Judge Jill Feeney, Case 20STCV36767 2023-02-23 Tentative Ruling

Defendant demurs to Plaintiff’s second cause of action for medical battery on the grounds that the FAC states Defendant obtained consent prior to commencing the procedure Defendant also demurs to Plaintiff’s third cause of action for negligent and intentional infliction of emotional distress on the grounds that Defendant’s conduct was not extreme, nor does the FAC plead that Defendant engaged in any conduct intending to cause Plaintiff emotional distress (“IIED and NIED”). Defendant also alleges the cause of action for fraud is unsupported because there are no facts showing Defendant intended to deceive Plaintiff or made any misrepresentation of material facts. Defendant also argues that there are no facts in the FAC that support the causes of action for breach of fiduciary duty, defamation, and obstruction. Defendant also seeks to strike portions of the FAC with respect to punitive damages and attorney’s fees.

Plaintiff argues that the FAC properly pleads battery because Defendant intended to deviate from the standard of care and exceeded the terms of consent. Plaintiff also argues that the FAC adequately pleads IIED and NIED because Defendant’s conduct was intentional and that Defendant fabricated the record to excuse his conduct. Plaintiff argues that the FAC adequately pleads fraud because Defendant intended to induce reliance and trust and had ulterior motives. Plaintiff also argues generally that the causes of action for breach of fiduciary duty, alteration of medical records, and defamation and obstruction were properly pled in the FAC.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, section 3294, subd. (a).)

“Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code, section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

A party filing a demurrer “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 shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., §§ 430.41 (a)(4).)

Medical battery occurs when (1) defendant performed a medical procedure without plaintiff’s consent or (2) plaintiff consented to one medical procedure, but defendant performed a substantially different medical procedure. (Dennis v. Southard (2009) 174 Cal.App.4th 540 fn. 1.) Whether a medical procedure that was performed is “substantially different” from the one that a plaintiff consented to is a question that for the jury. (See Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647.)

A physician may be liable for battery when he fails to obtain the patient's consent to a procedure or performs a substantially different procedure than the one the patient consented to. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241.) 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. (Ibid.) 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. (Ibid.)

Here, the FAC states that Defendant performed a procedure to remove a single hyperactive parathyroid from Plaintiff’s neck. (FAC, ¶1.) The surgery is known to take approximately 20 minutes under local or light anesthesia. (FAC, ¶2.) Defendant operated on Plaintiff under general anesthesia for nearly 5 hours, injuring Plaintiff. (FAC, ¶4.) Defendant damaged Plaintiff’s healthy hormonal glands by removing, destroying, or mutilating them. (FAC, ¶6.) Defendant went beyond the scope of Plaintiff’s consent by operating on Plaintiff’s chest cavity. (FAC, ¶10.) Defendant falsified the surgical report to justify his intrusion into Plaintiff’s chest cavity. (FAC, ¶11.)

Plaintiff alleges that Cedars Sinai Medical Center engaged Defendant to remove a hyperactive parathyroid from Plaintiff’s neck. The

FAC states that the procedure was known to take around 20 minutes under local or light anesthesia. Plaintiff underwent surgery for around five hours under general anesthesia and Defendant operated on her chest cavity. Plaintiff alleges that Defendant acted within the scope of her consent.

Defendant argues that the FAC fails to allege facts sufficient to state a cause of action for IIED because Defendant’s alleged conduct was not so extreme as to exceed all bounds usually tolerated in a civil communicated. Additionally, Defendant alleges Plaintiff attempts to allege a cause of action for NIED which fails because it is not a standalone cause of action.

The elements for a cause of action for intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) an actual and proximate causal link between the tortious conduct and the emotional distress.¿ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)¿

“A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 234, 257 (internal citations and quotations omitted).) “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 (internal citations and quotations omitted).) Rather, the requirements for satisfying the element of extreme and outrageous conduct are rigorous and difficult to satisfy. (Okorie, supra, 14 Cal.App.5th at 597.) “On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Id. (quoting Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129).) “Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Ibid.)

“Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.”¿¿(Wong v. Tai Jing¿(2010) 189 Cal. App. 4th 1354, 1376.) Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.”¿(Potter v. Firestone Tire & Rubber Co.¿(1993) 6 Cal. 4th 965, 1004.)

Here, the FAC alleges that after Plaintiff’s surgery, Defendant stated “I had to go into your chest near the heart to locate the parathyroid.” (FAC, ¶14.) The statement was false and intended to inflict mental and emotional distress because Plaintiff did not know the truth of the statement at the time Defendant made it. (FAC, ¶15.) Plaintiff later discovered that the statement was false. (FAC, ¶15.) Defendant altered Plaintiff’s medical records to ensure she would not discover the statement was false. (FAC, ¶18.) As a result of Defendant’s lie, Plaintiff suffered mental and emotional distress. (FAC, ¶17.)

The FAC sufficiently alleges facts showing Defendant’s conduct is extreme and outrageous. Defendant lied about having to operate in Plaintiff’s chest near her heart and altered her medical records to prevent her from discovering the statement was false. The FAC also alleges that Defendant intended to cause Plaintiff emotional distress and that Plaintiff suffered severe mental and emotional distress.

With respect to the cause of action for NIED, “[the] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, internal citations omitted.)

Here, the FAC alleges that Defendant was Plaintiff’s medical provider. As her medical provider, Defendant owed Plaintiff a duty not to make false statements to her concerning her treatment. The FAC alleges Defendant breached his duty by making a false statement to her concerning her surgery. As a result of his lie, Plaintiff suffered mental and emotional distress. The FAC thus alleges facts sufficient to support a cause of action for NIED.

The elements of fraud are: “(a) misrepresentation of a fact (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

The elements of intentional misrepresentation are as follows: (1) that defendant represented to plaintiff that a fact was true; (2) that defendant’s representation was false; (3) that defendant knew that the representation was false when defendant made it, or that defendant made the representation recklessly and without regard for its truth; (4) that defendant intended that plaintiff rely on

Here, the FAC states that Defendant misrepresented that he had knowledge to perform her procedure comparable to any expert in California. (FAC, ¶20.) Defendant also misrepresented that surgery was the only option when Plaintiff’s condition could have been managed by care and medication. (FAC, ¶20.) Defendant misrepresented and concealed the actions he planned to take during surgery. (FAC, ¶21.) Defendant intended to induce Plaintiff into believing she was receiving the best possible care. (FAC, ¶24.) Plaintiff would not have consented to surgery had she known what actions Defendant was going to take. (FAC, ¶22.) Defendant made further misrepresentations after surgery. (FAC, ¶24.)

Defendant argues that the facts in the FAC are insufficient because none of the facts alleged earlier in the FAC were incorporated into the claim for fraud and misrepresentation.. However, reading the FAC liberally and in context with the other allegations made in the FAC, the FAC sufficiently alleges that (a) Defendant made misrepresentations about his qualifications, misrepresented the necessity of the surgery, and concealed details about the surgery, (b) made the representations knowingly, (c) made the misrepresentations to induce plaintiff to agree to the surgery, (d) Plaintiff would not have consented to the surgery if she knew of the misrepresentations, and (e) Plaintiff was injured as a result. Thus, the FAC contains sufficient facts to state a cause of action for fraud and intentional misrepresentation. The demurrer is overruled as to these causes of action.

“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.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) A physician has a fiduciary duty to disclose all information material to a patient’s decision when seeking informed consent. (Moore v. Regents of University of California¿(1990)¿51 Cal.3d 120, 129.)

The FAC alleges facts sufficient to support a cause of action for breach of fiduciary duty. The FAC alleges that Defendant was Plaintiff’s medical provider. Defendant therefore had a fiduciary duty to disclose all information material to Plaintiff’s decision to give informed consent to the procedure.

Defendant argues that the cause of action for alteration of medical records fails because California no longer recognizes this cause of action. As Defendant points out, there is no tort remedy for intentional spoliation, the intentional destruction or suppression of evidence. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4.) Therefore, the demurrer is sustained as to this cause of action.

Defendant finally argues that the cause of action for “obstruction” appears to be a consequence of the cause of action for defamation. Defendant argues that the FAC fails to state facts sufficient to support a cause of action for defamation because it does not state the words constituting the alleged defamation.

Statements of facts are actionable, while statements of opinion are not. (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.) However, “where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation.” (Id. at 1370.) “The critical question is not whether a statement is fact or opinion, but ‘whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.’” (Id. (quoting McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113).) “‘To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicated or implies a provably false statement of fact.’” (Id. (quoting McGarry, supra, 154 Cal.App.4th at 113).)

“Defamation … may occur by means of libel or slander. (Civ. Code, § 44.)” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.) “‘Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye.” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 893 [italics in original].)

“Case law requires that statements alleged to constitute libel ‘must be specifically identified, if not¿pleaded¿verbatim, in the complaint’; less specificity is required in the¿pleading¿of slander, given that slander may ‘be charged by¿alleging the substance of the¿defamatory¿statement.’” (Ibid. [italics in original].) (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 893.)

Here, the FAC states that Defendant engaged in an active defamatory campaign against Plaintiff, spreading rumors that any claim would be fraudulent, in order to prevent Plaintiff from retaining an attorney to represent her in this action. (FAC, ¶36.) Defendant intended to coerce other physicians into concealing the true nature of plaintiff’s injuries. (FAC, ¶37.)

The FAC fails to specifically identify or allege the substance of the statements constituting the alleged libel. Thus, the FAC fails to meet the specificity required to state a cause of action for defamation. Thus the demurrer is sustained as to this cause of action with leave to amend.

The FAC states that Defendant was negligent in planning, operating, and taking reasonable measures to reduce the time in surgery and avoid causing injury to Plaintiff. (FAC, ¶3.) Defendant negligently operated under general anesthesia for nearly five hours despite knowing the adverse effects of extended surgery under general anesthesia. (FAC, ¶4.) Defendant negligently damaged Plaintiff’s other hormonal glands by removing, destroying, or mutilating them. (FAC, ¶6.) Defendant concealed Plaintiff’s injuries from her by altering her medical record. (FAC, ¶7.)

The FAC sufficiently alleges facts showing Defendant acted with a conscious disregard for Plaintiff’s safety because Defendant continued to operate despite knowing of the adverse effects of extended surgery under general anesthesia. Furthermore, the FAC adequately alleges Defendant’s conduct was despicable because Defendant then concealed Plaintiff’s injuries from her in her medical record. The Court finds that altering the records of Plaintiff’s injuries rises to the level of conduct necessary to support a claim for punitive damages. The motion to strike is denied as to punitive damages.

Defendant also seeks to strike the portions of the FAC concerning attorney’s fees. These fees are only allowable under Code Civ. Proc. section 1033.5, subd. (a)(10) when authorized by contract, statute, or law. There is no evidence attorney’s fees are allowable here. The motion to strike is granted as to attorney’s fees.