Judge: Deborah C. Servino, Case: 30-2023-01305717, Date: 2023-07-21 Tentative Ruling
DEMURRER
Defendants Jennifer Armstrong, M.D., Advanced Skincare Medcenter, Inc., and Jennifer Armstrong, M.D., A Professional Corporation's demurrer as to Plaintiff Jennifer Burstein's Complaint is overruled.
Special Demurrer for Uncertainty
A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 883.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively within defendant’s knowledge. (Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300.)
Defendants argue that the first cause of action is uncertain because it fails to set forth the actionable facts related to the presumption of negligence under the doctrine of res ipsa loquitur. (Demurrer, at p. 6.) Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. (See Evid. Code, § 646, subd. (b).) The Complaint is not so unintelligible that Defendants cannot reasonably respond. Any ambiguities can be clarified through discovery. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.) Accordingly, the special demurrer for uncertainty is overruled.
General Demurrer
A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The test is whether the complaint states any valid claim entitling Plaintiff relief. A general demurrer may be upheld only if the complaint fails to state a cause of action under any possible legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)
General Negligence (First Cause of Action)
The first cause of action is entitled "Common Law General Negligence (Res Ipsa Loquitor). (Complaint, at p. 8.) Medical negligence is still considered negligence. (See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997-998.) The elements of a claim for medical malpractice are (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)
Here, the Complaint sufficiently alleges facts for a medical negligence claim. Plaintiff sought and obtained medical treatment from Dr. Armstrong. Dr. Armstrong had used illegally, imported non-FDA approved substances in her patients. Dr. Armstrong owed Plaintiff a duty of care as a licensed health care provider. Dr. Armstrong injected harmful substances into Plaintiff's upper thigh/buttocks. Defendants breached their duty of care to Plaintiff by failing to inform her about the true nature of the substances injected into her body and by injecting those substances in her. As a result, she was harmed. (Complaint, at ¶¶ 23-30, 38, 42-47.) Accordingly, the demurrer is overruled.
Fraud (Concealment) (Second Cause of Action)
The second cause of action is for fraud based on concealment. (Complaint, at pp. 10-12.) “[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) There are four circumstances in which concealment/omission may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. (Limandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337; CACI no. 1901.) The particularity requirement necessitates pleadings facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
Here, the Complaint has alleged that Plaintiff sought and obtained treatment from Dr. Armstrong. During that treatment Dr. Armstrong told Plaintiff that she was injecting "Botox" brand neurotoxin and dermal fillers with pre-filled syringes into her skin. But, unbeknownst to Plaintiff, Defendants were more likely than not injecting her with illegally imported substances not approved for use in the United States. Defendants had concealed the true nature of the products being used. They had exclusive possession of that knowledge. Plaintiff did not possess such knowledge. Defendants had a duty to disclose the true facts concerning the products and substances being used on Plaintiff. Defendants intentionally concealed the true facts with the intent to deceive and mislead Plaintiff so that she would remain Defendants' patient. As a result of the fraud, Plaintiff was harmed. (Complaint, at ¶¶ 12-40, 49-56.) The fraud based on concealment cause of action was pled with sufficient specificity.
Defendants argue that Plaintiff cannot plead any facts that Defendants "indeed used non-FDA products during her care and treatment." (Demurrer, at p. 9.) However, "the sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action - not whether they are true. Thus no matter how unlikely or improbable, Plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:44.) The demurrer as to the second cause of action is overruled.
Lack of Consent (Third Cause of Action)
The third cause of action is for lack of consent. "A physician's duty to disclose to a patient information material to the decision whether to undergo treatment is the central constituent of the legal doctrine known as 'informed consent.'" (Arato v. Avedon (1993) 5 Cal.4th 1172, 1175.) Much of the doctrine of informed consent is anchored in a theory of negligence liability. (Id. at pp. 1182-1183.) "A claim based on lack of informed consent - which sounds in negligence - arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives." (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324; see CACI no. 533.)
Here, the Complaint alleges that Defendant did not disclose that she was not a dermatologist and was not using legal, quality products and substances approved for use in patients in California. (Complaint, at ¶ 60.) Plaintiff would never have consented to being injected with illegal substances. (Complaint, at ¶ 61.)
Defendants appear to argue that this claim is duplicative of the first cause of action for negligence. (Demurrer, at pp. 9-11.) The court declines to find that this cause of action is duplicative of the first cause of action. To the extent that Plaintiff is only entitled to a single recovery of damages based upon multiple legal theories, that is not properly addressed in a demurrer. It can be addressed through jury instructions (see e.g., CACI no. 3934), verdict forms, judgment, and post-trial motions. Accordingly, the demurrer as to this cause of action is overruled.
MOTION TO STRIKE
Defendants' motion to strike portions of Plaintiff's Complaint is granted in part and denied in part as set forth below.
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any 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.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:179.)
Defendants move to strike language that are conclusory and associated with punitive damages. (Complaint, at ¶¶ 48 & 64; see Civ. Code, § 3294.) The motion to strike paragraphs 48 and 64 are granted without prejudice to Plaintiff seeking an order allowing for an amended pleading, if appropriate. (Code Civ. Proc, § 425.13, subd. (a); (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.)
Defendants motion to strike paragraphs 47 and 63 is denied. Plaintiff can plead ultimate facts to adequately assert her causes of action. (Careau & Co. v. Security Pac. Business Credit, Inc. (1990) 222 Cal.3d 1371, 1390.) As one court explained: "We emphasize that such use of the motion to strike should be cautious and sparing. We have no intention of creating a procedural 'line item veto' for the civil defendant." (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)
Within 15 days, Defendants shall electronically file their answers to the Complaint. Defendants shall serve their answers pursuant to the Code of Civil Procedure.
CASE MANAGEMENT CONFERENCE