Tentative Ruling: G Eric Kuskey vs Salvatore A Garofalo et al
Case Number
25CV05845
Case Type
Hearing Date / Time
Fri, 10/09/2026 - 10:00
Nature of Proceedings
CMC; Demurrer; Demurrer to the Seventh Cause of Action; Motion to Strike; Motion to Strike Punitive Damages
Tentative Ruling
For the reasons set forth herein:
- Defendants Cottage Health and Pacific Diagnostic Laboratories, LLC’s demurrer to the seventh cause of action of plaintiff’s complaint is sustained with leave to amend.
- Defendant Salvatore A. Garofalo’s demurrer to the second, third, fourth, fifth, and sixth causes of action of plaintiff’s complaint is sustained in part and overruled in part;
- The demurrer to the second, fourth, fifth, and sixth causes of action is overruled.
- The demurrer to the third cause of action is sustained with leave to amend.
- Plaintiff shall file and serve his first amended complaint no later than October 23, 2026.
- Defendants’ motions to strike portions of plaintiff’s complaint is taken off-calendar as moot.
Background:
This action commenced on September 18, 2025, by the filing of the complaint by plaintiff G. Eric Kuskey (“plaintiff”) against Salvatore A. Garofalo (“Dr. Garofalo”), Cottage Health (“Cottage”), and Pacific Diagnostics Laboratories LLC (“PDL”) for: (1) Violation of Confidentiality of Medical Information Act - Against all Defendants; (2) Negligent Release of Confidential Medical Information - Against all Defendants; (3) Invasion of Privacy (Public Disclosure of Private Facts) - Against Dr. Garofalo; (4) Invasion of Privacy (Intrusion Upon Seclusion) _ Against Dr. Garofalo; (5) Intentional Infliction of Emotional Distress - Against Dr. Garofalo; (6) Negligence - Against all Defendants; and (7) Negligent Entrustment - Against Cottage and PDL.
As alleged in the complaint:
Dr. Garofalo is a licensed and certified physician and is employed by, affiliated with, or supervised by Cottage. (Compl., ¶ 6.)
Plaintiff was married to his estranged wife, Anita Kuskey (“Anita”), for 37 years and they have divorce proceedings currently pending in Santa Barbara County Superior Court. (Compl., ¶ 12.) (Note: Due to a common surname with plaintiff, Ms. Kuskey will be referred to by her given name for clarity. No disrespect is intended.)
Dr. Garofalo is Anita’s brother and, as a result, plaintiff has been acquainted with him for many years, although they did not get along and had many disagreements. (Compl., ¶ 13.) Plaintiff never sought medical advice from Dr. Garofalo, never authorized him to view plaintiff’s medical records, and never authorized Dr. Garofalo to distribute or reveal his medical records to anyone, including Anita. (Ibid.)
From 2015, to the present, plaintiff’s primary care physician was, and is, Dr. Dodson, who is employed by, or affiliated with, Sansum Clinic. (Compl., ¶ 14.) Plaintiff has never sought treatment from anyone employed at Cottage, during all relevant times. (Ibid.)
In late September or early October 2024, during plaintiff’s divorce proceedings, plaintiff received a telephone call from Anita wherein Anita began inquiring about plaintiff’s health and, in particular, mediations that plaintiff had been prescribed in addition to the results of plaintiff’s most recent medical tests that plaintiff had not shared with Anita or anyone else. (Compl., ¶ 15.) A few weeks later, plaintiff received another call from Anita wherein she inquired about plaintiff’s most recent medical test results, and she stated the exact blood pressure readings and other blood results from his annual physical. (Id. at ¶ 16.) As a result of the phone calls, plaintiff began investigating how Anita could have obtained such information. (Id. at ¶ 17.)
Plaintiff learned, from a compliance officer at Cottage and PDL, that plaintiff’s medical records were accessed impermissibly by Dr. Garofalo. (Compl., ¶¶ 18-23.)
On January 7, 2026, Cottage and PDL filed their demurrer to the seventh cause of action, for negligent entrustment, of the complaint. Also on January 7, 2026, Cottage and PDL filed their motion to strike plaintiff’s claim for punitive damages.
On March 11, 2026, Dr. Garofalo filed his demurrer to the second, third, fourth, fifth, and sixth causes of action of the complaint. Also on March 11, 2026, Dr. Garofalo filed his motion to strike portions of plaintiff’s complaint.
The demurrers and motions to strike are opposed.
Analysis:
Demurrer
“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(e) The pleading does not state facts sufficient to constitute a cause of action.
“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)
“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
Cottage and PDL Demurrer
Cottage and PDL demur to the seventh cause of action. By way of the complaint’s caption, the seventh cause of action is for negligent supervision, but in the body of the complaint it is for negligent entrustment.
“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. “ ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have . . . long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ ” [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)
Here, Cottage and PDL argue that the cause of action fails to state facts sufficient to constitute a cause of action, that it is uncertain and ambiguous, and that if plaintiff intended to allege negligent hiring, supervision, or retention, the claim is legally deficient.
Plaintiff argues that the medical records constitute an inherently dangerous item for purposes of setting forth a negligent entrustment claim or, in the alternative, the complaint states a claim for negligent hiring, supervision, or retention.
“The seminal case on negligent entrustment is Rocca v. Steinmetz (1923) 61 Cal.App. 102, 214 P. 257. “ ‘In its simplest form the question is whether the owner [or other supplier] when he permits an incompetent or reckless person, whom he knows to be incompetent or reckless, to take and operate his car [or any other instrumentality], acts as an ordinarily prudent person would be expected to act under the circumstances.’ ” (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 920.)
The court is aware of cases for negligent entrustment that involve automobiles (most common), firearms, aircraft, and other dangerous items. The court has not found any case, either directly or by implication, that would extend the doctrine to medical records, which are clearly the instrumentality that plaintiff is referring to in his complaint. Negligent entrustment is simply not applicable to plaintiff’s case against either Cottage or PDL.
“ ‘An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]’ ” [Citation.] Negligence liability will be imposed upon the employer if it “ ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ” [Citation.] As such, “ ‘California follows the rule set forth in the Restatement Second of Agency section 213, which provides in pertinent part: ‘ “A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: . . . [¶] (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others[.]” ’ [Citation.]’ ” [Citation.] Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability. [Citation.]” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)
Cottage and PDL argue that plaintiff fails to allege an employment relationship that would give rise to a cause of action for negligent hiring, supervision, or retention. Plaintiff argues that an employment relationship is not required to state a claim for negligent hiring, supervision, or retention, but that he has sufficiently pled the employment relationship anyway.
As noted above, plaintiff alleges that he is informed and believes that Dr. Garofalo is “employed by, affiliated with, and/or supervised by, Defendant Cottage Health.” (Compl., ¶ 6.) Plaintiff also makes the same allegation, as to both Cottage and PDL, at paragraphs 25 and 34, of the complaint, but those paragraphs are neither contained in, nor incorporated by reference into the seventh cause of action. Finally, at paragraph 77, which is contained in the seventh cause of action, plaintiff alleges that, upon information and belief, Dr. Garofalo is and was “under the employ and/or supervision of Cottage and PDL such that Cottage and PDL had a duty to ensure that [Dr.] Garofalo was fit to use the tools provided to him and would utilize them properly.” Thus, for pleading purposes, plaintiff has adequately alleged an employment relationship with Cottage and PDL. Any specific facts regarding that allegation, that Cottage and PDL argue are missing, may be explored by way of the discovery process.
Next, Cottage and PDL argue that plaintiff makes no allegations of prior misconduct or notice of unfitness. Plaintiff’s argument in opposition pertains to vicarious liability, which, as noted above, is not what a claim for negligent hiring, supervision, or retention is based on. Rather, it is a claim of direct liability wherein an employer “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.”
Here, plaintiff makes no allegations regarding any prior misconduct, disciplinary history, licensing issues, or any other facts that, even by reasonable implication, would support Cottage or PDL’s knowledge that Dr. Garofalo would access and disseminate plaintiffs, or anyone else’s, medical records.
The demurrer of Cottage and PDL to plaintiff’s seventh cause of action will be sustained with leave to amend.
Dr. Garofalo Demurrer
Dr. Garofalo demurs to the second, third, fourth, fifth, and sixth causes of action, all on the grounds that the complaint fails to state facts sufficient to constitute a cause of action.
The second cause of action is for negligent release of confidential medical information.
Dr. Garofalo first argues that the second cause of action fails because “the claim’s allegations are so vague that Dr. Garofalo cannot reasonably determine what conduct is charged, making meaningful responsive pleading impossible.” (Demurrer, p. 6, ll. 7-9.) The court disagrees. There is nothing vague about the allegations.
Dr. Garofalo next argues that the second cause of action fails because the first cause of action characterizes Dr. Garofalo’s conduct as intentional while the second cause of action characterizes the same conduct as negligent. The argument fails. It is well established that a plaintiff may plead inconsistent theories of recovery. “There is no prohibition against pleading inconsistent causes of action stated in as many ways as plaintiff believes his evidence will show, and he is entitled to recover if one well pleaded count is supported by the evidence.” (Wells v. Brown (1950) 97 Cal.App.2d 361, 364.)
The demurrer to the second cause of action will be overruled.
The third cause of action is for invasion of privacy - public disclosure of private facts.
Dr. Garofalo argues that the cause of action fails because there are no allegations that any disclosure was made to the public or to a sufficiently large group of people, as required by case law.
The elements of invasion of privacy based on public disclosure of private facts are: “ ‘ “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.” ’ ” [Citation.]” (Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1129 - 1130.)
The Restatement Second of Torts defines the public disclosure element as communication to the “ ‘public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge,’ ” noting “ ‘it is not an invasion to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons.’ ” (Rest.2d Torts, § 652D, com. a; see generally Elder, Privacy Torts (2002) § 3:3, pp. 3-16-3-21 [criticizing stringent application of Restatement standard].) In Kinsey v. Macur (1980) 107 Cal.App.3d 265, 271, the court concluded “ ‘the tort must be accompanied by publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few.’ ”
Here, the complaint alleges disclosure to “Anita, and likely others.” (Compl., ¶ 43, italics added.) This is not sufficient pleading. The demurrer to the third cause of action will be sustained with leave to amend. Should plaintiff choose not to reallege the cause of action for public disclosure of private facts at this time, he will not be barred from moving to amend his complaint, at a later time, should discovery reveal additional facts that disclose a wider disclosure of his medical information that would support the cause of action.
The fourth cause of action is for invasion of privacy - intrusion upon seclusion.
“ ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.’ ” [Citations.]” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231.)
Dr. Garofalo’s entire argument regarding the fourth cause of action is that the alleged conduct does not rise to the level of “highly offensive to a reasonable person.” (Demurrer, p. 12, ll. 3-16.)
The court disagrees with Dr. Garofalo’s argument. A reasonable trier of fact could certainly find that the alleged conduct of usurping medical records of his brother-in-law, in the position of a licensed physician, and then disclosing them to his sister in connection with a divorce, is highly offensive. The demurrer to the fourth cause of action will be overruled.
The fifth cause of action is for intentional infliction of emotional distress.
“The elements of the tort of intentional infliction of emotional distress are: ” ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. . . .” ’ Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” [Citation.] The defendant must have engaged in “ ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’ ” [Citation.]” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
Dr. Garofalo first argues that the alleged conduct is not legally outrageous. The cases cited by Dr. Garofalo in support of this argument are inapplicable to the factual allegations of the complaint. For example: Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965 has nothing to do with disclosure of medical records, and Urbaniak v. Newton (1991) 226 Cal.App.3d 1128 discusses the disclosure of plaintiff’s HIV status in a workers’ compensation case by an examining physician. That is not the case here. The complaint alleges that Dr. Garofalo, who was never plaintiff’s treating physician, accessed plaintiff’s medical records without permission, and disclosed them to plaintiff’s soon to be ex-wife. This behavior, by Dr. Garofalo, could most certainly raise to the level of being legally outrageous. As such, the first argument fails.
Dr. Garofalo next, briefly, argues that the complaint fails to allege severe emotional distress. The argument fails. Plaintiff alleges: “As a direct and proximate result of Garofalo’s conduct, Plaintiff suffered emotional distress by suffering embarrassment in front of his family, fear that others knew his most private secrets, anxiety and worry over what people thought of him in the community now that this information had been shared, and his faith and security in the medical system destroyed because anything he shared with his doctor in private was now on display for the world to see causing him severe emotional distress.” (Compl., ¶ 64.) The allegations are sufficient.
Dr. Garofalo next argues that the IIED claim is derivative of the CMIA claims. There is nothing preventing plaintiff from pleading both IIED and CMIA violations as separate causes of action arising from the same unauthorized disclosure of medical information. (see Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30; Fracies v. Kapla (2005) 127 Cal.App.4th 1381.) The argument fails.
Dr. Garofalo’s demurrer to the fifth cause of action will be overruled.
The sixth cause of action is for Negligence.
“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).)
“To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff’s damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)
Dr. Garofalo argues that he did not owe a negligence per se duty to plaintiff independent of CMIA. In making the argument, Dr. Garofalo appears to confuse the issue by claiming that plaintiff is asserting a negligence per se cause of action. He is not. He is asserting a negligence cause of action and alleging that the violation of the statutes are the evidentiary proof supporting the breach of the standard of care. We do not weigh that evidentiary proof on demurrer.
The allegations contained in the complaint do appear to allege the negligence per se violation of Civil Code sections 56.10, subdivision (a), and 56.101, subdivision (a). (Compl., ¶¶ 69-72.) However, that does not dispose of the cause of action or negate any common law duty owed by Dr. Garofalo to plaintiff, or any other member of the public, with respect to impermissibly disseminating medical records.
“[T]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1286.) As stated, ante, there still must be a valid underlying cause of action for negligence for the doctrine to apply. (Id. at p. 1285, 45 Cal.Rptr.3d 222.)” (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn. 2.)
Plaintiff adequately pleads a cause of action for negligence, as well as the required elements of duty, breach, causation, and damages. The demurrer to the sixth cause of action will be overruled.
Motions to Strike
“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).)
“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)
“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)
“As used in this section, the following definitions shall apply:
“(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
“(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
“(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c).)
As the demurrer of Cottage and PDL is being sustained with leave to amend, the court will take the motions to strike off-calendar as moot. The court encourages the parties to consider each other’s positions with respect to the arguments made in the motions to strike, as well as the oppositions thereto, when evaluating the amended pleading. And, in an attempt at guidance, and without specifically ruling on the issue at this time, the court notes that the defendants’ arguments regarding punitive damages being barred by Civil Code section 425.13, subdivision (a), appears to be wholly without merit.