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Ortegoza v. Kho

United States District Court, S.D. California

April 24, 2014

FRANK ORTEGOZA, et al., Plaintiffs,
v.
PETER KHO, M.D., et al., Defendants.

ORDER DENYING DEFENDANT'S MOTION FOR REMAND [DOC. 82]

M. JAMES LORENZ, District Judge.

Plaintiffs Portia Ortegoza and Frank Ortegoza, who were married at all times relevant to this complaint, were both patients of Defendant Peter Kho, M.D.. This action arises from Dr. Kho's extramarital relationship with Mrs. Ortegoza.

Pending before the Court is Dr. Kho's motion to remand. [Doc. 82-1.] The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). [Doc. 86.] For the following reasons, the Court DENIES Dr. Kho's motion for remand. [Doc. 82-1.]

I. BACKGROUND[1]

Portia and Frank Ortegoza are married and have been at all times relevant to the TAC. (TAC ¶ 9.) The Ortegozas are entitled to receive medical care through the federal TRICARE program by virtue of Mr. Ortegoza's service in the Navy. (Id.) Accordingly, the Ortegozas received medical care at a Navy medical clinic that is operated by TRICARE. (JSUF ¶¶ 6, 9.) Mrs. Ortegoza had worked in this clinic in a clerical capacity since 2000 or 2001, at which time she met Dr. Kho, a physician at the clinic. ( Id. ¶¶ 3, 4.) The Ortegozas received medical care from a variety of doctors, including Dr. Kho. ( Id. ¶¶ 6, 9.)

Mrs. Ortegoza and Dr. Kho had a sexual relationship that lasted from January 2009 until June 2010. ( Id. ¶ 1.) Mrs. Ortegoza alleges that Dr. Kho induced her to participate in sexual conduct under the guise that it would "help" her deal with the psychological conditions for which she had sought treatment. ( Id. ¶ 13.) She also alleges that she disclosed to Dr. Kho that Frank Ortegoza had hit her, and that Dr. Kho failed to report this disclosure. (TAC ¶ 17.) However, the parties agree that no physical abuse occurred subsequent to Dr. Kho's failure to report the abuse. (JSUF ¶ 8.) In June 2010, Frank Ortegoza discovered the sexual relationship between Dr. Kho and his wife, which prompted Dr. Kho to end the relationship. ( Id. ¶ 7.)

On March 1, 2012, Defendant United States of America removed this medical malpractice action to this Court from the San Diego Superior Court. ( Notice of Removal [Doc. 1].) On May 20, 2013, the Ortegozas filed their consolidated TAC, alleging two causes of action: (1) Mrs. Ortegoza's medical malpractice claim against Dr. Kho, and (2) Mr. Ortegoza's medical malpractice claim against Dr. Kho. On June 11, 2013, Dr. Kho moved for summary adjudication on the following issues only:

1) Whether DEFENDANT PETER KHO, M.D. is liable for medical malpractice by engaging in sexual conduct with PLAINTIFF PORTIA ORTEGOZA under the guise of medical treatment pursuant to the controlling test set forth in Atienza v. Taub, 194 Cal.App.3d 388 (Ct. App. 1987);
2) Whether DEFENDANT PETER KHO, M.D.'s alleged failure to report physical abuse resulted in additional physical abuse, giving rise to a civil action by PLAINTIFF PORTIA ORTEGOZA under California Penal Code § 11160; and
3) Whether DEFENDANT PETER KHO, M.D. is liable for medical malpractice by breaching a duty of care to PLAINTIFF FRANK ORTEGOZA independent from the abolished tort of "criminal conversation" and Alienation of Affection pursuant to Cal. Civ. Code §§ 43.4, 43.5; Smith v. Pust, 19 Cal.App.4th 263 (4th Dist. 1993).

(Def.'s Mot. 1:11-26.) On December 4, 2013, this Court denied Dr. Kho's motion. ( Order Denying Summary Judgment [Doc. 78].) On December 16, 2013, this Court granted the parties joint motion to dismiss the United States as a defendant. ( Order Dismissing United States [Doc. 80].)

Dr. Kho now moves for remand, arguing that the dismissal of the United States as a party has divested this Court of original jurisdiction and that this Court should decline to exercise supplemental jurisdiction over the case under 28 U.S.C. § 1367(c). ( Mot. Remand 2.) The Ortegozas do not dispute that the Court no longer has original jurisdiction over this matter, but instead suggest that the Court should use its discretion to retain supplemental jurisdiction over the matter. ( Opp'n [Doc. 84] 4.)

II. LEGAL STANDARD

28 U.S.C. § 1367, which applies to cases commenced after December 1, 1990, provides the basis ...


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