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Prepared by Plaintiff
FILED
Superior Court of California
County of San Francisco
|
AU3O1 202
CLERK QF spp R COURT
By _ lela ; Vinnie
we Deputy
|
|
SUPERIOR COURT OF THE STATE OF CALIFORNIA |
Raymond Vincent DiGiacomo, Jr.,
Plaintiff,
HealthRight 360;
Denise Williams;
Vitka Eisen; and,
DOES 1 through 100, inclusive,
Defendants.
COUNTY OF SAN FRANCISCO |
[CIVIL UNLIMITED] |
Case No. CGC-22-601012
|
|
q
[PROPOSED] ORDER OVERRULING|IN PART
DEFENDANTS’ DEMURRER TO PLAINTIFF’S
SECOND AMENDED COMPLAINT;
|
Hearing Date: July 31, 2025 |
Judge: Hon. Christine B. Van Aken
|
Time: 9:00 a.m. |
Dept: 301 |
Action Filed: July 29, 2022 |
Trial Date: Not Set |
|
-1-
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiff's Second Amended ComplaintPage 2 Oo ~e NY NH WA FP WY NY
No wo tO NY NO NY NY N YN fF FP FP FP Fe Fe FP ESP Ee
oN KN UN KR DH NY KH Oo Oo ON DKON AH SF WY NY FF S&S
Defendants HealthRight 360 et al.’s demurrer to the second amended complaint (SAC) jis
sustained in part and overruled in part.
Plaintiff Raymond DiGiacomo is suing his former healthcare provider HealthRight 360 and
two of its employees for allegedly destroying, losing, or misplacing his health records. In the first
amended complaint (FAC), Plaintiff asserted causes of action (COAs) for breach of contract and
negligence. The court sustained Defendants’ demurrer without leave to amend as to the breach of
contract claim, which was barred by a 2020 action against HealthRight that ended with summary
judgment in HealthRight’s favor. DiGiacomo has now amended to allege claims arising out of the loss
of medical records. |
|
DiGiacomo’s SAC asserts four causes of action: (1) violation of statutory duty (intentional);
(2) violation of statutory duty (unintentional); (3) negligence (intentional); (4) negligence |
(unintentional). Defendants once again demurrer to the entire complaint under CCP 430.10(e).
On a demurrer under Code of Civil Procedure § 430.10(e), the court takes the facts properly
pleaded and properly noticed as true and considers whether the challenged cause of action necessarily
fails to state a cause for relief. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “[I]f, on consideration of
all facts stated, it appears that plaintiff is entitled to any relief against defendant, the complaint will be
held good, though facts may not be clearly stated, or may be intermingled with a statement of other
facts irrelevant to cause of action shown, or though plaintiff may demand relief to which he ig not
entitled under facts alleged.” (Augustine v. Trucco (1954) 124 Cal.App.2d 229, 236, quoting Matteson
v. Wagoner (1905) 147 Cal. 739, 742.) The court liberally construes the complaint per CCP 452.
The first and second causes of action recite alleged breaches of Business & Professions Code
section 2266, Welfare & Institutions Code section 14124.1, and/or California Code of Regulations,
Title 22, section 75055. “It is well settled that there is a private right of action to enforce a statute only
if the statutory language or legislative history affirmatively indicates such an intent. That intent need
not necessarily be expressed explicitly, but if not it must be strongly implied.” (Noe v. Superior Court
(2015) 237 Cal.App.4th 316, 336-337 [internal quotations and citations omitted].) Here, the statutes
DiGiacomo cites contain no language indicating the Legislature intended to create a private tight of
action to enforce them. Rather, the expressly stated mechanism is administrative or medical board
-2-
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiffs Second Amended Complaint
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oversight of these laws and regulations. (See e.g., Bus. & Prof. Code section 2220 [Board powers and
duties; actions against persons guilty of violating chapter; enforcement and administration of this
article]; Wel. & Inst. Code section 14123 [Suspension of provider of service...].) Because Plaintiff
fails to allege any statutory private right of action, the demurrer is sustained as to his statutory claims.
’ |
In opposition, Plaintiff newly cites to Health and Safety Code section 123145, which allows
“any person injured as a result of the licensee’s abandonment of health records” to bring an action for
damages. Defendants argue this provision only applies “if the licensee ceases operation.” (Subd. (a).)
The provision does not apply to an ongoing healthcare provider like HealthRight 360.
The court now turns to DiGiacomo’s negligence claims. These are pled as separate oases of
action for intentional and unintentional negligence. There is no such thing as intentional negligence;
negligence is an unintentional tort. The demurrer is sustained without leave to amend as to the third
cause of action.
|
The fourth cause of action is for negligence. Defendants argue that this claim is barred by
claim preclusion. “Claim preclusion, often referred to as res judicata, provides that a valid, final
judgment on the merits precludes parties or their privies from relitigating the same cause of action ina
subsequent suit. ... Application of the doctrine of res judicata is intended to preserve the integrity of
the judicial system, promote judicial economy, and protect litigants from harassment by vexatious
litigation.” (City of Oakland'v. Oakland Police & Fire Ret. Sys. (2014) 224 Cal. App. 4th 210) 227-
228 [internal quotations and citations omitted].) Claim preclusion has three requirements: (1) the
second lawsuit must involve the same cause of action as the first lawsuit; (2) there must have been a
final judgment on the merits in the prior litigation; and (3) the parties in the second lawsuit must be the
same or in privity with the parties to the first lawsuit. (/d. at 228.)
Defendants fail to show the first prong applies. “Whether two lawsuits are based on the same
|
cause of action is determined in California by reference to the primary right theory. Under this theory, -
a ‘cause of action’ is comprised of a primary right possessed by the plaintiff, a corresponding duty
imposed upon the defendant, and a wrong done by the defendant which is a breach of such primary
right and duty. The primary right is the plaintiff's right to be free of the particular injury, regardless of
the legal theory on which liability is premised or the remedy which is sought. Thus, it is the harm
|
-3-
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiff’s Second Amended ComplaintPage 4 NO
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suffered that is the significant factor in defining the primary right at issue.” (City of Oakland v.
Oakland Police & Fire Ret. Sys. (2014) 22 Cal.App.4th 210, 229 [internal citations and quotations
omitted, emphasis in original].) !
|
Here, the court cannot hold, as a matter of law, that the harm pled by Plaintiff in the 2020 case
is the same harm for which he now seeks redress. The 2020 case asserted defendants were negligent
by, among other issues, failing to address Plaintiff s two grievances, a suggestion note, and |
correspondence around the time of treatment in 2018 and 2019. (10/16/20 complaint, para. 32.) These
injuries regarded HealthRight’s alleged responsiveness to Plaintiff's complaints. By contrast, here,
Plaintiff alleges Defendants negligently lost his patient files following this treatment. The injuries are
not coextensive: Defendants could have been unresponsive but kept files, or responded adequately but
misplaced files years later. Further, Plaintiff allegedly discovered the lost files when, “[o]n or about
October 13, 2021, Defendants then conveyed to Plaintiff they did not possess said documents |
described.” This discovery allegedly occurred well into the 2020 action, and a couple weeks ster
HealthRight had moved for summary judgment. It was not necessarily an injury that Plaintiff could
have pursued in the 2020 action by amending his complaint. (Falcon v. Long Beach Genetics, Inc.
(2014) 224 Cal. App. 4th 1263, 1280 [leave to amend after the defense’s motion for summary:
judgment may unfairly allow plaintiff to defeat the motion by presenting a moving target unbgunded
by the pleadings].) Moreover, DiGiacomo contends in his opposition that HealthRight’s experts’
summary judgment motions in the prior action in fact confirm that HealthRight had copies of the
grievances as of the time his 2020 case was filed and must have lost or destroyed them later. if the
harm was not suffered at the time the first case was filed, it cannot stem from the same primary right
the first case sought to vindicate. Thus, the court cannot say at the pleadings stage that claim
preclusion applies. A more developed record may show otherwise. |
Nor have Defendants shown that Plaintiff's negligence claim is necessarily time barred under
the one-year statute of limitations for professional negligence actions. (See CCP 340.5) The Lost files
were allegedly discovered on October 13, 2021, within one year of Plaintiff commencing this action
on July 29, 2022.
/
Hl |
-4-
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiff's Second Amended ComplaintPage 5 \o
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otherwise sustained without leave to amend.
Dated:
Accordingly, the demurrer to the fourth COA for negligence is overruled. The demurrer is
|
IT IS SO ORDERED.
a r
Hon. Christine B. Van Aken
Judge of the Superior Court
i
1
|
-5- |
=!
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiff's Second Amended Complaint
PDF Page 1
PlainSite Cover Page
PDF Page 2
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Line 11
Prepared by Plaintiff
FILED
Superior Court of California
County of San Francisco
|
AU3O1 202
CLERK QF spp R COURT
By _ lela ; Vinnie
we Deputy
|
|
SUPERIOR COURT OF THE STATE OF CALIFORNIA |
Raymond Vincent DiGiacomo, Jr.,
Plaintiff,
HealthRight 360;
Denise Williams;
Vitka Eisen; and,
DOES 1 through 100, inclusive,
Defendants.
COUNTY OF SAN FRANCISCO |
[CIVIL UNLIMITED] |
Case No. CGC-22-601012
|
|
q
[PROPOSED] ORDER OVERRULING|IN PART
DEFENDANTS’ DEMURRER TO PLAINTIFF’S
SECOND AMENDED COMPLAINT;
|
Hearing Date: July 31, 2025 |
Judge: Hon. Christine B. Van Aken
|
Time: 9:00 a.m. |
Dept: 301 |
Action Filed: July 29, 2022 |
Trial Date: Not Set |
|
-1-
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiff's Second Amended Complaint
PDF Page 3
Oo ~e NY NH WA FP WY NY
No wo tO NY NO NY NY N YN fF FP FP FP Fe Fe FP ESP Ee
oN KN UN KR DH NY KH Oo Oo ON DKON AH SF WY NY FF S&S
Defendants HealthRight 360 et al.’s demurrer to the second amended complaint (SAC) jis
sustained in part and overruled in part.
Plaintiff Raymond DiGiacomo is suing his former healthcare provider HealthRight 360 and
two of its employees for allegedly destroying, losing, or misplacing his health records. In the first
amended complaint (FAC), Plaintiff asserted causes of action (COAs) for breach of contract and
negligence. The court sustained Defendants’ demurrer without leave to amend as to the breach of
contract claim, which was barred by a 2020 action against HealthRight that ended with summary
judgment in HealthRight’s favor. DiGiacomo has now amended to allege claims arising out of the loss
of medical records. |
|
DiGiacomo’s SAC asserts four causes of action: (1) violation of statutory duty (intentional);
(2) violation of statutory duty (unintentional); (3) negligence (intentional); (4) negligence |
(unintentional). Defendants once again demurrer to the entire complaint under CCP 430.10(e).
On a demurrer under Code of Civil Procedure § 430.10(e), the court takes the facts properly
pleaded and properly noticed as true and considers whether the challenged cause of action necessarily
fails to state a cause for relief. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “[I]f, on consideration of
all facts stated, it appears that plaintiff is entitled to any relief against defendant, the complaint will be
held good, though facts may not be clearly stated, or may be intermingled with a statement of other
facts irrelevant to cause of action shown, or though plaintiff may demand relief to which he ig not
entitled under facts alleged.” (Augustine v. Trucco (1954) 124 Cal.App.2d 229, 236, quoting Matteson
v. Wagoner (1905) 147 Cal. 739, 742.) The court liberally construes the complaint per CCP 452.
The first and second causes of action recite alleged breaches of Business & Professions Code
section 2266, Welfare & Institutions Code section 14124.1, and/or California Code of Regulations,
Title 22, section 75055. “It is well settled that there is a private right of action to enforce a statute only
if the statutory language or legislative history affirmatively indicates such an intent. That intent need
not necessarily be expressed explicitly, but if not it must be strongly implied.” (Noe v. Superior Court
(2015) 237 Cal.App.4th 316, 336-337 [internal quotations and citations omitted].) Here, the statutes
DiGiacomo cites contain no language indicating the Legislature intended to create a private tight of
action to enforce them. Rather, the expressly stated mechanism is administrative or medical board
-2-
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiffs Second Amended Complaint
|
PDF Page 4
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oversight of these laws and regulations. (See e.g., Bus. & Prof. Code section 2220 [Board powers and
duties; actions against persons guilty of violating chapter; enforcement and administration of this
article]; Wel. & Inst. Code section 14123 [Suspension of provider of service...].) Because Plaintiff
fails to allege any statutory private right of action, the demurrer is sustained as to his statutory claims.
’ |
In opposition, Plaintiff newly cites to Health and Safety Code section 123145, which allows
“any person injured as a result of the licensee’s abandonment of health records” to bring an action for
damages. Defendants argue this provision only applies “if the licensee ceases operation.” (Subd. (a).)
The provision does not apply to an ongoing healthcare provider like HealthRight 360.
The court now turns to DiGiacomo’s negligence claims. These are pled as separate oases of
action for intentional and unintentional negligence. There is no such thing as intentional negligence;
negligence is an unintentional tort. The demurrer is sustained without leave to amend as to the third
cause of action.
|
The fourth cause of action is for negligence. Defendants argue that this claim is barred by
claim preclusion. “Claim preclusion, often referred to as res judicata, provides that a valid, final
judgment on the merits precludes parties or their privies from relitigating the same cause of action ina
subsequent suit. ... Application of the doctrine of res judicata is intended to preserve the integrity of
the judicial system, promote judicial economy, and protect litigants from harassment by vexatious
litigation.” (City of Oakland'v. Oakland Police & Fire Ret. Sys. (2014) 224 Cal. App. 4th 210) 227-
228 [internal quotations and citations omitted].) Claim preclusion has three requirements: (1) the
second lawsuit must involve the same cause of action as the first lawsuit; (2) there must have been a
final judgment on the merits in the prior litigation; and (3) the parties in the second lawsuit must be the
same or in privity with the parties to the first lawsuit. (/d. at 228.)
Defendants fail to show the first prong applies. “Whether two lawsuits are based on the same
|
cause of action is determined in California by reference to the primary right theory. Under this theory, -
a ‘cause of action’ is comprised of a primary right possessed by the plaintiff, a corresponding duty
imposed upon the defendant, and a wrong done by the defendant which is a breach of such primary
right and duty. The primary right is the plaintiff's right to be free of the particular injury, regardless of
the legal theory on which liability is premised or the remedy which is sought. Thus, it is the harm
|
-3-
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiff’s Second Amended Complaint
PDF Page 5
NO
So Co NSN DWN OH HE WwW
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—s os
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suffered that is the significant factor in defining the primary right at issue.” (City of Oakland v.
Oakland Police & Fire Ret. Sys. (2014) 22 Cal.App.4th 210, 229 [internal citations and quotations
omitted, emphasis in original].) !
|
Here, the court cannot hold, as a matter of law, that the harm pled by Plaintiff in the 2020 case
is the same harm for which he now seeks redress. The 2020 case asserted defendants were negligent
by, among other issues, failing to address Plaintiff s two grievances, a suggestion note, and |
correspondence around the time of treatment in 2018 and 2019. (10/16/20 complaint, para. 32.) These
injuries regarded HealthRight’s alleged responsiveness to Plaintiff's complaints. By contrast, here,
Plaintiff alleges Defendants negligently lost his patient files following this treatment. The injuries are
not coextensive: Defendants could have been unresponsive but kept files, or responded adequately but
misplaced files years later. Further, Plaintiff allegedly discovered the lost files when, “[o]n or about
October 13, 2021, Defendants then conveyed to Plaintiff they did not possess said documents |
described.” This discovery allegedly occurred well into the 2020 action, and a couple weeks ster
HealthRight had moved for summary judgment. It was not necessarily an injury that Plaintiff could
have pursued in the 2020 action by amending his complaint. (Falcon v. Long Beach Genetics, Inc.
(2014) 224 Cal. App. 4th 1263, 1280 [leave to amend after the defense’s motion for summary:
judgment may unfairly allow plaintiff to defeat the motion by presenting a moving target unbgunded
by the pleadings].) Moreover, DiGiacomo contends in his opposition that HealthRight’s experts’
summary judgment motions in the prior action in fact confirm that HealthRight had copies of the
grievances as of the time his 2020 case was filed and must have lost or destroyed them later. if the
harm was not suffered at the time the first case was filed, it cannot stem from the same primary right
the first case sought to vindicate. Thus, the court cannot say at the pleadings stage that claim
preclusion applies. A more developed record may show otherwise. |
Nor have Defendants shown that Plaintiff's negligence claim is necessarily time barred under
the one-year statute of limitations for professional negligence actions. (See CCP 340.5) The Lost files
were allegedly discovered on October 13, 2021, within one year of Plaintiff commencing this action
on July 29, 2022.
/
Hl |
-4-
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiff's Second Amended Complaint
PDF Page 6
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“ao NN OH SF DY NY
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otherwise sustained without leave to amend.
Dated:
Accordingly, the demurrer to the fourth COA for negligence is overruled. The demurrer is
|
IT IS SO ORDERED.
a r
Hon. Christine B. Van Aken
Judge of the Superior Court
i
1
|
-5- |
=!
[Proposed] Order Overruling in Part Defendants’ Demurrer to Plaintiff's Second Amended Complaint
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