Judge Elaine W. Mandel, Case Number: 22SMCV01009, Date: 2023-09-13 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV01009, Date: 2023-09-13 Tentative Ruling

Case Number: 22SMCV01009 Hearing Date: December 14, 2023 Dept: P

Tentative Ruling

Magali Alvarez v. Emil Kohan, M.D. et al., Case No. 22SMCV01009

Hearing Date December 14, 2023

Defendants Emil Kohan M.D. and Emil Kohan, M.D., Inc.’s Motion for Judgment on the Pleadings (Continued from 11/8/2023)

Plaintiff Alvarez sues for injuries from cosmetic surgeries in August 2018 and November 2020. On September 13, 2023 the court granted defendants’ motion for summary judgment as to claims arising out of the 2018 surgery, but denied summary judgment as to the 2020 surgery. The court denied summary judgment as to the medical battery claim arising out of the 2020 surgery, concluding “[t]his argument should be made via motion for judgment on the pleadings[.]” 9/13/2023 minute order pg. 3. Defendants Kohan and his corporation seek judgment on the pleadings as to the medical battery claim.

On November 8, 2023 the court issued a tentative ruling granting judgment on the pleadings. At the hearing, the court noted the motion was untimely and continued the motion hearing to allow Alvarez to file an opposition. 11/8/2023 minute order.

Alvarez objects to the motion as untimely. Per Cal. Code of Civ. Proc. §438(e), a motion for judgment on the pleadings cannot be made “if a pretrial conference order has been entered pursuant to Section 575 or within 30 days of the date the action is initially set for trial, whichever is later unless the court otherwise permits.” Under the statute, the court can permit an untimely motion for judgment on the pleadings to be heard. Because the court encouraged Dr. Kohan to file an MJP in its summary judgment ruling and because it continued the initial hearing to allow Alvarez to file an opposition, it will rule on the motion, as there is no prejudice.

A cause of action for medical battery lies when defendant performs a procedure without consent, or if plaintiff consented to one procedure and defendant performed a substantially different one. CACI 530A. Defendants argue the remaining allegations do not support a cause of action for medical battery. The FAC alleges defendant implanted a size and type of implant to which Alvarez did not consent. FAC ¶26. The surgery was in August 2018. FAC ¶9. To the extent the medical battery claim was based on the first surgery, it is subject to summary judgment pursuant to the court’s 9/13/23 ruling. Allegations regarding the size and type of implants cannot support Alvarez’s medical battery claim.

Alvarez’s remaining battery allegations relate to the surgery’s outcome, not the nature of the procedure. FAC ¶¶26-29. Alvarez alleges the surgeries produced asymmetric breasts and buttocks. She does not allege these asymmetries were caused by a nonconsensual surgery, but rather that defendant performed a consensual surgery that resulted in physical harm.

Alvarez points to aspects of the procedures she did not consent to, including the size of the implants. While this might support a negligence claim, it does not support a battery claim. Alvarez consented to the type of procedure performed. There is no allegation he performed a “substantially different” procedure; rather, plaintiff alleges the outcome did not conform to her expectation. Such allegations cannot be the basis of a medical battery claim. GRANTED.