Danielle Knights vs Thomas V Aguirre

Case Number

24CV07217

Case Type

Hearing Date / Time

Fri, 07/18/2025 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike

Tentative Ruling

(1)       The demurrer of defendant Thomas V. Aguirre, M.D. to the complaint is sustained in part and overruled in part as follows:

The demurrer to the entire complaint on that basis that it is barred pursuant to the statute of limitations set forth in Code of Civil Procedure section 340.5 is overruled;

The demurrer to the first cause of action for sexual battery in violation of Civil Code section 1708.5 is sustained with leave to amend;

The demurrer to the second cause of action for gender violence in violation of Civil Code section 52.4 is sustained with leave to amend;

The demurrer to the third cause of action for sexual harassment in violation of Civil Code section 51.9 is sustained with leave to amend; and

The demurrer to the fourth cause of action for sexual assault is sustained with leave to amend.

(2)       The motion of defendant Thomas V. Aguirre to strike portions of the complaint is granted with leave to amend.   

(3)       Plaintiff shall file and serve a first amended complaint on or before August 1, 2025.

Background:

In her complaint filed on December 20, 2024, plaintiff Danielle Knights alleges:

Defendant Thomas V. Aguirre is a physician with a primary area of practice in gastroenterology. (Complaint, ¶ 5.) Plaintiff had a consultation with defendant on October 26, 2016, for Crohn’s disease. (Id., ¶ 6.) Plaintiff was 23 years old at the time of the appointment. (Ibid.)

During the appointment, plaintiff told defendant that she had been asymptomatic for a couple of years due to opiate use. (Complaint, ¶ 7.) She also disclosed that she was in a treatment facility receiving care for opiate addiction. (Ibid.) Plaintiff believed this was relevant information to share with defendant because she was experiencing “Crohn’s flare ups” again after being in remission for a couple of years. (Ibid.)

Defendant asked plaintiff questions about her addiction, and then commented on her looks, saying something to the effect that she did not look like a drug addict and was a pretty girl. (Complaint, ¶ 8.) Defendant then directed plaintiff to lay on her back on the medical bed for an abdominal exam. (Id., ¶ 9.) The examination was routine until the very end when defendant used his hand to lift plaintiff’s underwear and pants to view her vagina, without providing plaintiff with any warning or explanation as to why this was necessary. (Ibid.) This left plaintiff in shock. (Ibid.)

When defendant finished, plaintiff sat up quietly and attempted to listen to defendant’s recommendations concerning laboratory work and scheduling a colonoscopy. (Complaint, para. 10.) Still in shock, and fearful something else might happen, plaintiff listened and waited for the appointment to end. (Ibid.) Plaintiff left the appointment with feelings of confusion, discomfort, and that she had been violated. (Ibid.)  

Plaintiff asserts four causes of action in her complaint: (1) sexual battery (Civ. Code, § 1708.5); (2) gender violence (Civ. Code, § 52.4); (3) sexual harassment (Civ. Code, § 51.9); and (4) sexual assault. She also seeks punitive damages.  

Defendant demurrers to the complaint, contending that each of plaintiff’s claims amounts only to professional negligence and is barred by the applicable statute of limitations. In addition, defendant argues that plaintiff has failed to allege sufficient facts in support of each cause of action.

Defendant also moves to strike plaintiff’s punitive damages allegations, asserting that pursuant to Code of Civil Procedure section 425.13, a claim for punitive damages “may not be maintained against a health care provider absent [a] court order, and no such court order has been issued in this case.” (Motion, p. 2.)

Plaintiff has filed oppositions to both the demurrer and motion to strike.

Analysis:

(1)       Demurrer

            (A)       Standard

“‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. ... We also consider matters which may be judicially noticed.’ ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768, internal quotation marks and citations omitted.)

            (B)       Statute of Limitations

Defendant argues that actions against a health care provider are governed by Code of Civil Procedure section 340.5, which provides that plaintiff must bring an action within three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. (Demurrer, p. 7.) Defendant asserts that plaintiff’s claims are time-barred because the incident at issue occurred on October 26, 2016, and plaintiff felt that she had been injured at that time. (Ibid.)

Plaintiff, meanwhile, contends that the statute of limitations set forth in section 340.5 does not apply here because it only governs actions against health care providers for professional negligence, and not the types of intentional torts which plaintiff alleges in this case. (Opposition, pp. 4-6.)

Section 340.5 was enacted as part of the Medical Insurance Compensation Reform Act (MICRA). (Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 214–215.) It provides that the statute of limitations for a cause of action against a health care provider for medical negligence is as follows:

“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

For purposes of section 340.5, a “health care provider” is “any person licensed or certified pursuant to [licensing statutes for health care providers]; and any clinic, health dispensary, or health facility, licensed pursuant to [licensing statutes for health care facilities].” (Code Civ. Proc., § 340.5, subd. (1).) There appears to be no dispute that defendant is a health care provider within the meaning of the statute.

Meanwhile, “professional negligence” is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (Code Civ. Proc., § 340.5, subd. (2).)

The parties’ dispute here relates to whether defendant’s alleged conduct is based on professional negligence within the meaning of section 340.5.

Courts have held that conduct is not based on professional negligence, and section 340.5 is therefore inapplicable, where the defendant’s conduct was not undertaken for the purpose of delivering health care. This includes instances where the defendant doctor showed the plaintiff blood and tissue that had been suctioned from her, for the purpose of persuading her not to report to the hospital that she had awakened during surgery (So v. Shin (2013) 212 Cal.App.4th 652, 667), or where the doctor induced the plaintiff patient to enter into sexual relations (Atienza v. Taub (1987) 194 Cal.App.3d 388, 392-394).

In So, supra, the court explained:

“[N]egligent actions undertaken by a health care provider for the purpose of delivering medical care to a patient constitute professional negligence; tortious actions undertaken for a different purpose—in Atienza, for the physician’s sexual gratification—are not.

“In the present case, plaintiff alleges that Dr. Shin engaged in the alleged tortious conduct for the purpose of persuading plaintiff not to report to the hospital or medical group that plaintiff had awakened during surgery. In other words, plaintiff alleges that Dr. Shin acted for her own benefit, to forestall an embarrassing report that might damage her professional reputation—not for the benefit of her patient. As pled, therefore, the alleged negligence was not undertaken ‘in the rendering of professional services,’ and thus it does not constitute professional negligence within the meaning of section 340.5.” (So v. Shin, supra, 212 Cal.App.4th at p. 667.)

Plaintiff’s allegations here do not, on their face, show that her action is necessarily barred under section 340.5. As plaintiff alleges, after commenting that plaintiff was a “pretty girl,” defendant allegedly used his hand to lift plaintiff’s pants and underwear so that he could view her vagina even though it did not appear to plaintiff that there were any medical-related reasons for him to do so. Her complaint therefore may not be “based on professional negligence” so as to be subject to section 340.5. Yet, the running of the statute must appear “clearly and affirmatively” from the face of the complaint in order to sustain a demurrer on statute of limitations grounds. It is not enough that the complaint might be time-barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.)

Furthermore, defendant’s reliance upon Cooper v. Superior Court (1997) 56 Cal.App.4th 744 and United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500 (Demurrer, pp. 9-10) is misplaced. Each of those cases involved Code of Civil Procedure section 425.13, which generally provides that in any action “arising out of the professional negligence of a health care provider” the plaintiff must first obtain a court order before he or she is allowed to maintain an action for punitive damages. Unlike section 340.5, section 425.13 is not part of MICRA. It also uses different language and serves a different purpose. (Delaney v. Baker (1999) 20 Cal.4th 23, 39-40.) The Supreme Court has cautioned that the scope and meaning of the phrases “arising from professional negligence” and “based on professional negligence” could vary depending upon the legislative history and the purpose underlying each of the individual statutes. (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1515.) Thus, for example, a fraud claim against a health care provider arises out of professional negligence and is subject to section 425.13 if the misrepresentation or concealment occurred in the provision of health care services, because this construction serves the statutory purpose of protecting providers from untimely and unsubstantiated claims for punitive damages. (Divino Plastic Surgery, Inc. v. Superior Court (2022) 78 Cal.App.5th 972, 986.) Such a fraud claim, however, is not based on professional negligence and is not subject to the MICRA damages cap (Civ. Code, § 3333.2) or statute of limitations (Code Civ. Proc., § 340.5) because construing MICRA to cover the claim would not serve the statutory purpose of reducing the cost of medical malpractice insurance by limiting the time the patient has to sue the health care provider for malpractice or the amount of damages recoverable. (Divino Plastic Surgery, supra, at pp. 986-987.)

The Court therefore rejects defendant’s effort to apply cases interpreting section 425.13 to the issue of whether defendant’s alleged conduct here is “based upon . . . professional negligence” for purposes of section 340.5. The demurrer to the entire complaint on the basis that it is barred by the statute of limitations set forth in section 340.5 is overruled.

            (C)       Sexual Battery

Civil Code section 1708.5, subdivision (a) provides that a “sexual battery” occurs when a person commits “[a]cts with the intent to cause a harmful or offensive contact with the intimate part of another, and a sexually offensive contact . . . results.” Subdivision (d) of the statute defines “intimate part” as the “sexual organ, anus, groin, or buttocks of any person, or the breast of a female.”

Defendant argues that plaintiff’s first cause of action for sexual battery fails because plaintiff “does not allege that [defendant] actually made contact with her vagina or with any other intimate part of her body.” (Demurrer, p. 12.) In addition, defendant asserts that plaintiff has failed to allege a lack of consent.” (Ibid.)

Plaintiff contends that defendant “made direct and sexually offensive contact by lifting up her pants and underwear, as the underwear was in direct contact with the skin of her intimate areas.” (Opposition, p. 8.) She further argues that she did not consent to defendant’s conduct “particularly during a gastroenterology examination related to Crohn’s disease.” (Id. at pp. 7-8.)

Given that the language in section 1708.5 is similar to the language contained in Penal Code section 243.4, the statute defining the crime of sexual battery, case law under the latter statute may be useful in construing section 1708.5. Applying Penal Code section 243.4, the courts have found that actual and direct contact with the skin of the intimate part of another person is essential to the commission of a sexual battery. (In re Keith T. (1984) 156 Cal.App.3d 983, 986.) Merely touching the outside of the victim’s clothing “at the vaginal area” is “not a touching of the skin and this conduct does not constitute the crime of sexual battery.” (In re Gustavo (1989) 214 Cal.App.3d 1485, 1499.) In light of the specific language in section 1708.5 defining the term “sexual battery,” as set forth above, the Court finds that it compels a similar conclusion. Merely touching the plaintiff’s clothing here (Complaint, ¶ 9), does not constitute a sexual battery within the meaning of section 1708.5. While plaintiff later alleges within the first cause of action that defendant “engaged in unwelcome, unpermitted, harmful and offensive sexual contact upon intimate parts of” plaintiff (id., ¶ 12), there are no further specific allegations to show that defendant’s conduct exceeded what is alleged in paragraph nine.

Accordingly, the Court finds plaintiff’s allegations insufficient to maintain a claim for sexual battery under section 1708.5 and therefore sustains the demurrer to the first cause of action with leave to amend.

            (D)       Gender Violence

Civil Code section 52.4 authorizes an award of civil damages to any person who is subjected to gender violence. (RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1517, fn. 6.) The statute defines “gender violence” to include a “physical intrusion or physical invasion of a sexual nature under coercive conditions . . . .” (Civ. Code, § 52.4, subd. (c)(2).) The parties do not suggest any term in this definition is ambiguous or has anything other than its plain, commonsense meaning. (See Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630 [“we begin with the plain, commonsense meaning of the language used by the Legislature,” and if “the language is unambiguous, the plain meaning controls”].)

Defendant argues that plaintiff’s second cause of action fails to state a claim for gender violence because, like her first cause of action for sexual battery, “plaintiff has not actually alleged that [defendant] touched her vagina or any other intimate part.” (Demurrer, p. 13, capitalization altered.) Plaintiff argues that she has sufficiently stated a claim for gender violence because she alleges that after the conclusion of the medical examination, and without acknowledgement or explanation, defendant lifted her pants and underwear, causing plaintiff to freeze in shock and fear. (Opposition, p. 9.)

Unlike the battery claim, plaintiff is not required to show that defendant made actual and direct contact with an intimate part of her body. Rather, plaintiff need only show that there was a “physical intrusion or physical invasion of a sexual nature under coercive conditions . . . .” (Civ. Code, § 52.4, subd. (c)(2).)

The act of lifting plaintiff’s pants and underwear in order to view her vagina without any explanation as to why this was necessary for the type of examination plaintiff underwent may very well be a “physical intrusion or physical invasion of a sexual nature” which is contemplated under section 52.4. It would at least seem to be the case from a layperson’s perspective. However, plaintiff does not specifically allege, and this Court cannot assume, that defendant’s subject conduct had no legitimate relation to the health care services he provided.  Accordingly, absent such specific allegations in the complaint, the demurrer to the second cause of action for gender violence is sustained with leave to amend.   

            (E)       Sexual Harassment (Civ. Code, § 51.9)

Civil Code section 51.9, which addresses sexual harassment in relationships often arising outside of workplace environments, provides a nonexclusive list of providers of professional services in connection with which sexual harassment may exist, including physicians. (Civ. Code, § 51.9, subd. (a)(1).) Liability exists where it is shown that the defendant “has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.” (Civ. Code, § 51.9, subd. (a)(2).)

If defendant’s conduct in lifting plaintiff’s clothing and viewing her vagina was not integrally related to the medical services rendered by defendant, it would follow that defendant engaged in “visual, or physical conduct of a sexual nature” within the meaning of Civil Code section 51.9. Such conduct could also be deemed severe. An isolated incident of harassing conduct may qualify as “severe” when it consists of a physical assault or the threat thereof. (Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 609.)

However, and as noted above, plaintiff fails to specifically allege that the subject conduct on defendant’s part had no legitimate relation to the health care services he provided.  Accordingly, absent such specific allegations in the complaint, the demurrer to the third cause of action for gender violence is sustained with leave to amend.  

            (F)       Sexual Assault

The essential elements of a cause of action for assault, as distinguished from battery, are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (So v. Shin, supra, 212 Cal.App.4th 652, 668—669.)

Defendant argues that there are no allegations that defendant “acted with intent to cause a harmful or offensive contact with an intimate part of plaintiff’s body,” and that “plaintiff’s allegations show that she consented to” his conduct. (Demurrer, p. 5, capitalization altered.)  Plaintiff responds by contending that defendant’s conduct caused her “to have imminent fear” that defendant would make a harmful or offensive contact with her and that she did not consent to defendant’s conduct. (Opposition, p. 8.)  

As with plaintiff’s gender violence and sexual harassment claims, the demurrer to this cause of action is likewise sustained with leave to amend given the lack of any specific allegation that defendant’s subject conduct had no legitimate relation to the health care services he provided.  

(2)       Motion to Strike

            (A)       Standard

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

            (B)       Punitive Damages

Defendant moves to strike plaintiff’s punitive damages allegations on the basis that plaintiff has failed to comply with Code of Civil Procedure section 425.13.

Section 425.13 provides that no complaint (or other pleading) may include a claim for punitive damages in any action “arising out of the professional negligence of a health care provider” unless the court first enters an order allowing the filing of an amended pleading to include a claim for punitive damages. (Code Civ. Proc., § 425.13, subd. (a).)

There appears to be no dispute here as to whether defendant is a licensed “health care provider” within the meaning of section 425.13. Rather, the dispute turns on whether plaintiff’s action is one “arising out of the professional negligence of a health care provider.”

Section 425.13 does not define “professional negligence.” Thus, courts have looked to the legislative history of the term as used in the MICRA statutes for guidance in applying the term under section 425.13. The broad test is whether the injury for which damages are sought is “directly related to the professional services provided by the health care provider.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192.)

A sexual battery claim is subject to section 425.13 if the sexual act was directly related to the manner in which professional health care services were rendered. In Cooper v. Superior Court, supra, 56 Cal.App.4th 744, 749-751, the court held that section 425.13 applied to plaintiff’s claim for punitive damages based on the defendant gynecologist’s fondling of her genitalia during a gynecological examination. According to the court:

“The applicability of section 425.13 does not depend upon technical pleading distinctions between intentional versus negligent tort theories. [I]dentifying a cause of action as an intentional tort as opposed to negligence’ does not itself remove the claim from the requirements of section 425.13. Instead, [t]he allegations that identify the nature and cause of a plaintiff’s injury must be examined to determine whether each is directly related to the manner in which professional services were provided. Thus a claim of battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13, a claim of fraud in communication of test results is covered, a claim of intentional infliction of emotional distress arising from the rendition of professional services is covered, a claim of falsification of medical findings and conspiracy to deprive a patient of workers’ compensation benefits is covered, and a claim that a hospital allowed two hospital employees to rape a patient is covered.  

“Here plaintiff was allegedly in an examination room, on an examination table during the most critical events, naked from the waist down, with her legs spread in stirrups, in the standard position for gynecological examination and treatment, for the purpose of such examination and treatment. Defendant was allegedly a doctor administering gynecological health care, and hence was a health care provider within the meaning of section 425.13. Plaintiff alleges that the doctor, in the course of his interaction with plaintiff under these circumstances, used incorrect medical procedures and engaged in improper sexual touching. These allegations are indisputably directly related to the rendition of health care. According to plaintiff’s allegations, defendant doctor had access to plaintiff and the opportunity to make contact with her genitalia only because plaintiff came to him for medical care involving her genitalia.” (Cooper, supra, at pp. 749-750, internal quotations and citations omitted.)

However, and as the court in Cooper observed, where the conduct has no connection to the rendition of legitimate health care, the action does not fall within the purview of section 425.13. In this regard, the Cooper court explained pertinent dictum from Central Pathology:

“In discussing the reach of section 425.13, the Central Pathology court stated: [I]dentifying a cause of action as an intentional tort as opposed to negligence does not itself remove the claim from the requirements of section 425.13(a). The allegations that identify the nature and cause of plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided. Thus, a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13 because the injury arose out of the manner in which professional services are provided. By contrast, a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant’s conduct would not be directly related to the manner in which professional services were rendered.

“The italicized passage has generated mistaken trial court rulings and has resulted in appellate writs before. Plaintiffs have argued, and some courts have agreed, that the italicized passage necessarily means that no section 425.13 motion is ever needed when plaintiff pleads a claim of sexual battery. This is not the meaning of the point made about sexual battery in Central Pathology.

“Central Pathology noted merely that in most instances a claim of sexual battery would not be related to the manner in which professional services are rendered. Clearly this is so. Most types of services rendered by health care providers do not involve the genitalia. Thus if a podiatrist, ophthalmologist or dentist touches or manipulates a patient’s genitalia, there will usually be no arguable connection between such conduct and the rendition of legitimate health care. If a patient consults an orthopedic surgeon for treatment of bursitis in an elbow, there would usually be no occasion for the surgeon to touch or manipulate that patient’s genitalia. A doctor consulted for nutritional advice about cholesterol levels would not likely have a legitimate medical reason for manipulating genitalia. The list of examples of this type is endless. A doctor rendering gynecological care, by contrast, cannot render the full panoply of gynecological services without touching, probing or otherwise manipulating a woman’s genitalia. Thus when a gynecologist is accused, as here, of committing a sexual battery in the course of rendering gynecological services, that accusation is necessarily directly related to the manner in which the gynecological services were rendered.

“A different construction of section 425.13 would de facto constitute a blanket exclusion of gynecological services from the protections of section 425.13. Such a construction would revert the gynecological branch of medicine back to the posture all branches of medicine were in before the Willie L. Brown, Jr.-Bill Lockyer Civil Liability Reform Act of 1987 was passed—plaintiffs would have carte blanche discretion to plead punitive damage claims against doctors rendering gynecological services whenever they wished, without prior judicial review, simply by characterizing the doctor’s inevitable contact with the woman’s genitalia as sexual battery.” (Cooper, supra, at pp. 750-751, internal quotations and citations omitted.)

It is not alleged that the defendant here is a gynecologist. Rather, as plaintiff alleges, his “primary area of practice” is gastroenterology. (Complaint, ¶ 5.) Further, plaintiff visited defendant for her Crohn’s disease. (Id., ¶ 6.) Thus, it may be that defendant had no occasion to lift plaintiff’s clothing in order to view her vagina. Nevertheless, and as stated above in connection with defendant’s demurrer to the gender violence, harassment, and assault causes of action, plaintiff has failed to specifically allege that there was no reasonable connection between defendant’s conduct and the rendition of legitimate health care. Such an allegation is necessary to show that defendant’s conduct was not directly related to the manner in which professional services were rendered. (Central Pathology, supra, 3 Cal.4th 181, 192.)

Accordingly, defendant’s motion to strike is granted with leave to amend.