Judge: Colin Leis, Case: 22STCV13792, Date: 2022-09-22 Tentative Ruling

Case Number: 22STCV13792    Hearing Date: September 22, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendant Richard Dale Gentile, D.D.S.

RESPONDING PARTY:       N/A

Defendant Richard Dale Gentile, D.D.S.’s Demurrer to First Amended Complaint;

Defendant Richard Dale Gentile, D.D.S.’s Motion to Strike Portions of Plaintiff’s First Amended Complaint

The court considered the moving papers filed in connection with these motions. No oppositions were filed.

BACKGROUND

            Plaintiff Rosevianney C. Ogumsi filed this medical malpractice action on April 26, 2022. The operative First Amended Complaint (“FAC”) was filed on July 5, 2022, and asserts causes of action for (1) professional negligence (dental malpractice), (2) intentional infliction of emotional distress, (3) negligent infliction of emotional distress, (4) unlawful, unfair, and/or fraudulent business practices, and (5) defamation.

            Defendant Richard Dale Gentile, D.D.S. (“Gentile”) demurs to the second, third, fourth, and fifth causes of action on the basis that each fails to state facts sufficient to constitute a cause of action. Gentile also moves to strike the punitive damages allegations of the FAC.

LEGAL STANDARD

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A court may strike any “irrelevant, false or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.) 

DISCUSSION

In the FAC, Plaintiff alleges that in March 2020, she consulted Gentile for a dental check-up and was informed that she needed a root canal. (FAC, ¶ 10.) In May 2020, Gentile performed the root canal, and during the procedure, Plaintiff began to bleed excessively and felt excruciating pain all over her mouth, head, and jaw. (FAC, ¶ 10.) Gentile gave Plaintiff antibiotics and pain medication and an appointment to return in a week to continue the root canal work. (FAC, ¶ 10.) The pain and bleeding did not subside overnight, and Plaintiff returned to Gentile’s office the next day to seek immediate medical assistance. (FAC, ¶¶ 11-12.) Gentile told Plaintiff that he would be unable to see Plaintiff, ordered his assistant to take an x-ray of Plaintiff’s mouth, and left the office. (FAC, ¶ 13.) Due to the pain, Plaintiff was unable to eat much of anything for a month. (FAC, ¶ 14.) Plaintiff then returned to Gentile’s office for her scheduled one-week follow-up appointment, and although Plaintiff explained her concerns about her pain symptoms, Gentile resumed working on the root canal. (FAC, ¶ 15.) Gentile again stopped due to worsening pain and bleeding and gave Plaintiff an appointment to return in another week. (FAC, ¶ 15.) When Plaintiff returned to Gentile’s office the following week, Gentile again resumed working on the root canal. Gentile then told Plaintiff that he was unable to fix something he wanted to correct before continuing with the root canal, but he refused to explain what it was. (FAC, ¶¶ 16-17.) Unknown to Plaintiff, Gentile had broken file pieces in Plaintiff’s teeth that he was trying to remove but was unable to, which caused nerve damage to Plaintiff. Instead of informing her of this, Gentile referred Plaintiff to a root canal specialist. (FAC, ¶ 17.) The specialists informed Plaintiff that she had foreign bodies in her teeth but either refused or were unable to remove them, so Plaintiff returned to Gentile on multiple occasions for referrals. (FAC, ¶¶ 18-24.) In June 2021, Plaintiff arrived at Gentile’s office to request her dental records, but Gentile ordered her to leave and threatened to call the police if she did not leave. (FAC, ¶ 25.)

The second cause of action for intentional infliction of emotional distress against Gentile is based on the dental records incident that occurred sometime in June 2021. (FAC, ¶¶ 43-44.) Essentially, Plaintiff needed her dental records in order to be treated by a different dentist and was told by Gentile that he no longer had her records but that she could return on June 11, 2021. On June 11, 2021, Plaintiff returned to Gentile’s office, was forced to wait around for many hours, and then was unceremoniously asked to leave. When Plaintiff did not leave, Gentile instructed the nurse to call the police, which the nurse did, although the police never responded. Plaintiff never received her records. Gentile argues that this falls short of qualifying as extreme and outrageous conduct as required to state a claim for intentional infliction of emotional distress. The court disagrees, however, because the demurrer describes the allegations too narrowly as leaving a foreign body inside plaintiff.  In fact, the complaint’s allegations read liberally also claim Gentile additionally gave Plaintiff the run around and threatened her with arrest as she tried to get her records, at a time when Gentile knew Plaintiff was physically and emotionally suffering and vulnerable because of her injuries. The court cannot say as a matter of law that such facts do not support intentional or negligent infliction of emotional distress. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883 [“court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery”].) The demurrer to the second cause and third causes of action is therefore overruled.

Plaintiff’s fourth cause of action is for unfair business practices under California’s Unfair Competition Law (UCL). (Bus. & Prof. Code, § 17200 et seq.) A UCL plaintiff must plead and prove that the defendant engaged in a business practice that was either “unlawful (i.e., is forbidden by law), unfair (i.e., harm to victim outweighs any benefit) or fraudulent (i.e., is likely to deceive members of the public).” (Albillo v. Intermodal Container Services, Inc. (2003) 114 Cal.App.4th 190, 206.) Gentile contends that the UCL claim must fail because it merely duplicates the professional negligence cause of action. While the two claims are based on the same set of facts, the court does not find that the two claims are duplicative. Gentile also argues that the cause of action has not been pleaded with the requisite particularity. But the court finds that the facts alleged in the FAC are sufficient to establish either unlawful, unfair, or fraudulent business practices.

Lastly, Gentile argues that the fifth cause of action for defamation must fail because the pertinent allegations do not apply to Gentile. Plaintiff alleges that the defendants made false statements that Plaintiff was a trespasser to the police. (FAC, ¶¶ 72-73.) But Plaintiff never alleges that Gentile (or the nurse in Gentile’s office) made such a statement. (FAC, ¶ 25.) Therefore, the court finds that Plaintiff has failed to state facts sufficient to constitute a cause of action for defamation.

Because Plaintiff did not comply with Code of Civil Procedure § 425.13, the court grants the motion to strike the punitive damages allegation (FAC, ¶ 54) without leave to amend unless, and until, Plaintiff complies with that statute.

CONCLUSION

Based on the foregoing, the court overrules Gentile’s demurrer to the second, third, and fourth causes of action. The court sustains the demurrer to the fifth cause of action, with leave to amend. The court grants Gentile’s motion to strike.

The court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the court orders Gentile to file and serve an answer within 30 days of the date of this order.

Gentile is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 22, 2022

_____________________________

Colin Leis

Judge of the Superior Court