Judge: Christopher K. Lui, Case: 23STCV00056, Date: 2025-04-16 Tentative Ruling
Case Number: 23STCV00056 Hearing Date: April 16, 2025 Dept: 76
Plaintiffs allege that Defendants’ medical negligence during surgery caused her to suffer vocal irregularities.
Defendant Mai Lor (Doe 1) demurs to the Complaint and moves to strike portions thereto.
TENTATIVE RULING
Defendant Mai Lor (Doe 1)’s demurrer to the Complaint is SUSTAINED without leave to amend as to the second and sixth causes of action, and with leave to amend as to the third, fourth and fifth causes of action.
Defendant’s motion to strike is MOOT as to the third, fourth and fifth causes of action and is GRANTED with leave to amend as to attorney’s fees, punitive damages and prejudgment interest.
Plaintiff is given 30 days’ leave to amend where indicated.
ANALYSIS
Demurrer
Meet and Confer
The
Declaration of Matthew T. Cox reflects that Defendant satisfied the meet and
confer requirement set forth in Civ. Proc. Code, § 430.41.
Discussion
Defendant
Mai Lor (Doe 1) demurs to the Complaint as follows:
1.
Second Cause of
Action (Negligent Misrepresentation).
Defendant
argues that this cause of action is not pled with the requisite specificity for
fraud-based causes of action.
Defendant
also argues that this cause of action is duplicative of the first cause of
action for medical negligence.
Plaintiff
argues that this cause of action is only alleged against Defendant UCLA.
However,
this cause of action is also alleged against Does 1 – 50, so technically it is
pled against Doe 1 Defendant Mai Lor.
“The elements of negligent misrepresentation
are ‘(1) the misrepresentation of a past or existing material fact, (2) without
reasonable ground for believing it to be true, (3) with intent to induce
another's reliance on the fact misrepresented, (4) justifiable reliance on the
misrepresentation, and (5) resulting damage.’ (Citation omitted.)” (National
Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group,
Inc. (2009) 171 Cal.App.4th
35, 50.)
Here, the
Complaint does not allege that the Doe 1 Defendant Lor represented anything to
Plaintiff, exactly what was said, when and in what manner (orally or in
writing), why such representation was made without a reasonable basis for
believing it to be true, and Plaintiff’s reliance in a manner which caused her
to take actions causing out-of-pocket damages.
In the
opposition, Plaintiff argues that this cause of action is not pled against Doe
1 Defendant Mai Lor. As such, the demurrer to the second cause of action is
SUSTAINED without leave to amend.
2. Third
Cause of Action (Lack of Informed Consent).
Defendant
argues that this cause of action is duplicative of the first cause of action
for medical negligence.
Plaintiff
argues that this cause of action is not duplicative of the medical negligence
cause of action.
The Court
does not find to be persuasive the argument that this cause of action merely
duplicate the medical negligence cause of action, which is based upon the
failure to meet the professional standard of care in performing the surgery. By
contrast, lack of informed consent addresses the duty of reasonable disclosure
prior to the surgery:
“ ‘[A]s an integral part of the
physician's overall obligation to the patient there is a duty of reasonable
disclosure of the available choices with respect to proposed therapy and of
the dangers inherently and potentially involved in each.’ [Citation.] The
scope of a physician's duty to disclose is measured by the amount of knowledge
a patient needs in order to make an informed choice. All information material
to the patient's decision should be given. [Citation.] [¶] Material information
is that which the physician knows or should know would be regarded as
significant by a reasonable person in [*1134] the patient's position
when deciding to accept or reject the recommended medical procedure.
[Citations.] To be material, a fact must also be one which is not commonly
appreciated. [Citation.] If the physician knows or should know of a
patient's unique concerns or lack of familiarity with medical procedures, this
may expand the scope of required disclosure. [Citation.]” (Truman v. Thomas (1980)
27 Cal.3d 285, 291 [165 Cal. Rptr. 308, 611 P.2d 902], fn. omitted.) The
physician's duty to disclose is twofold. “First, a physician must disclose
to the patient the potential of death, serious harm, and other complications
associated with a proposed procedure. [Citation.]” (Daum v. SpineCare
Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1301–1302 [61 Cal.
Rptr. 2d 260].) “Second, ‘[b]eyond the foregoing minimal disclosure,
a doctor must also reveal to his patient such additional information as a
skilled practitioner of good standing would provide under similar
circumstances.’ [Citation.]” (Id. at p. 1302.)
As the trial court acknowledged when
explaining its ruling, the question of whether Merritt had such a legal
duty to disclose under the particular circumstances of this case was not a
question for Wagner, as the expert, to determine. Indeed, the Supreme
Court has “stressed the paramount role of the trier of fact in informed consent
cases. [It has] recognized, for example, that questions such as whether the
danger posed by a failure to disclose a particular risk is remote, whether the
risk was or was not commonly known, and whether circumstances unique to a given
case supported a duty of disclosure [are] matters for the jury to decide.” (Arato
v. Avedon (1993) 5 Cal.4th 1172, 1184 [23 Cal. Rptr. 2d 131, 858 P.2d
598]; see also Truman v. Thomas, supra, 27 Cal.3d at pp.
293–294; Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95,
115 [34 Cal. Rptr. 3d 557].)
(Wilson v. Merritt (2006) 142
Cal.App.4th 1125, 1133-1134.)
“[A] physician is liable only where the
failure to disclose causes the injury. [Citations.] ‘There
must be a causal relationship between the physician's failure to inform and the
injury to the plaintiff. Such causal connection arises only if it is
established that had revelation been made consent to treatment would not have
been given.’ [Citation.] Moreover, causation must be established
by an objective test: that is, the plaintiff must show that
reasonable ‘prudent person[s]’ in the patient's position would decline the
procedure if they knew all significant perils. [Citations.]” (Spann v. Irwin
Memorial Blood Centers, supra, 34 Cal.App.4th at p. 657.)
(Wilson v. Merritt (2006) 142
Cal.App.4th 1125, 1138.)
However,
Plaintiff must allege Doe 1 Defendant Lor’s duty of reasonable disclosure owed
to Plaintiff, and a breach of that duty.
The
demurrer to the third cause of action is SUSTAINED with leave to amend.
3. Fourth
Cause of Action (Intentional Misrepresentation).
Defendant
argues that this cause of action is not pled with the requisite specificity for
fraud-based causes of action.
Defendant
also argues that this cause of action is duplicative of the first cause of
action for medical negligence.
Plaintiff
argues that this cause of action is sufficiently pled.
“To
establish a claim for deceit based on intentional misrepresentation, the
plaintiff must prove seven essential elements: (1) the defendant represented to
the plaintiff that an important fact was true; (2) that representation was
false; (3) the defendant knew that the representation was false when the
defendant made it, or the defendant made the representation recklessly and
without regard for its truth; (4) the defendant intended that the plaintiff
rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was
harmed; and (7) the plaintiff's reliance on the defendant's representation was
a substantial factor in causing that harm to the plaintiff. (Citations
omitted.)” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 [italics omitted].)
Fraud must be pleaded with specificity rather than with “ ‘general and
conclusory allegations.’ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th
167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].) The specificity
requirement means a plaintiff must allege facts showing how, when, where, to
whom, and by what means the representations were made, and, in the case of a
corporate defendant, the plaintiff must allege the names of the persons who
made the representations, their authority to speak on behalf of the corporation,
to whom they spoke, what they said or wrote, and when the representation was
made. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)
We enforce the specificity requirement in consideration of its two
purposes. The first purpose is to give notice to the defendant with
sufficiently definite charges that the defendant can meet them. (Committee on
Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216
[197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed
out meritless fraud claims on the basis of the pleadings; thus, “the pleading
should be sufficient ‘ “to enable the court to determine whether, on the facts
pleaded, there is any foundation, prima facie at least, for the charge of
fraud.” ’ ” (Id. at pp. 216–217.)
(West v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 780, 793.)
Each
element in a cause of action for fraud or negligent misrepresentation must be
factually and specifically alleged. (Citation omitted.) The policy of liberal
construction of pleadings is not generally invoked to sustain a
misrepresentation pleading defective in any material respect. (Ibid.) Thus, the mere assertion of “reliance” is
insufficient. The plaintiff must allege the specifics of his or her
reliance on the misrepresentation to show a bona fide claim of actual reliance.
(Ibid.)
Actual reliance occurs when the
defendant's misrepresentation is an immediate
cause of the plaintiff's conduct, altering his legal relations, and when,
absent such representation, the plaintiff would not, in all reasonable
probability, have entered into the transaction. (Citation omitted.) For
pleading purposes, the Cadlos satisfactorily alleged that Owens-Illinois
knowingly misrepresented that Kaylo was a safe product both by promoting
it [*520] as “non-irritating to the skin and [**6]
non-toxic” and concealing its hazardous nature. However, the Cadlos have not alleged that Anthony Cadlo was actually
aware of, or was reassured by and relied on this misrepresentation when
undertaking work in the presence of Kaylo dust.
(Cadlo v. Owens-Illinois, Inc. (2004) 125
Cal.App.4th 513, 519-20 [bold emphasis added].)
Here, the
Complaint does not allege that the Doe 1 Defendant Lor represented anything to
Plaintiff, exactly what was said, when and in what manner (orally or in
writing), why such representation was made with knowledge of its falsity, and
Plaintiff’s reliance in a manner which caused her to take actions causing
out-of-pocket damages.
Representations
made after the surgery had occurred would not support a cause of action absent
an allegation that this post-surgery cause of action cause Plaintiff
out-of-pocket damages.
[A] defrauded
party may recoup his out-of-pocket losses and expenditures in reliance on the
fraud, but he may not recover benefit-of-the-bargain damages (i.e., damages
placing him in the economic position he would have occupied had the
representation been true), at least where the recovery is not premised on a
specific property actually acquired by the defrauded party.
(Kenly v. Ukegawa (1993) 16 Cal.App.4th 49, 54.)
The
demurrer to the fourth cause of action is SUSTAINED with leave to amend.
4. Fifth Cause
of Action (Intentional Infliction of Emotional Distress).
Defendant
argues that the Complaint does not allege outrageous conduct by Defendant.
Plaintiff
argues that this cause of action is sufficiently pled.
“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.]” (Citation omitted.) “It is not enough
that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the
presence of a plaintiff of whom the defendant is aware.” (Ibid.)
(Catsouras v. Department of
California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.)
Here,
¶ 67 alleges that Defendants’ conduct was outrageous because Defendants and
each of them injured Plaintiff and attempted to cover it up by referring
Plaintiff to providers within UCLA’s network and who they knew would falsely
corroborate UCLA’s provider’s findings.
It
is a question of fact as to whether Defendants’ alleged cover (¶ 67) up of its
medical negligence and subsequent gaslighting by telling Plaintiff her voice
was normal (¶ 26) constitutes extreme and outrageous conduct.
“Regarding emotional distress, the
trial court initially determines whether a defendant's conduct may reasonably
be regarded as so extreme and outrageous as to permit recovery. Where
reasonable men can differ, the jury determines whether the conduct has been
extreme and outrageous to result in liability. Otherwise stated, the court
determines whether severe emotional distress can be found; the jury determines
whether on the evidence it has, in fact, existed. [Citation.]” (Godfrey v.
Steinpress (1982) 128 Cal.App.3d 154, 173 [180 Cal. Rptr. 95].)
(Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.)
However,
the Complaint does not allege extreme and outrageous conduct on the part of Doe
1 Defendant Lor.
The
demurrer to the fifth cause of action is SUSTAINED with leave to amend.
5. Sixth
Cause of Action (Corporate Hospital Liability).
Defendant
argues that, as an individual, she cannot be held liable as an employer. Defendant
also argues that there are no facts pled that she was in a supervisory position
over any of the other defendants, nor that she was negligent in hiring or
supervising another person.
Plaintiff
argues that this cause of action is only alleged against Defendant UCLA.
However,
this cause of action is also alleged against Does 1 – 50, so technically it is
pled against Doe 1 Defendant Mai Lor.
The
Complaint does not allege facts whereby Doe 1 Defendant Lor may be held liable
as a corporation. Because Plaintiff does not intend to assert this cause of
action against Lor, the demurrer to the sixth cause of action is SUSTAINED without
leave to amend.
Motion To Strike
Meet
and Confer
The
Declaration of Matthew T. Cox reflects that Defendant satisfied the meet and
confer requirement set forth in Civ. Proc. Code, § 435.5.
Discussion
Defendant
Mai Lor (Doe 1) moves to strike the following portions of the Complaint:
1. THIRD
CAUSE OF ACTION – LACK OF INFORMED CONSENT
Complaint at
Page 7, Lines 15 – 19: Paragraph 54:
MOOT by virtue of the ruling on the demurrer.
2. FOURTH
CAUSE OF ACTION – INTENTIONAL MISREPRESENTATION
MOOT by virtue of the ruling on the demurrer.
3. FIFTH
CAUSE OF ACTION – INTENTIONAL INFLICTION OF
EMOTIONAL
DISTRESS
Complaint at
Page 9, Lines 13 – 17:Paragraph 73:
MOOT by virtue of the ruling on the demurrer.
4. ATTORNEY’S
FEES
Complaint’s
Prayer for Relief at Page 10, Line 11:Paragraph 3: For attorney’s fees as
otherwise provided by law;
GRANTED with leave to amend.
“[A]s a general rule, attorney fees
are not recoverable as costs unless they are authorized by statute or
agreement.” (People ex rel. Dept. of
Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th
424, 429.)
Plaintiff must allege a basis to
recover attorney’s fees as against Doe 1 Defendant Lor.
5. PUNITIVE
DAMAGES
Complaint’s
Prayer for Relief at Page 10, Line 12: Paragraph 4: For punitive and/or
exemplary damages pursuant to Civil Code § 3294;
GRANTED with leave to amend.
Plaintiff must factually allege that
Doe 1 Defendant Lor acted with malice, oppression or fraud toward Plaintiff.
6.
PRE-JUDGEMENT INTEREST
Complaint’s
Prayer for Relief at Page 10, Line 13:Paragraph 5: For prejudgment interest;
GRANTED with leave to amend.
Plaintiff has not pled a factual
basis to recover prejudgment interest as against Doe 1 Defendant Lor.
Plaintiff is given 30 days’ leave to
amend where indicated.