Judge: Daniel S. Murphy, Case: 24STCV06098, Date: 2024-05-24 Tentative Ruling

Case Number: 24STCV06098    Hearing Date: May 24, 2024    Dept: 32

BACKGROUND

            On March 12, 2024, Plaintiff Zuly Mejia de Martir filed this action against Defendants Ana Helena Rankovic, D.D.S and Ana Helena Rankovic, D.D.S., Inc. The complaint asserts causes of action for (1) dental malpractice, (2) intentional misconduct, (3) lack of informed consent, (4) pain and suffering, and (5) emotional distress.

            The complaint alleges that Defendant Rankovic performed multiple dental procedures upon Plaintiff throughout the period from February 2023 to August 2023, and eventually broke Plaintiff’s tooth during one of the procedures. Plaintiff alleges that she returned to Defendant and expressed that she only wished to have the tooth fixed. Instead, Defendant allegedly removed crowns and then broke two other teeth. As a result, Plaintiff alleges that she suffers from depression and anxiety, and has lost weight due to difficulty eating. Plaintiff alleges that other dentists have informed her she will lose five teeth, one of which will involve a bone implant.

            On April 12, 2024, Defendants filed the instant demurrer to the complaint.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendants have complied with the meet and confer requirement. (See Kaiser Decl.)

DISCUSSION

I. Intentional Misconduct

            Plaintiff’s second cause of action is labeled as one for “intentional misconduct.” There is no such thing as a cause of action for “intentional misconduct.” A defendant may be liable for intentional misconduct through various tort theories, but Plaintiff’s complaint and opposition fail to specify which tort theory underlies the second cause of action. The second cause of action contradictorily alleges that Plaintiff was harmed both as a result of Defendant Rankovic’s “intentional conduct” and Defendant Rankovic’s “negligence.” (Compl. ¶¶ 46-48.) Therefore, the second cause of action is subject to demurrer for uncertainty.

II. Pain and Suffering

            Plaintiff’s fourth cause of action is for “pain and suffering.” While Plaintiff may allege damages for pain and suffering as part of her malpractice claims, “pain and suffering” is not a standalone cause of action. Therefore, the fourth cause of action adds nothing to the complaint by way of fact or theory, and is subject to demurrer. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.)

III. Emotional Distress

            Plaintiff’s fifth cause of action is for “emotional distress.” As with above, this is a component of damages, not a standalone cause of action. Plaintiff appears to acknowledge this in her opposition. (See Opp. ¶ 22 [“when a person suffers emotional distress as a result of malpractice, or an accident due to the negligence of another person, he or she may be entitled to compensation for non-economic damages”].) This confirms that emotional distress damages are part of claims for malpractice or negligence, not an independent cause of action.

            Plaintiff also suggests in her opposition that this is a claim for intentional infliction of emotional distress. (Opp. ¶ 26.) To state a cause of action for intentional infliction of emotional distress, a plaintiff must establish: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “For conduct to be outrageous, it must be so extreme as to exceed all bounds of that usually tolerated by a civilized community.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 172.) “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.)  

Here, Plaintiff’s complaint establishes negligence at most and contains no aggravating facts indicating outrageous conduct. Plaintiff’s allegations of emotional distress are also generic and insufficient to constitute severe emotional distress. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 [“discomfort, worry, anxiety, upset stomach, concern, and agitation” do not satisfy the severity standard].)

To the extent Plaintiff asserts emotional distress damages as part of her malpractice claims, there is no need for an independent cause of action for emotional distress. To the extent Plaintiff asserts an independent claim for intentional infliction of emotional distress, the complaint alleges no facts supporting that cause of action. Either way, the fifth cause of action is subject to demurrer.  

CONCLUSION

            Defendant’s demurrer is SUSTAINED without leave to amend.  Defendant shall file answer within 20 days of this order.