Judge: Carolyn M. Caietti, Case: 37-2022-00010022-CU-MM-CTL, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 23, 2024

05/24/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2022-00010022-CU-MM-CTL REMLAND VS SCHULTZEL DO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Matthew Schultzel's Demurrer to Plaintiffs' First Amended Complaint is OVERRULED.

Defendants Daniel Burgess and United Medical Doctors' Demurrer to Plaintiffs' First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Statement of the Law A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Dr. Schultzel's Demurrer Defendant Schultzel's request for judicial notice of the Court's minute order dated February 9, 2024 is granted and notice will be taken to the extent permitted.

As against Dr. Shultzel, the FAC states sufficient facts to constitute the fourth through seventh causes of action. (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1268 [elements of intentional misrepresentation and concealment]; Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158-59 [fraud and negligent misrepresentation]; Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131 [constructive fraud].) Dr. Schultzel's framing of these causes of action is not reflective of what is alleged in the FAC. As alleged, these causes of action do not present a case about nondisclosure of risks or not obtaining intended results. Rather, the crux of the allegation is that Dr. Shultzel told Plaintiff the sole treatment she needed was surgery. This was false and made to induce Mrs. Remland to accept the treatment so Dr.

Shultzel could profit off it. (FAC, at ¶¶ 15-18, 42-44, 47-52, 57-59, 62-64.) The FAC alleges these claims Calendar No.: Event ID:  TENTATIVE RULINGS

3088118  39 CASE NUMBER: CASE TITLE:  REMLAND VS SCHULTZEL DO [IMAGED]  37-2022-00010022-CU-MM-CTL with the required specificity and any specificity requirement is relaxed when the allegations indicate the facts lie more in the defendant's knowledge. (Tarmann, supa, 2 Cal.App.4th at p. 158.) Specifically for the constructive fraud cause of action, Dr. Shultzel makes a confusing argument acknowledging the doctor-patient relationship is a fiduciary relationship (an element for this claim), but that allowing this cause of action would improperly and unfairly confuse the jury. This is not the standard on a demurrer. Even the case cited by Dr. Shultzel, Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129, concludes a physician must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment; and a physician's failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty.

For purposes of demurrer, the eighth cause of action sufficiently states facts to constitute a violation of the Consumer Legal Remedies Act. (Civ. Code, § 1770(a)(5) [unlawful business practices include representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have].) Here, Plaintiffs allege facts showing patients are referred to surgical treatment, representing the surgical treatment had a characteristic, use or benefit it did not have in order to sell the surgical treatment. (FAC, at ¶ 68.) Thus, for these reasons, Dr. Shultzel's Demurrer is OVERRULED.

Dr. Burgess and United Medical Doctors (UMD)'s Demurrer As to the fourth through seventh causes of action, the FAC lacks sufficient facts regarding Dr. Burgess and UMD. The FAC makes clear that Dr. Burgess took Mrs. Remland's medical history; Dr. Schultzel 'looked at the lump.' (FAC, at ¶ 15.) But it was Dr. Schultzel who 'informed Mrs. Remland that he could 'take care of this,'' did not inform her that hemorrhoids were generally not treated surgically or that non-surgical treatments were available to treat her symptoms. (FAC, at ¶ 16.) In addition, the FAC makes clear that it is Dr. Schultzel who 'operates a volume-based surgical practice that emphasizes performing as many surgeries as possible' and who is 'motivated to treat patients surgically, whenever possible.' (FAC, at ¶ 18.) There are no facts regarding representations Dr. Burgess or UMD made. The Court also agrees with these defendants that by 'lumping' all defendants together, its uncertain as to what misrepresentations/concealments Dr. Burgess/UMD made aside from those by Dr. Schultzel.

Plaintiffs' opposition also does not respond to UMD's argument that a fraud action against a corporation requires the plaintiff to allege the names of the person who made the allegedly fraudulent misrepresentations, their authority to speak, to whom they spoke, etc. (Tarmann, supra, 2 Cal.App.4th at p. 157.) Here, the opposition impliedly concedes this information was not alleged as the most Plaintiffs can cite to is when Mrs. Remland called to schedule an appointment and spoke with an employee who has since been identified in discovery. (Opp., at p. 4:14-25.) Thus, the fourth, fifth, sixth and seventh causes of action are not sufficiently plead.

Accordingly, Plaintiffs have not sufficiently alleged facts to constitute a violation of the Consumer Legal Remedies Act and there are no facts Dr. Burgess/UMD represented that 'goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have.' (Civ. Code, § 1770(a)(5).) Plaintiffs also have not identified how they would amend the FAC. (Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150 (explaining the plaintiff has the burden of proving an amendment would cure the legal defect.) In opposition, Plaintiff 'withdraws' the ninth cause of action. (Opp., at p. 15:1-5.) For these reasons, Dr. Burgess and UMD's Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

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3088118  39 CASE NUMBER: CASE TITLE:  REMLAND VS SCHULTZEL DO [IMAGED]  37-2022-00010022-CU-MM-CTL Concluding Orders Defendant Shultzel is ordered to file and serve an answer to the FAC by June 14, 2024.

Defendants Burgess and UMD are ordered to prepare and submit a judgment of dismissal in accordance with any laws and rules of court.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final rulings on the demurrers. Defendant Schultzel is ordered to serve written notice of the Court's final ruling on all appearing parties by May 29, 2024.

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