Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

Plaintiff B.Z. consulted and hired Defendants Dr. Ashkan Ghavami and Ashkan Ghavami M.D., a medical corporation, to perform a rhinoplasty and a fat transfer for which B.Z. paid $29,000.  (Compl. ¶9.)  B.Z.’s Complaint claims that B.Z. asked for a simple refinement but was left with a larger more protruding nose.  (Id.) 

Dr. Ghavami allegedly left B.Z.’s nose deformed, leaning, and curving to the side, with an indentation from a collapsed cartilage that will worsen over time potentially requiring several procedures to fix.  (Id. ¶12.)  Dr. Ghavami took out almost the entire septum preventing a simple revision.  Revision will now require cartilage from B.Z.’s rib causing additional pain and anguish.  At no point before the surgery did Dr. Ghavami inform or warn B.Z. that he would remove most of her septum.  (Id.) 

The procedure left B.Z.’s nose with a grossly deviated septum preventing normal breathing.  As a result of the surgery, B.Z. cannot breathe from her right nostril. She also experiences constant post-nasal drip which leaves a bad taste in her mouth.  The inability to breathe through her nose is also causing B.Z. to choke when she swallows food.  (Id. ¶10.)  

The surgery also caused an oversized columella that “devastated” B.Z.’s smile causing a large crease to form on the upper lip during smiling.  (Id. ¶9.)  B.Z. claims Defendants failed to disclose that the surgery may affect her lip and smile.  (Id.)  When B.Z. complained about the procedure, Dr. Ghavami told her to smile less.  (Id. ¶15.)   

Additionally, the Complaint alleges Dr. Ghavami failed to properly perform the fat transfer procedure.  Dr. Ghavami managed to leave a sack of fat under one eyelid, removal of which will require additional surgery, pain, anguish, and expense.  (Id. ¶14.)  And when B.Z. asked why the fat transfer did not work, Dr. Ghavami stated he had no idea why and tried to blame it on B.Z.’s facial features.  Rather than offer a solution, Dr. Ghavami pressured B.Z. into buying expensive cosmetic treatments from him.  (Id. ¶15.)   

On these facts, the operative complaint alleges four claims for (1) professional negligence or medical malpractice, (2) breach of fiduciary duty, (3) intentional infliction of emotional distress (“IIED”), and (4) negligent infliction of emotional distress (“NIED”).     

This hearing is on Defendants’ demurrer.  Defendants argue that (1) the second cause of action for breach of fiduciary duty fails because Plaintiff does not allege Dr. Ghavami has a “personal interest” as to the care and treatment provided to Plaintiff; (2) the third cause of action for IIED fails because Plaintiff does not allege any extreme or outrageous conduct that caused severe emotional distress, and (3) the fourth cause of action for NIED fails because it is a bystander cause of action and Plaintiff is not a bystander.   

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc., § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)  Moving Defendants submit the Declaration of Jason Peterson which shows the parties met and conferred but fails to state that the conference was by telephone or in person.  Notwithstanding, the Court cannot overrule a demurrer based on an inadequate meet and confer.  (Code Civ. Proc., § 430.41(a)(4).)   

LEGAL STANDARD 

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

DISCUSSION 

Breach of Fiduciary Duty Claim 

Defendants argue that Plaintiff’s second cause of action for breach of fiduciary duty fails because Plaintiff has not alleged a personal interest unrelated to the plaintiff’s health, whether research or economic, that may affect Dr. Ghavami’s professional judgment.  The Court disagrees.   

A claim for breach of fiduciary duty against a physician may be based on the failure to obtain informed consent.  (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1165 (“A cause of action premised on a physician’s breach of this fiduciary duty may alternatively be referred to as a claim for lack of informed consent.”).)   

The factors for determining informed consent are: (1) a patient gives an “informed consent” only after the¿doctor¿has adequately explained the proposed treatment or procedure; (2) a doctor must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand; (3) a doctor must give the patient as much information as he needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances; (4) the patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed; (5) lastly, a doctor is not required explain minor risks that are not likely to occur. (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343). 

Here, Plaintiff alleges Dr. Ghavami failed to disclose risks associated with the procedure, including that her smile would be affected or that most of her septum would be removed.  (Compl. ¶¶ 9, 12.)  This is sufficient to support a claim for breach of fiduciary duty against a doctor.   

Citing Moore v. Regents of University of California (1990) 51 Cal.3d 120, 129, Defendants argue that a breach of fiduciary duty may only be established where a physician fails to disclose personal interests unrelated to patient’s health, whether research or economic, that may affect the physician’s professional judgment.  But Moore did not so hold.  Moore only stands for the proposition that failure to disclose personal interests is one way a physician could fail to obtain informed consent.  Moore acknowledged that “in soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient’s decision,”¿ 

and “questions about the validity of a patient's consent to a procedure typically arise when the patient alleges that the physician failed to disclose medical risks.”  (Id. at 129.) 

Defendants next argue that Plaintiff’s claim for breach of fiduciary duty is duplicative of her claim for medical malpractice.  The Court disagrees. 

Preliminarily, there is a split of authority whether a demurrer may be sustained on the ground that a cause of action is duplicative. (Compare¿Palm Springs Villas II Homeowners Assn., Inc. v. Parth¿(2016) 248 Cal.App.4th 268, 290¿(demurrer properly sustained on ground that cause of action was duplicative) with¿Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC¿(2008) 162 Cal.App.4th 858, 890¿(whether a cause of action is¿duplicative¿“is not a ground on which a demurrer may be sustained”).) 

In any event, a¿breach of fiduciary duty¿is entirely distinct from a malpractice claim.¿(Stanley v. Richmond¿(1995) 35 Cal.App.4th 1070, 1086;¿Barbara A. v. John G.¿(1983) 145 Cal.App.3d 369, 382-383.)¿“The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages.¿[Citation.]” (Oasis West Realty, LLC v. Goldman¿(2011) 51 Cal.4th 811, 820-821.)¿ “The¿elements¿of a cause of action 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.)¿ 

No California court has explicitly held that a¿breach of fiduciary duty¿claim cannot merely¿duplicate a claim for¿professional negligence. (See¿Buehler v. Sbardellati¿(1995) 34 Cal.App.4th 1527, 1544, fn. 9¿(noting “there is authority for the view the breach of fiduciary duty theory is separate from the professional negligence theory” but “leav[ing] any resolution of this separate cause of action question to another case”].) 

Here, although the negligence claim and breach of fiduciary duty claim are predicated on the same facts, the two claims involve different elements. That is, the same facts have resulted in different breaches.  Thus, at this demurrer stage, the Court declines to find the claims are duplicative as matter of law. 

IIED Claim 

Defendants argue that Plaintiff has not alleged extreme and outrageous conduct or severe emotional distress, and therefore she has not alleged the elements required for an IIED claim.  The Court disagrees. 

The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct (2) directed to the plaintiff by defendant, (3) with the intention of (4) causing, or reckless disregard of the probability of causing, (5) severe or extreme emotional distress.  (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903.)  For conduct to be outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.  (See¿Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.)  Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" (Id.) 

¿ “[T]he 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.) 

Here, Defendants argue that medical opinions cannot constitute extreme and outrageous conduct.  But Plaintiff is not alleging that Dr. Ghavami’s medical opinions were in error.  Among other things, the Complaint alleges Dr. Ghavami falsified his operative report to hide his mistakes, and when confronted with his negligence, he callously told Plaintiff she should smile less or that she had a fat face. “Whether such alleged behavior is sufficiently extreme as to constitute ‘outrageous’ behavior is properly determined by the fact finder after trial.” (Angie M. v. Sup. Ct. (1995) 37 Cal. App. 4th 1217, 1226; So v. Shin (2013) 212 Cal. App. 4th 652, 671 (reversing the trial court’s ruling sustaining a demurrer to an IIED claim involving a doctor-patient relationship explaining that “there is no bright line standard for judging outrageous conduct” and that outrageousness is a question of fact.); Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1045 (“[O]outrageousness is a question of fact.”). 

Dr. Ghavami’s second argument, that Plaintiff “basically” did not allege suffering, simply ignores the complaint.  Plaintiff alleged, among other things, that Dr. Ghavami’s conduct caused Plaintiff so much stress and anxiety that she was diagnosed with shingles. (Compl. ¶ 37.) The shingles caused several weeks of excruciating pain and suffering and the need to take prescription medication.  Plaintiff also required doctor visits and muscle relaxing medication to help her sleep.  Additionally, Plaintiff required doctor visits and anti-anxiety medication to help her cope with her stress.  (Id.) 

In sum, Plaintiff has sufficiently alleged extreme and outrageous conduct and severe emotional distress.  Accordingly, the Court overrules the demurrer to the IIED claim.   

NIED Claim 

Defendants argue that the NIED claim fails because the claim is only a bystander claim, and Plaintiff is not a bystander.  The Court disagrees.   

A negligent infliction of emotional distress cause of action is permitted in two types of actions: “bystander” and “direct victim” cases. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127.)  “Direct victim cases involve the breach of a duty owed [to] the plaintiff that was assumed by the defendant, imposed on the defendant as a matter of law, or arose out of a preexisting relationship between the two.” (Id.¿[citations omitted].)  Here, Plaintiff is alleging a direct victim NIED claim, which is allowed under the law. 

None of the cases cited by Defendants stand for proposition that there is no direct victim NIED claim.  Rather, the cases dealt with “bystander” NIED claims, without holding that there is no direct victim NIED claim.   

Notwithstanding, the Court concludes that the NIED claim is duplicative of the negligence claim, and on that basis, the Court sustains the demurrer.  In Christensen v. Superior Court (1991) 54 Cal.3d 868, our Supreme Court explained, “when damages are sought for negligently inflicted emotional distress, the tort is negligence regardless of the specific name that may be used to describe the tort, and that the elements of duty, breach of duty, causation and damages must be pleaded and proven.” (Id. at 882.)  Since Plaintiff has already alleged a cause of action for medical malpractice, Plaintiff may not state a separate claim for NIED.  Plaintiff may recover emotional distress damages as part of her negligence claim.  Therefore, the demurrer is sustained as to the third cause of action without leave to amend.   

CONCLUSION 

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendants’ demurrer to the third cause of action without leave to amend.     

IT IS SO ORDERED. 

 

DATED:  November 8, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court