicative of the third cause of action for sexual battery in violation of Civil Code section 1708.5, redundancy is generally not a ground for demurrer. (McDonnell v. American Trust Co.(1955) 130 Cal.App.2d 296, 303.) Even if entirely duplicative, the continued existence of the cause of action—which clearly contains allegations sufficient to state a cause of action—neither aids plaintiff’s case nor harms defendants, since it does not give rise to any remedies other than those already available to plaintiff in this action.
For these reasons, the Court will overrule defendants’ demurrer to the fourth cause of action for battery.
4. General demurrer to seventh cause of action for violation of the Ralph Civil Rights Act (Civ. Code, § 51.7.), on insufficient allegations grounds.
Under the Ralph Act, a plaintiff must establish that the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right. (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291.)
Located within Civil Code section 51.7, the Ralph Act provides, in relevant part:
(b)(1) All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.
In turn, Civil Code section 51(b) identifies "sex" as a protected characteristic. Further, Section 51(e)(5) defines "sex" to include, among other things, a person's gender.
There is no requirement that the violence be extreme or motivated by hate. (Ventura v. ABM Industries, Inc. (2012) 212 Cal.App.4th 258, 269.) However, the plain meaning of the term clearly involves some physical, destructive act, and demands more than mere application of physical force. (Campbell v. Feld Entertainment, Inc. (N. D. Cal 2014) 75 F.Supp.3d 1193, 1205.) A kick has been found sufficient evidence of violence. (Winarto v. Toshiba Am. Elecs. Components, Inc. (9th Cir. 2001) 274 F.3d 1276, 1289.) In Campbell, supra, the court found conduct insufficient to constitute violence or intimidation by threats of violence, within the meaning of the Ralph Act, where a light which might have been a laser was shown into plaintiff's eyes, blurring her vision for a short time; where a rope barrier was pulled against a plaintiff's body, causing him to be uncomfortable and embarrassed; or where objects were thrown at a person, but which contacted him only when they ricocheted off a pillar and hit his shoulder. (Campbell, supra, at pp. 1206-1208.)
The elements of a Ralph Act claim for threatened violence are: (1) The defendant intentionally threatened violence against the plaintiff or plaintiff’s property, whether or not defendant actually intended to carry out the threat; (2) a substantial motivating reason for the defendant’s conduct was defendant’s perception of the plaintiff’s protected characteristic as defined by the statute [here, plaintiff’s sex or gender]; (3) a reasonable person in plaintiff’s position would have believed that defendant would carry out the threat; (4) a reasonable person in plaintiff’s position would have been intimidated by defendant’s conduct; (5) plaintiff was harmed; and (6) defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Black Lives Matter-Stockton Chapter v. San Joaquin County Sheriff’s Office (E.D. Cal. 2019) 398 F.Supp.3d 660, 678-679, citing Judicial Council of California Civil Jury Instruction 3064, and Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860-881.) There can be no “threat of violence” without some expression of intent to injure or damage plaintiff or plaintiff’s property. (Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486.)
As a statutory cause of action, plaintiffs' claim for violation of the Ralph Civil Rights Act cannot be generally alleged, and must allege specific facts demonstrating the right to recover under the statute. (Green v. Grimes-Stassforth S. Co. (1940) 39 Cal.App.2d 52, 55.) Plaintiff must allege sufficiently detailed facts to support an inference that each of the statutory elements of liability is satisfied. (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.)
Plaintiff’s Ralph Act cause of action alleges, in its relevant parts and in allegations incorporated by reference, that defendant O’Callaghan aggressively, roughly, and forcefully touched, squeezed, and groped (etc.) each of her breasts, separately, so as to cause her pain, and pushed hard against her groin, again causing her pain, for his own sexual gratification, and that there was no legitimate medical reason or purpose for a physician performing an examination for strep throat to touch, squeeze, or grope (etc.) a patient’s breasts or vagina. She alleges further that the substantial motivating reason for his conduct was her sex.
Defendants have demurred to the Ralph Act claim, contending that plaintiff’s FAC fails to allege facts to support the required element of an act of violence or intimidation by threat of violence. Defendants contend it is one thing to touch someone’s intimate body parts during a medical exam, and quite another to act violently or to intimidate a person with a threat of violence. There are no factual allegations of violence or threats by Dr. O’Callaghan, and plaintiff does not allege that he blocked her exit or restrained her physically during the appointment. Defendants expect plaintiff to contend that attempts to confine a person in a room without physical touching can be seen as a threat or intimidation of violence, citing Zamora v. Sacramento Rendering Co. (E.D. Cal. 2007) 2007 WL 137239, but plaintiff only alleged she was in an enclosed room with defendant, that she felt shocked, frozen in place, and trapped, and that after his examination of her he left the room. She was careful not to allege that he positioned himself in a way to keep her from leaving, that he physically restrained her, that he made any threatening or intimidating statements, or that she attempted to leave but could not. Simply being dressed in an exam gown in an enclosed room and feeling trapped was not attributable to defendant O’Callaghan personally, and circumstances would have been exactly the same with any other physician. Defendants conclude that plaintiff’s allegations are therefore insufficient to constitute the violence or threat of violence required by the Ralph Act, and repeating the legal conclusion over and over does not cure the defect.
Plaintiff responds that her Ralph Act cause of action is adequately pleaded, quoting ¶¶ 22, 24, 25, 42, 146, and 147 of her FAC. She asserts the test for threatened violence that was intimidating is whether a reasonable person standing in plaintiff’s would have been intimidated by the actions of defendant and, have perceived a threat of violence, citing Winarto v. Toshiba Am. Elecs. Components, Inc. (9th Cir. 2001) 274 F.3d 1276, 1289, and Knapps v. City of Oakland (N.D. Cal. 2009) 647 F.Supp.2d 1129, 1167.) There is no requirement that the violence be extreme. She contends the allegations are sufficient to prevent the conclusion that she was not subject to violence or threat of violence. She has alleged O’Callaghan aggressively and roughly squeezed and rubbed each of her breasts to the point that it caused her pain, pushed hard against the lymph nodes along her groin sufficient to cause her pain, and fondled her sexual organ/genitals while breathing heavily as he did so, while leaning over her in a position of authority and control which prevented her from getting off the table. She concludes that any reasonable woman in her position could find the conduct violent, threatening, and intimidating, and could find that it caused injury and harm. She alleges that boards governing medical professions have found that physician sexual misconduct has profound, enduring, and traumatic impact on a patient’s well-being.
As noted above, there is no requirement that the violence be extreme for a Ralph Act violation to be stated, although it must involve some physical, destructive act, involving more than the application of physical force. Under the facts as they are currently alleged, which the Court must accept as true for purposes of demurrer, the Court cannot find as a matter of law that defendant O’Callaghan did not commit violent acts against plaintiff by reason of her sex/gender, and instead finds that whether or not the force which defendant O’Callaghan applied to plaintiff’s person—which caused her pain—rose to the level of constituting violence committed for reason of plaintiff’s gender/sex in violation of the Ralph Act, is an issue for determination by the jury at trial. Consequently, the Court will overrule the demurrer to the seventh cause of action, based upon the sufficiency of the complaint’s allegations.
5. General demurrer to eighth cause of action for gender violence (Civ. Code, § 52.4), on statute of limitations and insufficient allegations grounds. ‘
Plaintiff’s eighth cause of action is for gender violence in violation of Civil Code section 52.4. Section 52.4 provides:
(a) Any person who has been subjected to gender violence may bring a civil action for damages against any responsible party. The plaintiff may seek actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. A prevailing plaintiff may also be awarded attorney's fees and costs.
(b) An action brought pursuant to this section shall be commenced within three years of the act, or if the victim was a minor when the act occurred, within eight years after the date the plaintiff attains the age of majority or within three years after the date the plaintiff discovers or reasonably should have discovered the psychological injury or illness occurring after the age of majority that was caused by the act, whichever date occurs later.
(c) For purposes of this section, “gender violence” is a form of sex discrimination and means either of the following:
(1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.
(2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.
(d) For purposes of this section, “gender” has the meaning set forth in Section 51.
(e) Notwithstanding any other laws that may establish the liability of an employer for the acts of an employee, this section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence. [Emphasis added.]
Civil Code section 51, referred within Section 52.4(d), provides, in relevant part:
“Sex” includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person's gender. “Gender” means sex, and includes a person's gender identity and gender expression. “Gender expression” means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. (Civ. Code, § 51, subd. (e)(5).)
A. Demurrer based on statute of limitation bar.
Defendants’ demurrer to plaintiff’s eighth cause of action for gender violence in violation of Civil Code section 52.4 is based, in part, upon their contention that it is barred by the statute of limitations. Based upon the terms of Section 52.4(b), which provides that an action brought pursuant to the section “shall be commenced within three years of the act,” defendants contend that the action was barred when it was not filed by November 11, 2021, and that even with the extra days for Covid-19 tolling, the period expired on May 8, 2022. As a result, the complaint, filed January 31, 2023, is barred.
Defendants assert that plaintiff cannot argue that Section 340.16 applies, because Section 52.4(b) was specifically enacted by the Legislature to provide a limitations period for gender violence claims, and its specific terms should control in the face of the conflicting general terms of Section 340.16, citing San Francisco Taxpayers Association v. Board of Supervisors (1992) 2 Cal.4th 571, 577, and Community Redevelopment Agency v. Force Electronics (1997) 55 Cal.App.4th 622, 630. Defendants further assert that Section 340.16 does not expressly state that it is intended to revive statutory claims otherwise barred by Section 52.4. Further, defendants argue that while Section 340.16(e) mentioned an intent to revive causes of action such as negligence, intentional torts, wrongful termination, and sexual harassment, those are common law causes of action, and the section did not mention any intent to revive statutory causes of action to which specific statutes of limitation would apply. Defendants argue that had the Legislature intended to broadly and retroactively apply Section 340.16 to revive all causes of action following an alleged sexual assault, it could have so stated, but did not.
Plaintiff, in its general section regarding statutes of limitation, argued that Section 340.16 does not limit the causes of action available to plaintiff, under subdivisions (b)(2) [“This subdivision does not limit the availability of causes of action permitted under subdivision (a)”], (e)(1) [“Notwithstanding any other law, any claim seeking to recover damages suffered as a result of sexual assault . . . is hereby revived”], and (e)(5) [“This subdivision revives any related claims, including, but not limited to, wrongful termination and sexual harassment, arising out of the sexual assault that is the basis for a claim pursuant to the subdivision”]. Plaintiff contends that defendants’ argument that the statute only applies to common law claims disregards the clear language of the statute, and there is no authority for their position.
Plaintiff contends that the only California case on the applicability of Section 340.16 supports her position, citing Doe #21 v. CFR Enterprises, Inc., supra. The issue there was the revival of the causes of action possessed by 18 plaintiffs, for conduct occurring between August 2003 and November 2014. While on appeal, Section 340.16 was amended to its current form. The court found it likely revived some but not all of the plaintiffs’ claims, emphasizing that all causes of action other than UCL (for which damages are unavailable) were properly brought under Section 340.16. Its discussion reflected its opinion that Section 340.16 was likely applicable to other statutory claims alleged in that action (including sexual battery in violation of Civil Code section 1708.5; gender violence in violation of the Ralph Act, which has a specific limitations period set forth in Code of Civil Procedures section 338(n) in non-employment-related claims, and in Government Code sections 12960(e)(1) and 12965(c)(1)(C) in the employment context; and violation of the Consumer Legal Remedies Act, which has a specific limitations period set forth in Civil Code section 1783).
The Court will first note that the cases cited by defendants’ demurrer in support of their contention that Section 340.16 does not apply to statutory claims, relate only to general principles of statutory construction, setting forth general principles related to how to interpret statutes when two statutory provisions conflict. When such conflict exists, specific statutes govern general statutes. The Court has no problem with this as a general principle, but it does not resolve the issue currently before the court. The Court notes further that the Community Redevelopment Agency case cited by defendants also sets forth the principle of statutory construction that two statutes dealing with the same subject matter are given concurrent effect if they can be harmonized, even though one is specific and the other is general. (Community Redevelopment Agency v. Force Electronics (1997) 55 Cal.App.4th 622, 630, citing People v. Price (1991) 1 Cal.4th 324, 385.)
In construing the two statutes, it is important to note that Section 340.16 is not coterminous with Section 52.4, and applies only to a subset of the conduct that could be found violative of Section 52.4. Section 52.4 permits any person who has been subjected to gender violence to bring a civil action for damages against any responsible party. (Civ. Code, § 52.4, subd. (a).) It defines “gender violence” as including either acts constituting a criminal offense that has as an element the use, attempted use, or threatened use of physical force, committed at least in part because of the gender of the victim, or a physical intrusion or invasion “of a sexual nature under coercive conditions.” (Civ. Code, § 52.4, subd. (c)(1) and (c)(2).) In other words, it applies to any criminal application of physical force committed because of gender, does not require that such violence be of a sexual nature, and does not require that physical intrusion of a sexual nature rise to the level of a criminal offense. As one example, a person of one gender who simply decides to punch persons of the opposite gender whom they encounter on the street, has committed gender violence in violation of Section 52.4, even though there was no sexual component to their offense.
Section 340.16, on the other hand, applies only where conduct at issue constitutes criminal sexual assault, in violation of Penal Code sections 243.4, 261, 264.1, 286, 287, or 289, or former Sections 262 and 288a, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes, whether or not criminal charges were ever brought. Certainly, conduct meeting these standards will likely fall within the second definition of “gender violence” under Section 52.4. (Civ. Code, § 52.4, subd. (c)(2).) However, Section 52.4 applies to far more types of conduct than does Section 340.16, leaving open the possibility that the two can be reconciled and are not, in fact, in conflict as defendants contend.
Additionally, as this Court noted in its discussion of the statute of limitations demurrer to the premises liability cause of action, under the very authority cited by defendants in their demurrer (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 962 [“[t]he only time a court will apply a limitations period enacted after the underlying wrong occurs is when the pre-amendment limitations period has not yet expired (because, in that situation, the plaintiff’s claim is still viable and the new limitations period is not being applied retroactively) or . . . when the Legislature ‘expressly’ declares its intent to revive expired claims”]), Section 340.16 may properly be applied to plaintiff’s claims against defendants, because no statute of limitations applicable to the conduct had expired after only 51 days. Section 340.16(a) makes clear that it applies to “any civil action for recovery of damages suffered as a result of sexual assault,” as ‘sexual assault’ is defined within the section, and Section 340.16(b)(2) further makes clear that the subdivision articulating the definition of “sexual assault” “does not limit the availability of causes of action permitted under subdivision (a).”
Even the Section 340.16(b)(3) provisions regarding revival, were they applicable, speak in terms of actions involving conduct which would otherwise have been barred because the “applicable” statute of limitations had expired, and further specified that the only claims not so revived by its provisions were those litigated to finality before January 1, 2023, or compromised by a written settlement agreement entered into before January 1, 2023.
The specific language used by the Legislature in enacting and amending Section 340.16 indicates that it had a specific intent to treat conduct falling within it definition of “sexual assault” (i.e., criminal conduct in violation of Penal Code sections 243.4, 261, 264.1, 286, 287, 289, or former Sections 262 and 288a, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes, whether or not a criminal prosecution was brought) differently from other conduct that might be characterized as either sexual in nature but not rising to the level of constituting a criminal violation of one of the specified statutes, or assaultive in nature, without having any sexual component. It further contains language which expands the claims to which its terms apply, rather than restricting them.
The Court cannot and does not find that the provisions of Section 52.4 and Section 340.16 are in conflict, as claimed by defendants, but instead can be readily harmonized. Even under the authorities cited and relied on by defendants, the Court cannot find any basis for concluding—as defendants urge—that the Legislature intended Section 340.16’s minimum 10-year statute of limitations for claims arising from conduct falling within its terms not to apply to statutory claims whose limitations period had not yet expired at the time Section 340.16 was enacted.
The demurrer contends further that there are significant constitutional implications to the revival of expired statutes of limitation with respect to statutory claims, citing Landgraf v. USI Film Prods. (1994) 511 U.S. 244, and that courts treat the revival of expired common law causes of action differently from the attempted revival of a previously expired statutory cause of action, citing Bishop of Oakland v. Superior Court (2005) 128 Cal.App.4th 1155, 1165. However, as this Court has noted above, the enactment of Section 340.16, establishing a minimum 10-year statute of limitations for actions which fall within its terms, occurred only 51 days after the conduct giving rise to plaintiff’s claims against defendants—at a time when no statute of limitations had expired. The impact of the finding that Section 340.16 applied to plaintiff’s claims at the time of its enactment is that the statute of limitations applicable to plaintiff’s gender violence claim was extended to 10 years at that time. Consequently, plaintiff’s claim was timely when filed well within that 10-year period. Because the statute of limitations had not expired, there was nothing to “revive,” and there are therefore no constitutional implications from the application of Section 340.16 to this case.
In their demurrer, defendants also note that Section 340.16(e) mentions an intent to revive causes of action such as negligence, intentional torts, wrongful termination and sexual harassment, contending that all such claims are common law causes of action and not statutory causes of action, and contending further that the failure to mention an intent to revive statutory causes of action means that Section 340.16 is not applicable to statutory claims. Again, there is no issue of “revival” of lapsed claims in this action, under the analysis set forth above. Further, defendants’ contention ignores that there are multiple forms of statutory sexual harassment claims, including plaintiff’s fifth cause of action for sexual harassment in the provision of professional services, in violation of Civil Code section 51.9—to which defendants did not interpose a statute of limitations demurrer. (See also Gov. Code, §§ 12940, subd. (j)(1); 12960, subd. (e); & 12965, subd. (c)(1)(C) [statutory sexual harassment in the employment context.]) Defendants also did not interpose statute of limitations demurrers to other statutory claims asserted by plaintiff (third cause of action for sexual battery in violation of Civil Code section 1708.5; seventh cause of action for violation of Civil Code section 51.7, the Ralph Civil Rights Act), even though plaintiff’s Ralph Act cause of action is also subject to a specific limitations period. (Code Civ. Proc., § 338, subd. (n).)
While the court in Jane Doe #21, supra, did not expressly hold that both statutory and common law claims can fall within the terms of Section 340.16 if the underlying claims are based upon conduct which constitutes a criminal violation of one of the identified statutes, and remanded the case to the trial court to permit further briefing, it was clear in its belief that the statutory claims set forth therein (sexual battery in violation of Civil Code section 1708.5, Ralph Civil Rights Act, and Consumer Legal Remedies Act) were likely impacted by the enactment and amendment of Section 340.16. This Court agrees. The focus of Section 340.16 is on the nature of the underlying conduct, and not on the theory of the cause of action upon which it is based, and its expansive and inclusive language is sufficient to encompass both statutory and common law claims.
Consequently, the Court finds that because plaintiff’s FAC complaint now expressly relies upon and alleges facts sufficient to constitute a criminal violation of Penal Code section 243.4(e)(1)—one of the predicate statutes which support the application of Section 340.16—her cause of action for gender violence was subject to the Section 340.16(a) 10-year statute of limitations, given that Section 340.16’s enactment was effective only weeks after the events which gave rise to her claim. Since the applicable statute of limitations would expire on November 11, 2028, her complaint—filed on January 31, 2023—was timely filed. The Court will therefore overrule defendants’ demurrer to the gender violence cause of action, to the extent that it is based upon the statute of limitations defense.
B. Demurrer based upon insufficient allegations
As a statutory cause of action, plaintiffs' claim for gender violence in violation of Civil Code section 52.4 cannot be generally alleged, and must allege specific facts demonstrating the right to recover under the statute. (Green v. Grimes-Stassforth S. Co. (1940) 39 Cal.App.2d 52, 55.) Plaintiff must allege sufficiently detailed facts to support an inference that each of the statutory elements of liability is satisfied. (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.)
As noted above, Section 52.4 defines “gender violence” as follows:
(c) For purposes of this section, “gender violence” is a form of sex discrimination and means either of the following:
(1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.
(2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. [Emphasis added.]
Defendants have demurred, contending that the facts alleged are insufficient to constitute gender violence in violation of Section 52.4. With respect to Dr. O’Callaghan, defendants contend there are no allegations of the use of physical force or threatened physical force or coercion. However, under the current allegations set forth in the FAC, as opposed the original complaint, plaintiff alleges that defendant O’Callaghan, in the course of an examination for suspected strep throat, forcefully squeezed and rubbed each of her breasts in turn to the point of causing pain. He then slid his hands down her pants, pushed hard against the lymph nodes in her groin to the point of causing her pain, and then fondled her genitals with his bare hand, including her sexual organ, her vagina, and her labia, breathing heavily as he did so. She alleges further that defendant O’Callaghan continually yelled his instructions to her, which intimidated her and made her afraid, that she was trapped by his intimidating behavior and body position as he leaned over her, and that he used his position of authority and took advantage of the coercive environment. Finally, she alleges that there was no medical reason or purpose for a physician performing an examination for strep throat to touch her breasts and genitals in that manner. These allegations were incorporated by reference into her cause of action for gender violence in violation of Section 52.4.
The Court cannot find as a matter of law—which would be required in order to sustain the demurrer as to Dr. O’Callaghan, that the allegations do not sufficiently allege a “physical intrusion or physical invasion of a sexual nature under coercive conditions,” which suffices to allege a cause of action for gender violence in violation of Section 52.4. They certainly establish a physical intrusion or physical invasion of a sexual nature, in alleging that Dr. O’Callaghan squeezed and rubbed her breasts to the point of causing her pain, and then fondled her genitals with his bare hand, without legitimate medical reason or purpose. Further, the Court finds that plaintiff has sufficiently pleaded the coercive conditions necessary to complete the statutory violation, and that it is a question of fact for resolution by the jury whether the circumstances of a physician committing the physical invasion of a sexual nature, purportedly while performing a medical examination of a partially-clothed patient, in a closed examination room, while he forcefully directed her actions, constitutes the “coercive conditions” required to complete the statutory violation.
The Court will therefore overrule the demurrer by Dr. O’Callaghan, with respect to the sufficiency of the allegations of the gender violence claim.
With respect to the entity defendants, the demurrer contends that there are insufficient allegations to support a claim for gender violence against them, as a result of the provisions of Section 52.4(e), which provides:
(e) Notwithstanding any other laws that may establish the liability of an employer for the acts of an employee, this section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence.
The Court agrees that the facts alleged in the FAC are insufficient to allege a cause of action for violation of Section 52.4 by the entity defendants. There are no allegations that, as Dr. O’Callaghan’s employers, the entity defendants personally committed an act of gender violence, as defined by Section 52.4.
The Court will therefore sustain the demurrer to Section 52.4 as to the entity defendants only. While the Court has serious doubts that this pleading defect can be cured by amendment, it will permit plaintiff leave to file an amended complaint to attempt to do so. Any such Second Amended Complaint must be filed no later than February 16, 2024. If no such Second Amended Complaint is filed by that date, defendants’ period to answer the FAC will run from that date. If a Second Amended Complaint is filed, defendants’ period to respond will run from the date of its filing and service.