Judge Kerry Bensinger, Case Number: 24STCV20256, Date: 2025-01-22 Tentative Ruling

In 2018, plaintiff James Young Kim (Plaintiff) sought medical services from defendants Luke W. Yoon, M.D. (Dr. Yoon) and Urology Center (collectively, Defendants) regarding the health of Plaintiff’s prostate. Thereafter, defendants diagnosed Plaintiff with prostate cancer and provided him with medical treatment. Plaintiff alleges that Defendants misdiagnosed him with prostate cancer, knew that he was free of prostate cancer, yet continued to treat him for prostate cancer. This action followed.

On August 12, 2024, Plaintiff commenced this action against Defendants for (1) professional negligence (medical malpractice), (2) fraud and misrepresentation, (3) lack of informed consent, and (4) battery.

On November 18, 2024, Dr. Yoon filed this demurrer to the second, third, and fourth causes of action in Plaintiff’s Verified Complaint, and concurrently filed a motion to strike punitive damages from the same.

On January 9, 2025, Plaintiff filed a consolidated opposition to the demurrer and motion to strike.

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, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)¿¿

Dr. Yoon demurs to the second, third, and fourth causes of action. The court addresses them in turn.

Plaintiff’s fraud claim is based on the following allegations: “During all or most of the times since 2018, while treating plaintiff for prostate cancer, defendants and each of them knew or should have known that plaintiff was free of the prostate cancer in his body. However, defendants and each of them hid or minimized or downplayed the acts that indicated the status of being free of prostate cancer from plaintiff. Instead, defendants and each of them kept prescribing different treatment drugs and kept him in the regiment of treatment for prostate cancer until 2024, telling plaintiff that the treatment was necessary.” (Complaint, ¶ 12.) “While being treated by defendants and each of them since 2018, plaintiff did not know that the true facts of his condition and relied on the advice of defendants and each of them. Plaintiff kept taking the prescribed drugs and underwent the regiment of treatment for many years. Had he known the true facts about his condition, he would not have agreed to such lengthy and difficult regiment of treatment for all those years. Plaintiff s reliance was reasonable as he relied on the advice of a licensed medical doctor.” (Complaint, ¶ 13.)

Dr. Yoon argues the fraud claims fails because there are no allegations plead specifically as to him. The court disagrees but nonetheless finds the fraud claim is deficient.

“Fraud must be pleaded with specificity rather than with general and conclusory allegations.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (cleaned up).) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)¿¿

Here, Plaintiff does not allege with sufficient specificity what was stated to Plaintiff, when the representations were made, nor how the statements were made (in person, by phone, email, etc.). The fraud claim fails. Accordingly, the demurrer to the fraud claim is SUSTAINED. Leave to amend is GRANTED.

Plaintiff’s informed consent claim is based on the following allegations: “Throughout the period of treatments, defendants and each of them failed to properly inform plaintiff of the treatment options and all available risks, benefits and possible outcomes of each treatment. (Complaint, ¶ 17.) “Not having been properly informed of all treatment options and their possible outcomes, plaintiff failed to obtain reasonable information to give informed consent to defendants for the treatments that were rendered.” (Complaint, ¶ 18.)

Dr. Yoon argues the third cause of action for lack of informed consent fails because it is indistinguishable from Plaintiff’s first cause of action for professional negligence (medical malpractice) and is therefore not a separate claim.

To establish a claim for failure to obtain informed consent, the plaintiff alleges that the defendant (1) performed a medical procedure, (2) that defendant did not disclose to plaintiff he important potential results and risks of [and alternatives to] the medical procedure, (3) that a reasonable person in plaintiff’s position would not have agreed to the medical procedure if that person had been adequately informed; and (4) that plaintiff was harmed as a result or risk that defendant should have explained. (CACI No. 533.)

The court agrees the informed consent claim fails, but on different grounds. Plaintiff does not allege the medical procedure that Defendants performed. Instead, Plaintiff vaguely alleges Defendants’ a failure to properly inform Plaintiff of all “treatment options and all available risks, benefits and possible outcomes of each treatment.” (Complaint, ¶ 17.) A defendant would be left to guess at the basis of Plaintiff’s allegations.

Accordingly, the demurrer to the informed consent claim is SUSTAINED. Leave to amend is GRANTED.

Plaintiff’s fourth cause of action for medical battery is based on the following allegation: “Throughout the treatments, defendants and each of them caused intentional, nonconsensual,

and harmful or offensive contact on the body of plaintiff including, but not limited to, touching during the medical procedure and examination and prescribing or administering certain drugs

Dr. Yoon argues the medical battery claim fails because a medical battery cannot be based on a lack of informed consent.

To establish a claim for medical battery, a plaintiff must allege that (1) the defendant performed a medical procedure without consent or that plaintiff consented to one medical procedure, but performed a substantially different medical procedure, (2) that plaintiff was harmed, and (3) that conduct was a substantial factor in causing plaintiff’s harm. (CACI No. 530A.)

The battery claim is deficient. Plaintiff does not identify the medical procedure which he did not consent to, or alternatively, that a substantially different medical procedure was performed.

Accordingly, the demurrer to the battery claim is SUSTAINED. Leave to amend is GRANTED.

Dr. Yoon seeks to strike punitive damages from Plaintiff’s Verified Complaint. The punitive damages claim is plead in connection to Plaintiff’s second cause of action for fraud and misrepresentation. Because the court has sustained the demurrer to that cause of action, the court finds the motion to strike is MOOT.

Accordingly, the demurrer to the second, third, and fourth causes of action is Sustained. Leave to amend is Granted. The motion to strike is Moot.

Plaintiff is directed to serve and file the First Amended Complaint within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court