Judge: Jon R. Takasugi, Case: 22STCV19201, Date: 2023-03-01 Tentative Ruling

Case Number: 22STCV19201    Hearing Date: March 1, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ demurrers to the FAC are SUSTAINED, WITH 10 DAYS LEAVE TO AMEND.

            Accordingly, Defendants’ motions to strike are MOOT.

On 6/13/2022, Plaintiff Mahmud Reza Siamizade (Plaintiff) filed suit against Steven Meier, LA Peer Surgery Center, Gholamreza Siamizade, and Masoumeh Siamizade. On 11/14/2022, Plaintiff filed a first amended complaint (FAC) alleging: (1) general negligence; and (2) intentional tort.

            Now, Defendants Steven Meier, MD and Steven W. Meier M.D., Inc dba Meier Orthopedic Sports Medicine (collectively, Defendants) demur to Plaintiff’s FAC.

            The motions are unopposed.

Discussion

I.                   Negligence

Defendants argue that Plaintiff has improperly alleged general negligence, rather than professional negligence.

The Court agrees.

California law does not provide a separate cause of action for "general negligence" against a health care provider if the provider is rendering services for which the health care provider is licensed at the time of the purported injury. (Williams v. Sup. Ct. (1994) 30 Cal. App. 4th 318, 324.) MICRA defines professional negligence as "a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." (Business & Professions Code § 6146 (c)(3); Civil Code § 3333.1(c)(2), § 3333.2(c)(2); California Code of Civil Procedure §§ 340.4(2), 364(f)(2), 667.7(e)(4), 1295(g)(2).)

Here, Plaintiff’s cause of action arises out of the care and treatment allegedly provided by Defendants to decedent Mahzar Sedghi and is based on allegations that “[o]n information and belief, Defendants’ treatment of my mother fell below the applicable standard care and constituted fraud, negligence and medical malpractice.” (FAC, pg. 4.)

As such, Plaintiff’s claim, on its face, clearly falls within the MICRA definition of professional negligence. Such a distinction is important given that Civil Code § 3333.2 limits non-economic damages in a professional negligence action to $250,000, and by asserting a cause of action for “general negligence”, Plaintiff would circumvent Civil Code § 3333.2.

Leave to amend is granted for the sole purpose of bringing the cause of action into conformity with law.

Based on the foregoing, Defendant’s demurrer is sustained as to the first cause of action , with 10 days leave to amend. 

II.               Intentional Tort

Defendant argues that Plaintiff cannot state a claim for intentional tort because Plaintiff has not set forth what type of “Intentional Tort” he is alleging, instead only generically referring to it as an “Intentional Tort.”

The Court agrees that Plaintiff’s second cause of action is defective. Not only has Plaintiff failed to identify what intentional tort is being alleged, but the substantive allegations appear to assert a fraud cause of action. Plaintiff may not consolidate multiple causes of action into one—an intentional tort claim is not coextensive with fraud, and the elements which must be alleged to state a prima facie claim for each are distinct.

However, in anticipation of additional motion practice, the Court notes that if Plaintiff’s cause of action had been for fraud, the Court would have likely concluded that sufficient facts were alleged with the requisite specificity. Separate and apart from the allegation of negligence, Plaintiff alleges that he and his mother met with Defendants and told Dr. Meier that “we were looking for a safe therapy for her left knee that was approved by the FDA, and which would NOT require general anesthetic procedure.” (FAC, pg. 5.) Plaintiff alleges that Dr. Meier represented that he conducted “Mesenchymal Stem Cell (MSC) therapy which would not require general anesthesia and that the procedure was approved by the FDA, completely safe and 100% effective.” (Ibid.) Plaintiff alleges that this was false, that Dr. Meier knew it was false, and that he used deceptive marketing strategies in order to use his mother as a clinical subject for clinical trial and monetary gain. While Defendants argue that these allegations are “nothing more than conjecture and speculation,” the Court accepts well-plead allegations as true at the pleading stage.

            Leave to amend is granted for the sole purpose of allowing additional facts to state a claim for an intentional tort. To the extent that Plaintiff wishes to assert a fraud cause of action, Plaintiff must separately move for leave to amend to do so, and may not properly add a cause of action within the scope of leave granted here.

            Based on the foregoing, Defendants’ demurrers are sustained, with 10 days leave to amend. Accordingly, Defendants’ motions to strike are moot.

It is so ordered.

Dated:  March    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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