Judge: John C. Gastelum, Case: 23-01300537, Date: 2023-08-29 Tentative Ruling
(1) Demurrer to Complaint (2) Motion to Strike (3) CMC
Tentative Ruling: (1) Defendant Gaffino and Reagan Dental Corp. (“Defendant”)’s Demurrer to Complaint is sustained in part and overruled in part as set forth below. To the extent the Demurrer is sustained, Plaintiff is GRANTED 20 days leave to amend.
2nd, 4th and 11th Causes of Action - Sustain
Preliminarily, Plaintiff agrees to dismiss the 2nd COA for lack of informed consent, 4th COA for NIED, 11th COA for breach of fiduciary duty. Thus, the demurrer to these causes of action is SUSTAINED.
All of Plaintiff’s Claims are Subject to MICRA and Barred by The Statute of Limitations - Overrule
Defendant argues all of Plaintiff’s claims are subject to MICRA and that Plaintiff is attempting to plead around the applicable 1-year statute of limitations. While the allegations arise out of dental treatment Plaintiff received, her allegations for the remaining causes of action go beyond mere negligence, as discussed below. Thus, the remaining causes of action fall outside of MICRA and the 1-year statute of limitations. Accordingly, the demurrer on this ground is OVERRULED.
1st Cause of Action for Medical Battery - Overrule
First, Defendants argue this cause of action is duplicative of the second cause of action. However, this argument is no longer applicable since Plaintiff agreed to dismiss the second cause of action for lack of informed consent.
Defendant also argue this is not medical battery, but merely one of negligence (lack of informed consent). Defendants cite the seminal case of Cobbs v. Grant (1972) 8 Cal.3d 229 in which the California Supreme Court discussed the differences between battery (an intentional tort) and lack of informed consent, which sounds in negligence. The court noted “[t[he 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.” (Cobbs at p. 240.)
Subsequent courts have found that, whether a medical procedure is a substantially different procedure from the one to which the patient has consented may in some cases be a question for a fact finder to decide, and not one capable of being decided on demurrer. (See Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647.)
In
Nelson v. Gaunt (1981) 125 Cal.App.3d 623, the court grappled with how
to characterize an incident where the plaintiff consented to breast
augmentation, which the defendant physician assured her would involve the use
of an “inert substance” that would have “absolutely no side effects.”
However, the physician did not inform the plaintiff that the procedure
involved silicone injections, which were not FDA approved. (Id.) The
plaintiff sued for battery, fraud, and related claims. In reviewing Cobbs,
the Nelson court found “Cobbs implies that the failure to
discuss the nature of the treatment sounds in battery.” (Id. at 634.)
Here, the Complaint alleges Plaintiff did not consent to the treatment as she was incapable of fully understanding the contents of the consent form prior to signing it, and that instead of removing the two wisdom teeth Plaintiff complained of, defendants performed bone grafts on teeth 17 & 32. The bone grafts were not covered by Plaintiff’s insurance. Plaintiff believes she was placed under anesthesia because defendants knew she would not consent to the procedures had she been adequately warned of all dangers and risks, and had she been given the opportunity to consent before being placed under anesthesia.
Thus, the trier of fact may ultimately find, based on the facts pled here, that the acts of Defendants constitute battery.
Defendant further argues the statute of limitations has run. The parties agree that the statute of limitations for battery is two years. (See Code Civ. Proc., §335.1.) The alleged battery occurred on 1-6-21 and Plaintiff filed her Complaint on 1-4-23 (not 1-23-23, as argued by Defendant). The Complaint was filed within the statute of limitations.
Based upon the foregoing, the demurrer to this cause of action is OVERRULED.
3rd Cause of Action for IIED - Overrule
Defendant alleges the third and fourth causes of action are duplicative. However, Plaintiff has agreed to dismiss the fourth cause of action.
Defendant also alleges that there are no facts to support the allegation that its actions were “so extreme as to exceed all bound of that usually tolerated in a civil community.”
The elements of an IIED cause of action 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 suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. [Citation.]” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) “A defendant's conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant's conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.]” (Hughes v. Pair (2009 46 Cal.4th 1035, 1050-1051.) As to the emotional distress suffered, “‘[s]evere emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it. ’ ” ’ [Citation.]” (Id., at p. 1051.)
The IIED cause of action alleges: (1) Defendants acts were extreme and outrageous because they never obtained Plaintiff’s consent prior to performing the dental procedures; that it is extreme and outrageous for medical professional to place a patient under anesthesia before obtaining the patients informed consent prior to executing serious, and potentially dangerous, medical procedures; and that is both extreme and outrageous for medical professions to charge patients for procedures that they never performed; (2) Defendants acted with reckless disregard of the probability of causing Plaintiff severe emotional distress; (3) Defendants conduct resulted in severe emotional distress.
The demurrer to the cause of action for IIED is OVERRULED. At the pleading stage, the elements for IIED have been properly pleaded.
5th Cause of Action for Unfair Business Practices, B&P 17200 - Overrule
Defendant contends the Complaint fails to identify any particular section of the statutory scheme which was violated and fail to describe with any reasonable particularity the facts supporting violation.
“A claim made under section 17200 is not confined to anticompetitive business practices, but is also directed toward the public's right to protection from fraud, deceit, and unlawful conduct. Thus, California courts have consistently interpreted the language of section 17200 broadly. [S]ection 17200 definition is disjunctive, the statute is violated where a defendant's act or practice is unlawful, unfair, fraudulent or in violation of section 17200.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1007) (internal citations and quotation marks omitted).)
Here, Plaintiff alleges defendants performed an illegal touching and medical battery, had her sign consent forms while incapable of fully understanding the contents of that form, informing her bone grafts were performed and charged her for the grafts when none were actually performed, leading Plaintiff to pay for said procedures for illegal profit. This is sufficient to state a claim for unfair competition. The demurrer to this cause of action is OVERRULED.
6th and 7th Causes of Action for Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing - Sustain
The elements of breach of contract are well settled. To state a claim for breach of contract, a party must plead “(1) the existence of the contract, (2) [the party’s] performance or excuse for nonperformance, (3) the [other party’s] breach, and (4) resulting damages to the [party].” (Maxwell v. Dolezal (2014) 231 Cal. App. 4th 93, 97-98.) Additionally, all essential elements of a breach of contract cause of action, must be pleaded with specificity. (See, Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4th 1, 6 and Code Civ. Proc., § 430.10(g) - defendant may object to a complaint, by demurrer “in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral or is implied by conduct”.)
The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract. (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49.)
Here, Defendant is correct in that the essential elements of breach of contract have not been sufficiently stated. Accordingly, the demurrer to these causes of action is SUSTAINED.
8th and 9th Causes of Action for Fraud (Misrepresentation) and Fraud (Concealment) - Sustain
Defendant contends these causes of action are duplicative, contradictory and are not pled with the requisite level of specificity.
“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.” (Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 230-231). “The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 (citing Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.)
“Each element of a fraud count must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action, although less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff.” (Chapman at 231.) “The particularity requirement 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.)
Here, Plaintiff has alleged misrepresentations on January 6, 2021, but does not identify with specificity which misrepresentations, nor by whom. Plaintiff lumps all of the defendants together. Further, the pleading does not indicate exactly who made each statement, when, where, to whom or by what means each statement was made.
The fraudulent concealment cause of action is based on the same general misrepresentations and references in person and email discussions with unnamed individuals. This cause of action also lacks the heightened specificity required for fraud. Plaintiff again lumps all of the defendants together and does not specify exactly who concealed the information, when, by what means, etc.
The demurrer as to these causes of action is SUSTAINED.
10th Cause of Action for Conversion - Sustain
Defendant contends the Complaint fails to state an identifiable sum that has allegedly been converted and has failed to establish that the property converted was on in which the plaintiff had a specific identifiable possessory interest, and that the allegations are nothing more than a negligence claim. At most, plaintiff has alleged a breach of contract claim, so this cause of action is duplicative.
“A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. …A “generalized claim for money [is] not actionable as conversion.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395 [internal citations omitted].)
Here, Defendant is correct that the complaint fails to state sufficient facts. The Complaint fails to state a specific identifiable sum and a generalized claim for money is not actionable as conversion.
Based upon the foregoing, the demurrer to this cause of action is SUSTAINED.
(2) Defendant moves to strike the allegations and prayer for punitive damages as well as the prayer for attorney fees and costs.
Plaintiff does not oppose the motion.
Plaintiff’s failure to oppose a motion to strike may be treated as an implied concession to the merits of the same. (See, Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) In addition, the failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”].) Based upon the foregoing, the unopposed motion to strike punitive damages, and attorney fees and costs is GRANTED with 20 days leave to amend.
Moving Party to give notice.