Judge: Cherol J. Nellon, Case: 23STCV14303, Date: 2024-01-03 Tentative Ruling
Case Number: 23STCV14303 Hearing Date: January 3, 2024 Dept: 14
Rashti v. Kim, et al.
Case Background
Plaintiff alleges he went in for
cataract surgery and came out with even worse vision.
On June 21,
2023, Plaintiff filed his Complaint (“SAC”) for (1) Negligence, (2) Lack of Informed
Consent, (3) Breach of Fiduciary Duty, (4) Elder Abuse and (5) Medical Battery against
Defendants Jae Y. Kim (“Kim”), Regents of the University of California (“Regents”),
and DOES 1-25.
Defendant
Kim has not yet been served.
No trial date has yet been set.
(1) Demurrer
Defendant
Regents now demurs, per Code of Civil Procedure §§ 430.10(e)-(f), to the entire
Complaint on the grounds that it fails to state facts sufficient to constitute any
cause of action and is uncertain.
Decision
The
demurrer is SUSTAINED, with 30 days leave to amend.
First Cause of Action: Professional Negligence
“Actionable negligence is
traditionally regarded as involving the following: (a) a legal duty to use due
care; (b) a breach of such legal duty; (c) the breach as the proximate or legal
cause of the resulting injury.” Seo v. All-Makes Overhead Doors (2002) 97
Cal.App.4th 1193, 1202. A professional malpractice claim requires the proof of
the same elements; the only difference is that “due care” for a professional
means “such skill, prudence, and diligence as to other members of [the]
profession commonly possess and exercise.” Budd v. Nixen (1971) 6 Cal.3d
195, 200.
Plaintiff has not clearly pled the negligence
of the Regents, nor has he clearly explained why the Regents should be involved
in this case, as Defendant Kim is the professional who performed the surgery.
Second Cause of Action: Lack of Informed Consent
Lack of Informed
Consent is an alternative form of negligence pleading. Saxena v. Goffney
(2008) 159 Cal.App.4th 316, 324; Nelson v. Gaunt (1981) 125
Cal.App.3d 623, 634. This claim focuses the inquiry not on the practitioner’s performance, but on their duty to
disclose information regarding the procedure they will perform. “[T]he duty to
disclose risks of death, serious injury, or significant complications is not
defined by the custom or practice of the medical community.” Spann v. Irwin
Memorial Blood Centers (1995) 34 Cal.App.4th 644, 655 (emphasis
in original). A physician is obliged to disclose any information which is, or
would be, material to the patient’s decision. Cobbs v. Grant (1972) 8
Cal.3d 229, 244-245.
Here
again, Plaintiff has not clearly explained why the Regents are being sued, as
opposed to Defendant Kim, the professional who bears the duty to disclose.
Third Cause of Action: Breach
of Fiduciary Duty
“The
elements of a cause of action for breach of fiduciary duty are: 1) the
existence of a fiduciary duty; 2) a breach of the fiduciary duty; and 3)
resulting damage. (City of Atascadero v. Merill, Lynch, Pierce, Fenner &
Smith, Inc. (1999)
While there is a fiduciary
relationship between Plaintiff and Defendant Kim (Stafford v. Schultz
(1954) 42 Cal.2d 767, 777) there does not appear to be such a relationship
between Plaintiff and Defendant Regents. Fiduciary duties are “technical, legal” creations, “recognized” and “imposed”
by case law or assumed by express agreement. See Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 631-632
(citing cases). Plaintiff cites no case which creates a fiduciary duty between
himself and the Regents.
Fourth Cause of
Action: Elder Abuse
Welfare
& Institutions Code § 15610.07(a) provides:
(a) “Abuse
of an elder or a dependent adult” means any of the following:
(1) Physical abuse, neglect,
abandonment, isolation, abduction, or other treatment with resulting physical
harm or pain or mental suffering.
(2) The deprivation by a care
custodian of goods or services that are necessary to avoid physical harm or
mental suffering.
(3) Financial abuse, as defined in
Section 15610.30.”
Each of these three categories represents a different claim,
with different elements and standards of proof. Compare Welfare & Institutions
Code § 15657 with Welfare & Institutions Code § 15657.5. It is
unclear which of these three categories Plaintiff means to apply to himself.
Plaintiff needs to clarify which category he thinks applies, and plead the
elements of that category.
Fifth Cause of Action: Medical Battery
“[A]
battery is an intentional tort that occurs when a doctor performs a procedure
without obtaining any consent.” Saxena, supra, 159 Cal.App.4th
at 324. The California Supreme Court has defined medical battery as “[w]hen the
patient gives permission to perform one type of treatment and the doctor
performs anoth[e]r.” Cobbs, supra, 8 Cal.3d at 240.
Plaintiff
has pled that he went in for cataract surgery and it didn’t work; in fact, it
made his eyes worse. The failure of the intended procedure, whether from
negligence or sheer bad luck, is not medical battery. Plaintiff must plead that
Defendant Kim either performed a different kind of surgery, or else
deliberately botched the procedure. And in either event, Plaintiff must explain
why Defendant Regents should be legally responsible for Defendant Kim’s alleged
bad behavior.
Conclusion
Plaintiff
has not properly pled any cause of action against Defendant Regents. However,
this is the first test of the pleadings, and he may yet be able to properly
plead his claims. Therefore, the demurrer is SUSTAINED, with 30 days leave
to amend.
(2) Motion to
Strike
Defendant Regents
now moves this court for an order striking the punitive damages allegations
from the complaint.
The motion is GRANTED.
Discussion
Punitive
damages may not be awarded against public entities. Government Code 818.
Defendant Regents are a public entity. Government Code § 811. Plaintiff
may not recover punitive damages from Defendant Regents. The court expresses no
opinion at this time on Plaintiff’s ability to recover such damages from
Defendant Kim.