Judge Edward B. Moreton, Jr, Case Number: 25SMCV00041, Date: 2025-04-02 Tentative Ruling

Judge: Edward B. Moreton, Jr, Case: 25SMCV00041, Date: 2025-04-02 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

FRANK TUFANO,

Plaintiff,

MEHRYAR RAY TABAN, et al.,

Defendants.

Case No.: 25SMCV00041

Hearing Date: April 2, 2025

[TENTATIVE] order RE:

DEFENDANT AMERICAN ACADEMY OF

OPHThALMOLOGY’S DEMURRER AND

motion to STRIKE complaint

This case arises out of a claim for professional negligence. Plaintiff Frank Tufano, a “YouTube Personality”, alleges Defendant Mehryar Ray Taban, M.D. performed a cosmetic eye procedure on Plaintiff which left him “deformed” and “near blind.”

Plaintiff alleges Dr. Taban is a member of various organizations including Defendant American Academy of Ophthalmology (the “Academy”), a “professional medical association of ophthalmologists” with a stated mission to “protect sight and empower lives by serving as an advocate for patients and the public, leading ophthalmic education, and advancing the profession of ophthalmology”.

Plaintiff has sued the Academy claiming that it “failed to recognize Dr. Taban’s clear malpractice in their respective areas of expertise, whether it’s a general procedure that should not be performed in a cosmetic application, having knowledge of surgical risks to be conveyed to the patient, performing cosmetic procedures with sub-par skill level and high error rates, and clear lack of knowledge in treating complications arising from orbital surgery.”

The operative complaint alleges claims for (1) informed consent, (2) standard of care-surgical errors, (3) injury and (4) damages. Plaintiff is appearing in pro per.

This hearing is on the Academy’s demurrer and motion to strike. The Academy argues that Plaintiff has not made any allegations that would support a finding of liability against the Academy, including “how the Academy knew or should have known about Dr. Taban’s alleged surgical practices, what specific oversight obligation it had, or how it breached any legal duty.” There was no opposition filed as of the posting of this tentative ruling.

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (Code Civ. Proc., §§ 430.41(a), 435.5(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), 435.5(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), 435.5(a)(3).) The Academy submits the Declaration of Christopher Fleissner who attests the parties met and conferred by telephone on January 16, 2025, and Mr. Fleissner followed up in writing on February 20, 2025, more than five days before the demurrer was filed on March 6, 2025. (Fleissner Decl. ¶ 3.) This satisfies the meet and confer requirements of §§ 430.41 and 435.5.

The demurrer fails to meet the requirements of¿Code Civ. Proc. § 430.60¿and CRC § 3.1320(a) and is improperly¿noticed. A¿demurrer, as distinguished from the memorandum of points and authorities, must separately¿state¿each¿ground¿of demurrer: “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (CRC § 3.1320(a).) Moreover, the Academy improperly combined its motion to strike with its demurrer. A motion to strike and demurrer are separate motions, which should be filed separately.¿ Notwithstanding, despite these procedural defects, the Court will consider the Academy’s motions on their merits.

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.)

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436, subd. (a).) The court may also strike 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, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.)

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.)

While Plaintiff has alleged four causes of action, it is really one single claim for professional negligence. The¿elements¿of a claim for¿professional negligence¿are “‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.’” (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095.) While negligence is ordinarily¿a question of fact, the existence of a duty is generally a question of law that may be addressed by demurrer. (Id.¿at 316.)

In general, each person has a duty to act with reasonable care under the circumstances.¿(Cabral v. Ralphs Grocery Co.¿(2011) 51 Cal.4th 764, 771; see¿Civ. Code, § 1714, subd. (a).) However, “one owes no duty to control the conduct of another, nor to warn¿those endangered by such conduct.” (Davidson v. City of Westminster¿(1982) 32 Cal.3d 197, 203.)¿“A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.” (Williams v. State of California¿(1983) 34 Cal.3d 18, 23.)

A duty to control, warn, or protect may be based on the defendant’s relationship with “either the person whose conduct needs to be controlled or [with] … the¿foreseeable victim of that conduct.” (Tarasoff, 17 Cal.3d at 435; see¿Davidson,¿32 Cal.3d at 203.) Specifically, a duty to control may arise if the defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person’s conduct.¿(Rest.3d Torts, Liability for Physical and Emotional Harm, § 41.)

The Court has found no cases which have found a special relationship between a member organization such as the Academy and either the member/health care provider or his patient. And the factors the court analyzes to determine if a duty exists would not support imposition of such a duty. These factors include: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to¿the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland v. Christian¿(1968) 69 Cal.2d 108, 113.)¿

Here, there is no foreseeability of harm. There is no indication the Academy knew or should have known that any of its members are committing malpractice. The connection between the Academy’s admission of Dr. Taban as a member and his alleged malpractice on Plaintiff is also not close. There is no moral blame attached to the Academy’s conduct as there is no evidence it even knew or should have known of Dr. Taban’s previous allegedly botched surgeries. The public policy factors also do not weigh in favor of imposing a duty on the Academy. There is no indication that holding the Academy liable would prevent the type of harm alleged in this case, particularly where as here Plaintiff does not even allege he retained Dr. Taban because of his membership in the Academy.

Accordingly, as there are no facts which would support a finding of duty on the part of the Academy, the Court sustains the demurrer without leave to amend. Plaintiff also has not carried his burden to show that the Complaint against the Academy could be successfully amended as he has not even filed an opposition.