Judge: Joseph Lipner, Case: 23STCV24320, Date: 2024-01-23 Tentative Ruling
Case Number: 23STCV24320 Hearing Date: January 23, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
SEUNG HEE SEO, Plaintiff, v. YOUNG HEE CHOI, D.D.S, et al., Defendants. |
Case No:
23STCV24320 Hearing Date: January 23, 2024 Calendar Number: 9 |
Defendants Young Hee Choi, D.D.S. and Mee Dental Young Choi
Group (“Mee Dental Group”) (collectively, “Defendants”) demur to Counts Two,
Three, Four, and Five of the Complaint filed by Plaintiff Seung Hee Seo
(“Plaintiff”). Defendants additionally move to strike Plaintiff’s prayer for
attorney’s fees.
The Court SUSTAINS Defendants’ demurrer WITH LEAVE TO AMEND
with respect to Plaintiff’s third cause of action for negligent
misrepresentation.
The Court SUSTAINS Defendants’ demurrer WITHOUT LEAVE TO
AMEND with respect to Plaintiff’s fifth cause of action for unprofessional
conduct.
The Court OVERRULES Defendants’ demurrer with respect to the
remaining causes of action.
The Court GRANTS Defendants’ motion to strike.
This is a dental malpractice action. The following facts are
taken from the allegations in the Complaint, which the Court accepts as true
for the purpose of the demurrer.
Plaintiff presented to Defendants on July 8, 2022 for a
routine teeth cleaning and scaling. After a dental exam, Defendants advised
Plaintiff that the extraction of six teeth was recommended. Choi explained that
the teeth were loose, although Plaintiff alleges that she had never experienced
any sensation of the six teeth being loose or shifting.
The parties scheduled an extraction for July 15, 2022.
There, Defendants clarified to Plaintiff that only two of the six teeth were to
be extracted that day, and the remaining four teeth would be extracted at a
later date. After the administration of anesthesia, Choi suggested that it
would be preferable to extract all six teeth at once. Choi presented a blank
consent form for Plaintiff to sign while she was disoriented from the
anesthesia before going under.
Plaintiff alleges that there was a heightened risk to
extracting all six teeth at once, of which Defendants did not inform her. As a
result of the extraction, Plaintiff was unable to speak for approximately five
months and lost roughly 20 pounds because she struggled to eat properly.
Plaintiff filed the Complaint against Defendants on October
6, 2023, alleging (1) dental negligence; (2) lack of informed consent; (3)
negligent misrepresentation; (4) battery; and (5) unprofessional conduct
pursuant to Business & Professions Code, section 1680.
Defendants filed the instant demurrer and motion to strike
on November 22, 2023. Plaintiff filed oppositions to each, and Defendants filed
replies.
As a general matter, 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 pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Code Civ. Proc., § 436(b).) The grounds for a motion to strike are that the
pleading has irrelevant, false or improper matter, or has not been drawn or
filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(Code Civ. Proc., § 437.)
To state a cause of action for lack of informed consent,
Plaintiff must allege (1) the defendant performed a medical procedure on her,
(2) the defendant failed to disclose certain information to her that was
material to her decision when soliciting her consent to a medical procedure,
(3) a reasonable person in the plaintiff’s position would not have agreed to
the procedure if she had been adequately informed, and (4) breach of the duty
to disclose certain information caused damaged to the plaintiff. (See Jameson v. Desta (2013) 215 Cal.App.4th
1144, 1164; Saxena v. Goffney (2008)
159 Cal.App.4th 316, 324 [“A claim based on lack of informed consent—which
sounds in negligence—arises when the doctor performs a procedure without first
adequately disclosing the risks and alternatives”]; Cobbs v. Grant (1972) 8 Cal.3d 229, 245 [“There must be a causal
relationship between the physician’s failure to inform and the injury to the
plaintiff. Such causal connection arises only if it is established that had
revelation been made consent to treatment would not have been given”].)
Defendants argue that this claim should be dismissed because
it merely duplicates Plaintiff’s negligence claim. However, the case law cited
by Defendant, read in its full context, explains how courts draw the line
between negligence and battery, not negligence and lack of informed
consent. “If the patient consents to a procedure without being informed of all
the known risks, the doctor's failure to disclose those risks is negligence.” (Conte
v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th
1260, 1267.) “The battery theory should be reserved for those circumstances
when a doctor performs an operation to which the patient has not consented. ….
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 v. Grant (1972) 8 Cal.3d 229, 240–241.)
In
this case, there will likely be a factual issue at summary judgment or at trial
over whether Plaintiff consented to the full procedure. Defendants have hinted
at their argument that Plaintiff consented to the removal of all six teeth, and
Plaintiff has alleged that any consent that was given was invalid. In this
environment, Plaintiff may permissibly plead alternate legal theories for
recovery upon the same operative facts. Although Defendants argue that this
cause of action is uncertain as to what exactly Plaintiff consented to and what
risks Plaintiff was informed of, these issues can be resolved in discovery. The
Court therefore overrules the demurrer as to this cause of action.
“California courts
have recognized a cause of action for negligent misrepresentation, i.e., a duty
to communicate accurate information, in two circumstances. The first situation
arises where providing false information poses a risk of and results in physical
harm to person or property. The second situation arises where information is
conveyed in a commercial setting for a business purpose.” (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 477.)
Here,
Plaintiff does not clearly identify which statements were misrepresentations,
or what the truth was. Although Plaintiff likely can allege negligent
misrepresentation as to some of the representations made leading up to the
surgery, she has not done so with the specificity necessary to meet the
heightened pleading standard for fraud. The Court therefore sustains the
demurrer with respect to this cause of action with leave to amend.
A plaintiff suffers a medical battery when (1) the defendant
performed a medical procedure without plaintiff's informed consent; or that
plaintiff gave informed consent to one medical procedure, but defendant
performed a substantially different medical procedure; (2) the plaintiff was
harmed; and (3) the defendant's conduct was a substantial factor in causing
plaintiff's harm. (CACI 530A; see also Cobbs v. Grant (1972) 8 Cal.3d
229, 239 [“Where 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, there is a clear case of battery.”)
Defendant argues that Plaintiff
does not allege any substantially different procedure performed by Choi.
However, Plaintiff alleges that, prior to the surgery, Defendants clarified to
her that only two of the six teeth would be extracted, even though Choi then
extracted all six. Plaintiff alleges that, once she was partially under
anesthesia, Choi told her that it would be preferable to extract all six and
provided her with a blank consent form which she signed. Plaintiff has
therefore plausibly alleged that she did not consent to the removal of all six
teeth in one surgery. Thus, the removal of the additional four teeth
constituted a substantially different procedure from the one Plaintiff alleges
she consented to – the removal of two teeth.
The
Court therefore overrules the demurrer as to this cause of action.
Plaintiff alleges that unprofessional conduct pursuant to
Business & Professions Code, section 1680. Defendant argues, persuasively,
that section 1680 does not actually authorize a cause of action.
Business and Professions Code, section 1670 states that “[a]ny
licentiate may have his license revoked or suspended or be reprimanded or be
placed on probation by the board for unprofessional conduct, or
incompetence, or gross negligence, or repeated acts of negligence in his or her
profession, or for the issuance of a license by mistake, or for any other cause
applicable to the licentiate provided in this chapter.” (Bus. & Prof. Code,
§ 1670 [emphasis added].) Section 1680 then defines the term unprofessional
conduct.
These sections do not, however, create a private right of
action. Their clear language indicates that they set regulations to be enforced
by the Dental Board of California, and not private individuals. Plaintiff does
not provide any argument in response to this point. Because section 1680 does
not create a cause of action, amendment could not resolve this issue. The Court
therefore sustains the demurrer without leave to amend as to this cause of
action.
Defendants move to strike Plaintiff’s prayer for attorney’s
fees.
Attorney’s fees cannot be awarded in a civil lawsuit unless
authorized by (A) contract, (B) statute, or (C) other law. (Code Civ. Proc., §
1033.5.)
Plaintiff identifies the private attorney general doctrine
as a basis for awarding attorney’s fees. However, Plaintiff cites no law
indicating that this case is a context where the private attorney general
doctrine has been applied. Although Plaintiff argues that the Court has the
power to craft equitable exceptions to the general rule that parties pay their
own attorney’s fees, she does not provide reasons why this is a case where such
a remedy is warranted.
The Court therefore grants Defendants’ motion to strike.