Judge: Gary Y. Tanaka, Case: 21STCV19616, Date: 2023-01-19 Tentative Ruling

Case Number: 21STCV19616    Hearing Date: January 19, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                    Thursday, January 19, 2023
Department B                                                                                                                           Calendar No. 10

PROCEEDINGS

Graciela Plata v. Eric S. Kaleka, et al.   

21STCV19616

1.      Ericdeep S. Kaleka, D.M.D., et al.’s Demurrer to Complaint  

TENTATIVE RULING

Ericdeep S. Kaleka, D.M.D., et al.’s Demurrer to Complaint is sustained without leave to amend, in part, and with 20 days leave to amend, in part.  

Background

Plaintiff filed the Complaint on May 25, 2021. Plaintiff alleges the following facts. Plaintiff retained Defendants for dental services. Plaintiff discovered a remnant inside her tooth, number 14, which was negligently left behind during a root canal theory treatment. Plaintiff alleges the following causes of action: 1. Professional Negligence; 2. Professional Negligence – Res Ipsa Loquitor (sic); 3. Lack of Informed Consent.

Meet and Confer

Defendants set forth a meet and confer declaration in sufficient compliance with CCP §§ 430.41. (Decl., Shirley Carpenter Bridwell, ¶¶ 3-4.)

Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court may not consider contentions, deductions, or conclusions of fact or law.  (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.)  Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)  Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer.  (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer."  (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.”  Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) “Demurrers for uncertainty under Code of Civil Procedure section 430.10, subdivision (e) are disfavored. 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. A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant's knowledge.” Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 (internal citations and quotations omitted).

Defendant demurs to the Complaint and the second and third causes of action for Professional Negligence – Res Ipsa Loquitur and Lack of Informed Consent on the grounds that the causes of action fail to state sufficient facts to constitute a cause of action against Defendants.

Second Cause of Action for Professional Negligence – Res Ipsa Loquitur

Defendant’s demurrer to the second cause of action is sustained without leave to amend. Plaintiff fails to state sufficient facts to constitute a cause of action.

“In California, the doctrine of res ipsa loquitur is defined by statute as ‘a presumption affecting the burden of producing evidence.’ (Evid.Code, § 646, subd. (b).  The presumption arises when the evidence satisfies three conditions: ‘“(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”’ Vebr v. Culp (2015) 241 Cal.App.4th 1044, 1058.

Evid. Code, § 646 states, in relevant part:

“(b) The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.

(c) If the evidence, or facts otherwise established, would support a res ipsa loquitur presumption and the defendant has introduced evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the court may, and upon request shall, instruct the jury to the effect that:

(1) If the facts which would give rise to a res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant; and

(2) The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant.”

Thus, the doctrine of res ipsa loquitur is not a separate independent cause of action. Instead, it is a doctrine affecting evidentiary burdens in an appropriate factual scenario. During the appropriate time, if the evidence is presented which can meet the requirements set forth in Evidence Code § 646, the Court will make a determination as to whether an instruction regarding the doctrine of res ipsa loquitur is warranted.

The demurrer to the second cause of action is sustained without leave to amend.

Third Cause of Action for Lack of Informed Consent

The demurrer to the second cause of action is sustained without leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.

Depending on the facts pled, “lack of informed consent” may constitute a cause of action for Negligence or a cause of action for Battery.  A medical battery occurs when “a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained.”  Cobbs v. Grant (1972) 8 Cal.3d 229, 239.  A medical battery also occurs “when a doctor performs an operation to which the patient has not consented.”  Id. at p. 240. 

“The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.  However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information.  In that situation the action should be pleaded in negligence.” Id. at 240–241.

Plaintiff has pled facts to only support a theory of negligence.  In addition, Plaintiff’s opposition, filed on May 18, 2022, concedes that she is only proceeding on a theory of negligence.  Thus, the cause of action is duplicative of the first cause of action.

Plaintiff contends that she is entitled to plead alternate theories of negligence.  While this is correct, negligence is only one cause of action.  The Court notes that this theory of negligence based on lack of informed consent was not specifically mentioned until the beginning of the third cause of action.  Thus, the Court provides for 20 days leave to amend for Plaintiff to amend the Complaint to add facts to support this theory of negligence within the first cause of action for Negligence.

However, the demurrer to the third cause of action is sustained without leave to amend.

Defendants are ordered to give notice of this ruling.