Judge Jill Feeney, Case 22STCV10249 2022-09-27 Tentative Ruling

On March 24, 2022, Plaintiff Aileen Munoz filed a complaint against Defendants Southern California Orthopedic Institute, L.P. and David K. Wahba, MD (“Wahba”) for (1) negligence, (2) fraudulent concealment, (3) negligent misrepresentation/medical malpractice, and (4) constructive fraud/medical malpractice.

On June 3, 2022, Defendant Wahba filed a demurrer to FAC and motion to strike. On July 15, 2022, the Court sustained Defendant’s motion with leave to amend as to the second cause of action and overruled the demurrer as to the third and fourth causes of action.

Defendant Wahba demurs to Plaintiff’s cause of action for fraudulent concealment on the grounds that Plaintiff failed to state facts sufficient to constitute a cause of action and is uncertain. (Code. Civ. Pro, section 430.10, subd. (e)(f).)

Defendant Wahba reiterates that Plaintiff has failed to sufficiently plead fraud with specificity. Additionally, Plaintiff’s amendments to her Complaint still contain no specific factual allegations showing that Wahba knew he unintentionally pierced Plaintiff’s dura causing an iatrogenic injury.

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 747.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc., § 430.41.)

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 of Civ. Proc., § 435(b)(1); Cal. Rules of Court, rule 3.1322(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., § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

CCP section 435.5 requires that, before filing a 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 of the motion 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., § 435.5.)

The elements of fraud are: “(a) misrepresentation (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.)

“[T]o establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant ‘was under a legal duty to disclose them.’” (OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.) Nondisclosure or concealment may constitute actionable fraud when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; and (4) the defendant makes partial representations but also suppresses some material facts. (Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831.)

CCP section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “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.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

On July 15, 2022, the Court sustained Wahba’s first demurrer to Plaintiff’s FAC. The Court previously found that Plaintiff’s FAC sufficiently pled intent to defraud, duty to disclose, what information was concealed, reliance, and damages. However, Plaintiff’s allegations were insufficient to show that Wahba knew he unintentionally pierced Plaintiff’s dura.

“9. The nature and true diagnosis of this injury was evident and known to Defendant DAVID K. WAHBA, MD when it occurred on October 1, 2021 based on the abrupt onset of clinical symptoms consistent with, and a textbook presentation of an iatrogenic breach of the Plaintiff’s dura and the deposition of steroid into the subdural space, as well as contemporaneous confirmation by Defendant DAVID K. WAHBA, MD through direct visualization of the dural breach by Fluoroscopy, real time medical imaging that shows a continuous X-ray imaging on a monitor, much like an X-ray movie, during which an X-ray beam is passed through the plaintiff’s lumbar region, permitting images to be viewed on a monitor, directly revealing the dural breach and injection of corticosteroid into her subdural space. As a result of these symptoms and direct visual fluoroscopic confirmation, Defendant DAVID K. WAHBA knew on October 1, 2021 that he unintentionally pierced the plaintiff’s dura causing an iatrogenic injury, based on his contemporaneous observation of the same but failed to apprise the plaintiff and actively hid this fact.”

“She immediately thereafter experienced an abrupt onset of new clinical symptoms consistent with a dural breach and arachnoiditis, including debilitating headache, dizziness, nausea, low back pain, buttock pain and radiating leg pain, and was specifically treated for a dural breach and arachnoiditis, with IV pain medication, something that never previously occurred. Defendant DAVID K. WAHBA, MD was aware these symptoms were the direct result of an iatrogenic dural breach and resulting arachnoiditis by direct visual fluoroscopic confirmation, and that the diagnosis of arachnoiditis was again confirmed on MRI on November 2, 2021 by an independent radiologist which was known by Defendant DAVID K. WAHBA, MD on that date.”

Plaintiff sufficiently pleads fraudulent concealment against Wahba. Plaintiff’s amendments allege that at the time of the procedure, real time X-ray imaging of Plaintiff’s lumbar region appeared on a monitor and showed the dural breach. Wahba confirmed the breach as it occurred via visual fluoroscopy. Plaintiff was thereafter treated with IV pain killers for the dural breach. Plaintiff’s amendments sufficiently allege that Wahba observed and confirmed the dural breach on the monitor during the procedure. Additionally, Plaintiff received IV pain killers for the breach. Because Plaintiff alleges Wahba confirmed the dural breach during the procedure and later prescribed IV painkillers to treat the breach, the SAC sufficiently pleads that Wahba knew he unintentionally pierced Plaintiff’s dura.

Paragraphs 16, 18, 20, 21, 24, and 25 are asserted as part of the cause of action for fraudulent concealment. Given that Plaintiff’s cause of action for fraudulent concealment was sufficiently pled, these paragraphs are not conclusory and are relevant to the cause of action. Accordingly, Wahba’s motion is denied as to these paragraphs.